Sunday, July 26, 2009

Ijtihad: Is the Gate of ijtihad Closed?
Malcolm Jardine

Introduction
In this essay, I will attempt to answer the question as to whether or not the door of Ijtihad was ever closed in Sunni jurisprudence. I will begin by discussing the definitions of the terms ijtihad and mujtahid, followed by a brief review of different arguments for and against the notion of closure. I will then present my own conclusions and I will also offer some thoughts on the significance of my findings for the future development of Sunni jurisprudence.

Ijtihad and Mujtahid: Definitions
Over the years, many definitions of the terms ijtihad and mujtahid have been given by different writers. I have summarised some of these below.
Schacht2 says that the literal meaning of ijtihad is exerting oneself. It is a technical term in Islamic law. At first, it meant the use of individual reasoning in general but later it came to be associated only with qiyas (reasoning by analogy). A mujtahid is a lawyer who is qualified to use ijtihad. MacDonald3 describes ijtihad as exerting oneself to form an opinion on a legal matter by applying analogy to the Quran and Sunnah. He defines a mujtahid as one who by his own exertions forms his own opinion.4

Hallaq5 describes ijtihad as the maximum effort made by a jurist to master usul al-fiqh (legal theory) and then to apply those rules and principles in order to discover Gods law. Saeeds 6 definition is similar. He refers to the utmost effort of a trained jurist to discover a rule or law for a particular human situation by applying the principles of jurisprudence to the Quran and Sunnah.

Levels of Ijtihad and Mujtahidun
These definitions are further complicated by the fact that both ijtihad and mujtahid have traditionally been subdivided into different levels. Kamali traces this process from an initial division into two types of ijtihad, independent and limited, by Al-Ghazali to later divisions into five and finally seven classes.7 A similar process occurred with regard to the ranks of the mujtahidun which eventually reached seven by the sixteenth century.8

Despite the increase in classes of ijtihad the main division is between independent and limited. Later classes are merely sub-divisions within the limited class. Kamali describes the two main classes as follows9: ijtihad that aims to deduce the law from the evidence in the sources, often referred to as independent ijtihad; and secondly, ijtihad that is concerned mainly with the elaboration and implementation of the law within the confines of a particular school10, known as limited ijtihad.

This basic division between independent and limited is reflected also in the various descriptions of the ranks of the mujtahidun. Al-Shahrazuri (d.1245)11 described 4 levels of mujtahid/muftis, the first of which was Mujtahid mustaqill (or mutlaq) independent 12while the second was Mujtahid fil madhhab in the school13 (i.e. limited) as were the remaining two ranks.

Nawawi14 says that Ibn al-Salih (d.1245) said that muftis were of two types independent and otherwise.15 He then lists two categories of mufti, the first of which is independent and the second affiliated. 16 This latter category is divided into 4 grades. Aghnides provides us with a list of seven classes of mujtahid based on the classification of Hanafite doctors. The first is full mujtahid (mujtahid fil-shar) while the second are mujtahidun within the schools (mujtahid fil-madh-hab). The other five classes are similarly limited within the school. Kamali gives virtually the same example of classification as Aghnides.17


The Closure of the Door
In his book An Introduction to Islamic Law, Schacht describes a situation where, during the early Abbasid period, Islamic law reached the end of its formative period. After a period of intense and widespread creativity and individual reasoning with regard to the law, Schacht claimed, there came a point when various factors arose to limit personal speculation on the law. 18 These included the achievement of broad consensus on certain matters, the formation of schools of law19, a move from unfettered opinion to systematic reasoning and the appearance of hadith which, in Schachts opinion, made authoritative what had previously been only personal opinion. 20 As the corpus of law expanded the factors previously mentioned combined to give rise (in around 900AD) to a consensus among scholars from all schools that all essential questions had been thoroughly discussed and finally settled 21and that from that time onwards no one might be deemed to have the necessary qualifications for independent reasoning in law and that all future activity would have to be confined to the explanation, application, and at the most, interpretation, of the doctrine as it had been laid down once and for all.22 Schacht refers to this as the closing of the door of ijtihad. 23 He believes that this doctrine merely confirms a situation which had already become fact.24

