Vít Šisler
Charles University in Prague
vsisler [at] gmail.com

publications

Islamic Jurisprudence in Cyberspace

Construction of Interpretative Authority in Muslim Diaspora

The paper was presented at the Cyberspace 2005 international conference organized by the Faculty of Law and the School of Social Studies at Masaryk University in Brno in November 2005. Published as: Šisler, Vít. Islamic Jurisprudence in Cyberspace: Construction of Interpretative Authority in Muslim Diaspora. In: Cyberspace 2005 conference proceedings, Ed. Polèák, R., Škop, M., Šmahel D., Brno: Masaryk University, 2006, p. 43 - 50, ISBN: 80-210-4060-2.

Abstract:

The paper examines the phenomenon of dispensing legal opinions by Islamic scholars via the internet websites. It analyses the strategies which the sites use for establishing themselves as the sources of authority and their interpretative methods. Emphasis is given on jurisprudence for Muslim minorities living in the Western legal systems.

Vít Šisler,
Charles University in Prague

Introduction

An increasing number of Muslims living in Islamic countries and abroad are at the present time approaching scholars and counselors via the internet. Oftentimes they are seeking answers to pressing topical social questions; namely how to behave in compliance with the religious laws in the modern world. There are hundreds of internet sites where committees of major Islamic scholars – or sometimes just enthusiastic individuals – give legal opinions that range from questions of personal behavior to theoretical political dilemmas.

Those opinions are mostly issued in the form of a fatwa (pl. fatawa) [1] which is an answer to a real or hypothetical inquiry and reflects a legal conviction of an individual scholar, based mainly on older rulings and/or his own interpretation of the religious texts. As such it is not legally binding, but the individual petitioner is advised to follow it. The persuasive power of the respective fatwa is thus based mainly on the authority of the scholar (mufti) who issued it.

In the past, traditional constituencies of Islamic authorities competent for such inquiries were delimited by geographical and social factors that were much harder to contravene than they are today. Not only can every Muslim with access to the internet send his or her inquiries to even the most geographically remote mufti, but with the aid of online legal sources even individuals who lack a long-lasting and demanding official education can establish counseling sites for their peers if their answers are valid and convincing enough.

According to some preliminary works this has resulted in the emerging manifestation of minority opinions and contributed to the dissolution of traditional authorities (Anderson 1997; Bunt 2000, 2003; Mandaville 2000). Indeed, the internet could be seen as a natural tool of ‘resistance’ providing a persuasive medium for the dissent discourses. An example par excellence for such a cyber-resistance in the Islamic context could be the case of Ayatollah Hossein Ali Montazeri, an Iranian prominent scholar, who, after being put under a house arrest created his own webpage and continued to disseminate his religious and political views from his home.[2] But just the mere presence of dissent discourse online doesn’t give evidence of undermining established political and religious structures, as we can see in the case studies of Syria or Saudi Arabia (Mamoun 1999; Teitelbaum 2003).

I see more potential role of the fatwa-issuing sites in offering parallel and coherent normative framework in societies which do not recognize the Islamic law. Muslims in Diaspora, particularly in Western Europe, who live in the absence of institutionalized Islamic authorities, create substantial part of the fatwa market.[3] Some sites specialize themselves in the Jurisprudence of Muslim Minorities (fiqh al-aqalliyat), adapting the Islamic law to the new context. Given the multifaceted character of the contemporary Islam, the rulings and opinions vary greatly. From the point of view of European legal systems this represents an important issue; a group of legal subjects in their jurisdiction are deliberately seeking the rulings of mainly foreign and unsanctioned scholars.

Basically, in the reality a mufti could be state-appointed or unofficial, who gains respect due to his education and knowledge. In the cyberspace, the very fact of asking someone for a fatwa remains the most explicit recognition of that person’s authority.[4] Because of that I find crucial to study which sites people visit for consultation and which strategies the sites use for establishing themselves as the sources of authority. The interpretative methods are also worth examination, because this can tell us a lot about the possible concrete rules of law imposed upon believers.

