Staff | December 16, 2003
In light of the capture of Saddam Husayn of Iraq, it is illustrative to look at the cheering of the media. Illustrative precisely because the public celebration betrays America’s total ignorance of the domestic political movements of non-American states, especially Iraq. Even highly educated Americans hardly have access to the actual words and speeches of the “enemy”. Instead, snippets are doled out, quotes are shortened, and the words are effectively destroyed. Political movements in the countries America is now attacking almost exclusively utilize the platform of the fatwa to express their ideas and motives, which they do with great subtlety. Such subtlety, that it is difficult to fully appreciate the full connotation of their words without some understanding of the shifting role of the fatwa in Islam.
Saddam Husayn, the secular self-appointed leader of Iraq, did not utilize the fatwa – after the occupation of Iraq, his statements appeared as two short exhortations to revolt that, although containing verses of the Quran were not issued by a mufti, a person qualified to issue a fatwa. His capture can be seen as meaningless precisely because he did not use the fatwa – he is simply not representative of the most powerful forces in Iraq, or America’s direct opponent in this war, the fluid al-Qa’ida. al-Qa’ida, and the active Islamist organizations are reintroducing classical Islamic legal theory to ground themselves in Islam. It is the religious class, able to decide legal questions, that is now taking the leadership role in the war against America.
In both Afghanistan and Iraq the Americans are experiencing growing political opposition from popular uprisings motivated by public speakers whose claims of legitimacy rest upon Islamic principles. In Afghanistan, more than five years after Shaykh Usamah Bin-Muhammad Bin-Ladin presented his fatwa against America, the Times of London reports that mullahs are using religious decrees in order to prevent elections . Elsewhere, in largely Shia areas of Iraq, clerics are assuming leadership positions in a way eerily similar to the mullahs surrounding the Iranian revolution in 1978. It seems that the Shia revolution is quickly spreading across the border. Significantly, Americans are now negotiating with a Khomeini-type figure, Grand Ayatollah Ali Sistani, who has appeared in Iraq. Recently, nonviolent protestors have taken up Sistani’s call for democratic elections and have ousted a U.S. appointed Governor. This is a situation developing across political spectrums and the American government is paying attention.
On December 8th, the U.S. Commerce department released what amounts to a goldmine of information for non-Arabic speaking Americans: a compilation of religious leaders speeches in Iraq . One Shia cleric, Muqtada al-Sadr of al-Kufah, echoed Sistani and called for nonviolent resistance: “we will organize a general strike to harm the occupation forces. Schools and hospitals will be excluded so that the Iraqi people will not be affected”. Others are calling for a violent revolution. A mufti in Lebanon, Shaykh Khalil al-Mis, stated: “The Iraqi resistance should be reinforced . . . All sectors and currents of the Iraqi population should share in liberating their land from the US and British occupation”.
Most Americans simultaneously claim to want to know the mysterious motives of their enemies, while at the same time acting as if any text written by them was far too evil to quote at length. The politics of Muslim countries is difficult to empathize with due to a lack of information. This, unfortunately, is a situation complicated by the fact that common Arabic words have acquired highly negative connotations in English – most likely due to the propaganda campaign necessary to sustain support for war. This is particularly true with words relating to non-Western forms of education, belief, and status. Think, taliban, fatwa, or ayatollah. Although the role of religious figures seems alien from a secularized Judeo-Christian political perspective, American President Bush draws upon religious themes quite frequently as well. Instead of using a religious legal opinion discourse to accomplish his policy decisions, what we’d perhaps translate as a fatwa, Bush speaks the Western political language.
One way to approach an analysis of Islamic movements is to understand the role of the fatwa, or religious legal opinion. Although there are differences between Shia and Sunni movements, both have used the fatwa as a platform to mobilize public opinion into the political realm.
Roy Mottahedeh provides a fascinating account of the way in which a fatwa was used by the Iranians in 1891 to commence a popular boycott of tobacco, forcing the shah to reverse his international trade policy. In Tehran, Sayyed Mohammed Hasan Shirazi, a mullah designated by the term “model,” which means that he had “gained acceptance by a significant number of mullahs and others as a pattern to be imitated,” declared:
In the name of God, the Merciful, the Beneficent. Today the use of both varieties of tobacco, in whatever fashion, is reckoned war against [the Twelfth Imam,] the Imam of the Age – may God hasten his advent!
