The Muftiship

A mufti is a type of Muslim jurist who delivers a nonbinding legal opinion known as a fatwa, exercising in the process the form of legal interpretation called ijtihad . Across the Middle East and North Africa for many centuries, muftis great and small, official and unofficial have worked at the interface of shari'a text and practice. Analogues for the muftiship have been identified in both Roman and medieval Jewish legal institutions.^[4] According to Weber (1978: 798–99, 821) and Schacht (1964: 74), the muftiship was originally a "private" institution that later became "public." Schacht correctly adds, however, that the later official muftis "had no monopoly of giving fatwas, and the practice of consulting private scholars of high reputation never ceased." As a consequence, a significant dimension of authoritative interpretation consistently eluded the purview of Muslim states.

Yemen had only indirect experiences of such early public institutional elaborations of the office as occurred in Mamluk Egypt (Tyan 1960:224) and in the central provinces of the old Ottoman Empire (Gibb and Bowen 1957:133–35; EI 2 art. "Fatwa"). An official mufti-

ship was established in Ibb during the second Ottoman occupation, but its public quality was not pronounced. Three generations in the al-Haddad family (grandfather, two sons, and a grandson) held the town mufti post during the Ottoman period and into the following imamic period up to 1950.^[5] Ahmad b. Muhammad b. 'Ali al-Haddad, the grandson, described his activities in the 1940s:

The place of issuing fatwas was in the sitting room of my house, since there was no formal office place for any judicial or executive organ in the old days. Most of our time in those days was unoccupied and we spent it reading Subul al-Salam [by al-Amir (d. 1753) on Hadith] and other books during the afternoons. As for the mornings, we used to walk down into the valley, and if anyone came up to us with a matter, we used to answer him in any place he found us, in the street or in any other place. (Taped discussion, 1980)

Currently, there is a Mufti of the Republic in the capital city,^[6] and questioners from around the country now also have media access to a "Fatwa Show" on the radio, and on Yemeni television bearded old scholars in robes and turbans answer viewers' questions in a similar format. But these new manifestations of the muftiship and the continuing efforts of old-style muftis in a few places such as Ibb exist in a changed interpretive environment.

Muftis served in Yemen both under the terms of official appointments and as private scholars, and they ranged in stature from the most noted jurists of an era, such as al-Shawkani in the early nineteenth century, to modest men practicing in the provinces.^[7] Prior to the Ottoman occupation, the giving of fatwas was an informal activity of leading scholars. A scholar occupied himself in "studying, teaching, and giving fatwas" (al-Akwa' 1980:234). A common formula that identified a prominent scholar was intahat ilayhi riyasat al-'ilm , with the sense being that the scholar in question was the final authority—literally, "the leadership of knowledge ended up with him." The separate strands of the composite identity of one local scholar are detailed in the same terms: he was the leading scholar in "legal knowledge, fatwa-giving and instruction" (intahat ilayhi riyasat al-fiqh wa al-fatwa wa al-tadris [al-Akwa' 1980:661]). This old idiom of scholarly preeminence (cf. Makdisi 1981:129–33) occurs in biographical history accounts mentioning local muftis going back to the twelfth century.^[8] A scholar without peer in the locality was by definition, and simultaneously, the individual sought out for instruction and prevailed upon to issue fatwas.

Muftis are intermediate figures. In relation to the wider institutional scheme for the interpretive transmission of knowledge, muftis occupy a niche between the jurist as teacher and the jurist as judge, mediating in identity and function between the opposed spheres of the madrasa (school) and the mahkama (court)—between the cloistered, theoretical transmission of shari'a jurisprudence in lesson circles and the public, practical application of it in judicial proceedings. Many muftis were also teachers, but unlike the retiring purists among their professorial colleagues, muftis were jurists who projected their knowledge beyond the confines of the lesson circle to address the affairs of the community. A mufti's involvement with the mundane world was more restricted, however, than that of a judge. As jurists and as moral beings, muftis typically distanced themselves from the considerable ambivalence surrounding the judgeship itself, and the court, which many considered an arena of corruption, coercion, and error.

With regard to its institutional form, the muftiship has been the subject of systematic reflection by Muslim scholars. According to Ibn Khaldun (d. 1406), both the muftiship and the judgeship are classified among the "religious-legal" (diniyya shar'iyya ) functions that fall under the authority of the (great) imam, the leader of the Muslim community (1958:448 sqq.). For al-Qarafi (d. 1301), "every (great) imam is [also] a judge and a mufti" (1967:32), while the reverse is not true. Although they were Shi'is (rather than the Sunni type specifically referred to by Ibn Khaldun and al-Qarafi), Zaidi imams fit this characterization. In addition to his responsibilites for the affairs of the "world," a Zaidi imam was both a mufti and a judge in identity and capacity, in addition to being in a position of authority over appointed muftis and judges. As muftis writ large, Zaidi imams issued their own fatwa-like interpretive opinions (ijtihadat or ikhtiyarat ); as judges writ large, they represented the final source of appeal in shari'a procedure while occasionally engaging directly in formal judgment giving.