The Ijtihad ControversyAuthor(s): Shaista P. Ali-Karamali and Fiona DunneSource: Arab Law Quarterly, Vol. 9, No. 3 (1994), pp. 238-257Published by: BRILLStable URL: http://www.jstor.org/stable/3381568Accessed: 15/11/2010 04:33

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THE IJTIHAD CONTROVERSY

Shaista P. Ali-Karamali* and Fiona Dunne*

I N T R O D U C T I O N

The theory of iitihad and the controversial discussions regarding whether, when, and by whom, it should be exercised have been raging for centuries. This article examines the controversy and attempts to trace some of the trends and patterns therein, particularly from the late eighteenth century to the present day. The Elrst part discusses the defimition of idlihad and how codusion regarding the exact meaning of iitihad, as well as terms relating to it, may have contributed to the controversy. The second part examines whetlier or not the "gate of iitihad actually closed that is, whether iitihad was ever actually prohibited from being exercised. This part is divided into three sections, which in turn discuss: (1) the writings of those scholars who opine that iitEhad was never prohibited; (2) the writings of those scholars who opine that iitihad was never prohibited; and (3) the writings of those scholars whose opinions fall somewhere in between the first two extremes. Finally, there is an attempt to glean trends and patterns from the body of work examined and to suggest some theories which may apply to and possibly even explain this controversy.

THE DEFINITION OF IJTIHAD

Ijtihad is deEmed literally as "striving, exerting" and, in the jurisprudential sense, "the capacity for making deductions in matters of law in cases to which no express text or rule already determined by Ijma (consensus) is applicable''.l However, it has also been described as a "rethinking"2 or, most commonly, as "independent reasoning".3 Rudolph Peters defines iitEhad as "exerting one's effort in order to

*Dr Ali-Karamali received her bachelor's degree in English literature from Stanford University, her doctor of jurisprudence from the University of California at Davis, and her master of laws in Islarriic Law from the School of Oriental and African Studies at the University of London. She currently resides in California.

**Fiona Dunne is a nanve of Ireland and a graduate of Trinity College. She is currently pursuing a masters degree Som the School of Oriental and African Studies at the University of London.

1 Rahim, Abdul, The Principles of Muhammadan gurisprudence According to the Hanafi, Ataliki, Shafi'i and Hanbali Schools (Madras, 1911) (hereafter RShim), p. 16S9, 173.

2 Rahman, Fazlur, "Post-Formanve Developments in IsIam" in Islamic Studies, Karachi, 1, 4 (1962) (hereafter Rahman, "Post-Formative Developments"), p.l2.

3 See, e.g., Schacht, Joseph An Introduction to Islamic Law (1964) (hereafter Schacht), p.69.

238

THE IJTIHAD CONTROVERSY 239

derive from the basis of the law an opinion concerning a legal rule".4 The opposite of iitihad is taqlid, which Peters defnes as "accepting an opinion concerning a legal rule without knowledge of its bases".5 Although the slight differences in the definitions of iitihad do not at first seem signiElcant, the differences may have led to confusion regarding the concept of iitihad and thus to the argument amongst medieval Islamic scholars regarding whether it should or should not be exercised.

This confusion theory is one of the hypotheses that W. Montgomery Watt puts forth. Watt asserts that iitihad functions at different levels, namely at: (1) a "basic" level which deals with basic matters that distinguish the different madhabs, or legal schools of thought; and (2) a "parucular" level, which deals with specific matters within each particular madhab, or "school of law".6 Watt states that although the "idea of closing the door" applies only to basic iitihad, many of the later discussions, such as al-Taftazani's commentary on the creed of al-Nasafi, are about particular iitihad.7 Watt concludes from these discussions that confusions existed as to deEmitions and that, therefore, some of the arguments in the Muslim community regarding whether iitihad was supposed to be closed were at "cross purposes" or based on misunderstandings.8

Instead of decreasing with time, the degree of confusion regarding iitihad increased steadily in legal literature. Literature on iitihad published since the last decade of the nineteenth century displayed a similar plethora of defmitions. The Asiatic Society of Bengal deEmed ijlihad in 1892 as "exerting one's effort in order to derive from the basis of the law an opinion concerning a legal rule".9 But four years later, in 1896, Edward Sell deEmed iitihad as "the attaining to certain degree of authority in searching into the principles of jurisprudence".l°

In 1914, Sayl-al-din defined iitihad as "the total expenditure of effort in the search for an opmion as to any legal rule''.ll In 1930, Dr Mohammad Iqbal defined iitihad as follows: "[T]o exert with a view to form an independent judgment on a legal question".l2 However, in 1936, Mohammad Ali defimed iitihad as the exercise of judgment.l3 In 1954, Kemal Faruki questioned the mufti, Mohammad Shafi'i, on various aspects of fiqh. In answering questions regarding fiqh, Shafi'i defimed ijtihad as "disciplined judgment of individual jurists".l4 In the

4 Peters, Rudolph, "I jfihad and Taqlid in 18th and l9th Century Islam", Die Welt des Islams, XX, 3- 4 (hereafter Peters), p. 135.

5 Id. 6 M.W. Watt, "The Closing of the Door of Ijoahad", 1 Orientalia Hispanica (Lieden, 1974) (hereafter

Watt, "I jtihad"), p.678. 7 Id. 8 Id. 9 Peters, supra, p.l35. ° Sell, Edward The Faith of Islam (London, 1896) (hereafter Sell), p.32.

11 Weiss, B, "Interpretaiion in Islamic Law: The Theory of Ijtihad", 26 Amer. 3t. Comp. Law, Vol. 2 (Sgring 1978) (hereafter Weiss), p.207.

2 Iqbal, Mohamrnad, The Reconstruction of Religious Thought in Islam (Lahore, 1930) (hereafter Iqbal), p.208.

13 Ali, Mohammad, The Religion of Islam (Lahore, 1936), p.96. }4 Faruki, Kemal, Ijma and Ijtihad (Lahore, 1954).

240 ARA8 LAW QUARTERLY

1960s, Fazlur Raban deEtned iitihad as ''rethinking'',l5 while in 1964 Ahmed Manzooruddin wrote of iitihad in the wider sense, interpreting the term to encompass the entire area of social activity political, economic and legal.l6 In 1967, Hasan referred to the early techrlical dispute over the term iitEhad: "In the early period [the term] was used in a narrow and more specialised sense than it came to be used in the writings of al-ShaE1'i''.l7 Later in the same article, Hasan discusses the geographical variations in the application of iitEhad: "m cases where Malik uses the term ijrihad, the Iraqis used the term hukumat' adl fair arbitration)' X .18 Thus, the absence of a common defmition of iitEhad was obvious. Hallaq, writing in the 1980s, maintained that the misunderstanding of technical terms was due to the absence of a common technical director to which jurists could conform.l9 Despite all this, however, it is possible to discern certain points from the historical confusion with respect to the constrVaction of a definition. Iqbal's 1930 definition probably provides us with the best synthesis of all the definitions we have discussed thus far in which both the elements of exertion and independent judgment are mentioned. It is noteworthy that definitional lacunae exist not just with regard to the meaning of iitihad, but also with respect to scope and with respect to who is entitled to practice iitihad.

