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Contemporary IjtihadLimits and Controversies$
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L. Ali Khan and Hisham M. Ramadan

Print publication date: 2011

Print ISBN-13: 9780748641284

Published to Edinburgh Scholarship Online: March 2012

DOI: 10.3366/edinburgh/9780748641284.001.0001

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Free Markets of Fiqh

Free Markets of Fiqh

(p.47) 2 Free Markets of Fiqh
Contemporary Ijtihad

Khan L. Ali

M. Ramadan Hisham

Edinburgh University Press

This chapter discusses the free markets of fiqh. Since the founding of Islam in the early seventeenth century, Islamic law has developed through free markets of jurisprudence or the iswaq al-fiqh or fiqh markets. When a new legal issue arises that cannot be resolved under the existing body of Islamic law, Muslim opiniojurists provide legal opinions inconsistent with the Qur'an, the Sunnah and the Basic Code. These opinions, or fatwas, compete in the fiqh markets to win over Muslim followers. An opinion that gains the biggest following becomes the rule of fiqh. Before discussing the structure of fiqh markets, the chapter provides an overview of the principle of voluntary compliance, which asserts that no new rule of fiqh, whether adopted by the majority or minority of Muslims, is binding on communities and individuals who decline to accept it. It also introduces the expansion and the dynamics of fiqh markets. The first section of the chapter discusses state jurists. Jurists are employed by Muslim governments to seek guidance and promote policies. Because fiqh markets determine whether official laws and regulations are to be considered Islamic, Muslim government rarely interferes with them in order to maintain its credibility. The second section discusses the organised clergy. In fiqh markets, hierarchically organised clergy is not deemed necessary for the functioning of the fiqhs. While Islam has a strong sense of community, it does not mandate a hierarchical clerical structure to form a community of believers. The third section discusses reasoning methodologies and legal opinions employed by the jurists, while the fourth section discusses the universal and timeless rules of al-fitra (natural law). The fifth section of the chapter discusses the concept of rule selectivity or tarjih, under which Muslims are allowed to select rules from diverse schools of fiqh to fulfil their obligations. Finally, the chapter discusses the discounting of tainted opinions in order to protect the independence and authenticity of fiqh markets.

Keywords:   fiqh, fiqh markets, Muslim opiniojurists, fatwas, state jurists, al-fitra, rule of selectivity, tarjih

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