A third thesis (and its critique)

My thesis on the relationship between ijtihad and taqlid began with my PhD dissertation on the Egyptian Maliki jurist, Shihab al-Din al-Qarafi (d. 684/1285), which I completed in 1991.²⁵ There I argued, inter alia, that:

1) while ijtihad never ceased to exist entirely, it gave way to a more pervasive ‘regime of taqlid’, which established itself sometime between the sixth/12th and seventh/13th centuries;

2) the reason for this development was not the disappearance ofjurists deemed capable of undertaking ijtihad nor a group decision that all essential questions had been finally set­tled; and

3) taqlid neither amounted to the absence of independent reasoning nor to the cessation of deft legal thought.²⁶

In 1996, I published a revised version of this dissertation under the title, Islamic Law and the State: The Constitutional Jurisprudence of Shihab al-Din al-Qarafi²⁷ In this work, I refined my thesis on ijtihad and taqlid, adducing a more explicitly legal explanation of their role and na­ture, as opposed to the more narrowly pragmatic explication I offered in my dissertation, ‘In Defense of Two-Tiered Orthodoxy’, where I argued that the legal community settled upon a regime of taqlid as a means of insulating the law from the abuses of government in collusion with overly pliant, ambitious or unscrupulous jurists, especially in their capacity as judges.²⁸ If these jurists were entirely free to interpret the law with no binding commitment to prec­edent or any other authority outside the individual jurist, government, with its free reign to appoint and dismiss judges at will, could make clean work of this open-ended cornucopia of legal views.²⁹ In Islamic Law and the State, however, I shifted my focus to authority as law’s foundational premise and most basic currency.

Just prior to the release of Islamic Law and the State in 1996, I published an article in a spe­cial edition of the journal Islamic Law and Society devoted to ijtihad and taqlid.³² In this article, I adumbrated my understanding of ijtihad and taqlid as laid out in Islamic Law and the State, reiterating that taqlid was fundamentally about authority, i.e. that what jurists borrowed from the past was not the substance of existing doctrine but the authority attached to the name or doctrine of an already established authority figure. In this capacity, I noted, again, that taqlid was not committed to ‘unthinking’ and was not inconsistent with the continued devel­opment of the law. I acknowledged that ijtihad continued in a limited capacity, but I invited readers to resist the tendency to inflate its presence or value, especially given its inability to back itself with requisite interpretive authority. In this context, I sided with Schacht on the ultimate ‘triumph’ of taqlid (though not on the closing of the gate of ijtihad) as the dominant approach to Islamic law after the sixth/12th—seventh/13th centuries, against what I took to be Hallaq’s insinuation of an unabated continuation of ijtihad.³³ I advised against the practice of searching for any signs of ijtihad and suggested that the ‘mujtahid fi al-madhhab’ be rec­ognized for what he is: a muqallid ³⁴ For the madhhab, I argued, functioned precisely as the repository of the kind of interpretive authority any ‘mujtahid’ would need to authenticate his legal declarations.³⁵

This special issue of Islamic Law and Society was guest-edited by Professor Hallaq.

IfJackson wishes to label Qarafi’s activity as taqlid, then he must acknowledge that taqlid was creative and innovative — in clear and obvious ways. But the Muslim legal tradition systematically refused to define taqlid in this manner, to put it in the simplest of terms. Jackson is free to adopt this label, but whatever name we choose to call it, a mule is a mule. Qarafi’s activity, as described and analyzed by Jackson, was creative, innovative and led to perceptible changes and adaptation in the law; and this manifestly is the con­clusion of Hallaq not Schacht.³⁷

Of course, that was precisely Jackson’s point all along: taqlid did not necessarily preempt ‘cre­ativity’ or ‘innovativeness’ (though one might ask why these, as opposed to ‘understanding’, judiciousness’ or ‘capturing the law’ should be so highly valued in a system of law, not to mention a religious law).³⁸

As such, even a closing of the gate of ijtihad need not spell the end of dexterous legal thought. This is partly why I saw no reason to refute Schacht’s thesis on the closing of the gate of ijtihad in the first place. For, ijtihad, as I understood it, was primarily about substance, while taqldd was about authority.

Two years later, in 1998, again in Islamic Law and Society, Hallaq reviewed my book, Islamic Law and the State, which had appeared later in 1996. While Islamic Law and the State included a bolder and more circumspect treatment of ijtihad and taqldd, the main thesis re­garding these institutions was identical to what I laid out in ‘Taqldd’. Specifically, authority was identified as the heart of the matter. Thus, for example, speaking of negative translations of taqldd, I wrote:

Such appellations tend not only to cast taqlld in a negative light but also to obscure the basic logic underlying the institution itself. For such translations assume the content of what is borrowed to be the most important element in the process, imputing, mean­while a certain timidity and anti-intellectualism to the very act of looking back...

In his review, however, Hallaq looked past all of this. Instead, his major focus was on what he took to be the implications of my agreeing with Schacht on the institutionalization of taqldd. Again, he reads me as agreeing with Schacht’s ‘pessimism’ regarding the possibility of dexter­ous thought in Islamic law as a consequence of my agreeing with him on the spread of taqldd.⁴³ In point of fact, however, I stated explicitly that Schacht was wrong to think that Muslim jurists deemed themselves incapable of independent interpretation,⁴⁴ that he was wrong to see a contradiction between taqldd and independent reasoning,⁴⁵ and that it was misleading to shoulder taqldd as an institution with primary responsibility for stagnation and decline in Islamic law.⁴⁶ But Hallaq’s obsession with the gate of ijtihad and his linking taqldd with the cessation of juristic skilfulness would not allow him to see any of this. Instead he writes, ‘Jackson fails to convince the reader that Qarafi’s creativity should be regarded as falling within the limits of taqldd ’.⁴⁷ And further, ‘I find it sadly ironic that Qarafi’s brilliant achieve­ment should be coerced into vindicating Schacht’s views about ijtihad when in fact it stands as an eloquent and easily demonstrable confirmation of my own’.⁴⁸ Once again, because Schacht could only see the cessation of ijtihad as resulting in stagnation, my agreeing with him on the spread of taqldd had to mean agreeing with him on the inevitability of ‘ankylose’. Meanwhile, what Hallaq sees as al-Qarafi’s creative activities could only confirm his thesis, because it was he and not Schacht who argued for the continuation of creative juristic activity. In all of this, the fundamental role I attribute to authority as the very raison d’etre of taqlid is summarily ignored. Once again, neither the word ‘authority’ nor the concept of authority appears any­where in Hallaq’s review, despite its clear and critical centrality to my entire thesis.

For Hallaq (at this stage in his scholarship at least) taqlid was clearly not simply a negative category; it was exclusively negative, with no redeeming qualities or creative capabilities at all. This is why he set out to negate its pervasiveness in the first place, by arguing against the closing of the gate of ijtihad. His basic intention, as he put it, was, ‘to revise the widely re­ceived notion that ‘slavish imitation’ controlled the legal system, and that ijtihad had become irretrievably defunct’.⁴⁹ In other words, only by proving that ijtihad had not become defunct could it be proved that creativity continued and that neither the Muslim legal system nor the Arab mind was controlled by ‘slavish imitation’. The notion of taqlid being fundamentally about authority and that in this capacity it could continue to sustain juristic skilfulness, dex­terity and even innovation, as I had argued all along, was summarily dismissed.

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