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What Becomes a Legal Problem? Non-Scholarly Actors and the Pre-History of the Fatwa
Abstract
Discussions of legal change in the shar'i system often focus on the role of legal opinions (fatwas) in addressing concrete legal problems that may reflect emerging social needs. Wael Hallaq has argued that fatwas are the conduit through which new questions and approaches can be introduced into legal discourse, ultimately becoming incorporated into the standard manuals of the schools of law and renewing their relevance. Hallaq has presented substantial evidence that, to a large degree, the body of fatwas available to us represents responses to actual questions raised by historical persons, rather than to abstract or hypothetical scenarios. The generic form of the legal enquiry (istifta') in many cases results from a process of abstraction that strips an originally concrete and circumstantial enquiry of its extraneous detail, yielding a neutral legal fact pattern that can be answered in abstract terms. Indeed, Islamic legal theorists distinguished between judges' verdicts and muftis' opinions in part by observing that judicial verdicts apply to concrete individuals, while legal opinions (fatwas) apply to generic classes. In recent years, scholars such as David Powers have taken advantage of fatwas responding to queries that are reported in the sources with their original degree of specificity intact. Despite the great progress that has occurred in recognizing and exploiting legal inquiries and opinions as historical sources, there has been a tendency to regard the legal process as occurring between the questioner (and sometimes his or her antagonists in a legal case or social conflict) and the legal scholar. Beyond this dyad has loomed the abstraction of "social change" and the resulting need for new legal solutions. This paper attempts to address the larger context of the legal process, and specifically, the process by which a given issue might be identified as a "problem" requiring legal solution. Using the example of women's access to and behavior in mosques, it uses new evidence (including new manuscript evidence) to suggest that, at least in some cases, a number of different actors could be involved in raising an issue and labeling it as a problem requiring solution, with legal scholars becoming involved and issuing fatwas only at a secondary stage. Nevertheless, the legal scholars themselves tended to represent the process as having been initiated by them and driven by the issuing of fatwas and the construction of legal rationales, eliding the role of non-scholarly actors.
Discipline
Law
Geographic Area
All Middle East
Sub Area
13th-18th Centuries