CONCLUSION

This study has shown that in Islamic legal theory ijtihad was reckoned indis­pensable in legal matters because it was the only means by which Muslims could determine to what degree their acts were acceptable to God.

The idea of closing the gate of ijtihad or the notion of the extinction of mujtahids did not appear during the first five Islamic centuries. This is entirely in consonance with the fact that the practical and theoretical importance of ijtihad had not declined throughout this period: Ijtihad and mujtahids were employed in the domain of law and were required in the higher ranks of government. That ijtihad constituted the backbone of the Sunni legal doctrine was manifest in the exclusion from Sunnism of all groups that spurned this legal principle.

It has also been shown that the controversy about ijtihad and the existence of mujtahids started, in its primitive form, only in the beginning of the sixth/twelfth century. Throughout the following centuries, differences among jurists, encour­aged by ambiguities in legal terminology, made any consensus on the nonexistence of mujtahids and on the closure of the gate of ijtihad impossible to reach. Consensus was thwarted by three additional principal factors: First, and most important, is the continual existence of renowned mujtahids up to the tenth/ sixteenth century. Though the number of mujtahids drastically diminished after this period, the call for ijtihad was vigorously resumed by premodern reformists. Second is the Muslim practice of choosing a mujaddid at the turn of each century. Though this practice may not have had the full support of the entire community of jurists, it proved that at least one mujtahid was in existence each century.

The conclusion that the gate of ijtihad was not closed entails a re-evaluation of what we have thus far considered to be the legal history of Islam. The continuity of ijtihad throughout Islamic history suggests that developments in positive law, legal theory, and the judiciary have indeed taken place, and only through a chronological study of the jurists’ writings is it possible to trace these develop­ments and to reconstruct a more accurate picture of the legal history of Islam.

NOTES

Author’s note: I wish to thank Professors Farhat Ziadeh and Nicholas Heer for their valuable comments on the manuscript.

^,cAli b. Abi ^cAli al-Amidi, al-Ihkam fi Usui al-Ahkam, 3 vols. (Cairo, 1968), HI, 204; Taj al-Din al-Subki, Jam^c al-Jawami^z, with the commentary of Jalal al-Din al-Mahalh, 2 vols. (Bombay, 1970), II, 379-381; Muhammad b. ^cAli al-Shawkani, Irshad al-Fuhul ila Tahqiq al-Haqq min ^cUm al-Usul (Cairo, 1909), pp. 232-233. On the meaning of ‘ijtihad’, see M. M. Bravman, The Spiritual Background of Early Islam (Leiden, 1972), p. 189.

²J. Schacht, An Introduction to Islamic Law (Oxford, 1964), pp. 70-71.

³J. N. D. Anderson, Law Reform in the Muslim World (London, 1976), p. 7. Such statements on the closure of the gate can be easily multiplied. See, e.g,, M. Khadduri, “From Religious to National Law,” in J. H. Thompson and R. D. Reischauer, eds., Modernization of the Arab World (Toronto, 1966), p. 41; F. Rahman, Islam (Chicago, 1966), pp. 77-78; H. A. R. Gibb, Mohammedanism (New York, 1962), p. 104; A. S. Tritton, Materials on Muslim Education in the Middle Ages (London, 1957), p. 163; N.J.

⁴H. A. R. Gibb, Modern Trends tn Islam (Chicago, 1947), p. 13; idem., Mohammedanism, p. 98.

⁵See W. M. Watt, “The Closing of the Door of Igtihad,” Orientalia Hispanica, I (Leiden, 1974), 675-678.

*W. M. Watt, Islam and the Integration of Society (Evanston, 1961), pp. 206-207, 242-243; H Liebesny, “Stability and Change in Islamic Law,’’ Middle East Journal, 21 (1967), 19; Coulson, History, pp. 80-81; Schacht, Introduction, p. 75; Rahman, Islam, pp. 77-78.

¹Cf. C. L. Ostrorog, The Angora Reform (London, 1927), p. 31; Anderson, Law Reform, p. 7; C. Pellat, “Les etapes de la decadence culturelie dans les pays Arabes d’Orient,’’ in R. Brunschvig and G. von Grunebaum, eds., Classicisme et dechn culturel dans Thistoire de I’lslam (Paris, 1957), p. 85.

⁸On the procedure of ijtihad, see Abu Ishaq al-Shirazi, al-Luma^c fi Usui al-Fiqh (Cairo, 1908), pp. 83-84; Shawkani, Irshad, p. 420; Ibn Habib al-Mawardi, Adab al-Qadi, ed. M. Sarhan, 2 vols. (Baghdad, 1971), I, 535-555; B. Weis, “Interpretation in Islamic Law; The Theory of Ijtihad,” The American Journal of Comparative Law, 26, 2 (Spring, 1978), 209-210.

’See, e.g., Shirazi, Luma^, p. 4; Amidi, Ihkam, I, 6; Abu Hamid al-Ghazali, al-Mustasfa min ^cllm al-Usul, 2 vols. (Cairo, 1907), I, 5; Shawkani, Irshad, p. 3.

^l0Amidi, Ihkam, III, 222; Sa^cd al-Din al-Taftazani, Hashiya ^cala Mukhta^ar al-Muntaha, 2 vpls. (Cairo, 1974), II, 308; Ibn al-Humam, al-Tahrir fi ^cIlm al-Usul, with the commentary al-Taqrir wal- TahbTr by Ibn Amir al-Hajj, 3 vols. (Cairo, 1898-1899), III, 292.

