Continuity and Change in Islamic Law in Indonesia: The case of Nahdlatul Ulama bahtsul masail in East Java

Abstract

The fatwa (pl. fatawa) or non-binding legal opinion is an important institution in Islamic thought. In relation to the shari‘ah (the body of Islamic law), fatwa has been the agent for relating the teaching of shari‘ah to 'the concrete world of human affairs' (Masud, Brinkley, and Messick, 1996:3). It is a medium to understand social change (Hooker, 2003) and a source of Islamic legal and social history (Powers, 1990) of Muslim community. For this reason, fatwa, along with qada’ (Islamic court’s decision) institution, is an important agent of Shari'ah application. In Islamic legal scholarship (fiqh), as some have argues (Schacht, 1964: 74-5 and Hallaq, 1994:), fatwa has been instrumental in the development of furu‘ al-fiqh (theoretical aspect of substantive law) as well as usul al-fiqh (legal methodology of Islamic law) in Islam. The mufti can be seen as the agent of legal change as well (Hallaq, 2001:174). Many fatawa of prominent muftis (jurist-consult) are incorporated into the substantive law of certain madhhab (school of law) and many muftis are prominent jurist-authors affiliated to schools of law (Hallaq, 1994:30-1, and 2001:). Therefore, the interplay between fatwa, fiqh and madhhab is inherent to the theoretical aspect of shari’ah and its practical application...