The “content” of any medium blinds us to the character of the medium.
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 had apostatized and could no longer be his wife according to the Islamic law. “Annulled”, wrote Thanawi while explaining that “unbelief causes annulment of the marriage contract and marriage of the claimant stands invalidated.“
During the 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 – include 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.
to be concluded in Part III…