IJTIHAD IN PRACTICE

Mujtahids in the Fourth/ Tenth Century

During the third/ninth and fourth/tenth centuries mujtahids, whether indepen­dent or affiliated with legal schools, have expressed highly original views on law.

Yet, although joining a law school and attributing new ideas to older authori­ties became the prevailing norm, a number of scholars openly disagreed with the established doctrines of the schools.

1. Ibn Hasan al-Tanukhi (d. 318/930): A famous Hanafi jurist who diverged to a certain extent from the teachings of Abu Hanifa, Abu Yusuf, and Shaybani.⁵³

2. ^cAli b. al-Husayn Ibn Harbawayh (d. 319/931): A famous Shafi^ci jurist who, in a number of cases, disagreed with Shafi^ci.⁵⁴

3. Abu Sa^cid al-Istakhri (d. 328/939): A Shafi^ci jurist who elaborated a number of furu^c cases that were at variance not only with Shafi^ci's doctrine but also with the entire doctrines of the other schools.⁵⁵

4. Abu ^cAli b. Abi Hurayra (d. 345/956): “One of the greatest Shafi^cis”⁵⁶ who formu­lated his own legal decisions concerning issues related to divorce, penal law, prayer, slavery, etc.

5. Ibn Haddad al-Misri (d. 345/956): Considered a prominent Shafi^ci mujtahid, Ibn Haddad had his own independent opinions as regards matters related to marriage, li^can (imprecation), rida^c (fosterage), etc.⁵⁷

6. Abu Hasan al-Dariki (d. 375/985): Nawawi relates⁵⁸ that al-Dariki displayed the largest degree of independence from the Shafi^ci school. When asked for an opinion, “he would ponder at length, and would often make a decision not only contrary to Abu Hanifa’s teachings but also to that of al-Shafi^ci. When called to account for this he would reply: Here is the tradition A on the authority of B on the authority of C... down to the Prophet; it is better to follow this tradition than to act according to what Abu Hanifa or Shafi^ci taught.”⁵⁹

It can be stated with certainty that from Tabari’s time onwards an ijma^c on the validity of the existing Sunni schools had begun to be finalized (except the Zahiri school which was gradually excluded from the Sunni legal system) and it seems that in the last three or four decades of the fourth/tenth century a com­prehensive but implicit agreement on the illegality of establishing new schools and of any ‘separatist’ tendencies was reached.

Ijtihad in Law and Government in the Fifth I Eleventh Century

The jurists of the fifth/eleventh century seem to have followed their predeces­sors in taking ijtihad for granted. This is quite evident in the writings of all lawyers of the period. ^cAbd al-Jabbar (d. 415/1024) and his disciple, Abu Husayn al-Basri, deemed ijtihad to be an indispensable ingredient in law. They further viewed qiyas, which is in itself only a method of ijtihad, as an element without which law would be incapable of growth. For them taqlid is to be used only by the commoner (fammiyy) and by those for whom the exercise of ijtihad is impossible.⁶¹ The views of ^cAbd al-Jabbar and Basri on ijtihad and taqlid, al­though essentially Mu^ctazili, express the standard doctrine of Sunni Islam.

The importance of ijtihad exceeded the domain of law to penetrate the political thought of medieval Islam. A discussion of the changing politics in relation to ijtihad in the fifth/eleventh century will show the extent to which ijtihad was indispensable to the political institution in which the ulama played a prominent role. Such a discussion will also demonstrate that whereas political theory (which was, in the final analysis, the product of juristic thought) recognized the failure of Caliphs to meet the requirements of Shari^ca by their incompetence to practice ijtihad, it asserted the ulama’s important function as law interpreters in default of a sovereign who is ideally supposed to be in charge of Shari^ca. It is relevant to assert here that although political theory was an extension of the basic principles of Islamic law, it was not in reality speculative, but rather pragmatic: It is the depiction of the past in a normative form and its adaptation to the present conditions with the purpose of illustrating a system of morals, the applications of

Was the Gate of Ijtihad Closed? 13 which will maintain the unity and integrity of the Muslim community.

