Qadis and muftis in chronological perspective

Both the religious symbolism of qadiship and muftiship and the legal, social and political scope of their performances, have managed to resist the passage of time; not intact, however.

Though it would be problematic to place the origin of the office of the qadi and the mufti in the Quran and the Prophetic Sunnah, i.e. the main textual sources of the Shari'ah, they can be safely taken to reflect assumptions about justice and its makers in pre-Islamic Arabia and in the early Islamic imagination that became relevant in the emergence of the Shari 'ah judge and interpreter as we know them today.

2.1 Qadis

The two Arabic stems commonly associated with imparting justice in Islam (h-k-m and q-d-y) are present in the Qur’an. The former is used in connection with Muhammad’s activities as judge and arbitrator (e.g. Qur’an 4:65, 105; 5:42; 48:9; 24:48,51), whereas the latter appears only as a verbal noun (qada ’) in the sense of command by God, authoritative decision by His Prophet and the Last Judgement.

Descriptions of the Prophet playing the role of arbitrator or deciding disputes by means of a judgement in the Qur’an and the Sunnah established the moral ideal subsequent Mus­lim judges were expected to fulfill. The double function of ruler and judge exerted by the Prophet continued to be performed directly by his immediate successors and well into the Umayyad period, though with the establishment of the garrison towns, judicial compe­tences started to be delegated to judges designated as qadis on a regular basis. They had the mission to administer justice according to their understanding of what Islamic sacred law looked like at the time.

With the expansion of the Islamic empire, the growing sophistication of the state appa­ratus, the emergence offiqh as a scholarly discipline and of interpretive schools of law (madh- habs), qadiship developed into a professional occupation, and experts in Islamic religious sciences — fiqh in particular — became the ideal candidates to fill the position. As the judiciary became more professional, qadis started to receive regular salaries. These increased consider­ably from the end of the eighth century CE onwards, rendering the position more attractive and vulnerable to corruption. However relevant scholarly merits and ethical values may have been, ethnic, tribal and family affinities are also known to have played a significant role in a ruler’s decision to appoint a qadi because of the position’s potential to disseminate official ideology and to control the local communities.

As to qadis’ legal competences, variation along dynastical, geographical and temporal lines is the constant. If, according to the theoretical definition of qadiship elaborated by jurists, the Shari ah judge is the judge par excellence in all areas of the law, in practice, qadis’ compe­tences depended on the will of the appointing authority, with a marked tendency to entrust the repression of crimes and torts, the inspection of morals and the markets, and the mainte­nance of public order (shurta, hisba) to non-qadi judges and military governors. The ruler, on the other hand, retained the power to do justice in person and exerted it quite often, directly or by means of a specific state official, in case of the petitions and complaints of their subjects (mazdlim) about administrative and judicial abuses. Occasionally, complaints received by the ruler were redirected to a qadi for their resolution whereby the process became subject to Shari ‘ah rules rather than the siydsa or governmental justice applied by non-qadi judges, siydsa being not a secular law devoid of religious connotations but less strict than the Shari ‘ah es­pecially as far as evidence, judicial procedure and the prohibition of torture was concerned.⁹

The creation of the figure of the chief qadi (qadi al-qudat) by the Abbasid caliph Harun al- Rashid (r.

In principle it may be assumed that a strong central power is less dependent on the reli­gious legitimacy provided by the ‘ ulama and, hence, on the symbolic representation of that power by Shari 'ah judges; those historical cases in which qadis managed to exert a high de­gree of social and political influence¹¹ would have been possible mainly because of political crisis and territorial fragmentation. Conversely, the failure of the Abbasid caliph al-Ma’mun’s attempt to monopolize the definition of religious orthodoxy in 849 (i.e. the so-called mihna or inquisition) has been traditionally understood as opening a new era in which control over the elaboration and the implementation of Islamic sacred law reverted to the religious schol­ars to the exclusion of the ruler. Yet this moment also marked a decline in the status of the chief qadi as the main representative of central power to the benefit of the vizier. Conversely, as the Almohad and Ottoman experiences appear to indicate, a ruler’s or dynasty’s greater capacity to intervene in legislation and a tighter control of the judiciary does not necessarily bring about a weakening of chief qadiship or a limitation of the competences and influence of Shari 'ah judges.

A single qadi’s jurisdiction might include several towns of varying relevance, with their districts. For all the pre-modern period, qadi courts (mahkama, mahakim) were presided over by a single person, assisted, depending on the size and relevance of the jurisdiction in ques­tion, by a secretary (kdtib, amin), professional witnesses ('udUl), a chamberlain (jilwdz), hench­men (a‘wan), and deputies (nuwwdb), if the attribution to appoint the latter was given by the appointing authority. Qadis were encouraged to consult on their judgments with muftis, especially when the case at hand required the application of bodily punishment, raised a dif­ficult legal question or had sensitive political implications. This recommendation became an obligation in certain regions like al-Andalus where the qadi’s tribunal included an advisory council (majlis al-shUra) made up by legal experts selected by the qadi. Judicial consultation could also involve legal experts other than the members of the shUrd. The latter consultative body might also offer legal advice to the ruler.

