Fatwa: The Evolution Of An Islamic Legal Practice And Its Influence On .

xiiINTRODUCTIONMy investigation examines the transformation of Islamic legal discourse and theimpact of that discourse on Muslim society. More particularly, it analyzes fatwas over thecourse of Muslim history so as to determine how this legal mechanism was instrumentalin the making and remaking of Islamic law and society. A fatwa is an Islamic legal edicton new issues that confront Muslim society. This activity dates back from the veryinception of the Islamic social order, as we will come to find out in the upcomingchapters. Yet despite its early origins, fatwa was integral to shaping the Islamic legaltradition over the ages and continues to be a legal product that is shaping contemporaryIslamic law. This dissertation will examine the evolution of this legal practice.Historically speaking, substantive aspects of Islamic law developed out of thematerial of fatwas. This is because fatwas are the ‘atomic’ components of this law andhence they tell us a lot about its anatomy. In the very early stages of Islamic history therewere no codified laws to guide people in their religious and social concerns, but themanner in which Muslims received guidance with regards to their religious practice wasthat they posed their concerns to early proto-jurists in the form of religio-legal questions(istifta’), which these proto-jurists addressed in the form of fatwas. Out of the criticalmass of these fatwas, Islamic legal manuals began to be compiled and a definitive corpusof Islamic law came into being.Essentially, my investigation looks at the development and continuing evolutionof Islamic law through lens of this particular legal practice, issuance of fatwas. Byexamining fatwas in different periods of Islamic history from the beginning until today, Ichart the transformations that take place in the Islamic legal tradition(s) as a result of the

xiiiencounter with changing socio-historical conditions. More particularly, my analysisdraws attention to the way in which legal practices amongst jurists created discursiveshifts to established norms within Islamic legal discourse and how these discursive shiftscontributed to the evolution of Islamic law.Moreover, by looking at the development of Islamic legal tradition through thelens of fatwas we get a sense of how the internal dynamics of the religion of Islam led tothis legal formation. Western scholarship has emphasized the foreign elements that havecontributed to the rise of Islamic law, but have given very little attention to the origins ofthe law and the legal tradition from the discursive and social roots of the religion itself.This is not to say that external factors did not contribute to this legal framework or thatthe practice of fatwa making was the only contributing factor, but it is important tounderstand the dynamics of these developments from the internal sources of the religionas well. This work seeks to fill that lacuna.On the other hand, this investigation not only seeks to map the transformationwhich have occurred in the Islamic legal discourse and tradition through the examinationof its elemental components of fatwas, but also seeks to assess the impact that thisdiscursive legal practice on the history of Islamic Civilization. There is a reciprocalrelationship between fatwas and social change in Muslim society because fatwas havetheir origin in the social and religious issues that have arisen in Muslim society, sincethey are legal responses to those issues. So, they play the role of indicators of socialchange as they are a legal representation of that change. On the other hand, since they arelegal responses to social changes, they either facilitate those changes by legitimatingthem or hinder the establishment of those changes by branding them illegitimate.

xivIn addition, fatwas have their origin in civil society because of their dialogicalcharacter. This is because they are a social exchanges between the public and the muftiwho legally responds to the public’s concerns. Although it is not an exchange betweenthose of equal social status, the process of seeking a fatwa is nonetheless is a dialogicalactivity which stems from the concerns of the Muslim public and thus this process isspurred from factors in the social environment. We will see later how this peculiarcharacter of fatwa is embedded in the discursive sources of Islam which encouraged itsdialogical form.Before proceeding with an outline of the topics that are addressed in this inquiry, Iwould like to say a few words about the historical materials used in the first threechapters of my research. Modern Western historical scholarship has problematized manyof the historical reports about the first two hundred years of Islam claiming that suchreports are not authentic reflections of the actual events that took place. This assertionposes a problem for anyone who seeks to make historical claims about the early period ofIslam. On the other hand, more recent voices in Western historical criticism have come toquestion the categorical nature of this assertion that has dominated western circles ofscholarship for much of the 20th century.For instance, the work of the German hadith critic Harold Motzki, entitled TheOrigins of Islamic Jurisprudence,1 was an extensive study on certain sections of theMusanaf of Abdul Razaq al-San‘ani (d. 211 AH), a collection containing opinions aboutIslamic religious practice from religious figures in the first two centuries of Islam. AfterAlso see Motzki’s more recent work Analysing Muslim Traditions: Studies in legal, Exegetical andMaghazi Hadith, pg. 3, where he critiques some of Schacht’s assertions about the inauthenticity of earlyIslamic traditions.1

