History of the 'death fatwa', from 'mufti' to ulema council

History of the 'death fatwa', from 'mufti' to ulema council

How valid is the death fatwa in the context of traditional
fiqh and Islamic history as well as of Indonesian Islamic
religious and political realities?

According to traditional fiqh (Islamic jurisprudence) as well
as to the common practice in the early history of Islam, the
fatwa was valid only if it was issued by an independent, but
recognized and authoritative mufti, a Muslim jurist capable of
giving, when requested, a non-binding opinion (fatwa), on a point
of Islamic law.

Later, the position of mufti arose and became
institutionalized as a response to the ever increased need among
Muslims for legal opinion and advice from scholars well-versed in
various aspects of Islamic law.

Thus, in the Mamluk Egypt and Ottoman Empire, the mufti
occupied an official structure and position under the sultan.
With this institutionalization, the fatwa was valid only when it
was issued by the office of the mufti, which generally consisted
of a number of ulema who were authoritative experts in various
aspects of Islamic law.

In the 19th and 20th century as legal codes of European origin
were introduced to the Muslim world, and as secular states were
established in the Islamic world, the office of the mufti was
abolished.

As a result, the mufti's role became "unofficial" since he
operated independently in the Muslim society, and his fatwa was
limited primarily but not exclusively to sphere of personal law.
Therefore, the fatwa also became "unofficial" and unbinding
"personal" religious ruling of certain ulema, rather than
"official" which, in consequence, could be supported and enforced
by the Muslim rulers.

The institution of mufti is not known in Indonesia since the
coming and spread of Islam up until today. There was of course
the institution of shaykh al-Islam in such sultanates as Aceh.
But the latter institution did not specifically play the role of
the mufti; rather he was a religio-political advisor to the
Sultan.

With the abolishment of practically of all sultanates in the
archipelago by the Dutch colonial ruler, the fatwas were
generally issued by independent ulema either living in the
pesantren (boarding schools) or in the society at large.

Since the early 20th century, with the rise of Muslim
organizations such as Muhammadiyah, Persis, Nahdlatul Ulama (NU)
and others, the fatwas were (and still are) issued by a special
body in the respective organization with a special responsibility
for issuing legal advice.

In post-independent Indonesia, the Ministry of Religious
Affairs and the Council of Indonesian Ulema (MUI) have also
played a role in the issuance of fatwa. As a rule, the special
fatwa body in all of these institutions consists of a number of
ulema, learned in the intricacies of Islamic law. While the
ministry has no special fatwa body, its religious rulings such as
the beginning and the end of fasting (Ramadhan) are by and large
based on the legal opinions of the fatwa body of most of large
Muslim organizations.

It is important to point out that each of this fatwa body
could issue a different fatwa or legal advice in certain issue,
depending on their interpretation of certain naql (verses of the
Koran and sayings of the Prophet or hadith) and on their reading
of classic fiqh books. -- Azyumardi Azra