The qadi and the members of his tribunal convened to receive the litigants and decide their cases in the qadi’s domicile or in the mosque. These were public sessions open to women as well as dhimmds. Female litigants were given the option either to appear in court, to dictate their claims and counterclaims to the secretary, or to act by means of an agent (wakdl). Disputes involving dhimmis alone could be voluntarily submitted to the qadi to be decided according to Islamic law. The pre-Ottoman Islamic court was thus not bound to a given physical space but to the judge’s person. He was the custodian of the court archive (dtwdri) — which he had normally received from his predecessor — together with documents relative to detainees in prisons, whom he was to oversee. The archive included all the documents kept by the judge. They used to be of two types: mahdar and sijill. The former is a record of the litigants’ actions and claims, of their witnesses’ declarations made in the presence of the qadi in connection with an individual case, and of the result of the qadi’s investigation concerning that case.

Qadis were instructed to issue judgment according to the doctrine of a given legal school (madhhab), normally the one they adhered to. As in the case of judges in any other legal system, qadis’ decisions were also informed by socio-cultural norms, established judicial practices, local customs and their personal appraisal of the circumstances of the case at hand. More often than not, disputes submitted to a qadi did not end in a formal judgment but in an amicable settlement (s«lh) or in judicial certification.¹²

The qualifications to be met by the ideal candidate to qadiship, the conditions rendering valid his appointment, and the nature and extent of his competences were established by jurists themselves, mostly in works dedicated to ‘the craft of judging’ (adab al-qadi). These works have to be used with caution because they do not always reflect actual practice but the ideal it was thought the practice should aspire to, ideals and aspirations being no less relevant to the study of legal systems and societies. Qadd’ is described there as a public duty (i.e. a duty towards God) that can be performed by one individual in the name of the community (fard kifdya). This individual must be an adult Muslim male. Hanafis’ admission of women to serve as qadis in civil matters has not translated into actual appointment of females to the position. A qadi must know the Qur an and the Prophetic Sunnah as well as the doctrine of the legal school to which he is affiliated. The question of whether or not he must be able to exercise Ijtihad or independent legal reasoning is subject to disagreement. A qadi is also expected to be honest, pious and a balanced person.

Appointment is not cancelled automatically by the death of the appointer (except for the Shi' is) but if the selected candidate demonstrates not to be legally competent to pass judg­ment, he must be dismissed and his judgments reversed. Appointment by an illegitimate ruler (e.g. a non-Muslim ruler) may, according to some, compromise the validity of his decisions.¹³ A sound qadis’ judgments are reversible also when they are the result of an error of law (e.g. improper interpretation of Qur’an or Prophetic Sunnah, or disagreement with consensus or ijma ‘) contrary to errors of fact (e.g. a false or wrong testimony), which do not affect the va­lidity and binding character ofjudgments. A qadi is presumed to be qualified to perform his office and to have issued correct judgments. His successor is thus not required to investigate the actions of his predecessor unless he has a reason to do so.

The judicial system developed by the Abbasids prevailed later in Mughal India and Sa- favid Iran. The Ottomans followed similar lines and succeeded in co-opting the judiciary to tighten the control of their vast dominions by creating a hierarchical structure headed by the military judges (qadi ‘askar) and the state mufti (shaykh al-isldm). Next came the qadis of the major towns and cities (mewlewiyets); below them were the qadis of districts (qadd’) and sub-districts (nahiya). Governmental legislation (qdnun), initially conceived as a complement to fiqh, started to be compiled and to regulate areas like the powers and the jurisdiction of qadis and local officials whose at times overlapping competences were assigned with a view to ensure mutual checks and balances. State controlled madrasas with a formal syllabus were instituted for the training of qadis. Sultanic intervention was not limited to restructuring the judiciary but reached the very process of qadis’ decision making; qadis were instructed to issue judgment in accordance not just with a given legal school (the Hanafi) but with the most authoritative opinions within that school, whereby their freedom to opt for the legal opinion they saw as most fitting to the case at hand was restricted. Yet with the Ottomans, qadis performed tasks (e.g. controlling the activities of the craftsmen and the sustainability of buildings, securing the availability of foodstuffs and enforcing economic regulations) that had been elsewhere assigned to other magistrates (e.g. the inspector of the markets; muhtasib, sahib al-suq). The long aspiration not just to monopolize but to exert control over the admin­istration ofjustice became partly realized by those local qadis entrusted with the monitoriza- tion of the activities of other state agents like police officers, whereas qadis’ conduct itself was supervised by the local governor in the name of the Sultan.¹⁴

Alongside their judicial and quasi-judicial functions, Ottoman qadis performed a series of military tasks, such as overseeing the safety of the roads or ensuring that craftsmen actually joined the army after an enrolment drive. A significant part of their time was also dedicated to administrative and notarial tasks, sometimes officially assigned to them, sometimes per­formed voluntarily, in which provincial qadis operated as intermediaries between the central government and the local communities, especially as far as the filing of petitions and com­plaints to the Sublime Porte was concerned.

Important reforms took place in the 19th and 20th centuries as a consequence of European colonization of the Middle East and North Africa and the emergence of Muslim-majority modern nation states. The radical changes these reforms represented for the classical config­uration of qadiship have been summarized as follows: 1) abolition of siyasa or discretionary governmental law in favour of the state exerting now exclusive competence over criminal justice; 2) bureaucratization of Shari 'ah courts; 3) codification of the Shari 'ah; 4) division of the judiciary into two systems: a secular national court system that applies legal codes of Western inspiration and Shari 'ah courts keeping jurisdiction over disputes regarding family issues and inheritances applying, in most cases, state-enacted codifications of the relevant fiqh rules; 5) gradual integration of the Shari 'ah courts into the national court system.