Shirazi’s remarks resulted in a successful two month boycott; the shah was forced to reverse his decision to give economic concessions to a European nation. This event was a turning point for the contemporary religious community in Iran, and perhaps foretold the rise of Ayatollah Khomeini, because it demonstrated that a single “model” mullah could acquire a broad, popular following among the population – to the degree that people would voluntarily quit smoking. Although Mottahedeh suggests that it was a success largely dependent on the introduction of the telegraph in the 1860s which allowed the religious community to contact each other instantaneously , the fatwa has always provided a platform for reformist forces to influence politics. Instantaneous communication merely meant that the religious community was able to more quickly establish a fluid system of hierarchy premised on a concept of a “model” religious leader, an individual whose opinion was sought by other mullahs.
A hundred and seven years later another group, this time Sunni, would use the internet to disseminate a fatwa. The document would later launch the world into a war on September 11, 2001. In 1998, five Islamic organizations, including Al-Qa’ida headed by Sheikh Usamah Bin-Muhammad Bin-Ladin, issued fatwa a declaring in part:
The ruling to kill the Americans and their allies--civilians and military--is an individual duty for every Muslim who can do it in any country in which it is possible to do it, in order to liberate the al-Aqsa Mosque and the holy mosque from their grip, and in order for their armies to move out of all the lands of Islam, defeated and unable to threaten any Muslim. This is in accordance with the words of Almighty God, "and fight the pagans all together as they fight you all together," and "fight them until there is no more tumult or oppression, and there prevail justice and faith in God."
Fatwa is a technical term from Islamic legal theory. Wael B. Hallaq’s A History of Islamic Legal Theories: An Introduction to Sunni usul al-fiqh, provides ample information on the evolution of the fatwa within Sunni legal theory. Hallaq puts the origin of legal theory, what we’d most closely identify with our court system, around the third and fourth centuries of the Islamic calendar. In this period, theorists began producing texts relating to legal questions such as “how do we now if it is wrong to have an abortion?” This is of practical concern for the state because one must know who to punish, and who to reward. Legal theorists who wanted to retain their mark as Muslims, developed a way to ground the law in the words and actions of the Prophet. Hallaq describes it, “Those sources from which the law may be derived are the Quran and the Sunna or example of the Prophet, both of which provide the subject matter of the law.” To accomplish such an intellectual feat, and ground an ever changing world, they had to develop a common protocol for interacting with the sources. What type of analysis was permitted, for example. Legal theorists responded by crafting a system of limited analogical reasoning combined with consensus – both of which were passed down and refined by trained theorists. As Hallaq explains, “those sources through which the law may be derived represent either methods of legal reasoning and interpretation or the sanctioning instrument of consensus (ijma’)”. All of this scholarship was done under the concept of usul al-fiqh. The products of legal reasoning were a legal opinion on the question presented, a fatwa.
The science of legal theory resulted in scholars qualified to give absolute moral sanction to actions and to answer complicated questions relating to how the population should live. Because their legal opinion is treated as a moral sanction the fatwa has come to play a political role contemporarily. In order to qualify to give a fatwa in classical Islamic legal theory one had to be a mujtahid. A mujtahid was an individual who was able to engage in ijtihad, legal reasoning and interpretation. The qualities of a mujtahid are described by Hallaq as an understanding of nearly 500 legal verses in the Quran; familiarity with hadith, stories relating to the actions and sayings of the Prophet; expert knowledge of the Arabic language; an understanding of abrogation, the process by which one Quranic source is “overruled” by another; experience in legal reasoning, and finally he must know which cases have already been decided by the legal community. Once an individual has reached this level of mastery, they are obligated to answer any question that is referred to them without consulting the other mujtahid. The ability of the mujtahid to individually decide on a decision by which others were obligated to follow resulted in two classes of individuals: the mujtahid and the muqallid, or not-mujtahid. If one was a muqallid they were unable “when faced with a question of law, to reason on the basis of textual evidence.” Therefore, if an individual wanted to consult the law on a question, and determine whether God would punish or reward their decision, they had to seek a mujtahid, whose decision they were obligated to follow.
Titles within Islam are often difficult to define because legitimacy functions in a fluid way. Concepts of consensus ground much of Islamic notions on how to structure social forces. One way of looking at it is to say that titles reflect levels of acceptance that person has achieved within their society. A mujtahid, someone who was obligated to issue religious decrees, fatwas, was synonymously designated a mufti . There were very few individuals who reached the rank of mufti, there might be only one in a given area. One became a mufti by being accepted by a small, self-regulating community outside of the influence of the state. The process by which someone became a mufti in Shia Iran is described by Mottahedeh as involving gaining acceptance from a small number of individuals: “a jurisconsult could obtain his position in only one way – through the ‘permission’ or ‘authorization’ of an existing jurisconsult; and the first jurisconsults had obtained their permissions from the infallible Imams themselves.”
