Two theses

The classic statement on ijtihad and taqlid was put forth some 50 years ago by Joseph Schacht in his groundbreaking work, An Introduction to Islamic Law:

By the beginning of the fourth century of the hijra (about A.D.

Schacht’s statement was not entirely free of ambiguity.¹⁸ What is clear, however, from the tone and substance of his account, is that, to his mind, the development he describes almost singularly explained Islamic law’s slide into decline. Over the course of his writings, Schacht went back and forth on this negative denouement, observing, for example, that,

Whatever the theory might say on ijtihad and taqlid, the activity of the later jurists, after the ‘closing of the door of independent reasoning,’ was no less creative, within the limits set to it by the nature of shari’a, than that of its predecessors.¹⁹

Elsewhere, however, he suggests that these creative energies were no match for the ‘ankylose’ (rigor mortis) that had set in alongside the immutable nature of Islamic law.²⁰ This would be joined by even more extreme statements to the effect that even ‘the mechanical method of reasoning by analogy...

Nowhere, perhaps, is this implication more evident than in Schacht’s choice of a transla­tion for the terms ijtihad and taqlid. Ijtihad was not ‘independent interpretation’, ‘unmediated derivation’ or ‘principled deduction’ — all equally plausible renderings; it was ‘independent reasoning’. While this may appear neutral on its face, ‘independent reasoning’ signalled pre­cisely the kinds of intellectual energies and aspirations implied by Kant’s, Locke’s, Mills’ and Berlin’s Enlightenment reason. It echoed the modern Western ideal that reason, deployed by solitary persons, was the superior (if not sole) basis of knowing, that it was or could be its own self-authenticating authority, and that it was progressive and independently dispositive in any argument. That Schacht’s rendering of ijtihad entailed such a value judgement is thrown into relief by his translation of taqlid. Taqlid, according to him, was not the ‘critical extension of sacred history’, ‘provisional deference to precedent’ or even ‘mediated interpretation’; it was simply ‘unquestioning acceptance’.²³ This connoted precisely the kind of ‘leaning excessively upon authority. upon tradition. upon. established values’ for which Western En­lightenment reason would brook no tolerance, clearly echoing the epistemological presup­positions that had now become native to the Western academy. In this context, once ijtihad became identified with reason — independent, autonomous reason — taqlid was doomed to become a juristic black sheep.

Meanwhile, the illocutionary force of Schacht’s valuation of ijtihad and taqlid transformed his thesis into a subtle, civilizational indictment. If ijtihad had expired as the result of a con­scious, trans-generational decision by Muslim jurists to uphold the propriety of ‘unquestion­ing acceptance’ for literally centuries, one almost had to question the workings of the Arab Muslim mind. Coupled with the fact that he was writing at a time when a number of Arab Muslim nations had just emerged from colonial rule, such intimations infused Schacht’s thesis with a degree of provocation. In response, no scholar would put forth a more challenging and influential counter-thesis than Professor Wael B. Hallaq. In a series of articles (and later books), beginning in the 1980s, Hallaq argued strenuously against the notion of any ‘closing of the gate of ijtihad’.²⁴ For our purposes, however, what is most relevant in Hallaq’s thesis is not his insistence that ijtihad never ceased but his substantive valuation of ijtihad itself (as well as taqlid) and the extent to which this was driven by the same basic understanding and valuation of reason (and mimesis) observed in Schacht. While Hallaq opposed Schacht on the actual closing of the gate of ijtihad, he essentially agreed with the latter in seeing ijtihad as a positive institution capable of promoting innovativeness and creative legal thinking, while viewing taqlid as a negative institution doomed to juristic stagnation and unthinking. This hampered his ability to see the extent to which my own thesis entailed a refutation of Schacht, in that it depicted taqlid as being perfectly consistent with juristic dexterity and pointed to what I termed ‘the regime of taqlid ’ as constituting a more rather than a less de­veloped stage of Islamic law. Later, Hallaq reversed course on this negative understanding of taqlid. But, as we shall see, this was done without ever vindicating his earlier hostility to­wards it or explaining why I was wrong in recognizing taqlid’s consistency with skilful legal thinking a full decade earlier.

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