Commentary

Recent combat between coalition troops and militia loyal to radical Iraqi cleric Moqtada al-Sadr at Shi’a holy cities have had ample media play. But behind the scenes, a high-stakes struggle is taking place between al-Sadr and the highest ranking Shi’ite cleric, Ayatollah Ali al-Sistani. The fight is over the responsibility to issue a fatwa (a religious legal ruling) and to declare jihad, or holy war. Mindful of legal precedent, al-Sadr has justified jihad against US forces without a legitimizing fatwa by appealing to the concept of defensive holy war. Sensitive to popular opinion, al-Sistani has been reluctant to issue a fatwa ordering the withdrawal of al-Sadr’s militia from the battle-scarred holy cities. This is not a squabble over Islamic legal theory, but a contest over religious and political authority.

The power politics in Southern Iraq over fatwa issuance is not just a local problem. With globalization, the ‘fiber-optic’-sped fatwa has helped legitimize militant, Islamist calls to jihad to defend their radical vision of the Islamic creed. The transnational fatwa can mobilize sections of the umma, the worldwide community of Muslims, to either comply with or flout obligations of secular law. Modern communication technologies ensure that the cyber-fatwa or satellite-fatwa reach a wide audience, making them key instruments for those forces within the faith who struggle to define the range of permissible and forbidden within Islam. Therein lies its explosive potential for misuse, and for either radicalizing or moderating the reflexes of the umma. The transnational pull of an increasingly politicized fatwa model, used most effectively by Usama bin Laden, is a phenomenon that has not been sufficiently examined either in comparative law or in Islamic legal theory. How has this technical form, drawn from classical Islamic jurisprudence, rendered calls to acts of terrorism authoritative and compelling for certain Muslims?

Islam and the fatwa

Before answering the question, it may be helpful to look at the broad context of fatwa- issuance (ifta). A basic doctrine in Islam is that religion and law are not separate spheres. Islam tends to synthesize all aspects of human interaction into a single value system, based on sacred law (Sharia). But applying a pristine, totalizing Shariah, the source from which all principles of Islamic law and life are supposed to flow, has always proved elusive. The sacred law implemented is less a stable monolith than a shifting mosaic. It is shaped by power and policy considerations. Classically, Islamic law is created by the elucidations of jurisprudence (fiqh) of various schools whose scholars (ulama) and jurists mine legal rules from the sacred sources through accepted protocols and methods (usul al-fiqh). Mechanisms for transforming Islamic law were the scholars’ commentary or opinion (fatwa). The latter was a product of legal reasoning by an exemplary scholar (mujtahid), also known as a mufti (issuer of fatwa).

The mufti’s learning and interpretative ability usually compelled a local following of believers. His fatawa normally responded to mundane questions in private law, approving an act based on a spectrum ranging from the obligatory to the repugnant. Ideally, the body of fatawa served as the case law of Islam, decisions that establish or reinforce the consensus (ijma) of the community on a matter. The mufti gives moral sanction to a certain action and provided guidance for complicated matters of daily life, based on an interpretation of sacred sources. When fatawa encroached upon public law, it could clash with the political objectives of a ruler. For example, when the amir or ruler declared a jihad, the mufti issued a fatwa that either backed up or challenged the legitimacy of the jihad.

In the public mind of the west, the form and substance of the fatwa are often confused. The word fatwa may be understood as a declaration of war, a death penalty, a contract for a hit or perhaps just an opinion on an everyday issue. What is of note is that the fatwa is the most versatile, multi-purpose and flexible instrument for claiming religious legitimacy for a range of actions (from whether it is permissible to mechanically separate chickens, smoke tobacco, incur interest, masturbate, read a particular book, or declare jihad). But even if there is general agreement on what a fatwa is, there is very little consensus on who is able to issue one.

