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See Hallaq, “Qakc™s DCwAn,” 422 ¬.
22
172 Authority, continuity, and change in Islamic law
that practice,23 could never have been directly involved in legal change.
But could they have contributed to change insofar as they gradually but
increasingly abandoned the authoritative doctrine in favor of another,
one consisting of the practice that the author“jurist used, ex post eventum,
as justi¬cation of legal change? In the previous chapter, we saw that pre-
dominant practice was one factor in e¬ecting legal change. If what was
once a minority opinion became frequently applied, and, later still, gained
even wider circulation, it would likely be raised to the authoritative
level of opinion known as the QaMCM or the mashhEr, depending on the
particular school involved. Now the question that poses itself here is:
Did the qAKCs participate in the practice through which an opinion was
transformed from having a relatively marginal status to one having an
authoritative status? This question in e¬ect both implies and amounts to
another: Did qAKCs qua qAKCs apply what was at the moment of decision
other than the authoritative opinions to the cases they adjudicated? If
the answer is negative, then it is di¬cult to argue that they played any
role in legal change, for had they done so it would have been precisely
in this sphere of juristic activity. But if the answer is in the a¬rmative,
then a further question may be posed: Was it the qAKCs qua qAKCs who
were responsible for departing from authoritative opinions in favor of
less authoritative ones? Answers to these questions are by no means easy to
give, since the present state of our knowledge of the processes involved in
the qAKC ™s decision leaves much to be desired. Our answer must, there-
fore, remain tentative, based as it is on indirect evidence.
It is our contention that the qAKC qua qAKC was not, in the ¬nal analysis,
free to depart from what is considered the authoritative opinion of the
school. Even when there was no universal agreement on a certain question
or case, it was not, generally speaking, the qAKC who ultimately decided
which of the two was the more authoritative. If qAKCs were, from time to
time, engaged in this latter activity, they were so engaged not necessarily
in their role as qAKCs but rather as jurists playing other roles, especially the
muftC who had a central function in courts of law. Above, in chapter 3,
and later on in the present chapter we show, on the basis of evidence
from substantive legal works, that the qAKC regularly turned to the muftC
for legal advice. As early as the second/eighth century, it was already
recognized that the qAKC might or might not be a highly competent jurist,
23
As we shall see in section VII below, the qAKCs did at times deviate from established
doctrine, thereby initiating what appears to us to have been, with the bene¬t of hind-
sight, the embryonic stages of legal change. But this initial participation would have
amounted to very little without the intervention of the muftC and/or the author“jurist
who articulated and legitimized that change.
The jurisconsult, the author“jurist, and legal change 173
which was not usually the case with the muftC. During this early period,
and even later on, the muftC was mostly considered the ultimate her-
meneutical authority, while the qAKC largely fell short of this high expecta-
tion. Sha¬cc already encouraged qAKCs to seek legal counsel from learned
jurists, i.e., the muftCs whom he considered in his discourse as mujtahids.24
The nana¬te Jaqqaq perhaps represented the average position on this issue
when he insisted that the qAKC, in deciding which opinion is the soundest
and most suitable for the case at hand, must seek the jurists™ counsel
by listening to their opinions.25 Indeed, Islamic legal history abundantly
attests to the centrality of the muftC to the qAKC™s work. Su¬ce it here to
adduce the vast bulk of fatwAs that have been hitherto published. The
majority of these show beyond doubt that they originated as istiftA”s re-
quested by qAKCs from muftCs26 for the purpose of deciding court cases.
If the qAKC was not responsible either for departing from authoritative
opinions in favor of weaker ones or for determining that the predominant
application of a weaker opinion should be given an authoritative status,
then he, qua qAKC, cannot, to any meaningful extent, be considered an
agent of legal change. This assertion, however, should remain at this point
tentative. For we know that qAKCs gradually departed from certain author-
itative doctrines of their school, and that this practice of theirs constituted
the embryo of legal change. Yet it took no less than the muftC and
the author“jurist to articulate and justify this change, and without their
juristic endeavor, the ¬rst stages of legal change that had been initiated
by the qAKCs™ practices would never “ if at all “ have come to fruition.
Therefore, it is far less tentative to argue that if the qAKCs contributed in
some instances to legal change, their contribution must have been at best
a necessary, but by no means su¬cient, condition.
Nor can it be argued that the professor of law, again as an independent
juristic role, was involved in legal change any more than the qAKC was. Of
course, some professors belonged to that rank of jurists who were engaged
in articulating a legal reaction to social and other changes, but when they
were engaged in this task, they were not acting as professors qua pro-
fessors, but rather as muftCs and/or author“jurists. The professor taught
law students and wrote what is usually considered condensed works for
their bene¬t. In his Malaqa, he may have discussed certain cases of law in

Sha¬cc, Umm, VI, 287.
24
25
Jaqqaq, Adab al-QAKC, 37“39, 42“43, 101“02, 105, 106. See also Ibn Maza, SharM Adab
al-QAKC, 76“77.
Some istiftA ”s were requested by muftCs who were consulted by qAKCs but who had
26

to turn to more competent muftCs, apparently because they found the questions too
di¬cult to answer, the point being that the ¬nal authority was the muftC, not the qAKC.
174 Authority, continuity, and change in Islamic law
terms of what we now “ with the bene¬t of hindsight “ call legal change,
but articulating legal change was not part of his role as professor.
Having excluded the qAKC and the professor as signi¬cant agents of
legal change, we are therefore left with the muftC and the author“jurist.
It is these two types of jurists “ playing two distinct roles “ who, we shall
argue, undertook the major part, if not the entirety, of the task of articu-
lating the law™s reaction to social and other changes. We shall begin with
the fatwA as a socio-legal tool, and then proceed to a discussion of the
muftC ™s role in modulating changes in the law. Since legal change is ulti-
mately anchored in social reality, we will do well to discuss the social
origins of the fatwA genre, the mechanism by means of which it became
part of substantive law, and the role the muftC and author“jurist played in
modifying the law. If we succeed in demonstrating that fatwAs emanated
from and represented social reality, and that these fatwAs were regularly
incorporated in positive legal works “ the authoritative repertoire of the
schools “ then we shall have succeeded in showing that the law generally
kept pace with the ever-changing social exigencies.
However, throughout the forthcoming discussion, it must remain clear
that two distinct roles were involved, successively, in the transformation
of the fatwA from the point of its social origin to its ultimate abode in
substantive legal works. The ¬rst role, ending with the issuance and dis-
semination of the fatwA, was, ipso facto, that of the muftC, while the
second, ending with the ¬nal incorporation of the fatwA in positive legal
works, was that of the author“jurist. It is largely through this process of
transformation that legal change was articulated and e¬ected.

III
In its basic form, a fatwA consists of a question (su”Al, istiftA ”) addressed to
a jurisconsult (muftC ), together with an answer ( jawAb) provided by that
jurisconsult. When the question is drafted on a piece of paper “ following
the general practice27 “ the paper becomes known as ruq cat al-istiftA ” or,
less frequently, kitAb al-istiftA ”,28 and once an answer is given on the same
sheet of paper, the document becomes known as ruq cat al-fatwA. FatwAs
issued by the major jurists were often collected and published as books,29
and it is with these fatwAs that we are here concerned. The fatwA collec-
tions that have been edited to date may be classi¬ed into two categories:
27
See Nawawc, al-MajmE c, I, 48, 57.
28
For the use of these appellations, see al-FatAwA al-Hindiyya, III, 309; Ibn al-ralam,
Adab al-MuftC, 168“69.
29
See par. 9 of the present section, below.
The jurisconsult, the author“jurist, and legal change 175
in the ¬rst, which includes Ibn al-ralam,30 Wansharcsc, Subkc, Ibn Rushd,
c
Alamc, and Nawawc,31 the question and answer are preserved more or
less in their original form and content; in the second, such as those of
al-Shaykh al-Niuam and Kurdarc,32 the question and answer have under-
gone systematic alterations. Here, we shall refer to fatwAs of the former
type as primary and those belonging to the latter as modi¬ed. Several
indicators suggest that primary fatwAs were the outcome of a concrete and
particular social reality:
1. All fatwAs begin with words such as “The Question: . . . ,” followed at its
end by “The Answer: . . .” Some jurists, such as Ibn Rushd, were in the
habit of beginning their answer with the formula, “I have read your question
and carefully considered it” (taQa¬aMtu su”Alaka wa-waqaftu calayh) or some
similar statement.33 The presence of these formulae in fatwAs would be
meaningless if we were to assume that the primary fatwAs were merely con-
cocted in the jurists™ imagination.
2. Nearly all fatwAs revolve around a person or persons in highly particular
circumstances.34 Neither modi¬ed fatwAs nor any other legal text (except
perhaps court registers) provide the details that primary fatwAs do. The con-
stant reference to actual reality and legal and other practices is a salient
feature in a number of fatwA collections.35
3. FatwAs are frequently supplemented either by an additional commentary by
the jurisconsult who issued them or by another question submitted by the
mustaftC on the same ruq ca (sheet), and to which question the jurisconsult
provides an additional answer.36
Abe cAmr cUthman b. cAbd al-Ramman Ibn al-ralam, FatAwA wa-MasA ”il Ibn al-RalAM,
30

