By Mohammad Yunus, New Age Islam
Co-author (Jointly with Ashfaque Ullah Syed), Essential Message of Islam, Amana Publications, USA, 2009
6 Dec 2012
Scholastic methodology of the Fatwa
The Fatwa is based on the standard juristic methodology of quoting a related, obliquely related, generic or even unrelated Qur'anic verse and then tabling the opinions of different scholars /theologians (ulama/Imams) to connect the quoted verse with the theme of the fatwa through a scholastic method of deduction. Accordingly, it (Part-1) tables just a few verses/ passages (notably 2:194, 16:126-128 and 42:39-42) on like for like defensive or punitive measure in warfare as the nucleus of its arguments. The Prophet is quoted both to support and refute the authorization of mutilation of corpses in the battlefield as like for like retaliation for the reported mutilation of some of the martyrs of Islam in the battlefield of Uhud (624 CE). There is no reference to this reportedly barbaric action by the Quraish (the enemy army) in the Qur'an; it was never authorized or practiced in the entire history of Islam, and it has no relevance whatsoever to the theme of the Fatwa. However, it is mentioned repeatedly, sometimes with graphic and revolting details, conceivably to mentally condition the reader to accept the relatively softer theme of the Fatwa. The Fatwa is based entirely on the past fatwas and consensus of the imams and theologians (ijma).
Fundamental Truths and Terms of Reference.
Before proceeding to refute the Fatwa statement-by-statement, it is essential to bring across a number of fundamental points that no scholar of Islam who believes in the divinity of the Qur'an as a completed and perfected book (5:3) can contest.
I. The Qur'an claims to be a writ (book) of wisdom (10:1, 31:2, 43:4, 44:4) that is made clear and distinct with all kinds of illustrations (12:1, 15:1, 16:64, 26:2, 27:1, 36:9, 43:2, 44:2). It commands humanity to probe its verses (38:29, 47:2), focus on its clearly stated verses (3:7) and seek the best meaning in it (39:18, 39:55). Therefore the Qur'an and Qur'an alone is the final authority for supporting a fatwa that could be binding on the community for all times.
II. Fatwas issued by the scholars/ imams of Islam, no matter how distinguished, pious and respected they were in their era, were inevitably informed by the historical realities and challenges of the era; their validity for later dates as 'religious edicts' can only be contingent to their compatibility with the Qur'anic message.
III. The 'fatwas' and reports of the past scholars as we have in our hands, including that of Ibn Taimiyya, a great scholar and Imam of Islam cannot be taken on the face value as they may have been corrupted due to unwitting printing or transmission error or to meet the political needs and challenges of times and the machinations of the bigot. Even if they are preserved uncorrupted, they must be viewed against the historical realities of their era and relative to the codes and canons of rival civilizations of their times.
IV. The Classical Islamic Law admits of the contemporaneous validity of the consensus (ijma) of ulama and imams and holds that the consensus reached in any generation is not necessarily valid in the next generation. As juristic tool, it (consensus of scholars/ulama) has always remained problematic and remains a complicated issue to this day. As Ahmad Hasan observes, 'the classical theory of ijma was not recognized in full even during its formative period. Because of its purely theoretical nature and perhaps for want of some definite practicable machinery, it could not be utilized to reform the Muslim society 
V. The early compilers of the ahadith (sing. hadith) - the Prophet's reported sayings, notably Imam al-Bukhari and Imam Muslim had warned about massive presence of historically unreliable (weak) reports in their compilations. Therefore, any statement or account that is in conflict with the letter and spirit of the Qur'an must be treated as forged and fabricated or specific to a context/ the era. Therefore no clear and fully illustrated pronouncement or principle of the Qur'an can be over-ruled or speculatively interpreted on the strength of any hadith.
VI. The Qur'an calls for use of reason (aql), reflection (fikr), logical thinking (fiqh) as well as mutual mutual consultation as long as consensus does not conduce to grave sins and abominations such as gross injustice to the weak (42:37/38). The spirit of upholding universal justice is reinforced by the Qur'an's categorization of justice as a harrama or binding instruction (6:152) that must be upheld justly (4:58), even if a matter concerns "yourselves" (ones own self), (your) parents or relatives, the rich, the poor (4:135) or those against whom you nurture any hatred (5:8).
