First: The term “Fiqh Councils” is a modern concept associated with scientific bodies affiliated with specific organizations such as the Muslim World League, the Islamic Research Academy, the Association of Indian Scholars, the Muhammadiyah League, the Council of Muslim Scholars, or the Council of Senior Scholars in some Islamic countries, among others. These councils are not limited to the Sunni community but also exist in the Shia community, such as the World Assembly of Ahl al-Bayt, the councils in Qom, and Najaf councils, among others.

Therefore, these councils do not represent the consensus of mujtahidīn (individual scholars) in any case; rather, they represent the opinions of those who belong to them, who are, at best, individual mujtahids. In contrast, even the weakest form of consensus (᾽ijmā῾) requires the agreement of the scholars of a particular era on an issue, with no opposing opinion, forming a consensus through expressed agreement and the silence of others.

Second: The working method of Fiqh Councils involves presenting research papers on a given topic, discussing it, and voting on it. The issuance of specific decisions or recommendations does not mean that all members or the council agree with them; rather, the opinions are issued by an absolute majority, and dissenters have the right to express their ᾽ijtihād outside the council’s opinion.

Third: With the wave of tyranny and oppression in some Islamic countries, some Islamic councils have been heavily influenced to align with the policies of these countries. This influence extends to some councils adopting a particular religious direction because it controls funding and hosting. The Wahhabi model is a prime example of this, as is the “Wilayat al-Faqih” model in the Twelver Shia community, where religious and political matters are intertwined, and ᾽ijtihād is used politically to permit or prohibit. This has been observed in political, economic, and social issues in light of ᾽ijtihād.

This does not mean we should devalue the ᾽ijtihād of these councils, but individual ᾽ijtihād remains freer, especially given the nature of diverse opinions, which has always been a characteristic of Fiqh.

Fourth: Islamic Fiqh has recorded individual ᾽ijtihād against the consensus of madhāhib, and some have even opposed the four madhāhib. Over time, people, including some Fiqh Councils, have favored individual opinions over the majority (al-jumhūr). Here are some examples:

1. Ibn Taymiyyah’s opinion on shortening the prayer for any travel, as opposed to those who stipulate specific distances and durations, like the four madhāhib.
2. The view that an older virgin woman does not require waiting (᾽istibrā᾽) according to the Ẓāhirīs and Ibn Taymiyyah, contrary to the four madhāhib.
3. The non-requirement of ablution for the prostration of recitation, as held by Ibn ῾Umar, followed by Ibn Taymiyyah and Al-Shawkānī, against the four madhāhib.
4. The opinion that if one eats during Ramadan thinking it is night but it turns out to be day, their fast is valid, and no make-up is required, similar to the one who forgets, according to Ibn Taymiyyah, contrary to the four madhāhib.
5. The view that a single sa῾iy (walking between Safa and Marwah) suffices for those performing ṭamattu῾ Ḥajj, according to a narration from Ibn ῾Abbās, another from ᾽Aḥmad, and Ibn Taymiyyah, against the four madhāhib.
6. The permissibility for a woman to race without a third-party (muḥallil), as Ibn Taymiyyah and Ibn al-Qayyim argued, contrary to the majority who require a third party.
7. The ruling that a woman who is divorced thrice, a khul῾ divorcee, one who had intercourse out of suspicion, or a slave-girl only requires a single menstrual cycle for ᾽istibrā, as per a narration from ᾽Aḥmad, ᾽Isḥāq, and the choice of Ibn Taymiyyah, against the majority who stipulate three cycles.
8. The permissibility of tying the ᾽Iḥrām garment, according to some Shāfi῾īs, Ibn Ḥazm, and Ibn Taymiyyah, against the majority who consider it clothing.
9. The permissibility of a menstruating woman performing ṭawāf if she cannot do so in a state of purity due to fear of missing her group, according to the Ḥanafī opinion and Ibn Taymiyyah, against the majority.
10. The permissibility of selling juice as it is, like oil with olives and dates with syrup, as argued by Ibn Taymiyyah, against the majority.

Other examples include the permissibility of using any substance that is called water for ablution, selling jewelry with silver unequally with the excess being for craftsmanship, not considering a small amount of impure substance contaminating a liquid if it does not change its properties, and allowing dry ablution if one fears missing Friday or ῾Iīd prayers. Additionally, considering a triple divorce pronounced at once as a single divorce and viewing a divorce oath as a regular oath that can be expiated are also notable.

The evolution of fatwās shows that muftis align with maqāṣid (objectives) ᾽ijtihād against the majority when it strictly adheres to the literal text. Therefore, it is not appropriate to consider the council opinion as definitive, obligatory, or a recommended practice. It remains an opinion that might be favored or disregarded.

Fatwā issued by Dr. Khālid Naṣr