ed. cAbd al-Mucsc Qalcajc, 2 vols. (Beirut: Dar al-Macrifa, 1986).
31
Mumyc al-Dcn Sharaf al-Dcn b. Yamya al-Nawawc, FatAwA al-ImAm al-NawawC al-
MusammAtu bil-MasA ”il al-ManthEra, ed. Mumammad al-najjar (Medina: Dar al-
Salam, 1985). For the fatwA collections of Wansharcsc, Subkc, Ibn Rushd, and cAlamc,
see the references, below.
32
See the bibliography, below.
33
Although this is the standard formula used by Ibn Rushd, some variations on it
do occur. See his FatAwA, I, 143 (taQa¬aMtu, arshadanA AllAhu wa-iyyAk su”Alaka wa-
A
waqaftu calayhi ), 160 (taQa¬aMtu raMimanA AllAh wa-iyyAk su” laka hAdhA wa-nuskhata
al- caqd al-wAqi c fawqah wa-waqaftu calA dhAlika kullih), 164“65, 166, 172, 177, 183
(ta” mmaltu su”Alaka hAdhA wa-waqaftu calayh), and passim; cAlamc, NawAzil, I, 130
a
(ta”ammala muMibbukum mA saSSartumEh fawq, ma c al-rasm bi-yadi al-MAmil ), 145,
157, and passim.
34
For a number of examples, see Subkc, FatAwA, II, 26, 29, 30, 31, 34, 35, 40, 43, 50, 51,
61, 62, 67, and passim; Ibn Rushd, FatAwA, I, 159 ¬., 167“69, 171“73, 190 f., 196 f.,
202 ¬., 206; II“III, 1260“75, and passim; cAlamc, NawAzil, I, 46 f., 50 f., 53, 54, 57
f., 63, 74, 80 f., 94 f., 123 f., and passim.
35
See sources cited in preceding note.
36
See, e.g. Ibn al-ralam, FatAwA, II, 416, 428; Uriel Heyd, “Some Aspects of the
Ottoman Fetva,” Bulletin of the School of Oriental and African Studies, 32 (1969), 42“
43; Ibn Rushd, FatAwA, I, 540“41.
176 Authority, continuity, and change in Islamic law
4. Primary fatwAs often refer to matters that are irrelevant to the law, but
nonetheless stem from the real world. Questions concerned with such mat-
ters as a particular currency or weight (e.g. dCnAr NAQirC, dCnAr SErC ) are
examples in point.37 But more important are the occasional references to the
names of those involved in the matter that gave rise to the fatwA.38 Their
names are but rarely mentioned, however. Were the case otherwise, there
would be little reason, if any, to doubt the verity of these fatwAs. That names
were so seldom recorded should not be taken to indicate that the fatwAs were
removed from social reality or that they were the creation of the jurists™
imaginations. It was the common practice, as we shall see in due course,
to omit names altogether, and whenever necessary to replace them with
hypothetical names (most commonly Zayd and cAmr).39 Moreover, based
upon his analysis of thousands of original Ottoman fatwAs issued between
the ¬fteenth and twentieth centuries, U. Heyd discovered that although the
names of the petitioners are omitted from both the question and the answer,
the verso of the ruq cat al-fatwA frequently contains notes referring not only
to the names of the mustaftCs but also to their professions and even the town
or quarter in which they resided.40 As we shall see, the practice of omitting
names was of particular signi¬cance and had an important function, for the
fatwA was not merely an ephemeral legal opinion produced for a speci¬c
occasion or purpose but was also an authoritative statement of the law
considered to transcend the individual case and its mundane reality.41 This
explains why the jurists, their disciples, and the courts as a rule made every
e¬ort to keep a record of the fatwAs issued by the muftCs.42
5. The formulation of the question is often highly legalistic, a feature that
makes it seem unlikely that the fatwA had its origin in a real situation. But
muftCs commonly answered questions that had been drafted by persons
learned in the law, including professional jurists.43 Some jurisconsults re-
portedly were in the habit of refusing to answer questions unless they were
formulated and handwritten by a learned legist residing in the same town as
the mustaftC.44 The formulator of the question, as stipulated by the manuals

37
Ibn al-ralam, FatAwA, II, 433, 434; Subkc, FatAwA, II, 35. Also see n. 34, above.
38
See, e.g. the references to Subkc™s FatAwA, in n. 34, above.
39
Heyd, “Ottoman Fetva,” 41; R. C. Jennings, “Kadc, Court, and Legal Procedure in
17th C. Ottoman Kayseri,” Studia Islamica, 48 (1978), 134, 135.
40
Heyd, “Ottoman Fetva,” 38, 36, 41.
41
Ibn Farmen, TabQirat al-NukkAm, I, 53, 56; Ibn Qayyim al-Jawziyya, I clAm al-
Muwaqqi cCn, I, 36, 38.
42
See n. 52, below.
43
Nawawc, al-MajmE c, I, 57; Heyd, “Ottoman Fetva,” 42“ 43, 51. See also David
Powers, “FatwAs as Sources for Legal and Social History: A Dispute over Endowment
Revenues from Fourteenth-Century Fez,” al-QanSara, 11 (1990), 308; Ibn al-ralam,
Adab al-MuftC, 169“71.
44
See, e.g. the statement of Nawawc, al-MajmE c, I, 57. Ibn al-ralam, Adab al-MuftC, 170“
71, observes that the practice of muftCs rewriting the istiftA ” was widespread.
The jurisconsult, the author“jurist, and legal change 177
that deal with the modalities of iftA ” (adab al-muftC wal-mustaftC), must be
adept in drafting the question; he must know which terms are legally appro-
priate and admissible and which must be avoided. His handwriting must
neither be unduly large nor unduly small, and he must use language that
does not lend itself to distortion.45 In the Ottoman period, most shaykh
al-Islams refused to receive istiftA”s drafted by private persons. Abe al-Suced,
perhaps the most renowned shaykh al-Islam in all of Ottoman history, wrote
a special treatise which contained instructions speci¬cally directed to clerks
and o¬cials who were concerned with the art of drafting fatwA questions.46
Many distinguished muftCs, such as the illustrious Abe Ismaq al-Shcrazc,
reportedly followed the practice of redrafting questions in their own words.47
The iftA ” manuals recommend that if the question is vague or unduly gen-
eral, the muftC must interrogate the questioner about the case, reformulate
the question accordingly, and only then provide an answer.48
6. Many primary fatwAs deal with disputes that revolve around one type of
contract or another. Most of these fatwAs include a copy of the contract
involved, and in his answer the muftC makes constant reference to the stipu-
lations of the contract.49 A reading of these contracts leaves no doubt that
these disputes involved real people faced with real situations.
7. Since one of the main functions of the fatwA was to support the case of a
party to a lawsuit, the common practice seems to have been to record the
fatwAs in the court record (dCwAn al-qAKC ).50 Jennings and Heyd report that
throughout the Ottoman period fatwAs were recorded in toto in the sijills of
the court, and many were preserved in the fetvakhane.51 This fact, together
with the interest of the muftCs and their disciples in copying down fatwAs,52

45
Nawawc, al-MajmE c, I, 57. 46 Heyd, “Ottoman Fetva,” 50“51.
47
Nawawc, al-MajmE c, I, 48. 48 Ibid.
49
See Arabic quotations in n. 18, above; cAlamc, NawAzil, I, 40, 127, 167, and passim;
Ibn Rushd, FatAwA, I, 171“73, 289“90, 323 ¬., 331, 346, and passim; Bacalawc,
Bughyat al-MustarshidCn, 274; for waq f documents in fatwAs, see Subkc, FatAwA, I,
462“63, 465“68, II, 60, 62 ¬., 158 ¬.; Powers, “FatwAs as Sources,” 298“99 and
passim.
For the reliance of the qAKC on the jurisconsult™s fatwA, see Ibn cfbidcn, NAshiya, V,
50

359, 360, 365; Mumammad Amcn Ibn cfbidcn, al- cUqEd al-Durriyya f C TanqCM al-
FatAwA al-NAmidiyya, 2 vols. (Cairo: al-Masbaca al-Maymeniyya, 1893), I, 3; David S.
Powers, “On Judicial Review in Islamic Law,” Law and Society Review, 26, 2 (1992),
330“31, 332 ¬. For the importance placed on keeping not only a record of the court
proceedings but also a private record for the qAKC, see Mumammad b. chsa Ibn al-
Munaqif, TanbCh al-NukkAm calA Ma”Akhidh al-AMkAm (Tunis: Dar al-Turkc lil-Nashr,
1988), 67, 68; Ibn Abc al-Damm, Adab al-QaKA”, 71, 75“76. See also Ibn cfbidcn,
NAshiya, V, 370.
51
Jennings, “Kadc, Court,” 134; Heyd, “Ottoman Fetva,” 51“52.
52
On muftCs discussing fatwAs with their students, and students copying the fatwAs of
their muftC teachers, see Nawawc, al-MajmE c, I, 34, 48; najjc Khalcfa, Kashf al-VunEn,
II, 1218, 1219“20, 1221, 1222, 1223; Ibn Rushd, FatAwA, III, 1517; al-FatAwA al-
Hindiyya, III, 309.
178 Authority, continuity, and change in Islamic law
explains the survival of a great number of not only individual fatwAs but also
entire collections of these documents.53
8. Some fatwAs seem hypothetical, dealing with “academic” issues, or issues
addressing purely theoretical concerns. Careful examination of the sources,
however, reveals that these fatwAs are rooted in real situations, mostly legal
disputes between individuals. A case in point is a typical question about the
quali¬cations of muftCs. Although such a question echoes the highly theoret-
ical discussions found in works of legal theory (uQEl al-¬qh), the question
itself emanates from actual legal disputes where one of the parties attempted
to disqualify the muftC who had issued a fatwA that favored the other party.54
The same motivation may be attributed to a question concerning whether
or not a certain opinion was held by an acknowledged legal authority.
Again, such questions were designed to obtain, in the form of a fatwA, either
a con¬rmation or a rebuttal of another fatwA in which that opinion was
expressed. We thus have good reason to believe that such fatwAs constituted
an integral part of court proceedings.55
9. The fatwAs of distinguished jurisconsults were often collected in volumes
and arranged, it seems, in the order in which they were issued.56 In his
FatAwA, Nawawc remarks that in arranging his material he followed the
order in which the questions were asked, and he expresses the hope that
other scholars might at a later time rearrange them according to the conven-
tional order of ¬qh books, a task subsequently undertaken by Ibn Ibrahcm
al-cAssar.57 Ibn Rushd™s fatwAs, now available to us in a critical edition,
are not arranged in any thematic or logical sequence. One fatwA deals with a
real property dispute, the next with marriage or homicide. The haphazard


In Kashf al-VunEn, II, 1283 ¬., najjc Khalcfa records no less than 160 titles of fatwA
53

collections, while in his MuMAKarAt f C TArCkh al-Madhhab al-MAlikC (Rabat: Mansherat
c
Ukaz, 1987), 105“10, cUmar al-Jcdc lists at least 80 titles of Malikite fatwA works.
Ibn Rushd, FatAwA, III, 3, 1274“75; Powers, “Judicial Review,” 330 ¬.
54

See, e.g. Subkc, FatAwA, II, 44, 83 ¬., 325 ¬., 422, and passim; Powers, “FatwAs as
55