VII. The Qur'an abolished the notion of collective and arbitrary punishment - killing any person (a man, a woman or a slave) of a tribe to retaliate the killing of its corresponding member by any person of that tribe. Its verse on retributive justice spelled out the tribal notion of like for like compensation for loss of life but concluded with a somewhat mandatory law of monetary compensation (2:178).
VIII. Scholars agree that the work of Ibn Hisham, compiled about two hundred years after the Prophet's death, which with time became the primary source material on the Prophet's life cannot be treated as an authentic historical record - at best it is an embellished history . Therefore any of its statement or episode or Prophetic quotation that contradict the Qur'anic evidence must be treated as apocryphal.
IX. Even from a purely secular perspective, the Qur'an having been recited in bits and pieces, recorded and memorized at the same historical point "does provide a firm basis of undoubted authenticity" . Thus, any speculative, intuitive, reflective or orally narrated interpretation of any of its verses as reported in the traditions or the works of Ibn Ishaq, Ibn Hisham and later historians can only be accepted if they are consistent with the Qur'anic records - however sketchy or fleeting, and must be rejected otherwise.
Statement-by-Statement Scrutiny and Refutation of the Fatwa
As six parts of the fatwa have already been issued, and each part contains a set of arguments supporting the fatwa, this refutation is framed in correspondingly six parts as any attempt at consolidation will have to omit some parts of this exhaustive fatwa and will thus be liable to be dismissed or regarded incomplete. This discourse relates to Part-1 of the Fatwa. For the sake of argument and ease of understanding the Fatwa is broken down into its components and each component, shown below within inverted comas is refuted (or shown to be irrelevant or self contradictory) one by one.
1. "The truth is the innocence of these people (killed in 9/11) is not absolute. There are circumstances in which killing them is justified whether intentionally or unintentionally."
Refutation: The statement purports to define 'innocence' in a relative manner to suggest that the civilians killed in 9/11 attacks shared the guilt, and deserved to be killed. This notion negates the principle of universal justice as enjoined by the Qur'an (VI above).
2. "If the infidels kill Muslim women, children and the elderly, meting out the same treatment to the infidels is justified."
Refutation: The statement draws on the pre-Islamic tribal custom of blood vendetta (VII above) that the Qur'an abolished by its emphasis on justice (VI above). The Qur'anic message does not admit of such arbitrary retaliation. Accordingly, during the armed encounters of the revelation, the Qur'an forbade the Muslims to show any hostility to the civilians among their enemies and to reach them to places of safety (9:6). It also testifies that during the integration of Mecca 'God withheld the hands of the Muslims from the Meccans" (48:24). Bearing in mind the Meccans had brutalized and killed numerous of the Prophet's followers in the preceding 20 years, this Qur'anic enunciation demonstrates its spirit of exempting the common civilians from any collective retaliatory punishment. Hence the above declaration stands in stark contradiction to the Qur'anic message.
3. The fatwa quotes Qur'anic verse: "The sacred month is for the sacred month, and for the prohibited things, there is the Law of Equality (Qisas). Then whoever transgresses the prohibition against you, you transgress likewise against him. And fear Allah, and know that Allah is with Al-Muttaqun. “(Al Baqra: 194).
Refutation: The verse merely authorizes the Prophet's followers to fight back if they are attacked in the four months of truce that gave the otherwise perennially warring tribes an opportunity to engage in trade and commerce and live in peace. It has no relevance to the fatwa.
4. The Fatwa quotes the following Qur'anic passages and acknowledges the "general circumstances and the context of their revelation."
