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Could you please explain to me the difference between a mufti and a qaadhi

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A Mufti issues a decree but can not enforce it. The Qaadhi has the power of enforcement. Refer attached, ?Muftis and their Fatwas?

and Allah Ta’ala Knows Best

Mufti Ebrahim Desai
FATWA DEPT.

MUFTIS AND THEIR FATWAS

An important division of juristic labour marks the relation of the Shariáh, or Islamic Law, to the concrete world of human affairs. Across time and space, two distinct categories of legal interpreters have stood at the meeting points of law and fact. The domain of legal procedure, including adversarial cases, rules of evidence, binding judgments, and state enforcement, belongs to the judge (Qaadhi); the issuance of nonbinding advisory opinions (Fatãwa, or Fatwas) to an individual questioner (Mustafti), whether in connection with litigation or not, is the separate domain of the juriconsult (Mufti). In their different venues, both Qaadhis and Muftis have specialised in handling the everyday traffic in conflicts and questions falling within the purview of the Shariah.

Compared to Qaadhis, Muftis have received little attention in Western scholarship, in part because of the litigation-oriented expectations of many observers for whom the role of the juriconsult is unfamiliar, and in part because, in many historical settings, the activity of the Mufti was far less institutionalised than that of the Qaadhi. Whereas Qaadhis always were appointed, salaried officials who dispensed justice in public tribunals, many Muftis operated privately and unobtrusively without any ties to the political authorities, while others were officially appointed. The significance of the work of the Muftis – whether private or public – rests on the high degree of authority that could be carried by their opinions, which represent the closest Islamic equivalent to the familiar Anglo-American legal mechanism of caselaw precedent.

Research focused on Muftis and their Fatwas is integral to current efforts to refine our understanding of the history of Islamic Law. In pre-modern times, the umbrella of the Shariáh encompassed not only on ritual law but also criminal law and a wide range of contracts. Derived from the Qurãn and the Sunnah (the exemplary behaviour of the Prophet Muhammad as recorded in narrative reports, or Hadith), the Shariáh developed by means of human juristic efforts into a comprehensive and detailed corpus of law that was continuously adjusted to changing circumstances. While the more theoretical aspect of the Shariáh is embodied in the literatures dealing with the ‘branches’ of substantive law (Furu al-Fiqh) and with the ‘roots’ of legal methodology and jurisprudence (Usul al-Fqih), its more practical aspect is embodied in Fatwas issued by Muftis in response to questions posed by individuals in connection with ongoing human affairs. As the corpus of substantive law and jurisprudence grew, acquiring both multiple levels of commentary and authoritative summaries, the accumulation of Fatwas issued by Muftis in diverse social and historical settings served to stimulate the development of the Shariáh from below, in response to the specific needs of particular Muslim communities.

In its many historical manifestations, the Muftiship exhibits both a number of consistent family resemblances and, especially on its public side, considerable institutional diversity. As interpreters, individual Muftis displayed varying degrees of juristic proficiency and different discursive styles. They issued Fatwas in response to a wide range of questions emanating from individual Muslims of every status, including Qaadhis and political authorities such as the Khaliph or sultan. Reflecting the importance of Fatwa giving (Iftã) in the Islamic legal system, both the activity of the Mufti and the Fatwa genre have been analysed by Muslim intellectuals of various eras. In this chapter, we outline the history of Iftã and examine its structure, to help situate the specific worlds invoked by the contributors to this volume.

THE FORMATIVE PERIOD
The Qurãn announces itself as a divine revelation communicated to humanity through the medium of the Prophet Muhammad. According to Islamic tradition, the Quràn was revealed seriatism over a period of approximately twenty three years. Muhammad received the first revelation, verse 176 of Sura 4 (women) shortly before his death in 632. The content of these revelations changes dramatically over time, reflecting a new phase in Muhammad’s mission as a prophet and statesman. During the Makkan phase of his career (610-622), Muhammad’s primary task was to announce the doctrine of the Oneness of God (Tawhid) and to summon humanity to His worship and service. The Makkan verses therefore deal largely with the issues of Tawhid, reward and punishment, and the last judgment. The Hegira to Madina in 622 marks a watershed in Islamic history. In Madina, Muhammad established a religio-political community (Umma) that accepted God as the ultimate source of authority for all human belief and action, and the verses revealed during this second phase of his career (622-632) deal increasingly with political, social, economic, and ritual matters.

Guided by the revelations, Muhammad instituted a series of rules and practices in the areas of ritual behaviour, purity, social relations, and the economy. Inevitably, perhaps, these innovations occasionally met with expressions of incomprehension or resistance from members of the nascent Muslim community, some of whom continued to act in accordance with the customary practices of pre-Islamic Arabia. These reactions may be reflected in a literary structure that occurs repeatedly in the Qurãn, ‘When they ask you (Ya’alunaka) concerning … Say …’. This formulation, which encapasulates the basic features of what would become the classical Islamic activity of Fatwa giving, was understood by subsequent generations of Muslim scholars in the following terms: One or more members of the community approach Muhammad and ask him for clarification regarding the continuing validity of a certain practice. Muhammad then awaits the reaction of the Divinity, who issues His response in the form of a revelation that becomes a verse of the Qurãn. As represented in the Qurãn, the activity of consultation involves a three-way relationship between God, Muhammad, and the Muslim community, with Muhammad serving as the medium through which community members know God’s laws and ordinances (cp. Shaltut 1988:5-14).