¹¹ Rahman, Islam, p. 78.

'^Unfortunately, Volume 17 of ^cAbd al-Jabbar’s al- Mughni fi Abwab al- Tawhid wal-^cAdl, 20 vols.

^l3See Muhammad b. ^cAli al-Basri, a!-Mu^ctamadfi Usui al-Fiqh, ed. M. Hamidullah, et al., 2 vols. (Damascus, 1964), 11,929-931.

^Nlbid., II, 930, line 2 and 931, lines 9-10.

'⁵Ibid., 11,932.

^l6Shirazi, Luma^c, pp. 85-86.

^l7Ghazali, Mustasfa, II, 350-354; H. Laoust, La politique de Gazali (Paris, 1970), pp. 179-180.

^l8Ghazali, Mustasfa, II, 353-354.

’’Amidi, Ihkam, III, 204-205.

“Ibid., Ill, 205-206.

’'For the requirements of Baydawi and Isnawi, see Nihäyal al-Sül Jt Shartf Minhäj al-Wusül, 3 vols. (Cairo, 1899), HI, 307-313. On Subki see Jam^z, II, 382-386, especially p. 383. For the requirements of Ibn al-Humam and Ibn al-Amir, see Taqrir, 111, 292-294. For those of Ansari and Ibn ^cAbd al-Shakur, see Sharh Musallam al-Thubütfl Usuial-Fiqh, 2 vols. (Cairo, 1907), I, 363-364.

²²Isnawi, Nihäyat al-Sül, III, 308; Ibn al-Amir, Taqrir, III, 292.

²³The divisibility of ijtihad was recognized by the great majority of jurists. See Shawkani, Irshäd, p. 237.

²⁴Mawardi, Adab, I, 533 f.; Amidi, Ihkäm, III, 218.

²⁵Sha^crani defined ‘ahi al-hadith’as follows: “By ahi al-hadith is meant that which comprises the traditionalist (ahi al-Sunna) among the juristconsults, even though they may not be tradition experts.” Cited in G. Makdisi, “The Significance of the Schools of Law in Islamic Religious History,” The International Journal of Middle Eastern Studies, 10 (1979), 4.

²⁶I. Goldziher, The Zahiris: Their Doctrine and their History, trans. W. Behn (Leiden, 1971), pp. 34-36. On the Hashwiyya see Shorter Encyclopaedia of Islam, s.v. “Hashwiya.”

²⁷Ibn al-Nadim, al-Fihrist, ed. G. Flügel (Beirut, 1964), pp.

“Quoted in Goldziher, Zahiris, p. 35.

^29cAbd al-Rahman Ibn al-Salah, Fatäwä (Beirut, 1970), pp. 32-33. Relating from Abu Ishaq al- lsfara³ini, Ibn al-Salah remarked that “the great majority of scholars believe that the adversaries of qiyas are not qualified to perform ijtihad and may not be entrusted with judgeship; thus, Dawud cannot take part in any ijma^c.” See also other similar opinions on the Zahiris recorded in this Fatäwä.

³⁰Goldziher, Zahiris, p. 30.

’’ibid., pp. 156-157.

³²Abu Hamid al-Ghazali, Ifyyä* ^zUlüm al-Din, 5 vols. (Cairo, 1967), I, 38.

’’Goldziher, Zahiris, p. 36.

³⁴Ibn Khaldun, al-Muqaddima (Beirut, n.d.), pp. 446-447 (F. Rosenthal’s trans. Ill, 5-6).

³⁵Yusuf Ibn ‘■Abd al-Barr, Jämi^z Bayän al-^zllm (Cairo, 1975), p. 323.

³⁶On the fact that they rejected ijtihad, see Ghazali, Mustasfä, II, 387.

³⁷Laoust, La politique de Gazali, p. 180.

³⁸A1-Khatib al-Baghdadi, al-Faqih wal-Mutafaqqih, 2 vols. (Beirut, 1975), II, 72, 76-77.

’’See Maturidi, Kitäb al-Tawhid, ed. K. Fathallah (Beirut, 1970), pp. 10-11, 12, 14, 318, 331, 378, passim.

⁴⁰Cited in A. S. Halkin, “The Hashwiyya" Journal of the American Oriental Society, 54, 1 (1934), 12.

^4lGhazali, Ihyä³, 1, 133; Taj al-Din al-Subki, Tabaqät al-Shäfi^ziyya al-Kubrä, 6 vols. (Cairo, 1906), II, 287.

⁴²Ibn ^cAli Ibn al-Jawzi, al-Muntazam fl Tarikh al-Mulük wal-Umam, 9 vols. (?) (Haidarabad, 1940), VIII, 268.

⁴³Abu al-Wafa³ Ibn ^cAqil, Kitäb al-Funün, ed. G. Makdisi, 2 vols. (Beirut, 1970-1971), II, 510. See also a similar opinion expressed by Muhammad b. Ahmad Ibn Rushd, Fast al-Maqäl, ed. G. F.

⁴⁴Amidi, Ihkäm, HI, 253-254.

⁴⁵Halkin, “Hashwiyya,” pp. 3-20. See the views of Hashwiyya and ahi al-hadith, including Ibn Hanbal, on matters of government in ^cAbd Allah b. Muhammad al-Nashi³ al-Akbar, Masä^il al­lmama wa-Muqtatafat min al-Kitäb al-Awsatflal-Maqälät, ed. J. van Ess (Beirut-Wiesbaden, 1971), pp. 65-67.