In his discussion of the qualifications of the Imam, Baghdadi (d. 429/1037) considers the ability to practice ijtihad as one of the four conditions that the Imam (or Caliph) must satisfy in order to rule efficiently.⁶⁶ The same condition is required by Mawardi, who explains that ijtihad must be one of the Imam’s skills because knowledge of law and of the means by which new problems (nawazil) must be solved are an essential part of his duties.⁶⁷ The Imam is not the only individual who may practice ijtihad within the political institution; officials who are delegated by the head of the state may also practice it. The entire body of state officials is classified, according to Mawardi, into two categories; namely, executive (fummal al· tanfidh) and delegative (fummal al· tafwid). The latter are authorized to use their own reasoning—based on the principles of Shari^ca—to tackle any problem that may arise while at governmental service. Mawardi insists that delegated officials must apply the results of their own ijtihad even though it may disaccord with that of the Imam.⁶⁸ Using the overriding usulist principles in his century as a base, Mawardi demands that the mufti as well as the judge (qadT) must fulfill the requirements of ijtihad.⁶⁹ With this last demand Mawardi does not but describe what had prevailed in the golden age and what ought to prevail in the present and the future. He had in mind all the official judges that were mujtahids from the time of qacli al-qudat Abu Yusuf through his own time, including himself. Mawardi, who was considered a mujtahid, was appointed by the Caliph as qadi and was granted the title of aqda al-qudat (the most qualified of qadis).⁷⁰ His political doctrine unfolds the conviction that the jurists and scholars of the time can fulfill the requirements of the theory.

Motivated by the same ambition of prominent jurists to maintain the solidarity of the Caliphate, Juwayni (d. 478/1085) composed a treatise on political-legal conduct addressed to the vizier Nizam al-Mulk; most likely during the reign of Muqtadi.⁷¹ Following Baghdadi and Mawardi, Juwayni deems the quality of ijtihad to be a prerequisite for the ideal imam and for the well-being of the community. Should the Imam be a muqallid, Juwayni contends, it would impell him to consult other eminent jurists, a course of action that would impair his power of decision making and expose him to contradictory opinions. The Imam’s practice of taqlid therefore, does not befit his status as the head of the com­munity. Nevertheless, Juwayni was realistic enough to realize the impotency of the Caliphate at the time and its need for support by a broad class of profes­sionals, chief among whom were the jurists. Juwayni’s suggested solution to the problem where the Imam cannot fulfill the requirements of ijtihad is that he must, although ideally inadvisable, consult the ulama because “they are the real sovereigns” and “the leaders and masters of the community.”⁷² “If the sovereign (sultan) does not reach the degree of ijtihad, then the jurists are to be followed and the sultan will provide them with help, power, and protection.”⁷³ Thus, it is clear that while trying to derive theory from the actual experience of the distant and near past, Juwayni puts the entire responsibility on the backs of the jurists.

But what if the Muslim jurists or Shari^ca become extinct? In trying to answer this question Juwayni mentions some facts that are of great significance to our inquiry. The following is indicative of the state of affairs prevalent at the second half of the fifth/eleventh century: “If an age becomes devoid of muftis who are mujtahids but is not devoid of transmitters of sound doctrines of the bygone eponyms—a description that almost fits this age and its people... ”⁷⁴ But it does not quite fit. Elsewhere in the book when the author hypothetically assumes the extinction of muftis (who, in his definition, must be qualified mujtahids) and jurists, he bids his readers to try to envisage this unreal situation.⁷⁵ Needless to say, Juwayni, whose word in this case is definitely reliable, believed that mujta­hids were extant at his time. This becomes wholly certain when we realize that Juwayni himself was not only a great theologian and poet but also a distinguished mujtahid.⁷⁶

In the process of his discussion, Juwayni attempts to find solutions to a further hypothetical situation of decay. On the possible extinction of mujtahids he remarks:

I have imagined the dissolution of Shari^ca, the extinction of those in charge of it and the disinterest of people in it... 1 have also seen that the great eponyms of the legal schools once defunct are not replaced and those who seek knowledge are satisfied with super­ficialities... Therefore, I know that should this state of affairs persist, the ulama of Shari^ca will soon become extinct and there will remain nothing after them but their books.⁷⁷

The ulama, Juwayni contends, are in charge of affairs, especially when the Imam has no way to ijtihad, and their opinion is final and must be accepted even though it may contradict an opinion of a school’s eponym. When speaking of past and present mujtahids, Juwayni argues that it is difficult to imagine that the ijtihad of later mujtahids must always correspond to that of the head of the school, because the ways of ijtihad and the methods of reasoning are numerous and thus the results of such ijtihad may differ.⁷⁸

Ghazali, himself a student of Juwayni, argued (and his argument seems a natural sequence to Juwayni’s thought and a further step towards accepting the political impotency of the institution of Caliphate) that ijtihad is not a require­ment to be necessarily fulfilled by the Imam himself. It is a pure legal qualifica­tion required neither by Shar^c nor by public interest (maslaha).⁷⁹ If the purpose of the Caliphate is to comply with Shar^c, Ghazali contended, what difference does it make if the Imam reaches a legal opinion through his own interpretation or through the interpretation of a mujtahid? In order to justify this, Ghazali draws a parallel between the legal and the political situation. Thus, since the Caliph’s political and military authority that is ‘delegated* to the Sultan (sahib al-shawka) was accepted de facto as de jure, a legal authority that is also ‘dele­gated’ to the best qualified mujtahid must be equally justified.⁸⁰ That the mujtahid must be the best of jurists and the “most extensively learned” is an essential requirement of which one cannot dispose. Ghazali, trying to show that the

Was the Gate of Ijtihad Closed? 15 reliance on mujtahids is always possible, states that Baghdad is rarely devoid of a jurist whose knowledge of law is very advanced.⁸¹ Although Ghazali does not mention here the term mujtahid, it can be safely stated, from the context and theme of his discussion, that he was speaking of one, for it is the issue of ijtihad which was after all the subject of the entire discussion.

The weakening of the Caliphate, which found its expression, inter alia, in the legal impotency of the Caliph, constituted for the ulama an urgent problem that was seriously treated, although ineffectively, in a mass of writings. The insistence of jurists on the requirement of ijtihad, whether fulfilled by the Caliph himself or by others, furthermore enhances the fact that inasmuch as ijtihad was indispens­able in legal matters it was equally indispensable in political matters. Had the idea of ijtihad been slightly less important, Ghazali would have done away with it as a requirement to be met by the Caliph or his functionaries. This would have been gladly done in order to justify the long-established fact that Caliphs were not mujtahids. The political theory of Juwayni and Ghazali, let alone that of Mawardi, Baghdadi and others, leads to the conclusion that ijtihad was con­sidered an essential element both in the political and the legal life of Islam up to at least the end of the fifth/eleventh century. And, as we shall see later, ijtihad remained so long afterwards.

Indeed, there is no reason to believe that the jurists could have avoided dealing with the problem of the closure of the gate of ijtihad or the question of the extinction of mujtahids when they had already-dealt with a similar but less crucial problem, namely, the legal impotency of the Caliphate. That they did deal with the problem of the gate of ijtihad at a later period further affirms our conclusion that by the time of Ghazali this problem had not yet risen. For, if the discussion about the gate was not censored, and there is no evidence to show that it was, why should it not be discussed at the time when it supposedly appeared?

The Ijtihad of Juwayni, Ghazali, and Ibn ^QAqil

The highly developed juristic thought of the fifth/eleventh century was the product of the legal activity of mujtahids. An examination of the careers of Juwayni, Ghazali, and Ibn ^cAqil will show that these jurists, like many of their contemporaries, not only opposed taqlid in favor of ijtihad, but also presented themselves as qualified mujtahids and were accepted by others as such.

