Home » All My Posts » Dynamics of Change in Islamic Law (II): Iftaa, Ijtihad and Social Customs

Dynamics of Change in Islamic Law (II): Iftaa, Ijtihad and Social Customs

The “content” of any medium blinds us to the character of the medium.
[Marshall McLuhan]

In 1913, Mawlana Ashraf Ali Thanawi gave his famous juridical response to a British court in India. The seeker was a claimant who wanted to re-establish conjugal rights with his wife but his in-laws refused to let her join on the plea that she has apostatized and can no longer be his wife according to Islamic law. “Annulled”, wrote Thanawi while explaining that “unbelief causes annulment of the marriage contract and marriage of the claimant stands invalidated.

During next seven years, the same fatwa was pronounced on ten different instances, albeit in marginally different contexts, by the same Mufti. However, in 1931, Mawlana Thanawi published an independent treatise dealing with the same issue at length and revised his previous opinion citing Maliki law as an authority instead of usual Hanafi law citations from al-Haskafi’s text or Ibn Abidin’s commentary.

Dr. Khalid Masud, in his paper on Apostasy and Judicial Separation in British India [included in this volume], analyzes the intricacies of these two fatwas (original and the revised one) at length and makes some interesting observations regarding social changes that took place between 1920 to 1930 in British India. He notes that the number of applications in the courts – seeking judicial separation from husbands – substantially increased in the span of these ten years. A large number of Muslim women were encouraged to declare themselves Christian and get their marriages dissolved by producing certificates of baptism.

According to Masud, situation became noticeable to an extent that some notable Muslim Scholars, for instance Dr. Iqbal in his famous lectures, questioned the validity of Hanafi law in this particular area and asked the Muslim jurists to exercise Ijtihad in order to reform the law. The debate triggered by these collective developments finally culminated into the revised fatwa of 1931, thus permitting the use of grounds in Maliki law – including husband’s impotence, cruelty or inability to maintain his wife – to dissolve a marriage instead of using apostasy as a legal device.

The normative shift in these fatwas, besides reflecting normative pluralism, also reflects another important dimension of legal change in Islamic Law: an almost inseparable construct of two mediums, i.e. Iftaa’ and Ijtihad.

Even though, many contemporary experts [1, 2, 3] of Islamic law argue that the terms ‘Mufti’ and ‘Mujtahid’ have been used interchangeably in pre-modern Islamic literature, it would not be entirely wrong to assert that fatwa still remains the primary medium of extending Ijtihad towards the society. For in actuality, it is only the Mufti (even today) who – inadvertently at times – creates and extends new legal norms to the level of positive law that works in a particular social construct.

It should not, therefore, sound surprisingly ‘liberal’ to a ‘traditionalist mind’ when a Maliki jurist from 14th century Spain, Abu Ishaq al-Shatibi, gives primary importance to social reality in his celebrated treatise on Islamic legal philosophy:

The rule is that you examine the given case in the light of Sharia. If it is correct according to the Sharia then consider its consequences in the conditions of its time and its people. If by its mention, your mind does not recall any evil then submit it to reason. If you feel that it will be accepted by reasonable people, then you may give your opinion in general terms if the case relates to a matter that is generally acceptable. If it cannot be generalized then give specific opinion. If the case in question does not accept this process, then it is better to keep silent; that would be more in conformity with the welfare of the people, legal as well as rational.

Having argued elsewhere, albeit not so eloquently, that Islamic law can be essentially experienced as a tradition of literature, I now use that observation to reassert that the available legal tradition – 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.

concludes next…

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13 thoughts on “Dynamics of Change in Islamic Law (II): Iftaa, Ijtihad and Social Customs

  1. Exactly! This is why the need to study the Islamic legal heritage in such a way is vitally important – especially when there are some actual case notes available. This is the kind of study I wish there was more of.

    One area I am interested in too, is how the mukhtasar tradition was used by actual qadi’s issuing actual hukm for unique cases. I currently see this type of movement as a type of codification ala the Majalla, whilst retaining latitude due to the case-by-case nature of the qadi’s job. I need to do more research on this for sure…

    Look forward to your next segment bro.🙂

  2. Btw, I am reading the Masud edited book on “Muftis and their Fatwas” right now – it is pretty darn interesting! I wish I could do that stuff!

  3. Jazakallah for your comments; insightful and encouraging as always. Adab al-Qadi is indeed an area where there is dearth of modern research. I don’t know much except a translation of Imam Khassas by Islamic Research Institute and another series they are doing now through Dr. Ghazi etc. Dr Imran Ahsan Nyazee’s website is closed now but I believe there was some good stuff there regarding the subject. I’ll some day dig through my PC’s archives to find something useful from that site.

    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

  4. Sure thing… Unfortunately my online time is limited nowadays so I don’t have much time to post anything. But I still try to comment when I can and engage on the few blogs I enjoy reading.

  5. I am interested in how your thoughts are progressing on this issue bro – it is fascinating. One of the issues that has continued to vex me recently, though, is the difference between scholars texts (even sharh/hashiyya of famous texts) and actual legal cases. Ultimately, the question in my mind is along the lines of this: Are the theoretical constructs and rulings as expounded by jurists in their books actual law? Or are they merely theoretical and there is a whole body of actual case-law outside the sphere of this literature that may or may not vary from these ruminations? Is it more like one is research, the other is actual law, or something completely different?

    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.

  6. BismillaharRahmanirRahim

    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

  7. Assoc.Prof. Dr. Yedullah Kazmi’s view on the Conversation about the Quran is exhilarating and rejuvenating.. You should sit in his class.

  8. Pingback: Dynamics of Change in Islamic Law (II): Iftaa, Ijtihad and Social Customs | Tea Break

  9. Pingback: Dynamics of Change in Islamic Law (III): Grundnorm, a cosmological myth « Non Skeptical Essays

  10. Pingback: Dynamics of Change in Islamic Law (I): Normative Pluralism « Non Skeptical Essays

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  12. While I agree with your post, I agree with it both cautiously and suspiciously. The post is a kind of argument stressing the role of ‘urf and ‘umum al-balwa in iftaa and ijtihaad (wherever one stops and the other begins). Too often in contemporary works, this is coupled with a post-modern twist on Fazlur Rahman’s argument of Qur’anic and Sunna-ic historicity which often leads to or implies a kind of Islamic nihilism. I’m extremely skeptical of that. If, however, one accepts the role of ‘urf and ‘umum al-balwa within the confines of Usul, I will agree with you one hundred percent.

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