International Law · Uncategorized

Islamic Law – Correct misconceptions! (Chapter 1 – Part 2)

As I mentioned before, there were four pillars which contributed to the practice and development of Shari’ah. They are Mufti, Fatwa, Qadi and the other factors. The idea is when we disclose the role of each of them, we can know how legal system worked and this answer is such an important piece of information that help us reveal the mystery of Shari’ah.

Before we start the journey back time, I would like to remind you again how important the history is. If you understand the history clearly, you will realize the huge differences between the original Islamic law and the modern so-call Islamic law which existed in some Islamic countries in which will be presented in some next chapters.

Depending on the central role in the early evolution of Shari’ah as well as his indispensable contribution to the lasting flourishing existence of Islamic law, I would like to begin with the Mufti. According to George Makdisi (1989) in Scholasticism and Humanism in Classical Islam and the Christian West, we can think of Mufti as a “professor of legal opinions solicited by the faithful”. The Mufti, performing a central function, was a private legal specialist who was legally and morally responsible to the society in which he lived, not to a ruler and his interest. To become a mufti, according to the Reaching the status of mufti by Abdurranhamn in Yusuf Magera, a person has to fulfill those following conditions:

  1. Knowing Arabic;
  2. Mastering the study of principles of jurisprudence;
  3. Having sufficient knowledge of social realities;
  4. Mastering the study of comparative religions;
  5. Mastering the foundations of social sciences;
  6. Mastering the study of Maqasid Ash-Shari’ah (the foundation goals of Shari’ah)
  7. Mastering the study of Hadith;
  8. Mastering leal maxims.

Once he acquired these requirements, he can serve his community as a mufti.

What did a mufti do? Which type of job that needs too much requirements like the above?

That is Fatwa. Fatwa, it is the legal answer to the question a mufti asked to address. In recent years, the term fatwa bas been widely used throughout the media, usually to indicate that a death to someone or some group of people. The central role of fatwa explains one important fact, that law was to be found not in precedent established by courts of law (a notion based on the doctrine of Stare Dicisis), but “rather in a juristic body of writings that originated mostly in the answers given by muftis”. Comparing a fatwa to the legal ruling of a high court or the Supreme Court, a fatwa is not binding as is the verdict of the secular courts; while correct and applicable to all members of the Muslim faith, the fatwa is optional for the individual to respect or not.

Therefore, a question rises around this issue, when and how a fatwa is applied? In nations that observe Islamic law, fatwas are debated before being issued publicly. They are affirmed only by consensus, which is determined by the supreme religious council of that nation. Thus, the fatwas “rather than court decisions were collected and published, particularly those among them that contained new law or represented new legal elaborations on older problems that continued to be of recurrent relevance”.

And the last type of person is the Qadi, or in other words, the judge. It is beyond doubt that job of a judge is adjudicate the disputes, which is the main task of the judge in modern days. But it was not the only thing a qadi did, in fact, he was extremely proficient and understood his community clearly because he was in charge of supervising much in the life of community. “He inspected newly constructed building, and the operation of hospitals and soup-kitchen, and audited among those things, the all important charitable endowments”.

Yet if you talk about a traditional qadi but you just mention these things above, you may still do not know clearly about them. Qadi, also known as a mediator who gave advices and settle the dispute. But unlike modern judges, those mediators “tried hard, wherever possible, to prevent the collapse of relationship so as to maintain a social reality in which the litigating parties, who often came from the same community, could continue to live together amicably “.

After these pieces of information, I think you could draw the outline of how whole traditional legal system of Islamic country ran. By this article, we have disclosed that mufti as well as qadi had a close connection with the fatwa. On the other hand, we also disclosed mufti as well as qadi was the author-jurists who had a close connection with their society, not related to the ruler. I mean, before the state appeared, the legal mechanism worked in self-rule way, and despite the fact that many people do not appreciate it, I must say there had been a sign, a type of democracy existed among those communities.

And once the first door is opened, a new questioned is raised and need the answer of us, that is “How did the author-jurists and mufti get these laws from its sources? And what sources?”

Whether you may get the right answer? Let’s find out in the next chapter!

(Move to Chapter 2 – Part 1)

(Return to Chapter 1 – part 1)

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