From the suggested perspectives this paper will briefly examine three significant web sites dispensing legal opinions, with emphasis given on the sites aimed at Muslims in Western Europe and USA.

The People of Knowledge

Case study: www.fatwa-online.com

The first site is Fatwa–Online, which is registered in the city of Medina in Saudi Arabia. The Fatwa–Online represents a platform constructing its authority in a very orthodox way, emphasizing formal education, high credit and the moral integrity of its scholars as the proper Islamic way of the decision finding.

Fatwa–Online is closely connected with Saudi Arabian “Permanent Committee for Islamic Research and Fatawaa”. The members of the Committee are chosen from prominent Islamic scholars versed in classical jurisprudence. In their biographies we should note the emphasis on the chain of the teachers, who passed their knowledge to the respective scholar.[5]

The process of decision making is ruled by a strict legalistic pattern. In the Islamic jurisprudence, in general, when the Holy Qur‘an doesn’t give a clear guidance about some topic, as a secondary source the Sunna (customary tradition) is consulted. The Sunna is a collection of deeds, sayings and approvals of the Prophet. These traditions are called ahadith and their validity is carefully examined. Each hadith contains the message itself and a chain of narrators, which played key role in verifying its authenticity in the time of oral tradition. There is an old and extensively developed legal science about classifying every hadith and its narrators according to their trustworthiness. The most valuated hadith is the one with an uninterrupted chain of narrators who were all reliable and trustworthy people. The Fatwa-Online states that the rulings are based only on such authentic sources.[6]

Similar legal purity can be observed in the following fatwa addressing the issue of obeying a decision of a non-Islamic judge in the case of divorce (excerption):

Question: We in the West, suffer from many problems and difficulties. (...) One of the biggest problems is that we are forced to resort to Western courts of law to judge between us, even in matters of civil law. What is the ruling concerning the permissibility of appointing a judge for the Muslims in America, Britain or Australia?

Response: It is obligatory for the Muslims to appoint a judge to pass judgment between them according to Islaamic law.[7] (...) It is not permitted for (them) to request a legal decision from anyone who does not judge according to the Book of Allaah and the Sunnah of His Messenger.[8]

The opinion and the reasoning (which had to be omitted here) reflects the influence of the thought of Ibn ‘Abd al-Wahhab, the founder of religious movement ruling in Saudi Arabia, and we should note that it would not be well received in all Muslim circles.[9] In fact, adhering to this interpretation would restrict many Muslims in the ‘West’ from the protection of Law in daily matters and the real impact of this fatwa is doubtful.

According to another fatwa on this site the God has divided the Muslim community into two groups, the People of Knowledge (Ahl adh-Dhikr) and those who depend on them. The latter are advised to seek the guidance of the People of Knowledge, particularly in the matters of law and religion. Insufficiently educated people are strongly discouraged from making their own potentially false interpretations.[10] The traffic on the site indicates that there is a substantial desire for such guidance.

The House of Invitation

Case study: www.islam-online.net

Second site is Islam-Online, registered in Qatar but actually operates from Cairo. The opinions manifested in its fatwas reflect a broad range of legal schools and approaches. The scholars giving advice on Islam-Online come from various backgrounds, including al-Azhar graduates and European based muftis and all possess official qualification. Islam-Online is closely connected with influential, yet controversial scholar Yusuf al-Qaradawi, who is the head of European Council for Fatwa and Research.

Islam Online says it wants to present a positive view of the faith to non-Muslims and to strengthen unity in the Muslim world. Thus the authors try to stay away from some controversy-causing issues and besides using classical interpretative methods they often refer to the Holy Bible, scientific arguments and foreign laws.

The following fatwa deals with topical issue (excerption):

Question: I would like to know the point of view of Islam if a Muslim living in a Western country, where polygamy is regarded unlawful, has to have a second wife due to some reasons.