This reform movement had already started in the late Ottoman period when a series of measures were taken to centralize and modernize the administration of the empire of which the legal system was part through the creation of a bureaucracy with jurisdictions and pow­ers, and later on, procedures, clearly defined by enacted laws. The aim was to submit the operation of all the ensuing bureaucratic and judicial organs to identical procedures. Legal predictability was sought by further limiting the capacity of qadis, muftis and other state officials sitting on judicial councils to exert personal discretion. Special courts and councils were created and new codes were enacted in the fields of penal and commercial law, though they did not yet replace fiqh completely nor did the newly created secular courts replace the qadi courts. Yet from 1886 their jurisdiction was limited to issues concerning personal status, family, inheritance, retaliation and blood money, sharing jurisdiction with governmental (nizamiyeh) courts whenever homicide was involved. Qadis were instructed to adjudicate certain cases according to qanun rather than fiqh, a requirement they were occasionally re­luctant to follow. Their ranks, the duration of their terms and their salaries were fixed by governmental decree.

With the foundation of the Republic of Turkey in 1917, qadi courts were abolished and the legal system became entirely secular. However, the reforms introduced in the late Ot­toman period had a lasting influence in Egypt, Iran and other areas of the Middle East that remained under Ottoman rule until the First World War and which came to be subsequently controlled by French and British colonial powers. Ottoman compilations offiqh rules gave way to codification proper in the realm of the Shari 'ah; the fiuqaha ' were not deprived of the capacity to interpret the Shari 'ah but lost the monopoly they had traditionally exerted in that regard to the benefit of the state.

In the areas controlled by the French, Italy and the Netherlands, the dual court system and the legal pluralism introduced by the Ottomans remained, with family and inheritance matters under the jurisdiction of religious courts — occasionally applying codified fiqh rather than the standard law books — and the rest administered by secular courts applying laws based on those of the metropolis. The above-mentioned duality persisted after these countries achieved independence. In India and Nigeria, British colonial authorities preserved the local qadi courts for the Muslim population and did not interfere in their outcomes as long as they were deemed compatible with their understanding of ‘natural justice, good conscience and equity’ (e.g. amputation or death by stoning sentences were commuted to imprisonment, but pardon by the victim’s relatives was replaced by the death penalty in cases of murder). A similar pattern was adopted in the Spanish protectorate of northern Morocco, a region that was never part of the Ottoman realm.¹⁵ Adaptation of the Shari 'ah to British legal and ethical standards brought about the introduction of a series of regulations which gradually modified fiqh provisions, especially in the punishment of crimes and torts, to be eventually replaced by statute law. Colonial experience in India — where no division between ‘secular’ and ‘religious’ was initially put into operation but a hierarchy of first and appeal instances — has determined the way that Shari 'ah is currently applied in Bangladesh, India and Pakistan, where ‘Anglo-Muhammadan law’ is applied by national regular courts. In Nigeria, and fol­lowing it, in other African colonies, the British set up ‘native courts’, which enforced, in sim­ilar conditions to those seen before, Maliki legal doctrine under the guise of ‘customary law’. Judges were appointed by the local rulers (emirs) with the approval of the British governor.

Intervention in the judiciary by colonial powers resonates with the situation of the Mus­lims in medieval Iberia — the so-called mudejares — after the Christian conquest of al-Andalus from the beginning of the 13th century CE onwards.¹⁶ The jurisdiction of the Shari 'ah was established by a non-Muslim authority, qadi courts operated under the supervision and con­trol of an alien power who did not directly appoint but confirmed the candidate selected to preside over them, and, as the British did in India and Nigeria, Shari 'ah justice was occasion­ally administered by Christian representatives of the crown with the assistance and advice of Muslim experts.

Today, the Shari ah is part of the national legal system of all Muslim-majority countries except Turkey and Albania, where the Shari ah is no longer applied by the courts. The other end of the spectrum is occupied by Iran and Saudi Arabia, whose legal systems are dominated by the Shari 'ah. In the remaining cases, the law of the land is of Western inspiration, while personal status, family law, inheritance, endowments and, only in some countries, financial compensations for bodily harm and homicide are ruled by Shari 'ah, though on the basis of codes the compilation of which entails making a selection when divergent legal views apply to a single question. Apart from the problem of the criteria and the interests privileged in the selection process, codification reduces the flexibility of the legal doctrine and the judge’s lati­tude since the possibilities for judges to find a solution fitting specific circumstances are dras­tically limited in this way. Conversely, the application of codified Shari 'ah no longer requires expertise in fiqh. In many countries, the single qadi has been replaced by panels of judges. Courts of appeal have been established occasionally without correlation between religious and non-religious regular and high instances. Moreover Shari ah courts are almost everywhere controlled by national supreme courts. In Egypt, Tunisia and Algeria Shari 'ah courts were abolished in order to unify the judiciary, whereas in Saudi Arabia, Shari 'ah has always dom­inated the legal system. After Islamist movements took power in Pakistan, Sudan, Iran and, because of popular pressure, northern Nigeria, Shari 'ah has been ‘reintroduced’. The result has been a return to a nominally Islamic legal system but not to pre-modern models of judicial organization, nor to a replacement of the former nation-wide, unified and threefold¹⁷ court system. In some cases Western inspired codes have been replaced by Shari 'ah codes, but these are applied according to the regulations on procedure and evidence established by the previ­ous Western codes. In other cases like Egypt, ‘Islamization’ has been sought by introducing a provision in the Constitution rendering the Shari 'ah the ‘main source of legislation’ to which the country’s laws must conform with a very limited practical impact in the legal system.