⁴⁶Makdisi, “The Significance of the Sunni Schools of Law,” p. 6.

⁴⁷Shorter Encyclopaedia of Islam, s.v. “Ahmad Ibn yanbal,” by I. Goldziher.

⁴⁸Sound istihsan is the analogical inference of rulings based on sound usul methodology. See Ibn Taymiyya, “Mas^alat al-lstihsan” in G. Makdisi, ed., Arabic and Islamic Studies in Honor of Hamilton A. R. Gibb (Massachusetts, 1965), pp. 454-479.

⁴’See Subki, Tabaqät, V, 34; Halkin, “Hashwiyya,” p. 27.

⁵⁰See Subki, Tabaqät, I, 105, 244; II, 89, 96, 126, 131. See also Goldziher, Zahiris, p. 31.

^5lSubki, Tabaqät, II, 126. Of Ibn al-Mundhir, Subki remarks that “he was a mujtahid that followed no one” (wakäna mujahidan la yuqallidu ahadan). Subki also considered Ibn Surayj as the renovator of the fourth/tenth century, see ibid., I, p. 244. Undoubtedly, for later Shafi^cis, Ibn Surayj was the first great representative of the Shafi^ci school. He seems to have been the first to reproduce the totality of the Shafi^ci law, while synthesizing the internal difference of doctrines, e.g., the differences between Shafi^ci and Muzani. In fact, he composed a work entitled Kitab al-Taqrib bayna al-MuzanT wal-Shafi^cT (see Ibn al-Nadim, Fihrist, p. 213).

⁵²See Ibn al-Nadim, who allots a separate section in his book for the Jariris; Fihrist, p. 234 ff.

⁵³Ibn Abi al-Wafa³ al-Qarashi, al-Jawahir al-MudPa ft Tabaqat al-Hanafiyya, 2 vols. (Cairo, 1978), I, 137-138.

⁵⁴Subki, Tabaqat, II, 303-307. See some of his views in pp. 306 f.

⁵⁵Ibid., II, 193-205; for his views see especially pp 195 ff

⁵⁶Ibid., II, 206-210.

⁵⁷lbid., II, 112-125. See especially pp. 115 f., 118 f. Subki remarked: “As to his deep knowledge of precise concepts and his excellent ability to extract positive law, Muslims agreed that he was unique in (doing) this. No one from the following generations could equal him in his knowledge... He was remembered as a man of good reputation and ijtihad.”

⁵⁸See Goldziher, Zahiris, p. 26.

⁵⁹Cited in ibid., p. 26. Fora different version of this account see Subki, Tabaqat, II, 240.

⁶⁰lbn Amir, al-Taqrir, III, 345; Ibn ^cAbidin, al-Rasa^W, 2 vols. (Lahore, 1976), I, 30.

⁶'See Basri, Mu^ctamad, II, 934 ff.

“ibn ^cAbd ai-Barr, Jami^c, pp. 384, 397.

“Baghdadi, al-FaqTh, II, 66-70; Mawardi, Adab, I, 269-273.

⁶⁴Ibn ^cAbd al-Barr, Jami^c, pp. 467-468.

“On the relationship between political theory and political practice in medieval Islam, see I. J. Rosenthal, “The Role of the State in Islam: Theory and Medieval Practice,” Der Islam, 50, 1 (1973), 1-28.

^66cAbd al-Qahir al-Baghdadi, Usui al-Din (Istanbul, 1928), p. 277. This Baghdadi is not to be confused with al-Khatib al-Baghdadi who died in 463/1070.

“^cAli b. Muhammad al-Mawardi, al-Ahkam al-Sultaniyya (Cairo, 1960), p. 6. See also E. I. J. Rosenthal, Political Thought in Medieval Islam (Cambridge, 1958), p. 29.

“Mawardi, Ahkam, p. 116.

* “ibid., p. 66. Cf. my article “Considerations on the Function and Character of Islamic Legal Theory,” (forthcoming).

⁷⁰Subki, Tabaqat, III, 303-305; H. A. R. Gibb, “Al-Mawardi’s Theory of the Caliphate,” in B. Shaw and W. Polk, eds., Studies on the Civilization of Islam (Boston, 1962), pp. 152, 164 n. 6, 165 n. 10.

^7lMuhammad al-Juwayni, Ghiyath al-Umam (Iskandariyya, 1979).

⁷²Ibid., p. 274.

⁷³Ibid., p. 275; this idea is reiterated throughout the book. See, e.g., pp. 271, 282, 283 passim.

⁷⁴Ibid., p. 300. Although the last phrase reads: “watakadu hadhihi al-suratu tuwafiqu hadha lizamanin wa^ahlihi,” the last three words ought to be read as “hadha al-zamana wa^ahlahu."

⁷ⁱIbid., p. 309.

⁷⁶See, e.g., the extensive account of Subki, Tabaqat, 111, 249-282. See also Abu al-Fida, Tankh, 4 vols. (Qustantiniyah, 1870), II, 206; Ibn al-Salah, Fatdwa, pp. 31-31; Shorter Encyclopaedia of Islam, s.v. “Taklfd,” by J. Schacht.

⁷⁷Juwayni, Ghiyath, p. 376.

⁷⁸Ibid., pp. 397-398.

⁷⁹Ghazali, FadcUih al-Batiniyya, in I. Goldziher, ed., Streitschrift des Gazah gegen die Batinijja- Sekte (Leiden, 1956), p. 76.