Sources,” 298“300, 306“25, 330“31, 332; Powers, “Judicial Review,” 330 ¬.
56
The fact that fatwAs were answered in the order in which they were asked was found
noteworthy. najjc Khalcfa (Kashf al-VunEn, II, 1223) cites Ibn Nujaym™s preface to his
al-FatAwA al-Zayniyya as follows: “I have answered questions in the order they have
been asked since I sat for iftA ” in the year 965 (1557 .¤.). Thereafter, I decided to
arrange them according to the order of ¬qh works. They number 400, not to mention
those which I have not managed to copy down.” Ibn cAbd al-Salam™s al-FatAwA
al-MEQiliyya, we are told, represents questions to which Ibn cAbd al-Salam provided
answers while he was residing in Meqil. The FatAwA of Abe cAbd Allah al-Khayyasc are
reported to be “answers to questions he was asked about.” In his al-FatAwA al-Nasa¬yya,
Najm al-Dcn al-Nasafc is reported to have included the answers “to all the questions
he was asked throughout his life, in addition to those given by others” (ibid., II, 1219,
1223, 1230). See further nn. 57“59, below.
najjc Khalcfa, Kashf al-VunEn, II, 1230; Nawawc, FatAwA, 11. Ghazalc™s fatwAs, for
57

instance, remained largely unknown and did not draw the attention of jurists. See Hajjc
Khalcfa, Kashf al-VunEn, II, 1227.
The jurisconsult, the author“jurist, and legal change 179
ordering of many fatwA collections suggests that the fatwAs were copied down
in the chronological order in which they were issued. Clearly, this arrange-
ment proved unsatisfactory in a tradition with a strong inclination toward
systematic ordering of legal subject matter. We know, for instance, that
Mumammad b. Haren al-Kinanc and cAbd al-Ramman al-Qaysc rearranged
Ibn Rushd™s fatwAs according to ¬qh topics, and that the latter rearranged
Ibn al-najj™s fatwAs in the same manner.58 Kinanc and Mumammad b.
c
Uthman al-Andalusc also abridged Ibn Rushd™s fatwAs, and in the process
apparently rearranged the order of the subjects treated therein.59
10. Analyses of fatwAs in the Ottoman and other periods and locales suggest that
the manuals on the art of iftA” were highly practical and pragmatic. Heyd™s
description of the Ottoman practice of iftA” (with the exception of a few mat-
ters relating to the highest political echelons) corresponds with the prescrip-
tions in these manuals. Moreover, even without the support of the Ottoman
and other evidence, a reading of this genre leaves the distinct impression that
they were the product of real situations and actual judicial practice. The pre-
scriptions are heavily geared toward ensuring orderly, e¬cient, and fair prac-
tices on the part of both the jurisconsult and the questioner. Considerable
attention is paid to a variety of matters revolving around curbing abuse of the
system and stemming the forgery of fatwA documents.60 Such issues would
have no existential justi¬cation in these manuals if the fatwAs were merely a
product of the jurists™ idealistic and speculative mental constructions.
Finally, we note a signi¬cant feature in the practice of iftA” which acquired
considerable importance in the Islamic tradition following the ¬rst cen-
tury of the Hijra. This feature ¬nds expression in the dictum that no
fatwA should be issued with regard to a problem that has not yet occurred
in the real world.61 It might be argued that the repeated emphasis on this
dictum suggests that the legal profession needed to curb the practice of
asking about hypothetical cases. But the evidence a¬orded by our primary
fatwAs does not support this contention, though it might be conceded
that a rather small number of these fatwAs may have originated as hypo-
thetical cases. There are at least three reasons why the assumption of
the hypothetical origins of fatwAs is not tenable. First, the ethical and
religious consequences of speculating on hypothetical cases were made so
grave that violation of this dictum could have been neither normative nor
frequent. The dictum was enshrined not only as a central legal postulate
but also, and perhaps more importantly, as a religious tenet.

58
See the editor™s introduction to Ibn Rushd™s FatAwA, I, 89.
Ibid. For other cases of rearrangement and abridgment, see najjc Khalcfa, Kashf al-
59

VunEn, II, 1223, 1229.
60
Ibn al-ralam, Adab al-MuftC, I, 73, 74, 78“81.
61
Tyan, Histoire, 219; al-FatAwA al-Hindiyya, III, 309.
180 Authority, continuity, and change in Islamic law
Second, a very great number of fatwAs were destined for the court-
room,62 where hypothetical musings have no place. It was not in the
interest of any party to a dispute to misrepresent the case, for such a
misrepresentation could result in the judge ignoring the fatwA altogether.
We may assume that misrepresentation of the case in the istiftA” was occa-
sionally attempted in order to solicit a fatwA in favor of the petitioner.63
But since we may also assume that people generally do not act against
their own best interests, instances of misrepresentation could not have
been very abundant and, furthermore, would have been unlikely to
escape the scrutiny of the judge whose task it was to investigate the facts
of the case.
Third, in all the primary fatwA collections available to us, the majority
of fatwAs were solicited by judges and muftCs.64 Those solicited by judges
obviously point to litigation as their source, whereas those solicited by
muftCs usually involve di¬cult questions of law which arose in most
instances as court cases, and which the muftC addressed to another muftC of
higher caliber. (Note, signi¬cantly, that the ¬nal appeal for hermeneutical
engagement is still to a muftC.)

IV
Once the fatwA, consisting of a rule based on concrete social reality,
was issued, it was often incorporated into works of positive law ( furE c ).65
Technically, these works constituted the highest authority as compilations
of the law. Although they contained a hierarchy of doctrinal authority,
they represented on the whole the standard legal doctrine of the schools.
There is no question that the rules and principles within them were as

62
On the importance of fatwAs in the courtroom, see n. 38, above, and R. C. Jennings,
“Limitations of the Judicial Powers of the Kadc in 17th C. Ottoman Kayseri,” Studia
Islamica, 50 (1979), 157 ¬., 176 ¬., 179; Jennings, “Kadc, Court,” 134 ¬.; Ibn cfbidcn,
NAshiya, V, 359, 360, 365; Ibn cfbidcn, al- cUqEd al-Durriyya, I, 3; Ibn al-ralam, Adab
al-MuftC, I, 71.
63
Such attempts were often countered by muftCs who, when suspecting misrepresenta-
tion, opened their fatwA with the qualifying phrase: “If the matter is exactly as you have
described it, then . . .” (idhA kAna al-amr kamA dhakartum . . . ). Such statements, we
assume, were intended to caution judges of a possible discrepancy between the actual
facts of the case and the litigant™s description of those facts. See, e.g. Ibn Rushd,
FatAwA, I, 166, 191, 192, 195, 307, and passim; cAlamc, NawAzil, I, 74, 78, 110, 354,
and passim.
64
See, for instance, the fatwA collections of Taqc al-Dcn al-Subkc, Ibn Rushd, and
Wansharcsc.
65
Which fatwAs were incorporated and which were not is a question we will discuss in
due course.
The jurisconsult, the author“jurist, and legal change 181
a rule valid, although, as we saw in the preceding chapter, validity was
subject to a hierarchical classi¬cation of doctrine that was set in motion
and manipulated by what we have called operative terminology. On the
whole, however, the furE c works contained the “canonized” version of
the law, and as such became the standard, authoritative reference for
the legal profession.
In the opening pages of the preceding chapter we also saw that the
legal opinions of the later followers of the four schools were considered
part and parcel of the authoritative doctrine contained in furE c works.
In discussing the function of fatwAs in positive law we need only cite
one example, in this case nana¬te legal doctrine. But it must be clear
that what is said of this school is, mutatis mutandis, equally true of the
other three.
The third of the three levels of nana¬te positive doctrine consists of
what was termed wAqi cAt or nawAzil, namely, cases of law that were not
addressed by the early masters and which were solved by later jurists.66
Clearly, these cases were new and the jurists who were “asked about them”
and who provided solutions for them “were many.”67 najjc Khalcfa
reports that the ¬rst work known to have brought together these cases is
KitAb FatAwA al-NawAzil of Abe al-Layth al-Samarqandc (d. 383/993),68
a work which, according to Samarqandc himself, consisted of fatwAs
(taMallA bi-masA”il al-fatAwA).69 Here we have the ¬rst explicit reference
to the fact that substantive law included the fatwAs of later jurists. It is
signi¬cant that, despite all attempts to maintain the integrity of each of
the three levels of doctrine, the jurists were not always successful in
doing so. We are told that after Abe al-Layth al-Samarqandc many
jurists compiled works in which fatwAs “ belonging to the third level of
furE c doctrine “ were brought together, but that some of the later jurists
combined these fatwAs with doctrines belonging to the other two levels
of nana¬te legal doctrine, i.e. UAhir al-riwAya and nawAdir. FatAwA
QAKCkhAn and al-KhulAQa are two examples in point.70 It is also signi¬cant
that some jurists found it noteworthy and commendable that in his al-
MuMCS Rakc al-Dcn al-Sarakhsc recorded ¬rst the authoritative doctrines
of the founding masters, then the nawAdir, followed by the fatwAs.71 The
fact that such highly regarded works as FatAwA Qakckhan (also known

See chapter 2, section III, above. 67 See Ibn cfbidcn, NAshiya, I, 69.
66

Kashf al-VunEn, II, 1281. See also Ibn cfbidcn, NAshiya, I, 69. The work is said to
68

contain the fatwAs of Ibn Rustam, Mumammad b. Samaca, Abe Sulayman al-Jezajanc,
Abe nafq al-Bukharc, Mumammad b. Salama, Mumammad b. Muqatil, and Abe Naqr
al-Qasim b. Sallam.
Samarqandc, FatAwA, 1. 70 Ibn cfbidcn, NAshiya, I, 69. 71 Ibid.
69
182 Authority, continuity, and change in Islamic law
as al-FatAwA al-KhAniyya)72 did not maintain the strict categorization of
nana¬te legal doctrine is quite telling, and demonstrates that while it was
generally seen as desirable that the UAhir al-riwAya and nawAdir be kept
separate from the fatwAs, in practice the importance of the latter overrode
such concerns.
That fatwAs were regularly incorporated into furE c works is supported
by a substantial body of evidence. Consider the following:
1. In his commentary on Nasaf c™s work, Ibn Nujaym states that he aimed to
incorporate not only other commentaries on Kanz al-DaqA”iq but also the
fatwAs of a number of jurisconsults. It turns out that he was able to draw on
no less than twenty fatwA collections for this task.73
2. Nawawc reports that in his Muhadhdhab, Shcrazc included “al-fatAwA al-
maqSE cAt,” which I take to mean fatwAs that had come to be considered as
having undisputed authority in his school. Likewise, in his own commentary
on al-Muhadhdhab, Nawawc indicates that he incorporated the “fatwAs of our
associates.”74
3. In his commentary on Nawawc™s MinhAj, a widely used work, Shihab al-Dcn
al-Ramlc assimilated not only the doctrines of many Sha¬cite jurists but also
the fatwAs of his father, under whom he had studied, and which the father
had endorsed after having reviewed them.75 Ramlc™s commentary became the
standard reference for students, judges, and muftCs.76
4. In his gloss on Ramlc™s commentary on Nawawc™s MinhAj, Ner al-Dcn
al-Shabramallisc incorporated the fatwAs of Taj al-Dcn al-Subkc, of his father
Taqc al-Dcn, and of Bulqcnc. Shabramallisc speaks of these fatwAs as having a
highly authoritative status in the Sha¬cite school.77
5. The Malikite jurist Mumammad al-nassab remarks that the MukhtaQar of
Khalcl b. Ismaq “clari¬ed the cases issued as fatwAs.” And in his commentary
on the work, nassab included countless fatwAs issued by a number of dis-
tinguished jurisconsults, such as Ibn Rushd and Burzulc.78


