THE TEMPORAL AND SPATIAL GAPS BETWEEN THE MUFTI AND THE CONTEMPORARY ISSUES, WITH IT'S EFFECT ON THE FATWA AN APPLIED STUDY IN MUSLIMS MINORITIES’ JURISPRUDENCE

Abstract

The temporal and spatial gap between the Mufti and contemporary issues

An applied study in light of Muslim minorities

The study aims to investigate the most common jurisprudential issues related to the Mufti being of a different time and place. The purpose of the study is to help both the Mufti and mustaftī (the one seeking fatwa) arrive at correct rulings related to those legal issues where the Mufti is not local or is from a different time. The paper also includes practical examples that demonstrate the extent to which the fatwa is affected owing to this gap in time and place.

This study is comprised of four sections:

• The technical terms used in the title.
• Examining the jurisprudential issues related to temporal gap, which include: the fatwa of those who are no longer alive; the fatāwā of the Companions; and speculative legal reasoning.
• Examining the jurisprudential issues related to spatial gap, which include: the case in which the Mufti is either unknown or there is insufficient information about his credibility; the mustaftī consulting a Mufti who is from a different legal school; and the portrayal of the contemporary issue and the effect it has on the fatwa.
• Five real-world applications to demonstrate the effect on the ruling as a result of the temporal and spatial gap between the Mufti and the contemporary issue.

The key conclusions and proposals at which the study arrives:

• The temporal and spatial gap do not have implications on every issue.
• The permissibility of relying on the fatwa of the Companions on the condition that it was used by an expert scholar of fiqh who is familiar with the authenticity of the fatwa and whether it applies to the mustaftī.
• Speculation of new scenarios is recommended if the scenario deduced or the issue asked about can occur and increases one's understanding of law.
• The impermissibility for a layman to act on a fatwa without knowing the exact question that was posed to the scholar, due to him not knowing whether it applies to him or whether the scholar retracted that opinion.
• The portrayal of the new issue itself is one of the most essential parts in formulating the fatwa – this requires an experienced scholar of fiqh.
• The real-world applications demonstrate the impact of the temporal and spatial gap on how the Mufti perceives the new issue, which, by extension, leads to the ruling to change.
• The real-world applications also show that the temporal and special gap of the Mufti do not render his fatwa invalid. On the contrary, it may actual be the more correct opinion as a result of the Mufti not being influenced by factors that considered by Islamic law, factors which do influence the judgement of those living in closer proximity to the new issue.
• Among the list of things proposed was to ensure that rulings pertaining to new issues – especially if related to the masses – be formed through legal councils made up of scholars who are local to the new issues as well as those who are not. This is to ensure that they may comprehend the matter and then pass a ruling.