In a recently published article I have tried to show that, contrary to the widespread notion, the ‘gate of ijtihad' was not closed, and that until the end of the fifth/eleventh century there was no reference in Islamic sources alluding to halting the practice of ijtihad. (x)

The modern scholar’s argument that the Muslim jurists of the fourth/tenth century raised the question of ijtihad’s gate and its closure because they felt that all points of law were thoroughly discussed and that a comprehensive legal system was finally erected, in effect amounts to claiming that the Muslims of this period viewed law as quantitatively limited and that the means for solving novel legal problems arising from yet new situations was not provided for in the Shari'a. (^ie) Ample evidence points to the fact that this argument finds no support whatsoever in the literature, and in fact runs against everything Muslims said and did.

Muslim jurists of the fourth/tenth and fifth/eleventh centuries had no doubts about the infinite number of cases that might appear and that require legal solutions. (^[280]) Though there

133 seems to have existed a tacit consensus on the fact that there was no place for another school of law, Muslims explicitely agreed that for all new cases there were shar'i rulings and that finding such rulings was a religious duty incumbent upon the qualified scholars of the community. (¹⁸)

The invalidity of the current argument, represented and summarized by Schacht, still leaves us with the following question: If ijtihad and mujtahids did continue to exist long after the fourth/tenth century, (^1#) why did Muslim scholars raise the subject of the gate of ijtihad and the existence—or nonexistence—of mujtahids? Before we attempt any answer, one important point must be clarified.

In fact, legal theory, which continued to be the concern of scholars until pre-modern times, provided the methodology by which a jurist could derive legal solutions for the nawazil, the unprecedented legal cases. See Abu Ishaq al-Shlrazi, al-Luma' fl U$ul al-Fiqh (Cairo: Matba’at al-Sa*Sda, 1908), p. 4; Ghazali, al-Mustasfa min *Ilmal-Usul, 2 vols. (Cairo: Bulaq, 1316-1317 H.), I, 5; idem, al-Mankhul min Ta'liqal al-U^ul, ed. M. H. HitU (Damascus, n,s., 1970), pp. 359, 484-485; Amidi, al-Ihkam, I, 6; Abu Ishaq al-Shatibi, al-MuwUfaqat, ed. M. ’Abd al-Hamld, 4 vols. (Cairo: al-Madani Press, 1969), I, 17; Muhammad b. ‘Ali al-ShawkSni, Irshad al-Fuhul ila Tahqlq al-tfaqq min 'Ilm al-Usul (Beirut: DSr al-Fikr, n.d.), p. 3.

(18) Amidi, al-Ihkam, III, 222; Sa'd al-Din al-Taftazani, Hashiya 'ala Mukhta^ar al-Munlaha, 2 vols. (Cairo: n.s., 1974), II, 308; ShawkSni, Irshad al-Fuhul, p. 253. ShSfi‘i, al-Risala, pp. 16fT. argues that God enjoined Muslims to practice ijlihad. See also Juwayni, al-Burhan, II, 743, 805.

(19) On the mujtahids who existed in the fourth/tenth century and afterwards see Hallaq, “Was the Gate of Ijtihad Closed?” pp.

(20) This is based on extensive reading in legal, semi-legal, biographical and theological sources from the period between ca. 400/1010-1250/1835. over the existence of mujtahids had by 600 A.H. become an integral part of all comprehensive works of legal theory, the expression the ‘closure of the gate of ijtihad’ did not gain currency until well after the tenth/sixteenth century. (^{[281] [282] [283] [284] [285] [286] [287]) An inquiry into the reasons that propelled Muslims to deliberate upon the continuity of ijtihad must therefore take cognizance of the fact that the discussion started in terms of the existence —or nonexistence— of mujtahids: the concept of the gate of ijtihad and its closure did not exist in the mind of Muslims in this early period.}

Since ijtihad persisted in theory and in practice and since mujtahids continued to exist in the fifth/eleventh century and long afterwards, (^aa) the reasons for the emergence of the question concerning the existence of mujtahids must be sought outside the boundaries of the legal system. A search for an answer in the fourth/tenth and fifth/eleventh century literature reveals that the origins of the problem lie in the theological doctrine of the end of religion and the comming of the Day of Judgement. The deteriorating political situation in the fourth/tenth and fifth/elenventh centuries, however, was most crucial in reinforcing the belief in this doctrine as well as in rendering the ulama and the mujtahids as the only remaining leaders of the community and the sole bearers of ‘ilm.

By the middle of the fifth/eleventh century it had become quite clear that a revival of the institution of caliphate was out of the question. The caliph was no more than a religious symbol whose authority and dominion over the Muslim subjects could hardly reach the peripheries of Baghdad. Instability of political regimes and political and social strife were pre­dominant.