By nasan b. Manqer al-jzajandc Qakckhan. See the bibliography.
72
73
These include al-MuMCS of Sarakhsc; al-DhakhCra of Ibn Maza; al-BadA”i c, al-ZiyAdAt,
and al-FatAwA of Qakckhan; al-VahCriyya of Mumammad b. Ammad al-nanaf c; al-
WalwAlijiyya of Ismaq b. Abc Bakr al-Walwalijc; al-KhulAQa of Siraj al-Dcn Ibn al-
Mulaqqin; al-BazzAziyya of Ibn Bazzaz al-Kurdarc; al- cUmda and al- cUdda of al-radr
al-Shahcd; Ma”Al al-FatAwA and MultaqaS al-FatAwA of Naqir al-Dcn al-Samarqandc; al-
NAwC al-QudsC of Najm al-Dcn al-Qazwcnc; Qunyat al- cFlim of Mumammad b. Masced;
and al-SirAjiyya of Siraj al-Dcn al-Awshc. See Zayn al-Dcn, Ibn Nujaym, al-BaMr al-
RA ”iq: SharM Kanz al-DaqA”iq, 8 vols. (Cairo: al-Masbaca al-cIlmiyya, 1893), I, 2“3.
74
Nawawc, al-MajmE c, I, 3, 5. 75 See his NihAyat al-MuMtAj, I, 9“10.
76
Ibid., I, 2.
See his NAshiya calA NihAyat al-MuMtAj: SharM al-MinhAj, printed on the margins of
77

Ramlc, NihAyat al-MuMtAj, I, 41“ 42 (Beirut repr.).
See his MawAhib al-JalCl, VI, 32, 36, 37, 48, 49, 55, 75, 93, 94, 285, 287 ¬., 326,
78

331 f., and passim.
The jurisconsult, the author“jurist, and legal change 183
6. In a specialized furE c treatise, dealing with the bindingness of contracts and of
other transactions (iltizAm), nassab draws heavily on a number of collections
of primary fatwAs, chief among which are those of Ibn Rushd, Burzulc, and
Ibn al-najj.79
7. In another specialized work on damages (KamAnAt), the nana¬te jurist
Mumammad b. Ghanim al-Baghdadc acknowledged that he drew on “reliable
fatwA collections” (al-kutub al-mu ctabara f C al-fatwA).80
8. The Malikite jurist Ibn Salmen al-Kinanc incorporated in his al- cIqd
al-MunaUUam lil-NukkAm, a furE c work intended for the use of judges,
“individual fatwAs” (nawAzil fardiyya).81
9. In his NAshiya calA Radd al-MuMtAr, Ibn cfbidcn relies heavily on the fatwA
literature, which he includes in his work because, inter alia, he “feared [that]
the ruq cas of the fatwAs might be lost.”82 This statement suggests that Ibn
fbidcn had in his possession original fatwA documents. Furthermore, he
c

remarks that in addition to his free use of fatwAs (uSliqu f C al-fatAwA) in his
work, he constantly referred to the writings of those jurists who committed
themselves to the study and issuance of fatwAs, including Ibn al-Humam,
Ibn Amcr al-najj, al-Ramlc, Ibn Nujaym, Ibn Shalabc, Ismaccl al-na™ik, and
nanetc.83


V
Now, if fatwAs did make inroads into works of positive law, three ques-
tions become pertinent: First, how were these fatwAs incorporated into
furE c works? Second, what types of fatwAs were deemed appropriate for
such incorporation? And third, why were they incorporated?
To answer the ¬rst question, we must invoke again our distinction
between primary and modi¬ed fatwAs, or between primary and modi¬ed
fatwA collections. We have seen that fatwAs originate in a question “
posed by a layman or a legist “ to which an answer is provided by a
jurisconsult. Some of these primary fatwAs found their way into the furE c
works through one of two channels, one direct, the other indirect. Two
examples of a direct channel are the fatwAs of Ibn Rushd which made


See his TaMrCr al-KalAm f C MasA”il al-IltizAm, ed. cAbd al-Salam Mumammad al-Sharcf
79

(Beirut: Dar al-Gharb al-Islamc, 1984), 79“80, 85 f., 88, 89, 93, 99, 105, 106, 113,
114 f., 177, 182, 192, 207, 224, 231, and passim. Note that the fatwAs collected by
Burzulc, as yet unedited, belong to a number of jurists.
80
See his Majma c al-LamAnAt, 2.
81
2 vols. (Cairo: al-Masbaca al-Amcriyya al-Shara¬yya, 1301/1883), I, 2.
82
The fear of losing fatwAs appears to have been widespread. See, e.g., Baclawc, Bughyat
al-MustarshidCn, 3, who, despite having completed his work, continued to append to it
new fatwAs issued by himself and by other jurisconsults “for fear they might be lost.”
See his NAshiya, I, 3“ 4.
83
184 Authority, continuity, and change in Islamic law
their way into the furE c works entitled MawAhib al-JalCl and TaMrCr
al-KalAm, both by nassab,84 and the fatwAs of Ramlc™s father which were
incorporated in Ramlc™s commentary on Nawawc™s MinhAj.85
Primary fatwAs were regularly collected either by the jurisconsults
themselves or by their students or associates (aQMAb). These collections may
be limited exclusively to a single muftC or they may include the primary
fatwAs of a number (sometimes a large number) of muftCs. Examples of
the ¬rst type are Ibn Rushd, Nawawc, and Subkc™s fatwA collections, and
of the second, Wansharcsc, cAlamc, and Burzulc™s works.86 As a rule, the
primary fatwAs found in both types of collection are generally unedited,
although exceptions to this rule may be found.87
The other channel was less direct, involving a lengthy process of col-
lecting, editing, and abridging primary fatwAs for inclusion in collec-
tions that were not concerned with the fatwAs of particular jurisconsults,
but rather with gathering fatwA material in order to constitute a work
of ¬qh. To these we have referred as modi¬ed fatwAs. Abe al-Layth
al-Samarqandc and Nasif c, for instance, are said to have collected in
their works “ KitAb al-NawAzil and Majma c al-NawAzil wal-WAqi cAt,
respectively “ the fatwAs of the founding imams as well as fatwAs issued
by jurisconsults such as Mumammad b. Shujac al-Thaljc, Mumammad
b. Muqatil al-Razc and Jacfar b. cAlc al-Hinduwanc.88 Similarly, nusam
al-Dcn al-Bukharc is reported to have included in his al-WAqi cAt al-
NusAmiyya not only the fatwAs contained in Abe al-Layth al-Samarqandc™s
and Nasif c™s works but also those issued by later muftCs.89 To this genre
belong a great number of collections, of which we have in print al-FatAwA
al-KhAniyya by Qakckhan, al-FatAwA al-BazzAziyya by Mumammad al-
Bazzazc al-Kurdarc, and al-FatAwA al-Hindiyya, compiled by a group
of scholars under the supervision of the nana¬te jurist al-Shaykh al-
Niuam.90 It is clear from the sources that the individual fatwAs in these
collections underwent considerable editing and abridgment. Of this we
will have something to say presently. The point, however, is that the
fatwAs in these collections were incorporated into the commentative furE c


84
See nn. 79“80, above. 85 See n. 75, above. 86 See the bibliography, below.
87
See, e.g. the editorial notes on Ibn Rushd™s FatAwA, where Burzulc seems to have edited
or abridged some of Ibn Rushd™s fatwAs (I, 177, 185, 207, 211, 231, and passim).
najjc Khalcfa, Kashf al-VunEn, II, 1220, 1281; Ibn cfbidcn, NAshiya, I, 69.
88

najjc Khalcfa, Kashf al-VunEn, II, 2, 1228; N. Aghnides, Mohammedan Theories of
89

Finance (New York: Columbia University Press, 1916), 184.
90
On the latter, see Joseph Schacht, “On the Title of the FatAwA cAlamgCriyya,” in
C. E. Bosworth, ed., Iran and Islam (Edinburgh: Edinburgh University Press, 1971),
475“78.
The jurisconsult, the author“jurist, and legal change 185
works, as attested in the case of Ibn Nujaym, who assimilated no less than
twenty such fatwA collections into his al-BaMr al-RA”iq.91
Just as primary fatwAs underwent considerable transformation during
the process of their assimilation into furE c works, so they underwent
a similar transformation in their passage from primary to modi¬ed fatwAs.
The path from the primary to the secondary or modi¬ed stage involved
two practices, tajrCd and talkhCQ;92 and it seems that the term “tanqCM”
was used to lump these two practices together.93 TajrCd, which may be
rendered as “to make abstract,” involved stripping a primary fatwA of a
number of elements essential neither to a furE c work nor to a modi¬ed
fatwA collection. Although jurisconsults generally did not state the line of
reasoning that led them to the opinion expressed in a fatwA,94 some did
include relatively detailed statements of legal reasoning.95 TajrCd referred
to the process of omitting such details,96 as well as any real or hypothetical
names which happened to be mentioned. It also involved the omission
of all words and phrases irrelevant to the law, such as religious formulas,
the phrases “He was asked . . .” and “He answered . . .” and any introduc-
tory words indicating that the jurisconsults had carefully read and studied
the fatwA. And since many fatwAs contained legal documents, especially
contracts, it was the function of tajrCd to omit these documents too. But
because the complete omission of a document might distort the facts and
law in the fatwA (QErat al-fatwA), a second practice was resorted to,
namely, talkhCQ (abridgment).