The Qurãn also contains the linguistic forms that would characterise the activity of legal consultation (Futya) in its classical manifestation, for it uses verbal forms derived from the root f-t-y in contexts having to do with asking questions and responding to them. An alternative to the above-mentioned literary structure occurs in two verses of Sura 4 (Women). Here, significantly, the verb yas’alunaka is replaced by yas’taftunaka, and the resulting Divine pronouncement is signified by Yufti (the latter two verbs are derived from the root f-t-y). Thus, in verse 176, Muhammad receives the following instruction: ‘When they ask you for a pronouncement (wa yas’taftunaka). Say: ‘God pronounces to you (Yuftikum) concerning al-kalãla…'”; the verse proceeds to define the inheritance rights of siblings (on the problematic term ‘kalãla,’ see Powers 1986:22-49). Similarly, in verse 126, God identify approximately one hundred thirty Companions who are said to have functioned as Muftis during the first century AH/seventh century AD (al-Qaasimi 1986:35). During his tenure as governor of the Yemen, Muãdh bin Jabal (d. 640) is said to have issued Fatwas on a wide variety of subjects relating both to the sacred and the profane (al-Bukhari 1928, 8:270). The Prophet’s secretary, Zayd bin Thabit (d. 666), reportedly served as the leader of Futya (and several other pffices) in Madina between 634 and 666 (Ibn Saád, 1957-1968, 2: pt. 2:115-117). Among all the Companions, the distinction of being the most prolific Mufti belongs to ibn Ábbaas (d. 687), whose Fatwas reportedly were collecyed in twenty volumes by the greatgrandson of the Ábbasid Khaliph al-Ma’mun (al-Qasimi 1986:35).

During the first/seventh century, Futya was a widespread but largely undifferentiated activity that made an important contribution to the elaboration of a distinctive Islamic identity and lifestyle. The corpus of Hadith compiled during the third/ninth century suggests that the activity of Futya as practiced by Companions had been linked to the preservation of the prophetic Sunnah. For example, it is reported that Masruq (d. 682) once asked the Prophet’s wife, ‘Aaisha (d. 678), about the manner in which the Prophet had performed the night prayer. To this question, she replied, ‘[sometimes] seven [inclinations, sometimes] nine, and [sometimes] eleven’. (al-Bukhari 1862-1898, 1:287-288). Similarly, it is reported that Ábdul Aziz bin Rufay (d. ca. 747) once asked Anas bin Maalik (d. ca. 709), ‘Tell me about something about which you posses knowledge regarding the prophet. Where did he perform the midday and afternoon prayers on the day of Tarwiyah?’ (the day of providing oneself with water on 8 Dhul al-Hijja, during the performance of the pilgrimage). Anas replied, ‘At Mina’.

As the generation of Muhammad’s companions died out, the Muslim community was cut off from the guidance of men and women who had been in direct contact with the Prophet. But an important mechanism had been in established for the accurate transmission of both the Qurãn and the prophetic hadith from one generation of Muslims to the next. This mechanism, which Graham (1993) calls the Isnãd paradigm,’ places high value on the human element in the process of transmitting knowledge from one generation to the next, with the result that Muslims of subsequent generations could experience a sense of personal connection with both the Qurãn and the hadith. Beginning in the second/eighteenth century, those Muslims who dedicated themselves to the preservation and analysis of Islamic knowledge (Ilm) were designated as Úlamaa, or scholars. The acquisition of knowledge came to be associated exclusively with individuals who devoted themselves to the study of the Qurãn, the hadith, and, increasingly, the ‘roots’ and ‘branches’ of substantive law, or Fiqh (those who specialised in Fiqh are known as Fuqaha). In Makkah, Madinah, Damascus, the Yemen, and other centers of Islamic scholarship, men such as al-Sha’bi (d. ca. 721-722), al-Zuhri (d. 742), Makhul (d. 734), and Ta’us (d. 720) generated discrete legal materials that were used by subsequent generations of scholars to create the fully developed system of Islamic law. Identifying themselves with ‘those in authority among you’ (Ulul Amr) mentioned in the Qurãn 16:43 and with ‘the people of Remembrance’ mentioned in Qurãn 16:43, this special class of literate scholars acquired religious authority analoguous to that exercised by the Prophet. ‘The Mufti’, writes al-Shatibi (d. 1388), ‘stands before the Muslim community in the same place as the Prophet stood’ (1969-1970, 4:224-225). One interpretation of Qurãn 16:43 holds that Muslims are under an obligation to consult with and seek advice from individuals known to possess knowledge and moral probity (ádãla) (al-Tabari 1954-1968, 14:108-109)

The complex interplay between Futya, Fiqh, and Hadith is illustrated by a narrative report that preserves a conversation that reportedly took place in Kufa during the governership of Bishr bin Marwan (690-694). The Hadith specialist Átaa bin al-Saíb (d. 753-754) approached the Kufan Qaadhi Shurayh (d. between 697 and 718), and said to him, ‘O Abu Umayya, I need a Fatwa from you.’ Taking care to inform Átaa of his jurisdictional limitations, Shurayh replied, ‘O son of my brother, I am merely a Qaadhi not a Mufti.’ But Átaa persisted, explaining that he wanted not a judgement but an opinion regarding a dispute involving a third party who had designated his house as an endowment in an apparent effort to circumvert the Qurãnic inheritance rules. Shurayh then entered the mosque and, as he was making his way towards the Maqsura (a special enclosure or compartment), instructed one of his judicial assistants to inform Átaa that ‘it is not permitted to create an endowment in circumvention of the shares of [inheritance awarded by] God – may He be glorified and exalted’ (al-Tahawi 1968, 4:96, ll. 18-21; cf. Al-Bayhaqi 1968, 6:162, ll. 27-31). This last statement, attributed here to Shurayh, subsequently was reformulated as a prophetic Hadith (ibid., 6:162, ll 23-25).

Taken from the book ‘Islamic Legal Interpretation – Muftis and their Fatwas’ (Masruq Messick Powers

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