In most Muslim countries women can serve as judges, or as auxiliary judges, in secular courts.

2.2 Muftis

If the authority enjoyed by the Shari 'ah in modern times were assessed according to what the state codification and state-enacted legislation have in store for qadis, the conclusion would be a decline in its capacity to shape and regulate interpersonal relationships. Yet the historical evolution of muftis — the other essential pillar for the translation of Shari 'ah to the society at large — tells a completely different story that is more in line with the result yielded by other testing grounds, as transpired from present-day religious and political discourses. Muftis’ capacity to face the changes brought about by the standardization and nationalization of most legal systems in Muslim majority countries seems to lie in the dual nature of their office. Muftis were and continue to be approached by private individuals informally and in­dependently from political authorities and other legal institutions. At the same time they can receive official appointments from the state to perform as advisers attached to public religious establishments or as muftis of the land.

Fatwas, whether issued at the request of a private individual or of official authorities, are considered to have helped to adapt the Shari ah to changing circumstances better than any other legal genre. The greater availability of fatwas in the pre-Ottoman period has produced the impression that it is thanks to them rather than to qadis’ judgments that a legal doctrine could be elaborated to answer practical needs and adapted to changing circumstances. Fatwas would have been considered worthy of preservation because their applicability transcended the specific circumstances that triggered their issue whereas the validity ofjudgments would have been limited to the litigations they came to settle. Yet the question of whether or not and to what extent the doctrines included in standard law manuals originate in opinions issued by legal experts and not in legal precedents set by actual judgments is difficult to discern.¹⁸ Why the specific circumstances that triggered a fatwa do not impeach the ‘universality’ of its im­port but do so in the case of a judgment, is not clear to this student either. Whenever the state did not have the capacity to keep systematic archives, the preservation ofjudicial records de­pended on the jurists and their contents were lost in most cases, while other, more narrative, legal writings were preserved without a problem. Conversely, when a state decides to compile and archive official documents systematically it is because it has enough capacity and because archives are thought to support the administration of the land and to enhance control over its dwellers. Therefore it is possible to conjecture that the greater availability of fatwas in the pre-Ottoman period is not due, or at least not only, to their capacity to inspire further legal interpretation vis-à-vis judgments and actual legal documents, but to other factors related to jurists’ position in society and the power relations involved in legal writing, documents and compilations of judgments being more exposed to political instrumentalization than other legal literary products. When local judicial practices ('amaliyyat) and customs are wielded by the jurists it is not always with the aim of making the administration ofjustice more predict­able but to assert local idiosyncrasies vis-à-vis central political power.¹⁹ That the compilation of fatwas was seen as fostering unquestioned following of earlier legal authorities (taqlld) is shown by the prohibition of engaging in that activity enforced by the Almohads throughout their rule. In as much as taqlid contributes to give unity and stability to the legal schools, ban­ning fatwa collections may also be seen as a means to keep check on their power and explains the jurists’ taste for that literary genre in particular, its success being an illustration of these jurists’ capacity to resist external pressure.²⁰

Formulations condensing the basic features of fatwa giving are already present in the Quran where terms derived from the root f-t-y and its synonyms appear to refer to instances in which Muhammad is consulted about a certain question and God reveals the answer to him (e.g. Quran 2:189, 215, 217, 219, 220, 222; 4:126, 176; 5:5; 7:186; 8:1; 27:85; 28:84; 20:105; 79:42), whereas the need to seek and follow the advice of religious authorities is con­nected with Qur’an 4:63 and 16:43. In hadith literature, Muhammad’s legal advice adopts the form of an immediate, of obligatory compliance, response to practical problems. The duty to provide religious guidance was inherited by the Companions, their Successors and those with a good command (‘ilm) of the Quran and the traditions from the Prophet (i.e. 'ulama ’). Though lacking the infallibility exclusive to the Prophet, during the first Islamic centuries futya contributed to refine the interpretation of the normative import of the Qur’an, to col­lecting and fixing the corpus of the Sunnah, and to the elaboration of a distinctive identity and behavioural model that would crystallize in what we know as the Islamic Shari'ah.

Muftis functioned informally and independently from state control at the request of indi­viduals, or groups of individuals, in need of legal advice. To perform as a mufti one needed to be acknowledged as a religious authority and a pious person. No official titles were re­quired; the scholars regulated their activities and established the conditions to exercise them internally. The issuance of fatwas at the request of qadis and provincial governors dates back to the Umayyad period (661—750). By the end of that period, fatwas had become an effective means to express dissent and criticism in public as well as a powerful mechanism of religious legitimization which rulers did not hesitate to use in exchange of lucrative governmental positions if need be, thereby enhancing their capacity to control the jurists. The authority of the ruler could also be denied by means of a fatwa.²¹

The emergence of fatwa collections from the second half of the tenth century CE on­wards and until the present day testifies to the relevance of legal advice in the Islamic judicial system. The literary mould of the fatwa has also contributed to channel the jurists’ interests and concerns in a way to endow the legal establishment with enough uniformity to navigate varying social, economic and political situations, whereby fatwas do also contribute to the stability of the society at large.

In 11th-century al-Andalus, muftis occasionally advised non-qadi judges as well.²² By the same time in Khurasan, the shaykh al-isldm of a city was the head of the local 'ulama ’ and performed as chief mufti. The Mamluks appointed a selected number of muftis to serve in the mazalim courts and as political consultants; they also put muftis in charge of reinforcing their authority in the main cities of Egypt and Syria.

