Fatwā - Legal Implications

Legal Implications

There is a binding rule that saves the fatwā pronouncements from creating judicial havoc, whether within a Muslim country or at the level of the Islamic world in general: it is unanimously agreed that a fatwā is only binding on its author. This was underlined by Sheikh Abdul Mohsen Al-Obeikan, vice-minister of Justice of Saudi Arabia, in an interview with the Arabic daily Asharq Al-Awsat, as recently as on July 9, 2006, in a discussion of the legal value of a fatwā by the Islamic Fiqh Academy (IFA) on the subject of misyar marriage, which had been rendered by IFA on April 12, 2006. He said, "Even the decisions of the official Ifta authority is binding on no one, whether for the people or the state." Al-Obeikan, however, was subsequently removed from his position as advisor to the royal cabinet in May 2012 after opposing moves to relax gender segregation, and in August of 2012, Obeikan’s morning radio show “Fatwas on Air,” in which he would issue daily fatwas, was canceled after a royal decree that authorizes only members of the Council of Senior Islamic Scholars to issue fatwas.

Still, sometimes, even leading religious authorities and theologians misleadingly present their fatwā as obligatory, or try to adopt some "in-between" position.

Thus, the Sheikh of al-Azhar in Cairo, Muhammad Sayid Tantawy, who is the leading religious authority in the Sunni Muslim establishment in Egypt, alongside the Grand Mufti of Egypt, said the following about fatwās issued by himself or the entire Dar al-Ifta:

"Fatwā issued by Al-Azhar are not binding, but they are not just whistling in the wind either; individuals are free to accept them, but Islam recognizes that extenuating circumstances may prevent it. For example, it is the right of Muslims in France who object to the law banning the veil to bring it up to the legislative and judicial authorities. If the judiciary decides in favor of the government because the country is secular, they would be considered to be Muslim individuals acting under compelling circumstances." Otherwise, in his view, they would be expected to adhere to the fatwā.

In Morocco, where king Mohammed VI is also Amir al-Muminin (Commander of the Faithful), the authorities have tried to organize the field by creating a scholars' council (conseil des oulémas) composed of Muslim scholars (ulama), which is the only one allowed to issue fatāwā. In this case, a national theocracy could in fact compel intra-national compliance with the fatwā, since a central authority is the source. Even then, however, the issue would not necessarily be religiously binding for the residents of that nation. For, the state may have the power to put a fatwā in effect, but that does not mean that the fatwā is to be religiously accepted by all. For instance, if a state fatwā council made abortion acceptable in the first trimester without any medical reason, that would have direct impact on official procedures in hospitals and courts in that country. Yet, this would not mean that the Muslims in that nation has to agree with that fatwā, or that the fatwā is religiously binding for them.