91
See n. 73, above.
On tajrCd, see Nawawc, al-MajmE c, I, 1, 57; najjc Khalcfa, Kashf al-VunEn, II, 1887.
92

On talkhCQ, see the introduction to Ibn Rushd™s FatAwA, I, 89; Baclawc, Bughyat al-
MustarshidCn, 2. TalkhCQ is also attested in Ibn Ziyad™s work KitAb GhAyat TalkhCQ
al-MurAd min FatAwA Ibn ZiyAd, printed on the margins of Bacalawc™s Bughyat al-
MustarshidCn, 79 ¬.
As expressed in Ibn cfbidcn™s title, al-cUqEd al-Durriyya f C TanqCM al-FatAwA al-
93

NAmidiyya. See also previous note.
94
The practice of including arguments and lines of reasoning leading to the opinion was
not recommended. See Nawawc, al-MajmE c, I, 52, 57; Ibn al-ralam, Adab al-MuftC,
141; al-FatAwA al-Hindiyya, III, 309. It is noteworthy that Ibn al-ralam enjoins a short,
unreasoned answer so that the fatwA would not be confused with taQnCf, the product of
the author“jurist, not the muftC.
See. e.g. Ibn Rushd, FatAwA, I, 357 ¬., 446 ¬., 461, 617; II, 1196 ¬.; Subkc, FatAwA,
95

II, 187 ¬. FatwAs that included statements of legal reasoning were ordinarily issued
upon the request of a judge or another muftC. In such cases, the fatwAs were considered
to be the product of taQnCf, not necessarily iftA”. See previous note.
See, e.g. Ibn cfbidcn, al- cUqEd al-Durriyya, I, 2; najjc Khalcfa, Kashf al-VunEn, II,
96

1887; Nawawc, al-MajmE c, I, 57. See also nassab, MawAhib al-JalCl, VI, 94 (l. “12):
“mujarrad aqwAl MAlik.”
186 Authority, continuity, and change in Islamic law
To illustrate the processes of tajrCd and talkhCQ, we shall discuss a fatwA
¬rst issued by Ibn Rushd and later incorporated into the works of nassab
and Ibn Salmen al-Kinanc, two author“jurists. The Arabic text of the
primary fatwA 97 contains 248 words, whereas the secondary, modi¬ed
version98 comprises only 110:
[Ibn Rushd], may God be pleased with him, was asked about two men
who fought each other; the name of the ¬rst is Abe al-Walcd and of the
second cAbd al-Malik. Abe al-Walcd in¬‚icted upon cAbd al-Malik a
wound with a knife belonging to him, so cAbd al-Malik, in the company
of a relative named cUmar, pursued Abe al-Walcd, who had injured him.
On their way, cAbd al-Malik and cUmar met the brother of Abe al-
Walcd whose name was Mumammad. cUmar held Mumammad, the brother
of Abe al-Walcd, and said to cAbd al-Malik, “Strike to kill.” Thus, he
wounded Mumammad. Each of the two parties in¬‚icted injuries upon
the other [in the process]: cAbd al-Malik wounded Abe al-Walcd, and
Mumammad, the brother of Abe al-Walcd, wounded both cAbd al-Malik
and cUmar, who held him. The injuries which the parties in¬‚icted upon
each other were con¬rmed by witnesses, but the testimony concerning
the injury Mumammad in¬‚icted on both cAbd al-Malik and cUmar was
inconsistent with the [actual] wound. Mumammad died as a result of the
injury. Abe al-Walcd sought to avenge his brother™s death at the hands
of cAbd al-Malik and cUmar, but he could procure no witnesses to take an
oath against them, though he claims to have [as witnesses] two paternal
cousins in another town. Should cAbd al-Malik be executed on the basis
of these [testimonial] oaths before he is healed of the injuries in¬‚icted
upon him by Abe al-Walcd? Or should the execution be delayed until he
recovers?
[Ibn Rushd] answered as follows: I have read your question and carefully
considered it. The fact that an injury was in¬‚icted by Mumammad upon
c
Abd al-Malik and his relative cUmar is acknowledged, although no wit-
nesses may have seen the [actual] wound; the injury is con¬rmed if other
witnesses testify that an injury was in¬‚icted upon him. cAbd al-Malik
should not be executed on account of the oaths until he recovers from his
wounds, because this would abridge the rights of his relatives insofar as the
punishment of his murderer is concerned.99 Rather, all three assailants
“ Abe al-Walcd, cUmar, and cAbd al-Malik “ should be jailed. If cAbd
al-Malik recovers from his wounds, and if Abe al-Walcd brings his cousins
to take an oath, and they do take an oath against cUmar and cAbd al-Malik,

Ibn Rushd, FatAwA, I, 575“77. 98 In nassab, MawAhib al-JalCl, VI, 271.
97
99
For, if he dies as a result of his wounds, his relatives are entitled to avenge his death.
Were cAbd al-Malik to be executed immediately, therefore, it would become impossible
to establish that death would have resulted from the injury, thereby denying the rights
of his relatives.
The jurisconsult, the author“jurist, and legal change 187
then they both [cUmar and cAbd al-Malik] should be executed on the basis
of these oaths, for that is su¬cient grounds for their execution. If cAbd
al-Malik dies as a result of the wounds in¬‚icted upon him, Abe al-Walcd,
together with his cousins, may take an oath against cUmar and they are
entitled to have him executed. Likewise, the relatives of cAbd al-Malik may
take an oath against Abe al-Walcd, and on the basis of these oaths can have
him executed. God is He who bestows peace.
From this point on, the fatwA is appropriated by the author“jurist who
subjects it to the imperatives of his discourse. In the sections treating of
penal law in his MawAhib al-JalCl, nassab produces an abridged version of
the fatwA as a case of law ( far c ) subsumed under the category of injuries.
Having already cited Ibn Rushd with regard to another case, he states:
In his nawAzil,100 Ibn Rushd also said: A man in¬‚icted a wound upon
another and the brother of the former was also wounded by the latter,
together with a relative of his. The relative held him and said to the other,
“Strike to kill.” The second man who was injured died. His brother wanted
to avenge his death. Can the injured man, and his relative, be executed on
the basis of testimonial oaths before the wounds in¬‚icted upon him have
healed, or should he be imprisoned until he recovers?
He answered: The injured man should not be executed until the wounds
in¬‚icted upon him have healed, because this would abridge the rights of his
relatives insofar as the punishment of his murderer is concerned.101 Rather,
all three assailants should be jailed. If the ¬rst man injured recovers from
his wounds, then the brother of the dead man will take an oath together
with one of his cousins against him as well as against his relative, and
accordingly they will be executed on the basis of these oaths.102
In the edited version, not only are the names of the disputants omitted
but also several details deemed by nassab to be devoid of legal relevance.
The fact that the wounds were in¬‚icted “with a knife belonging to” Abe
al-Walcd, and the fact, repeated twice, that Mumammad was the brother
of Abe al-Walcd, are deleted in nassab™s recension. Also omitted is the
fact that the witnesses did not attest to the actual wound and that the
witnesses testifying on behalf of Abe al-Walcd were unavailable because
they resided in another town. Note also that the istiftA” appears to have
been formulated by a person who was not particularly adept in legal mat-
ters. This is evidenced in the fact that repetition and irrelevant details
100
I.e. fatwAs. The two terms are synonymous and were used interchangeably. Strictly
speaking, the term nawAzil (sing. nAzila) refers to problems befalling the mustaftC,
whereas the term fatwAs signi¬es the solution to such problems. But such distinctions
do not seem to have been maintained in legal discourse.
See n. 99, above. 102 nassab, MawAhib al-JalCl, VI, 271“72.
101
188 Authority, continuity, and change in Islamic law
constantly surface in the text of the question. But nassab™s exercise of
tajrCd and talkhCQ transforms the fatwA from a case of law pertaining to a
particular and highly contextualized situation into an abstract case ¬t for
inclusion in a standard furE c work.
We now come to our second question: What types of fatwA were
incorporated in furE c works? To answer this question, we must ¬rst draw
attention to a central fact that determined the nature of works treating
substantive law, be they furE c or primary and modi¬ed fatwA collections.
The overriding concern of the authors of these works was the incorpora-
tion of law cases that were deemed relevant and necessary to the age in
which they were writing. This is evidenced not only in the incorporation
in their furE c works of the latest fatwAs, but also in the untiring insistence
of virtually all these author“jurists on the necessity of including in their
works cases deemed to be relevant to contemporary needs and of wide
occurrence (mA ta cummu bi-hi al-balwA), and to exclude those of little or
no relevance to the community and its needs.103 In his FatAwA, Qakckhan
includes only those cases that were of frequent occurrence (yaghlubu
wuqE cuhA) or much needed (tamissu al-MAja ilayhA) and around which
the problems arising in the community revolve (tadEru calayhA wAqi cAt
al-umma). These cases belong either to the early masters or to the later
jurisprudents (al-mashAyikh al-muta” khkhirCn).104 Zaylacc informs us that
a
he chose to comment on Kanz al-DaqA”iq because he thought it to be a
superior abridgment containing “cases that are needed” (mA yuMtAju ilayhi
min al-wAqi cAt). And in his commentary, he declares, he added law cases
that were needed and that belonged to the later jurisprudents.105 Ramlc
states that in his commentary on Ra¬cc™s MuMarrar, Nawawc incorporated
cases that were needed and that Ra¬cc had neglected to include (zAda . . .
mA akhalla bihi min al-furE c al-muMtAj ilayhA).106 Ibn al-ralam is widely
reported, with approval, to have argued that when a muftC or a judge is

103
On the exclusion of legal doctrines that are not “in circulation,” see Ramlc, al-FatAwA
al-Khayriyya, I, 3; Abe cAbd Allah Mumammad b. narith al-Khushanc, UQEl al-FutyA
f C al-Fiqh, ed. Mumammad Majdeb (Beirut: al-Mucassasa al-Wasaniyyal lil-Kitab,
1985), 44.
Qakckhan, FatAwA, I, 2. For a similar approach, see cAlamc, NawAzil, I, 18. najjc
104