Coulson, sees the doctrine of closure as formal recognition that the creative force of Muslim jurisprudence had been exhausted. 25 From the tenth century onwards the role of jurists was merely to comment on the works of earlier scholars.26 Saeed likewise believes that many jurists from the sixth/twelfth century onwards had accepted the closure of the door of ijtihad by which he means that there should no longer be any ijtihad as originally practiced. 27 The decisions of the early scholars should now be followed wherever possible and creativity should be limited to explaining the views of those earlier scholars. Imitation was given priority over creativity.28 In the opinion of Al-Alwani29, the closure of the door of ijthad was an idea born out of fear, a defensive measure by scholars who feared that unscrupulous rulers might misuse fiqh to produce decisions which favoured their own interests rather than those of the Ummah. Thus was the idea born that only the ijtihad of the earliest scholars should be recognised, no changes should be made to their ijtihad and that no opinions contrary to theirs were permitted.30

Aghnides states the theory of the closure of the door of ijtihad results from the belief that no more mujtahidun of the calibre of those who founded the four schools appeared after them and further that some believe it is not even possible that they might appear in future. 31 Hughes does not mention the door of ijtihad but does say that the obstacles to anyone gaining the rank of full mujtahid are almost insurmountable.32

The Counter-View
This belief in the closure of the door of Ijtihad has not gone unchallenged. Aghnides is forthright in his opinion that it is a fiction which has no justification in theory (a statement he puts in bold letters).33 He points out that even believers in the idea state that the closure did not arise out of theoretical necessity but due to the fact that there were no longer any full mujtahidun.34

In recent years, Hallaq has emerged as the main opponent of the theory of closure. He dismisses the idea that the qualifications required for ijtihad were so high that they effectively made it impossible for jurists to practice it. He notes that according to Ghazali, there is a sliding scale of required qualifications according to the breadth of ijtihad being undertaken. 35 The theory of the divisibility (tajzia) of ijtihad was recognized as lawful and thus limited knowledge of usul could be sufficient to practice ijtihad in a particular case.36
Hallaq points out that movements which were opposed to the practice of ijtihad and insisted only on literal readings of the Quran and Sunnah such as the Zahiri school and the Hashwis eventually found themselves outside the community of Sunni Muslims.37 He demonstrates also that the Hanbali school had to evolve from holding a similar viewpoint to endorsing ijtihad in order to survive within Sunnism.38 To Hallaq, this shows that the Sunni community actively supported rather than opposed ijtihad. 39

While Hallaq points out that there was very active ijtihad within all four schools, ijtihad which often produced opinions at odds with the founders of the schools40, he does concede that during the last few decades of the fourth/tenth century an implicit consensus was reached among scholars that the establishment of any new schools and possible separatist tendencies was to be considered illegal. From the fifth/eleventh century onwards all jurists have belonged to one of the four schools and none of them have attempted to establish their own school. Ijtihad in order to find solutions to new problems has continued indefinitely however.41

Hallaq goes on to provide examples of jurists such as Ghazali, Juwayni and Ibn Aqil who made great contributions to ijtihad even though they did not found their own schools.42 According to Hallaq, Ghazali recognised that the category of full mujtahidun was extinct but this did not mean all mujtahidun were extinct. 43 Jurists could still revive the Sharia when necessary.44 Hallaq also points out that the contributions of jurists within the schools went far beyond merely commenting on the opinions of the earlier scholars.45

Ijtihad, as Hallaq points out, is a fard kifaya, an obligatory duty on the Muslim community as represented by the jurists. 46 While mujtahidun exist upon the earth they cannot refuse to carry out this duty. Therefore, the only way the door of ijtihad can be closed is not by theory but if mujtahidun become extinct. 47 Hallaq says that while the possibility of extinction is discussed in usul books, the closure of the door is hardly mentioned. 48 He goes on to discuss the controversy which arose over the issue of the extinction of mujtahidun, the Hanbali school and some of the Shafii scholars being particularly adamant that mujtahidun must exist at all times.49 The fact that there was such a controversy, he believes, precludes the idea of a consensus on the closure of the door.50 A further factor which precluded consensus was the practice of selecting a mujaddid (renewer) at the beginning of each century. While not every jurist supported this practice, the fact that the mujaddid had to be a mujtahid proves they were still in existence.51

Analysis
From the evidence presented above, it is my belief that a consensus, as even Hallaq concedes, 52 was reached in the early years of the four schools on the subject of ijtihad. This consensus was not to close the door of ijtihad as a whole, however, but to close the door of full ijtihad by which I mean that there would no longer be any new schools or independent mujtahidun. This was not a formal, recorded decision but I believe it was an agreement nonetheless. The fact that no new schools have emerged since the foundation of the four schools and that even scholars of the highest calibre such as al-Ghazali were content to accept the position of limited mujtahid 53 demonstrates clearly that this position was accepted by the whole community of scholars.