Complexity of the deflnition varies, as well, with later defimitions tendirlg to become simpler. For example, in 1896 Sell referred to three degrees of iitihad axld gave a lengthy exposition of who was entitled to exercise it, not all subsequent commentators did so. Similarly, Iqbal in 1930 and Ali in 1936 described the fimer degrees of iitihad, from absolute iitihad exercised by the original four imams to that of which the mdividual is capable. However, an article written in 1913 in Muslim World purports to reiterate Sell's detailed 1896 defmition, when it actually simplifies it considerably.20 Similarly, Gibb in 1932 subsumes all acts of ijrihad under one category.2l This tendency to generalise the concept of iitihad is also evident in the works of other Orientalist contemporaries of Gibb. Further examples are the 1934 and 1939 works of L. E. Brown and Edwin Calvery, respectively, both of which are discussed in the second part of this article below. Theoretical variations in the defmition of iitihad constitute part of the problem of analysing the concept of the closure of the gate of iitihad. Ascertaining whether the gate of iitihad closed becomes more difficult when it is not clear exactly what iitihad is in the first place. This results from the failure of scholars over the past

15 Rahman, "Post-Formative Developments", p.12. Ahmed Manzooruddin, Shura, Ijtihad and Ijma in the Early State in University Studies (Karachi) Ii (1964) (hereafter Ahmed), p.46.

17 Hasan, Ahtnad, "Early Modes of Ijiihnd: Ra'y, Qiyas, and Istihsan" in 6 Islamic Studies (1967), p.48. 18 Id. l9 See generally Hallaq, Wael B, "Was the Gate of Ijtihad Closed?" 16 Int. 3t. Middle East Studies, > 41 (1984) (hereafter Hallaq). 20 See generally "Western Influences on MoFummadan Law" in Muslim World, 1913, p.356. 21 Gibb, H.A.R. Whither Islam? (London, 1932) (hereafter Gibb, Whither Islam.>)

THE IJTIHAD CONTROVERSY 241

hundred years to produce an adequate or consensual definition of iitihad. For example, although Gibb's contention that the gate of iitihad is closed never to be opened again22 is radically different from Iqbal's stating that a fresh interpretation of iFtihad principles is needed,23 these divergent opinions are not necessarily irreconcilable if each writer has a different concept in mind when using the term iFtihad". The next part of this article examines the impact of the deEmitional variations on scholars' opinions on whether the gate of iitihad closed.

WAS THERE A CLOSURE OF THE GATE OF IJTIHAD?

The material discussing iitihad can generally be separated into three categories. In the first category are writers who are unequivocal and firm in their belief that the gate of iFtihad closed formally and tightly. The second category is comprised of a few writers who assert that the gate of iFtihad never closed. The third category contains writers who fall between these two extremes and who seem to be undecided as to whether the gate of iitihad closed.

The Modernists

In this first category, the writings tend to accept the concept of the actual closure of the gate of iitihad. These writers refer explicitly to the phrase, "closure of the gate of iitihad or "insidad bab al-iitihaan', as well as the actual action. No argument or debate surrounding the closure issue is mentioned. Concomitant with this positive use of the phrase is the acceptance of the idea that by iima, or consensus, the Muslim scholars decided to close the door on iitihad.

An early writer of the first group is Count Leon Ostrorog, who discusses iitihad in his book, The Angora Reform. In this 1927 work, Ostrorog exalts the reform taking place in Turkey and speaks patronisingly of the way in which development of Islamic law was suppressed. Ostrorog defnes iitihad as interpretation in the law, and alleges that the closure of the gate of iitihad, which he defines as "the slackening and fmal disappearance of original mental activity in the province of constructive "Mohammadan Jurisprudence" occurred sometime in dche thirteenth century.24 Ostrorog has no doubt that his closure did occur, which he delineates by stating: This [the principle that doctrines of the Doctors of Law, i.e., the founders of the four main schools, must be followed even if seemingly contradictory with the Qu'ran or the hadith, and should be considered a case of nasth or interpretaiion] is final, and nothing could express more clearly what is meant by the expression, famous in Mohammadan East,

22 Gibb, H.A.R., Modern Trends in Islam (1947) (hereafter Modern Trends), p.13. 23 See generally Iqbal, Mohammad, The Reconstruction of Religious Thought in Islam (Lahore, 1930). 24 Ostrorog, Count Leon, The Angora Reform (1927) (hereafter Ostrorog), p.31.

242 ARAB LAT QUARTERLY

desbing the ultmate stage of Mohamrnadan Jurisprudence: Seddu Babi 'I-Ijtihad, Closure of de Gate of Interpretaiion.25

Interestingly, Ostrorog discusses not only the closing of the "door of interpretation", but also allots a metaphorical paragraph to each of the closing of the "doors" of allegorical exegesis, human reason, and religious criticism.26

The writers emerging after Ostrorog seem to have adopted Ostrorog's views regarding iitihad with increasing conviction and decreasing debate. For example, the proent Orientalist H.A.R. Gibb may be viewed as one of the writers led by Ostrorog. In the introduction of his 1932 book, Whither Islam?, Gibb writes: "Once these decisions [regarding theology and law] were made, they were regarded as unalterable and the gate of iitihad was gradually narrowed dowrl to minor points until, with the final settlement of these, it svas closed altogether".27

Similarly, a mere two years later, L.E. Brown espoused the same view as Gibb in a 1934 article entitled, "The Development of Islam". In this article, Brown states: "It began to be believed that the four great lawyers of Islam had said the last word and that there could be no agreement of the Muslim people contrary to the decisions of the four lawyers. So the doors of progress were closed and Islamic law became fossilised".28

The same definitive reference to the closure of the door of iitEhad was used by Edwin Calvery in 1939 when he wrote, "The Muslim authorities we have seen have held that the four sources of law and doctrine are adequate for all Islam for all time. They have expressed this position by saying the door of iitikad or the right of personal judgment is closed".29 This statement is interesting, sincc as we shall see- it tends not to be the Muslim authorities who assert that the gate of iitihad is closed, but rather the Western authorities who do so.

