Tragically, many Muslims conflate iftāʾ and qaḍāʾ, and although each course of action establishes a religious verdict, different laws govern them. In this brief discourse, we will only explore some differences between them since highlighting the existence of one overlooked difference originating from their different laws of governance is the main objective.

Iftāʾ, often translated as seeking a fatwá or a religious verdict, can be defined as clarifying a religious non-binding verdict to the questioner. The clarification is called the fatwá, the questioner is called the mustaftī, the scholar issuing the verdict is called the muftī, and the verdict is described as being non-binding as the questioner is not obligated to follow it, although he should follow it since it is usually issued based on solid textual evidence.

The word iftāʾ and its derivatives appear in numerous texts. For example, Allāh said:

وَيَسْتَفْتُونَكَ فِي النِّسَاءِ ۖ قُلِ اللَّهُ يُفْتِيكُمْ فِيهِنَّ

“They question you [i.e. they seek a fatwá from you, O Prophet] regarding women. Say: ‘Allāh will instruct you regarding them.’”
[Al-Nisāʾ, 4:127]

Qaḍāʾ, sometimes translated as justice, can be defined as manifesting the islamic verdict of a situation to the involved parties. Therefore, qaḍāʾ seeks to terminate conflicts and end disputes between individuals unlike iftāʾ, as seen above, since iftāʾ’s objective is to clarify the truth in non-confrontational issues, like issues related to purification, worship and belief. The judge is called the qāḍī, the plaintiff is called the muddaʿī, the defendant is called the muddʿá ʿalay, and the qāḍī’s verdict is binding, which means it must be executed, unlike the mustaftī’s verdict. The word qaḍāʾ and its derivatives also appear in many texts. For instance, the Messenger (صلى الله عليه وسلم) said: “(Although) I am only a man, you refer your disputes to me; however, some of you may argue your case more eloquently than others, so if I pass judgement [i.e. do qaḍāʾ] favouring one of you against his brother’s rights, do not take it. It is a piece of the Fire that I am giving you.”¹

Listening to each person involved in the conflict also differentiates qaḍāʾ form iftāʾ; in fact, this is one of if not the most significant distinguishing factors between them. When a fatwá is sought, the questioner alone usually asks a muftī; however, when a resolution to a dispute is required, a judge—who is impartial—mediates between the involved members to resolve the conflict. The previous Ḥadīth suggests this as the Prophet’s statement: “You refer your disputes to me; however, some of you may argue your case more eloquently than others” suggests each person must be given the opportunity to present his argument as the Ḥadīth mentions that one party may be more eloquent than the other proving that all members involved in the conflict must present his version of the case to the same judge.

The Ḥadīth of ʿAbd al-Raḥmān ibn Abī Bakrah (رضي الله عنه) also support this as the expression “judge between two individuals” suggests all members must be included in the trial. ʿAbd al-Raḥmān ibn Abī Bakrah (رضي الله عنه) recalled the Prophet (صلى الله عليه وسلم) saying: “A judge must never judge between two individuals when he is angry.”²

The Ḥadīth of ʿAli ibn Abī Ṭālib (رضي الله عنه) is explicit. The Messenger (صلى الله عليه وسلم) said to him: “If two men approach you for judgement, do not rule in favour of one of them until you listen to what the other one has to say. You will (only) know then how to judge.”³

This means that each member of a conflict must present his version of the case to the same judge. Therefore, neighbourly altercations, marital spats, divorces, financial disputes, theft, murder, battery, and other types of conflicts must be resolved in the courtroom. As for each party going to a different individual seeking a fatwá—which is exceedingly common in this era, especially as it relates to marital spats and divorce—then this is a tremendous blunder. A fatwá is sought in this manner. As for disputes, they require a qāḍī’s judgement wherein all members must present their version of the case to him. Therefore, if a Muslim questions the validity of his marriage resulting from marital spats, both the husband and the wife must present their version of the case to a judge, who is usually the community leader or the imām of the community masjid for westerners. Many Muslim countries have special courts established to resolve marital conflicts; therefore, scholars who live there never issue verdicts in divorce related cases. They always refer the questioner to the judicial system. I myself, who have resided in Saudi Arabia for two decades, have witnessed this on countless occasions. I vividly recall numerous instances were Shaykh ʿAbd al-Muḥsin Al-ʿAbbād (حفظه الله) and Shaykh ʿAli Nāṣir Faqīhī (رحمه الله) were confronted with divorce related questions; however, they immediately referred the questioners to the judicial system. In fact, Shaykh ʿAli Nāṣir Faqīhī (رحمه الله) would occasionally point in the direction of the courthouse when referring some questioners to the judicial system.