As happened with the qadis, under the Ottomans, muftis were gradually incorporated into a centralized judicial administration. The position of shaykh al-islam (seyhulislam) or su­preme mufti of the empire was introduced by Sultan Murad II (1421—1451). Based in Is- tambul, the capital, the holder of this position stood at the head of a complex hierarchy of provincial muftis and supported with his fatwas every important decision on domestic and foreign policy that was taken by the sultans, including the legal and administrative reforms of the 19th century ‘new regime’ era (Nizam-iJadTd) and matters regulated by qanun or state law. As his workload increased, his office underwent a process of bureaucratization; an offi­cial department for issuing fatwas fetvas) was created and assigned a professional staff and a supervisor to assist him.

Involvement in the Ottoman defence and commercial relationships with foreign powers also made the §eyhulislam a relevant diplomat figure and a valuable cross-confessional ally and intermediary.²³

The status and functions of provincial muftis varied. In the Anatolian and European prov­inces, muftis were not experts in religious sciences but local elders who were called on by qadis to confer authority on their decisions. In the Arab provinces, however, they continued to operate in the traditional way. Queries used to be rewritten by scribes to facilitate brief answers from the muftis.

Among the Shi' is in Iran, Central Asia and South Asia muftis used to be referred to with the terms mujtahid or faqTh. In time, they claimed for themselves the representation of the hidden imam and could operate quite independently from the state. The highest temporal authority among them came to be embodied by the marja ai-taqlTd, This figure, by virtue of his scholarly and moral merits had to be considered a unique model of reference during his lifetime and was in charge of guiding his followers with fatwas and other works meant to clarify doubts and practical problems. The fatwa of a Shi' i mufti is binding.

In Safavid Iran (1501—1722) the role of chief mufti and head of the religious scholars was not played by the shaykh al-islam but by the sadr, who was also in charge of appointing qadis and of supervising charitable endowments. In Timurid Central Asia he was in charge of all religious matters and of issuing fatwas. In the Indian subcontinent and Central Asia judges were not obliged to consult with a legal expert and muftis were not officially attached to courts; the term fatwa did not necessarily mean the answer to a specific question and could be used as a synonym of qawl or legal opinion dealing with issues that used to arise in practice. More interestingly, pre-modern Indian fatwas were collected at the ruler’s initiative appar­ently with the intention to provide the basis for the decisions of state courts.

Sharing knowledge and giving instruction about the correct interpretation of the Shari 'ah is a societal duty (fard kifaya) that obliges those in possession of religious knowledge ('ilm) with respect to lay or less learned believers. If those who are in a position to fulfil the duty are identified with the heirs of the Prophet, they also run the risk to be held morally accountable for the sins and mistakes committed by their petitioners for following the wrong advice. This dilemma was solved by exempting the mufti from any responsibility as long as he meets the necessary conditions to perform the function and he acts in good faith: ‘Every legal inter­preter is correct, if he is right he will be rewarded twice in the afterlife; if he errs, he will receive only one reward’. Further on, a disclaimer in the form of ‘God knows best’ (Allahu a'lam) is included in almost every fatwa.

Ideally, a mufti should be a mujtahid, i.e. a learned jurist capable of finding the ruling (hukm) appropriate for a specific legal question in the sources of the Shari 'ah, independently of law schools. Yet theorists had to concede that binding the legitimacy of legal advice to the capacity of engaging in independent legal interpretation was unrealistic and ended up by ad­mitting lower levels of competence like the mujtahid al-madhhab, or even that of the muqallid. In the first case, the scope of Ijtihad was restricted to the doctrine of a specific legal school; the latter was allowed to issue fatwas following the opinions of the leading authorities of his school or, in case of internal divergence of opinions (ikhtilaf), the majority opinion (mashhur).

The formal conditions to perform as a mufti are similar to those required of a qadi with a stress on the need to be, and identify oneself as, a jurist and the particularity of the admis­sion of slaves and women to perform the duty. A qadi may issue fatwas concerning questions unrelated to litigations presented before him. The elaboration of the fatwa follows the eval­uation of legal indications (adilla) in the sources whereas that of the judgment results from evidentiary arguments (hijaj) like testimony, acknowledgements and oaths. Muftis strive to find out the law corresponding to a given set of facts while qadis strive to establish facts, assuming a set of laws. A fatwa is informative (khaban) while a judgment is creative (inshd’t).

Private muftis were supposed to give fatwas for free, though the practice to establish pious endowments to provide for their material needs was widespread. In other cases, fees were collected from questioners or their maintenance was assumed by the community or by the public treasury, etc. Official muftis for their part received a salary or a fee.

Implied in the process of answering a query are complex ethical, social and interpretive relations, such as the confidence the petitioner puts in the mufti’s qualifications and in his capacity to dissipate confusion, the power the mufti can to exert over the mustaftT on account of the cultural capital represented by his knowledge of the Shari 'ah, but also the shift in moral and ethical responsibility involved in the very fact of asking, obliging the mufti to act in accordance with the dignity of his function. Fatwas could be delivered orally and many of them have probably left no documentary trace. From among written fatwas, only the rel­evant ones have been collected and preserved. Yet Ottoman archives and certain schools in India preserve large number of ordinary fatwas. A concise, even laconic fatwa is very likely addressed at a non-specialist while an elaborate one that is argued at length can be assumed to be delivered at the request of a jurist. Conventions regarding the physical appearance of the text of the fatwa (e.g. using a single pen and a single piece of paper, the need to append the mufti’s signature, etc.) also contribute to enhance its authority and that of its issuer.

