ABSTRACT
Having previously discussed the law as text and the theory behind the methodology of jurisprudence, the aim of this chapter is to focus on yet another genre of Islamic literature emanating from the Qur’anic usage of the verbs aftā and istaftā . This was a short step to the terminology associated with the classical activity of legal consultation: fatwā pl. fatāwā (legal rulings), muftī (jurisconsult), mustaftī (questioner), futyā (legal consultation), iftā’ ( fatwā giving) and istiftā’ (request for a fatwā ). The famous Arab lexicographer Ibn Manẓūr (d. 1311 AD) explains the word fatwā as a legal opinion given by a faqīh (jurist) who subsequently comes to be known as a muftī . 1 In uṣūl works, the term fatwā is commonly defined as “the unbinding legal ruling of a jurisconsult”. 2 Rather interestingly, in Tyan’s opinion, the institution of the futyā corresponds with the Roman institution of jus respondendi and is comparable to it in many respects. 3
Reflecting the importance of fatwā giving in the Islamic legal system, both the interaction of the muftī and the mustaftī , and the fatwās themselves have been analysed by the ʿulamā’ of various eras. Over time, fatwās thus formed a separate and very extensive genre of religious literature. In Western scholarship, on the other hand, this genre has received little attention. Nevertheless, at the present time, the importance of Islamic legal opinions for scholarly research seems to be established. For example, in their introduction, the editors of Islamic Legal Interpretation stress that research focused on muftīs and their fatwās is integral to current efforts to refine our understanding of the history of Islamic law. 4
The gathering of individual fatwās into written collections had started in the second half of the 10th century and still continues today. 5 Within
this continuous stream, some fatwās have been transformed from a personal view of one jurist into the law of their respective madhhab . 6 According to Hallaq, fatwās were not only incorporated on a regular basis into subsequent manuals of substantive law, but were also instrumental in bringing about legal change by updating the corpus of substantive law. 7 Fatwās therefore were historically a privileged genre for the development of Islamic law.
