Conclusion

Even when Muslim jurists exercised their independent reasoning in the form of ijtihad as unmediated interpretation of the sources of Islamic law, their aim was not simply to produce a novel or innovative opinion for the sake of novelty or innovation; their ultimate aim was, rather, a skilful, pragmatic yet principled articulation of the law that could be corporately recognized and embraced as falling within the sanctum of shan'a.

It was reportedly Kant who elevated reason as episteme, which is grounded in universal principles, over the Aristotelian ideal ofphronesis, or practical reason, which reclines upon the ‘ethos, the cultural and historical conditions current in the community’.⁸⁹ Paul Ricoeur char­acterized Kant’s notion as ‘one of the most dangerous ideas’⁹⁰ in early modern history.

I would like to end with a story, admittedly apocryphal, that I once heard from a teacher of mine. My hope is that it will highlight a dimension of mimesis as part of the DNA or ‘super-context’ of Islamic law that is no less present and operative for all the difficulty one encounters in trying to capture it in words. The story revolves around the celebrated faylasuf Ibn Sina (d. 429/1037). A student of his once asked him why, as the greatest philosopher in the world, he didn’t simply start a new religion. Ibn Sina casually dismissed the lad with a mildly impatient, ‘You don’t understand’. ‘What do you mean I don’t understand?’ protested the stu­dent. ‘Given your stature and acumen, people would flock to you.’ Ibn Sina simply repeated his response: ‘You don’t understand.’ The next morning, the two arose and entered the courtyard to perform ablutions for the morning prayer. Noticing that a thin layer of ice had formed over the water trough, Ibn Sina advised the youth not to use this water but to use earth (tayammum) instead.

Notes

1 ‘Philosophers of the late eighteenth century had one very good reason for questioning the authority of reason: it seemed as if modern science and philosophy were undermining morality, religion, and the state’. See F. C. Beiser, The Fate of Reason: German Philosophy from Kant to Fichte (Cambridge, MA: Harvard University Press, 1987), 1. Further: ‘[T]heir [the philosophers’] faith in reason was largely based upon the assumption that reason could justify morality, religion, and the state. Never would they have dared to trust reason had they imagined that it would destroy these things’. Ibid., 2.

2 See R. H. Popkin, The History of Skepticism from Erasmus to Descartes (Assen, The Netherlands: Koninklijke Van Gorcum & Comp, 1960), 203.

3 On Hamann, see Isaiah Berlin’s excellent work, The Magus of the North (New York: Farrar, Straus and Giroux, 1993).

4 On ‘depth’ and ‘profundity’, see I. Berlin, The Roots of Romanticism, ed. H. Hardy (Princeton, NJ: Princeton University Press, 1999), 118—19: ‘According to the Romantics — and this is one of their principal contributions to understanding in general — what I mean by depth, although they do not discuss it under that name, is inexhaustibility, unembraceability... [I]n the case of works which are profound the more I say the more remains to be said. There is no doubt that, although I attempt to describe what their profundity consists in, as soon as I speak it becomes quite clear that, no matter how long I speak, new chasms open. No matter what I say I will always have to leave three dots at the end.’

5 This was in stark contrast to the pre-modern Muslim recognition of 1) reason, 2) the senses, and 3) reports of the truthful (khabar al-sddiq) as the bases of knowledge.

6 Stephen Toulmin, Cosmopolis: The Hidden Agenda of Modernity (Chicago: Chicago University Press, 1990), 20. See also C. Shannon, Conspicuous Criticism: Tradition, The Individual, and Culture in Modern American Social Thought (Scranton, PA: University of Scranton Press, 2006), 194: ‘In rejecting the priority of the moral community as a guarantor of rationality, the modern turn to epistemology has fostered a social ideal of an isolated individual consciousness as existing somehow prior to or apart from a community of inquiry.’

