Abstract
M.A.
Shari `ah the Islamic "legal system" has been studied and depicted in many ways.
Schacht writes, "Islamic law is the epitome of thought, the most typical
manifestation of the Islamic way of life, the core and kernel of Islam itself."
Shari'ah can be described as "law" or as a "legal system" in as far as it provides
for the ordering of society. Laws however, do not state what 'is' but what rational
human beings 'ought' or 'ought not' to do - 'norms' (from the Latin norma
meaning yardstick or rule). Thus laws change and differ with the differing 'norms'
or yardsticks of society. The Shari'ah differs from the various -legal systems in that
it provides a means of governance wherever it is correctly applied without
changing in its essential fundamentals. This sound ordering of society that it
provides, prevails over the Muslim community which consists of a vast
multiplicity of diverse nations and cultures. The question that confounds scholars
is how did a single body of law based on divine revelation, the Qur'an and
Sunnah, deal with social contingencies and how does it remain relevant and
effective in the twentieth century?
The answer, to a large extent, lies in fatwd. These are non-binding opinionated
legal rulings derived by an astute scholar of Islam, i.e. a mufti. Muffiyiin have
received very little attention in both contemporary Islamic and Western
scholarship, since their practice is far less institutionalised when compared to a
judge in a Western court of law. The role of the jurisconsult is unfamiliar to the
Western mind and inadequately presented by Muslim scholars. The rulings of a
judge in a Shari'ah court are called aq chya. Fatawa and aqcfiya are similar in that
the principles applied in deriving the Shari 'ah law in both instances are the same.
They differ essentially in that aqchya are legally binding and are executed by the
state whilst fatciwa are not.
This study examines the role played by faavci as the catalyst of iftihdd and the
facilitator that infuses dynamism in the SharVah. Its role from the time of the
Prophet and the righteously guided caliphs is established as a rebuttal to the
assertion that Islamic legal rules were only established from the time of the
Umayyads — the second century of Islam. The study then moves on to its role in
contemporary society and the futyci on gelatin issued by the various fatwei issuing
bodies of South Africa demonstrates its articulation in a localised sense.
My conclusions establish the dynamic nature of the Shari'ah as a dual natured
"legal system" with interacting fixed and flexible conceptual spheres of the law
and the pivotal role played by faidwa in enabling it to cope with social change.