First Response: The Muslim man who has a second wife (...) has to follow the channels of law in order to legalize his second marriage in the country he lives in. (...) If the attempts to legalize the second marriage fail, the person could document his (second) marriage in one of the Islamic centers. (...) The problem he might face in the future is regarding getting birth certificates for the children from his second wife. But I think there are some flexible European laws concerning registering names of the children born even from illegitimate relationships.

Second Response: A Muslim living in a non-Muslim society is obligated to follow the laws. We cannot say that their laws are contrary to the Shari`ah, so we have to follow the Shari`ah. Taking a second wife is not a necessary requirement; there is no mandatory duty on the Muslim to have a second wife.[11]

I find important that two different answers were given. The both muftis live in Western countries and know local laws and customs. Qaradawi has stated that in the case of contradicting fatwas a Muslim must follow the one that his true conscience believes is closer to the truth.[12] The approach of Islam-Online towards sensitive issues is significantly different from the strict legalism of Fatwa-Online. This could be seen also in the revision of traditional Islamic legal dichotomy between dar al-harb and dar al-islam (literally ‘The House of War’ and ‘The House of Islam’). The European Council for Fatwa and Research proposed that Western countries should be classified as dar al-da‘wa – The House of Invitation.[13]

Democratization of Interpretation

Case study: www.ijtihad.org

The last site is Ijtihad.org run by Dr. Muqtedar Khan. The Arabic term ijtihad literally means ‘effort’, but in the legal context it refers to the use of individual reasoning and pragmatic interpretation of primary Islamic sources in the light of contemporary conditions.[14] Muqtedar Khan, currently an Assistant Professor at the University of Delaware is oftentimes labeled as a liberal and pro-American Muslim intellectual. At the present time his site is not designed for issuing fatwas, however in the past he used to give answers to individual inquiries via e-mail as an ‘alternative mufti’. Now he continues to influence the debate over Islamic interpretative authority through his webpage.

Muqtedar Khan coins the concept of democratization of interpretation, stating that “every citizen has the right to interpret and claim what is law (divine or otherwise).”[15] He also declared that the internet has made everyone a mufti.[16] Advice issued by him is often unconventional in nature, based mainly on the contextual interpretation of the Qur‘an, without usual reference to older rulings on the subject:

“Past legal opinions must not subvert contemporary political reflections. We will be free only when we can freely determine for ourselves what is the Shari‘ah. There is no mediation in Islam and the Islamic jurists must step aside.”[17]

Muqtedar Khan earned his Ph.D. in Islamic Political Thought, but he is not a jurist, which is a fact repeatedly pointed out by his opponents. He was referred to as “a non lawyer talking about law” and his concept is sometimes derogatively labeled as ‘Do It Yourself’ religion.[18] But in fact, when we closely examine his thoughts and interpretative methods, some interestingly traditional features will appear. Firstly, he interprets the primary sources on the basis of public welfare (maslaha), which is in fact a classical interpretative tool. Secondly, he gives opinions only at the level of mu‘amalat, that means the rights and duties between human beings, and is not trying to re-interpret ‘ibadat, the relationship towards God. For example he refused to give an opinion about the woman leading a mixed Friday prayer, when he was directly approached, stating in response: “What have reason or justice (as humans understand) got to do with prayer, its process, its content and its nature?”[19]

His main theoretical framework is provided by the Qur‘an itself, particularly by the sura al-Baqara (2:30). According to Khan’s interpretation of this verse: “the God has exercised his sovereignty by delegating some of it in the form of human agency“.[20]

Conclusion

The question of issuing legal opinions and constructing the interpretative authority in cyber Islamic environments is far more complex than what could be exposed in such a limited space. As I noted previously there are hundreds of internet sites varying greatly in their religious and legal background, content, target audience and strategies.