“And those who, when an oppressive wrong is done to them, they take revenge. The recompense for an evil is an evil like thereof, but whoever forgives and makes reconciliation, his reward is due from Allah. Verily, He likes not the Zalimun (oppressors, polytheists, and wrong-doers, etc.). And indeed whosoever takes revenge after he has suffered wrong, for such there is no way (of blame) against them. The way (of blame) is only against those who oppress men and wrongly rebel in the earth, for such there will be a painful torment.” (Ash Shoora - 42:39-42)
“And if you punish (your enemy, O you believers in the Oneness of Allah), then punish them with the like of that with which you were afflicted. But if you endure patiently, verily, it is better for As-Sabirin (the patient ones, etc.). And endure you patiently (O Muhammad), your patience is not but from Allah. And grieve not over them (polytheists and pagans, etc.), and be not distressed because of what they plot. Truly, Allah is with those who fear Him (keep their duty unto Him), and those who are Muhsinun”. (Al Nahl - 16:126-128).
Refutation: These generic passages of the Qur'an have no relevance to the Fatwa. Besides, their translation is distorted and gives a harsher shade of meaning to the Arabic word 'yantaserun' (rendered as taking revenge), the Qur'an connotes with 'helping' out oneself or someone in need of help" ["Iza jaa nasrullah = When God's help arrives (110:1)]. The exhortation to forgiveness and reconciliation in the passage 42:39-42 above, and the emphasis on enduring an affliction in patience in Al-Nahl - 16:126-128 points to a softer response to an oppression, so as not to be excessive in response. It does not support - rather, it purports to negate the theme of the Fatwa.
5. The Fatwa attempts to render its acknowledged "general circumstances and the context of the revelation" of the 4-above quoted passages from Sura Al-Nahl into "specific for special circumstances" by re-quoting the opening verse of the passage Al Nahl - 16:126 already quoted above.
It then tables four layers of arguments, the first one (i below) connecting the verse with a totally unrelated issue based on traditional reports of which there is no trace of evidence in the Qur'an, and the following three (ii, iii, iv) drawing on the first unrelated argument - as summarily captured below
i) the reported mutilation of the corpses some Muslim martyrs at the battlefield of Uhd.
ii) quotes the Prophet as saying on the occasion of the fall of Makkah to “Abstain from the killing of the whole community except killing four people.”
iii) quotes from the work of the Ibn Hisham (VIII above) - an embellished record of the Prophetic mission to suggest the Prophet's approval of mutilating the corpses of a limited number (30) of his enemies in his next victory.
iv) restates the Prophet's determination to resort to the mutilation of the bodies of the Quraish and quotes Ibn Ishaq as saying that he heard the report from "a person whom I can never call a liar."
Refutation. Even if the traditional report on the mutilation by the enemies of Islam was correct, any suggestion of the Prophet approving it blatantly contradicts the Qur'anic historically authentic records that project the Prophet as a man of exemplary conduct and behavior (30:21), mild to his men even after their lapses in Uhud expedition (3:159), forgiving to those who refused to take part in Tabuk expedition (9:43), and who prayed for the forgiveness of his enemies (9:80/84/113) - a man whom the Qur'an describes as 'endowed with a sublime character' (68:4), and 'unshakeable stability; (17:74), faithful to his trust (al-amin, 81:21), and (a manifestation of God’s) mercy to the believers (9:61), and to all humanity (21:107).
6. The Fatwa again mixes up the word of God (the Qur'an) with Ibn Hisham's embellished historical account (Sira) (having done so under 5 iii above) and dwells on mutilation of the corpse of the Muslim martyrs in the Uhud battlefield - a gory account that has absolutely no relevance to the Fatwa and then concludes by re-quoting the already repeatedly quoted verse (4, 5 above) from Sura Al-Nahl (16:126-127).
Refutation: By any stretch of imagination the passage 16:126-127 does not support the fatwa. As discussed under Refutation, point 4 above, the passage purports to refute the Fatwa
7. The Fatwa then quotes Ibn-e-Abi Sheba and on the issue of mutilation of the corpses of Muslim martyrs on the battlefield of Uhud not mentioned in the Qur'an and quotes the Prophet as saying:” If God gives us victory over the infidels, we shall do the same to them” and describes this alleged statement as the cause of the revelation of the verse Al-Nahl - 16:126 for like for like retribution, which it quotes in full once again, having already quoted it three times (Points 4, 5 and 6). But in the very next sentence it quotes Abdullah bin Yazid that” The holy prophet (PBUH) has forbidden looting and maslah (mutilation of corpses)."