⁸⁰Ibid., p. 76.

^8lIbid., p. 78.

⁸²Subki, Tabaqat, III, 264.

⁸³Ibid., Ill, 251, 256.

⁸⁴Ibid., Ill, 264; IV, 124.

^8$Ibn Khallikan, Wafayat al-A^cyan, ed. Ihsan ^cAbbas, 8 vols. (Beirut, 1968-1972), III, 168.

⁸⁶Subki, Tabaqat, Ill, 264.

⁸⁷Abu al-Fida, Tafikh, II, 206.

⁸⁸Subki, Tabaqàt' III, 261-263. Before his death Juwayni is said to have remarked: “(I call upon you) to attest that 1 abandon any piece of writing that is inconsistent with the (doctrine of the) forefathers.” Ibid., Ill, 263.

⁸⁹On the purposes of Subki in writing his Tabaqat, particularly his defense of Ash^carism, see

G. Makdisi, “Ash^cari and Ash^carites in Islamic Religious History,” Studia Islamica, 17 (1962), 56-80.

⁹⁰Ghazali, al-Munqidh min al-Dalal, printed with ^cAbd al-Halim Mahmud’s Abhàth fìal-Tasawwuf ^can al-lmam al-Ghazàlì (Cairo, 1965), p. 68. In several places throughout his books Ghazali con­spicuously speaks as a mujtahid. See for instance his Mustasfa, II, 353, 372; idem, Munqidh, pp. 68, 71,77, 141-142.

’’Ghazali, Munqidh, pp. 141-142; Ihyà³, I, 110-111.

⁹²Subki, Jabaqai, IV, 112.

⁹³lbid., IV, 107.

⁹⁴Ghazali, Mustasfa, 11, 372.

^9SGhazali, Ihyà\ 1, 63; idem, Munqidh, p. 142.

⁹⁶For these opinions see Shawkani, Jrshad, p. 235.

⁹⁷H. Laoust, ‘‘La pedagogie d’al-Gazali dans le Mustasfa,” Revue des Etudes Islamique, 44 (1976), 77-78.

⁹⁸Ibn ^cAqil, Funùn, 11, 649-650.

"ibid., 11, 606; ^cAbd al-Rahman b. Shihab Ibn Rajab, al-Dhay! ^calà Tabaqat al-Hanàbila, ed.

H. Laoust and S. Dahhan (Damascus, 1951), pp. 189-190.

^,00lbn Rajab, Dhayl, pp. 190-194.

*°’lbn ^cAqil, Funùn, II, 602-607, 645-647, 649-650. See also the introduction of G. Makdisi to this book in Vol. I, xlix-1.

^,02This conviction is expressed in a prophetic report. See Abu al-Fida Ibn Kathir, Nihayat al- Bidàya wal-Nihaya, 2 vols. (Riyad, 1968), I, 18.

^,03J. Schacht, “Classicisme, traditionalisme et ankylose dans la loi religieuse de 1’Islam,” in

R. Brunschvig and G. vonGrunebaum, eds., Classicisme et declin culturel dans I’histoire de l’IsIam (Paris, 1957), p. 148.

¹⁰⁴Ghazali, lhya\ 1,44, 111.

^l05See, e.g., Ibn ^cAqil, Funùn, 1, 126-129, 349-350; II, 504, 524-525, 529 n. 463, 641-645, 745-747 passim.

^,06Published in 9 vols. (Cairo, 1968?).

^IO7See his penetrating research in Etudes de droit Musulman (Paris, 1971). Chehata’s results were supplemented and confirmed by Y. Meron’s “The Development of Legal thought in Hanafi Texts,” Studia Islamica, 30 (1969), The early sources that were used by Chehata and Meron are mentioned in the next two notes.

¹⁰⁸Abu al-Hasan al-Quduri, al-Mukhtasar, printed with Ghunaymi’s al-Lubàb fi Sharh al-Kitab (Cairo, 1961-63); Shams al-Din al-Sarakhsi, al-Mabsùt, 30 vols. (Beirut, I97-); ^cAla° al-Din al- Samarqandi, Tuhfat al-Fuqahà³, 3 vols. (Damascus, 1964); Abu Bakr al-Kasani. Bada^i^c al-Sana^T, 7 vols. (Beirut, 1974).

^,09Muhammad b. Hasan al-Shaybani, al-Asl, 4 vols. (Haidarabad, 1966-1973); Ahmad b. Muham­mad al-Tahawi, al-Mukhtasar (Cairo, 1954); Abu al-Layth al-Samarqandi, Khizànat al-Fiqh, ed.

S. D. Nahi (Baghdad, 1965).

”°See Chehata, Etudes, pp. 21-22. For a detailed discussion of the developments in the area of legal capacity, see ibid., pp. 93-106: For developments in the area of the wife’s maintenance, see Meron, “Development of Legal Thought,” pp. 74, 78-84.

Meron, “The Development of Legal Thought,” p. 74.

”²Chehata, Etudes, pp. 98, 100, 105, 166-167; Meron, “The Development of Legal Thought,” pp. 78-84.

"³Chehata, Etudes, p. 166.

"⁴Ibid., pp. 105, 170.

’’’Coulson, A History of Islamic Law, pp. 81, 84.