As for challenging the traditional interpretative authority, I see the main role of the internet in exposing and accelerating tendencies and debates taking place in the reality. I also dare to suggest, that the internet tends to displace this authority away from scholars towards selective personal interpretation of the primary sources, as we have seen in the case of Dr. Muqtedar Khan.[21]

The obeying of cyber-fatwas is another issue. In the traditional framework the publicity of delivering a fatwa plays a role, because it is mainly the social enforcing framework of the community what ensures that fatwas are observed. In the cyberspace we can determine how many people ask for the fatwas but not how many people really observe them. The same apply to the possible antinomy between the cyber-fatwas and national legal systems. We can clearly analyze the contrast between the particular fatwa and some rule of law, but not that some contradiction happens in reality, or, more precisely, that the particular contradiction happened because of that cyber-fatwa.

Nevertheless, we can perceive the internet fatwas as an influential educative and persuasive medium, shaping the comprehension of the Islamic law among contemporary Muslims, especially in Diaspora. They also provide a source of inspiration for imams preparing Friday sermons and hereby transcend their virtual borders.[22]

Bibliography

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ANDERSON, J.W. Cybernauts of the Arab Diaspora: Electronic Mediation in Transnational Cultural Identities. Postmodern Culture, University of Maryland, 1997. htttp://www.bsos.umd.edu/CSS97/papers/ anderson.html (6.9.2005).

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BUNT, Gary R. Islam in the Digital Age: E-jihad, Online Fatwas and Cyber Islamic Environments. London, Pluto Press, 2003.

BUNT, Gary R. Virtually Islamic. Cardiff, University of Wales Press, 2000.

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Notes

[1] For the purposes of this paper I will use the common English plural, i.e. ‘fatwas’.
[2] G. Abdo, Cyberspace frees Iran’s rebel cleric, Guardian, 5th Aug. 2000. The website www.montazeri.com is in farsi only.
[3] A. Caeiro, The European Council for Fatwa and Research, Fourth Mediterranean Social and Political Research Meeting, Florence, 2003: p. 11.
[4] M. van Bruinessen, Making and unmaking Muslim religious authority in Western Europe, Fourth Mediterranean Social and Political Research Meeting, Florence, 2003: p. 14. Bruinessen points out, that every process of asking and giving a fatwa confirms the relationship of authority, but I see this aspect significantly more important in the cyberspace.
[5] http://fatwa-online.com/scholarsbiographies/15thcentury/ rabeealmadkhalee.htm (12.9.2005).
[6] http://fatwa-online.com/scholarsbiographies/15thcentury/ permanentcommittee.htm (12.9.2005).
[7] http://fatwa-online.com/fataawa/muslimminorities/ 0000903_4.htm (12.9.2005).
[8] http://fatwa-online.com/fataawa/muslimminorities/ 0000903_3.htm (12.9.2005).
[9] G. R. Bunt, Islam in the Digital Age: e-jihad, online fatwas and Cyber Islamic Environments, London, Pluto Press, 2003, p. 147.
[10] http://fatwa-online.com/fataawa/worship/knowledge/9991205_1.htm (12.9.2005).
[11] http://www.islamonline.net/servlet/ Satellite?pagename=IslamOnline-English-Ask_Scholar/ FatwaE/FatwaE&cid=1119503547860 (12.9.2005)
[12] Caeiro, op. cit., p. 32.
[13] ibid., p. 4.
[14] Bunt, op. cit., p. 133.
[15] M. Khan, The Priority of Politics: The Tyranny of Legalism, 2003.
[16] E. Wax, The Mufti In the Chat Room, The Washington Post, 31st Jul. 1999.
[17] Khan, loc. cit.
[18] D. Glenn, Who Owns Islamic Law? The Chronicle of Higher Education, 25th Feb. 2005.
[19] http://www.ijtihad.org/wadud.htm (12.9.2005).
[20] http://www.ijtihad.org/sovt.htm (12.9.2005).
[21] A. Caeiro, who carried out a research on this topic in four francophone Muslims forums, proposes the same conclusion. See A. Caeiro, Debating Fatwas in the Cyberspace, Sacred Media — Transforming Traditions in the Interplay of Religion and the Media, Jul. 2003: p. 4.
[22] Bunt, op. cit., p. 136.

Vit Sisler, 2007