Until the nineteenth century A.D. the general tendency of the ‘ulamā’ was to expand the practical application of the Law--already in theory eternal and universal--so as to give religious value to every act and aspect of life.
One means of doing this was the legal interpretations of the muftīs, the jurisconsults. While the qāḍī, or judge, heard cases and administered law, the muftī gave his expert opinion only when it was formally requested about some point of law not fully covered by the fiqh books. Thus new situations could be met within the framework of the Law. The answer of the muftī constituted a fatwa, a legal opinion which formed legal precedent and helped determine the practical application of the Law.
The following fatwas were given by Ebū Su’ūd (Abū Su‘ūd), the famous muftī of Sulayman "The Magnificent" (Ottoman Emperor (A.D. 1520-1566), who was Shaykh-al-Islam, or Grand Muftī of the empire, from A.D. 1545 to 1574.
In themselves historically interesting, they illustrate the point that within the traditional confines of the Law there is a considerable area for freedom of interpretation. When
the ruler could rely on co-operative ‘ulamā’--and due to his control of posts, professorships and fellowships, this was usually possible, after the neo-orthodox Saljūq restoration--this freedom of interpretation could be invoked on behalf of the ruler's interests.
The "People of the Book"--Christians, Jews, Samaritans, Mandaeans, etc.--were permitted to apply their own legal systems in Muslim states, but certain aspects of the Muslim law applied to them as well, especially when they offended against Muslim morality.
In giving his fatwas, Ebū Su‘ūd is guided by the Ḥanafī School, the official school of the Ottoman Empire.
1. Question: When in several Muslim villages there is not a single mosque, and the inhabitants do not perform the congregational prayers, must the authorities force them to build a mosque and punish those who neglect to pray there?
Answer: Yes. In A.H. 940 [A.D. 1533] express edicts were issued for the attention of the local rulers of the Well-protected [Ottoman] Empire, that they compel the inhabitants of such villages to construct mosques and establish regular prayers. They shall proceed accordingly. Ebū Su‘ūd wrote as follows, God have mercy on him: "The Call to Prayer is one of the distinguishing characteristics of Islam, so that if the people of a city, town, or village refuse, the Imām should force them, and if they do not do it, he should take up arms against them. And if the people of a town neglect the Call to Prayer, the performance of prayer, and the congregational prayers, he must fight them, for these are earmarks and outward signs of religion." 28
2. Question. One of the conditions of marriage is the walī (the legally empowered representative of the bride), who is a necessary condition for the valid performance of matrimony for minors, mentally-ill women, and slave-women. There is disagreement in the case of a mature free woman of sound mind, as to whether she may independently contract marriage.
[paragraph continues] Abū Sulaymān (the disciple of the Ḥanafī doctor Muhammad al-Shaybānī) reports Shaybānī as holding her marriage null and void. Abū Hafs (also his student), reports him as saying it is permissible if she has no representative, but if she does it depends on his consent; if he permits it takes place; if he refuses the marriage is void, regardless of whether the husband is her equal or not. Is the decision a judge may make on this conflicting evidence effective?
Answer: In the year A.D. 951 [A.D. 1544] the qāḍis were enjoined to accept no marriage contract without the permission of the bride's walī; Ebū Su‘ūd wrote this.
3. Question: In the Muḥīt (law-book) it says: "A Ḥanafī may reckon by Shāfi‘i law as regards eating hyena-flesh and purposely neglecting to say 'In the name of God!' and a Shāfi‘ī may reckon by Ḥanafī law as regards drinking muthallath [wine boiled to a third of the original volume: not punishable for Ḥanafīs], and marriage without a walī." Now if the judge says "In this matter the precedents and opinions differ, so I shall follow the other doctrine here; it is permissible to regard her marriage as legal," is his verdict legally valid?
Answer: Since it is illegal, it is certainly not valid. The authority of the qāḍi stems from the permission and authority of the holder of caliphal power. Also, the qāḍis have been enjoined to make use of the soundest opinion, so that the option of basing themselves on this legal disagreement is taken from them, especially since the general corruption of our era is obvious (and very few can correctly interpret the Law).
The original of the Imperial Decree is preserved in the Law courts of Istanbul, Pera, and Scutari, forbidding such practices. The corruptness of such practices is clearer than day; if they are followed, the families of certain people will come to ruin! 29
4. Question: If the Jew Bakr says to the Christian Bishr, "Your Prophet Jesus (God's blessing be upon him!) was (God forbid!) an illegitimate child," what must be done with the accursed one according to the Law?
Answer: The unbelievers who publicly abuse the prophets (God's blessing be upon them all) shall be put to death; Ebū Su‘ūd wrote this . 30
5. Question: If Zayd says "The book Fuṡūṡ al-Ḥikam of the Ṡūfī Shaykh Ibn al-‘Arabī is outside the sublime Sharī‘a and was composed to misguide people; whoever studies it is a heretic (mulḥid)," what should be done with him according to the Law?
Answer: It is well known that this book contains expressions impossible to reconcile correctly with the Sharī‘a; the false superstition with which certain ignoramuses who are unaware of the procedures of the sublime Sharī‘a have attempted to reconcile them deserve neither confidence nor respect. There is no doubt that the correct statements, found in his book are his own, but as for those which it is impossible to reconcile with the Sharī‘a, the shaykh's fame as well as his verifiable testimony in his other works testify that they are erroneously ascribed to him. It is well known that a certain Jew interpolated them so as to lead people into error. [This is a fable designed to avoid condemnation of a brother Muslim.]
It is necessary for Muslims to be on guard against them, and an Imperial Prohibition has been issued to that effect. In any case, avoidance is necessary. 31
135:28 Ibid., pp. 70, 71.
135:29 Ibid., p. 75.
135:30 Ibid., p. 78.
135:31 Ibid., pp. 77, 78.