7 Cited in E. D. Watt, Authority (New York: St Martin’s Press, 1982), 47.

8 Watt, Authority, 47.

9 Cited in T. Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford University Press, 2003), 52.

10 Asad, Formations, 52.

11 Watt, Authority, 47.

12 Toulmin, Cosmopolis, x.

13 There is an impetus, in other words, to seek ‘meaning’ in all acts and doctrines, on the assumption that the only activities that can be valuable are those to which we can impute some rationally veri­fiable ‘meaning’. No activity can be valuable in and of itself. Nor can any doctrine (e.g. that God has a face or a hand) have any value beyond its rationally explicable meaning. But ‘meaning’ may not be the only possible validator of actions or beliefs. ‘The world of friendship — of drinking and talking, working and playing, loving and hating — may bring happiness, or it may not; in neither case does it bring “meaning.” It is no less important for being, in a sense, meaningless.’ See Shannon, Conspic­uous Criticism, 202—3. As for such doctrines as God’s face or hand, their value might lie not in their ‘meaning’ per se but in their profundity and ability to intimate the ineffable element of religion.

14 Berlin, Roots, 81-2.

15 This is most glaringly reflected in scholarly investigations into the role of reason in Islam, where the tendency is to superimpose Western Enlightenment reason onto Islam and then interpret- cum-evaluate the latter through this prism. Thus, Mu'tazilis, e.g. are reputedly progressive, as the most committed to reason, despite the clear social embeddedness of the reason they invoke and the more ‘orthodox’ Ash'ari criticism of them for not being a priori enough in their reasoning. Meanwhile, Ibn Hanbal and the Traditionalists are at times cast as not using reason at all, despite such displays as Ibn Hanbal’s in al-Radd 'ala al-Zanadiqa wa-l-Jahmiyya, not to mention the later Ibn Taymiyya. In law, the partisans of ray (reason) are contrasted with the partisans of hadith (tradi­tion), and the Hanafis are cast as the vanguard of the partisans of ray. But the early Hanafis were actually more tied to textual sources of hadith than were the ‘traditionalist’ Medinese, who also used ray quite unsparingly. Yet, this questionable opposition has given rise to such myths as the ‘Great Synthesis’ between Traditionalism and Rationalism, which allegedly flowed into Islamic law. Clearly, it is time to excavate Islam’s own understanding(s) and valuation(s) of reason from Muslim tradition itself and then to read that tradition through the prism of these understandings and valuations.

16 The only scholar I know who has explicitly noted the critical role of mimesis in the Islamic legal tradition is A. El Shamsy. According to him, the pre-Shafi'i tendency was to rely on the com­munity as custodian of ‘an organic stream of normative tradition flowing continuously from the prophetic time to the present’. This mimesis was supremely valued in Medina, less so in Iraq. According to El Shamsy, it was the contribution of al-Shafi'i to reject reliance on this essentially uncertain repository of communal wisdom and practice in favour of formally constituted traditions from the Prophet directly.

17 J. Schacht, An Introduction to Islamic Law (New York: Oxford University Press, 1964), 70-1. Schacht was not the first to affirm the closing of the gate of the ijtihad. For an earlier assertion, see H. A. R. Gibb, Mohammedanism (London: Oxford University Press, 1949), 97-8.

18 One might ask, for example, how one could explain, apply and interpret a doctrine without ques­tioning such things as its meaning or scope. Indeed, what is meant by ‘doctrine’, given that the schools routinely consisted of several, competing views? And does the acceptance of ‘the doctrine as it had been laid down once and for all’ suggest that, outside analogy, quotidian developments beyond the pale of this ‘doctrine’ were to remain unaddressed? Did the jurists look at the doctrines of the schools as the early Zahiris looked at scripture? On the Zahiri attitude, see A. K. Reinhart, Before Revelation: The Boundaries of Muslim Moral Thought (New York: State University of New York Press, 1995), 16: ‘Revelation’s writ ran to what it explicitly addressed and no more... it applie[d] strictly, but it applied [in relative terms] to very little’. Finally, without accounting for some pal­pable change in the nature and function of the institutions that produced those deemed capable of ‘independent reasoning’ (or, perhaps, some radical disruption in the gene pool or a seismic shift in vogue), how are we to explain the widespread acceptance that no one was any longer capable of acquiring such qualifications?

19 ‘The Schools of Law and Later Developments in Jurisprudence’, Law in the Middle East, ed. M. Khadduri and H. Leibesny (Washington, DC: The Middle East Institute, 1955), 75.

