ANTI-IJTIHAD TRENDS AND THEIR EXCLUSION FROM SUNNISM

Throughout the third, fourth, and fifth Islamic centuries, ijtihad, the only channel of legal development, was rejected by various elements. Among these were extreme legal and theopolitical groups (or sects) that called for taqlid or condemned the principle of qiyas—a principle that constituted the backbone of ijtihad.

Because of their inimical attitude towards ijtihad, these groups found no place inside the pale of Sunnism. Immediately after Dawud’s death, a wave of writings in favor of qiyas was generated in response to Dawud’s treatise which had attacked this analogical method. Qashani, himself one of the deserters of the Zahiri school, and the Jariri Nahrawani composed refutations against Dawud’s treatise Kitàb fi fatal al·Qiyas.²⁷ More than two centuries later, when all legal schisms became well defined, the Shafi^ci jurist Mawardi (d. 450/1058) described the status of this extreme Traditionalist party vis-à-vis Sunnism as follows:

There are two kinds of people who reject analogy. Some reject it, follow the text literally and are guided by the sayings of their ancestors if there is no contradiction to the text in question.

Still later there seems to have prevailed a common idea that the Zahiri school must not be taken into consideraion whenever there is a discussion on legal matters in the Sunni community. This was clear in one of Ibn al-Salah*s (d. 643/ 1245) influential fatàwà (legal opinions), which represented, to a great extent, the Sunni view on the illegitimacy of the school. Ibn al-Salah’s main objection was to the attitude that the Zahiri school had adopted towards qiyas as a principle.²⁹

Although Dawud disapproved of taqlid and claimed that one need not follow a human authority if he can use the legal sources,³⁰ his ijtihad was rejected by the Sunnis since he avoided the procedure of qiyas. Nevertheless, until the first half of the fourth century, Dawud’s school remained as Sunni as any other major school. But when the legal theory was finally established and promulgated as the only Sunni doctrine, the Zahiri school gradually slipped outside the orb of Sunnism. This was manifest in the career of one of the most fervent advocates of Zahirism, the Andalusian Ibn Hazm, who was forced to flee his country because of his unorthodox beliefs.³¹

The fifth/eleventh century scholar Ghazali, when enumerating the Sunni schools of his time, counts only the schools of Abu Hanifa, Ibn Hanbal, Malik, Shafi^ci, and Sufyan al-Thawri.³² The fourth- and fifth-century ikhtildf works,

Was the Gate of Ijtihad Closed? 9 which dealt with differences in legal matters, excluded as a matter of principle the tenets of the Zahiris from consideration in determining the consensus.³³ In the eighth/fourteenth century, Ibn Khaldun remarked that “the Zahirite school has become extinct today as the result of the extinction of their religious leaders and disapproval of their adherents by the great mass of Muslims.”³⁴ Thus it is clear that there was no school or a wing of a school inside the Sunni Muslim community that could have opposed ijtihad as a principle.³⁵

This contention may invite some controversy, for it may be argued that the Hashwiyya, which is assumed to be an extreme Hanbali faction, rejected ijtihad in favor of taqlid.³⁶ Laoust considered the Hashwiyya a part of the Hanbali school.³⁷ In fact, the Hashwiyya was an ill-defined objectionable nickname indis­criminately applied against various groups who were thought to have possessed a weak apparatus of reasoning and have heavily relied on scripture.³⁸ The pieces of evidence that can be deduced from the fifth/eleventh century legal literature and thereafter indicate that the Hashwis were a radical non-Hanbali group of Tradi­tionalists that possessed an incomplete legal doctrine. Their chief interest was theology (usul al-din) rather than law;³⁹ they touched upon legal matters only when these had immediate relevance to theology.

That the Hashwiyya could not have been a Hanbali faction is evident in the attitude of Hanbalism and Hashwism towards the issue of the necessity of ijtihad. While there is ample evidence to show that the Hanbali school had a consolidated posture towards the perpetual necessity for ijtihad and the existence of mujta- hids,⁴⁴ the Hashwis persistently denied the Muslim jurists the right to practice ijtihad or any sort of human reasoning.

Although Halkin found the theological and political beliefs of the Hashwis and the Hanbalis to be identical,⁴⁵ it is certain that these theological similarities existed only in the third/ninth century. In that period the Hashwiyya may have been allied with the Hanbali Traditionalists. But since then Hanbalism, which was characterized by rigid views on legal theory, particularly on matters of qiyas, took a different road and pulled apart from the Hashwiyya as well as from other fanatic hadith groups. Until the end of the third/beginning of the tenth century, Hanbalism, generally speaking, was not credited with the status of a law school but was merely recognized as a hadith-theological faction. Tabari is known to have started a prolonged quarrel with the Hanbalis when he impugned Ibn Hanbal’s juristic qualifications.⁴⁶ Thus, it was natural that in his Ikhtilaf al· Fuqaha³ Tabari did not consider the views of Ibn Hanbal.

From the very end of the third/beginning of the tenth century onwards, Han- balism had started a process of acquiring a comprehensive juristic character alongside its theological one. The upsurge of Hanbalism as a law school coin* cided with, and was influenced by, the recently established legal theory of Sun­nism, whose spearheads and representatives were mainly the Shafi^cis and the Hanafis. Hanbalism placed itself under the aegis of this theory, which obviously proved to be the theory most favored by the main body of Sunnism after long struggles between the ‘people of ra^y¹ and Traditionalists. As a consequence, Hanbalism had to adopt the main features of the legal theory which entailed the acceptance of qiyas as a source of law, almost equal in power to the Quran, the Sunna, and the ijma^c. It is worth remembering that Ibn Hanbal established no legal system of his own, but in his answers to his pupils¹ questions he made pronouncements on certain points of law. Ibn Hanbal made concessions to human reasoning only under pressure of sheer necessity and where possible derived every law from scripture.⁴⁷ Three centuries later, Ibn ^cAqil accepted qiyas as readily as any Hanafi or Shafi^ci jurist, and the illustrious Hanbali Ibn Tay- miyya not only endorsed qiyas but also defended sound istihsan⁴* In order to survive within Sunnism, Hanbalism had to go through a process of moderation and change from an extremist theological group to a peculiarly moderate law school while still maintaining certain theological inclinations. On the other hand, the Hashwiyya maintained its rigid attitude, which finally led to its exclusion from the Sunni community.⁴⁹

That these groups failed to impair to the least degree the foundations of ijtihad was due mainly to the institutionalization of the science of usul al-fiqh, of which ijtihad was an indispensable ingredient. It is difficult to assume that at the time the theory of usul was finalized—about the beginning of the fourth/tenth cen­tury— Muslims had decided to ‘close the gate of ijtihad¹. In fact, an examination of the writings of jurists after the third/ninth century will demonstrate that ijtihad was exercised with no interruption.