INTRODUCTION

As conceived by classical Muslim jurists, ijtihad is the exertion of mental energy in the search for a legal opinion to the extent that the faculties of the jurist become incapable of further effort.

By the beginning of the fourth century of the hijra (about a.d. 900), however, the point had been reached when the scholars of all schools felt that all essential questions had been thoroughly discussed and finally settled, and a consensus gradually established itself to the effect that from that time onwards no one might be deemed to have the necessary qualifications for independent reasoning in law, and that all future activity would have to be confined to the explanation, application, and, at the most, interpretation of the doctrine as it had been laid down once and for all. This ‘closing of the door of ijtihad', as it was called, amounted to the demand for taklid, a term which had originally denoted the kind of reference to Companions of the Prophet that had been customary in the ancient schools of law, and which now came to mean the unquestioning acceptance of the doc­trines of established schools and authorities. A person entitled to ijtihad is called mujtahid, and a person bound to practice taklid, mukallid.²

J. N. D. Anderson remarked, as did many others, that about the end of the third/ninth century it was commonly accepted that the gate of ijtihad had become closed.³ And to confirm that this closure was a fait accompli, H.

® 1984 Cambridge University Press it to the seventh,⁷ depending on the facts and analyses involved in each study. Thus, on the basis of this alleged closure, aspects of Islamic history were recon­structed and interpreted time after time.

A systematic and chronological study of the original legal sources reveals that these views on the history of ijtihad after the second/eighth century are entirely baseless and inaccurate. In the following pages, I shall try to show that the gate of ijtihad was not closed in theory nor in practice. To do so, I shall first demon­strate that ijtihad was indispensable in legal theory because it constituted the only means by which jurists were able to reach the judicial judgements decreed by God. In order to regulate the practice of ijtihad a set of conditions were required to be met by any jurist who wished to embark on such activity. An exposition of these conditions will prove that, unlike the often-held view, the demands of legal theory were relatively easy to meet and they facilitated rather than hindered the activity of ijtihad. Further, it will enhance our thesis to exam­ine the relationship between this theory, in which ijtihad was deemed a perennial duty, and the actual practice of Muslim jurists. Such an inquiry will disclose that ijtihad was not only exercised in reality, but that all groups and individuals who opposed it were finally excluded from Sunnism.

By chronologically analyzing the relevant literature on the subject from the fourth/tenth century onwards, it will become clear that (1) jurists who were capable of ijtihad existed at nearly all times; (2) ijtihad was used in developing positive law after the formation of the schools; (3) up to ca. 500 a.h. there was no mention whatsoever of the phrase ‘insidad bab al-ijtihad’ or of any expression that may have alluded to the notion of the closure; (4) the controversy about the closure of the gate and the extinction of mujtahids prevented jurists from reaching a consensus to that effect.

Let us now turn to examine ijtihad in legal theory and the conditions that this theory required for its practice.