Therefore, both the husband and the wife must present their own version of the case to a judge during divorce related issues, such as evaluating the validity of a marriage or assessing the possibility of taking back a wife after pronouncing divorce on her in a questionable manner. Seeking a fatwá or an islamic verdict in those circumstances is wrong since each individual must be present to defend themselves and to present their version of the case; otherwise, one individual will only be denying the other individual of their rights taking “a portion of the Fire that” was given to him.

The Ḥadīth of Abū Saʿīd (رضي الله عنه) further emphasises the obligation of the judge to listen to each member involved in a dispute, for Ṣafwān’s wife unintentionally misrepresented her situation forcing the Prophet (صلى الله عليه وسلم) to verify her account of the events form Ṣafwān (رضي الله عنه) himself who happened to be present in the gathering when she approached the Messenger (صلى الله عليه وسلم). Abū Saʿīd (رضي الله عنه) relayed:

A woman came to the Prophet (صلى الله عليه وسلم) while we were with him. She said: “Allāh’s Messenger, my husband—Ṣafwān ibn al-Muʿaṭṭal—beats me for praying, makes me break my fast, and does not offer the dawn prayer until sunrise.” The Prophet (صلى الله عليه وسلم) asked Ṣafwān, who was present, about her (accusations). Ṣafwān replied: “Allāh’s Messenger, as for her statement: ‘he beats me for praying,’ she recites two chapters (during the prayer), and I prohibited her (from doing that).” The Prophet (صلى الله عليه وسلم) said: “Reciting one surah (during the prayer) suffices.”

(Ṣafwān continued:) “Regarding her statement: ‘he makes me break my fast,’ she loves fasting; however, I am a young man, so I cannot restrain myself.” Allāh’s Messenger (صلى الله عليه وسلم) said: “A woman should only fast [i.e. an optional fast] after seeking her husband’s permission.”

(Ṣafwān continued:) “As for her statement: ‘I do not pray (the dawn prayer) until sunrise,’ we are a people who suffer from this, and this is already known about us.” Allāh’s Messenger (صلى الله عليه وسلم) said: “When you awake, offer your prayer.”⁴

Although the approach Ṣafwān’s wife took was wrong since she attempted to resolve this conflict publicly rather than attempting to resolve it privately, this Ḥadīth proves that a judge is obligated to listen to each individual’s version of the case in a dispute before attempting to resolve it.

Similarly, it is wrong if only one individual involved in a dispute, especially marital disputes, calls a scholar or even worse, texts him to present his version of the situation alone. Regrettably, this practice has become conventional, even though it is wrong and only causes more problems.

The Ḥadīth of Hind (رضي الله عنها) may seem to contradict this; however, if the Prophet (صلى الله عليه وسلم) was issuing a judgment, he would have summoned her husband, but he did not do so making his response a fatwá.

ʿĀʾishah (رضي الله عنها) reported:

Hind bint ʿUtbah (رضي الله عنها) said: “O Allah’s Messenger (صلى الله عليه وسلم)! Abū Sufiyān (رضي الله عنه) is a miser, so he does not give my children and I sufficient money. Can I take from his property without his knowledge?” The Prophet (صلى الله عليه وسلم) said: “Take the customary amount of money required to satisfy you and your children’s (needs).”⁵

Al-Nawawī (d. 676 AH, رحمه الله) made this very argument⁶ since some scholars dispute the nature of the Messenger’s response in the Ḥadīth of Hind (رضي الله عنها), and Shaykh Al-ʿUthaymīn’s statement supports it. He said: “The Prophet (صلى الله عليه وسلم) did not summon Abū Sufiyān (رضي الله عنه), nor did he ask Hind (رضي الله عنها) to provide any evidence (for her claim), so this is a fatwá.”⁷

Therefore, every individual involved in a conflict, especially marital conflicts, must present their version of the case to the same judge which means excluding anyone is wrong, and any verdict resulting from this exclusion is unreliable.

Endnotes:

[1] Reported by Al-Bukhārī (6967) and (7168) with this wording.
[2] Reported by Al-Bukhārī (7158) and Muslim (1717), and this is Al-Bukhārī’s wording.
[3] Reported by Aḥmad ((1210) and (1284)) and Al-Tirmidhī (1331), and Shaykh Al-Albānī and Shaykh Aḥmad Shākir deemed it authentic.
[4] Reported by Abū Dāwūd (2459), and Shaykh Al-Albānī authenticated it.
[5] Reported by Al-Bukhārī ((2211), (5364) and (7180)) and Muslim (1714).
[6] See Ṣharḥ Ṣaḥīḥ Muslim, vol. 12, pg. 8.
[7] Sharḥ Kitāb al-Fitan-Ṣaḥīḥ Al-Bukhārī, 7A.