From Issue: 946 [Read full issue]
Initially, what differentiated one school of law (madhhab) from another were methodological disagreements and not necessarily the actual determinations. With the increasing consolidation and institutionalization of schools of thought, each school developed its own distinctive cumulative interpretive culture, structural precedents, and even particular linguistic practices. Importantly, the founders of the schools of fiqh and the early jurists in general did not intend to generate binding legal precepts. Rather, acting more like law professors and legal scholars, they produced legal opinions and analysis, which became part of the available common law to be adopted by state-appointed judges in light of regional customary practices. Legal scholars from the different schools of thought were often far more interested in hypotheticals that illustrated their analytical models and methodologies than in passing judgments on actual disputes. This is why fiqh studies did not speak in terms of positive legal duties or prohibitions but analyzed legal issues in terms of five values: (1) neutral or permissible (mubah/ halal); (2) obligatory (fard/ wajib); (3) forbidden (muharram); (4) recommended (mandub/ mustahab); and (5) reprehensible or disfavored (makruh). Frequently, jurists spoke in probabilistic terms, such as saying "what is more correct in our opinion," referring to the prevailing view within the jurist's school of thought (al-murajja'a 'indana). The critical point is that the masters of fiqh understood that they were not making binding law but issuing opinions of persuasive authority.
The difference between fiqh and positive law was akin to the distinction between fatwa and hukm. A hukm is a binding and enforceable legal determination, but a fatwa (responsa) is a legal opinion on a particular dispute, problem, or novel issue, which, by definition, enjoys only persuasive authority. Both fiqh and fatawa (sing. fatwa) become binding law only if adopted as such by a person as a matter of conscience or if adopted as enforceable law by a legitimate authority such as a judge. In other words, fiqh and fatawa are normative legal proposals that are contingent on essential enabling acts or triggers: the conscientious acceptance of its mandatory authority by a Muslim practitioner or an official adoption by a proper authority. Failure to appreciate this fundamental point about the construction and structure of the legal views expressed in fiqh works has led to a great deal of ill-informed and misguided scholarship about Islamic law.
"Reasoning with God: Reclaiming Shari'ah in the Modern Age" - Khaled Abou El Fadl