TaqlTd between epistemic and mimetic authority

According to Hallaq, while it also includes a moral and a religious element, the authority of the jurist is ‘mostly epistemic’.⁶⁵ TaqlTd, he observes, can range from the mere reproduction of the predecessors’ doctrines to bordering on activity associated with ijtihad.

Most instances, however, fall between these two extremes.⁶⁶ It seems clear, however, that the ‘epistemic authority’ of the jurists accrues to them primarily by virtue of their juristic acumen, not by any other qualities inhering in them as members of the legal tradition. Loyalty to and defence of school doctrine⁶⁷ as well as simple recognition of established ‘practice’⁶⁸ make their contributions. But it is primarily principles that lie at the core of taqlTd, at least in most instances, and it is his engagement with principles that lies at the heart of the jurist’s epistemic authority.⁶⁹ Of course, principles can neither speak for nor obviate themselves but must be extracted, articulated and deployed via reasoned deliberation, especially when the jurists from whom they are gleaned are dead and unable to confirm what is claimed in their name. To the extent, as such, that, ‘The authority being transmitted through taqlTd... is one that has at its center the articulation of principles’,⁷⁰ the jurist’s individually exercised reason remains at the heart of his ‘epistemic authority’.⁷¹ It is difficult, over the course of his depiction, to ignore or miss the sense in which Hallaq clearly seeks to place reason in the position of vindicating taqlTd. In effect, albeit in modified fashion, he appears to hark back to the very same point of departure evinced by Schacht. TaqlTd is now good for Hallaq for the same reason that ijtihad was good for Schacht: it is primarily grounded in reason.

But grounding taqlTd primarily in reason, not to mention autonomous reason, raises problems of its own.

If authority is taqlTd’s actual currency, then, as E. D. Watt observes, ‘authoritative relationships exist between unequals’.⁷² Persuasion, on the other hand — seemingly the very point of relying on rationally extracted principles or adducing reasoned arguments — implies equality: A is equal to B and thus recognizes B’s arguments only to the extent that they comport with reason, whose authority A essentially recognizes independent of any reliance on B. In other words, ‘to judge [an] utterance on the merits of its content is not to follow it as authoritative’.⁷³ For,

once we have worked through a proof or examined the evidence for ourselves, then not merely have we no further need of an authority as the reason for our belief; rather, it is no longer possible to accept it on the authority of someone else, for we have become authorities ourselves.⁷⁴

But if this is actually the case, it cannot be the principles or the reasons undergirding them that our source of authority is ultimately providing for us; for our own ability to assess these principles and reasons suggests that we are equal to our source in this regard. In order for our source to remain a source of authority, therefore, it must provide us with something that we cannot provide ourselves. And it is this ability to provide this unique and heteron- omous something that sustains the relationship of inequality between our authority-source and ourselves. Clearly, on such a relationship, the authority of the jurists cannot be ‘mostly epistemic’.

We see this very presumption at play in the self-perceptions of pre-modern Muslim jurists themselves. Al-Suyuti (d. 909/1505), for example, reports that the ‘truly knowledgeable’ (al-muhaqqiqun) among his fellow Shafi'i masters affirmed that

they did not embrace al-Shafi'i’s madhhab by way of taqlid (sarU ila madhhab al-Shafi‘i la taqlidan); rather, when they found his method of ijtihad and analogy to be the most correct, while they themselves also found no alternative to engaging in ijtihad, they followed his method (bal lamma wajadU tariqahu fi al-ijtihad wa al-qiyas asadd al-turuq wa lam yakun lahum budd min al-ijtihad salaku tariqah).⁷⁵

In other words, al-Shafi' i did not provide them with the method itself nor with the ability to examine proofs independently.

On the contrary, all of this they were capable of arriving at on their own. What al-Shafi'i provided, therefore, i.e. what they could only have gained from him, was clearly something other than his facility in principled juristic reasoning.

What exactly did these ‘mujtahid’ jurists derive from their affiliation with al-Shafi'i? Al- Shafi'i provided them with a basis of authority, a means of conferring credence upon their views and signalling to others the propriety of deferring to them. But why was al-Shafi'i, who had been dead for centuries, able to confer this kind of authority? There seems to be something ‘anthropological’ going on here about which I feel unqualified to speak.⁷⁶ In more general terms, however, it was precisely the fact that al-Shafi'i died in the embrace of the aura cast by what came to be viewed as ‘sacred history’, such that he could be seen as an extension of the group and era that preserved and defended the universe of values, proper assumptions, prejudices, points of departure and commitments, indeed the very Weltanschauung, set in motion by the legacy of the Prophet. It is not simply his acumen as a jurist that is operative here but his status as a reliable fragment of the Community’s collective memory/authority as heir to the Prophet’s interpretive infallibility. This might be cast in even bolder relief by the case ofAhmad b. Hanbal, who, by some early accounts, was not even considered a jurist. Yet, he would emerge as eponym and authoritative ground of one of the permanently recognized orthodox schools of law. Herein lies the key to uncovering and appreciating the mimetic element in the act of following these figures. As E. D. Watt notes, speaking in the context of ethics, ‘Perhaps goodness is more readily recognized in a good man than in a good ethical argument’.⁷⁷ Speaking in the context of Islamic law, we might say, ‘Perhaps the authority of a juristic pronouncement is more readily recognized coming from a “good” jurist than coming from a good juristic argument’.