135 Muslim community in general and the urban communities in particular lacked any sort of all-inclusive political or economic organization. Municipalities or coordinating agencies did not exist, and social cohesiveness was dependent upon a rather different type of institution: this was the religious institution headed by the ulama. In the fourth/tenth and especially in the fifth/eleventh century the ulama emerged as the sole uniting social force in the Muslim community. Their leader­ship was accepted by virtually all segments of society, and their influence on political and military rulers was often substantial. By the nature of the functions they occupied, they were undoub­tedly most instrumental in preserving the social fabric of Islam. They were the legal and religious advisers of rulers, administrators, chief and district judges, emmissaries, muftis, prayer-leaders, teachers, merchants, Quran-readers, librarians, preachers, market supervisors, etc. Writings from this period give the unmistakeable impression that the ulama were consi­dered the leading element in the community’s religious, social, economic and political life. Books became replete with prophetic reports, the content of which points to their weight and importance. A handful of these reports indicate that the ulama were deemed the heirs of the Prophet and the only trusted leaders of the umma. (*)

On the practical level all ulama were given their due weight. But on the theoretical one, which is of more relevance to the case under discussion, the ulama were of only limited importance without the mujtahids. While the former were the bearers of the divine law, the latter did not only partake in this respon­sibility but were also the only qualified persons to inform the community and its military rulers of what was lawful and what was not, particularly when an unprecedented situation arose. Going to war, levying extra-legal taxes, conveying titles on military rulers, and a multitude of other issues required a word of authority—the fatwa of the the mujtahid. In legal theory muftis and judges were required to be mujtahids. (^2B) Sunni

(24) Abu al-Layth al-Samarqandi, Tanbih al-Ghaftlln, 2 vols. (Jadda: Dar al-Shuruq, 1980), II, 463; Ghazali, Ihya', I, 10, 12-13, 14, 24; Baghdadi, al-Faqih wal-Mutafaqqih, I, 2, 32fT.; Ibn *Abd al-Karlm al-Shahrastani, Nihayat al-Iqdam ft 'Jim al-Kalam, ed. A. Guillaume (Baghdad: Maktabat al-Muthanna, 1964), p. 486.

(25) Shirazi, al-Luma\ pp. 85-86; Mawardi, Adab al-Qadi, I, 467; BaghdSdi, political theory insisted that the caliph, being in theory the supreme ruler in Islam, must be capable of exercising ijtihad. (²⁶). The ulama without ijtihad were thought to be mere muqallids (immitators) who could hardly be trusted with more than transmitting the doctrines of the forefathers to their contem­poraries. The task of bearing the Shari'a, with all the responsibility that this entailed, was entrusted to the mujta­hids. (²⁷)

The indispensability of mujtahids was equally evident in the institution of government. The monumental political treatises of Juwayni, Ghazali, Ibn Jama'a and Ibn Taymiyya demonstrate beyond any doubt that the mujtahids were reckoned the partners of the sultan in governing the Muslim commu­nity. (²⁸) Juwayni, for example, realizing the weight of jurists, determined that the institution of the caliphate was in effect a combination of power and 'i/m, represented, respectively, by sultans and mujtahids. (²·)

Being the trustees of the Muslim community and of its faith, the mujtahids of the fourth/tenth and fifth/eleventh centuries were considered the deliverers of Islam, who are alone qualified to carry on the Message after the death of the Prophet and the degeneration of the caliphate. But at the same time, Muslims had begun realizing more clearly that mujtahids of the caliber of Abu Hanifa (d. 150/767) and Shafi’i had ceased to exist and instead only mujtahids within the framework of the established schools of law continued to appear. This awareness, coupled with the Muslim belief that the leaders of the umma, beginning with the Prophet, his Companions, and later his khulafa⁹, were

al-Faqlh wal-Mutafaqqih, II, 156-158; Amidi, al-Ihkam, III, 254; Juwayni, al- Burhan, II, 1332.

(26) When the caliph was incapable of practicing ijtihad they insisted that one of his subordinates must fulfill this function. Juwayni, al-Burhdn, II, 1333, 1334; idem, Ghiyalh al-U mam, p. 275; Ghazali, Ihya', I, 61.

(27) Juwayni, Ghiyalh al-Umam, pp. 274-275, 282; Baghdadi, al-Faqlh wal- Mutafaqqih, I, 2; Ghazali, Ihya', I, 10-14.

(28) On this see E. J. Rosenthal, “The Role of the State in Islam: Theory and Medieval Practice,” Islam, 50, 1 (April 1973), 1-28; W. B. Hallaq, “Caliphs, Jurists and the Saljuqs in the Political Thought of Juwayni,” The Muslim World, Vol. 74, No. 1 (1984); Lambton, State and Government, pp. 115, 119.