Khalcfa, Kashf al-VunEn, II, 1282“83, remarks that the term muta” khkhirEn refers to
a
the jurisconsults who ¬‚ourished after the fourth/tenth century.
Uthman b. cAlc al-Zaylacc, TabyCn al-NaqA”iq: SharM Kanz al-DaqA”iq, 6 vols. (Belaq:
105 c

al-Masbaca al-Kubra al-Amcriyya, 1313/1895), I, 2. For similar statements, see
Kurdarc, FatAwA, IV, 2; Meqilc, IkhtiyAr, I, 6. Likewise, Nawawc, after completing the
¬rst three volumes of his al-MajmE c and ¬nding the material to be too imposing,
decided to expand only on those cases that were of general relevance and to abridge in
those that were not. See his al-MajmE c, I, 6.
106
Ramlc, NihAyat al-MuMtAj, I, 45.
The jurisconsult, the author“jurist, and legal change 189
faced with a problem for which there are two equally valid solutions in
the school, he must resort to the chronologically later solution.107
That a chronologically later opinion must replace an earlier one of
equal validity is a doctrine that ¬nds considerable support in our sources.
As summarized by the nana¬te jurist Qakckhan, this doctrine was,
mutatis mutandis, accepted in all four schools: He explains that if the
solution to the case is found in UAhir al-riwAya without disagreement,
then it must be adopted. If the case is, on the other hand, subject to
disagreement, then it is to Abe nancfa™s own doctrine, not that of his
two disciples, that the jurisconsult must resort. But if their disagree-
ment is relevant to the needs of a particular age, then the opinions of
his two disciples must be followed on the grounds that the “conditions
of people do change” (li-taghayyur aMwAl al-nAs). In matters of contracts
and commercial transactions, Qakckhan tells us, the later jurists resorted
to the doctrines of Abe Yesuf and Shaybanc rather than to those of
Abe nancfa.108 The same principle governs the choice between doctrines
belonging to earlier and later centuries. Ibn cfbidcn remarks that a sub-
stantial segment of nana¬te legal doctrine was formulated at a later date
by jurists who sometimes held opinions di¬erent from those of the
founders.109 The Sha¬cite legist Khayr al-Dcn al-Ramlc is said to have
followed nana¬te doctrine in issuing his fatwAs, including the opinions
of the major jurists who modi¬ed the early doctrines due to the changing
of the times or to the changing conditions of society (li-ikhtilAf al- caQr aw
li-taghayyur aMwAl al-nAs).110 Apparently for the same reasons, Shihab al-
Dcn al-Ramlc included in his furE c work, NihAyat al-MuMtAj, the doctrines
of the later jurists, including Nawawc, Jalal al-Dcn al-Mamallc, Ra¬cc, and
his own father.111
We must emphasize that the process of assimilating later fatwAs was
selective, and only those fatwAs that added new material to the current
body of legal doctrines were included. In compiling the fatwAs of his
father Khayr al-Dcn, Mumyc al-Dcn al-Ramlc considered for inclusion
only those which he could not ¬nd in contemporary works and which
had become much needed and oft-referred to in his own time.112 The
Malikite jurisprudent Khushanc followed the same practice in his UQEl

107
See, e.g. Bacalawc, Bughyat al-MustarshidCn, 8“9, on the authority of Abe Bakr al-
Ashkhar. Ibn al-ralam states his opinion in his Adab al-MuftC, 123.
Qakckhan, FatAwA, I, 2“3. 109 Ibn cfbidcn, NAshiya, I, 69.
108
110
Ramlc, al-FatAwA al-Khayriyya, I, 3.
Ramlc, NihAyat al-MuMtAj, I, 9“10. See also nassab, MawAhib al-JalCl, I, 31; Baghdadc,
111

Majma c al-LamAnAt, 2.
112
Ramlc, al-FatAwA al-Khayriyya, 3.
190 Authority, continuity, and change in Islamic law
al-FutyA, excluding those fatwAs that had gone out of currency or con-
tained opinions that were considered irregular (gharCb).113 We can thus
safely assume that such fatwAs, as well as fatwAs that merely cited earlier
authorities with regard to the same facts and with no quali¬cation or
addition (a practice known as al-iftA” bil-MifU),114 were excluded as candid-
ates for incorporation in both fatwA collections and furE c works. In fact,
al-iftA” bil-MifU was not, strictly speaking, considered to constitute iftA ”
proper,115 and was thus ab initio precluded from the recorded literature
of fatwA.
Another category of fatwA excluded from positive legal works is that
which contained weak opinions, based on unauthoritative legal doctrines
(al-ra”y al-Ka cCf ). We have no evidence that such fatwAs, and fatwAs that
merely relayed an established doctrine, ever found a place in the primary
fatwA collections. Thus, our sources indicate that the primary fatwAs
that appeared in these collections and those that were incorporated in
furE c works were those that had been issued in response to new or partly
new facts and situations. These novel circumstances, in turn, gave new
signi¬cance to the statements of law, and this quali¬ed them as new
cases of law.
Let us now turn to our third, and most important, question: Why were
these fatwAs incorporated in the furE c works? We must state at the outset
that one of the most important functions of furE c works was to provide
the jurisconsults with a comprehensive coverage of substantive rules, fore-
most among which were those that attained an authoritative status. These
works were expected to o¬er solutions for all conceivable cases so that the
jurisconsult might draw on them for the authoritative doctrine, and to
include the most recent as well as the oldest cases of law that had arisen
in the school. This explains why fatwAs were incorporated into these
works, for they represented the oldest and most recent material relevant
to the needs of society and responsive to the changes it had undergone
over time. Primary fatwAs then provided a continuous source from which
the law derived its ever-expanding body of material. This is why cilm
al-fatwA was often equated, and often used synonymously, with ¬qh,116
for ¬qh was deemed largely the sum total of fatwAs that had entered the
body of furE c.

113
Khushanc, UQEl al-FutyA, 44.
See, e.g. nassab, MawAhib al-JalCl, I, 33 (ll. 8“10).
114

Bacalawc, Bughyat al-MustarshidCn, 7; Ibn cfbidcn, NAshiya, V, 366; Hallaq, “IftA” and
115

IjtihAd,” 34, 336, n. 1.
See, e.g. Ghazalc™s statement to this e¬ect, quoted in najjc Khalcfa, Kashf al-VunEn, II,
116

1281.
The jurisconsult, the author“jurist, and legal change 191
To say this is in fact to argue that it was the muftC and the author“jurist
“ not the qAdC or anyone else “ who were responsible for the develop-
ment of the legal doctrine embodied in furE c works. Thus far there is no
good reason to disagree with the ¬ndings of such scholars as Schacht and
G. H. Juynboll concerning the important role that early judges played in
the formation of Islamic substantive law.117 But after the second/eighth
century, their contribution appears to have come to a halt, while the
elaboration of law seems to have become almost exclusively the province
of the muftC and the author“jurist.118
Although it was the common practice for judges to retain a record
of court proceedings,119 their decisions do not appear to have attracted
the attention of the jurists who were concerned with elaborating and
establishing the furE c doctrines of their school. True, questions arising in
judicial disputes (muMAkamAt or MukEmAt) were intensely discussed by
fuqahA”, but these discussions seem always to have been connected with
fatwAs that were issued speci¬cally for such occasions.120 The relation-
ship between fatwAs and the muMAkamAt is explained by the fact that
the judge depended heavily upon the muftC ™s opinions,121 for, as we have
seen, judges commonly made recourse to the muftCs™ opinions.122 In fact,
the judge™s dependence upon the fatwA was so great that a muftC was often
attached to the court; in later periods of Islamic history, his fatwA was
considered binding.123 Some legists went so far as to espouse the view that
the decision of an ignorant and foolish judge remains valid as long as it is
based on a jurisconsult™s fatwA.124
The stipulation that the judge must resort to the muftC for legal advice
underscores the fact that it is the muftC, not the qAKC, who is the ultimate


Schacht, Introduction, 25 ¬., summarizing his ¬ndings in his Origins; G. H. A.
117

Juynboll, Muslim Tradition: Studies in Chronolog y, Provenance and Authorship of Early
Hadith (Cambridge: Cambridge University Press, 1983), 77“95; G. H. A. Juynboll,
“Some Notes on Islam™s First FuqahA” Distilled From Early NadCt Literature,” Arabica
39 (1992): 287“314.
118
Needless to say, this transformation still awaits investigation.
119
See Hallaq, “The Qakc™s DCwAn,” 422“29.
See Subkc, FatAwA, II, 44, 183 ¬., 325 ¬., 422, and passim; Powers, “Judicial Review,”
120

330“31, 332; Powers, “FatwAs as Sources,” 298“300, 306“25, 330“31, 332.
Ibn cfbidcn, al- cUqEd al-Durriyya, I, 3; Ibn cfbidcn, NAshiya, V, 359, 360, 365.
121

Al-FatAwA al-Hindiyya, III, 312, 313; Ibn cfbidcn, NAshiya, V, 360, 365. See also
122

nn. 50, 51, 55, 62, above, as well as next note.
123
See Tyan, Histoire, 224; Rudolph Peters, “Murder on the Nile: Homicide Trials in
19th Century Egyptian Sharica Courts,” Die Welt des Islams, 30 (1990), 99. Similarly,
the fact that the Chief Muftc of the Ottoman empire (Shaykh al-Islam) was in charge
of the administration of the court system is signi¬cant.
124
Al-FatAwA al-Hindiyya, III, 307.
192 Authority, continuity, and change in Islamic law
expert on the law. This conclusion is reinforced by a number of con-
siderations: First of all, the ¬nal goal of the methodology of uQEl al-¬qh
is ijtihAd, performed by the mujtahid. As we saw in chapter 3, it was
the muftC, not the qAKC, who was equated with the mujtahid. Indeed,
in the discourse of uQEl al-¬qh, the terms mujtahid and muftC were used
synonymously.125 Second, throughout most of its history, and with the
exception of the Ottoman period, the o¬ce of iftA” was largely independ-
ent of governmental interference; unlike judgeship, it was considered
immune from political corruption. This is why many jurists regarded the
duty to issue fatwAs obligatory ( farK kifAya), whereas accepting the o¬ce
of qAKC was viewed with suspicion.126 Formulating the law could not have
been the responsibility of an institution that was commonly perceived as
marred by worldly temptations and various sorts of corruption. This
suspicion of qAKCs was sanctioned by a divine message, delivered through
the medium of the Prophet: “On the Day of Resurrection the judges will
join the Sultans, but the culamA” [=muftCs] will join the Prophets.”127
Third, the decisions of the qAKCs do not appear, to any noticeable
extent, to have been taken into account in furE c works, whereas, as we
have seen, fatwAs provided the primary source material for the elaboration
and expansion of furE c. If occasional court cases entered works of positive
law, they did so through the muftC ™s or the author“jurist™s intervention.
Fourth, it was held that the decision of the judge is particular ( juz”C,
khAQQ) and that its import does not transcend the interests of the parties to
a dispute, whereas the fatwA of the jurisconsult is universal (cAmm, kullC )
and thus applicable to all similar cases.128