Juwayni must be credited with an extensive knowledge in several fields, par­ticularly law, theology, and belles-lettres. His education under the guidance of his father and other eminent scholars seems to have given him the courage to express radical views in Shafi^ci law and Ash^cari kalam\ the schools to which he adhered. In his usul work al-Bur han, he seems to have deviated from Shafi ^ci’s usul doctrine and incorporated new ideas that stirred some opposition in later centuries.⁸² Subki, one of the most thorough biographers, consistently elevates Juwayni to the rank of mujtahidfi al-madhhab, (mujtahid within the boundaries of the school) and advances him over his predecessors in the mastery of usul and furu^c.⁸³ Subki points out the special difficulty of al-Burhan and its uniqueness as a book the theory of which, unlike others in the field, was not dictated by the doctrines of previous authorities.⁸⁴ Ibn Khallikan ascribes to his furu^c work, al- Nihdya, the same features, indicating that it is unprecedented in Islam.⁸⁵ Subki openly admits that in al-Burhan Juwayni is not guided by the principles of Shafi^ci’s doctrine but by his own reasoning and ijtihad.⁸⁶ This last makes Juwayni an independent mujtahid (mujtahid mutlaq) since he had set up an independent system that seems to differ from Shafi^ci's school at least as much as Tabari's system does. Therefore, Subki's statements that Juwayni was a highly original jurist and that he reached the degree of mujtahid fi al-madhhab contradict themselves, because Muslim jurists have always argued that the mujtahid fi al· madhhab must not exceed the limits of the school’s teachings. In this light the views of Abu al-Fida (d. 732/1331) and al-Dhahabi (d. 748/1348) must be con­sidered as a counterbalance to Subki's account of Juwayni. Abu al-Fida remarked that Juwayni claimed for himself the rank of independent mujtahid because he fulfilled the conditions required, but added that he, Juwayni, finally decided to abandon this position and follow Shafi^ci.⁸⁷ This is in accord with Subki's remark that in his youth Juwayni refused to follow the doctrine of the Shafi^ci school embodied in the teachings of his father and his father's contemporaries. It also accords with the fact that the principles of Shafi^ci’s usul have not served as a guide for Juwayni. Subki’s teacher, al-Dhahabi, who was a fervent anti-kalam Traditionalist, also hinted that in his al-Burhan Juwayni deviated from the right path of the forefathers (salaf). Abu al-Fida and Dhahabi represented a trend which Subki covertly opposed in his biographical notice of Juwayni. He consis­tently upheld the orthodoxy of Juwayni and asserted that he persistently fol­lowed the path of the salaf⁸⁸ and remained a follower of Shafi^ci throughout his life despite the fact that he had developed a set of nonconformist views. This in itself, namely, being nonconformist and a salaf follower, is again an obvious contradiction of which Subki could not rid himself.

That Juwayni was a mujtahid is unquestionable, but what kind of a mujtahid was he? Although Juwayni did not venture to establish a new school, he seemed to have claimed ijtihad mutlaq, at least for a period of time, as Abu al-Fida argued. Subki denied this in order to defend Ash^carism and Ash^caris against the Traditionalist attacks which aimed at placing Ash^carism outside the domain of Sunnism.⁸⁹ It follows that Subki’s insistence that Juwayni was a mujtahid fi al- madhhab is particularly significant in the theological context but hardly so in the legal one. The fact remains that by the admission of every scholar, Juwayni was a remarkably creative jurist and a mujtahid of the highest caliber. It is only fair to say that part of Ghazali’s much-lauded creativity may be attributed to his eminent teacher: It may well be true that a thorough study of Juwayni’s legal and political works, when all these are published, will uncover certain aspects of his creativity that have been hitherto ascribed to Ghazali. This is certainly true, at least, of Ghazali’s early legal theory found in al-Mankhul and his political writings which seem to have been influenced by ideas expressed in Juwayni’s Ghiyath and in other works.