(29) Hallaq, “Caliphs, Jurists, and the Saljuqs.”

137 destined to extinction, had led them to contemplate the possibility of the extinction of mujlahids, (^[289])

But this fatalism was preconceived within the context of the larger theological doctrine about the end of Islam and the Hour of resurrection. It is only in view of the Judgement Day doctrine that the whole issue of the extinction of mujlahids can be explained. (^[290]) Muslim theologians, who were often concurrently jurists and traditionists, believed that Islam, from its beginning until its end, would last for no more than a millennium. The duration of the world from the Creation until the Day of Judgement was determined to be seven­thousand years, in the last thousand years of which Islam would begin and end. (^[291]) This belief was based upon and justified by several prophetic traditions and Quranic verses. One of the well-known traditions makes the Prophet say: “The world is seven-thousand years and I (came) in the last thousand.“ (^[292]) Another tradition often adduced to support the view that the Day of Judgement is approaching has the Prophet say while joining his middle and index fingers: "My coming (is as close) to the Hour (Judgement Day) as these.” (³¹) It is noteworthy that the belief in the Day of Judgement was consistent with the popular belief that the age of the Prophet and his Companions represented the Golden Age of Islam and that the farther Muslims were from this age the worse the state of degeneration would be. The oft-quoted Prophetic report "the best century is my century and then the one which follows it and then the one which follows..." is expressive of this entrenched conviction. Understandably, Muslims viewed Islam at the time of the Prophet as the purest form of religion and it was thought that subsequent to that Islam was destined to lose its original impulse, particularly when it became evident to later Muslims that the political and social state of affairs as well as the moral and pietistic standards of their times were incompatible with those standards assumed to have prevailed at the age of the Prophet. And since the Day of Judgement was considered to be an inevitable event, it was only reasonable that Islam, the last in a series of religions, would have to degenerate sufficiently as to justify the happening of the expected Day.

In the fifth/eleventh century, it was believed that the coming of the Hour would fall sometime within the next five centu­ries. (^8S) The signs of the approaching of this Day were untirely reiterated by Muslims and, to be sure, a number of hadiths enumerating these signs were repeatedly cited. (··) One of these signs was the disappearance of religious knowledge, 'ilm. (⁸⁷) But 'Um could disappear only with the demise of

(34) Ibid., p. 39. The Arabic: “bu'ithtu wal-sa'alu kahalayni.”

(35) Juwayni, al-Burhan, II, 1348; Mftwardi, A*lam al-Nubuwwa, p. 50.

(36) In an extensive treatise, ’Abd al-*Aziz al-Maqdisi (seventh/thirteenth century?) collected all relevant hadiths and accounts about the coming of the Mahdi and the signs which will precede his coming. He drew heavily upon fourth/tenth and flfth/eleventh century sources. See his 'Iqd al-Durar fi Akhbar al-Munlatar, ed. A. M. Hilu (Cairo: Maktabat ’Alam al-Fikr, 1979), especially pp. 3-10, 43fT., 245-326. See also A. Rahbawi, al-Yaivm al-Akhir, ed. S. Saqqa (IJalab: Dfir al-BalSgha, 1973), pp. 57-75.

(37) Ibn ’Abd al-Barr, Jami* Bayan al·'Ilm, I, 180; Baghdadi, al-Faqih wal- Mutafaqqih, I, 37; Juwayni, Ghiyath al-Umam, p. 377; Muhammad b. Ibrfihim al-Tha*labi, Qisa? al-Anbiya' (Cairo: BQHiq, 1869), p. 8. Cf. the Quranic signs off the Hour, Watt, Bell's Introduction, p. 159. The illustrious Ibn Rashlq (d. 456 or 463/1063-4 or 1070-1) remarked that “... sciences and tools (of knowledge) have

139 the scholars: “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 judgements without having the necessary knowledge, thereby falling in error and leading others astray/' (³⁸) Thus, the extinction of mujtahids, the bearers of 'ifrn, was one of the signs of the Hour. This is why Juwayni, for example, discusses the possibility of the extinction of scholars in the context of the fading out of the Shari'a. (⁸⁹)

The connection between the possibility of the mujtahids⁹ extinction and the Judgement Day was still relevant, though to a lesser degree, to the juristic argumentations in the works of legal theory. The above quoted hadlth about the removal of knowledge constituted at a later time a major scriptual citation in justification and support of the Hanafi-Shafi'i argument which aimed at proving the likelihood of the extinction of mujtahids. (⁴⁰) The theological influence on this controversy becomes all the more evident when it is observed that to counter this view, the Hanbalis, the staunch advocates of the permanent existence of mujtahids, introduced other hadiths to the effect that mujtahids will continue to exist until the appearance of the Anti-Christ, who would signal the coming of the Judgement. (⁴¹)