The Pious Ancestors (Salaf, whom al-Shafi'i, Ibn Hanbal, the remaining imams and their presumed heirs came to represent, constitute the ‘good jurists’ of the Islamic legal tradition. They represent, in ways both actual and imagined, the cumulative wisdom, memory, experience and presumed sound judgement of the Community, not to mention its putative connection with the fount of authority in the Prophet himself. In this capacity, their arguments always contain something beyond the mere substance of their reasoned justifications. Thus, while the ‘mujtahids’ whom al-Suyuti cites as choosing to affiliate with al-Shafi'i may have been equal to the latter in terms of legal acumen, he was their unequal superior in terms of authority, a fact very much grounded in his position in the cumulative train of communal experience and presumed connection to the penumbra cast by the Prophet. For, in this capacity, he could validate (and add assurance to) their views in ways that they themselves could not. And this authority, this ability to validate (as we saw in the case of Ibn Hanbal), ultimately transcended his outstanding ability to reason juristically.⁷⁸

It was perhaps Schacht who prompted us to assume too complete and radical a dichotomy between ijtihad and taqlid, as if the two were mutually exclusive, zero-sum antagonists. I suspect that there were two possible sources for this attitude. The first was al-Shafii himself, the depths of whose writings Schacht had plumbed more deeply than anyone else to date. According to Ahmed El Shamsy, al-Shafii strenuously rejected the taqlid of the formative period, with a particular animus against the mimetic conformism represented by Malik’s reliance on Medinese practice ('amal). For al-Shafii, Malik’s approach was too opaque, too arbitrary and subjective. Certain Prophetic or Companion reports would be accepted as authoritative, while others were rejected or ignored, with the only criterion being their reception or not by the Community.

On this approach, ‘One could not trace the reasoning that led to a particular ruling; one could only follow it blindly’.⁷⁹ Al-Shafii insisted that such discretion be replaced with an objective standard of deliberation grounded in a formal methodology (which in its full-blown form would become usul al-fiqh). This would level the playing field between all jurists, since, ‘In the absence of total unanimity... an individual jurist’s interpretation of the canon [would be] formally equal to any alternative interpretation, even if the latter were accepted by all other Muslim jurists’.⁸⁰ In sum, according to El Shamsy, al-Shafii called for the abandonment of taqlid in preference of ijtihad, which he defined as, ‘direct and unmediated engagement with the canonized sources of the law’.⁸¹

In this early, formative period, however, the issue was not merely one of interpretation; the very identity of the ‘canonized sources’ themselves was still being debated, and taqlid effectively oscillated between following another’s interpretation and following another’s assessment of the validity of a source. (Did the practice of Medina, for example, represent a valid source or simply an interpretation of the Prophetic legacy?) In this regard, El Shamsy reports that, despite his rejection of taqlid, al-Shafii himself exercised it in relation to Ahmad b. Hanbal, ‘by accepting the latter’s judgments regarding the authenticity of hadith reports without examining the evidence’.⁸² But once the sources themselves had been ‘canonized’, the emphasis would obviously shift from the authority of the sources to the authority of one’s interpretation thereof.⁸³ Here, however, even Shafi i jurists, despite their master’s alleged prohibition of taqlid, increasingly came to rely on ‘precedent and collective authority as embodied in the works of the school founder and his successors, rather than by the independent exercise of ijtihad on the basis of the canonized sources’.⁸⁴

This takes us to the second likely influence on Schacht.

Because he identified ijtihad with ‘independent reasoning’, Schacht may have assumed that reason in Islamic law functioned (or should function) like reason in the modern West, i.e. as its own autonomous, selfauthenticating authority. On this understanding, taqlid could only be seen as a drag on ijtihad if not a direct contradiction of it. But reason could not function in this way in Islamic law; it could not authenticate itself independently, especially not against the collective authority of the historical Community or Salaf (again a diachronically evolving construct in terms of who actually constitutes it). On this understanding, taqlid might be more accurately seen not as a contradiction of ijtihad but as a necessary complement to it, a supplier of the kind of validation that reason alone could not (or could rarely) confer upon any legal interpretation. Ijtihad, in other words, could rarely function as an entirely independent enterprise but would almost always require the kind of validation lent to it by taqlid. In a real sense, therefore, most instances of purported ijtihad would almost invariably amount to a hybrid exercise of ‘ijtiqlid’.⁸⁵

We see an outstanding instance of this ‘ijtiqlid’ in none other than al-Suyuti, who perhaps more forcefully than any other jurist claimed the propriety of ijtihad. In al-Hdwi li-l-Fatdwi, al-Suyuti is asked a question about whether the fur of dead squirrels and other animals is rendered ritually pure by means of tanning. The questioner explicitly states that he or she is not asking about the going opinion in the Shafi i school but ‘about what is dictated by the scriptural proofs and their sound investigation by means of ijtihad’ ('amma yaqtadihi al-dalil wa-l-nazar min haythu al-ijtihdd).^,t6 The questioner goes on to insist that the answer be based strictly on ijtihad and reflect the view of one entitled to express his independent conclusions ('ala tafiqat al-ijtihdd wa-ashdb al-ikhtiydrd t).⁸⁷ Al-Suyuti’s response is rather lengthy, going on for several pages, and much of this consists of his individual engagement of the sources. But this is not devoid of the mention of past scholars from both outside and within the Shafi i school, the latter tendency appearing to increase as he moves towards his conclusion. And yet, despite this generous citation of past scholars, al-Suyuti concludes his fatwa with the following words: ‘This is what our investigation and ijtihad have led us to regarding this question’ (hddha ma adddna ilayhi al-nazar wa al-ijtihdd fi hadhihi al-mas’alah).⁸⁸ Clearly, even al-Suyuti saw no absolute contradiction between independent investigation of the sources and the reinforcement of one’s conclusions via the authority conferred by past jurists. More important, certainly to his mind, the authority of these past jurists went well beyond being ‘mostly epistemic’.

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Source: Abou El Fadl Khaled, Ahmad Ahmad Atif, Hassan Said Fares (Eds.). Routledge Handbook of Islamic Law. Routledge,2019. — 466 p.. 2019

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