4.1 Analytical Approaches
4.1.2 Adab-al–Mufti Treatises
4.1.2.2 On Questions and Answers
The adab-al-mufti treatises also provide a framework for analysing the structure of the fatwa through an evaluation of both the question and the answer.
i The Question
“The interpretive process between mufti and questioner begins with the posing of the question”. According to this framework, questions are analysed by variations in their construction and framing. Investigations of the question centre on the author, whether it was on behalf of someone else, whether intended to be a trick question or posed as a series of questions intended to elicit a desired response. Framing the question also includes the one who is speaking, indicating “motivated and selective renderings of the facts and issues”. There may also be a reformulation by official scribes of the question in preparation of the final fatwa. Because the mufti is not acting as a judge, he takes the question at face value, and does not usually ask additional questions.
Therefore, as the field of the response is determined by the framing of the question, the question not only “initiates the mufti’s interpretive activity but also constrains it”
(Masud, Messick, and Powers 1996: 20-25).
ii The Answer
The mufti begins the answer by first comprehending the question and requires a knowledge of the customs, language and linguistic nuances of the petitioner. Some historical fatwas deal with simple legal questions by providing a legal answer free from doubt. The adab-al-mufti treatises encouraged mufti’s to refrain from providing an answer if uncertain, and to instead respond with an “I don’t know” (1996: 23). But despite this caution, many mufti’s both public and private, have responded to “routine informational questions”, so that “part of the fatwa-issuing work of many noted scholars typically is devoted to the giving of ordinary opinions to private questioners”
(23).
Of significance for this study of online fatwas in relation to sexual and reproductive health concerns would be to note to what extent the answers in the fatwas on sexual health concerns are legalistic, falling within the ambit of training of the individual
muftis, and to what extent they venture into providing advice, opinions and sexual health counselling, in relation to how the questions are posed to them.
Differences in form and content of the answers also occur, depending on who the questioner is and for whom the answer is intended. If the mustafti is a layperson, the general rule is that the mufti does not have to explain his reasoning; he can be concise and more informal. But when he addresses another mufti, his answers are more formal and all his reasoning should be provided. In this regard, those muftis who are
“commonly affiliated with particular schools of law, cite authors and authoritative works specific to those schools. “A mufti muqallid should accept the opinion of the best jurist of his school and attribute his answer to him” (25). This trend is illustrated in some of the fatwas on askimam.org, where students who generate the answer which is then further ‘checked and approved’ by the mufti, often cite Arabic sources in their reasoning at the end of the fatwa, most likely intending them for Desai’s perusal.
The last step in the interpretive process is the deconstruction of the answer characterised sometimes by follow-up questions, which ask for, or provide further information to elicit another response if the answer is not adequate. Sometimes a second opinion from a different mufti is also sought. This step is valuable in providing additional information for a case and provides an opportunity for a diachronic analysis of mufti’s opinions. In this study, two of the fatwas in the sample which originated from the same petitioner provided an opportunity for such an analysis.
iii Disclaimers
The treatises also note that fatwas include disclaimers at the end, usually in the form of versions of Allahu-alam (and Allah knows best) (1996: 24). As a reflection of this trend, all the fatwas I inspected on askimam.org contained two disclaimers. The first one aligns with historical fatwas and is found immediately after the answer in the form of, “And Allah Ta’ala knows best”. The second disclaimer is a little ambiguous and found at the end of the entire fatwa. It reads:
Askimam.org issues pertaining to Shariah. Thereafter, these questions and answers are placed for public view on www.askimam.org for educational purposes. However,
many of these answers are unique to a particular scenario and cannot be taken as a basis to establish a ruling in another situation or another environment. Askimam.org bears no responsibility with regards to these questions being used out of their intended context (askimam.org 2011).62
The disclaimer goes on to stress that the answer has to be read only in conjunction with the question, that it cannot be used as evidence in a court of law and any links to other websites does not mean the mufti necessarily endorses all the content on those sites.
In light of, firstly, the emphasis on consulting the opinions of other jurists across time and space in the Deoband school, secondly the idea that the fatwa compilations are precedent setting works for use in other scenarios and contexts in the field of legal interpretation, and thirdly, that there is an emphasis on “public interest in a consideration of legal questions” in the Hanafi school of jurisprudence (Weeramantry 1988:50), the second disclaimer on askimam.org, ventures a move away from traditional modes of legal interpretation.63 This statement in the disclaimer is especially relevant in light of the fact that some of Desai’s approved and sanctioned fatwas over a range of different categories have been compiled in book form in two volumes called Contemporary Fatwas and in another book called Al-Mahmood, suggesting a certain reliance on them as references to similar contemporary concerns in disparate contexts and situations.64
Having provided a synopsis of both the FPDA framework and legal interpretive analytical approaches found in adab-al-mufti treatises of classical scholars, the next section sketches the research design used in this study.
62 As an example refer to: Askimam.org. 2011. Fatwa # 18511, 2010. Available from:
<http://www.askimam.org/public/question_detail/18511>. [Accessed 15 October 2015].
63 The first two points are mentioned in chapter one on the Hanafi Deoband legal school.
64 See the Daruliftaa website.
<http://www.daruliftaa.net/index.php/resources/publications/viewcategory/27-publications >.
[Accessed 30 October 2015].