In his book, Modern Trends in Islam, which was published in 1947, Gibb asserts that orthodox scholars lisnited iitEhad because they "feared individual reinterpre- tation".30 He states that occasionally there appeared someone who claimed the right of iitihad. But Gibb admits to a paradox in his own reasoning. First, he states that a cla of iitihad would be worthless, unless it was supported by iima, or consensus. But then he admits that iitihad would have been asserted agamst iima in the first place otherwise, how could iitihad be deElned as mdependent reasoning? It would be simply agreeing with the consensus. Thus, Gibb's reasoning regarding

.. .. . . . . tzeaa 1S unconvPmcmg. Gibb himself downplays these claims of iitEhad by stating that they were given

only pariial support and even that only when they rejected iJma in order to "return to the practice of the prnmitive community", not to "modernise the doctrines of Islam''.3l Aside from being a blanket value judgment on what exactly constitutes a

25 Id-, p.29. 26 Id, 2S27- 27 Gibb, Whither Islam?, p.67. 28 Brown, L.E., "The Development of Islam" in Muslim World, 1934, p.l74. 29 Glvery, Edwin, "The Fundamental Structure of Islam" in Muslim World, 1939, p.376. 30 See Gibb, Modern Trends, p. l3

THE IJTIHAD CONTROVERSY 243

"pritive" versus "modern community", iis statement is untenable because it implies that iIlterpretation was applied, if at all) with extreme rigidity. If ochis were true, how could differences in doctrine be tolerated, especially to the point of four different madhabs each regarding the doctrines of the oier madhabs as legitimate and equally valid? Gibb never overcomes this diffculty.

Fifteen years later in his work Islam: an historical survey, Gibb becomes, if anything, more strident in his approach to iitihad. He writes that ffie: . . . great majority of Muslim doctors held that the "gate of ijtihad was shut once and for all, arld that no scholar, however eminent, could henceforth qualify as a muitahid [one who practices idtihaSJ ... Islamic law has remained in a petrified state ever since the "gate of ijtihad was closed in the third century [the tenth century of the common era] . . .X.32

Any paradoxes or doubts dat Gibb may have previously had are ignored) and he has become certain that the gate of iitihad actually closed.

This strident attitude toward closure appears increasingly frequently in works written during the middle of this century. For example, Joseph Schacht is ofien quoted as the authority on iis subject. Schacht states from the tilird to ie eighth centuries "the idea began to gain ground that only the great scholars of de past who could not be equalled, and not the epigones, had the right to independent reasoning".33 Schacht maintains that at about ie year 900 C.E., ... the point had been reached when the scholars of all schools felt that all essential questions had been thoroughly discussed and finally settled) and a consensus graduaIly established itself to the effect that from that time onwards no one might be deemed to have the necessary qualifications for independent reasoning in law . . . This "closing of the door of litihad, as it was called, amounted to the demand for taklid, a term which had onginally denoted the kind of reference to Compariions of the Prophet that had been customary in the ancient schools of law, and which now came to mean the unquestioning acceptance of che doct:rines of established schools and authorities.34

Schacht diverges for a moment, almost acknowledging a paradox) when he states later dat "[w]hatever the theory might say on iitihad arld taklid, the activity of later scholars, after ie closing of the door of ijtihad, was no less creative than that of their predecessors". This statement indicates at Schacht is reaIly aware dchat the closing of the door of iitihad was really only a result of theory and was never really implemented in practice. But then Schacht concludes his chapter by reverting to his original course of thought: It will have become clear from the preceding paragraphs that Islamic law, which 1miil che early Abbasid period had been adaptable and growing, from then onwards became increasingly rigid and set in its final mould. This esseniial rigidity of Islamic law helped it to maintain its stability over the centuries which saw the decay of the political insiituiions of

31 Id. 32 Gibb, H.A.}?., Islam: An Historical Survey (1962) (formerly Mohammadanism) (hereafter Gibb,

Islam), pp.66, 71. 33 Schacht, p.70. 34 Id ) p-7>71*

244 ARAB LAW QUARTERLY

Islam .... Taken as a whole, Islac law reflects and fits the social and econornic condiiions of the early Abbasid period, but has grown more and more out of touch with later developments of state and society.35

In so stating, Schacht has come full circle, especially when it is recalled that he began by stating, "the doctrine that derlied the further possibility of 'independent reasorling' sanctioned officially a state of things which had come to prevail in fact [emphasis added]".36 This statement seems to contradict the later statement quoted above, which implies that the closure of the door of iitihad occurred only in theory.

Many scholars after Schacht seem to unthinkingly adopt Schacht's view of iitihad. For exampIe, Khadduri, writing in the tenth century, asserted that any attempt to deviate from the teachings of the four schools of Islarnic law was considered an innovation and therefore denounced.37

As a result, iitihAd was gradually abandoned in favour of taqlid .... At f¢st taqlid reflected a tendency to reduce de differences among junsts and lt the number of schools, but the growing intolerance of the Muslims to legal reasoning rendered taqlid arld obsucle to legal development. Thus the door of ijtihad was shut and taalid becarne the dominaiing rule".38

But Khadduri does not explore the consequences of his reasoning. He states that innovation was denounced and that Muslims were intolerant of legal reasoning. But a mere paragraph before the above-quoted one, he states that Muslims took a "tolerant attitude" toward disagreement among the jurists and "regarded the various opinions of jurists . . . as various routes, all leading to the truth".39 So why the change from tolerant awitude to intolerant? No explanation is given for the radical shiR in attitude irs the Muslim community. Khadduri simply takes it for granted that the shift occurred and that the door of iitihad was closed as a result.

Other modern writers also neglect to discuss the debate surrounding or even the reasons behind the fabled closirlg of the door of iitEhad. For example, J.N.D. Anderson simply states that "it was commonly accepted that the door of iitEhad had become closed, and that all later jurists were mere muqallids who had the duty of accepting the conclusions reached by previous generations of scholars as authoritative; that is, the duty of taqlid".40 Commonly accepted by whom? By using the passive form for his statement, Anderson sidesteps any need for further investigation into the issue of iitihad.

Similarly, Tritton writes, "It is assumed that the door of iitEhad is closed and lawyers can only develop the principles laid down by the founders of the rites. The early gerlerations of Muslims were the best and it will always be well with men so

5 Id-) p.75. 36 Id-, p 69- 37 Khadduri, M., "From Religious to National Law" in Thompson & Reischauer (eds.),

Modennzation of the Arab Torld (1966), p.41.

39 Id. 40 Anderson, J.N.D,. Law Reform in the Muslim World (1976), p.7.

THE IJTIHAD CONTROVERSY 245

long as they take knowledge from their predecessors''.4l Tritton abdicates responsibility by using, like Anderson, the impersonal "it is assumed". Tritton's statement is unequivocal regarding the closure of the door of iFtihad, but his very next sentence seems to contradict this unequivocal statement: "Following (ittiba") the opinion of another when it can be shown to be right is good but blind imitation (laqlid) is wrong; in religion the former is right and the latter forbidden".42 If taqlid is wrong, why did it replace iitihad? It could be that the taqlid that Tritton is speaking of here is not the same concept that Schacht spoke of above if it were, then how could taqlid be regarded as more favourable than iFtihadS? Again this concept is not one which Tritton examines in depth.