xvanalyzing the opinions (i.e. fatwas) of religious figures dating from the late first and earlysecond century of Islam, Motzki argues persuasively that the reported legal opinionsfound in this work can be safely dated to that period. Gregor Schoeler is another westernscholar whose works have also questioned the prevailing Western assumptions about thehistoricity of early Islam.2The new developments in Western historical criticism create room for researchersto make claims about the early Islamic period with some confidence. Yet whether youbelieve that the historical reports about early Islam, which are used in the initial part ofthis study, are authentic or not does not take away from what this study seeks toaccomplish. What matters most for this investigation is that those who constructed theIslamic legal tradition believed that such reports were accurate and consciously appealedto these representations when forming this tradition. With this in mind, the debate withinWestern historical scholarship about the historicity of early Islam will not be of concernto this investigation, as my main concern is the construction of a legal tradition regardlessof whether the historical information used in that construction was authentic, from thewestern point of view, or not.With this prelude, the following paragraphs contain a synopsis of the chapters ofthis dissertation so the reader is primed to the issues that will be addressed in eachchapter. The first chapter deals with the substantive origins of Islamic law and how itdiffers from other legal systems. There is a preliminary discussion of the epistemologicaland normative basis of Islamic law since Islamic law is anchored in a theological andethical understanding of reality and not in state power. I go on to trace the changes thatFor example, see his works The Biography of Muhammad: Nature and Authenticity and The Oral andWritten in Early Islam.2

xvithe Qur’anic discourse introduced to seventh century Arabian society both on aconceptual and practical level as a prerequisite to understanding the establishment of theIslamic legal tradition in general and the practice of fatwa in particular. The purpose ofthis chapter is to lay the conceptual framework and the social context for the formation ofan Islamic legal culture.In chapter two, I examine the discursive origins of fatwa by examining the fatwasduring the period of prophecy. My argument here, is that the process of ifta’ (i.e. fatwaproduction) is fundamentally a dialogical activity that has its discursive roots in thedialogical manner by which both the Qur’an and prophet engaged early Muslimadherents. Then I look at some of the fatwas in the post prophetic period, where the earlyMuslim community faced new socio-political challenges and how Muslims resorted toactivity of ifta’ as a socio-legal mechanism for resolving there problems. In theirresolutions to these problems, I show that early Muslims employed various approaches ofscriptural hermeneutics and legal reasoning that would later become standardized legalprecepts in Islamic legal methodology and theory.Chapter three analyzes fatwas from the late first century and second century ofIslam for the sake of discovering the defining features of the fatwa tradition. Here I showhow fatwas became the vehicle by which the Qur’anic ethico-legal norms becomeactualized in socio-historical context of Islam. I show how the Islamic legal norms andinjunctions that were promulgated by the Qur’anic discourse and prophetic practicebecame interpreted, applied and re-interpreted in various historical and cultural contextsthrough the process of ‘ifta. The forms legal reasoning and the interpretive devicesemployed in these fatwas became the basis of an Islamic legal discourse.

xviiChapter four discusses the emergence of a distinct Islamic legal tradition in thethird/ninth through fifth/eleventh centuries AH/CE. I do this by charting the formation ofIslamic legal theory and Islamic legal doctrines/schools and show how the substantiveand formal roots of these disciplines and institutions emerged from the fatwas of previousgenerations of Muslim jurists. Moreover, I spell out the dialectical relationship thatdeveloped between the activity of ifta’ and these new legal formations. Past legalpractices played a very determinative role in the formation of the Islamic legal tradition. Idescribe the nature of the relationship of the past to the Islamic legal tradition by lookingat the ideas and institutions that came to embody that tradition and how these ideas andpractices were a direct product of the fatwas of past jurists whose legal pronouncementsinformed the content of Islamic legal doctrines developed in subsequent centuries.Chapter five I show that the establishment and maturation of Islamic legal schools(i.e. madhabs) and the legal doctrines that define them, led to a structuring of the processof ifta’ where this activity became governed by a set of discursive rules and proceduresthat contributed to the greater formalization of this legal practice. Muslim jurists withineach school now began to lay down rules on how fatwas were to be issued within theconfines of the legal doctrines of those schools. So as to understand the form that fatwastake in the post-classical period of Islam, I delineate those discursive rules for fatwaproduction as found in what is known as adab al-fatwa (i.e. the etiquette of fatwa)literature.I use chapter six to illustrate more concretely how the discursive rules of fatwa,which were defined in the previous chapter, were applied in actual fatwas of the periodbetween 1100 CE and 1900 CE. This was the period when legal schools/doctrines