This need not necessarily imply that Ghazali’s intellectual contribution to religious sciences was in any way less significant. Although biographical dictio­naries do not emphasize Ghazali’s quality of ijtihad, as is the case with Juwayni, it is quite obvious that Ghazali reached the rank of mujtahid fi al-madhhab. Apart from his argument that he is a mujtahid who had abandoned the practice of taqlid,⁹⁰ he is the first scholar known to have claimed that he was chosen by God to revive the religion of Islam.⁹¹ And because he lived during the first five years of the sixth Islamic century, jurists of the Shafi^ci school as well as others looked upon him as the renovator (mujaddid) of the sixth/twelfth century. The fact that renovators had to be qualified mujtahids implies that even those biog­raphers who made no explicit mention that Ghazali was a mujtahid nevertheless implicitly admitted that he was one. Ibn al-Najjar maintained that a universal consensus had taken place concerning the fact that Ghazali was the mujtahid of his time.⁹² In a convincing manner, Subki also presented Ghazali as the renovator of the sixth/twelfth century who had perfected the science of legal theory, ‘renewed* the fiqh (positive law) of the Shafi^ci school, and molded the science of khilaf (legal differences).⁹³

There was no doubt in Ghazali’s mind that ijtihad is attainable through diligent study, intellectual exercise, and immersion in scholarly disputations (munazarat)?* He admitted the extinction of independent mujtahids who were able to establish their own school of law, but he certainly did not imply the same for those jurists who could lead the community and revive the Shari^ca when this need arose.⁹⁵ Therefore, it is entirely inaccurate to say, as some later jurists did,⁹⁶ that Ghazali thought all mujtahids to be extinct; such a claim not only has no basis in Ghazali’s writings but also sharply contradicts the several statements he made throughout his books.

To Ghazali, only two kinds of mujtahids were known, the independent (mutlaq) and the limited (muqayyad).⁹¹ The latter’s activity remains within the limits of his school. Because Ghazali admitted the fact that the eponyms of the schools are defunct and irreplaceable, and because the task of tqjdid (renovation) requires a jurist of high caliber who does not practice taqlid, it can be safely said that Ghazali recognized the existence of mujtahids fi al-madhhab, especially that he himself was a mujtahid in the Shafi^ci school.

Ghazali was not bold enough to attribute to himself and to his fellow scholars the supremacy of ijtihad over his predecessors. Unlike Ibn ^cAqil, he was satisfied with a rank lower than that of Shafi^ci. Ibn ^cAqil refused to accept for himself and for his colleagues such a relatively modest role; he strongly argued that earlier lawyers have no superiority over their successors and that many later jurists surpassed in legal knowledge their older teachers.⁹⁸ He attacked and ridi­culed the taqlid by his contemporaries of their forefathers and asserted that Ibn Hanbal himself went out against the blind following of earlier jurists and called for reasoning on the basis of the scripture. For this reason, Ibn ^cAqil openly declared that any legal opinion must be guided by a textual dalil (evidence) rather than by what Ibn Hanbal had said.⁹⁹ Given this, it is of no surprise that Ibn ^cAqil, with his deep knowledge of usul and furu^c, had reinterpreted the doctrine of his school and that he came up with new opinions for many new and old problems. More than twenty of his unique legal opinions are recorded in Ibn Rajab’s biographical work.¹⁰⁰ Many more of these singular problems appear in al-Funun. his magnum opus, where he demonstrates not only his remarkable originality, but also his preference for the ijtihad of contemporaries over that of the ancestors. In fact, the purpose of Ibn ^cAqil in writing his Kitab al-Funun, which is replete with contemporary opinions and problems, seems to stem from his desire to prove the commensurability, if not the superiority, of later mujtahids to their predecessors.¹⁰¹

