FATAWA FORMATS

By Ustaaz, Ahmed Fazel Ebrahim

Reference to primary sources

The early jurists who compiled works on the theories of Islamic law and debated the standards and criteria for accepting ahadith were the pioneers in the generation of material that framed and structured the formats of Islamic jurisprudence. Thus, fiqh (juridical material) that they themselves compiled as well as those which were written by other scholars who adopted their approach to the law eventually became the reference works of many other contemporary and latter jurists who found it either safer or easier to follow their interpretations. 

These fiqh works gained popularity and were spread in the manner that hadith works were spread and were considered as the codified products of the sum total of the main manners that are discussed within the various and diverse encyclopedic collections of hadith. It was thus simpler and more convenient, financially and other otherwise, in those periods, for them to adopt these small or large compendiums rather then engage with the massive corpus of ahadith. In fact, these fiqh works also embodied contemporary practices and issues that evolved within their geographic sectors.

Scholars who adopt an approach to Islamic Law through primary sources accept diverse inferential and analytical tools in order to reach a legal ruling. The application of this deductive process is termed as Ijtihad while the methodology which governs the process of Ijtihad, although itself inherently forming a product of Ijtihad, is referred to as Usul-ul-fiqh (Principles of Islamic jurisprudence is more appropriate, as a translation, instead of "theories of Islamic Law.").

The first category of secondary juridical material of the early jurists forming the sources of fatawa. 

Astoundingly, many Fatawa are written without the quotation of the primary sources from which the information is inferred. This is an often practice of jurists who followed the time periods in which classical fiqh literature was compiled as well as many Islamic scholars in our era. They argue that since all the inferential analyses and argumentation on the issues of the law were already codified and debated by the earlier scholars, there is, therefore, no need to discuss the primary texts of the Qur'an and the ahadith. Rather, quoting the secondary sources of earlier erudite jurists is sufficient as a basis of acceptance and reference to the rulings.

The second category of secondary juridical material is that which has been compiled by the latter jurists and, thus, also gained acceptance as sources of fatawa. 

These works, due to quotation and inferences from the early secondary sources of Islamic Law, as well as sometimes also infering from the primary texts of the Qur'an and ahadith, also found itself a position within the hierarchy of reference material and as a codification of precepts upon which legal argument was concluded. Very often, jurists in our era would quote these works in order to express an authoritative stand. 

Scholars in each subsequent generation of Muslims compiled works of Fatawa and used similar works that were earlier compiled by scholars of the previous generations. Thus, eventually we have a whole range of the second category of secondary sources, each quoting from the varied base of the first and second categories of secondary source material.

Fatawa that are void of references

Often, answers are provided without any reference at all. This format of answering is often due to:

1. Time constraints

2. Consideration of the ultimate need of the persons for whom the fatwa is written.

These fatawa, in some cases, pose a problem to those who follow other schools of Islamic law since the fatwa could have been based on the scholar's or Mufti's following of a particular mazhab or, alternatively, be from the personal understanding of his wide and general based knowledge of the sciences of the Shariah and is, thus, equivalent to the general argumentation or legal analyses of a Muslim scholar, immaterial whether the latter scholar follows and adheres to another mazhab or not.

The approach of the Hanafi School

Like other schools, the Hanafi school also has its Usul-ul-fiqh which governed the format of Ijtihad that was to be exercised by the Mujtahid scholars who adopted its mazhab. They used these inferential principles and subjugated their works to these principles. Although, this application of principles to actual inferential analyses was not mere theoretical debate and despite the fact that it found actual application in the Hanafi school, we could possibly find cases of divergence or disagreement among scholars of its own school of law.

Latter scholars and students of this mazhab who have received instruction under scholars of the India-Pakistan region are instructed by mentors to refer to Hanafi Fatawa works compiled in the 20th century in the India-Pakistan region as  primary reference tools. Although the work of Allamah Shami is also a primary compendium for study purposes for students undertaking a Ifta (Mufti) course, the decisions and rulings given by latter Hanafi scholars, in the light of circumstances within their community, are found to be given credence by this group of scholars. It is very rare that these scholars would consult or accept contemporary Hanafi rulings from Hanafi scholars of other Muslim communities of another race in other distant countries. However, the same could also be the practice of other Hanafi scholars in Turkey and elsewhere. The geographic distance alienates the scholastic inter-change and cultural influences within their respective countries places its own markings on juridical thought.

General Opinions

Very often, scholars from various mazahib issue a ruling or opinion on a question. There answers are given without any reference to any writings of earlier scholars within their mazhab. Rather, they base their answers on a general interpretation of rulings of the Qur'an and hadith and on other general principles that emanate from these two primary sources. Their views are then incorrectly assumed by other Muslims to be related to the mazhab of that scholar.

Adopting stronger opinions from other Mazaahib or from the primary sources