^l,6Professor G. Makdisi remarked in his The Rise of Colleges (Edinburgh, 1981), p. 290, that he has “not come across any statement to this effect (i.e., the closure) in any document of the Middle Ages...” If this remark was intended to apply to the period up to the end of the fifth/eleventh century, it does not but support our forementioned conclusion. Professor Nicholas Heer has also noted to me that he has not found in classical literature any piece of evidence contrary to my conclusion.

^l,7This phrase appeared in a discussion in Muhyi al-Din al-Nawawi, al-Majmu^c: Sharh al- Muhadhdhab. 8 vols. (Cairo, 1966-71), I, 76. For similar usages see Ghazali, Mustasfa. II, 315-316; Subki, Tabaqàt, III, 276-277; Ibn ^cAqil, Funùn. I, 92.

^ll8Muhammad Bakri al-Siddiqi, al-Iqtisàd fi Bayàn Maràtib al-Ijtihad (ms) Princeton, Garrett Collection, Yahuda section 253, fol. 98b.

^ll9Ibn Kathir, Nihàya, I, 30. Another version of the same hadith was translated by Goldziher, “On al-Suyuti,” p. 85.

^l20See Majd al-Din, Shihab al-Din, and Taqi al-Din Ibn Taymiyya, al-Musawwada fi Usui al- Fiqh (Cairo, 1964), pp. 472, 545.

¹²¹ Ibn ^cAqil, Funùn, 1,92-93.

^,22Ibn Taymiyya, Musawwada. pp. 472, 545.

^,23In fact, Razi (d. 606/1209) is said to have dealt with this problem. But the paucity of information about his views makes any evaluation of his doctrine impossible. See Shawkani, Irshad, p. 235.

¹²⁴Amidi, Ihkàm, III, 253-254.

^,25lbn al-Hajib, Mukhtasar al-Muntahà (Cairo, 1908), pp. 233-234.

*²⁶Subki, Jam^c al-Jawàmi^c, II, 398-399.

^I27lsnawi, Nihàya. III, 331, 349.

^l28Taftazani, Hàshiya, II, 307.

^,29Ibn al-Amir, Taqrir. III, 339-340.

^l30Ghazali, Ihyà\ I, 63.

^,3lOn the ranks of mujtahids and degrees of ijtihad see Mirza Kazim Beg, “Notice sur la march et les progrès de la jurisprudence,” Journal Asiatique 15, ser. 4 (January 1850), 181-192, 204-214; Siddiqi, Iqtisad, fols. 98a-98b.

^,32Ibn al-Amir, Taqrir, III, 293.

^,33Ibid„ HI, 346.

^,34Siddiqi’s list includes Qaffal, Ghazali, Ibn ^cAbd al-Salam, Ibn Daqiq al-^cId, Taqi al-Din al- Subki, Taj al-Din al-Subki, and Jalal al-Din al-Suyyuti; see Iqtisàd, fols. 99a-99b.

^I35lbid., fol. 98b.

^I36lbn ^cAbd al-Shakur, Sharh. II, 399-400.

^l37Laoust, “La Pedagogie,” p. 77.

^,38Ibn Taymiyya, Musawwada, p. 546.

^l39Nawawi, MajmiF. I, 71.

^I4OE. M. Sartain, Jala! ab Din al-Suyuti (Cambridge, 1975), p. 65.

^l4lSiddiqi, Iqtisàd. fol. 97b.

^I42lbid., fol. 97b.

^143cAbd al-Hayy al-Laknawi, al-Fawà^id al-Bahiyya fi Taràjim al-Hanafiyya (Benares, 1967), p. 89.

¹⁴⁴These misunderstandings can further be illustrated by an anecdote that took place at the time of Ibn ^cAbd al-Salam. When the latter claimed the right of ijtihad for himself, the Sultan Musa b. Ayyub wrote to him: “If you claim to be a mujtahid you must prove it (in a convincing manner) that befits such a serious claim, in order that you become a head of a fifth school.” Ibn ^cAbd al-Salam replied: “As to what has been mentioned about ijtihad and the fifth school, (I say that) the usui of religion are not subject to differences (meaning that there is no place for a fifth school)... Differences are only in (matters of) furu^c.” See Subki, Tabaqàt. V, 93, 95.

^l45Mawardi, Adab. I, 463. See examples in Ibn al-Amir, Taqrir. 111, 351 and Ghazali, Mustasfa. II, 384.

^I46lbn al-Amir, Taqrir. Ill, 340. Rafi^ci remarked: “wal-khalqu kal-muttafiqina ^calà annahu là mujtahida al-yawma."

^l47Subki, Tabaqàt. V, 120.

^I48lbid., I, 106. It must be noted that a mujaddid had to qualify as a mujtahid.

^,49Ibn Kathir, al-Bidàya wal-Nihàya. 14 vols. (Cairo, 1932), XIII, 250; Ibn al-Amir, Taqrir. Ill, 340; Subki, Tabaqat, V, 18; S. Rizwan Ali, Izz al-Din al-Sulami'{\s\axn&\¹d, 1978?), p. 22; Ibn ^cAbd al-Shakur, Sharh, II, 399; Suyyuti, Husn al-Muhadara fi Akhbar Misr wal-Qahira, 2 vols. (Cairo, 1904), I, 141-147.

^,50Cited in Shawkani, Irshad, pp. 235-236.

^l5lCited in Zarqa, “Dawr al-Ijtihad wa-Majal al-Tashri^c fi al-lslam,” international Islamic Col­loquium Papers (London, 1960), p. 107.

^l52See n. 154 below.

