The Islamic finance community broadly accepts the fatwas of prominent jurists due to their expertise but little consideration has been given to the discussions between scholars on financial products. In this article, Jean- Mathieu Potvin explores the contrasting debates between jurists in the International Islamic Fiqh Academy on minority opinions. He finds that legal interpretative methods have evolved from staying within the boundaries of one school of thought to a multi-school framework.
After a century or more of what has been termed in the literature, the fragmentation of Islamic juristic authority, the late 20th-century rise of collective fatwa-issuing councils represents somewhat of a countertrend. Indeed, these fatwa bodies endeavor to reconstruct authority through consensus-building and limiting disagreement among Shari’a scholars on emerging issues. Perhaps the most prestigious of these institutions is the International Islamic Fiqh Academy (IIFA). The fatwas of the Academy are not legally binding but are nonetheless influential as a body of ethical and practical guidelines. They have been particularly important for Islamic finance.
This article deals with how IIFA and its member jurists attempt to define irregular or weak legal opinions as well as exclude it from fatwa-making. Such an analysis is useful for locating, not only the diversity of modern fiqh discourse, but the ongoing emergence of a multi-legal school interpretive community. As the legal thinker Dr Khaled Abou El Fadl has stated, legal opinion is formed within interpretive communities that share a significant level of epistemological assumptions, concerns and values. The following assessment gives an insight into how paradigms have shifted in the modern age, and how interpretative methods are adapting.
The International Islamic Fiqh Academy
IIFA was founded in 1981 under the aegis of the Organization of the Islamic Conference (OIC). Its body is composed of 58 prominent scholars from different OIC member states who are part of a wider global network of scholars active in many fatwa councils and international fiqh conferences, though not all members are of equal influence. There is alongside the group of state-appointed members, a category of 17 elite members appointed directly by IIFA, who are generally more proactive and more influential than the others. Most of these elite members are from Arab countries. Sub-Saharan Africa, Central Asia and South-East Asia are so far not as well represented. IIFA is a multi-Islamic legal school international fiqh council. Opinions from the Hanafi, Maliki and Hanbali schools of legal thought (madh’hab) are most prominent in research papers and discussions while Shafi, Twelver Shia, Zaydi, Ibadi and Zahiri schools, though recognized, are far less present or quoted. The Academy issues resolutions on the basis of consensus or majority vote, but does not include in them dissenting opinions (these will be found in the detailed transcriptions of the deliberations). Past and present members include Mustafa al-Zarqa, Wahba Zuhayli, Yusuf al-Qaradawi, Ali Jum’a, Taqi Uthmani and Abdallah Bin Bayya.
Dealing with irregular opinions
The definition of al-shadhdh al-qawl al-daif (translated as irregular opinions) according to Imam Quduri in his Mawsu’at al-fiqhiyya, is: “the opposite of the sound opinion in a given school making the opinion unfit for use in fatwa. If this is the case, then what is the sound opinion and how is it determined? Madh’habs have been characterized both by a staggering internal diversity of opinions and a history of development over several centuries in multiple localities. The hermeneutical practice of tashih/tarjih was the principal means used in all madh’habs to curb this plurality for the sake of legal predictability as well as for adapting the law to changing contexts.
Broadly, tashih/tarjih can be considered the ranking of opinions. There were two principal considerations in ranking an opinion: first, the soundness and persuasiveness of the underlying reasoning, and second, the degree of the appeal of the opinion within the madh’hab community. The opinion that did not pass an evaluation as sound or preponderant was termed weak or irregular (shadhdh). However, such an opinion could be (re)habilitated through a renewed “tashih/tarjih” in another time or place, by a jurist qualified enough to do so. Interestingly, prominent members of IIFA consider resolutions of the Academy to preponderate over rival opinions because they represent the agreement of the majority of contemporary Shari’a scholars.
