Introduction

In the history of Islamic legal theory, legal opinion ( fatwā) has played a pivotal role in constructing a body of laws for the entire Islamic legal system. Contemporary Islamic legal scholar Wael B Hallaq maintains that one of the significance of legal opinion (fatwā) lies in its function as an instrument that bridges complicated legal formulations and the domain of public understanding. Similarly, Alexandre Caeiro posits that legal opinion ( fatwā) is a “meeting point between legal theory and social practice.” Integral to legal opinion (fatwā) is the fundamental concept of legal reasoning (ijtihād) which, in Islamic legal theory, can be broadly comprehended as a medium as well as a procedure for solving unprecedented issues within the realm of Islamic law.

As a form of independent legal reasoning (ijtihād), legal opinion (fatwā) is not confined to certain specific periods, but will always be timely and relevant in providing a legal response to contemporary problems confronting Muslims. Among legal scholars, assertions to the effect that legal opinion (fatwā) do not emerge in response to actual problems of society are not uncommon. N.J. Coulson, Joseph Schacht, and Brinkley Messick fall within this category. Furthermore, they also believe that legal opinion (fatwā) did not contribute substantially to the development of Islamic substantive law or legal system. Such contentions that legal opinions (fatwā) are legal speculations reflecting the imagination of legal opinion-makers (muftis) have been found to contradict empirical evidence in Islamic legal history to a large extent. Both in the past as well as present times, the issuance of legal opinion (istiftā’) has been strongly conditioned by and responded to actual religious-legal problems that have emerged within Muslim societies. In other words, legal opinion (fatwā) is not mere fiction but part of the mechanism of legal reasoning (ijtihād) that has ensured that Islamic law remains relevant in diverse socio-historical contexts (al-Islāmu ṣāliḥun li-kulli zaman wa makān).

Wael B Hallaq, a contemporary leading authority in Islamic law, for instance, is one of the most prominent proponents of the above who offered numerous evidences in support of his conviction. In his words, “(T)here is massive evidence in our sources to indicate that legal opinion (fatwā) played a considerable role in the growth and gradual change of Islamic substantive law.”