as-salaamu ‘alaikum. Aasem, this is a very interesting post. I would like to point out the closest real-world example that I can come up with at the moment which reflects what you wrote here,

“if hierarchically arranged and closely analyzed from primary texts (mutun) to commentaries / super commentaries (shuruh) to juridical responses (fatawaa) – can reveal a lot about normative pluralism in Islamic law and the inherent ability of law to perpetually adapt itself to the ever changing social conditions through well-knit and remarkably reasonable mediums.”

The example of which I speak refers to the Ottomans and their dealings in Islamic Tradition with respect to pluralism and the Church of the Holy Sepulchre.

-Saifuddin

For example – let’s look at the well known (in the West) Reliance of the Traveller – but it could easily be any other text. One can see that it covers a vast amount of issues and situations, from `ibadat, to mu`amalat, jinaya and so on. But, are these just the opinions of the scholar in question or the mashur of his school, or were they actually applied to real cases in a lived sense? Specifically, when one gets down to the nitty-gritty details of issues such as the role of a wife, or how to treat slaves etc., some of which seem very arbitrary, even with the evidence included.

I mean, it is the dynamic between the well-known/strongest opinions of the school (which may be codified in the mukhtasar tradition) and the actual rulings as hukm from qadi’s that I am interested in. Bearing in mind the distinction so eloquently studied by Sherman Jackson (through al-Qarafi) on the difference between fatwa and hukm. If you get my drift…

The more I research the likes of al-Sanhuri and others from the early-modern period, the more I see the difference between a jurist and a shaykh: one deals with law in the real sense, generating that which is done by the state; the other merely gives informed opinion (or not-so-informed, as the case may be). My teacher mentioned that the late shaykh Mustafa al-Zarqa was opposed to the separation of the Faculty of Law in Damascus to the Faculty of Shari’a and Faculty of Qanun. I am now wondering if this is perhaps the reason behind that stance, as relegating Shari’a to be outside of law absolutely limits its usefulness as a guiding force of life, antiquates it and moves the authority of scholars only to the moral sphere (which can be accepted or rejected, but hukm cannot).

Anyway, a bit of a rambling, but the Khalid Masud edited book above shows that there is definitely some type of dynamic happening between these two genres, and that many classical shuyukh were active in both fields. It is this area that I wish I could study, and then perhaps see the relevance of Islamic law in modern times, especially on the issue of human rights.

I read some of the cases from Masud’s book several times. Its a novel exercise and I believe there should be more fatwa projects on similar lines. In fact, drawing comparisons, like for instance, between fatwas on Bamyan Budhaa statues and lions of Qasr-e-Nil bridge can be fruitful so as to see how the medium of fatwa is so much degraded with time, instead of evolving. I didn’t raced through that book intentionally; there is a lot to reflect on each of the 29 cases. The quotation on the top of this post by Marshall McLuhan is from the chapter on Media Muftis of Yemen. I am sure you would love that chapter.

Keep us updated on what you think and read. I don’t see activity on your blog since a long time now.

wassalam