IJTIHAD AFTER THE TENTH/SIXTEENTH CENTURY

Suyuti’s relentless effort to attain the position of tajdid expressed the highest point to which the uninterrupted activity of ijtihad could reach. In other words, Suyuti can be seen as the last major Sunni mujtahid in a nine-century chain of mujtahids.

Before the fifth/eleventh century no trace could be found of any attempt to classify ijtihad or mujtahids into categories of excellence (tabaqat). This does not mean, however, that the concept of tabaqat had not yet been known, but its systematic application to mujtahids occurred only at a later period, perhaps during the fifth/eleventh century.¹⁷⁴ As previously noted, Ghazali distinguished between two ranks of mujtahids; the mutlaq and the muqayyad. It can generally be inferred that Ghazali, representing the fifth/eleventh century scholars, recog­nized three ranks of jurists, the first of which had become, with his frank admis­sion, extinct. The second was the rank of mujtahids within the school and the third was that of muqallids.¹⁷⁵ About two centuries later the number of ranks reached five, the first of which was assumed to be extinct. The second and the third were ranks of mujtahids who could perform ijtihad on two different levels, the third being more limited in scope.¹⁷⁶ The fourth rank included jurists highly proficient in the doctrines of their school and in the evidence upon which these doctrines were based, although they were not fully qualified to practice ijtihad.

By the tenth/sixteenth century, seven ranks of jurists could be discerned.¹⁷⁷ The top three remained as they were on the previous scale of five, that is, they were ranks of mujtahids of various degrees. But the lower four were in reality a redivision of the lower two on the scale of five.¹⁷⁸ In the sixth/twelfth and seventh/thirteenth centuries, for example, the lowest (fifth) rank of jurists included muqallids who ‘memorized’ the doctrine of the school and understood its details but were incapable of mastering the methodology that their eponym and older teachers applied in order to reach their legal rulings.¹⁷⁹ On the other hand, the tenth/sixteenth century description of the lowest (seventh) rank was entirely different. This rank includes jurists who do not equal any of the jurists from the higher six ranks and who “cannot differentiate between the thin and the fat.”¹⁸⁰ The absence of this description from the older five-rank scheme does not suggest that in earlier centuries incompetent jurists did not exist. But the ever­growing conviction that fewer and fewer scholars could perform ijtihad and that most jurists were mere muqallids seems to have had bearing on the increase in the number of ranks; an increase from three to five to seven. This conviction had chiefly contributed to the augmentation of new ranks of muqallids that in theory did not exist before, while maintaining at the same time the old ranks of mujtahids without change.

In a later period, these seven ranks were each applied to a specific group of jurists. The first rank thus was assigned to the fathers of the four schools (to the exclusion of Shaybani and Abu Yusuf, the real founders of the Hanafi school). And although Ibn Hanbal was no jurist he was nevertheless included in this rank.¹⁸¹ Shaybani, Khassaf, Muzani, and their equals were subsumed under the second rank. To the third, mujtahids like Karkhi, Tahawi, and Shams al-Din al-Sarakhsi belonged.¹⁸² The fourth and fifth are the ranks of non-mujtahids like Marghinani and Razi,¹⁸³ while the sixth and seventh were specially designated for pure muqallids.

This classification was promoted by later taqlid advocates who espoused the view that mujtahids had become extinct. This is evident in the seven-rank classifi­cation which does not accord with what the upholders of ijtihad maintained. For example, qualified jurists have generally agreed that Razi was a mujtahid as well as a mujaddid. Nevertheless, according to this system of categorization, he was subsumed under the fourth rank which is characterised by taqlid. In addition, the fact that a mujtahid (or, generally speaking, a mujaddid) must appear—and has indeed appeared—at the turn of each century until the Day of Judgement seems to contradict the claim that the jurists of the seventh/thirteenth century and their successors belonged to inferior ranks. This apparent contradiction can be explained by saying that the party which recognized Razi’s ijtihad and the indispensable appearance of mujtahids each century was substantially different from the party that elaborated the ranks of jurists and applied them to specific groups. The first party, as is already clear, consisted primarily of Hanbalis and Shafi^cis while the second was formed mainly of Hanafis who were supported to a greater or lesser extent by Malikis and a number of Shafi^cis. It is not astonish­ing, therefore, to find that the Hanafis were the most concerned in classifying jurists into technical ranks, especially in the later period. This is also why the most complete and elaborate accounts of ranks of jurists (and not tabaqat in the biographical sense) are found in Hanafi works.

Convinced that mujtahids were extinct, Hanafis and their supporters not only denied the right of ijtihad to later scholars but also ignored ijtihad itself when this was exercised.¹⁸⁴ A fine expression of this attitude appears in Jabarti’s ^zAja³ib al-Alhar, written in the beginning of the thirteenth/nineteenth century.

Was the Gate of Ijtihad Closed? 31 sciences.¹⁸⁷ His unique scholarship and his capability to derive laws (kana yastan- bitu al-fiqha) earned him the title of a great scholar. Among his many specialized works is a treatise in which he dealt with the legality of newly invented tools and instruments.¹⁸⁸ Despite all this, Jabarti refrained from calling his father a muj- tahid. It is not that all Jabarti’s contemporaries were incapable of ijtihad and it is certainly not that he was unfamiliar with the term ‘mujtahid’, for he employed it to describe the eighth/fourteenth century Zayla^ci.¹⁸⁹ More probably, his con­viction that mujtahids are not supposed to be extant at all made him hesitant to use the term. In this Jabarti reflects the general positive attitude of the community of jurists towards taqlid, which had become an overriding principle by this time.¹⁹⁰

The drastic decline in the number of recognized mujtahids did not coincide with a parallel decline in the number and importance of newly arising problems that needed ijtihad in order to be solved.