Refutation: The two statements attributed to the Prophet are self contradictory: the first statement conveys his intention to take like for like revenge for mutilation of corpse thus providing the historical setting for the revelation of the verse of Surah Al-Nahl, 16:126 and then he himself forbids it. This is a bizarre and untenable argument.
8. The Fatwa then quotes Ibn-e-Hajar giving a graphic description of mutilation of corpses leading to and following by a reported statement of the Prophet that forbids mutilation of corpses but allows killing of all category of civilians except the new born babies.
Refutation: i) the Fatwa once again refutes the validity of mutilation of corpses from the mouth of the Prophet, having done so earlier (7 above). Thus, there was absolutely no need to or relevance of raising the issue of mutilation and the accompanied gory and revolting account for the Mutilation of corpses that was perpetrated by the Prophet's enemy in the battlefield and of which there is no incidence in Islamic history and no relevance whatsoever to the theme.
ii) Any instruction by the Prophet to his followers to kill men, women and children contradicts the Qur'an's forbiddance to show any hostility to the civilians among their enemies and to reach them to places of safety (9:6).
9. Finally, despite dismissing the lawfulness of mutilation (Refutation i under 8 above), the Fatwa purports to approve it as like for like retaliation, but corrects itself with the statement: "it is better for the Muslims not to resort to maslah (mutilation of corpses of the enemy in the battlefield) and observe restraint" as God has enjoined restraint on the Prophet.
The above conclusive statement has absolutely no relevance with the fatwa. As mutilation of corpses of the enemy is no less abominable than killing unsuspecting innocent civilians by burying them alive at peacetime without any warning whatsoever, the discourse so far argues against its own theme.
To remain on the safe side, the Fatwa concludes with the following Qur'anic enunciations:
“Observe restraint, and your restraint is with the help of God”.
And God mentions the benefits of restraint to the mumineen saying, “If you observe restraint, it is good for you.”
SUMMING UP: Each of the nine listed components of the Part-1 of the Fatwa has been refuted convincingly one by one. Hence the Part-1 of the Fatwa stands refuted
As a Muslim, a witness to humanity who is commanded to bid to the good and restrain the evil, it is the duty of this writer to raise a loud voice of alarm. Alternate reference to the Qur'anic verses on restraint and defensive warfare with verbal reports by different theological leaders (Imams) and ulama about mutilation of Muslim martyrs and graphic details of the latter is conceivably tailored to indoctrinate the target reader with a sadistic, barbaric and ferocious mindset that will readily accept an exhaustive fatwa on the justification of mass killing of innocent men, women and children including the 9/11 attacks on its face value. A deadly spiritual potion is thus being brewed under the cloak of a fatwa which contradicts the Qur'an on many counts, is self contradictory, bizarre and untenable on others, suicidal for Islam and the broader Muslim community and a grave threat to human civilization.
1. Ahmad Hassan, The Doctrine of Ijma in Islam, New Delhi 1992, p. 259].
2. The Classical Biography (Sira) Of the Prophet Is More of a Story than a Historical Record – It Is a Highly Embellished History
3. Maxime Rodinson, Muhammad, English translation, 2nd Edition, London, 1996, p.x, Foreword
Refutation Of Sheikh Yousuf Al-Abeeri's Fatwa Appearing In English Translation In New Age Islam Website Supporting Wanton Killing Of Innocent Civilians Under Special Circumstances And Thus Justifying The 9/11 Attacks - Part-4.
Muhammad Yunus, a Chemical Engineering graduate from Indian Institute of Technology, and a retired corporate executive has been engaged in an in-depth study of the Qur’an since early 90’s, focusing on its core message. He has co-authored the referred exegetic work, which received the approval of al-Azhar al-Sharif, Cairo in 2002, and following restructuring and refinement was endorsed and authenticated by Dr. Khaled Abou El Fadl of UCLA, and published by Amana Publications, Maryland, USA, 2009.