Given that fatwas are not binding, an unsatisfied petitioner might seek a second opinion from another jurist. Muftis engaged by competing litigants could end up playing a role sim­ilar to that of the defence counsel. In that capacity, fatwas fostered people’s capacity to seek justice in courts and to face abuse by judges and other state agents.

Since they refer to actual legal problems and scholarly concerns, both the istifta’s and their answers are important sources for historians. They are legal in nature, however, reflecting jurists and their interests in first instance; their drafting involves a considerable degree of literary construction and the facts mentioned in them must be treated with caution before taking them as representative of their time and place.²⁴

A major shift in the production and reception of fatwas took place when print was intro­duced in the central Islamic lands at the beginning of the 17th century. Apart from books, fatwas started to be published in newspapers, magazines and journals, and legal opinions drawn from official records started to appear in gazettes. It was not only a matter of dissem­ination on a faster and wider transnational scale; format changes also brought about shifts in their language and style.

During the colonial period, the religious guide provided by muftis was occasionally taken over by the madrasas. In many cases, fatwas became tools for mobilizing the population in the struggle against external dominance (not just political and military but also cultural and commercial) and for national independence.²⁵

Today, the power relations involved in futya, i.e. the process and mechanism of issuing a fatwa, have been altered by the changes experienced in the notion of knowledge, its modes of transmission, the increase in the levels of literacy and modern technologies. The supremacy of fiqh over the definition of law has been lost in favour of new modes of specialized knowledge and Western-style law; lawyers and law professors trained in mainstream academic institu­tions have displaced the fuqaha ' as legal professionals. With codification, the already restricted scope left for the interpretation of the Shari'ah passed from the hands of individual jurists to national legislative bodies. Fiqh is taught in Islamic institutes and specialized law schools and specific academic programmes for the training of muftis have been established in institutions like al-Azhar in Egypt. Specialized committees charged with collective fatwa giving have appeared in many countries, including Western ones, at times as an outgrowth of colonial ma- drasas. Some of these organizations have been established by Muslim governments themselves with the aim of controlling fatwa giving and to provide non-binding guidance to the state. They have been attached to religious ministries, rather than the more contentious justice departments. The most famous are in Egypt, Saudi Arabia, Lebanon, Malaysia, Indonesia and Yemen. They are staffed by state-appointed muftis and their activities are regulated by leg­islation. The staff may occasionally include women, entrusted with the task of giving advice to other women.²⁶ In Saudi Arabia, for example, the guidance provided by official muftis is closely associated with the propagation of state religious ideology. Here, as elsewhere, official fatwas provide religious legitimacy to the state.²⁷ In Iran, fatwas were used to endorse the creation of institutions like the Council for the Islamic Revolution and the Parliament.

Modern muftis continue to perform as judicial consultants in those areas still ruled by the Shari'ah; earlier fatwas continue to be regarded as authoritative and to provide the basis for judg­ments. Despite the decline of the Shari 'ah in governmental legislation and governments, efforts to control muftis’ activities, fatwas are still a vehicle for the expression of collective sentiment, a channel for social and political activism, and a means to accommodate new societal conditions brought about by economic, political, scientific and technological developments, though some show little flexibility and ignore social change. Contemporary muftis’ doctrinal frame is no longer restricted to a single legal school and they refer directly to the Quran and the prophetic Sunnah. Certain fatwas (e.g. Ayatollah Khomeini’s condemnation of Salman Rushdie or Egypt’s Grand Mufti Ali Juma’s call against female mutilation) have had a global impact and the term has entered the mind of the average world citizen. The modern era has also seen individuals without legal training issuing fatwas (e.g. Usama ben Laden’s call to attack Western interests).²⁸

Literacy on the part of the petitioner, or the mediation of a scribe, is no longer requisite to ask for a fatwa. Radio and television channels dedicate special shows to issuing fatwas in real-time. With the turn of the century, radio cassette, video and CD fatwa recordings were superseded by the new communication means made available through the internet. Today, cyber muftis and depersonalized online fatwa sites are widespread phenomena. In past times, questioners included men and women from all social extractions, whereas those seeking spiritual and legal advice in the web are mostly, though not exclusively, women and Muslims living in Western countries.

Notes

1 For a recent overview of the state of the scholarship on qadis, see M. Tillier, Les cadis d’Iraq et l’etat abbaside (132/750—334/945) (Damascus: Institut Franfais du Proche-Orient, 2009), 4-12.

2 See B. Johansen, ‘La corruption: un delit contre l’ordre social. Les qidi-s de Bukhara’. Annales. Histoire, Sciences Sociales 57/6 (2002): 1561-89.

3 See Tillier, Les cadis d’Iraq et l’etat abbaside, chapter VI.

4 See D. S. Powers, Law, Society and Culture in the Maghrib 1300-1500 (Cambridge: Cambridge Uni­versity Press, 2009); C. Müller, Der Kadi und seine Zeugen, Studie der mamlukischen Haram-Dokumente aus Jerusalem (Wiesbaden: Harrassowitz Verlag, 2013).