Liebesny, though writing earlier than Tritton, is no less unequivocal. He states the following: [T]he great creative period of Islamic law came to a close with the formation of the four orthodox schools, and according to orthodox doctrine the "gate of interpretation" or "independent reasoning" (bab al-iitiha) was officially closed in the ninth century A.D. (fourth century A.H.). The "closing of the gate" was not recognised by Shiah doctrine, which regards independent reasoning still as permissible. However, Sunni jurists had to confine themselves after this event to cononentaries on the classical works and to the decision of individual cases on the basis of the Koran, the sunna, and the authoritaiive works of the schools to which they belonged, though so-called fatuas.43

Again, Liebesny does not specify who exactly "officially closed" the gate of iFtihad- it is assumed, taken for granted, and therefore entails no need for controversial explanations. And it is an important issue to be so ignored{)ne of the problems with the entire idea of the gate of iitihad closing is the unlikelihood that all Muslim scholars in all parts of the world were able to sit down together and actually agree upon whether to ban independent thinking.

In keeping with the trend of simplification, N.J. Coulson, in his 1964 History of Islamic Law also seems certain as to the closure of the gate of iFtihad. Coulson writes that iima, or consensus, was infallible, once formed.44 As iima became increasingly developed, to contradict it was heresy, and therefore iitihad was phased out. Finally, Coulson states, iitihad disappeared altogeier when "Muslim jurisprudence of the early tenth century formally recognised that its creative force was spent and exhausted in the doctrine known as "the closmg of the door of iitEhad." Coulson puts the date of this event in the early tenth century.

Fazlur Rahman discusses ijtihad briefly in more than one work, but he adopts Schacht's view in his book, Islam. R^marl states: Even in order to establish Hadith, Ijma was needed .... Although the Hadith materials were once more reinterpreted to obtain new legal norllls through qiyas, fbis largely remained a scholastic activity. Shorn of its funciion as leading to Ijma, it [iitihad or qiyas] gradually lost

41 Tritton, A. S., Materials on Muslim Education in the Middle Ages (London, 1957), p.l63. 42 Id. 43 Liebesny, Herbert J., "Religious Law and Westernization in the Moslem Near East", 2 Amer. ^.

Comp. Law (1953), p.495. 44 Coulson, N J.

246 ARAB LAW QUARTERLY

vitality untl, when at the end of the thirdlth and beginning of the fourth/tenth centuries, both de dogma and the law had taken a defuiite shape, the Ijma arrived at by that time was declared final and the door of iitihad was closed. In other words, once Hadilh had been established by Ijma, it ousted Ijma by its very logic.45

Ahmed Hasan has another explanation for the closure of the door, but he does not seem to be in any doubt as to the closure itself. In his 1967 article, Hasan mentions the closing of ie door of iitihad on more than one occasion. He refers to Dr S. M. Yusufs reason for the closure of the door of iitihad, namely that the corpus of Islamic law had developed to the extent that it was capable of catermg to all needs of the time.46 Hasan himself argues that "the more ra'y was discarded and the scope of iitihad was narrowed, the more the concept of nass [divine revelation] dominated and was extended. Emphasis on nass closed the door to the use of ra'y in law 47

Two more writers in this group worth mentioning are the following: Firstly, Albert Hourani uses the term "closure of the gate of ijtihad" consistently throughout his book, Arabic Thought in the Liberal Age. He paraphrases the writing of al-Jisr, who accepted the "traditional" view of the closure of the door of iitihad after the first three cerlturies of Islam.48 Secondly, K.A. Fariq writes in 1957 that the "brakes were applied to iitihad after the third century of Islam as a reaction to the Mihna (the Inquisition), during which the people of Baghdad saw the disastrous effects of "independent reason" in the guise of Mu'tazila.49

Finally, one very early writer is worth mentioning because he was writing in India relatively early he published his work in 1922. Maulavi Saiyid Amir Ali, in his book, The Spirit of Islam, speaks in his chapter entitled "The Status of Women in Islam" of how "it must be remembered that the elasticity of laws is the greatest test of their beneficence and usefullless''.50 He continues: "The blight that has fallen on the Moslem nations is due to the patrisiic doctne which has prohibited the exercise of individual judgment (Ijtiha@) .... Then once the freedom from the enthralment of old ideas is achieved, it will be easy for the jurists of each pariicular Moslem State to abolish, by an authoritaiive dictum, polygamy withirl that State''.5l

Amir Ali's purpose here is not to discuss iitihad. Instead, he uses ijrEhad tangentially to his main argument, which is that polygamy should be abolished and flexibility in the law is important. He uses the presumed prohibition on the exercise of iitihad as a scapegoat for the neglect of Islamic jurists to abolish polygamy. Therefore, he has an incentive to portray the ban on iitihad as absoluthe is, after all, blaming it for polygamy and inflexibility in the law.

45 an, FaKur, Islam (1966) (hereafter an, Is), p.87. 46 Hasan, Ahmed, "Modern Trends in Ijma" in Islamic Stud. 12 (1973) (hereafter, Hasan, "Modem

Trends"), p.137. Id., p.54.

48 Hourani, Albert, Arahc Thought in the Liberal Age (London, 1962) (hereafter Hourani), p.223. 49 Fariq, K.A., "Evolution of Law in Islam", Iqbal 6i (1957), p.55, 65. 50 Amir Ali, Maulavi Saiyid, The Spirit of Islam (London, 1922), pp.23>31.

THE IJTIHAD CONTROVERSY 247

However, the fact that he does seem to assume the prohibition on the exercise of iFtihad is perhaps significant, since he was writing at a time during which most of the other authors on ie subject were not as clear and convinced of this prohibition. This is generally true especially of the non-European writers.52 Even so, however, it is noteworthy that he does not use the phrase itself, "closure of the gate of iFtEhad".

Scholars Rejecting the Closure of Ijtihad

In this category, we have writers like Hallaq in the 1980s and Iqbal in the 1930s, who refer to the concept of closure of the gate of iFtihad but who deny both closure and narrowing of de gates of iitihad and whose arguments are based on historical examples of practical iitihad being continually exercised. The most significant article is by W.B. Hallaq, in which he sets forth numerous arguments as to why this view is untenable53

First, Hallaq shows that iitihad was an integral part of Islamic legal theory because it sCconstituted the only means by which jurists were able to reach the judicial judgments decreed by God".54 Ijtihad was regulated by allowing only those with certain legal knowledge to practice it, but, Hallaq asserts, such requirements were relatively easy to fulfil and "facilitated raffier than hindered the activity of iitihad".55

Hallaq goes further to state that not only was iXtihad favoured by Sunni jurists, but those jurists and schools of thought which were opposed to the exercise of iJtihad were ostracised from Sunni jurisprudence and, indeed, from Sunnism as a whole.56 The example Hallaq gives is that of the madhab of Dawud al-Zahiri. Apparently, followers of this school rejected qiyas (or analogy) even when it was based solely on scripture.57 The Zahiri school was part of the larger group of Traditionalists who "were primarily concerned with the study of transmitted sources and their literal interpretation, while denying human reason any right to be exercised in iFtihad or in the process of legal reasoning".58 The Zahiri school was eventually excluded from accepted Sunni jurisprudence, and Hallaq maintains that the reason for this exclusion was the Zahiris' refilsal to accept iitihad.59

Secondly, Hallaq asserts that iitihad was a religious duty required of all qualified jurists; why would the jurists have made a conscious decision to abandon their religious duty?60 In support of his thesis, Hallaq sets forth the following additional four arguments:

52 This asseriion is discussed in detail in Section IVt. 53 See generally, Hallaq, supra.

54 Id. p.4. 55 Id.) 56 Id.

5 Id-, p 8* 58 Id.

5g Id. 60 Id, p.5.