Classicisme, traditionalism et ankylose dans la loi religieuse de l Islam, Classicisme et decline culturel dans l'histoire de l'Islam, ed. R. Brunschvig and G. E. von Grunebaum (Paris: G. P. Maisonneuve et Larose, 1977), 11.

Schacht, Introduction, 211.

‘Presentation of Award to Second Recipient, Joseph Schacht', Theology and Law in Islam (Wies­baden: Otto Harrasowitz, 1971), 1.

Other renderings of taqlid included: ‘blind following' (N. J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964)); ‘servile imitation' (G. Makdisi, The Rise of Col­leges: Institutions of Learning in Islam and the West (Edinburgh: Edinburgh University Press, 1981), 199); ‘unreasoning acceptance' (A. K. Lambton, State and Government in Medieval Islam (Oxford: Oxford University Press, 1981), 12).

Of course, the most important and influential of these was ‘Was the Gate of Ijtihad Closed', Inter­national Journal of Middle East Studies 16:1 (1984): 3—41. Among Hallaq's arguments was that ijtihad could not end, as it ‘constituted the only means by which jurists were able to reach the judicial judg­ments decreed by God' (p. 4); ‘the demands of legal theory were relatively easy to meet and they facilitated rather than hindered the activity of ijtihad' (p. 4); and ‘ijtihad was not only exercised in reality, but... all groups and individuals who opposed it were excluded from Sunnism' (p. 4). Incidentally, we might note the view of Ibn ‘Abd al-Shakur that the debate around ijtihad applied only to the period before the appearance of the signs of the end of time (ashrat al-sa a). After that, for a period of indeterminate duration, the disappearance of mujtahids was a point of unanimous con­sensus (mujma alayh). See Muhibb al-Din Ibn ‘Abd al-Shakur, Musallam al-Thubut, 2 vols (printed beneath al-Ghazali's al-Mustasfa) (Bulaq: al-Matba‘a al-Amiriyya, 1322/1904), 2:399.

Sherman Jackson, ‘In Defense of Two-Tiered Orthodoxy: A Study of Shihab al-Din al-Qarafi's Kitab al-Ihkam fi Tamyiz al-Fatawa ‘an al-Ahkam wa Tasarrufat al-Qadi wa al-Imam' (PhD dis­sertation, University of Pennsylvania, 1991).

See Jackson, ‘Defense', 5—15 and passim.

Sherman Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihab al-Din al-Qarafi (Leiden: Brill, 1996).

Jackson, ‘Defense', 13, 131—5.

Earlier, W. M. Watt had put forth a similar view, without fleshing out its full implications. See his Islamic Political Thought (Edinburgh: Edinburgh University Press, 1968), 73—4. Later, M. Fadel quite convincingly related the adoption or perhaps continuation of taqlid to concerns for the ‘rule of law' and the ‘rule of recognition'. See his ‘The Social Logic of Taqlid and the Rise of the Mukhtasar, Islamic Law and Society, 3:2 (1996): 193—233.

By ‘interpretive legal authority' I mean the authority that confers legitimacy upon interpretations of the law in contradistinction to the authority to promulgate the law initially or to implement it once promulgated and interpreted. Meanwhile, my work on al-Qarafi alerted me to the dangers of an over-inclusive u nderstanding of the scope of this interpretive legal authority, namely the risk of jurists taking it as a means to back demonstrably non-legal views. This prompted al-Qarafi to insist on an important distinction between proper and improper taqlid. See n. 38 below.

See Islamic Law and the State, xxiv, xxv, xxxi, xxx—xxxi, xxxiii and esp. 80—3.

‘Taqlid, Legal Scaffolding and the Scope of Legal Injunctions in Post-Formative Theory: Mutlaq and Amm in the Jurisprudence of Shihab al-Din al-Qarafi', Islamic Law and Society, 3:2 (1996): 165-92.

Hallaq would later insist that I had inflated his claim, that though he argued for the continued prac­tice of ijtihaid he never claimed that it became or remained the dominant trend. See Wael Hallaq, An Introduction to Islamic Law (Cambridge: Cambridge University Press, 2009), 131. To the extent that my arguments implied this inflated reading of him, I was mistaken. Mea culpa.