The desire of Juwayni, Ghazali, Ibn ^cAqil, and other jurists to assert themselves vis-à-vis their precursors and their unceasing constructive criticism of their con­temporaries was perhaps partially motivated by the general mood of the age; a mood which was to persist as a psychological factor in the attitude of Muslims for centuries afterwards. This mood was expressed in the general conviction that Muslims were experiencing bad times and that the more distant they were from the Golden Age of the Prophet and his Companions the worse the state of decline would be.¹⁰² A keen search throughout the legal literature for the causes of such conviction yielded very little to show that the legal state of affairs was responsible for it. It is highly likely that the disintegration of the political institu­tion was the main element that brought about the growth of this conviction.¹⁰³ The Shari^ca had not been at the center of criticism as had been the political and socioeconomic situation as a whole. Ghazali’s revivalism, for instance, was not addressed specifically to law. The ‘weaknesses’ of religion, Ghazali argued, were caused by the internal theopolitical conflicts and by religious malpractices. This is his main theme in his Ihyà³ and Munqidh. In the latter he also criticizes several institutions and groups such as the philosophers and the Shi^ci Imamiyya, but nothing, except for a few passing remarks, was devoted to legal sciences or jurists. In fact, in Ghazali’s doctrine jurists are instrumental in any attempt at religious revival.¹⁰⁴

The Role of Ijtihàd in Developing Positive Law

As far as the potential and ability of the legal system to provide solutions to all newly arising problems is concerned, it need not be reiterated that up to Ibn ^cAqil’s time, and for a long time afterwards, jurists had performed their task most appropriately. Therefore, the dissatisfaction of Muslims with the status quo could not have been the result of the impotency of lawyers to supply the required answers. Legal activity, whether in theory or practice, continued unceasingly. The vast bulk of fatwas (legal opinions) that appeared and continued to grow rapidly from the fourth/tenth century onwards is a telling example of the impor­tance of fatwas as legal decisions and precedents. It is in this large body of material that one may look for positive legal developments. But the current state of scholarly research does not enable us to undertake the investigation of this important subject. When a record of consecutive collections of fatwas throughout a given period of time is made available, the growth of legal materials and of unprecedented decisions, which may be coupled with developments of technical legal thought, can be followed step by step. This does not mean that developments and new ideas cannot be found elsewhere. Subjects of interest and of vital importance were discussed in a variety of works such as, for example, the Kitab al-Funùn of Ibn ^cAqil and the IhycF of Ghazali. These include numerous cases that were either raised to be decided for the first time or older problems that were reinterpreted through fresh legal reasoning.¹⁰⁵ Subki also recorded in his Tabaqat hundreds of new and unconventional legal opinions, the great majority of which belong to the fourth century and thereafter.

Although later positive developments were not usually incorporated in furu^c works, a clear development had taken place within this branch of legal literature. And although the main features of this development were manifest chiefly in the field of technical legal thought, it is nonetheless a development that at least signifies the extent to which jurists of later centuries were free to express views that diverged from the doctrines of their predecessors.

It is our common, but rather inaccurate, belief that during the first three centuries of Islam, the highest and final stage of legal thought had been reached. It may be astonishing, therefore, to realize that the sophistication of technical legal thought was in fact achieved after these centuries, particularly during the fifth/eleventh and sixth/twelfth centuries. The elaboration of the Hanbali positive doctrine, for instance, could not have possibly started before the end of the third/beginning of the tenth century and it could reach its utmost refinement only in the beginning of the seventh/thirteenth century—in Ibn Qudama’s volu­minous work, al-Mughnif* Even much older systems, such as the Hanafi school, were, during the fifth/eleventh and sixth/twelfth centuries, subject to extensive refinement that did not exist before. We need not restate the detailed study of the late Chafik Chehata supplemented by that of Meron concerning the develop­ments in the Hanafi legal texts.¹⁰⁷ It suffices to say that the furu^c works of Quduri (d. 428/1036) and Sarakhsi (d. 490/1096), let alone those of ^cAla³ al-Din al-Samarqandi (d. 539/1144) and Kasani (d. 587/1191), represented a great advance over earlier works of the school.¹⁰⁸