Although there were to be no more new schools, this did not mean that all ijtihad ceased. Despite the name, limited ijtihad provides much intellectual scope for mujtahidun of ability. In the classification described by Aghnides, for example, the mujtahid fil madhab are able to determine the law in particular cases provided only that they follow the principles/methodology of the schools founder. They are permitted to disagree with the founders decisions but not the principles. 54 Similarly, the mujtahid fil-masail 55 are able to use the principles of the founder to reach decisions on legal matters undecided by either the founder or the mujtahid fil madhab. 56

That such creativity was indeed the case in reality is borne out by the examples given by Hallaq57 and Kamali58 of the continuous and active role played by mujtahidun in discovering law. Schacht also concedes that despite what he understands as the theory of the closing of the door, the role of later scholars (muftis) was no less creative within the limits set to it by the nature of the sharia than that of their predecessors.59

In my opinion, the decision to close the gate of full ijtihad was not taken to stifle creativity, as the flexibility granted limited mujtahidun demonstrates, but was a practical necessity. By the time of the Abbasids, the Islamic state had undergone one of the most rapid geographical expansions of any empire in history. The Ummah, once predominantly, if not entirely Arab, had swollen to encompass Muslims of many diverse nations and cultures. If unregulated ijtihad had been allowed to continue there would have been, I believe, a real danger that separatist and heretical tendencies, each interpreting Islamic law in their own particular way could have become widespread. For the Ummah to remain unified and for the state to function effectively there had to be consensus on legal matters. . If a state is to be stable then it must have a stable legal system. Murad, in his defence of the four schools, describes the prospect of unlimited madhabs (law schools) as a brilliant scheme for the destruction of Islam60 and I agree.61

Conclusion
It is my conclusion, therefore, that the door of ijtihad never closed. As indicated by the title of this essay, it has continued both in theory and practice until the present day. What did close was the door of full ijtihad. This however was an implicit consensus rather than an overt one, taken for very practical and sensible reasons. There is no theoretical reason why a full mujtahid should not arise today and open a new school provided they are recognised as having the necessary qualifications. Likewise, there is nothing to prevent mujtahidun of the second rank from interacting directly with the sources of law to provide creative solutions to contemporary problems.

That said, it cannot be denied that there has been a crisis within the field of Islamic law for the last several centuries. The schools have passed through a long period of intellectual stagnation, a situation which has only reinforced the whole idea that the door of ijtihad has closed.62

It has been suggested that one reason that the schools have become moribund is that mujtahidun of high calibre no longer exist in the world.63 I find it impossible to believe this. One need only look at the strong Shia tradition of independent mujtahidun, those such as Sistani and Fadlallah today. Is it conceivable that the much larger Sunni community cannot produce jurists of equal measure? I think not.

The false belief in the closure of the door needs to be contested vigorously. As Menski has pointed out64, it has served the purposes of many groups to portray Islamic law as incapable of change from within. Traditional Islam needs to rediscover and reclaim its full potential and thereby reclaim the respect and relevance to practical rather than theoretical jurisprudence which it has lost. This must be accompanied by education reform which stresses creative skills in addition to memorisation65, in order to prepare jurists for the rigours of ijtihad. I strongly believe that, if the leading scholars have the will to act decisively in the manner I have indicated, Islamic jurisprudence can return once again to the intellectual heights of its early centuries.