It is relevant to emphasize here that the mujtahids did not have to disappear to make their existence a subject of discussion. The possibility of their extinction was debated in the context

become weak. No one denies that with the lapse of each day, time becomes shorter and that the world is approaching its end. There remains from knowledge only its last breath, hanging (by a thread dependent on divine) omnipotence and held by He who holds the heavens” (inna al-'ultima wal-alali Qa'ufal walaysa yadfa'u ahadun anna al-zamana kulla yawmin fr naqsin wa'anna al-dilnya 'ala akhiriha wdlam yabqa mina l-'ilmi ilia ramaquhu mu'allaqan bil-qudrati ma yamsikuhu illd alladhl yamsiku al-samd'a).. See Ibn Rashiq, al-'Umda fi Mahasin al-Shi'r, ed. M. ’Abd al-Hamfd, 2 vols. (Cairo: Matba’at al-Sa’ada, 1964). II, 238.

(38) See, e.g. Samarqandi, Tanblh al-Ghafilin, II, 467 Ghazali, Ihyd*_t I, 20; Baghdadi, al-Faqth wal-Mulafaqqih, I, 37, 42-43; Ibn ’Abd al-Barr, Jami' Bayan al-'Ilm, I, 180-181.

(39) Juwayni, al-Burhan_t II, 1348.

(40) Amidi, al-Ihkam, III, 254; Kamal Ibn al-Humam, al-Tahrlrfi U?ul al-Fiqh,

3 vols. (Cairo: Bulaq, 1317 H.), Ill, 339-340. ’

(41) Amidi, al-Ihkam, III, 253; Ibn al-Humam, al-Tahrlr_t III, 339-340; ShawkSni, Irshad, p. 253.

of the Day of Judgement and the signs which will indicate the comming of this Day. Such a speculative exposition was not unprecedented in Islam. The question of whether or not it was possible that caliphs become extinct (^[293]) is a perfect example of a theoretical argument that has no factual foundation in reality. It must be remembered that by the very beginning of the fourth/tenth century, when this argument became an established Muslim controversy, caliphs did not only exist but the institution of the caliphate was still relatively strong and the discussion about the possibility of their extinction was no more than mere theological speculation. This was precisely the case with the elaborations on the extinction of mujtahids.

Now, why should a theological matter of this nature find a way to legal theory? The answer may be found in the developmental history of usul al-fiqh] a theory which encompas­sed a system of thought expanding over several fields. The subject matter of this theory had grown primarily as a result of the development of positive law. But a portion of its infra-structure was also derived from theological issues pertinent to jurisprudence, for, after all, it was theology which lent law, in both of its theoretical and positive forms, the logical founda­tion necessary for its epistemological validity.

The belief in the ultimate extinction of mujtahids, though initially a theological concern, was most relevant to legal theory, for mujtahids were considered the vehicle of the legal system. Legal theory was not concerned with the pure theological arguments relative to the controversy about the extinction of mujtahids. Nor was it interested in the forms and substance of these arguments. Since ijtihad and the qualifications required for its practice were a basic ingredient in this theory, usul al-fiqh borrowed only the question of the possible extinction of mujtahids, in isolation of its thelogical backgound, and proceeded on its own to construct argumen­tations and answers relevant to its own mold.

The fact that the origins of the legal controversy about the existence of mujtahids and the continuity of ijtihad lie in theology rather than in law is quite significant. While on

141 the one hand it demonstrates the extent to which theological doctrines can influence and enrich legal theory, on the other it proves all the more that the gate of ijtihad could not have been closed. That the gate was discussed in terms of existence or non-existence of mujtahids confirms the theoretical nature of the problem, which was raised in isolation of the realities of medieval positive law.

ADDENDUM

p. 139, n. 41: the theological origins of the controversy are explicitly stated by Ibn AmTr al-Hajj who notes that the question of whether or not it is conceivable for an age to be devoid of a mujtahid is one of the strictly kalam issues which have infiltrated legal theory (‘mabahith al-husn wal-qubh... was Fla ild ma huwa min al- ‘aqa "id al-dTniyya fa-talhaqu biha fi kawniha min masa ’il al-kalam... ka-mas alat al-mujtahid yukhti’ wa-yusib wa-mas alat yajuz khuluww al-zaman ‘an mujtahid⁹). See his al-Taqrir wal- Tahbir, 3 vols. (Bulaq: al-Matba‘a al-Kubra al-Amlriyya, 1316/1898), I, 39, 11. 26-9. See also article III, p. 334, n. 57.