Early Hanafi law, embodied in works such as those of Shaybani (d. 189/804), Tahawi (d. 321/933), and Abu al-Layth al-Samarqandi (d. 375/985),¹⁰⁹ does not present us with a sufficiently developed system of legal thought. The disorderly arrangement of subjects and the negligence to set forth the process of reasoning of each decision are sufficient indicators of the unclarity and the incomprehensive­ness that characterized the writings of the early jurists.¹¹⁰ Although Tahawi and Abu al-Layth al-Samarqandi wrote more than a century after Shaybani, they seem to have contributed very little to what had already been achieved by their older master.¹¹¹ It was only in the fifth/eleventh century that there was a signifi­cant change in the arrangement of material, terminology, and technical legal thought. Precise definition of terms, distinction between legal acts and legal facts, and reformulation of earlier doctrines are characteristic features in the works of Quduri and Sarakhsi; even more so in the works of the sixth/twelfth century ^cAla³ al-Din al-Samarqandi and Kasani.¹¹² Quduri is clearly superior to his predecessors in the arrangement of his legal data; his work “presents us with an effort at systematization which constitutes a foreward step in the history of fiqh.”¹¹³ Sarakhsi significantly improved on older Hanafi authorities; his concepts and notions of pure law are much more crystalized and well defined than those of Shaybani and Tahawi.¹¹⁴ Thus, it would be implausible to say that “from the tenth century (i.e., the fourth Islamic century) onwards the role of jurists was that of commentators upon the works of the past masters,” and that the authors

of commentaries, such as Quduri, Sarakhsi, ^cAla³ al-Din al-Samarqandi, and Kasani “betrayed a slavish adherence, not only to the substance but also the * form and arrangement of the doctrine as recorded in the earlier writings.“¹¹⁵ The aforementioned studies of Chehata and Meron prove, once and for all, the invalidity of such statements.

From all this it becomes clear that in practice and in theory the activity of ijtihad during the period under discussion was uninterrupted. Furthermore, muj- tahids proved to have existed at all times, a fact which finds full support in the ample material available from the period itself. It is no surprise then that in the fourth/tenth- and fifth/eleventh-century sources utilized in this study (except Ibn ^cAqil’s Funun which will be discussed later) there is no mention of the phrase ‘insidad bab al-ijtihad’ or of any expression that may allude to the notion of the closure.¹¹⁶

In the light of our preceding conclusion that during the first five Islamic centuries the activity of ijtihad remained uninterrupted on both the practical and theoretical levels and that the idea of the closure has not even occurred to Muslims, we shall now proceed to investigate the subsequent history of ijtihad in order to show that the notion of the closure had appeared for the first time as late as the end of the fifth/eleventh century (and more likely the beginning of the sixth/twelfth) and that disagreements on the closure and on the availability of mujtahids prevented Muslims from reaching a consensus to that effect. It will further become clear that ijtihad was exercised up to the premodern era and that claims for the right of ijtihad and its superiority over taqlid were voiced inces­santly.

THE APPEARANCE OF THE EXPRESSION 'insidad bab al-ijtihad' AND ITS MEANING

As often used in legal discussions, the term 'bab' means ‘way.’ Thus, saddu babi al-talaqi may be rendered as ‘closing the way of divorce* or ‘making divorce infeasible ’J¹⁷ Similarly, insadda babu al-qiyasi may be translated ‘the way of qiyas was closed’ or ‘the procedure of qiyas was suspended’. The seventh Arabic masdar form, insidad, and the verb form insadda do not denote the agent. Hence, insadda babu al-ijtihadi conveys no idea as to who had actually closed the gate. This notion of the closure is in complete accord with the Islamic belief which asserts that no one at any time has demanded that the practice of ijtihad be suspended.¹¹⁸ In theory, should this practice decline or stop permanently, the methodology of ijtihad is not to be blamed because this deficiency can only stem from fallible elements, namely, the mujtahids. Ijtihad may cease only when muj­tahids either decline to perform it or when they become extinct. Since, as pre­viously mentioned, ijtihad was considered a fard kifaya and thus incumbent upon mujtahids, the possibility of extinction remains as the only alternative. The dying out or the lack of well-learned jurists then can be the only reason for the closure of the gate of ijtihad. This was precisely how Muslims thought of this issue. They believed that the disappearance of scholarship does not come about through its demise, but rather coincides with the dying out of the scholars. To maintain this posture, a prophetic report was adduced over and over again: “God does not remove knowledge suddenly from mankind (while alive) but removes it when scholars pass away. And when all scholars perish, there will remain only ignorant leaders, who when asked to decide cases, will give judgments without having (the necessary) knowledge, thereby falling in error and leading others astray.”¹¹⁹

