Interpreting Sacred Law

By ASMA UDDIN 

In Muftis, Fatwas, and Islamic Legal Interpretation, Muhammad Khalid Masud describes the formative period of Islamic legal scholarship, with a specific focus on the history of ifta’.The first legal rulings were issued by the Prophet in his role as intermediary between God and the Muslims. The form in which these legal commands were revealed takes into account the fact that the Islamic model instituted by the Prophet reflected, in some respects, a drastic departure from previous Arab customs while in other areas, the Islamic response built upon existing customary practices. Because of this relationship between pre-Islamic customs and the new Islamic legal structure, many Qur’anic legal commands were revealed as a result of individual members of the Prophet’s community approaching him for “clarification regarding the continuing validity of a certain practice.”

After the Prophet’s death, when direct access to divine revelation was no longer available, Muslims turned to the Prophet’s closest Companions for guidance. Fatwas at this point in Islamic history took the form of the Companions commenting on how the Prophet approached a certain issue. When the generation of the Companions died out, Muslims came to rely on hadith, which were linked to the Prophet through their isnad.Those who mastered these hadith, the ‘ulama, became in the second Islamic century the means by which to receive religious guidance on specific issues. As the Islamic Empire expanded and sophisticated state control became increasingly necessary, legal scholarship—as the basis of state legitimacy—took on a similarly bureaucratic nature. Whereas “futya began as a private activity that was independent of state control,” it became increasingly formalized, culminating in the creation of the four Sunni madhhabs and Shi‘i Jafari madhhab, each of which compiled its own “fatwa collections.”

Perhaps the most formalistic of these schools of law was the Shafi‘i school, whose development of usul al-fiqh is described in greater detail by Marshall Hodgson than by Masud. In the first volume of The Venture of Islam, Hodgson describes al-Shafi‘i’s purpose in developing usul al-fiqh in terms of reducing the role of ra’y (arbitrary and personal judgment) in legal decisions:

Al-Shafi‘i’s method was intensely factualistic, allowing almost no leeway for private fancy. He based his method on quite concrete events: the coming of certain words to certain people under certain conditions; and the meaning of these events must depend on the exact meaning of those words to those people under those conditions. (He noted … how important it was to have an exhaustive knowledge of the nuances of the Mudari Arabic grammar of Muhammad’s time.) Thus, he gave full recognition to the intensely historical nature of the revelation that had launched Islam; though not … to the continuingly historical nature of the reception of that revelation in the community committed to it. (330)

However, the apparent lack of rigidity in the fatwas described in Islamic Legal Interpretation suggests that something other than strict formalism is at work. This is not to say that the muftis are not employing usul al-fiqh; rather, it seems like their jurisprudential methodology is different in nature from the usul described by Hodgson. For example, in “Mut’a: Regulating Sexuality and Gender Relations in Post-Revolutionary Iran”, Shahla Haeri describes the various political and ideological issues that cause most Shi‘i ‘ulama in Iran to permit, and at times promote, temporary marriage. One such ideological factor is the Sunni and, separately, modernist condemnation of mut’a as immoral and antithetical to women’s dignity. In response to anti-Shi‘i sentiments by Sunnis and modernizing efforts by the pre-revolutionary regime of Mohammad Reza Shah, Shi‘i ‘ulama held up mut’a as “one of the most ‘brilliant’ laws of Islam” and defended this statement by describing the various social and psychological benefits of not forcing young people to remain “ascetic” until they were ready for permanent marriage.

The pro-mut’a fatwas therefore took into account various socio-political elements and, as such, were based on something other than the “exact meaning” of “certain words” as they were interpreted by “certain people under certain conditions.” (Hodgson, 330) A similar incorporation of contextual factors is evident in “Caliphal Legitimacy and Expiation in al-Andalus”, where Maribel Fierro describes the classical ‘ulama’s rulings regarding a caliph’s expiation for breaking his Ramadan fast unjustifiably.