From Fatwās To Furü: Growth and Change in Islamic Substantive Law

Abstract

AbstractModem Islamicist scholarship maintains that after the formative period Islamic substantive law became increasingly rigid, eventually losing touch with political, social, and economic developments. This view has remained in force despite the fact that some scholars have acknowledged that fatwās dealing with new issues were incorporated into subsequent manuals of substantive law. Against this view, I argue that primary and secondary fatwās not only were incorporated on a regular basis into these manuals, but also were instrumental in bringing about legal change by updating the corpus of substantive law. Drawing on a wide range of legal texts emanating from the Hanafi, Mālikī, and Shāfiī schools, I establish a strong connection between fatwās and their social background; define the methods and procedures by which fatwās were incorporated into positive law; and analyze the reasons for their selective incorporation. In the conclusion, I tentatively suggest that the evidence of the muftī's and the proto-mufti's activity in early Islamic times tends to undermine Schacht's thesis regarding the relatively late origins of Islamic jurisprudence.