After the first session of my Islamic law seminar this fall, I chose the readings for each class with an eye on the particular interests of the enrolled students. Accordingly, of the three fatwas we read, spanning the fourteenth and twentieth centuries, the first reflected one studentâ€™s interest in medical ethics.
The fatwa in question was issued by the Damascene jurist al-Ê¿AlÄÊ¾Ä« (d. 761/1360), included in his al-FatÄwÄ al-mustaghraba), and it addressed the custody rights of a mother who has contracted leprosy. Formally this fatwa is unusual because it does not consist merely of the question posed and the answer given by al-Ê¿AlÄÊ¾Ä«; instead, al-Ê¿AlÄÊ¾Ä« â€œnarratesâ€ the thought process through which he arrived at his answer.
His first instinct, he says, was to revoke the motherâ€™s right to custody of her infant child on the basis of a physicianâ€™s expert opinion that the motherâ€™s illness was infectious and thus posed a danger to the child, and a hadith according to which the sick should not mix with the healthy (found in al-BukharÄ«â€™s á¹¢aá¸¥Ä«á¸¥, chapter on medicine). He is also aware of a seemingly contradictory hadith that states that there is no such thing as contagion, but he interprets the latter hadith as a theological statement of Godâ€™s ultimate agency in determining sickness and health. Before formally responding to the question, however, al-Ê¿AlÄÊ¾Ä« seems to have consulted an unnamed judge, who questioned his reasoning. The judge pointed out that instead of declaring the hadith about not mixing the healthy with the sick operative and dismissing the â€œno contagionâ€ hadith as legally irrelevant, as al-Ê¿AlÄÊ¾Ä« was doing, one could equally explain away the former hadith and prioritize the latter. In al-Ê¿AlÄÊ¾Ä«â€™s own telling, this ambiguity gave him pause. While he was deliberating, the original questionerâ€”the husband of the sick womanâ€”submitted additional information, namely, that reliable physicians had stated that the breastmilk of his sick wife was unhealthy to the child. Using this information, al-Ê¿AlÄÊ¾Ä« develops an alternative argument: The father of a child can prevent his current or former wife from feeding his child harmful food; physicians have determined that the breastmilk of a leprous mother is harmful for a child; the father can consequently forbid her to breastfeed the child; since the mother is unable to breastfeed the child, she no longer has grounds for custody, and the childâ€™s custody is transferred to the father.
Besides the remarkable glimpse â€œbehind the scenesâ€ of juristic deliberation that this fatwa affords, it also grants a revealing view of the role that the seeker of a fatwa could play in the process of the fatwaâ€™s formation through the phrasing of the question and the information provided with it to shape the muftiâ€™s thinking. What is also noteworthy is the effort and care that al-Ê¿AlÄÊ¾Ä« puts into formulating a watertight justification for a ruling that itself seems to have been clear to him from the outset.
The second fatwa we read in the class was written by the North African jurist Ibn MarzÅ«q (d. 842/1438) on the question whether paper produced in Christian lands was an acceptable writing material for use by Muslims. This seemingly simple question elicited an extensive response covering thirty-three pages (for context, al-Ê¿AlÄÊ¾Ä«â€™s detailed fatwa on custody was three pages long). Ibn MarzÅ«qâ€™s affirmative answer morphs into a theoretical discussion on the scope and method of reasoning by jurists who follow a particular school of law and encounter a previously unaddressed legal dilemma. He argues that such a jurist should treat the existing positions within his school the same way an independent jurist (mujtahid muá¹laq) would treat the texts of scripture: his role is to extend the known precedents to cover the novel circumstances by means of analogical reasoning. This fatwa, like al-Ê¿AlÄÊ¾Ä«â€™s, is thus not simply a responsum directed at the questioner (or others with similar queries), but rather constitutes an exposition of method and theory, demonstrating the flexibility of the fatwa genre.
The third fatwa is the so-called Transvaal fatwa issued by the Egyptian grand mufti Muá¸¥ammad Ê¿Abduh (d. 1905). In contrast to the two previous fatwas, this one was not originally intended for a wider audience. Ê¿Abduh provided it in response to a questioner from South Africa; it was then picked up and published in part by an Egyptian newspaper critical of Ê¿Abduh in order to discredit him, and eventually published in full by his supporters. The fatwa addressed three separate questions: Is a Muslim allowed to wear Western clothing? Is a Muslim allowed to eat meat slaughtered by a Christian? And can an adherent of the ShÄfiÊ¿Ä« school of law be led in prayer by an adherent of the á¸¤anafÄ« school? Ê¿Abduh answered all three in the affirmative. What distinguishes this fatwa from the other two is that we possess a record of public reactions to it from both religious scholars and secular intellectuals, and we can thus reconstruct the criticisms they leveled at it for violating the dominant legal positions of the time.
On the issue of wearing European clothes, Ê¿Abduh argued that Islam does not require believers to dress in the fashion of any particular people but rather leaves matters of dress up to culture, weather conditions, and fashion. He thus saw no reason to forbid the wearing of European clothes as long as they were not explicitly non-Muslim religious attire and were not worn in order to emulate non-Muslims. This was the point of contention for his critics, who argued that the wearing of European clothes, especially in the context of European colonial domination, constituted a step toward cultural assimilation in a non-Muslim civilization and thus contravened the rule against emulating non-Muslims. On the question of eating the meat of animals slaughtered by Christians, Ê¿Abduh based his position both on the general permission to eat what Jews and Christians have slaughtered as given in the Quran and on the legal opinions of the Andalusian jurist Ibn al-Ê¿ArabÄ« (d. 1148), who asserted that the meat of animals slaughtered by Jews and Christians was permissible regardless of the method of slaughter used. It is notable that although Ê¿Abduhâ€™s fatwa went against the dominant legal positions of his time on all three issues, over the course of the past century his positions have become the mainstream ones, at least on two of the three (clothing and prayer).