^IS3See, e.g., ^cAbd Allah al-Samhudi, al-^c!qdal-Farid fi Ahkam al-TaqlTd(MS) Princeton, Garrett Collection, Yahuda Section 5183, fols. 177a, 177b; Ibn al-Amir, Taqrir, III, 340; Shawkani, Irshad, pp. 235-236.

^,54Consider the following mujtahids: Subki maintained that the Muslim community had agreed that Ibn Daqiq al-^c Id was a mujtahid as well as a mujaddid. Ibn Daqiq “was a mujtahid mutlaq with complete knowledge of legal sciences” (Tabaqat, VI, 2, 3, 6). Ibn al-Rif^ca, like Subki, professed that an ijma^c had been reached concerning “Ibn Daqiq al-^cId and Ibn ^cAbd al-Salam who reached the rank of ijtihad” (see Siddiqi, Iqtisad, fol. 99a). Ya^cmuri described Ibn Daqiq as follows: “He was excellent in deriving rulings from the Sunna and the Quran” (Subki, Tabaqat, VI, 2-3; Suyuti, Husn, I, 143). Dhahabi and Ibn Nubata considered al-Qadi al-Zamalkani a mujtahid: For Dhahabi, Zamal- kani was one of the remaining mujtahids and for Ibn Nubata he was a “mujtahid on whose opinion doubt must not be cast” (Subki, Tabaqat, V, 251, 252; Suyuti, thisn, I, 145). Subki maintained that Razi was chosen by his successors as the mujtahid and the mujaddid of the sixth/twelfth century {Tabaqat, I, 106). Abu Shama was acclaimed as a mujtahid within the Shafi^ci school (Subki, Tabaqat, V, 61; Ibn Kathir, Bidaya, XIII, 250). Ibn ^cAbd al-Salam openly declared himself a mujtahid within the Shafi^ci school and his claim for the position did not provoke disavowal (Subki, Tabaqat, V, 93, 95; see also n. 144 above). Although belonging to the Hanbali school, Ibn Taymiyya did not comply entirely with the Hanbali doctrine: He considered himself a mujtahid fi al-madhhab. In many legal cases (about twenty are known to us) Ibn Taymiyya has diverged from the doctrines of the four eponyms including Ibn Hanbal. See his al-Fatawa al-Kubra, 5 vols. (Cairo, 1966), III, 95-96. See also Shorter Encyclopaedia of Islam, s.v. “Ibn Taymiyya,” by M. Cheneb; Ibn Qayyim al-Jawziyya, Flam at- Muwaqqi'in ^can Rabb al-^Alamin, 4 vols. (Cairo, 1969), 11, 231. Cf. Laoust, “L’influence d’lbn Taymiyya,” pp. 17, 20. Taqi al-Din al-Subki, the father of Taj al-Din (the TabaqSt's author), was universally recognized as a mujtahid. For Taj al-Din he was “the best of mujtahids.” In fact, Taj al-Din enumerates dozens of cases in which his father completely diverged from Shafi^ci or rulings he had chosen to follow although they were disfavored in the Shafi^ci school (see his Tabaqat, VI, 113, 147, 182-196). Safadi and Suyuti also thought of Taqi al-Din al-Subki as a unique mujtahid (see Suyuti, Husn, I, 145-146; idem., al-Tahadduth bi NFmat Allah, ed. E. Sartain [Cambridge, 1975], p. 205). Taj al-Din aLSubki himself is supposed to have said: “Now, I am the mujtahid of the universe; I say this and I need not justify what 1 say.” A century and a half later, Suyuti maintained that the statement of Subki was never contested (Siddiqi, Iqtisad, fol. 99b; Suyuti, fll/sn, I, 150).

¹⁵⁵Sartain, Jalal al- Din, 1, 63.

^l56Suyuti, Tahadduth, p. 205.

¹⁵⁷The ranks of mujtahids and the confusion about them misled even modern scholars. See, e.g., Snouck Hurgronje, Selected Works, ed. G. Bousquet and J. Schacht (Leiden, 1957), p. 282, who thought that Suyuti claimed for himself the highest degree of ijtihad, thus challenging the schools’ eponyms.

^l58Sartain, Jalal al- Din, 1, 64, 65.

^l59Cited in Goldziher, “On al-Suyuti,” Muslim World, 68, 2 (April 1978), 98.

^l60On this see Suyuti, Tahadduth, pp. 193, 203; Sartain, Jalal al-Din, 1, 61; Goldziher, “On al- Suyuti,” p. 98.

^,6lSartain, Jalalal-Din, I, 61; Goldziher, “On al-Suyuti,” pp. 98-99.

^,62See the chapter that he devoted to the discussion of this issue in Tahadduth, pp. 215-227.

^,63Ibn Kathir, Nihaya, I, 30. Cf. another version of this hadith in Goldziher, “On al-Suyuti,” p. 81; Subki, Tabaqat, I, 104.

^l64Subki, Tabaqat, I, 104; Goldziher, “On al-Suyuti,” p. 81.

^l65Subki, Tabaqat, I, 105; Goldziher, “On al-Suyuti,” p. 82. Ibn ^cAsakir, however, preferred Ash^cari; see A. Khuli, al-Mujaddidun fi al-lslam, 2 vols. (Cairo, 1965), I, 13.

^l66Subki, Tabaqàt, I, 105; Suyuti, Tahadduth, p. 221.

