Al-Waadih Fee Usool ul-Fiqh by Muhammad Hussein Abdullah

The Iftaa’ is the Mufti informing of the Hukm Ash-Shar’iy for the issue being enquired about to the one enquiring about it. That is whether he adheres to this Hukm or does not adhere to it. He could inform him of this Hukm in Daar ul-Iftaa’ (the house of verdicts) as happens today or he could inform him of it in any other place.

That is whilst the Qadaa (judgment) is the informing of the Qaadi (judge) within the judiciary setting or session of the Hukm Ash-Shar’iy in a manner of compulsion for the purpose of applying this Hukm from the judge and upon the disputing parties or those who have committed violations, whether they are content with that Hukm (judgment) or not content with it. The Qadaa’ (judging) is not implemented or effective except in the judiciary session like within the court room for example.

Example related to the giving of the Fatwaa:

It was related from Ahmad Bin Hanbal (rh) that Al-Hussein Bin Bashaar asked him about a Mas’alah in relation to At-Talaaq (divorce) and then he said: If he does that then he has broken an oath. And so Al-Hussein replied to him: O slave of Allah, verily a person has given me a Fatwaa that if he did that he would not break his oath. So he (Ahmad) said: You know the Halaqah of the Madaniyeen, a Halaqah Bi Rasaafah. So he said: He gave me the verdict, indeed he made it Halaal. He said: Yes

If an incident or reality comes before the ‘Aammiy (Muqallid) and he does not know the Hukm Ash-Shar’iy for it, then the Shaari’ (Legislator) has directed him to ask the ‘Ulamaa (people of knowledge). Allah (swt) said:

And the Mufti is from amongst the Ahlu-dh-Dhikr (people of knowledge of the texts).

From amongst the conditions (Shuroot) of the Mufti are:

1 – That he is a Faqeeh and knowledgeable of a host of Ahkaam Ash-Shar’iyah and had studied the wide spread statements of the Madhaahib whilst it is not a condition for him to be a Mujtahid. 2 – That he provides the Hukm for the Mas’alah (issue or question) that has been presented before him and he approaches it seeking the Haqq without paying any regard to the Maqaasid (aims or intent) of the rulers.

3 – That he selects for the one seeking the Fatwaa from the opinions that he has chosen for himself. As such, he does not choose for himself that which is the easiest from amongst the opinions whilst selecting the most severe or hardest opinions for others to follow. 4 – That he provides the Hukm Ash-Shar’iy for the issue presented to him along with the Daleel that it is based upon and chooses the evidences that are the strongest in respect to indicating the Hukm.

5 – That the Mufti is of a level of Taqwaa and piety and adheres or restricts himself to the Ahkaam Ash-Shar’iyah. That is because the most despised in the sight of Allah are those who say that which they don’t do (ref: Soorah As-Saff Aayah 2-3).

6 – If the Mas’alah that he is being asked about is a matter of dispute or difference of opinion then the Mufti selects that which he believes preponderantly (Ghalab ‘Alaa Zhannihi) to be correct.

7 – The Mufti should take his time and not rush or be hasty. He should apply thought and contemplation, pondering over the matter, until he arrives to the Haqq (truth). Then if he is unable to arrive at that he should say: “Laa Adriy” (I don’t know). He should then guide the questioner to a person he believes has the knowledge of the Hukm for the Mas’alah.

8 – It is obligatory upon the Mufti to follow the Daleel Ash-Sahr’iy that leads to the correct Fatwaa in respect to Tahleel or Tahreem (permissibility or prohibition).

9 – It is permitted for the Muqallid to ask and seek a Fatwaa from someone of merit whilst there is someone who is better or of greater merit (preferable).