End - Notes
2 J. Schacht, D.B MacDonald. "Idjtihd." in P. Bearman, Th. Bianquis, C.E. Bosworth , E. van Donzel and W.P. Heinrichs. eds.Encyclopaedia of Islam, Second Edition.CD-ROM Edition (Leiden:Brill, 2004)
3 Ibid
4 Ibid
5 Wael.B. Hallaq, Was the Gate of Ijtihad Closed? (New York: International Journal of Middle East Studies, 16, 1984) reprinted in Wael.B.Hallaq, Law and Legal Reasoning in Classical and Medieval Islam. (Aldershot:Ashgate, 1994)V:3
6 Abdullah Saeed, Islamic Thought: An Introduction. (Abingdon:Routledge, 2006)52
7 Mohammad Hashim Kamali, Principles of Isamic Jurisprudence. (Cambridge:Islamic Texts Society, 2003) 490
8 Ibid
9 Ibid, 489
10 One of the four Sunni law schools: Hanafi, Hanbali, Maliki and Shafii. I shall henceforth refer to them only as the four schools.
11 Knut.S.Vikor, Between God and the Sultan: A History of Islamic Law. (London:Hurst, 2005) 154
12 Ibid
13 Ibid
14 Norman Calder, Jawid Mojaddedi and Andrew Rippin, eds. trans. Classical Islam: A Sourcebook of Religious Literature. (Abingdon:Routledge, 2003) 192
15 Ibid, 192-193
16 Nicholas.P.Aghnides, Mohammedan Theories of Finance:With an Introduction to Mohammedan Law and a Bibliography. (London:Longmans, Green & Co., 1916) 121-123
17 Kamali, 2003, 490-493
18 Joseph Schacht, An Introduction to Islamic Law. (Oxford:Oxford University Press, 1982) 69
19 Ibid, 69-70
20 Ibid, 70
21 Ibid, 70
22 Ibid, 71
23 Ibid, 71
24 Ibid, 69
25 N.J.Coulson, A History of Islamic Law. (Edinburgh:Edinburgh University Press, 1964) 80
26 Ibid, 81
27 Saeed, 2006, 53
28 Ibid
29 Shaykh Taha Jabir Al-Alwani, Issues in Contemporary Islamic Thought. (Richmond:The International Institute of Islamic Thought, 2005) 109
30 Ibid
31 Aghnides, 1916, 123
32 Thomas Patrick Hughes, Dictionary of Islam. (New Delhi, Cosmo Publications, 2004) 207
33 Aghnides, 1916, 124
34 Ibid, 125
35 Hallaq, 1984, V:6
36 Ibid, V:7
37 Ibid, V:9-10
38 Ibid, V:10
39 Ibid, V:9
40 Ibid, V:11
41 Ibid, V:11
42 Ibid, V:15-18
43 Ibid, V:17
44 Ibid, V:17
45 Ibid, V:19-20
46 Ibid, V:20
47 Ibid, V:20
48 Ibid, V:21
49 Ibid, V:33
50 Ibid, V:33
51 Ibid, V:33
52 Ibid, V:11
53 Ibid, V:17
54 Aghnides, 1916, 122
55 mujtahids on particular questions Ibid, 122
56 Ibid, 122
57 Hallaq, 1984, V:11, V:15-18
58 Kamali, 2003, 493-494
59 Schacht, 1982, 73
60 Abdal Hakim Murad, Understanding the Four Madhabs. (Cambridge:Muslim Academic Trust, 1999) 15
61 Many other reasons for this decision can, of course, be posited. Multiple schools of law would have led to severe problems in regulating trade and economic relations both within the state and with external trading partners. There would also have been the potential danger of social breakdown with different views on authority and crime and punishment emerging. Ultimately, the risk would have been of a de-evolution from a transnational state to a series of city/town/village states. At a more academic level, it makes perfect sense to limit the number of methodologies which can be employed to solve problems in a particular area of the academic sciences. Having fixed standards for investigation and research not only makes it easier to weigh up the merits of the conclusions of that research against other similar findings but also ensures that the intellectual activity is regulated and focused not simply wild speculation. In their way, the four schools were the precursors of the global academic standards used in universities today.
62 Werner Menski, Comparative Law in a Global Context: The Legal Systems of Asia and Africa. 2nd Edn. (Cambridge: Cambridge University Press, 2006) 342-343
63 Menski, 2006, 342
64 Ibid, 343-343
65 The World Bank. Mena Development Report: The Road Not Travelled: Education Reform in the Middle East and North Africa. 182-184
http://siteresources.worldbank.org/INTMENA/Resources/EDU_Flagship_Full_ENG.pdf (accessed April 22, 2009)

3 comments:

anahita said...

salam
how are you?
I am a muslim too!
I am iranian and I dont understand enlgish very well in order to I dint understand what your feild academic education!
I`m chemical engineering and I looking for name of ISA journal for chemical engineering and condition paper that it must have to accept.
and another question
how I can accept for collage to cuntinue my education in foriegn country example canada or america or UK with have a job in same country.
Can you help me?

anahita said...

salam
how are you?
I am a muslim too!
I am iranian and I dont understand enlgish very well in order to I dont understand what your feild academic education!
I`m chemical engineering and I looking for name of ISA journal for chemical engineering and condition paper that it must have to accept.
and another question
how I can accept for collage to cuntinue my education in foriegn country example canada or america or UK with have a job in same country.
Can you help me?

fathima shaffana said...

barakallah, useful article