5 See B. Johansen, ‘Formes de Langage et Fonctions Publiques: Stereotypes, Temoins et Offices dans la Preuve par l’Ecrit en Droit Musulman’, Arabica 44 (1997): 333-76.

Unless indicated otherwise, this narrative follows the structure and engages with the contents of M. K. Masud, R. Peters and Powers, ‘Qadis and Their Courts: An Historical Survey', in M. K. Masud, R. Peters and D. S. Powers (eds), Dispensingjustice in Islam: Qadis and Their Judgments (Leiden: Brill, 2006), 1-44; M. K. Masud, B. Messick and D. Powers, ‘Muftis, Fatwas and Islamic Legal In­terpretation', in M. K. Masud, B. Messick and D. Powers (eds), Islamic Legal Interpretation: Muftis and Their Fatwas (Cambridge, MA and London: Harvard University Press, 1996), 3-32; Masud et al., ‘Fatwa', in The Oxford Encyclopedia of the Islamic World. Oxford Islamic Studies Online. http://www. oxfordislamicstudies.com/article/opr/t236/e0243 (accessed 24 July 2018).

See C. Müller, Gerichtspraxis im Stadtstaat Cordoba, Zum Recht der Gesellschaft in einer malikitisch- islamischen Rechtstradition des 5./11. Jahrhunderts (Leiden: Brill, 1999), 181-2; D. Serrano Ruano, ‘Judicial Pluralism under the “Berber Empires” (Last Quarter of the 11th century C.E./First Half of the 13th Century C.E.)', Bulletin d’Etudes Orientales, Special issue on Le pluralisms Judiciaire dans l’Islam premoderne sous la direction de Mathieu Tillier, 63 (2014): 249—50.

For the case of the Almohad empire, see Serrano Ruano, ‘Judicial Pluralism under the “Berber Empires”', 260-70.

See K. Vikor, Between God and the Sultan: A History of Islamic Law (London: Hurst & Company, 2005). See M. Tillier, Les cadis d’Iraq et l’etat, ch. I, section 5.

Occasionally having led them to assume power in person. See the cases documented by Maribel Fierro for the pre-modern Islamic West in ‘The Qadl as Ruler', in Saber religioso y poder politico en el Islam (Madrid: Agencia Espanola de Cooperacion Internacional, 1994), 71-116.

The later aspect has been explored by Christian Müller in ‘Settling Litigation without Judgment: The Importance of a Hukm in QadH Cases of Mamluk Jerusalem', in Masud, Peters and Powers (eds), Dispensing Justice in Islam, 47-69.

A. Verskin, Islamic Law and the Crisis of the Reconquista: The Debate on the Status of Muslim Communi­ties in Christendom (Leiden: Brill, 2015), 61-82.

See B. Ergene, Local Court, Provincial Society and Justice in the Ottoman Empire: Legal Practice and Dis­pute Resolution in Jankiri and Kastamonu (1652-1744) (Leiden: Brill, 2003), 43-55.

On the judicial aspects of the Spanish colonial experience in Morocco, see M. Feria, ‘La justicia indigena en la Zona Jalifiana del Protectorado espanol en Marruecos', Awraq, Estudios sobre el mundo arabe contemporaneo XIX (1998): 143-79.

A. Echevarria, ‘De cadi a alcalde mayor: la elite judicial mudejar en el siglo XV', Al-Qantara 24/1&2 (2003): 139-68 and 273-89. For the case of Sicily, see A. Metcalfe, ‘The Muslims of Sicily under Christian Rule', in G. A. Loud and A. J. Metcalfe (eds), The Society of Norman Italy (Leiden: Brill, 2002), 289-318.

Regular, appeal and supreme courts.

See also Masud, Messick and Powers, ‘Muftis, Fatwas and Islamic Legal Interpretation', 19, where the difference between fatwa and judgment is discussed drawing on Ibn Taymiyya and Ibn Qayyim al-Jawziyya. According to both Hanbali jurists, the authority ofjudgments is specific (khass) while that of a fatwa is general ("amm). In Ibn Qayyim al-Jawziyya's view, rulings were not entered into Shari’ah court records with the intention of serving as precedents and referents and were not pub­lished, whereas important fatwas used to be collected in books and were widely cited and circulated which enhanced their capacity to shape the law. It is in this connection that the role of the mufti as a human interpreter of the sacred law may be seen as even greater than that of the judge. In my view, however, the point that the validity of judgments was limited to the litigations at hand and that they did not set legal precedents should be taken with caution; certain judgments are known to have established legal precedents and these legal precedents are cited in legal sources as arguments of authority (e.g. in collections of model legal documents). Pre-Ottoman court records were not kept for referencing purposes, but this did not preclude their use as sources for the compilation of fatwas and legal cases (nawazil ) like the works of the Malikis Ibn Sahl (al-Andalus, d. 1093) and Muhammad b. 'Iyad (al-Andalus and the Far Magrib, d. 1179) show. The former drew on court records he had access to after his experience as a qadi and judicial secretary to write his Kitab al- Ahkam al-Kubrà. The second used materials from Ceuta's court records to compile his Madhahib al-Hukkämß Nawazil al-Ahkam. See D. Serrano Ruano, ‘Legal Practice in an Andalusi-Maghribi Source from the Twelfth Century', Islamic Law and Society 7/2 (2000): 187-234.