248 ARAB LAW QUARTERLY

(1) Jurists who were capable of iitihad existed at nearly all times; (2) Ijtihad was used in developing positive law after the formation of the schools; (3) Up to ca. 500 AH there was no mention whatsoever of the phrase "insidad bab al- iitihaa"' or of any expression that may have alluded to the notion of the closure; and (4) The controversy about the closure of the gate and the extinction of muitahids prevented junsts from reac}ling a consensus to that effect.

Finally, Hallaq states that iitihad may: . . . cease only when muilahids either decline to perform it or when they become exonct . . . The dying out or the absence of well-learned jurists then can be the only reason for the closure of the gate of iitihad .... Thus, whether the gate has always been open or had at one point of time been closed is virtually determined by these two elements: (1) the existence or exiinction of maitahids, and (2) the jsts' consensus that the gate of iitihad, for the reason of exonciion was, or was not, closed".62

The controversy regarding iitihad began then, according to Hallaq, with an argument about whether a maitahid must be in existence at all times, an argument which did not occur until the begig of the sixth/twelfth century.63 The Hanbalis insisted that a maitahid must be in existence at all times. Since a muitahid is one who practices ijtihad, it follows that iitihad must be in existence, as well. However, consensus on this point was never reached because: (1) Muitahids existed until the tenth/sixteenth century and later as well, although not with as much frequency; (2) The call for maitahids continued after the tenth/sixteenth century; (3) A maitahid was chosen at the turn of each century in the Muslim community; and (4) The Hanbalis, supported by some influential Shafi'is, never agreed that a maftahid could not exist.64

Hallaq's article was published m 1984, but at least one much earlier writer shares his view, as well. In 1911, Abdul Rahim published a work in which he discussed iitihad. The first interesting point to note is ochat he never mentions the "gate of iitihad" much less the closing of it, despite his lengthy discussion on iitihad. Indeed, Abdul Rahim phrases the problem somewhat differently from Hallaq. He states:

The really important question is, is there anything in the law or in the Sunni doctrines which precludes the recognition of any jurists (Muitahids)) other than the ancient doctors. The answer to dat must be decidedly in the negative. The Hanbalis go furier and hold that there can be no age in which there should not be a Muilahid, though the other Sunni Schools do not deny such a possibility . . . There are no doubt some men who think that the age of independent juristic thought has come to an end, and some seem to have gone so far as to hold that there can be no further exposition and development of the doctrines even of a particular school. If the age of Ijtihad had come to an end with the four imams, their

Id., p.4. Id., p.21.

63 Id. Id., pp.2S33.

249 THE IJTIHAD CONTROVERSY

disciples, and those that ediately followed them, one would have expected to find some mention of such an important doctnne in the books on Usul, which is the science that deals, as we know, with the sources of law.65

Abdul Rahin has several reasons for his view that a majtahid may exist in the modern-or, indeed, any age. First, Rahim notes that the qualifications for being a maf tahid are moderate and not difficult to attain. Second, he asserts that the law regarding iima (consensus) contemplates the possibility of there being a muitahid in every age, as is evidenced by the Qu'ranic text governing juristic deductions: "Then ask those who have knowledge, if you yourselves do not know".66 Third, Rahim opines that a doctrine effectively limiting or eliminating iima and iitihad (in his opinion, the two most important sources of law) would be in conflict with basic principles of Sunni jurisprudence, namely the principle that "all juristic deductions are uncertain and discretlonary ...X.67 Abdul Rah goes on to state that "it would practically involve the position that the individual opmions of the ancient jurists, supposing we are able to ascertain what they are, cannot be dissented from and must be followed like absolute and certain laws".68 He concludes, "The fact is that the theory of Taqlid has a historical rather than only legal significance''.69

Abdul Rahim's view seems to be that not only is the presence of a maftahid a possible state of circumstances, it is a preferable, perhaps even necessary state of circumstances. For example, he asserts that each of the four madhabs have ample room for expansion and development of the law.70 He further advocates the development of the law in modern times and states that even m the time of the four founders of the madhabs, the question of: ... difference of opinion among the masters regarded as a matter for discussion and controversy and it was not supposed that, because a certain view had found vogue arnong the principal exponents of a particular School, it was on that account binding . . . in preference to any other view which had the support of some other Sunni School. It was not uniil very modern times that an attempt was made by means of the doctnne of Taslid to confine the Court and the jurists to one of the four Schools of law from the others''.7l

This assertion, appearing in both Hallaq's and Abdlll Rahim's works, that iXtEhad was always practiced, and is cuxTently practiced, surfaces in other scholarly works, as well. Direct reference to the active use of iitihad and non-closure are observable in the 1920s. For example, in an article entitled "Islam and the Modern World", Khuwa Bukhash asks, "Could the numerous sects have arisen in Islam if Islam had strangled thought, crushed free thinking? ... Basing themselves on an

65 Rbim, MuhammadaninspHence, p.173. 6 Id, p.174.

Id., p.l75. 68 Id. 6g Id. 7o Id.

Id., p.178.

