Sherman A. Jackson, Kramer versus Kramer in a Tenth/Sixteenth Century Egyptian Court: Post-Formative Jurisprudence between Exigency and Law, Islamic L. & Society 8, 27–51 (2001).
Sherman A. Jackson, King Faisal Chair in Islamic Thought and Culture and Professor of Religion and American Studies and Ethnicity, University of Southern California Dornsife College of Letters, Arts and Sciences
Fatwā = advisory opinion
Muslim jurists issue legal opinions called fatwās, giving their interpretation of discrete legal issues based on the foundational texts of Islamic law and on previous legal opinions within their own schools. Issuance of this kind of advisory opinion does not assure a determined outcome. Rather, it presents a jurist’s reasoned opinion on the issue.
Though bound by the writings of his school, a jurist may go against the prevailing opinion of his school and use innovative legal reasoning to reach what he believes is a just outcome. During the “post-formative” period of Islamic law, the four Sunnī madhhabs settled and conferred mutual recognition upon one another. Starting in this period, “[n]o longer was the unfettered and independent [reasoning] of the individual [jurist] sufficient to confer authority upon an opinion . . . . Authority was now mediated through the endorsement of the association of jurisconsults as a whole, i.e., the madhhab.” (p. 31) For a fatwā to be persuasive, therefore, it must be issued in accordance with the school’s jurisprudence.
Within a single school, there can be multiple opinions represented in jurists’ fatwās, but they do not all have the same weight. One view, the mashhūr, is the “majority opinion,” accepted by most scholars and hence the school’s predominant opinion. The rājiḥ, on the other hand, is a “preferred opinion” expounded by an individual scholar, and expresses the opinion that he believes should be the mashhūr. When jurists set out to write fatwās that go against the mashhūr, they cannot just ignore the majority or preferred opinions. Instead, they have to show that either the mashhūr was wrong or that their argument was not inconsistent with it. Only then is a fatwā a legitimate advisory opinion.
Although fatwās can be the vehicle for novel legal reasoning, “[t]he ultimate aim behind the crafting of a fatwā [is] not simply to introduce new and innovative ideas but to gain the backing of the school at large.” (p.49) Sometimes the jurist meets his goal and an inventive fatwā succeeds in changing the school’s dominant opinion. Other times it does not. However, a fatwā which is unsuccessful in changing the school’s dominant opinion is not necessarily a failure. So long as it is well-crafted and grounded in the school’s jurisprudence, such a fatwā opens up the legal and intellectual space for jurists to consider opposing views.