For the case of the legal practice of the city of Tunis under Hafsid rule, see J.-P. Van Staevel, ‘Al- mohades et malikites de Tunis: Reflexions sur les relations entre elites civiles et gouvernants dans l'Ifriqiya des VIe/XIIe-VIIIe/XIVe siècles', in P. Cressier, M. Fierro and L. Molina (eds), Los almo- hades, problemas y perspectivas (Madrid: CSIC, 2005), 937-73.

20 See Serrano Ruano, ‘Judicial Pluralism under the “Berber Empires”', 260—1, 266.

21 Like the ‘condemnation' of Boabdil, the last Nasrid king of Granada, issued by a number of local fuqahd", or the fatwa declaring that the Ottoman sultan Murad V was insane, on the grounds of which he was deposed in 1876.

22 See Müller, Gerichtspraxis im Stadtstaat Cordoba, 247-362.

23 See Joshua M. White, ‘Fetva Diplomacy: The Ottoman Seyhülislam as Trans-Imperial Intermedi­ary', Journal of Early Modern History 19/2&3 (2015): 199—221.

24 See M. Fadel ‘Fatwas and Social History', Al-'Usür al-Wusta 8/2 (1996): 32—4; M. Shatzmiller, ‘On Fatwas and Social History', Al-Usur al-Wusta, 9/1 (1997): 20—1.

25 See J. Hendrickson, ‘Muslim Legal Responses to Portuguese Occupation in Late Fifteenth­Century North Africa', Journal of Spanish Cultural Studies 12/3 (2011): 309—25; Verskin, Islamic Law and the Crisis of the Reconquista, 106—28.

26 Like the female muftis attached to the Fatwa Department reporting to Abu Dhabi's General Authority of Islamic Affairs and Endowments. See https://www.theguardian.com/world/2016/aug/20/heard- everything-women-fatwa-hotline-abu-dhabi?CMP=Share_iOSApp_Other. Courtesy of Justin Stearns.

27 Sometimes endorsing controversial decisions like ex-President Mohamed Morsi's death sentence (http://www.middleeasteye.net/news/morsi-death-sentence-endorsed-egypts-mufti-website- says-387631593).

28 The contents of which were denounced and condemned in the ‘Amman Message'. See Dallal, sec­tion on Modern Usage in Masud et al., ‘Fatwa', 13—14.

Selected bibliography and further reading

Bunt, Gary R. Islam in the Digital Age: E-Jihad, Online Fatwas, and Cyber Islamic Environment (London: Pluto Press, 2008).

Hallaq, Wael. ‘From Fatwas to Furü ': Growth and Change in Islamic Substantive Law'. Islamic Law and Society 1/1 (1994): 29-65.

Heyd, Uriel. ‘Some Aspects of the Ottoman Fetva'. Bulletin of the School of Oriental and African Studies 32/1 (1969): 35-56.

Masud, Muhammad Khalid, Joseph A. Kechichian, Brinkley Messick, Joseph A. Kechichian, Ahmad S. Dallal and Jocelyn Hendrickson. ‘Fatwa'. In The Oxford Encyclopedia of the Islamic World. Oxford Islamic Studies Online. http://www.oxfordislamicstudies.com/article/opr/t236/e0243 (accessed 24 July 2018).

Masud, Muhammad Khalid, Rudolph Peters and David Powers (eds). Dispensing Justice in Islam: Qadis and Their Judgments (Leiden, Brill, 2006).

Masud, Muhammad Khalid, Brinckley Messick and David Powers (eds). Islamic Legal Interpretation: Muftis and Their Fatwas (Cambridge, MA and London: Harvard University Press, 1996).

Masud, Muhammad Khalid. ‘Adab al-mufti'. In Encyclopaedia of Islam, THREE, ed. Kate Fleet, Gudrun Krämer, Denis Matringe, John Nawas and Everett Rowson. Online at http://referenceworks.brillonline. com/entries/encyclopaedia-of-islam-3/adab-al-mufti-COM_26301 (accessed 24 July 2018).

Masud, Muhammad Khalid. ‘Adab al-qadi'. In Encyclopaedia of Islam, THREE, ed. Kate Fleet, Gudrun Krämer, Denis Matringe, John Nawas and Everett Rowson. Online at http://referenceworks. brillonline.com/entries/encyclopaedia-of-islam-3/adab-al-qadi-COM_0106?s.num=339&s. start=320 (accessed 24 July 2018).

Powers, David S. Law, Society and Culture in the Maghrib 1300—1500 (Cambridge: Cambridge University Press, 2002).

Repp, Richard C. ‘Courts of Law, Ottoman'. In Encyclopaedia of Islam, THREE, ed. Kate Fleet, Gudrun Krämer, Denis Matringe, John Nawas and Everett Rowson. Online at http://referenceworks.brill online.com/entries/encyclopaedia-of-islam-3/courts-of-law-ottoman-COM_23213 (accessed 24 July 2018).

Serrano Ruano, Delfina. ‘Legal Practice in an Andalusi-Maghribi Source from the Twelfth Century: The Madhahib al-hukkam fi nawazil al-ahkam'. Islamic Law and Society 7/2 (2000): 187-234.

Serrano Ruano, Delfina. ‘Judicial Pluralism under the “Berber Empires” (Last Quarter of the 11th century C.E.-First Half of the 13th Century C.E.)'. Bulletin d’Etudes Orientales, Special issue on Le pluralisme Judiciaire dans l’Islam premoderne sous la direction de Mathieu Tillier, 63 (2014): 243-74.

Tyan, Emile. Histoire de l’organisation judiciaire en pays d’Islam (Leiden: Brill, 1960).