Sharia Law An Introduction - by Mohammad Hashim Kamali

Independent reasoning and juristic opinion 177
FatwÉ is meant to keep the SharÊ‘ah in tandem with social reality,
but the Malaysian legislation on fatwÉ precludes that, with the likely
result of narrowing down the space for public participation in fatwÉmaking.
We have often heard about the so-called closure of the gate
of ijtihÉd (insidÉd bÉb al-ijtihÉd) which has had debilitating consequences
for the viability and growth of the Sharʑah. What we are seeing
is the beginning of a similar process that is likely to exacerbate
the situation at a time when flexibility and openness are needed.
For fatwÉ in Malaysia and elsewhere is being turned into a state matter
which is open to discussion and debate only within official circles.
This kind of fatwÉ-making procedure basically makes no room for
public debate and consultation. This trend should hopefully be
arrested and a more flexible procedure adopted to provide opportunity
for all concerned, the government agencies, the private scholar
and the media, to voice their concerns and constructive criticism of
a fatwÉ before it becomes binding in law.
It must be admitted that stipulating a certain procedure for fatwÉ
is useful in restraining arbitrary fatwÉ-making. Yet it hardly seems
advisable to make that procedure so strict as to render a mere disputation
over a state-sponsored fatwÉ a punishable offence. To bring criminal
procedure into all of this is also unrealistic.
I therefore propose that the fatwÉ procedure in Malaysia and elsewhere
should be revised and moderated. One way to do this would be
to integrate the fatwÉ procedure into the mainstream procedure for
legislation and subject the fatwÉ to ratification by the legislative
assembly and parliament, which may choose to set up a standing
committee of SharÊ‘ah experts to report on the proposed fatwÉs. The
exceptional status that is now granted to fatwÉ as another source of
law-making in the country should thus be terminated.
NOTES
1. For a more detailed review of the classical theory of ijtihÉd see M. H. Kamali,
Principles of Islamic Jurisprudence, 468–500; for details on the problematics
of ijtihÉd in modern times see idem., ‘Issues in the Understanding of jihÉd and
ijtihÉd’, 623 f. ÖahÉ JÉbir al-‘Alwani, IjtihÉd, 4.
2. al-ShawkÉnÊ, IrshÉd al-FuÍËl, 254.
3. Ibid. For a summary of al-ShawkÉnÊ’s acount see my Jurisprudence, at 491.
4. KhallÉf, ‘Ilm, 49–50.
5. Cf. KhallÉf, ‘Ilm, 50; Iqbal, Reconstruction, 174; al-ÙamÉwi, Al-SulÏÉt
al-ThalÉth, 307.