In his description of ijtihad, al-Zarkashi asserts that, while memorizing rulings and seeking to extract them from the texts of law manuals may be ‘called' ijtihaid, this is only linguistically speak­ing, not according to the technical language of law (fa-huwa lughatan la istlahan). See Badr al-Din Muhammad b. Bahadir b. ‘Abdullah al-Zarkashi, Al-Bahr al-Muhitfi Usul al-Fiqh, 2nd edn, 6 vols, ed. A. al-Ani, ‘A. S. al-Ashqar and ‘A. Abu Ghudda (Kuwait: Wizarat al-Awqaf wa-l-Shu’un al-Islamiyya, 1413/1992), 6:197. Similarly, in his study (and translation) of a late pre-modern anon­ymous manuscript on taqlid, Lutz Wiederhold cites his source as holding that one who has not attained the level of being able to extract all rulings directly from the sources (mujtahid mutlaq) must resort to taqlid. In other words, the mujtahid fi al-madhhab is a muqallid. See L. Wiederhold, ‘Legal Doctrines in Conflict: The Relevance of Madhhab Boundaries to Legal Reasoning in the Light of an Unpublished Treatise on Taqlid and Ijtihad’, Islamic Law and Society 3:2 (1996), 270 (290 for the Arabic, where the author mentions taqlid explicitly).

See ‘Taqlid ’, 169-73.

Hallaq, ‘Introduction’, 133.

Ibid. (emphasis in original).

A fair amount of creativeness and innovation would emerge, however, out of the judicious distinc­tion maintained between questions of law and questions of fact. It is primarily on this basis that al-Qarafi makes an explicit distinction between proper and improper taqlid. See my Islamic Law and the State, 123-39. In such light, I can hardly concur with the view of A. Nakissa: ‘Research was not seen as an important goal. Muslim scholars believed that just as there is no progress or creativity in grammar, there is none in law’. See A. Nakissa, ‘An Epistemic Shift in Islamic Law’, Islamic Law and Society 21 (2014): 212. For an interesting example of research (and creativity) on the part of pre-modern jurists, see al-Qarafi, al-Furiq, 4 vols (Beirut: 'Alam al-Kitab, n.d.), 1:218, where he speaks of observing the actual behaviour of hashish smokers at their gatherings, as a propaedeutic to giving his opinion on the legal status of smoking hashish.

See ‘Taqlid ’, 167 n. 5. In response, Hallaq almost appears to confuse matters intentionally. Imme­diately after citing my view he writes: ‘But Calder, in the article in this issue, and in his earlier study of Sarakhsi, has dealt a coup de grace to any claim that ijtihad — in the sense of “clear and open advocacy of views — established in the schools of the mujtahid-Imams” ceased to dominate after the sixth/twelfth century on’. ‘Introduction’, 132. Of course, there is a clear and obvious difference between ‘clear and open advocacy of views’ and limiting the application of the tools of usul al-fiqh to scripture.

In other words, on settled issues, one may accept, for example, the going opinion of a madhhab as ‘the law’. In this capacity, the madhhab functions as a legal authority. When it comes unprecedented issues, however, the madhhab functions more as an interpretive authority to back or authenticate novel interpretations.

At ‘Taqlid’, 171—2, for example, I wrote, as a corrective to the view of both Hallaq and Schacht: ‘[T]he tendency to view taqlid in negative terms appears to turn on the assumption that the content of what was borrowed from the past is the most important and operative element in the process. If, however, one accepts the idea that it is essentially not substance but authority that validates legal interpretations, one could more easily entertain the possibility that it was essentially the search for established sources of authority that spawned the whole movement of looking back in the first place’ (emphasis in original). This same view was repeated in Islamic Law and the State.

Jackson, Islamic Law and the State, 80. Hallaq, ‘Review ofJackson’, 129.

Jackson, Islamic Law and the State, 80—81.

This was actually on two levels. First, as taqlid trafficked in authority not substance, it did not, in and of itself, pre-empt the production of substantive innovations, even if it did complicate the pro­cess of validating these. Second, al-Qarafi draws a clear distinction between law and fact and argues that taqlid is valid only on questions of law. On questions of fact, therefore, one could only rely on independent reasoning. On this point, see Islamic Law and the State, 127ff.

