Islamic Law and Society

The Practice Of Iftā’ And Religious Institutions

Emine Enise Yakar

• Publisher: Routledge
• Year: 2021
• Print ISBN: 9780367480172
• eBook ISBN: 9781000456424
• Edition: 1
• Topic: Derecho
• Subtopic: Derechos civiles en la legislación

This book places context at the core of the Islamic mechanism of ift?' to better understand the process of issuing fatw?s in Muslim and non-Muslim countries, thus highlighting the connection between context and contemporaneity, on one hand, and the adaptable perception of Islamic law, on the other.

The practice of ift?' is one of the most important mechanisms of Islamic law that keeps Islamic thought about ethical and legal issues in harmony with the demands, exigencies and developments of time. This book builds upon the existing body of work related to the practice of ift?', but takes the discussion beyond the current debates with the intent of unveiling the interaction between Islamic legal methodologies and different environmental contexts. The book specifically addresses the three institutions (Saudi Arabia's D?r al-Ift?', Turkey's Diyanet and America's FCNA) and their Islamic legal opinions (fatw?s) in a comparative framework. This demonstrates the existence of complex and diverse ideas around similar issues within contemporary Islamic legal opinions that is further complicated by the influence of international, social, political, cultural and ideological contexts. The book thus unveils a more complicated range of interactive constituents in the process of the practice of ift?' and its outputs, fatw?s.

The work will be of interest to academics and researchers working in the areas of Islamic law, Middle Eastern studies, religion and politics.

1 General Presidency of Scholarly Research and Iftā’

DOI: 10.4324/9781003037637-1

Islam is deeply embedded within Saudi Arabia’s political settlement, and Islamic law (sharī‘a) is the main foundation of its legal system.¹ Because power is rooted within an alliance between ‘ulamā’ (religious scholars) and ’umarā’ (political leaders or the Saudi dynasty), the Saudi state combines religious and dynastic elements. Bureaucratisation, institutionalisation and modernisation, which were each sparked by the discovery of oil, have added a further layer of complexity to the relationship between the modern Saudi state and religion, and interactions between religion and society.² While the institutionalisation of the ‘ulamā’ has undoubtedly heightened their dependency upon the Saudi Government, it is more likely that a symbiotic relationship conjoins the dynasty and ‘ulamā’ in contemporary Saudi Arabia. The official religious institution puts in place the basis of this symbiotic relationship and bestows ideological and religious legitimacy upon the state.

1 Royal Decree A/90, 1 March 1992. See Basic Law of Governance (Article 1) (Royal Embassy of Saudi Arabia, 1 March 1992) <https://www.saudiembassy.net/basic-law-governance> accessed 08 October 2015. 2 Ayman al-Yassini, Religion and State in the Kingdom of Saudi Arabia (Westview Press 1985) 20, 32, 42–43, 59, 98–105, 109, 130.

The institutionalisation and modernisation process within Saudi Arabia has instituted an arrangement in which the official religious establishment has begun to be represented by the General Presidency of Scholarly Research and Iftā’ (al-Ri’āsa al-‘Āmma lil-Buḥūth al-Ilmiyya wal-Iftā’; henceforth: Dār al-Iftā’). This is an official entity whose fatwās and religious erudition have underpinned the Saudi legal system and social life since its establishment. The Dār al-Iftā’ stands at the confluence point of the Saudi legal system, politics and society. The history of the Dār al-Iftā’ is superimposed upon sustained interactions between the Dār al-Iftā’ (the Saudi ‘ulamā’) and the Saudi dynasty. For this reason, the institutional history, religious predisposition and structure of the Dār al-Iftā’ provide an insight into its socio-legal, socio-political and socio-religious positioning within the Saudi state.

