THE CONTROVERSY ABOUT THE EXISTENCE OF MUJTAHIDS

Amidi (d. 632/1234) was the first usulist known to us to have devoted a special section to the treatment of the issue of the existence of mujtahids.¹²³ The polemical character of his account, which contains arguments and counter-arguments, is a clear indication of the established controversy that had left its mark on the form of the discussion.

JVas the Gate of Ijtihad Closed? 23 means by which the believers can pursue the true path of God whenever a new case comes up.

In countering this argument, Amidi approaches the problem from the same angle. First, he introduces five different prophetic reports (the number of reports is important because five outnumber the three adduced by Hanbalis) which enhance the view that in the course of time the Shari^ca will deteriorate and lawyers will become extinct. Against the ^caqli argument presented by Hanbalis, Amidi argues that ijtihad is not a fard kifaya when it is possible to rely on the laws of ancestors which have accumulated throughout centuries and which can be attained through the medium of an uninterrupted transmission. Amidi’s posi­tion then is to recognize the possibility of the extinction of mujtahids at a certain period of time. The Hanbalis and a group of Shafi^ci scholars were the only ones who denied even the theoretical possibility of the mujtahids’ extinction. In a briefer manner Ibn al-Hajib (d. 646/1248) repeats Amidi’s argument without addition.¹²⁵

The Hanbali dialogue quoted by Amidi differs entirely from that adduced by Ibn ^cAqil a century before. As noted above, Ibn ^cAqil uses no textual evidence to prove his point, neither does he use the rational argument produced by later Hanbalis. Had he known of any further argument he would have undoubtedly incorporated it into his controversy with his Hanafi adversary. The absence of hadith from Ibn ^cAqil’s response, coupled with the nature of his reasoning, is indicative of the embryonic character of this controversial issue at that time. Because this issue had just recently been raised, the time had not yet come to give it full attention or full elaboration, which, in part, means support by the Sunna and/or the Quran.

Over a century after the death of Amidi, the polemic as to whether or not an age can be devoid of mujtahids began to acquire wider dimensions, so much so that Amidi’s basic premise and exposition became only the nucleus of a con­siderably complicated argument. Of particular interest to this study are those aspects of the argument that contribute to our understanding of the problem as hitherto outlined. Subki (d. 771/1369) has nothing original to say but confirms the postulations of Amidi and Ibn al-Hajib and asserts that though the extinction of mujtahids is possible its actual occurrence has not been proven.¹²⁶ While Isnawi (d. 772/1370) essentially accepts Amidi’s theses, he disapproves of Bay- dawi’s (d. 685/1286) statement that “at this time mujtahids do not exist.’’ Isnawi argues that since ijma^c is concluded only by mujtahids, and since it would be impossible to live without ijma^c’s force, mujtahids must be extant at the present time at least.¹²⁷ Taftazani (d. 790/1388), a younger contemporary of Isnawi, contributes to the counter-argument of Amidi against the Hanbali proposition that ijtihad is an obligation imposed on the totality of Muslim scholars.

Ibn Amir al-Hajj (d. 879/1474) adopts the argument of Amidi and Taftazani and goes further to suggest that one of the three hadiths adduced by the Hanbalis to enhance their position is dubious. Moreover, he dismisses Subki’s statement that the nonexistence of mujtahids in an age has not actually been proven, by contending that al-Qaffal al-Shashi and Ghazali maintained that independent mujtahids are extinct.¹²⁹ It is worthwhile noting that Subki has not specified what rank of mujtahids he was contemplating, but it seems certain that he used the term ‘ijtihad’generically to denote the activity itself, irrespective of whether it is independent or limited. An independent mujtahid, as it is used here, means a master architect of jurisprudence who can set up his own school of law. This is the kind of mujtahid that Qaffal and Ghazali were supposed to believe had become extinct.¹³⁰ A limited mujtahid—sometimes called ‘mujtahid fi al- madhhab*—is a jurist who is well versed in one school’s legal system and can discover the law of any case, of any kind, at any time in all domains of law within the framework of that school. The third rank of jurists may be subdivided into several categories ranging from those who are fairly creative to those who are mere muqallids.¹³¹ We shall return to this later.

Since Ibn Amir was speculating upon the intentions of Subki, he seems to have failed in arguing against the contention that mujtahids were in existence up to the end of the eighth century at least. His calling upon Qaffal and Ghazali to testify on the extinction of mujtahids was equally ineffective because there was little new in maintaining that the phenomena of Abu Hanifa, Shafi^ci, and other eponyms were unique and unreproducible, since this was not the case at issue.

