By Sidin Vadukut
Mar 17 2017
Islamic law has roots that stretch back to
the life of Prophet Muhammad himself. And that is because the Quran is the
wellspring, the source-text, the revelation, the received wisdom from which
Islamic law and legal traditions draw their primary inspirations. However,
while millions of Muslims have drawn, and will continue to draw, inspiration
and guidance for their lives from the Quran, the holy book is not particularly
dense with legal detail. Of the 114 chapters and around 6,000 verses that make
up the Quran, Abdullahi Ahmed An-Na’im reports a scholarly consensus that
around 500-600 verses are of a legal nature. From these, take out the verses
pertaining to rituals of worship, and the scholar of Islamic law, Anver M.
Emon, reckons that there are only 80 verses “that deal with legal matters in a
This paucity of legal content meant that
early Muslims who sought to draw out a comprehensive legal system that was
adequately ‘Islamic’ had to depend on more than just the Quran as a source
text. Thus, by the 9th century, 200 years or so after the death of the Prophet,
scholars began to draw up authoritative lists of Ahadith: These were traditions
or statements about the Prophet’s life, his sayings and his habits that could
serve as a second primary source of legal insight.
But as you can imagine, these throw up a
huge problem of authentication. How can we know whether a particular tradition
attributed to the Prophet is authentic or not? The original solution to this
problem can be seen in the Ahadith themselves. Each Hadith consists of two
parts, the Matan, or the content itself, and the Isnad, or the chain of
people who transmitted this tradition orally from generation to generation.
Islamic scholars of the ninth century and afterwards carried out rigorous
attempts to authenticate these Ahadith in different ways.
Yet the authenticity of the Ahadith has
remained a point of contention for centuries. There are some scholars who
believe that Ahadith are complete fabrications while others, such as Fazlur
Rahman Malik, believe that at least some Ahadith were drawn up to conveniently
solve contemporary problems faced by early Islamic authority. Their functions
were, Rahman writes, “not so much history-writing but history-making”.
Thus, from this very early period of
Islamic history a thousand years ago, we can begin to see disagreements about
what constitutes not just the laws governing Islamic lifestyles, but their very
basis. What follows in the centuries after is a long, complex and fascinating history
of legal scholarship, disputation, institution building, reform and
counter-reform. Indeed, to this day, we can still trace some of the earliest
disputes over Islamic law in the various groups that have been called
‘Quranists’—groups that reject the Ahadith and consider the Quran the sole
source of Islamic legal inspiration.
This roiling pot of legal debate and
dispute soon led to an abundance of schools of Islamic legal thought. Each of
these schools developed their own Fiqh, or legal doctrines. Over time, these
schools consolidated into a handful. In 2005, Islamic scholars all over the
world signed the Amman Message, recognizing eight official schools of Islamic
law: four Sunni, two Shia, Zahiri and Ibadi (the school most associated with
India and South Asia is the Hanafi school).
And while all this was going on, Islamic
law itself was, and still is, constantly trying to keep up with changing
politics, lifestyles and technologies. Especially in the earliest centuries,
when the Islamic world was essentially making up a legal system in an
environment of constant change, whilst also creating institutions to deal with
dispute. By the 10th century or so, four offices had been set up to govern the
lives of Muslims: the Qazi or judge, the mufti or legal scholar, the Muhtasib
or market inspector, and the Muwwaththiq or notary.
Suppose that you are a citizen in Abbasid
Baghdad and you wish to get a ruling from a Qazi on an issue in which there is
no precedent to be found in the Quran, Ahadith, Fiqhs or elsewhere (given the
history outlined above, you can see how this could happen frequently). How do
you bolster your case?
One method was to find a mufti who was
sympathetic to your cause, present your case to him in a suitably ‘theoretical’
way—“So I have a friend who did some insider trading…”—and then ask the mufti
his legal opinion. The mufti would pass his learned non-binding legal opinion
on the ‘scenario’. You would then take this opinion, or fatwa, and submit it to
the Qazi for consideration. The qadi was then free to take the fatwa into
account or ignore it if he wished. In fact, he may have had to deal with more
than one fatwa from all the parties involved. Applicants often went around to
multiple muftis till they got a fatwa they liked, a practice now known as fatwa
shopping with the rise of online muftis.
The origins of the fatwa lie in this
frenetic history of early Islam, when the law had more questions than answers.
It was nothing more than the learned opinion of a legal scholar on a matter of
dispute that was presented in court. Then, as now, Fatwas have rarely been
binding on anybody, simply because it is not automatically a legal ruling (not
even in most countries that espouse some form of Shariah law).
So, the next time you see a ridiculous
fatwa being discussed on live TV with all the nuance of a car full of clowns
falling off a cliff into a pie factory, remember that you are listening to a
matter of opinion and self-promotion and not a matter of law or religion. Most,
not all, Fatwas are, have been, and can be, safely ignored.