This chapter addresses itself to the question of whether the Dār al-Iftā’ implements a consistent, legitimate and coherent Islamic legal methodology within the Saudi state. It also asks a number of additional questions with the intention of bringing out the interaction between the Islamic legal methodologies adopted by the Dār al-Iftā’ and the Saudi social context. These questions relate to the role of the Dār al-Iftā’ and fatwās within the Saudi legal system, the independence of the Dār al-Iftā’ from the Saudi dynasty during the issuance of a fatwā and the institution’s engagement with Islamic legal challenges encountered by Muslims. A closer engagement with these questions provides insight into the interaction between the Dār al-Iftā’ and the Saudi Government (or the King), along with the relationship between the Dār al-Iftā’s Islamic legal methodologies and the social context.

This chapter is divided into three subsections. A brief history of the Dār al-Iftā’ in Saudi Arabia brings out shifts within the relationship between Saudi ‘ulamā’ and ’umarā’. This demonstrates how the authority and power of the Dār al-Iftā’ within the Saudi legal system, society and state have gradually reduced. Attention then turns to the institution’s organisational structure. This is an essential contribution as it provides insight into the continued salience of fatwās within the law-making process. The discussion then engages with the process through which the institution issues a fatwā. In general terms, this chapter engages the Islamic legal understanding of the Dār al-Iftā. It also provides insight into the role of the institution and its fatwās in Saudi society, along with the jurisprudential system and social context of Saudi Arabia.

The formation of the General Presidency of Scholarly Research and Iftā’ in Saudi Arabia

The historical alliance of 1744 between Shaykh Muḥammad ibn ‘Abd al-Wahhāb, the founder of the Wahhābī movement, and Muḥammad ibn Sa‘ūd, the predecessor of the Saudi dynasty, established the basis for the formation of the first Saudi state.³ This alliance has since then remained intact. ‘Abd al-Wahhāb’s mission was sustained by his descendants, who are known as the Āl al-Shaykh family, and their authorisation as the Grand Muftī was handed down from father to son.⁴ In furthering the Saudi dynasty, the Āl al-Shaykh family have actively participated in the practice of iftā’ alongside other eminent muftīs, most of whom were educated or trained by members of the Āl al-Shaykh family.⁵ Although non-Āl al-Shaykh ‘ulamā’ were included in the mutual interdependence between the Saudi dynasty and ‘ulamā’, the Āl al-Shaykh family maintained a historical monopoly over the highest religious posts within the state for a considerable period of time.⁶ However, there has been a noticeable decline in the number of ‘ulamā’ belonging to the family of Āl al-Shaykh since the 1940s.⁷ Al-Yassini and al-Atawneh suggest that one possible reason for this decline is the desire of the Saud Government to weaken the monopoly and power of the Āl al-Shaykh family over religious discourses – this would be achieved by opening up the closed circle to less prominent families.⁸ Shaykh ‘Abd al-‘Azīz ibn Bāz (d. 1999), for instance, was from outside this religious nobility, and yet ascended to the position of the highest religious authority (the Grand Muftī), a position he occupied until his death in Saudi Arabia. His ascent epitomises the opening up of this closed religious circle and the breakdown of the Āl al-Shaykh family’s monopoly upon the religious establishment.

3 Al-Yassini (n 2) 25; Guido Steinberg, ‘The Wahhabiya, Saudi Arabia and the Salafist Movement’ in Frank Peter and Rafael Ortega (eds), Islamic Movements of Europe: Public Religion and Islamophobia in the Modern World (I.B. Tauris & Co. Ltd 2014) 38; John S. Habib, ‘Wahhabi Origins of Contemporary Saudi State’ in Mohammed Ayoop and Hasan Kosebalaban (eds) Religion and Politics in Saudi Arabia: Wahhabism and the State (Lynne Rienner Publishers 2009) 57–58. 4 Muhammad al-Atawneh, Wahhābī Islam Facing the Challenges of Modernity: Dār al-Iftā in the Modern Saudi State (Brill 2010) 42–47. 5 Al-Yassini (n 2) 44–48; Al-Atawneh, Wahhābī Islam (n 4) 5, 29; Madawi al-Rasheed, Contesting the Saudi State: Islamic Voices from a New Generation (Cambridge University Press 2007) 28–33. 6 Al-Atawneh, Wahhābī Islam (n 4) 11–12. 7 Al-Rasheed (n 5) 28–33; Al-Yassini (n 2) 71. 8 Al-Yassini (n 2) 71–72; Al-Atawneh, Wahhābī Islam (n 4) 29.