Jackson, Islamic Law and the State, 101.

Hallaq, ’Review of Jackson’, 129.

Ibid., 130.

Hallaq, ‘Introduction’, 131. Hallaq notes here that he dealt more directly with taqlid in a separate article, ‘“Ifta” and Ijtihad in Sunni Legal Theory: A Developmental Account’, Islamic Legal Inter­pretation, ed. M. K. Masud, B. Messick and D. S. Powers (Cambridge, MA: Harvard University Press, 1996), 33—43. While this article addresses the question of mujtahids sitting as muftis, it does not actually deal with the substantive definition, nature and function of taqlid. On p. 34, he does make a passing reference to taqlid as ‘following the authority and doctrines of others’ in the context of discussing the position of Abu al-Husayn al-Basri (d. 436/1044) who, like Hallaq at the time, apparently sees taqlid as negative. At any rate, this connection between taqlid and authority plays no role whatever in Hallaq’s analysis until, as we shall see, it appears abruptly, inexplicably and entirely as his singular discovery in 2001.

W. B. Hallaq, Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University Press, 2001), ix.

Ibid., ix.

Ibid., 103.

Ibid., 88.

Ibid., 103.

Ibid., 119.

Ibid., 120.

Ibid., 119.

Ibid., 103.

Ibid., 103.

Ibid., 109.

Hallaq, ‘Review ofJackson', 130.

Hallaq, Authority, 43—54.

Jackson is mentioned in a footnote on page 83, where Hallaq registers his disagreement with him on the meaning of a passage from Ibn Abi al-Damm: ‘It will be noted that on the interpretation of this passage, I disagree with Sherman Jackson'. Otherwise, there is no attempt in Authority, Conti­nuity and Change to reconcile his new view with such earlier statements as, ‘By building on Qarafi's idiosyncratic approach, Jackson has formed a distorted view of a central problem in Islamic legal history, namely, ijtihad and taqlad’. ‘Review ofJackson', 129.

Later, however, one gets the impression that ijtihad has re-acquired its centrality in Hallaq's per­ception of Islamic law. For example, he writes in The Impossible State: Islam, Politics and Modernity’s Moral Predicament (New York: Columbia University Press, 2013), 58: ‘In the majority, therefore, the laws, rules and regulations of the Sharia are largely the result of ijtihad, a domain of interpretation that rests on probability. Every accomplished jurist could exercise ijtihad, and two or more could arrive at different conclusions on the same problem with no one knowing but God which mujtahid (i.e. jurist conducting ijtihad) had arrived at the truth.'

Hallaq, Authority, ix. This perspective has continued into Hallaq's more recent scholarship. See, e.g., Shara'a: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 67, 70 and passim. Indeed, his endorsement of the notion of Muslim jurists' being possessed of ‘epis- temic authority' seems to have inspired a younger generation of scholars and students to invoke the construct without pause or question.

Hal laq, Authority, 88.

Ibid., 103, 113.

Ibid., 111.

On the centrality of principles to taqlad, see ibid., 90, 92, 94, 95, 96, 98, 99 and passim.

Ibid., 98.

In keeping with his commitment to circumspection, Hallaq does note: ‘True, the majority of the jurists did not occupy themselves with the matter in which these principles were derived, although it remains true that many of those evolved with time and cannot be traced to a direct source or a conscious act of ijtihaad. But the great majority of them, as is attested in the pages of hundreds of treatises written on the subject, understood the significance of the principles and knew how to apply them. For they were muqallids, and this is precisely what taqlad meant'. Ibid., 98—9. We will return to this point shortly.

E. D. Watt, Authority (New York: St Martin's Press, 1982), 27. We should note the distinction between the Latin auctoritas (from which our modern ‘authority' derives) and potestas. Whereas the holder of potestas is obeyed, the holder of auctoritas is simply deferred to. Obviously, Muslim jurists qua jurists are only assumed to have auctoritas. See Watt, Authority, 11—18.

Ibid., 39.

Ibid., 47.

