by Sidi Ali al-‘Iraqi al-Husaini
I want to preface this study by explaining my reason for choosing this topic. The reason for my choice of this subject lies in the claim made by some ordinary people, and even some eminent thinkers, that holding to a specific school of fiqh leads to the rigidification of fiqh and closing the door of ijtihad. The legal and historical facts are very far from this claim, at least in respect of the application of the Maliki school by its scholars in the Maghrib and Andalusia. That is because the method on which they originated gave Maliki fiqh great flexibility and an extraordinary capacity for adaptation. This productive school has shown itself to be adaptable in different environments and times, right up to present times, by the virtue of the fact that the door of ijtihad in the School remains open right up until today. It is a definitive evidence which refutes the opinion of those who claim that holding to a school of fatwa and qada’ (sentence) rigidifies fiqh and makes it capable of being adapted to different places and times.
Fatwa (Linguistic definition)
According to the Qamus: futya and fatwa designate the opinion which a faqih gives. Aftahu in a matter means “he gave him an explanation on a matter.”
According to the Mu’jam al-Wasit: it is the answer to a problematic legal case in the Shari’a or law.
Qada’ (Linguistic definition)
According to the Qamus: qada’ is judgement. The verb is qada, and qada, qada’ and qadiya are nouns. It means “accomplishment, final decision and elucidation”.
According to the Mu’jam al-Wasit: qada’ means “judgement, decision and the action of the Qadi”.
In technical usage, a fatwa is communicating a legal ruling without making it binding.
In technical usage, qada’ is communicating the legal ruling while making it binding (i.e. sentencing).1
The one who issues a fatwa is a mufti and the one who gives judgement or issues a ruling is a Qadi.
It is deduced from the two previous definitions that fatwa refers to a legal ruling when someone asks for a legal opinion without that person who asked for the opinion being obliged to implement what he is told. It is left to his conscience whether to accept that ruling or to turn from it and he bears the responsibility for that. As for sentence (qada’), it refers to a legal ruling in answer to a dispute and it is obliged for the authority specifically concerned with that to implement the ruling. Continue reading