At the beginning of the establishment of the first Saudi state, the Āl al-Shaykh family were merely the class of the ‘ulamā’ who had formed an alliance with Muḥammad ibn Sa‘ūd and who espoused the Wahhābī religious ideology. The religious sphere was reserved for ‘Abd al-Wahhāb and his descendants (the family of Āl al-Shaykh) – however, the Āl al-Shaykh family’s privileged position was increasingly challenged once the official religious institution was established.⁹ When Ibn Bāz was designated as the Grand Muftī, the position of privilege and its associated religious power most likely transferred to the official ‘ulamā’. Like the ‘ulamā’ exclusively deriving from the Āl al-Shaykh family, the official ‘ulamā’ would have been concerned with sustaining the mutual alliance and interdependence between ‘ulamā’ and ’umarā’ within the wider context of the modern Saudi state. It is important to acknowledge this mutual dependence of ‘ulamā’ and ’umarā’ because it continues to influence the interaction of religion and politics and provides considerable insight into the Saudi–Wahhābī interaction and their mutual co-existence as semi-autonomous bodies within contemporary Saudi Arabia. Al-Rasheed affirms this when she notes that: “in the twenty-first century, Wahhabiyya [official ‘ulamā’] continues to support the power it created and defended. In its official version, Wahhabiyya is the discourse of power legitimization.”¹⁰ The interdependency between the ‘ulamā’ and Saudi ruling power, and the authority and legitimacy which derive from this interaction establish them as the principal agents charged with determining and controlling the interpretation of Islamic legal sources and the content of legal regulations that govern the life of Saudi society. However, different circumstances and contexts have conceivably impacted upon their authority and legitimate scope of intervention.¹¹

9 Al-Yassini (n 2) 42–43, 71–72. 10 Al-Rasheed (n 5) 4. 11 Tobi Craig Jones, ‘Religious Revivalism and Its Challenge to the Saudi Regime’ in Mohammed Ayoop and Hasan Kosebalaban (eds), Religion and Politics in Saudi Arabia: Wahhabism and the State (Lynne Rienner Publishers 2009) 110–111.

In Saudi Arabia, the established working relationship between ‘ulamā’ and ’umarā’ at one point refers to the fundamental role of fatwās. This developed relationship fused politics and religion and instituted a comprehensive system of government that exerts control over Saudi political, public, religious and social life. The working agreement between ‘ulamā’ and ’umarā’ established the practice of iftā’ as a mechanism that formulises legal, moral and social codes. Because ‘Abd al-Wahhāb’s authority was as persuasive and dominant as that of the political leaders (Muḥammad ibn Sa‘ūd and his son, ‘Abd al-‘Azīz Ibn Sa‘ūd), his fatwās exerted an important influence over both socio-cultural norms and legal practice during the period 1745–1818.¹² These fatwās were usually implemented by the Committee for Commanding Right and Forbidding Wrong (Hay’at al-Amr bil Ma’rūf wa al-Nahyī ‘an al-Munkar, whose members were selected by the Shaykh himself), and they functioned as an intermediary mechanism which consolidated the relationship between religion and politics.¹³ During this period, the legitimacy of political power mainly derived from the ‘ulamā’, and the authority and prestige of the ‘ulamā’ generally originated within the Saud dynasty’s support. Al-R...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Contents
• List of tables
• Acknowledgements
• Preface
• Introduction
• 1 General Presidency of Scholarly Research and Iftā’
• 2 Presidency of Religious Affairs
• 3 The Fiqh Council of North America
• 4 Influence of madhhab affiliation and social values
• 5 Influence of legal and political systems
• Conclusion
• Bibliography
• Index