Al-Suyuti, Al-Radd 'ala man akhlada ila-l-ard wa-jahila anna al-ijtihad fi kull Asrin fard (Cairo: Mak- tabat al-Thaqafa al-Diniyya, n.d.), 40. Hallaq cites an identical claim by the Shafi'i jurist Abu Is­haq al-Isfara’ini (d. 418/1027). See Hallaq, Authority, 9. Al-Suyuri, meanwhile, cites several other scholars from other schools who express the same idea. See also Hallaq, ‘Gatae', 10—11, where he describes the practice of jurists subsuming their ‘highly original views' under pre-existing author­ities. At that time, however, Hallaq did not appear to see this as constituting taqlad. Instead, he writes, ‘the standard doctrine of Sunni Islam' was that ‘taqlid is to be used only by the commoner ('ammiyy) and by those for whom the exercise of ijtihad is impossible'. Hallaq, ‘Gate', 12.

E. D. Watt points out, for example, that there is a mutually beneficial dialectical relationship be­tween the authority figure and those who adopt him or her as an authority. As those who adopt the authority figure benefit by placing the latter's authority behind their cause, the authority figure's authority is also increased and solidified with each act of being invoked as an authority, which in turn increases his or her utility to those who take or follow him or her as an authority. See Watt, Authority, 11—12.

Ibid., 57.

His excesses aside, one is reminded in this regard of the early American political thinker, John Dickin­son: ‘Experience must be our only guide. Reason may mislead us. It was not Reason that discovered the singular and admirable mechanism of the British Constitution. It was not Reason that discovered or even could have discovered the odd and in the eyes of those who are governed by reason, the ab­surd mode of trial by jury. Accidents probably produced these discoveries, and experience has given sanction to them. This then was our guide'. See M. E. Bradford, A Better Guide than Reason (New Brunswick, NJ: Transaction Publishers, 2014), 93. I should note that I would put much distance between the Islamic legal tradition and some of the conservative views expressed in this book.

See A. El Shamsy, ‘Rethinking Taqlid in the Early Shafi'i School', Journal of the American Oriental Society 128:1 (2008): 4. Of course, a supporter of Malik could argue that it was actually al-Shafi'i who demanded ‘ blind' following of these reports with no criterion other than their formal va­lidity as arbiter. Whereas al-Shafi'i proposed a ‘scriptural empiricism' of sorts, Malik recognized extra-scriptural sources and criteria to which one could appeal one's case.

Ibid., 7.

Ibid., 16.

Ibid., 8. Hallaq observes, however, that al-Shafi'i often performed taqlid of earlier jurists on ques­tions of substance and not merely the authority of presumptive sources. See Watt, Authority, 38.

This oscillation between the identity of the source-canon and the identity of a proper interpre­tation thereof seems to be reflected in some of the jurists' statements on ijtihad and taqlid cited by al-Suyuti in al-Radd. One also wonders how much the consistently negative animus towards taqlid in the rhetoric of mainstream Sunnis owes to confrontations in the formative period with Shiites and the unassailable authority they attribute to the Imam. See, e.g., al-Ghazali, Al-Mustasfa min Tlm al-Usul, 2 vols (Bulaq: Matba'a al-Amiriyya, 1322/1904), 2: 387, where, in rejecting taqlid, he mentions that, ‘the hashwiyah (a catch-all for fidiestic traditionalists) and the taiimiyah (a reference to Isma'ill Shiites) believe taqlid to be the way to knowledge of the truth'.

El Shamsy, ‘Rethinking', 13-14.