¹⁶⁷According to the sources that Goldziher used, the Hanbali al-Muqaddisi (d.*600/1203) and the Shafi^ci Nawawi (d. 676/1277) were designated; see Goldziher, “On al-Suyuti,” pp. 83-84. However, from the Shafi^ci viewpoint, Subki chose Razi, favoring him over Rafi^ci (see Subki, Tabaqàt, I, 106).

^,68Subki, Tabaqàt, I, 106; VI, 3; Suyuti, Tahadduth, p. 220.

^l69Suyuti, Tahadduth, pp. 207, 225; Goldziher, “On al-Suyuti,’’ p. 84.

^l70Shawkani, Irshad, p. 236; Goldziher, “On al-Suyuti,” p. 82.

¹⁷¹ Encyclopaedia of Islam, 2nd ed., s.v. “Ahmad al-Sirhindi,” by Sh. Inayatullah. *⁷²Khuli, al-Mujaddidùn, p. 1. For further details on mujaddids see pp. 12-29.

^,7JUp to the fifth/eleventh century mujaddids were only Shafi^cis (see Subki, Tobaqàt, I, 104-106; Goldziher, “On al-Suyuti,” pp. 82-83). The only uncertain exception was Ash^cari who was claimed by Shafi^cis as well as Hanafis (see Qarashi, Jawàhir, II, 544-545). From the sixth/twelfth century onward Shafi^ci mujaddids remained the majority; the Hanbalis produced a few mujaddids and, as far as 1 know, there were no Hanafi or Maliki candidates for tajdid.

^,74The fifth/eleventh century tabaqat works seem to have been the earliest works that Subki could find as sources for his biographical dictionary; see his Tobaqàt, I, 114. See also I. Hafsi’s biblio­graphical essay “Recherches sur le genre ’Tabaqat’ dans la litterature Arabe,” Arabica, 23, 3 (1976), 8-12, 17-18, 24.

^l75Laoust, “La pedagogie d'al-Gazali,” p. 77.

^,76Kazem Beg, “Notice sur la marche,” pp. 181-192, 204 ff.; Ibn Taymiyya, Musawwada, pp. 547­548.

^,77Ibn ^cAbidin, Hàshiyat Radd al-Mufriàr, 8 vols. (Cairo, 1966), I, 77; idem, Rosàri, 1, 11-13; M. Suhrawardy, “The Waqf of Moveables” Asiatic Society of Bangal, 7 n.s. (1911), pp. 330-331; Laknawi, Fawà^id, pp. 89-90.

^l78Kazem Beg, “Notice sur la marche,” pp. 206-214.

^l79Nawawi, Majmù^c, I, 73-74; ibn Taymiyya, Musawwada, p. 549.

^,80Ibn ‘Abidin, tfàshiya, I, 77.

^,8IIbn ^cAbidin, Rosàri, 1, 11.

*⁸²Suhrawardy, “The Waqf,” pp. 330-331.

^,83Ibn ‘Abidin, Rosàri, 1, 12.

^,84This attitude seems to have started at an earlier period. When dealing with the four law schools as they have become established by the eighth/fourteenth century, the Maliki scholar Ibn Khaldun (d. 808/1405) observed that the complexity of the schools’ legal doctrines had prevented people from attaining ijtihad and for this reason scholars made it an obligation for all Muslims to follow the established schools through the writings of renowned jurists. “Jurisprudence,” Ibn Khaldun argues, “means this and nothing else. The person who would claim ijtihad nowadays would be frustrated and have no adherents” (Al-Muqaddima, p. 448 [Rosenthal’s trans. Ill, 8-9). Undoubtedly, Ibn Khaldun had independent mujtahids in mind, because it was well known to him, as much as it was well known to all jurists, that a limited mujtahid or a mujtahid within the school, cannot have followers. From the general usages of ijtihad in the Muqaddima, it seems to me that, for Ibn Khaldun, ijtihad exclusively meant the kind of major legal activity undertaken during the first three centuries of Islam. Consider what he has to say elsewhere in his Muqaddima'. “The school doctrine of each eponym became, among his adherents, a scholarly discipline in its own right. They were no longer in a position to apply ijtihad and qiyas. Therefore, they had to make reference to the established principles (al-usul al-muqarrard) of their eponyms, in order to be able to solve (new) problems according to (old) similar ones and disentangle them when they got confused (tan?Tru al-masà^ilifil-^ilhàqi wa- tafnquhà ^cinda al-ishtibàhi). A firmly rooted faculty (of knowledge) was required to enable a person to undertake such (analogy) and disentanglement and to apply the school doctrine of his particular eponym to those (processes) according to the best of his ability. This (practice) of faculty is (what is meant) at this time by the science of jurisprudence” (Al·Muqaddima, p. 449). The sentence “tan?Tru al-masà^ili... ishtibàhi" was translated by Rosenthal as “to analyze problems in their context and disentangle them when they got confused” (see III, 13). For Ibn Khaldun, therefore, ijtihad is the legal activity that leads to the construction of a new school which will eventually attract adherents. Although the processes of unraveling doctrinal problems and applying analogy to new cases within a school are considered part of the Sunni ijtihad methodology, Ibn Khaldun does not see them as