Hallaq, “Ifta” and IjtihAd,” 34 ¬.; see also al-FatAwA al-Hindiyya, III, 308: “It is the
125

unshakable opinion of the legal theorists that the muftC is the mujtahid ” (istaqarra
ra”yu al-uQEliyyCn anna al-muftC huwa al-mujtahid ). See also Ibn cfbidcn, NAshiya, V,
365, who equates the muftC with the mujtahid and asserts that the qAKC is not required
to be quali¬ed as a mujtahid, “for it is su¬cient for him to act upon the ijtihAd of
others.” For a fuller treatment of the issue, see chapter 3, above.
126
Al-FatAwA al-Hindiyya, III, 311: “al-dukhEl fC al-qaKA” rukhQa wal-imtinA c canhu
c
azCma.”
127
Ibid., III, 310, where several jurists are cited to support the opinion that no jurist
should accept a judgeship unless he is coerced to do so. See also cAlc b. Yamya al-Jazcrc,
al-MaqQad al-MaMmEd f C TalkhCQ al- cUqEd, ed. A. Ferreras (Madrid: Consejo Superior
de Investigaciones Cientí¬cas, 1998), 456. On the other hand, Nawawc (al-MajmE c, I,
40) cites the widely accepted dictum that the muftCs are the heirs of the prophets. See
also Brinkley Messick, The Calligraphic State: Textual Domination and History in a
Muslim Society (Berkeley: University of California Press, 1993), 143“ 4.
Ibn Qayyim al-Jawziyya, I clAm al-Muwaqqi cCn, I, 38: “al-MAkim Mukmuhu juz”C khAQQ lA
128

yat caddA ilA ghayri al-maMkEmC calayh wa-lahu, wa”l-muftC yuftC Mukman cAmman
kulliyan anna man fa cala kadhA tarattaba calayhi kadhA wa-man qAla kadhA lazimahu
kadhA.”
The jurisconsult, the author“jurist, and legal change 193
Furthermore, the crucial role played by the fatwA in the formation of
substantive law is nowhere more evident than in the dialectical relation-
ship between fatwA and madhhab, the established and authoritative legal
doctrine of the school. In chapter 5 we have shown that the madhhab
as the authoritative doctrine of the school was de¬ned by the practice of
iftA”: what fatwAs commonly determined to be the law was the madhhab-
opinion.129 In his NihAyat al-MuMtAj, Ramlc, who draws on several fatwA
collections, declared that he limited his work solely to the doctrines that
were widely accepted and applied in the madhhab (muqtaQiran f C-hi calA
al-ma cmEl bihi f C al-madhhab).130 In legal jargon, Ramlc argues, the term
madhhab signi¬es nothing more than the school™s doctrine as determined
by means of fatwA, for the latter “is more important for the faqCh than
anything else.”131
The dialectical relationship between fatwA and madhhab also meant
that the fatwA must conform to the madhhab. In fact, it was a funda-
mental legal tenet that no fatwA would be deemed admissible if it were
found to be at variance with the authoritative legal doctrine of the school.
This did not mean that new problems could not elicit new solutions,
but rather that in issuing legal opinions the jurisconsult must abide by
the established doctrine if he ¬nds a precedent; otherwise, he must resort
to the revealed texts, and, on their basis, must apply, in a careful and
prudent manner, the substantive principles established in qawA cid 132 and
the methodology prescribed in uQEl al-¬qh.133 A fatwA would thus be
inadmissible if it did not accord with a doctrine that had been subject to
tarjCM, taQMCM, or tashhCr.134 When Zaqqaq was asked about the duration
of cidda in the case of menstruating women, he ¬xed it at three months,
dismissing as unworthy of the jurisconsult™s attention “ because it failed
to accord with the mashhEr of the madhhab “ a fatwA issued by a certain
Dawedc ¬xing the duration at six months.135
The dialectical relationship between fatwA and madhhab is underscored
by the terminology used to identify the processes of authorizing and
nassab, MawAhib al-JalCl, I, 24; Ramlc, NihAyat al-MuMtAj, I, 36“37. See also chapter
129

5, section VI, above.
130
See his NihAyat al-MuMtAj, I, 9.
Ibid., I, 36“37. See also nassab, MawAhib al-JalCl, I, 24 (ll. 9“10).
131

On qawA cid, see Jcdc, MuMAKarAt, 59 ¬. See also chapter 4, nn. 87“89, above.
132

nassab, MawAhib al-JalCl, VI, 96.
133

Alamc, NawAzil, III, 6; nassab, MawAhib al-JalCl, I, 32; VI, 91; Bacalawc, Bughyat
134 c

al-MustarshidCn, 274; Ibn cfbidcn, NAshiya, V, 359.
Alamc, NawAzil, I, 309“310. See also najjc Khalcfa (Kashf al-VunEn, II, 1225) who
135 c

remarks that al-FatAwA al-SE¬yya of Mawla Birkilc (or Biriklc) is unauthoritative (laysat
min al-kutub al-mu ctabara) because it does not conform to the accepted principles of
¬qh.
194 Authority, continuity, and change in Islamic law
sanctioning legal opinions and doctrines. When a fatwA is declared to
be in conformity with the madhhab, its status is indicated by terms such
as “this is the madhhab” (wa- calayhi al-madhhab) or “this is the preferred
view” (al-rAjiM ¬l-madhhab), “this is the view that is followed” (al-ladhC
c
alayhi al- camal ). On the other hand, when a madhhab doctrine is
declared to be authoritative, the jurists employed the expression “this view
is resorted to in fatwA” (wa- calayhi al-fatwA, or al-maftC bihi).136 Khalcl™s
highly acclaimed MukhtaQar contains the authoritative opinions of the
Malikite school, and these, it turns out, are the opinions commonly
issued in iftA”.137
The crucial role of the muftC in elaborating and developing the legal
doctrine of furE c did not escape the attention of Muslim legal scholars. As
we have seen, the muftC and his fatwA were deemed to stand at the center
of the legal profession. Indeed, the chief goal of the traditional madrasa
educational system was the training of muftCs.138 The Sharcca system and its
proper functioning depended on what was perceived to be a true re¬‚ection
of God™s commands, and on the consistency with which these commands,
that is, the law, were applied. Determining the law in its social settings was
the responsibility of the muftC. When he issued a fatwA in which he ques-
tioned or reversed the decision of a qAKC, the party to the dispute obtaining
this fatwA had valid grounds to turn to another qAKC for a new trial.139 The
signi¬cant contribution and active participation of the muftC in the legal
process are fully attested in the chapters of furE c works dealing with courts
and evidence (kitAb al-aqKiya wal-shahAdAt). The rules and principles gov-
erning the court were the product of the fatwAs which were incorporated
into, and became part of, these works. Even specialized treatises dealing
with judges and courts (adab al-qaKA”) were, in their own composition,
partly dependent on the fatwAs issued with regard to these matters.140

VI
The foregoing facts and arguments demonstrably show that it was
through the medium of fatwAs that law maintained contact with social
reality, and developed and changed in light of that reality. But without


Ibn cfbidcn, NAshiya, I, 72; nassab, MawAhib al-JalCl, I, 36. Further on this, see
136

chapter 5, section VI, above.
nassab, MawAhib al-JalCl, I, 2: “ukhtuQira bi-tabyCn mA bi-hi al-fatwA.”
137
138
Makdisi, Rise, 148.
139
See, e.g. Ibn Farmen, TabQirat al-NukkAm, I, 122; Powers, “Judicial Review,” 332.
See, e.g., the fatwAs included in Kinanc™s al- cIqd al-MunaUUam, I, 33, 43 ¬., 71 f.,
140

79 f., 81, 83, 88, 93, and passim; Ibn Farmen, TabQirat al-NukkAm, I, 46, 53, 54, 112,
123, 126, 146, and passim.
The jurisconsult, the author“jurist, and legal change 195
the contributions of the author“jurist, the full legal potential of fatwAs
would never have been realized, for it was he who ¬nally integrated them
into the larger context of the law, and it was he who determined the
extent of their contribution to legal continuity, evolution, and change.
The authority of the author“jurist stemmed from the fact that he was
quali¬ed to determine which opinions and fatwAs were worthy of incorp-
oration into his text, in which he aspired to assemble the authoritative
doctrine of the school. Thus, like the muftC, and certainly not unlike the
founding imam, the author“jurist™s authority was primarily “ if not, in his
case, exclusively “ epistemic.
Before we deal with the author“jurist as an agent of change, we shall
¬rst present a case study of a fatwA which had its origin in a concrete
social reality and which was later appropriated, in various ways, by the
author“jurists. The case involves an intentional homicide which took
place in the Andalusian city of Cordoba in 516/1122.141 The full text of
the fatwA,142 including the question as addressed to Ibn Rushd (d. 520/
1126), runs as follows:
Question: Concerning the murder of someone who leaves behind minor
children and agnates who are of age. Should the minors be allowed to attain
the age of majority, thus barring the agnates from seeking punishment?
Regarding the case of intentional homicide which occurred in Cordoba
“ may God bring it back to Islamic dominion143 “ in the year 516, Abe
al-Walcd Ibn Rushd “ our master, the eminent jurist, erudite scholar,
imam, fair-minded judge “ said:
Some of those who seek and investigate knowledge have asked me to
explain a fatwA which I have issued concerning a man who was killed
intentionally by another and who had minor children and agnates of age.
[I held that] the children must be allowed to attain the age of majority and
that the agnates are not entitled to take the qasAma oath144 or have him
executed. For the children™s right to take the oath, to have him executed,
or to pardon him overrides the right of the agnates. This is contrary to the
authoritative doctrine governing this matter, a doctrine held by Malik and
others who follow him.
[Those seekers of knowledge] did not understand what lay behind my
opinion, and they thought that the jurisconsult must not abandon the
authoritative doctrine applicable to the case. But what they thought is