Splintered religious and political authority

In the early modern period, prior to the system of sovereign, nation-states in Muslim lands, the Ottoman Empire’s chief mufti was empowered to issue fatawa to reconcile mundane law or cast policy in sacred sharia terms. His decision was the law when it came to declaring jihad against a group or political entity. Today, the ulama or the custodians of ‘official Islam’, functionaries of the modern nation state such as the Dar-al Ifta or Al-Azhar University in Egypt or their Saudi equivalents may insist that only a state-mufti is authorized to issue such fatawa, especially those relating to matters of public law such as the waging of jihad. However, globalization has attenuated the ideological supremacy of a centralized bureaucracy of ulama. ‘Official’ Islam’s claims to religious authority are constantly challenged by freelance media mullahs at the margins. This has opened up opportunities for a re-casting of the fatwa and exploiting the form to promote violent ends.

Understanding the radical fatwa

Indeed the last three decades have witnessed the hijacking of fatwa-issuance by militant Islamist groups for religio-political ends. Islamic labels are used to provide a counter-discourse of legitimacy operating in a parallel moral universe. To cite a recent example, Islamists belonging to the radical Southeast Asian terror network Jemaah Islamiyah (JI) claimed to be following a fatwa when they carried out the Bali bombing in 2002. A JI member said in a media interview that a radical Indonesian cleric handed them the 1998 fatwa from Usama Bin Laden, which declared in part that the “ruling to kill the Americans and their allies – civilian and military – is an individual duty for every Muslim who can do it in any country in which it is possible to do it…in accordance with the words of the Almighty God”. He interpreted the fatwa to mean: “we can act by killing American civilians anywhere … armed or unarmed, soldiers or civilians … women, the elderly or children. That is the nature of the fatwa.” For the JI member, bin Laden’s transnational fatwa gave absolute moral sanction to carry out what would normally be considered reprehensible crimes against humanity.

Crucially, his reasoning hinged on the argument that the form of the fatwa provided a cloak of legitimacy to the content of the actions. The stand-alone fatwa even cancelled out the weight of preceding Islamic law. Notably, the same year bin Laden issued his fatwa, a group of Afghan ulema had issued a fatwa requiring the removal of US forces from the Gulf region and asserted that theirs was “not merely a fatwa issued by the ulema of a Muslim country, but rather a religious fatwa that every Muslim should adopt and work under.” This firm, normative imperative is a departure from the classical understanding of the fatwa, a ruling accepted or rejected at the discretion of the individual believer.

The mechanics of the fatwa

Ideologues like simple and effective instruments. The mechanics of authority supporting a fatwa is straightforward. Every believer is compelled to follow a mujtahid. It is an expression of the hierarchy between the learned mufti or mujtahid (striving for their own understanding of Divine command) who professes to understand sacred law and the believer (following the badge of authority because they cannot reason on the basis of textual evidence) who chooses to accept and follow his learning and professed opinion. Traditionally, small communities outside direct state influence can choose their own mujtahid or mufti who establishes consensus on a given matter. The source of the mufti’s authority comes only from his recognized knowledge—not from the government, not from a central religious authority, and certainly not from a claim to divine right. The mufti is responsible to his own conscience and bears a large responsibility because people respect his knowledge. One mujtahid’s opinion does not cancel out another’s, but the system ensures that the mufti with his finger on the pulse of popular sentiment attracts a large following.

No consensus exists in Islamic jurisprudence on who exactly is authorized to issue a fatwa. Indeed, there is no Islamic version of a Bar Association that licenses a fatwa issuing member or a mujtahid. Ironically, Islamists have pilloried the former Egyptian Chief mufti (now Al Azhar rector) Syed Tantawi as unfit to issue fatawa because his training was in theology and not jurisprudence. But this is a self-serving argument since no radical Islamist appears to have applied the same yardstick to the militant Usama bin Laden. In fiqh terms, it is certainly not only the head of a sovereign Muslim state or his chief mufti with exclusive legal authority to declare jihad. Islam does not have a formal clergy, and the issuance of fatwa may technically be done by any individual believer whose learning or actions have drawn a following within the fold. Crucially, it is public acceptance and a following that makes a mufti. Any believer consulting a mufti on some matter is responsible for following his or her own conscience in deciding on a course of action based on his advice. It follows that radicalized opinion will seek out a radical fatwa – a ready market exists.