This is a characteristic that has historically given the fatwa a local level legitimacy. Hallaq describes the situation: “Muslim states and governments throughout the centuries had no hand in the training and certification of jurists and jurisconsults [mufti or mujtahid] whose task it was to formulate the law.” In other words, “there simply was no such thing as a Bar Association to control the qualifications, and entry into the profession, of jurisconsults.”
In this way, Islamic legal theory differs greatly from the American legal system. The law on a whole range of issues was crafted by individuals entirely outside of the state’s direct control. The application of justice was, therefore, divided into two spheres. One sphere, composed of muftis, created the law through fatwas that answered a wide range of questions based on five criteria that determined whether the act would earn reward or punishment by God. Any question presented would be answered in one of five ways, the act was either Obligatory, Recommended, Permissible, Prohibited, or Repugnant . Obligatory actions were those whose “performance entails reward, and omissions entails punishment.” The omission of Recommended actions does not require punishment, but its performance gains reward. Prohibited and Repugnant function in a similar way, however, unlike the American legal situation, there is a level of personal choice on the part of the questioner. If the textual sources “do not command commission or omission of an act, the Muslim has a free choice between the two.” The resulting body of fatwas served as a form of case law. Legal decisions on which consensus had been reached where considered infallible and irreversible. The precise process of consensus reaching was left unclear, but it favored established positions of the previous generation’s theorists.
To determine the state’s punishment a non-mufti representative of the state would then refer to the argument presented in the fatwa and assign a penalty for the action based on the fatwa’s interpretation of the question.
The fatwa developed into a revolutionary tool precisely because it was one that integrated consensus. One of the characteristics of a mufti was knowing “those cases that have become subject to consensus, for he must not attempt to reopen a case on which a consensus has been reached.” Once a consensus had been established by those capable of deciding on the matter, the muftis, the decision was seen as infallible . A fatwa represented, therefore, a new ruling on a question that had previously not been decided upon. In political terms it served as a way for the local level to unite in action on a question not being addressed at the state level, which explains why it is commonly used by groups to establish their legitimacy as a force outside of the state.
Further, local followings are insured for muftis because of their unique ability to decide questions of religious law. It is obligatory for the not-mufti population to find a mufti whose decisions they will follow. Grand Ayatollah Ali Sistani of Iraq, a leading Shia political force who is described by his followers as an Imam, articulates the obligation of finding a mufti concisely:
Taqlid means acting according to the opinion of the jurist (mujtahid) who has all the necessary qualification to be emulated. So you do what the mujtahid's expert opinion says you should do, and refrain from what his expert opinion says you should refrain from without any research [in Islamic sources] on your part. It is as though you have placed the responsibility of your deeds squarely on his shoulders.
The system is made even more fluid because individuals are able to choose the mufti whose positions they will follow. Hallaq explains that “if more than one [mufti] is available, the majority of theorists maintained that he may consult any one of them, with the proviso that he establish the mujtahid’s credentials.” The unique status of the mufti, compounded with the fact that individuals are able to shift their allegiance, forces the State to directly compete with a class of individuals who are outside of the States control. There are several ways in which this tension has played out – many of which America may face in the following decades.
The Shia model was defined in the social movements in Iran which removed the Shah and instituted an Islamic government based on the leadership of Ayatollah Khomeini. This revolution was reliant on his introduction of the new concept “guardianship of the jurist” into Shia Islamic theory beginning in 1961. Mottahedeh explains Khomeini’s position:
Islam […] is not only here to establish rules for acts of worship and morality but to regulate the affairs of society, specifically financial and political affairs. Muslims should not accept anything less than a fully Islamic government, with Islamic courts and a leader who is, from the point of view of Islam, ‘better than any other’ and is ‘a guardian learned in the laws.’ So ‘on this basis, the matter of guardianship reverts to the just jurist…so to undertake government and to shape an Islamic state is a kind of collective responsibility for just jurists’.
Khomeini’s overthrow of the state was accomplished through grounding his legitimacy in Islam through the use of political fatwas. Khomeini constantly attacked the legitimacy of the state with blunt words. As a mufti a fatwa in opposition to the state would give moral cover to revolutionary movements. That was precisely the power that Khomeini tapped, he declared that a state was only legitimate if it was Islamic, thus the Shah was illegitimate. Khomeini would later say to the Shah, “You are illegal. The government of our choice relies on the nation's backing and enjoys the backing of God. If you claim that your government is legal, you must necessarily be denying God and the will of the nation. Someone must put this man in his place.”