These issues had been taken up by various jurists who were certainly not known as mujtahids. Moreover, legal reasoning based on scripture and analogical inference was employed by such jurists without the slightest hesitation. In the tenth/sixteenth century Ottoman Empire, an acute controversy broke out as to the validity of the waqf of cash. Since there was not textual evidence in the Quran that indicated its legality or illegality and since sound hadith lacked similar evidence,¹⁹⁴ Ottoman jurists had to seek the guidance of the already established doctrines of the very early jurists. Zufar, a student of Abu Hanifa, seems to have been the only early authority to permit cash waqf. But for reasons that cannot be discussed here, later Hanafi scholars had classified the doctrine of Zufar as less authoritative than those of Abu Yusuf and Shaybani. In con­sequence, Zufar’s doctrine was abandoned and the act of constituting cash waqfs had always been associated with interest (riba) and was therefore prohibited. The need to legitimize the Ottoman practice of this transaction drove Abu al-Sa^cud and Bali Efendi to revive Zufar’s long-forgotten doctrine.¹⁹⁵ But to do so it was not sufficient to restate Zufar’s argument on its own merits, because, for one, it was universally viewed as weak. The lack of textual evidence and ijma^c on the validity of cash waqf left Abu al-Sa^cud and his partisans with qiyas as the only methodological alternative.

Genuine legal reasoning was formulated on many other issues, most con­spicuous among which were drugs, coffee, and tobacco.¹⁹⁸ A fine typology of legal problems that needed the treatment of one kind of qiyas or the other can be found, as previously mentioned, in the bulk of fatwa literature. It is not within the scope of our research to indulge in a study of these fatwas, for the afore­mentioned examples suffice to prove our point; that is, newly arising problems were inevitable even in a slowly developing society, and ijtihad (aside from the Ottoman Qanun) constituted the only method through which such problems were solved.

In practice, therefore, the methodology of ijtihad continued to be employed but mostly without being recognized under its proper name. Many jurists admitted that it was indispensable, and so it was, but they were convinced that no con­temporary jurist possessed the qualification to practice it. Many others held the view that undertaking ijtihad in their age was heretical and that it was an art that was perfected only by the forefathers.¹⁹⁹ These views, however, provoked the advocates of ijtihad in the twelfth/eighteenth and thirteenth/nineteenth centuries to respond with a mass of writings in which the main subjects treated were taqlid, the evils that resulted therefrom, and ijtihad as a divinely prescribed legal principle. The authors of anti-taqlid works had increasingly mounted fierce attacks not only against those who claimed that mujtahids were extinct and that the gate of ijtihad was closed but also against the very essence of taqlid, the implementation of which had become a firmly rooted practice among the populace * (including the great majority of its intellectuals). The most prominent of these authors were Shah Wali Allah (d. 1176/1762), San^cani (d. 1182/1768), Ibn ^cAbd al-Wahhab (d. 1202/1787), Ibn Mu^cammar (d. 1225/1810), Shawkani (d. 1255/ 1839), and Ibn ^cAli al-Sanusi (d. 1313/ 1895).

It suffices for the purpose of this article to deal only with Shawkani, whose writings seem to represent not only the classical Sunni trend in favor of ijtihad but also the highest stage to which the controversy between the advocates of ijtihad and taqlid had reached. While accepting the kind of taqlid that usul al- fiqh permitted to the laity, Shawkani abhors the taqlid of the ulama, a taqlid which necessitates the unquestionable acceptance of a given doctrine, without inquiring into the evidence which forms the basis of that doctrine. In all cases, the jurist who is asking the legal opinion of another must also ask, even though he may not be a mujtahid, about the textual evidence that lies in the asl.²⁰⁰ Shawkani laments the common practice of taqlid which, according to him, became the prevailing norm that was not to be violated. In consequence, any attempt to claim the right of ijtihad was inevitably met with resistance, condemnation, and even public defamation. This is why, Shawkani contends, mujtahids might appear to have vanished; it is not because they have really vanished that their voices are not heard, but because their existence will be significantly endangered should they insist on claiming the right of ijtihad for themselves.²⁰¹ The alleged closure of the gate of ijtihad, Shawkani argues, is but one indication of the insipience of these blind muqallids who claimed that after the sixth/twelfth or seventh/ thirteenth century, mujtahids ceased to exist.²⁰² In order to prove the contrary, Shawkani compiled a two-volume biographical work entitled al-Badr al-Tali^c bi- Mahasin man ba^cd al-Qarn al-Sabi^c in which he was able to show that after the seventh Islamic century, mujtahids continued to exist. He further argued that ijtihad at later times was facilitated by the skillfully compiled manuals that make available to the jurist details and materials that were otherwise unattainable to

Was the Gate of Ijtihad Closed? 33 jurists of earlier centuries. In fact, this was a counter-argument against the muqallids, who justified their taqlid on the grounds that it was extremely difficult and complex to undertake ijtihad which, of course, entails the study and analysis of the texts and the application of the methodological principles of usul.²⁰³ Against the muqallids’ view that ijma^c was reached on the closure of the gate and on the nonexistence of mujtahids, Shawkani explains that in ijma^c only the opinions of mujtahids count, and since it is clear that those who maintained the existence of ijma^c on the gate’s closure consider themselves muqallids, it would seem absurd to claim that mujtahids reached an ijma^c on the nonexistence of mujtahids.