In his later work, Professor Hallaq expresses what appears, prima facie, to be an identical con­clusion: ‘[I]f ijtihad has a positive image, it is ultimately because of the fact that it is backed up by taqlid. To put it more precisely, except for the category (or type) of the imam, ijtihad would be an undesirable practice if it were not for taqlid' See Hallaq, Authority, 21. My argument, however, is not that ijtihad would be undesirable but that it would be ineffective without taqlid. Moreover, I question Professor Hallaq's tendency to downplay the connection between authority and mimesis by tying juristic authority so tightly to juristic reasoning. For example, speaking of al-Shafi'i he writes, ‘In order to become the final authority in his school, Shafi'i was required to shed the image of a muqallid' Authority, 39. On al-Shafi'i's display of juristic reasoning, Hallaq recognizes him as a fully-fledged jurist. Malik, by contrast, is deemed to be merely ‘a jurist of a sort'. Authority, 40. But Malik (like Ibn Hanbal) was certainly no less a juristic authority than was al-Shafi'i; and it was precisely his ‘taqlidic (read mimetic) connection to the normativeness presumed to inhere in the early community that bolstered his status in this regard. None of this is to deny a perduring tension between ijtihad and taqlid over the centuries. For example, as El Shamsy notes, ‘Whereas Shafi'i scholars before him had accepted the existence of two parallel but incommensurate discourses - the prohibition of taqlid in usul and the authority of precedent in fiqh- Ibn Salah [d. 642/1244] com­mitted himself to the binary and exclusive opposition of ijtihad and taqlid’. See ‘Rethinking', 21. Jalal al-Din al-Suyuti, Al-Hawi li-l-Fatawifi al-Fiqh wa-Ulum al-Tafsir wa-l-Hadith wa-l-Nahw wa-l- Frab wa-Sair al-Funun, 2 vols (Beirut: Dar al-Kutub al-'Ilmiyya, 1408/1988), 1:11.

Al-Suyuti, Al-Hawi li-l-Fatawi fi al-Fiqh wa-Ulum al-Tafsir wa-l-Hadith wa-l-Nahw wa-l-Trab wa-Sa'ir al-Funun, (Beirut: Dar al-Kutub al-'Ilmiyya, 1408/1988), 1: 11-12.

Ibid., 1: 23.

C. Mouffe, The Return of the Political (New York: Verso, 1993), 13-14.

Mouffe, Return, 14.

This mimetic spirit (in general and not with specific reference to Islamic law) is described and noted for its significance by J. Fueck in his classic article, ‘The Role of Traditionalism in Islam', in Studies on Islam, trans. and ed. M. L. Swartz (New York: Oxford University Press, 1981), 99-122.

Selected bibliography and further reading

Asad, Talal. Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford University Press, 2003).

Coulson, Noel J. A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964).

Fueck J. ‘The Role of Traditionalism in Islam'. In Studies on Islam, trans. and ed. M. L. Swartz (New York: Oxford University Press, 1981).

Hallaq, Wael B. ‘Was the Gate of Ijtihad Closed?'. International Journal of Middle East Studies, 16:1 (1984): 3-41.

Hallaq, Wael B. Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University Press, 2001).

Jackson, Sherman. ‘In Defense of Two-Tiered Orthodoxy: A Study of Shihab al-Din al-Qarafi's Kitab al-Ihkam fi Tamyiz al-Fatawa ‘an al-Ahkam wa Tasarrufat al-Qadi wa al-Imam' (PhD disserta­tion, University of Pennsylvania, 1991).

Jackson, Sherman. Islamic Law and the State: The Constitutional Jurisprudence of Shihab al-Din al-Qarafi (Leiden: Brill, 1996).

Jackson, Sherman. Islam and the Problem of Black Suffering (New York: Oxford University Press, 2012). Lambton, Ann K. State and Government in Medieval Islam (Oxford: Oxford University Press, 1981). Makdisi, George. The Rise of Colleges: Institutions of Learning in Islam and the West (Edinburgh: Edinburgh University Press, 1981).

Masud, M. K., B. Messick and D. S. Powers. Islamic Legal Interpretation (Cambridge, MA: Harvard University Press, 1996).

Shamsy, Ahmed el. ‘Rethinking Taqlid in the Early Shafi'i School'. Journal of the American Oriental Society 128:1 (2008).

Shamsy, Ahmed el-. The Canonization of Islamic Law: A Social and Intellectual History (Cambridge: Cambridge University Press, 2013).

Suyuti, Jalal al-Din al-. Al-Hawi li-l-Fatawi fi al-Fiqh wa- Ulum al-Tafsir wa-l-Hadith wa-l-Nahw wa-l-Frab wa-Sair al-Funun, 2 vols (Beirut: Dar al-Kutub al-‘Ilmiyya, 1408/1988).

Suyuti, Jalal al-Din al-. Al-Radd 'ala man Akhlada ila al-Ard wa-Jahila anna al-Ijtihad fi Kull Asrin Fard (Cairo: Maktabat al-Thaqafa al-Diniyya, n.d.).