Istifta of a Sinful (Fasiq) Mufti
A Fasiq Mufti is the one who lacks moral integrity (‘Adalah). This is when a person falls short in his obligations, specially the obligatory prayers, or regularly misses supererogatory (Nawafil) prayers, or commits a major sin, or persists on committing a minor sin, or does not pay attention to aspects that effect his reputation and standing in society (Muru’ah), such as not covering one’s head in a country where to do so is disliked, or eating on the streets in a country where such a practice is disliked, and so forth.
*Ibn al-Salah , Ibn Taymiyah and al-Mardawi consider it impermissible to ask a Fasiq Mujtahid in any instance. As for Ibn al-Qayyim, he says, having first agreed with this opinion, that it is permissible to ask a Fasiq Mufti, upon condition that he is does not publicise his sins, or call openly to innovations in the religion, which itself differs according to time and place. He argues that if sins were to become widespread, and if we were to reject the Fatawa, imamate, or witness of a Fasiq, then the Islamic laws would become defunct. Therefore, under normal circumstances, consideration is to be given to the one most suitable for Ifta, and then the next suitable, but, in cases of necessity, and when sins and disobedience have become prevalent, one has no choice but to remain patient and practice the lowest form of forbidding evil. Therefore, if Fisq is prevalent amongst Muftis, and one is unable to find a pious Mufti at all, then one should ask the least sinful amongst them.
Istifta of a Mufti whose condition is unknown (al-Mastoor)
Al-Mastoor is the one who outwardly appears to be upright, whilst his inner state is not known. Al-Mardawi says that it is not permissible to ask a Mufti if his condition is unknown, where as Ibn al-Qayyim and Ibn Taymiyah allow it, in addition to Ibn al-Salah who argues that it is difficult to ascertain whether one is upright inwardly or not, hence, the masses should not be burdened with that which is beyond their capabilities.
Istifta of a Careless Mufti
Al-Mardawi says that it is prohibited for a Mufti to be careless in issuing verdicts, just as it is prohibited for the layman to follow such a Mufti. He reports that Ibn Taymiyah said: “It is not permissible to ask a person, except one who issues verdicts based on knowledge and justice”. Ibn Hamdan, from the Hanbalis, and Ibn al-Salah and al-Nawawi, from the Shafi’is, hold the same opinion, further adding that from carelessness is to fail to verify the facts of a case before passing a verdict, or doing so hastily, without giving the issue due thought, and so forth. These are some of the indications of* a ‘careless Mufti’, and if a Mustafti ever notices these traits in a Mufti, it becomes forbidden for him to ask him for a verdict in any issue.
A Caution from the Worldly Mufti
Ahmad ibn Hanbal wrote to Sa’id ibn Ya’qub:
“Bismillah al-Rahman al-Rahim,
From Ahmad ibn Muhammad [ibn Hanbal] to Sa’id ibn Ya’qub. To proceed:
Verily, the world is a disease, and the Sultan is a cure, while the scholar is a doctor. If you notice the doctor pulling the disease towards himself, then beware of him.
Ibn Taymiyah said, commenting on Imam Ahmad’s statement: “This entails warning against asking the one from the scholars who seeks wealth and status.”
It is authentically reported that Abu Hazim said: “[In the past] the scholars would flee from the ruler, whilst he would pursue them. Today, they (the scholars) come to the door of the ruler, whilst the ruler flees from them”; and in our time, the evil scholars chase after the rulers, in the same manner that these rulers run after these these evil scholars, seeking to use them for their political expediency, and to crush any Islamic resistance – the most recent example of this being the infamous Fatwa endorsing the French move to ban Hijab, and thereby, crushing the political Jihad of the French Muslims under their feet.
It is therefore prohibited to ask such a ‘Mufti’ about any religious matter – in spite of the fact he may be the state Mufti – particularly in a secular state that is known for its ideological and military war against the Shari’ah. Moreover, what occurs in most countries in the present time – namely, that a scholar is selected by a secular government to be the ‘state Mufti’ – was condemned as an innovation in Allah’s religion by Ibn Badran al-Dimashqi, who says: “And what has been innovated in our time, that they gather the people wearing turbans, and choose from amongst them a Mufti, and call him ‘Head of the scholars’, then the government establishes him as a Mufti, and restricts the entire process of Ifta to him, whilst often the one instated in this position is an ocean of ignorance, who would not be able to make head or tail of an expression from the books of jurisprudence were it to be given to him. So we ask Allah for a good end.
Choosing a specific person for the position of Ifta – in the sense that the ruler would not accept a Fatwa except that which originated from him – was not known in the early centuries, for the process of Ifta continued to be delegated to the known scholars until Sultan Saleem II entered Damascus in the year 922 AH and took possession of the city; observing the discord amongst many of those who claimed to have knowledge, he then designated the process of Ifta, in each Madhab, to one of the esteemed scholars of that Madhab, as a means to appease the discord. This remained the status quo for some time, until this lofty position was obtained by many of those ignorant of the principles (Usul) or of jurisprudential matters (Furu’), and so the matter was given to the undeserving and incompetent.”