The government’s response was to claim legitimacy based upon the empire of ancient Persia. Mottahedeh writes that “the more inflexible the mullahs seemed to the government, the more the government felt it needed its own ideology. In the boldest gesture of all, the government changed the calendar from the Islamic era to an era based on the supposed date of the foundation of Iranian kingship by Cyrus.” In the end, Khomeini was successful and the force of the fatwa exploded into worldwide consciousness. Let us not forget that the revolution of Iran occurred nearly simultaneously with the Soviet invasion of Afghanistan which birthed al-Qa’ida.
One lesson of Khomeini’s rise, and the successfully Sunni revolution against Soviet occupiers, was that a grounding in Islam trumps both “Westernization” and references to pre-Islamic notions. Contemporary governments such as Egypt have been forced to attempt to integrate muftis into the state. Perhaps to control the power of the political fatwa, Egypt seems to rely on the promotion of moderate muftis into the states control. A recent interview with Egypt’s Mufti Shaykh Ali Jum'ah is illustrative on this account . The importance of the fatwa is highlighted in the opening of the interview with an overview of the political situation leading up to the appointment of Ali Jum’ah. The interviewer explains to his readers that the previous mufti had been dismissed after he did not voice support for the suspension of an individual who issued a fatwa prohibiting recognition of the Iraqi Governing Council because they were appointed by the Americans.
Later, Ali Jum’ah’ describes his role as a moderate, saying:
I am not a politician; furthermore, the Egyptian state places every man in his right position. I am not the leader of a political party so that any one could consider me a politician. I am a professor of foundations of jurisprudence in the Islamic Studies College at Al-Azhar University, and the post of mufti is the place for this professorship. I will have you know that our state is an Islamic one that places every one in his right position; we are honored by these right positions and the directions of our Islamic state are satisfactory to the Prophet.
The result seems to be an attempt to ground his decisions in the “western” notions of international law, and the consensus of international politics more so than to purely Islamic sources. Asked, “are martyrdom operations allowed or prohibited by Islam?”, Jum’ah responds by remarkably failing offer a sanction for revolution against Israel based upon the Quran or the Sunna:
They are legitimate as long as all human races recognize them as a resistance to occupation, aimed at preventing forms of aggression such as assassinations and bloodshed and protecting honor and homeland. The United Nations and international law, as I said, recognize the legitimacy of this resistance; as long as people are unanimous that these operations are a form of resistance, this applies.
His view is essentially that he is currently living in the Islamic state and that because Islam does not sanction revolution, revolution is not an option. Jum’ah directly attacks non-state revolutionary forces such as Al-Qa’ida because they do not have the legitimacy of the state:
The imam must authorize jihad; now, the imam is the head of state because he commands an organized army. It is not allowed to rebel against the ruler; this is the creed of the Sunnis and it is accepted unanimously; what the ruler considers right ought to be followed.
Clearly, Sunni Muslim states are worried about the fatwas being issued by Sunni revolutionary forces such as Al-Qa’ida. Since Al-Qa’ida’s formation in 1998, the fatwa has served as both a public justification for their actions, and a rallying call for supporters. On October 31, 2003, the only Al-Qai’da member who responds to the media, Abu-Muhammad al-Ablaj, declared that Al-Qa’ida was seeking to issue a fatwa justifying attacks on “Arab and Islamic regimes”.
Revolutionary Sunni movements use the fatwa to ground nearly every decision within their organizations. Fatwas are even used to commence specific military actions. The local Al-Qa’ida group in Turkey which recently carried out suicide bombings of the synagogues, the British Consulate General, and the HSBC bank relied on a fatwa from Afghanistan to sanction the attacks, for example.
Although the resurgence of religious political leaders is portrayed in a negative light within America, the reappearance, and politization, of the fatwa does have some positive aspects because it marks the beginning of a new stage in the complex philosophy of Islam. It is an evolution aided by the post-colonial experience of the Arab world. In many ways, the fatwa seems to serve the function of a uniting document for many oppressed Muslim populations. That revolutionary movements for social change are grounding their claims to legitimacy in a form of discourse that has not been actively pursued since the height of the Islamic empire suggests that a new cultural awakening may be approaching. At its core, the fatwa represents an opportunity for a philosophy grounded on principles far different from American political, and legal, theory to develop. Because al-Qa’ida is voluntarily resting their claims to legitimacy on sources which any mujtahid may also interpret, the potential for nonviolent movements to directly confront, and decrease the membership of, violent revolutionary organizations exists. Hopefully, the reawakening of political movements in Islam will also encourage liberal nonviolent forces to utilize the fatwa to spread concepts of democracy and peace in the Muslim world.
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