Was the Gate of Ijtihad Closed? 41 related to ijtihad. For him qiyas and ijtihad are much more than these processes. But whether he accepts the Sunni usulist terminology or not, this is nonetheless a limited form of ijtihad. One may find it striking that Ibn Khaldun insists on the inability of jurists to practice ijtihad at a time when he is familiar with the reputation and career of contemporary mujtahids such as Subki and Bulqini (d. 805/1403), both universally acknowledged as mujtahids fi al-madhhab. See al-Muqaddima, p. 449 (Rosenthal’s trans., Ill, 12); for Subki and Bulqini see Subki, Jdbaqàty VI, 146-216; Suyuti, Husn, I, 168 f.; Goldziher, “On al-Suyuti,” p. 84. It is then clear that Ibn Khaldun’s conception of this question is an excellent example of the general attitude of muqallids towards the issue of the existence of mujtahids. He knew that the eponyms and their equals were extinct; he also knew that the machine of legal interpretation was constantly at work, but he was still puzzled as to how to square these facts with the ever-growing idea of the extinction of mujtahids. It was, therefore, suitable as well as convenient for him to say that contemporary scholars were incapable of ijtihad, implying the extinction of mujtahids, and that the activity of jurists of his time had nothing to do with ijtihad, despite the fact that it entailed the use of analogy and types of legal interpretation.

^l85cAbd al-Rahman al-Jabarti, ^AjtPib al-Àthàrftal-Taràjim wal-Akhbàr, 7 vols. (Cairo, 1958-67), 111,41-42.

^l86Ibid., I, 186,218-219; II, 28.

^I87lbid., IH, 65-103, especially p. 65. ^I88lbid., Ill, 88. On istinbàt see Ibn ^cAbidin, Rasaci, I, 31. ^l89Jabarti, ^cARPib, III, 67.

^l90See Shawkani, al-Qawl al-Muftd ft Adillat al-Ijtihad wal-Taqltd (Cairo, 1974), passim; Muhammad b. lsma^cil al-San^cani, Irshàd al-Nuqqàd Uà Taysir al-Ijtihad (Beirut, 1970), passim; Shah Wali Allah, ^cIqd al-JTd (Cairo, 1965), passim; G. H. Jalbani, Life of Shah Waliyullah (Delhi, 1980), pp. 56-57; Ibn ^cAbidin, Rosàri, I, 28.

^l9lChelebi, Balance, p. 129; J. E. Mandaville, “Usurious Piety: The Cash of Waqf Controversy in the Ottoman Empire,” International Journal of Middle East Studies 10 (1979), 295-304.

^,92Husayn b. Iskandar al-Rumi, Risàia ft al-Dukhàn (MS) Princeton, Garrett Collection, Yahuda Section 3854, fols. 2b-5a; Muhammad b. Mustafa al-Khadimi, Risàia ft al-Qahwa wal-Dukhàn (MS) Princeton, Garrett Collection, Yahuda Section 3225, fols. 48b-49a. On these subjects see Chelebi, Balance, Chapters II, III, V, VII, XII, XX; Mandaville, “Usurious Piety.”

^,93 77ie Balance of Truth.

¹⁹⁴J. Schacht, “Early Doctrines on Waqf,” in Melange Fuad Kopriilu (Istanbul, 1953), 443. '"Mandaville, “Usurious Piety,” pp. 299-304; Suhrawardy, “The Waqf,” 388 ff.

^l96See, e.g., the argument of Bali Effendi in Mandaville, “Usurious Piety,” pp. 301-303; Chelebi, Balance, p. 129.

^,97Chelebi, Balance, p. 129.

^l98See, e.g., the arguments concerning the legality of hashish in F. Rosenthal, The Herb: Hashish versus Medieval Muslim Society (Leiden, 1971), pp. 105-130.

^l99See, e.g., Ibn ^cAbidin, Rosàri, I, 28; Ibn ^cAbd al-Shakur, Sharh, 11, 399; San^cani, Irshàd, pp. 2, 11-12; Samhudi, al-^cIqd al-Fartd, fol. 177b; Khadimi, R. fi al-Qahwa, fol. 48b.

²⁰⁰Shawkani, al-Qawl, p. 7. ^20lIbid., pp. 21-24, 31.

^2O2Shawkani, aì-Badr, I, 2. ^2O3Shawkani, Irshàd, p. 236; idem, al-Badr, I, 3.

ADDENDA

General remark', since the publication of the article, I have come across a staggering body of evidence, both directly and not so directly related to the issue of ijtihad, which clearly supports the thesis advanced in the article. Conversely, I have not, throughout these years, encountered any evidence that may in any way undermine that thesis.

p. 19, n. 108: on the growth and evolution of substantive law, see the more recent work of Baber Johansen, Islamic Law on Land Tax and Rent (London: Croom Helm, 1988); id., ‘Legal Literature and the Problem of Change: The Case of the Land Rent’, in Islam and Public Law, ed. Chibli Mallat (London: Graham & Trotman, 1993): 29-47; Wael B. Hallaq, ‘From Fatwas to Furu‘: Growth and Change in Islamic Substantive Law’, Islamic Law and Society, 1, 1 (1994): 29-65; id., ‘Murder in Cordoba: Ijtihad, Ifta' and the Evolution of Substantive Law in Medieval Islam’, Acta Orientalia, 55 (1994, forthcoming).

p. 20, n. 115: such statements have been lately challenged by a number of works. See sources cited in the addendum to n. 108, above.

p. 32, 11. 19-22: for a useful discussion of the views of Ibn Mu‘ammar, Shawkani, and SanusT, see Rudolph Peters, 'Ijtihad and Taqlid in 18th and 19th Century Islam’, Die Welt des Islams, 20 (1980): 131-45.

p. 36, n. 69: the article appeared in the Journal of American Oriental Society, 104 (1984): 679-89.