A matter of opinion

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 strict sense”.

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 hadiths: 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 hadiths themselves. Each hadith consists of two parts, the matn, 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 hadiths in different ways.

Yet the authenticity of the hadiths has remained a point of contention for centuries. There are some scholars who believe that hadiths are complete fabrications while others, such as Fazlur Rahman Malik, believe that at least some hadiths 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 hadiths 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 qadi 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 qadi on an issue in which there is no precedent to be found in the Quran, hadiths, 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 qadi 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.

Déjà View is a fortnightly conversation on history. Read Sidin Vadukut’s Mint columns at www.livemint.com/dejaview

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