FATWA: THE EVOLUTION OF AN ISLAMIC LEGAL PRACTICE AND ITS INFLUENCE ON MUSLIM SOCIETY A Dissertation Submitted to The Temple University Graduate Board In Partial Fulfillment of the Requirements for the Degree DOCTOR OF PHILOSOPHY by Omer Awass May 2014 Examining Committee Members: Dr. Khalid Blankinship, Advisory Chair, Religion. Dr. Mahmoud Ayoub, Religion. Dr. John Raines, Religion. Dr. Jayasinhji Jhala, External Member, Anthropology. ii © Omer Awass 2014 All Rights Reserved iii ABSTRACT My dissertation examines the transformation of Islamic legal discourse and the impact of that discourse on Muslim society. More particularly, it analyzes fatwas (religious legal edicts) over the course of Muslim history so as to determine how this legal mechanism was instrumental in the making and remaking of Islamic law and society. Historically speaking, substantive aspects of Islamic law developed out of the material of fatwas. In the very early stages of Islamic history there were no codified laws to guide people in their religious and social concerns, but the manner in which Muslims received guidance with regards to their religious practice was that they posed their concerns to early proto-jurists in the form of religio-legal questions, which these jurists addressed in the form of fatwas. Out of the critical mass of these fatwas, Islamic legal manuals began to be compiled and a definitive corpus of Islamic law came into being. Essentially, my investigation looks at the development and continuing evolution of Islamic law through lens of a particular legal practice: issuance of fatwas. By examining fatwas in different periods of Islamic history from the beginning until today, I chart the transformations that take place in Islamic legal tradition(s) as a result of the encounter with changing socio-historical conditions. More particularly, my analysis draws attention to the way in which legal practices amongst jurists created discursive shifts to established norms within Islamic legal discourse on how these discursive shifts contributed to the evolution of Islamic law. Moreover, by analyzing fatwas issued from Muslim jurists from various regions and periods, I identify how fatwas were essential catalysts for historical change, which gives us a better appreciation of the interrelationship between law and society. iv This historical foundation provides a basis for a diachronic assessment of the transformations that take place in Islamic legal tradition as a result of the encounter with colonialism. In latter part of my investigation, I examine how the practice and rationalization of fatwa has changed due to the ramifications of colonialism on the Muslim world. In this era, the established practices and doctrines of Islamic law were critiqued through the lens of modern Western ideas. This spawned modern Muslim movements that sought to reform Islamic law and redefine its relationship to the state and society. After historically establishing the ideas which were advocated by reformers, my goal is to assess whether those calls for reform have actually affected the practice Islamic law at the substantive and procedural levels. I do this by subjecting fatwas issued in the postcolonial period to critical analysis, so as to determine whether the procedures or rationale of fatwas have changed in a fundamental way. The larger themes that I address in my latter analysis is whether this modern trend amongst some Muslim thinkers and jurists towards contextually oriented legal concepts represents a lasting shift away from the traditional textually oriented legal methodology to produce a new type of discourse that is revolutionizing Islamic law or is it a passing phenomenon that will not make a lasting impact on how Islamic law is derived in the future. Fatwas are the key starting points in addressing these question because they represent the most elemental dimensions of Islamic law and the new legal developments within it. So, they offer vistas on how Muslim religious and legal practice will undergo a transformation in the future. v DEDICATION For Misala. Thanks for your continious love and support. vi ACKNOWLEDGMENTS I would like to thank my dissertation committee members for their advice, support, and patience through this long process of completing the dissertation and their mentorship throughout my years as a graduate student at Temple University. I would like to especially thank my advisor, Dr. Khalid Blankinship, for his valuable comments on my dissertation manuscript. I would like to thank all of my professors at Temple University, whom I learned a great deal from over the many years of studying and conversing with them. Lastly, I would like to thank my colleagues and the staff at Temple University’s Department of Religion for their support and their contributions to my intellectual development through the many engaging interactions we had during my tenure in the department. vii TABLE OF CONTENTS Page ABSTRACT…………………………………………………………………………....... iii DEDICATION………………………………………………………………………....... v ACKNOWLEDGEMENTS……………………………………………………………… vi LIST OF FIGURES………………………………………………………………………. xi INTRODUCTION………………………………………………………………………... xii CHAPTER 1. THE QUR’AN AND THE FORMATION OF AN ISLAMIC LEGAL CULTURE….. 