That Qaffal and Ghazali had only the eponyms of the law schools in mind when they declared the extinction of mujtahids, and that these eponyms are an unreproducible phenomenon once they have vanished are crystal-clear facts in Siddiqi’s (d. 971/1563) opinion. While he agrees that in theory mujtahids could disappear, he rejects the claim that they did in reality and his proof of this is shown in the list of jurists who were, beyond any doubt, great mujtahids.¹³⁴ Siddiqi’s important contention is that although a great variety of opinions had

Was the Gate of Ijtihad Closed? 25 been expressed on this matter, no one has yet argued that mujtahids or ijtihad must cease to exist.¹³⁵

A meticulous argument was presented by Ansari (d. 1119/1707) and his com­mentator, Ibn ^cAbd al-Shakur (d. 1225/1810). Ansari is careful not to confuse ranks of mujtahids because any indifference to the type of mujtahids being discussed may lead to an undesirable disputation. Keeping this in mind, Ansari accepts the likelihood of the mujtahids’ extinction. He is overwhelmingly con­vinced that the great jurists of the past, such as the four eponyms, are irreplace­able. If those who contend that mujtahids exist mean mujtahids of the caliber of Abu Hanifa, then mujtahids are nonexistent at present, Ansari and ^cAbd al- Shakur argued. But if less qualified mujtahids are meant, then their existence is quite possible.¹³⁶

One of the most important elements that largely contributed to the deepening of this controversy is the misuse or the misunderstanding of technical terms.

It is now relevant to examine the controversy about the existence of mujtahids while paying special attention to the question of whether or not an ijma^c had taken place on the closure of the gate. Without such an ijma^c, the closure and its credibility cannot be ascertained. It must be remembered that, in theory, ijma^c comes about when all mujtahids of an age agree, in one way or another, upon a certain matter. In reality, however, ijma^c takes place when Muslim jurists look backward to the generations that preceded them and find that a certain doctrine or opinion had gained acceptance. The criterion for acceptance was decided by the absence of a dissenting voice among the scholars regarding that doctrine or that opinion. But whatever the case may be, any expressed objection especially when supported by major scholars, will remove that opinion from the domain of ijma^c to the domain of ikhtilaf. This means that this opinion is usually incor­porated in the ikhtilaf literature (dealing with differences in legal matters). But in order to be established as an ikhtilaf matter, another tacit consensus is required. Otherwise, it becomes a matter having what may be termed ‘unsettled status’.¹⁴⁵

At the turn of the seventh/thirteenth century, the Shafi^ci jurist al-Rafi^ci (d. 623/1226) observed that “Muslims seem to agree that at present there are no mujtahids.”¹⁴⁶ What he exactly meant by ‘mujtahids’cannot be determined from the scanty information which reached us from him, but it is highly likely that he meant independent mujtahids who can found schools of law. It would be implau­sible to assume that Rafi^ci meant limited mujtahids because such an assumption contradicts the reality of his time. During Rafi^ci’s lifetime and afterwards, many jurists, including himself, were recognized by their contemporaries and successors as mujtahids within their own schools. Rafi^ci’s student, Isfara³ini, thought of his master as a mujtahid.¹⁴⁷ Furthermore, Rafi^ci was chosen by a host of scholars to be the mujaddid of the sixth/twelfth century.¹⁴⁸ Razi, Abu Shama, Ibn ^cAbd al- Salam, Ibn Daqiq al-^cId, Ibn al-Imam, and Nasafi, to name but a few, were admittedly renowned mujtahids in their time.¹⁴⁹

Rafi^ci’s aforementioned statement stunned Zarkashi (d. 795/1392), also a Shafi^ci, who wondered how Rafi^ci could maintain that an agreement on the mujtahids’ extinction had been reached when it is “well known that this is a controversial (khilafi) issue between us and the Hanbalis who were supported by some of our jurists.”¹⁵⁰ Ibn ^cAbd al-Salam, aware or not of Rafi^ci’s statement, remarked that Muslims “disagreed as regards the closure of the gate of ijtihad. They expressed different views to the effect of the closure... but these views are all void because if a new case comes up and no solution is found in the scripture, or when the case is a subject of khilaf among our forefathers, ijtihad is needed (to determine the ruling of the case).”¹⁵¹ These statements, coupled with the circumstances under which Rafi^ci wrote (especially the existence of many re­nowned mujtahids),¹⁵² are enough evidence to prove that he was speaking of limited mujtahids. It is certain, however, that by that time, the absence of inde­pendent mujtahids had become a fact subject to universal consensus. It is to this kind of consensus that Rafi^ci referred, but his statement seems to have been misinterpreted.

It must be noted that the great majority of the pronouncements on the issue of the closure did not venture to assume that there was an established consensus on the absence of mujtahids. The phrase that was often used by muqallids and supporters of taqlid was “Muslims seem to agree that mujtahids do not exist nowadays” (al-nasu kal-mujmi^QTna [sometimes kal-muttafiqind\ ^cala annahu la mujtahida al-yawma), The term “to agree” rarely appears without the preposition ka (as; like) which renders the agreement uncertain.¹⁵³ This particular usage is significant, since all matters subject to ijma^c were unquestionable, and had the alleged absence of mujtahids been subjected to a definite ijma^c, jurists would see to it that the preposition ka did not precede the active participle mujmi^Qun. The failure of these jurists to reach an ijma^c on the absence of mujtahids must be ascribed to the fact that a number of them were mujtahids themselves and practiced ijtihad without being in the least criticised.¹⁵⁴