Islam: A Guide for Jews and Christians - Electric Scotland

GOD’ S WAY t 175
and glossed it. Their glosses were, in the main, scholastic and theoretical,
new building blocks in the edifice of the sharia, but ordinary
Muslims had other, more concrete concerns. In matters of
contest, they had perforce to go to the qadi for a binding judgment,
but in matters of conscience, on whether this or that act was
licit or not, they turned, as we might expect, to one of the ulama
for guidance. The response given by a qualified alim constitutes a
fatwa. It is the application of the sharia, as understood by the jurisprudent
in question, to a practical matter of conduct, and those
who render them have been called, with justice, “the creative mediators
of the ideal and the real of the sharia.”
There was one class of Muslim jurisprudents who, by their position
in the great madrasas, or simply by community assent, were
looked on as capable of rendering a fatwa or an informed opinion
on a matter of that law. Like rabbinic responsa, the Muslim fatwa
is generally nonbinding and enjoyed only as much authority as the
person issuing it. Since there is no case law in Islam, the judgments
of qadis in no way constituted a precedent for future decisions nor
did they extend the purview of the sharia. A fatwa, in contrast,
though nonbinding and unenforceable in the context in which it
was originally delivered, had a more profound effect on the sharia.
Fatwas were recorded and collected, and some—those that expressed
a new interpretation of a point of law rather than a mere
recitation of the appropriate scriptural and hadith texts—have
constituted, no less than the conclusions reached by the academic
ulama, an extension of the sharia. Indeed, the mufti has been described
as holding a position on the Islamic legal spectrum somewhere
between the practice-normative qadi and the faqih or
academic jurisprudent exercising his personal initiative or interpretation
(ijtihad) within the walls of the madrasa.
Priests and Rabbis
Between Constantine and the beginning of the Reformation,
Christianity, like temple Judaism, operated within a system of dual
authority symbolized by the Gospel image of the “two swords”