250 ARAB LAW QUARTERLY

independent interpretation of the Quran, eminent Muslim scholars are making strenuous efforts to liberate Islam from the fetters of authority".72 In 1930, Mohammad Iqbal argued not just that iitihad was an active principle, "the principle of movement and the structure of Islam",73 but also that an iima was never reached by the four imams. Iqbal states: "Did the founders of our schools ever claim finIlality for the reasonings and interpretations[?]-never".74 In fact, Iqbal discusses iitihad as an active concept and uses as examples (1) the fact that Ibn Taiiyya and de sixteenth century Suyuti claimed the privilege of iitihad arld (2) che reality of current use of iitihad in modern day (1930s) Turkey, "where the power of iitihad [was] manifested in recent thought and activity in that country".75 From these examples, Iqbal concludes, "The closing of the door of iitEhad is pure fiction suggested partly by the crystallisation of legal thought in Islam and partly by intellectual laziness".76 Iqbal also cites Sarkashi, a tenth-century scholar, as writing, "If the upholders of this fiction mean that the previous writers had more facilities [to exercise iitihad] while the later writers had more difficulties in their way, it is a nonsense".77 Hourani's 1962 work (partially discussed above) also contains two references made to the non-closure of the gate of iitihad. First, Hourani translates al- Afghani's statements as depicted in al-Makhzumi's literature on al-Afghani as follows. "The door of iitihad is not closed and it is a duty as well as a right for men to apply the principle".78 Secondly, Hourani translates Mohammad Abduh's remarks, originally in Arabic, as presented in J. Jomier's book entitled Le Commentaire Coranique du Mana, as follows: "Individual iFtihad is not only permitted, it is essential"79 although only certain muitahids can perform it.80 Furthermore, Hourani translates Abduh as havirlg stated, "A sort of iima does grow up in time [on a certain issue], but it is never infallible and cannot close the door of iFtihad".8' This latter statement, it should be noted, is one of the first references we have of the explicit phrase, "close the door of iitihad". Abduh is cited also by Gibb in Whither Islam? in the context of iFtihad. Interestingly, Gibb asserts that Abduh, a leader of the liberal nineteenth century theologians m Egypt, advocated the reopeg of the gate of ijtihad as imperative. This statement is extremely misleading because it implies that the gate must have closed for it to have to be reopened. Abduh in fact never said that the gate of iFtihad closed, as indicated by the afore-mentioned quotations how could he advocate a reopening if he did not assert that it had closed in the first place? Although it is not

72 Bukhash, Khuwa, "Islam and the Modern World" in Muslim World, 1929, p.65. Iqbal, supra, p.207. Id., p.234.

5 Id ) p*215 6 Id-) p-247-

77 Id. Hourani, stlpra, p.l27. Hourani, supra, p. l47.

80 Id. 81 Id.

THE IJTIHAD CONTROVERSY 251

a misstatement or an incorrect quotation, Gibb's assertion is misleading in that it implies that even theologians of Abduh's calibre accepted the closure of iitihad.

The Middle Ground

Between the black and white views of writers who assert that the gate of iitEhad closed and those who assert that it never closed exist a group of writers who are unsure. These writers tend to explore beyond the strict affillllative or negative answers. Their writings display an awareness of the different levels of iitihad and who may practice it, an aspect not as prevalent in the writings classified under the heading "The modernists" (above).

For example, in 1896 Edward Sell devoted five pages to a technical account of three degrees of iitihad. He gave historical reasons for the restriction but did not contend that the gate of iitihad closed. In his book, he writes about iitihad, "It is now a purely technical term and its use and only use is to express the referring of a difficult case to some analogy drawn from the Qu'ran and the Sunna".82 Interestingly, when Sell is quoted in a 1913 article in Muslim World, the anonymous author, (the "jurist") contends, "[Sell argues that] the possibility of iitEhad, i.e., independent contribution to formative canon law, is recognised as impossible".83 The later article appears to exaggerate and overstate Sell's position and, furthermore, ignores the degrees of iitihad which Sell recognised. In fact, the strongest notion received by the 1913 writer is that of the impossibility of iitihad, which is not quite what Sell asserted.

In 1936, Mohammad Ali did malre use of the explicit phrase, "the door of ijtihad". However, he did not accept the truthfulness of the phrase. In his work he, like Sell, discusses the evolution of restrictive practices. He writes, "It is a mistake to suppose that the door of iitihad was closed after the four imams mentioned above".84 He further asserts iat no book on the principles of jurisprudence lays down that the exercise of a man's own judgment is forbidden.85 He concludes his argument by referring yet again to the limitations that have hampered ijtihad: ';The impression led to limitations upon iitihad and the independence of thought to which Islam had given an impetus".86

Ziya Gokalp's views on iitihad are somewhat similar to Ali's, and are discussed by Albert Hasan in his article, "Modem Trends in Ijma", also referred to previously. Gokalp, writing in the 1950s, distinguished between circumstances in which ijlihad was and was not perTnissible. In this regard, he stated, "Ijtihad is not permissible in questions where nass exists, but if nass is the outcome of 'urf [custom], then iitihad is permissible there".87 Gokalp continues that scholars of the

Sell, supra, p.32. 83 "Western influences on Mohammadan Law" in Muslim World 1913, p.356.

Ali, supra, p. 1 12. Id., p.ll3. Id., p.ll4.

87 Hasan, "Modern Trends", p.l45.

252 ARAB LAW QUARTERLY

figh must adapt themselves in accordance with the necessities of life.88 This "adaptation" is the very essence of iitihad.

In 1954, Kemal Faruki interviewed the maulana muSti, Mohammad Shafti on the subject of iima and the gate of iitihad.89 Significantly, the mufti responded in the present tense regard1ng the exercise of iitihad and when it could be used.90 The mufti essentially opined that iitihad could be exercised only in cases of new impression whose solutions had not been hitherto determined by iima.9l The mufti in this text never stated that the gate of iitihad was closed and, indeed, never used the term "closure of the gate of iitihad".92 However, Faruki, upon making his conclusions based on the responses of the mufti, does refer to the "gate of iFtihad" and its closure.93 This seems inconsistent with the responses given by the mufti. Thus, this work is problematic if we examine only the conversation with the mufti, we could very well conclude that ijrEhad was a present and current concern, but Faruki's conclusions undee this view.

UncertaiDty seems to prevail in the writings of this group of writers, and no article is more characterised by uncertainty than W. Montgomery Watt's article, "The Closing of the Door of Ijtihad".94 Watt is uneasy about Schacht's view regarding the closing of the door and "more particuIarly about the fact that oche closing is placed in the early tenth century.95 Watt has not really formulated an argument about the gate of iFtihad. He cites mainly a work called Irsad al-fuXul ila tahqiq al-haqq min ilm al-usul by Shawkani (d. 1832). Shawkani says there was never agreement about the closing of the door of idtEhad, but "that the question remained on dispute between the madahib or schools?'.96 Shawkani states that the Shafi'is, Malikis and Hanafis were arguing that iFtEhad could and should come to a close, whereas the Hanbalis held that it could not and would not.97 Both sides arguing this issue held that iitihad was prescribed by the Shari'a as a "cornmunal duty". Watt states that this "means that the duty is fulfilled if some members of the community fulfil it, but that if nobody fulfils it the whole community is liable to punishment".98 The schools disagreed on whether iitihad was necessary in every subsequent age or whether it could cease after it had been exercised for a certain period.99 Watt also cites Ibn al-Humam as addressing this issue.l°°

Finally, Watt makes the following two poillts: First, he notes that after the early teni century no new madhab appeared, and suggests that the iXtihad discussions

88 Id. 89 Faruki, Kemal, Ijma and the Gate of Ijtihad (Karachi, 1954), pp.7-9. 9o Id. 91 Id., p.9. 92 Id. 93 Id-, p-24- 94 Watt, "Ijtihad", pp.67978.

