From Issue: 975 [Read full issue]
Instrument of Restriction
Historically fatwa began as a private activity that was independent of state intervention and control. The ulama who acted as muftis responded to people's questions over issues and gave fatwa as a service to the community, and they themselves set their own professional standards usually without government intervention. The muftis acted as legal advisors and counsels in much the same way as the professional lawyers of today. They provided valuable guidance and advice on detailed issues of Islamic law in legal disputes and in court cases for those who were not in a position to consult the law books themselves.
The ruling that is arrived at through fatwa is often based on an interpretation of the Quran or Sunnah and the general principles of Shariah. In the absence of any evidence in these sources, the Islamic scholar (mufti) formulates his own best judgement, enlightened by his general knowledge of the Shariah and the mores and customs of society. The resulting judgement or verdict consists usually of an opinion that does not bind the person or persons to whom it is addressed, nor does it bind anyone else. The recipient of a fatwa is consequently free to go to another mufti and obtain a second or even a third fatwa over the issue of concern to him, and it is his choice whether or not to comply with any of them. Only in cases where the fatwa consists of a clear injunction of Shariah and the two or three views given on the issue are found to be concurrent would the fatwa bind its audience and recipient, but not otherwise. Fatwa that is based on the interpretation and personal opinion of the mufti is normally not binding on anyone. This is the main difference between fatwa and a judicial ruling (qada). Fatwa also differs from ijtihad in that fatwa may be attempted in matters which may have been regulated by decisive evidence or by a mere indication in the Quran and Hadith. Ijtihad, on the other hand, does not proceed on matters which are covered by decisive evidence in these sources.
Fatwa in many Muslim countries has become a state matter and can no longer be practised by anyone other than an officially employed mufti in accordance with a stipulated procedure. Whereas fatwa in Shariah is not a binding instrument, under statutory law it has generally been given this role. A basically voluntary and investigative concept has been turned into an instrument of mandatory and binding rule-making. Fatwa under the Shariah is also a vehicle that facilitates the free flow of thought and expression in religious issues, whereas now it has in many countries become an instrument of restriction on freedom of expression in religious matters.
"Shariah Law - An Introduction" - Mohammad Hashim Kamali, pp. 174, 175