Boosting Islamist exploitation of the fatwa to promote radical jihad is the successful hybridization of the classical form. The classical, fiqh understanding of fatwa connects its acceptance and legitimacy to schools and consensus. The fatwa can change the dominant doctrine of the school if it marshals sufficient authoritative opinion. But it still connects with the body of existing doctrine and cannot completely contradict the founding texts of the school. However, the modern, radical Salafist (orthoprax) conception stresses conversion of individual belief in a direct relationship with the sacred text. Thus, the single fatwa can go against the grain of accumulated consensus and promote a certain course of action. This modern hybrid conception resembles to some degree the Shi’i model rather than a classical Sunni one. That is to say, it gives preponderant weight to a single fatwa uttered on the strength of the authority of a single Marja (model), be it Ayatollah Shirazi’s tobacco boycott fatwa of 1891 or Ayatollah Khomeini’s fatwa in the Rushdie Affair, which politically outweighed the counter-fatwa of Sunni ulama from the prestigious Al-Azhar University.

Selective fiqh and the radical fatwa

The fatwa in its modern, radical form gains major traction from the fact that the classical fatwa was an instrument for integrating the consensus of a community on questions that had not yet been decided. It provided the gel for the umma, the worldwide community of Muslims, to mobilize around a particular position or issue that was uncertain. This was an issue on which the state had yet to intervene, and a person professing religious authority could develop consensus on the question and thereby establish his legitimacy.

Exploiting this gap, Usama Bin Laden practices a deviant form of the mujtahid- muqallid relationship, using fatawa to radicalize the section of the umma receptive to his message. Of course, Islamic legal theory certainly does not say that every Muslim is obliged to accept a declaration of jihad just because it is called a jihad and carried in a fatwa. The traditional interpretation of the mujtahid-muqallid model expects that the individual believer will follow their conviction after hearing the fatwa. And if they are convinced by these arguments, whether or not the mujtahid is licensed or trained by an official body, they can follow it. They certainly should not follow every word in a fatwa just because it is called a fatwa. It is the strength of the content not the form that compels compliance. But the nature of Salafist (orthopraxis) belief appears to stress form over content, and privileges strict commands over flexible self-reasoning.

Usama bin Laden’s jihad-steeped discourse roots itself in classical Islamic legal theory. Usama bin Laden may be a political ideologue using the language of fiqh to advance specific interests. Like any fundamentalist, he cherry-picks politically expedient content form the sacred sources. He can draw from legitimate deathbed hadith of the Prophet that there cannot be two religions in the Hijaz to justify expelling US forces from Saudi Arabia. In this regard, he creates deep dilemmas for even moderate Muslims committed first and foremost to the sanctity of any individual life, even over the pull of the umma. Bin Laden justifies using all means possible to protect Islam’s holiest places from defilement. His jihad and his targets expanded with his 1998 fatwa after surviving several US cruise missiles. Henceforth, Muslims were exhorted to kill American civilians. The existential threat to Muslim identity and sacred space expanded beyond the two Holy Mosques. After 1998, Usama bin Laden sounds less like an autodidact with a limited goal that is just about religiously defensible than a deviant Islamo-fascist heaven-bent on overturning the global order.

Conclusion

But for a section of the umma (and perhaps even for some outside the community), Usama bin Laden may sound perfectly rational, sane and justified, even if his discourse does not approach the rigours of fiqh reasoning. He goes one better – providing an alternative world-view and a call to action. His audience is not the elite jurists of the Islamic world, but the broad umma, with select sub-audiences in different parts of the Muslim world. Crucially, his fatwa purport to answer unspoken questions (i.e. what is permissible to do to ensure the survival of Muslim religious identity against encroaching western “Crusaderism”). Those who choose to subscribe to his fatwa likely support his political vision which ultimately aims towards the creation of a divine Islamic order against a secular, western order dominated by the US and its allies. Those who do not must find ways to show how bin Laden’s selective use of fiqh is illegitimate, destructive and ultimately counter-productive to the cause of defending the Islamic creed. They could start by showing Islamist fatawa are at best paralegal, misguided opinion and certainly not binding law. No religious decree can sanction the slaughter of unarmed civilians.