Id., p.675. Id., p.676.

97 Id. 9 Id., p.677. 99 Id. 100 Ibn al-Humam, Al-tahrfr fi usul al-din (No other citation information given).

253 THE IJTIHAD CONTROVERSY

may have been the reason for this lack of development. Secondly, he hypothesises that since iitihad operates on a basic or general level as well as a specific level, the early arguments may have been at cross-purposes. The definitional problem may have exacerbated the confusion and the argumentation on this issue.l°l

Watt suggests in his article that restriction and not closure is the key to the controversy about iitihad. This ffieme is also evidenced in Ahmed's 1964 article, C'Shura, Ijtihad, and Ijma in the Early Islamic State". Ahmed states, "It is true that in the sphere of law, in a certain stage in its development, the scope of iitihad and iima was greatly restricted, though formally neither the doors of iitihad were closed, nor the possibility of arriving at a new iima was ever ruled out''.l02

Bernard Weiss, writing in 1978, seems unable to decide whether iitihad was ended or not, both with respect to theory and actuality. Weiss states that there was a "general reluctance" of jurists after the third century of Islam to engage in iitEhad, "a development commonly referred to as 'the closing of the gate of ijtihad'.l03 Weiss further states that one "detects throughout the literature of usul al-fiqh a spirit of inquiry; interpretation always seems to be a present possibility, even if it is not always an actuality''.l04

ContraTy to this somewhat pessimistic attitude, however, Weiss implies almost in the same breath that the gate of iitihad never really closed at all. For example, he asserts, "the 'closing of the gate of iitihad' and the corresponding general shift to taqlid was more an accident of history than a requirement of theory. The notion that at the end of the Third Century (or shortly thereafter) the doctors of Islam reached an immutable consensus of opinion that Erther ijtihad was unnecessary is untenable''.l05 Weiss considers significant the on-going dispute about whether an age without a mujtihad was possible, and also notes that a consensus on this issue was never achieved.l06 He then makes the following statements, retnarkable in

* . . * . * @ llght of hls mlt1a pessunlsm: In any case, to affirm that a generation of Muslims could exist without a maftahid is not the sarne as affirming that the gate of iitihad has been irrevocably closed. In fact, there was never a permanent barrier to the exercise of iitihad, a point to which the occasional reformer was wont to call attention .... It would have been pointless for scholar after scholar to devote himself to the meticulous propounding of ochese rules [of interpretation] if iFtihad were nothing but a relic of the past''.l07

This paragraph is very different from the initial language discussing the "reluctance" of scholars to exercise iitihad. Weiss seems almost ready to conclude affirmatively that iitEhad never disappeared, but then he backtracks and implies tShat iitihad was only a possibility and not an actuality.

Id., p.678. 102 Ahmed, supra, p.48. 103 Id p-208- 104 )

105 Id. 106 Id. 107 Id.

254 ARAB LAT QUARTERLY

As is the case with writers who explicitly deny the closure of the gate of ijlihad at a practical or theoretical level, both Weiss and Ahmed identify the lack of doctriIlal support for the notion of closure. In fact, Weiss argues, "one who knows himself to be capable of independent interpretation of the source is forbidden by his conscience to adopt the opinion of others" 108 Yet, Weiss again appears inconsistexlt by stating elsewhere in his article that if everyone were a muitahid (practitioner of iitihaS), "there would be no law in the ordinary sense: every man would be a law unto himself ... Therefore, it is in the interest of social stability that not all choose to acquire the qualifications which are prerequisites of iitihad". 109

The uncertainty that seems to exist in the writings of the authors in this part is probably auributable to the different levels of iitEhad, recognised by Sell, for example, as well as to confusion regarding who was entitled to exercise iitihad and whether it was exercised in practice, in theory, or both. But it is interesting that even when these writers do make statements asserting that the gate of iitEhad closed, often the statements are accompanied by seemingly contradictory statements implying-or even stating that it did not.

CONCLUSIONS: TRENDS

From evaluating our limited research in this area, certain very general trends become evident. First, by the middle of this century, and particularly after 1972, beginning with Ostrorog and The Angora Reform, the phrase "the closure of the gate/door of iitihad becomes increasingly prevalent. Second, the conviction that such a gate actually closed becomes increasingly pronounced. Indeed, by the time Gibb wrote Modern Trends in Islam, he was dogmatically proclaiming that the gate of iitihad "was closed, never again to be reopened". l IO Even many Muslim writers, such as.Fazlur Rahman, who perhaps have more cause to question this notion regard it as a fait accompli.

The third trend emerges when earlier writings are examined, particularly those appearing before Ostrorog's picturesque description of the many doors-of allegorical exegesis, historical exegesis, and religious criticismoming to a close and stultifying Islamic law. In these earlier writings, scholars are generally not nearly as clear on the closure of the gate of iitEhad. Indeed, most of them do not even mention the phrase itself even when indulging in lengthy discussions of ijrWhad.l l l Further, as discussed above, many are explicitly dismissive of the notion that iitEhad ever carne to an end at all.ll2 lRhe two exceptions to this trend are al- Jisr, as quoted by Hourani and discussed above, and Maulavi Saiyid Arnir Ali, who

Id., p.207. 9 Weiss, supra, p.207.

Gibb, Modern Trends, p.l3. See, e.g., Rahim, Muhanadan gurisprudence.

112 See, e.g., M. Abduh's remarks in Hourani, supra.

255 THE IJTIHAD CONTROVERSY

both seem to accept the notion of a gate of iitihad and its closure. It should be noted that Amir Ali, however, never mentions the phrase, "the closing of the door of iitihad", despite its alleged fame in the "Mohammadan East".

An illuminating illustration of these general trends is the difference between the entry on iitihad in the first edition of the Encyclopedia of Islam and the entry on titihad in the second edition. The first edition was published in 1927 and bears no mention of iitihad, its gate, or its closure. It simply states, "this broad iitihad soon passed into the special iitihad of those who had a peculiar right to form judgments and whose judgments should be followed by others''.ll3

This of course parallels de view of many of the afore-mennoned writers who consider the existence of a narrowing of iitihad. The first edition of the Encyclopedia also states, "At this point, a difference entered between theology (kalam) arld law (fiqh). Even to the present day many theologians assert that taglid does not furnish a saving faith . . f.114 The first edition also mentions Ibn Taimiyya and Suyuti as examples of others who claimed the first rank of ijtihad for themselves. But it does not mention the gate of iitihad or the closing of it.