141
For a more detailed analysis of the fatwA, see Hallaq, “Murder in Cordoba.”
Ibn Rushd, FatAwA, II, 1196“1203; Wansharcsc, al-Mi cyAr al-Mughrib, II, 319 ¬.
142
143
This invocation must have been interpolated into the text at a later stage, probably
after 541/1146, when Cordoba was seized by Alfonso VII. See B. Reilly, The Contest of
Christian and Muslim Spain (Oxford and Cambridge, Mass.: Blackwell, 1992), 212,
218.
144
On the qasAma, see n. 159, below.
196 Authority, continuity, and change in Islamic law
incorrect, for the jurisconsult must not follow a doctrine, nor issue legal
opinions according to it, unless he knows that it is sound. No learned
person disagrees with this, for God “ may He be exalted “ said: “Ask the
people of Remembrance if you do not know;”145 and the Prophet asked
Mucadh b. Jabal, when he dispatched him to Yemen to govern and teach,
“According to what will you judge?” Mucadh said: “According to God™s
Book.” The Prophet then asked: “What if you do not ¬nd [in the Book
what you need]”? Mucadh replied: “Then according to the Sunna of God™s
Prophet.” The Prophet asked: “What if you do not ¬nd [in the Sunna that
which you seek]”? Mucadh answered: “I exercise my own legal reasoning.”
The Prophet then said: “Thank God for guiding the Prophet™s deputy to
that which the Prophet approves.” The Prophet thus approved independ-
ent legal reasoning where the Book and the Sunna were silent. But he
did not approve of a learned person turning to another learned person
in order to adopt an opinion which the latter had reached by exercising
his own legal reasoning. Whatever is approved by the Prophet is surely
approved by God; and whatever God approves is the truth which should
neither be set aside nor violated. The doctrine contrary to which I have
issued a legal opinion runs counter to the fundamental principles of
Islamic jurisprudence; in this doctrine, qiyAs was set aside on certain
grounds in favor of istiMsAn, as we shall explain later. Accordingly, sound
reasoning requires one to abandon the [traditional] doctrine in favor of
that which is more appropriate, especially in view of the fact that the killer
was intoxicated when he committed the crime.
Some jurists hold that an intoxicated person who commits a murder
while inebriated is not to be punished [by death]. Although we do not
subscribe to this opinion, taking it into account is nonetheless necessary,
in line with the Malikite principle “ whose validity we uphold “ that
divergent opinions must be taken cognizance of.
The way to establish the validity of our opinion with regard to this
matter is to mention the relevant texts in the Quran and the Sunna on
which the case is based. All jurists agree that the principal text govern-
ing this case is God™s statement: “Whoso is slain unjustly, We have given
power unto his heir, but let him [i.e. the heir] not commit excess in
slaying [the murderer].”146 In other words, [God has] empowered the heir
to redress his rights.
The jurists, however, disagree as to whether or not the heir has the right
to forgo the execution of the murderer and instead opt for blood-money,
with or without the consent of the murderer. Their disagreement stems
from their varying interpretation of God™s statement: “And for him who
is forgiven (cufya lahu) somewhat by his [murdered] brother, prosecution
according to established custom and payment unto him in kindness.”147

145 146 147
Quran 16:43. Quran 17:33. Quran 2:178.
The jurisconsult, the author“jurist, and legal change 197
Is it the agnate who forgives? Or is it the murderer?148 Those jurists who
espouse the view that it is the heir who has the right to pardon the
murderer and instead receive blood-money, whether the latter agrees or
not, unquali¬edly require that the minor children of the person killed be
allowed to attain the age of majority. According to these jurists, it is not
lawful to allow the agnates to seek the punishment [of the murderer] since
this will abrogate the right of the minor children to receive blood-money
upon their coming of age, whether the murderer agrees to this or not. This
is analogous to the legal rights [of the parties] in non-penal cases subject to
consensus. One of these latter is the case of preemption: all agree that a
minor™s preemptive right, established by a single witness, may not be trans-
ferred, due to his minor age, to his closest relatives. His right is preserved
until he reaches the age of majority, at which point he will take an oath,
thereby laying claim to the property. The same [principle] governs other
rights. If a boy claims that a man has destroyed his goods or that he killed
his beast or slave, and if he procures a single witness, then he would be
entitled to compensation when he becomes of age. This is the doctrine
of Ashhab,149 and it is one of the two opinions held by Ibn al-Qasim.150
This doctrine is also transmitted by Musarrif 151 and Ibn al-Majishen152 on
the authority of Malik. And it is the doctrine adopted by Sha¬cc and the
Syrian Awzacc.
From the Prophetic example, they adduce in support of their argument
a sound tradition recorded in al-Bukharc on the authority of Abe Hurayra.
According to this tradition, the Prophet said: “He whose relative was mur-
dered has the choice of either receiving monetary compensation or meting
out punishment [to the murderer].”153 The Prophet has also reportedly
said: “He whose relative was murdered has the choice of either killing [the
murderer] or pardoning [him in exchange for] receiving blood-money.”154
From the perspective of rational argumentation, they hold that the mur-
derer must seek to preserve his own life by means of his wealth, and if
148
In other words, is pardoning or payment of blood-money in lieu of execution a right
that may be exercised by the agnate of the victim or does the murderer have to agree or
disagree to the payment of blood-money in lieu of execution?
149
Abe cAmr Ashhab b. cAbd al-cAzcz al-Qaysc (d. 204/819), a traditionist and jurist, was
one of Malik™s most distinguished students. See Fuat Sezgin, Geschichte des arabischen
Schrifttums, 8 vols. (Leiden: E. J. Brill, 1967“), I, 466.
150
Ibn al-Qasim Abe cAbd Allah cAbd al-Ramman al-cUtaqc (d. 191/806) was a student of
Malik. See ibid., I, 465.
151
Musarrif b. cAbd Allah al-Hilalc (d. 220/835) was a student of Malik. See Ibn Farmen,
DCbAj, 345.
152 c
Abd al-Malik b. cAbd al-cAzcz al-Madanc Ibn al-Majishen (d. 212/827) was a student
of Malik and a leading jurisconsult. See Khayr al-Dcn al-Ziriklc, al-A clAm, 8 vols.
(Beirut: Dar al-cIlm lil-Malaycn, 1980), IV, 160.
153
See Abe cAbd Allah Mumammad al-Bukharc, KitAb al-JAmi c al-RaMCM, ed. M. L. Krehl
and T. W. Juynboll, 4 vols. (Leiden: E. J. Brill, 1908), IV, 318.
154
Ibid.
198 Authority, continuity, and change in Islamic law
he does not, blood-money must be taken from him, coercively if need be.
Malik said: “Blood-money must be taken from him, even coercively, and
his [right to his own] wealth must not be protected, for he will derive no
bene¬t from his wealth if he is executed.”
There are those who espouse the view that the heir can obtain blood-
money from the murderer only if the latter consents “ a view held by Malik,
according to Ibn al-Qasim™s recension, and by a group of his followers, and
it is one of the two opinions held by Ibn al-Qasim. Analogy (qiyAs), accord-
ing to this view, also dictates that the minor children should be allowed to
attain the age of majority, because their right to punish or to pardon, or to
settle with him, overrides the right of their agnates. This is also analogous
to cases involving rights, cases that are subject to consensus. But we gather
from what has been related to us on their authority that their recourse to
juristic preference (istiMsAn) and their setting aside of analogy led them to
the view that the minors must not be awaited till they attain the age of
majority unless they are close to reaching that age. This is the crux of their
view. According to them, the minor children are entitled to blood-money
only upon the consent of the murderer; they are entitled only to punish the
murderer or pardon him, and these [decisions] can be taken by the agnates.
Underlying their juristic preference is giving precedence to punishment
over pardoning, because it constitutes a deterrence and restrains people
from committing murder. For God, the exalted, has said: “And there is life
for you in retaliation.”155 However, pardoning overrides punishment, for
God has said: “The guerdon of an ill-deed is an ill the like thereof. But
whosoever pardons and amends, his wage is the a¬air of God,”156 and
“Verily, whoso is patient and forgiving “ lo! that is of the steadfast heart
of things.”157 He also said: “And vie one with another for forgiveness from
your Lord, and for a Paradise as wide as are the heavens and the earth,
prepared for those who ward o¬ [evil]. Those who spend [of that which
God has given them] in ease and in adversity, those who control their
wrath and are forgiving toward mankind; God loves the good-doers.”158
Such statements abound in the Quran.
Indeed, the people of learning hold the view that the imam must
encourage the victim™s relatives to pardon [the murderer] before they take
the oath.159 They will take the oath and have the murderer punished only if
they persist in their demand. Therefore, since pardoning is recommended
155
Quran 2:179. 156 Quran 42:40. 157 Quran 42:43. 158 Quran 3:133“34.
159
I.e. the qasAma, which would have served to con¬rm their entitlement to prosecution.
Although ¬fty oaths are required (implying that ¬fty persons must take them), it is
su¬cient for two agnates each to swear twenty-¬ve oaths. See Abe cAbd Allah
Mumammad al-Auqarc al-Raqqac, SharM NudEd Ibn cArafa al-MawsEm al-HidAya al-
KA¬ya al-ShA¬ya, ed. Mumammad Abe al-Ajfan and al-tahir al-Macmerc, 2 vols.
(Beirut: Dar al-Gharb al-Islamc, 1993), II, 626 ¬.; cUbayd Allah b. nasan Ibn al-
Jallab, al-TafrC c, ed. nusayn al-Dahmanc, 2 vols. (Beirut: Dar al-Gharb al-Islamc,
1987), II, 2, 207“08.
The jurisconsult, the author“jurist, and legal change 199
(mustaMabb)160 “ and in this case pardoning is a right that belongs to the
minor children upon their becoming of age “ they must be allowed to
attain the age of majority. If they wish, they will pardon, thereby seeking
to attain the heavenly reward. This reward, to which they have the right
when they reach the age of majority, must not be abrogated by allowing
the agnates to have the murderer punished.
From the preceding discussion we conclude that there are two, and only
two, opinions which are relevant to this case: First, according to strict legal
reasoning, and without resort to juristic preference, the minor children
must be allowed to attain the age of majority, and the agnates must not
share with them the right to have the murderer punished. Second, accord-
ing to juristic preference, and without resort to strict legal reasoning, it is
[the agnates] who have such a right. However, the weakness of juristic pre-

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