xviii(madhabs) and legal theory (usul al-fiqh) were fully established and firmly rooted inIslamic legal practice in ways that they exerted the most influence on Islamic legalproduction. The manner in which I accomplished this task is by sampling and analyzingfatwas from this period. In my selection of fatwas I choose representative samples ofmajor fatwas so as to show the nature of the activity of ifta’ during this era and how thisactivity had been transformed since the classical age of fatwa. Moreover, this chapterdemonstrates how fatwas helped Muslim society keep pace with social change bymodifying the legal corpus that governed it.The seventh and final chapter, is concerned with outlining the historical effectsthat European colonialism had on Muslim society and law in the nineteenth and twentiethcenturies. The intellectual challenge posed by Western modernity on established Muslimideas and institutions had a seriously destabilizing outcome. I document the impact ofmodernity on Muslim thought and society, focusing on the challenges presented toIslamic legal institutions and how these challenges effected the Islamic legal discourse inthe colonial period. After presenting this historical foundation, I gauge the impact ofmodernity on the postcolonial Islamic legal discourse by analyzing fatwas produced bythe International Islamic Fiqh Academy of the Organization for Islamic Cooperation. Thepurpose of this analysis is to assess how Islamic law and legal institutions are negotiatingthe challenges of modernity through the use of traditional legal practices such as fatwa aswell as gauging the extent to which new approaches to legal reasoning representsubstantive transformation in Islamic legal discourse and practice.Ultimately, the primary question that my dissertation seeks to address is how thelegal practice of issuing fatwas (‘ifta) played an influential role the in evolution of a

xixpeculiar legal tradition. Moreover, this investigation sheds some light on how thispractice was a social instrument that facilitated the formation of an Islamic society thatwas centered on legal norms and how this practice allowed those legal norms to adapt tosocio-historical changes over time. So, fatwas in a way are a discursive barometer tomeasure change and continuity in Islamic civilization.Before I begin this investigation, I want to define my understanding of whatconstitutes a fatwa for the purpose of this study. I define a fatwa as any statement, oral orwritten, that establishes the legitimacy or lack thereof of an action or position, and ispronounced by someone who is vested with legal authority whether the origins of thatauthority lay in political institutions or the religious and social sphere. In delineatingfatwas in this way, I exclude most juridical decisions (qada’) from being fatwas becausethese verdicts did not necessarily establish the legitimacy of human actions, at least in thehistory of Islamic law. In most cases these decisions merely adjudicated whether thoseactions were within the bounds of the established norms. At the same time, fatwas aredifferent from court decisions because they are not inherently political act as they werenot backed by state sanction as in the case of juridical verdicts.Moreover, given this definition of a fatwa, I take the statements of early Muslimjurists as fatwas even when we do not always know the social circumstances that broughtabout their pronouncements. This is because their statements that carried legalimplications were not binding during their lifetime in the same way they came to bereligiously binding when later generations of legal specialists selected some of thoseopinions to be especially authoritative. Even when some of the pronouncements of thisearly jurists made their way into the body of Islamic law that came to be known as fiqh,

xxat the time that these legal statements were made they functioned like fatwas in the sensethat they were legal responses to religious issues that were of concern to Muslim society.Hence, I use such statements in my work as fatwas. Furthermore, this definition of afatwa includes short treatises that were written by later legal authorities that respond tonew issues that arose in Muslim society even though we do not have the specificquestions that were posed to them, which generated their response.

1CHAPTER 1THE QUR’AN AND THE FORMATION OF AN ISLAMIC LEGAL CULTURE.Introduction:As Islamic law, most broadly, is the subject of this investigation, it is important torecognize how the formation and structure of this law differs from other legal systems. Sothis first chapter is a preliminary discussion of the epistemological and normative basis ofIslamic law as an antecedent to understanding the role that fatwas played in developingthat law. This prelude is important because the immediate social environment for whichIslam was revealed was not a legal culture that would have supported the development ofa legal system. Hence, some very fundamental transformations had to take place on aconceptual and cultural level before an Islamic legal system could evolve and the legalpractice of fatwa, which would give shape to this system, could take root. This chapter isvery much about that religio-cultural transformation that takes place in seventh centuryArabian society.Moreover, these socio-historical changes are interconnected to the peculiarities ofIslamic legal system. A peculiar feature of Islamic law is that it has its roots in particulardiscourse and set of discursive practices; thus it behooves us to explore that discursiveformation in some detail before diving into the main subject of fatwas so we canunderstand the peculiarities of this legal practice and how it fits in the entire Islamic legalscheme. The particular discourse and discursive practices I am referring to are theQur’an, the sacred text of Islam, and the reported practice of the Prophet Muhammad.More particularly, I allege that these texts are not only discourses in the normal linguisticsense, but are discursive formations in the Foucauldian sense. But in what ways can the

2Qur’an, for example, be said to represent a Foucauldian discourse? If I take Foucault'snotion of discourse to mean: “a systematic and relational sequence of meaningfulstatements .that influence practices and give expression to values, behavior, andworldviews of social groups,” 1 then the Qur’an can certainly meet this definition ofdiscourse in several ways.First, although the Qur’an is considered a text and texts do not necessarilycorrespond to discourses, yet at times both text and discourse are used interchangeablywhere text is considered the material product of the communicative process of discourse.2Moreover, the manner of revelation of the Qur’anic text in many way

Essentially, my investigation looks at the development and continuing evolution of Islamic law through lens of a particular legal practice: issuance of fatwas. By examining fatwas in different periods of Islamic history from the beginning until today, I chart the transformations that take place in Islamic legal tradition(s) as a result of the