1 Introduction………………………………………………………………………. 1 The Advent of Islam and the Religio-Cultural Transformation of Seventh Century Arabia. ………………………………………………………………….. 5 Socio-Economic Transformation of Seventh Century Arabia and the Qur’anic Legal Discourse. …………………………………………………………………. 39 Nomadic and Tribal Life in Pre-Islamic Arabia………………………….. 39 Pre-Islamic Arabia: Settled Societies…………………………………….. 45 The Qur’anic Discourse and the New Socio-Economic Paradigm………. 48 From Tribe to Ummah…………………………………………… 48 Reforms on an Economic Level……………………………….. 55 Conclusion. ………………………………………………………………………. 62 2. FATWA IN THE PROPHETIC AND POST-PROPHETIC PERIOD……………....... 66 Introduction. ……………………………………………………………………... 66 The Dialogical Style of the Qur’anic Discourse and the Epistemological Foundations of Ifta’.………………………………………………………... 67 The Beginnings of Ifta’ in the Prophetic Practice………………………………... 76 The Near East and North Africa during the Period of Early Islamic Expansion… 94 viii Fatwa in the Post-Prophetic Period. ……………………………………………... 102 Fatwa in the Age of Early Caliphate. ……………………………………. 106 Conclusion. ………………………………………………………………………. 122 3. FATWA IN THE CLASSICAL AGE…………………………………………………. 124 Introduction. ……………………………………………………………………... 124 Fatwa in the Age of Regional Distinctions……………………………………….. 125 Fatwa in the Age of the Madhhab-Makers……………………………………….. 142 The Implications of Discursive Legal Activity on the Formation of Muslim Society. …………………………………………………………………………... 160 Conclusion. ………………………………………………………………………. 169 4. FATWA AND THE FORMATION OF THE ISLAMIC LEGAL TRADITION……. 171 Introduction………………………………………………………………………. 171 Socio-Political Developments 3rd/9th -4th/10th Century AH/CE: The Demise of the Caliphate and the Rise of the ‘Ulama. ……………………………………….. 172 The Genesis of Legal Theory, Legal Doctrines and Institutions in the Late caliphate and Post-Caliphate Period……………………………………………… 177 The Transformation of Key Islamic Legal Concepts and the Creation of Islamic Legal Theory. ……………………………………………………. 182 The Construction of Islamic Legal Doctrines and Schools………………. 197 Fatwa as the Substantive Basis of Islamic Legal Doctrines……………… 207 The Formation of an Islamic Legal Tradition……………………………………. 211 The Discursive Islamic Legal Tradition, the Formation of the Legal Subject, and Fatwa. …………………………………………………………………………..... 218 Conclusion. ………………………………………………………………………. 224 5. FATWAS, MUFTIS, AND MADHHABS: THE FORMALIZATION OF IFTA’ WITHIN THE LEGAL SCHOOLS……………………………………………………… 227 Introduction. ……………………………………………………………………... 227 The Process of Ifta’ and the Islamic Jurisprudential Field……………………….. 228 Discursive Rules of Fatwa, Classes of Muftis, and the Authoritative Structure of Madhhabs………………………………………………………………………… 237 The Early Phase of Formalization of Fatwas and the Structuring of Madhhabs C.1100-1300………………………………………………….. 238 ix The Later Phase of Formalization of Fatwas and the Structuring of Madhhabs: To C.1800 CE………………………………………………... 263 A Note on the Formation of Shi’ite Legal Thought and Institutions…………….. 276 Conclusions. ……………………………………………………………………... 281 6. FATWA IN THE AGE OF PREPONDERANCE OF LEGAL SCHOOLS…………... 282 Introduction. ……………………………………………………………………... 282 Socio-Historical and Political Situation in Muslim World in the Age of Madhhab Preponderance I: c.1100-1500…………………………………………. 283 The Systemization and Structuring of Islamic Law I: Ifta’ within the Confines of Madhahib in the Age of Political Upheaval……………………………………… 292 Ibn Rushd Al-Jadd’s Fatwa on Pardoning or Punishing for Murder: c. 6th/12th Century AH/CE…………………………………………………. 294 Ibn Taymiyyah’s Fatwas on Mongol Incursions into Syria (c. 1300)……. 302 Socio-Historical/Political Situation in Muslim World in the Age of Madhhab Preponderance II (C.1500-1800)…………………………………………………. 322 Notes on the Development of Twelver Shi’ite Law during the Safavid Period….. 329 Socio-political dimensions to the Usuli-Akhabri debate…………………. 332 The Systemization and Structuring of Islamic Law II: Ifta’ within the Confines of Madhahib in the Age of Empire……………………………………………….. 334 Abu al-Sa‘ud’s Fatwa on Cash Philanthropic Foundations (Waqf al- Nuqud): c. 10th/16th Century…………………………………………….. 334 Al-Karaki’s Fatwa on Kharaj (Land Tax) c. 10th/16th Century…………. 345 Conclusion. ………………………………………………………………………. 368 7.