How does the Academy deal with irregular opinion? The Academy has barred consideration of the irregular opinion in the process of giving a legal ruling in two of its resolutions. The first one, concerning concessions (al-akdh bi al-rukhas, no. 70) reads as follows “that the views of the jurists evoked as concessions are to be Shari’a-acknowledged and not qualified as being irregular views”. In the second resolution, concerning the conditions and manners of issuing fatwas (no.153) it states: “fatwas based on irregular opinions, that are contrary to definitive and certain texts and those that have been subject to consensus, have no (legal) consequence.” In this resolution, what is rejected is the irregular opinions that contradicts rulings considered definitive and certain. This echoes the fact that the status of irregular and weak opinions was contested in the Academy discussions that surrounded the first resolution. In these discussions, the majority of members led by Shaykh Wahba Zuhayli upheld the above-mentioned wording. On the other hand, a minority of scholars objected to the systematic rejection of weak and irregular opinions. Shaykh Yusuf al-Qaradawi mentioned that some of Ibn Taymiya’s opinions that were initially classified as weak gained strength within the hanbali school and the wider juristic community in later ages; also, Shaykh Mukhtar Salami, in light of Maliki doctrine cited the authoritative practice of selecting the weak opinion based on local judicial precedent; and Shaykh Mustafa al-Tarzi pointed to the adoption of weak opinions in the Ottoman Majallah and the Tunisian code of personal status. Nevertheless, none of these scholars went so far as to put in question the boundaries constituted by the agreed-upon rulings mentioned in the second resolution.
Debating opinions on modern financial practices
A case concerning the debate on the activities of conventional banks illustrates this shared presupposition well. The debate was reactivated when the late Shaykh Sayyid Tantawi issued his fatwas legalizing the savings bonds of Egypt’s National Investment Bank, first as mufti of Egypt (in 1989) and second as rector of al-Azhar (in 2002). The 2002 fatwa permitted the collecting of interest on conventional bank deposits by redefining deposits as profit-generating investments, rather than loans, to avoid the label of “forbidden riba”. However in the same year, the Academy responded with a fatwa stressing the prohibition of all forms of banking interest. The fatwa was based on what its members considered to be a contemporary consensus of the jurists. They listed joint fatwas from many international conferences and fiqh academies – several from IIFA itself – evidencing a consensus amongst the jurists that banking interest is prohibited. However, in cases where a unanimous consensus is not at stake, the weight of a preexisting majority opinion across madh’habs holds a lot of weight for most Academy jurists when they are faced with a more isolated opinion. Another example is the Academy deliberations concerning zakah on real estate which occurred in 1985 revolving around a marginal opinion held by Yusuf al-Qaradawi which he made great efforts to authorize through the Academy. First, all the participants agreed that no specific text of the Qur’an and Sunna dealt directly with the topic. Qaradawi mentioned his concern about rapid economic changes in Arab countries and how it affected the distribution of wealth among rich and poor in the Muslim world. If the prevailing majority view was applied, rich property holders would be exempted from zakah while poor farmers in countries such as Indonesia would remain subject to it, an affront to the spirit of zakah. Qaradawi extended the principle that zakah is to be levied on ‘wealth’ to real estate, which today is a much more important source of income than was the case in early Islamic history. In order to determine the applicable rate of zakah, Qaradawi made an innovative analogy with the case of agricultural land. According to this analogy, one must apply a rate of 10% on the net return of the asset – far superior to the 2.5% that usually applies, in the case of zakah on money- to the remaining income after the passage of one year.
“The first Islamic banks were in a predicament because they had been hindered by a lack of products and had received little concrete fiqh guidance as to viable alternatives to banking with interest. A number of international gatherings of scholars took place legalizing Humud’s innovation and as a result murabaha rapidly spread to become the most popular Islamic financial transaction.”
Qaradawi then attempted to buttress his position with an eclectic list of classical and modern reformist opinions. He admitted that these were in the minority, but he argued that due to the change of times and needs, his opinion should be given preponderance. However, his opponents countered Qaradawi’s plea, using one or more arguments revolving around the criteria of (a) soundness of reasoning and (b) the appeal of the opinion in the community of jurists. These included the following:
(1) There is a quasi-consensus on the opinion that zakah is not extracted from all wealth but only from four categories specified in the source texts (money, livestock, agricultural produce and minerals);
(2) According to a majority of jurists, zakah is an issue categorized as worship, therefore it is not subject to reasoning by analogy;
(3) Additional state-levied taxes or appeals to voluntary charity are viable alternatives to zakah.
In the end, Qaradawi lost his case to the overwhelming majority of his colleagues who adopted what they agreed to be the dominant view.