Thus, whether the gate has always been open or had at one point of time been closed is virtually determined by two elements that complete each other: (1) the existence or extinction of mujtahids, and (2) the jurist’s consensus that the gate of ijtihad, for the reason of extinction, was, or was not, closed. In usul works, only the question of whether or not mujtahids can, by reason or by shar^c, become extinct was discussed and there had hardly been a direct reference to the concept of ‘the gate of ijtihad’. This is perhaps due to the fact that the usulists, being the guardians of law, felt responsible for the continuity of ijtihad and saw in the whole idea of the gate a negation of the very raison d’etre of the divine methodology of usul al-fiqh.

We may assume that discussions concerning the existence of mujtahids had their origin in the Saljuk period, more specifically towards the very end of the fifth/eleventh century or the beginning of the sixth/twelfth. A thorough search in the fifth/eleventh century legal literature including the usul works of ^cAbd al- Jabbar, Abu Husayn al-Basri, Baghdadi, Shirazi, Juwayni, Sarakhsi, Pazdawi, and Ghazali did not lead to any information, related directly or indirectly to this subject. The author in whose works this discussion appears for the first time in Islamic history is the illustrious Hanbali jurist and theologian Ibn ^cAqil. His notebook al-Funun and the excerpts from al- Wadih ft Usul al-Fiqh, cited in the Musawwada of the Taymiyya family, afford us with a fairly satisfactory account of the beginning of this issue.

The discussion of the existence of mujtahids seems to have been first motivated by practical necessity rather than by mere intellectual curiosity. In order to ensure the continual functioning of law, usulists of the fifth/eleventh century, including Ibn ^cAqil, maintained that at least one mujtahid at each age must ‘sit’ for iftiP (giving legal opinions) and be the guide for less qualified muftis. It was primarily for this reason that Ibn ^cAqil insisted that a mujtahid must be in existence at all times to look after the interests and needs of the Muslim com­munity and to solve its newly arising day to day problems.¹²⁰ This information, derived from his usul theory, fully corresponds to the details of a controversy that occurred between him and a Hanafi jurist in Baghdad.

The jurist that adhered to the school of Abu Hanifa said: “Where are the mujtahids? This issue closes the gate of judgeship” (bab al-qadiF).

The Hanbali (Ibn ^cAqil) swiftly responded with two decisive answers. First, he argued that “if the gate of judgeship is closed because it is required that the judge be a mujtahid, then the gate is (also) closed because you claim that the ruling (hukm) of the non- mujtahid judge is not valid until certified by a mujtahid. If you claim that mujtahids are not extant and if you need a mujtahid to guide judges and if you do not hold rulings to be nowadays invalid... then the mujtahid whom you need to validate the ruling of the non- mujtahid disproves your claim concerning the inexistence of the mujtahid...”

‘‘This claim of the Hanafi jurist is groundless for another reason. If you are asked: Can ijma^c be suspended at a certain age? If you say yes, you would be nullifying one of Shari^ca*s sources and would be contending that God had removed an infallible source from amongst the sources of shar^c... On the other hand, if you say that ijma^c is (always) valid, it would then be asked: Can the ijma^c of the mujtahids be concluded in an age where there are no mujtahids? Therefore, your argument is null and void.”¹²¹

Elsewhere, Ibn ^cAqil made the following statement: “It is not possible for an age to be devoid of a mujtahid. This is contrary to the claim of some muhaddiths who argue that there remained no mujtahids at our age.”¹²²

Obviously, Ibn ^cAqil uses in his arguments pure human reasoning and makes no reference whatsoever to the scripture. Compared with the more elaborate arguments that were developed in later works, it appears that Ibn ^cAqil’s disputa­tion with his interlocutors was only the beginning of what was later to become an established usulist controversy. The characteristics of his responses indicate that the entire issue was not of great importance at that time, although it might have been so for Ibn ^cAqil himself.