This is of striking importance when we examine the new edition of the Encyclopedia of Islam, which was published in 1971* This edition basically adopts a verbatim version of Joseph Schachtss views regarding iitihad, as stated in Schachts Introduction to Islamic Law.ll5 The entry in this edition unequivocally states, 'this sclosing of the door of iitihad,' as it was called, amounted to a demand for taqlid . . .**116 This is a clear manifestation of ie erend towards a concrete notion of the closure of the gate of iitihad in the mid-twentieth century.

Another example of these trends ls the omission of a discussiorl of iitihad by Ignaz Goldziher) an extremely important scholar writing at the nlrn of this century. Goldziher, oSen proclaimed as the father of modem Islamic law, never mentions "the closure of the door of iitihad7'* Indeed, he does not even discuss it. If the closing of the door of iitihad were so famous and so integral a concept in Islamic law and history, how could the father of modern Islamic scholarship fail to mention it? It may well be because the notion and the related phrase did not become "famous" until Ostrorog.

The conclusion that may be derived from the afore-mentioned research, en, is that in the late nineteenth century and early twentieth century) writers were eiier confilsed, unclear, or undecided about the issue of the prohibition of the exercise of ijtihad. This would imply, therefore, that the concept itself was still not universally accepted in ie late nirleteenth and early twentiei century. The phrase itself, "the closure of ie gate of iitihad", appears only rarely until 1927, when it appears in Ostrorog's Angora Reform.

And then it appears with a vengeance: Ostrorog refers to it as the Csexpression)

famous in the Mohammadan East, describing the ultimate stage of Mohammadan

113 Encyclopedia of Islam, 1st edn. (1972), p.449. 114 Id. 115 See, footnotes 2s32, supra and accompanying text. 116 Encyclopedaa of Islam, 2nd edn. (1971), p.1026.

256 ARAB LAW QUARTERLY

Jurisprudence: SedduBabi'I-Ijtihad, ClosureoftheGateofinterpretation''.ll7It is only after Ostrorog that writers seem to have seized upon this phrase and rendered it *nto vogue. And with the popularity of this phrase, "closure of the gate of iitihad", the need for consideration of the concept underlying the phrase seems to have vanished. With each new utterance of the expression, the closure of the gate of iitihad", the concept becomes simplified, undisputed, cast itl stone. From Ostrorog in 1927 and for the next 50 years, with increasing frequency, the concept of the closing of the gate of iitihad develops from an unclear, disputed doctrine to a sunple catch-phrase with an assumed truth underlying it. It is not until very recently that people like Watt and Hallaq seem to have taken a fresh look at the concept and not just at the catch-phrase. Why this sudden crystallisation of this concept of iitihad in a short span of five decades when the concept was debated for centuries? One explanation may be tied to, if not a direct result of, the rise of Orientalism in the eteenth century. This explanation is one that is deftly illustrated by a passage written by Edward Said in his illuminaiing work, Orientalism. Said quotes and comments upon the following paragraph from Gibb' Modern Trends in Islam:

It is true that there have been great philosophers among the Muslim peoples and that some of them were Arabs, but they were rare excepiions. The Arab niind . . . cannot throw off its intense feeling for the separateness and the individuality of the concrete events. This is, I believe, one of the main factors lying behind that "lack of sense of law".... It is this, too, which explains ... ie aversion of the Muslims from the thought-processes of rationalism * i i *

Said's commentary on this passage is as follows: Are we not once again being asked to inspect the Oriental Muslisn as if his world, unlike ours "differently from it" had never ventured beyond the seventh century? . . . If Islam is flawed from the start by virtue of its permanent disabilities, the Orientalist will find himself opposing any Islamic attempts to reform Islam, because, according to his views, reform is a betrayal of Islam . .. 118

The concept of the ending of iitihadis in itself important, especially because we are not clear as to whether or not it occurred and which doctrine, if any, was chosen. But the phrase, "closure of the gate of iitihad is important because it may be something that Orientalists seized upon as a way to generalise de notion of iitEhad and not bother wii or even think about the details relating to it. Indeed, it is a convenient method by which to pronounce Islarnic law as inferior the gate of iitihad closed, and therefore Islamic law has not developed for centuries. With this phrase, then, Islamic law is in just a few words generalised and rendered inferior and backward. Said's assertion is perfectly illustrated in the context of iitihad in the following quotation from L.E. Brown's article: "So the doors of progress were closed and

Ostrorog, supra, p.29. 118 Said, Edward W., Orientalism (1978), pp.l05 6.

257 THE IJTIHAD CONTROVERSY

Islamic law and theology became fossilised. Thought of all kinds was held in chains. It is to this case that I attribute the check to Islamic culture, philosophy and science and its eventual extinction".ll9 Too many of the writers discussing iFtihad, such as Ostrorog, Gibb and Brown, are patronising and dogrnatic in their own Orientalist ideas of the Arab or the "East" to examine their own scholarly endeavours, and iXtihad, like the rest of Islam, becomes relegated to the backward, inferior, even "extinct" (!) social and legal systems of the world.

Finally, a question that arises while evaluating this material is the following: It seems generally accepted that if the gate of iitihad did close, then it closed only in the realm of Sllnni jurisprudence, and not in Shi'i jurisprudence.l20 In addition, much in the way of "backwardness" or "petrification" of Islamic law has been blamed on the alleged prohibition of iitihad.l21 Yet, if Sunni jurisprudence is so backward because the doors of iitihad were closed on Sunni jurisprudence and not Shi'i jurisprudence, then why is there not a much wider gap-a gap which had some 70>1,()00 years to widen-between Sunni law and Shi'i law? That there are some significant differences is acknowledged, but such differences do not seem to be vast enough to be the result of a petrified state of law on the one hand and a continually developing law on the other.

In conclusion, then, the above discussion entails hypotheses regarding the material researched and discussed herein, and attempts to present a coherent picture by identifying some general trends and patterns. Xudging from writings in English dating from the late nineteenth century to the present day, there does seem to be evidence of a concept which developed from just a tentative hypothesis to a certainty. The interesting thing is that this concept of closure of the gate of iitihad as a concrete certainty seems to have developed not as a result of extensive research, but from the increasing simplification of the concept with each occurrence of the phrase. The phrase itself may have appeared as a way to describe a tentative concept, but each time the phrase was cited, especially by those of Orientalist tendencies who seized upon it, the catch-phrase began to overpower and simplify the concept itself. The result, finally, was that it was not the concept with all its controversies and intricacies and doubts that was important, but the phrase itseIf. The phrase itself was what rendered unnecessary further contemplation of the concept.

These conclusions are based on research done only in English and dating from the late nineteenth century to the present day. Further exhaustive research in languages other than just English be required to substantive some of the hypotheses suggested herein, which are thus far theories or speculation. But this article at least may be a starting point for further research in the area.

119 Brown, supra, p.l74. 120 See, e.g., Liebesny, supra, p.495. 121 See, e.g., Amir Ali, Maulavi Saiyid, The Spirit of Islam, pp.23>31.