This is not the only time the Academy rejected the innovative reasoning of a prominent member, when it was judged to contradict widely shared understandings of fiqh principles. One such principle is that of the prohibition of gharar, which can be translated as excessive risk or uncertainty leading to dispute. The famous scholar Mustafa al-Zarqa, one of the founding members of the Academy, had been defending the commercial insurance contract since 1962. His main argument was that, although insurance contracts viewed individually involved a lot of risk and uncertainty (gharar), when these contracts are viewed in the aggregate as an institution, uncertainty is minimized. But to fellow member Wahba Zuhayli, this new approach was the approach of the positive lawyers, foreign to Islamic legal methodologies and would (quote) “pulverize all that we know of the principles of fiqh in the field of transactions”. In this, Zuhayli was fully supported by the rest of the Academy as well as the precedents of other international fiqh bodies, who preferred to support an Islamic alternative contract called takaful or cooperative insurance.
Although the weight of corroborative precedent is a key argument in most Academy discussions, it has on occasion been outweighed by other arguments. For example, in 1988 IIFA had to review a juristic opinion developed 11 years earlier by Sami Humud relating to the murabaha transaction, whereby a customer asks the bank to buy a given property and promises to purchase it from him on credit. Humud’s argument was based on the single opinion of the Maliki jurist Ibn Shubruma that made the promise binding rather than optional. The first Islamic banks were in a predicament because they had been hindered by a lack of products and had received little concrete fiqh guidance as to viable alternatives to banking with interest. A number of international gatherings of scholars took place legalizing Humud’s innovation and as a result murabaha rapidly spread to become the most popular Islamic financial transaction. Nonetheless, the members of the Academy were sharply split between those who approved the legal binding nature of the promise and those who gave it only a moral sanction. Opponents sided with the classical majority. Interestingly, prominent contemporary Malikis such as Abdallah Bin Bayya stated that the ruling was not the sound opinion in their school. Proponents responded by invoking the principles of “need” and contemporary “custom.” They also attempted to buttress the opinion of Ibn Shubruma by presenting a widened basis for the ruling beyond the Maliki school (as such, Taqi Uthmani relied also on Hanafi and Shafi jurists).
The main difference between this case and the preceding ones is that the binding promise had already been subject to a new tashih/tarjih of sorts in the contemporary era, through successive gatherings of scholars so by the time the Academy tackled it, it was already a well established and accepted opinion. Second, the argument of social need was a strong one in the absence of alternative transactions (today murabaha represents 80% of Islamic banking transactions on the customer side). Similarly, other cases involving a weak opinion have been propped up by the majority of IIFA jurists (after protracted debate), when the opinion was shown to be established in the widespread practice or positive law codes of Muslim countries
Conversely, contractual practices specific to certain localities, based on a particular school, but considered isolated by most Academy scholars have usually been rejected. The sale of debt at a discount (bay al-dayn) is found mainly in Malaysia and based on interpretations of the Shafi school; however according to the Academy, as well as most scholars outside of Malaysia, this transaction amounts to riba.
The creation of a trans-madh’habic space
What these cases illustrate first of all is that with the dissolution of boundaries between the madh’habs, there has occurred a translation of the interpretive methods, such as tashih/tarjih, within one madh’hab to a trans-madh’habic interpretive community constituted by a network of prominent pool together and select the most adequate solution from the collective resources of the trans-madh’habic space, while simultaneously defending the boundaries of this space from irregular opinions. Among members of the Academy, notwithstanding many differences in interpretive approaches, an overlapping conception of authority plays a significant role in shaping the settling of disagreements alongside other factors such as ideology, political/institutional power dynamics including the necessity of compromise in collective decision-making. Indeed, the adherence of most Academy scholars to classical definitions of consensus and what constitute clear source texts provides a shared minimal framework to facilitate discussions about what is an irregular or weak doctrine and whether it should be accepted or not. Beyond this, in situations of disagreement, the majority camp within the Academy will tend to set aside doctrines that they deem irregular or weak, not from the single madh’hab viewpoint but a wider trans-madh’habic perspective. However, if the said doctrine has already been widely rehabilitated by an important section of the fiqh community or contemporary legislation or general practice, then this will tend to remove the weakness or irregularity. One effect of this phenomenon is for the Academy to isolate the reformist opinions that stand out the most from the cumulative consensus of the international fiqh bodies on the one hand (i.e. Qaradawi and Zarqa in the cases above), and on the other, more localized legal practices centred on particularities of a single madh’hab.
Jean-Mathieu Potvin is a Lawyer and PhD candidate at McGill University, Institute of Islamic Studies, Canada. This article is based on a presentation given for a conference at the University of California, Santa Barbara in February 2012.
