The Ijtihad Controversy

Author(s): Shaista P. Ali-Karamali and Fiona Dunne

Source: Arab Law Quarterly, Vol. 9, No. 3 (1994), pp. 238-257
Published by: BRILL
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 THE IJTIHAD CONTROVERSY
ShaistaP. Ali-Karamali*and
Fiona Dunne*

I N T R OD U C T I ON

The theory of iitihadand the controversialdiscussionsregardingwhether,when,

and by whom, it should be exercisedhave been ragingfor centuries.This article
examinesthe controversyand attemptsto trace some of the trends and patterns
therein,particularlyfrom the late eighteenthcenturyto the presentday. The Elrst
part discusses the defimitionof idlihadand how codusion regardingthe exact
meaning of iitihad, as well as terms relatingto it, may have contributedto the
controversy.The secondpartexamineswhetlieror not the "gateof iitihadactually
closed that is, whetheriitihadwas everactuallyprohibitedfrombeing exercised.
This part is divided into three sections,which in turn discuss:(1) the writingsof
those scholarswho opinethatiitEhadwasneverprohibited;(2) the writingsof those
scholarswho opine that iitihadwas neverprohibited;and (3) the writingsof those
scholarswhoseopinionsfall somewherein betweenthe firsttwo extremes.Finally,
there is an attemptto glean trendsand patternsfrom the body of work examined
and to suggest some theorieswhich may apply to and possibly even explainthis
controversy.

THE DEFINITION OF IJTIHAD

Ijtihadis deEmedliterallyas "striving,exerting"and, in the jurisprudentialsense,

"the capacityfor makingdeductionsin mattersof law in casesto whichno express
text or rule alreadydeterminedby Ijma (consensus)is applicable''.lHowever, it
has also been describedas a "rethinking"2or, most commonly,as "independent
reasoning".3Rudolph Peters defines iitEhadas "exertingone's effort in order to

*Dr Ali-Karamalireceivedher bachelor'sdegreein EnglishliteraturefromStanfordUniversity,her

doctorof jurisprudencefromthe Universityof Californiaat Davis, andher masterof laws in Islarriic
Law fromthe Schoolof OrientalandAfricanStudiesat the Universityof London.She currentlyresides
in California.
**FionaDunne is a nanveof Irelandanda graduateof TrinityCollege.She is currentlypursuinga
mastersdegreeSom the Schoolof Orientaland AfricanStudiesat the Universityof London.
1 Rahim, Abdul, The Principlesof Muhammadan gurisprudenceAccordingto the Hanafi, Ataliki,
Shafi'i andHanbaliSchools(Madras,1911)(hereafterRShim),p. 16S9, 173.
2 Rahman,Fazlur,"Post-Formanve Developmentsin IsIam"in IslamicStudies,Karachi,1, 4 (1962)
(hereafterRahman,"Post-FormativeDevelopments"),p.l2.
3 See, e.g., Schacht,JosephAn Introduction
to IslamicLaw (1964)(hereafterSchacht),p.69.

238
 THE IJTIHAD CONTROVERSY 239

derive from the basis of the law an opinionconcerninga legal rule".4 The opposite
of iitihadis taqlid,which Peters defnes as "accepting an opinion concerning a legal
rule without knowledge of its bases".5 Although the slight differences in the
definitionsof iitihaddo not at first seem the
signiElcant, differences may have led to
confusion regarding the concept of iitihad and thus to the argument amongst
medieval Islamic scholarsregardingwhetherit should or should not be exercised.
This confusion theory is one of the hypothesesthat W. MontgomeryWatt puts
forth. Watt assertsthat iitihadfunctionsat differentlevels, namelyat: (1) a "basic"
level which deals with basicmattersthat distinguishthe differentmadhabs,or legal
schools of thought; and (2) a "parucular"level, which deals with specific matters
within each particularmadhab,or "school of law".6Watt states that althoughthe
"idea of closing the door" applies only to basic iitihad, many of the later
discussions,such as al-Taftazani'scommentaryon the creedof al-Nasafi,areabout
particulariitihad.7Watt concludesfrom these discussionsthat confusionsexisted
as to deEmitionsand that, therefore, some of the arguments in the Muslim
community regardingwhether iitihad was supposed to be closed were at "cross
purposes" or based on misunderstandings.8
Instead of decreasing with time, the degree of confusion regarding iitihad
increasedsteadily in legal literature.Literatureon iitihadpublishedsince the last
decade of the nineteenth centurydisplayeda similarplethoraof defmitions.The
Asiatic Society of Bengal deEmedijlihadin 1892 as "exertingone's effort in order
to derive from the basis of the law an opinion concerninga legal rule".9 But four
years later, in 1896, EdwardSell deEmediitihadas "the attainingto certaindegree
of authorityin searchinginto the principlesof jurisprudence".l°
In 1914, Sayl-al-din defined iitihad as "the total expenditureof effort in the
search for an opmion as to any legal rule''.ll In 1930, Dr MohammadIqbal
defined iitihad as follows: "[T]o exert with a view to form an independent
judgmenton a legal question".l2However,in 1936,MohammadAli defimediitihad
as the exercise of judgment.l3 In 1954, Kemal Faruki questioned the mufti,
MohammadShafi'i, on variousaspects of fiqh. In answeringquestionsregarding
fiqh, Shafi'i defimedijtihadas "disciplinedjudgmentof individualjurists".l4In the

4 Peters,Rudolph,"IjfihadandTaqlidin 18thand l9th CenturyIslam",Die WeltdesIslams,XX, 3-

4 (hereafterPeters),p. 135.
5 Id.
6 M.W. Watt, "The Closingof the Door of Ijoahad",1 OrientaliaHispanica(Lieden, 1974)(hereafter
Watt, "Ijtihad"),p.678.
7 Id.
8 Id.

9 Peters,supra,p.l35.
° Sell, EdwardTheFaith of Islam(London, 1896)(hereafterSell), p.32.
11Weiss, B, "Interpretaiionin IslamicLaw:The Theoryof Ijtihad",26 Amer.3t.Comp.Law, Vol.2
(Sgring 1978) (hereafterWeiss), p.207.
2 Iqbal, Mohamrnad,The Reconstruction of ReligiousThoughtin Islam (Lahore, 1930) (hereafter
Iqbal), p.208.
13 Ali, Mohammad,TheReligionof Islam(Lahore,1936),p.96.
}4 Faruki,Kemal, Ijmaand Ijtihad(Lahore,1954).
 ARA8 LAW QUARTERLY
240
1960s, Fazlur Raban deEtnediitihad as ''rethinking'',l5
while in 1964 Ahmed
Manzooruddinwrote of iitihad in the wider sense, interpreting
the term to
encompassthe entire area of social activity political,
economicand legal.l6 In
1967, Hasan referredto the early techrlicaldisputeover
the term iitEhad:"In the
early period [the term] was used in a narrowand more
specialisedsense than it
came to be used in the writingsof al-ShaE1'i''.l7 Later in the same article,Hasan
discussesthe geographicalvariationsin the applicationof
iitEhad:"m cases where
Malik uses the term ijrihad, the Iraqis used the
term hukumat' adl fair
arbitration)' X.18
Thus, the absenceof a commondefmitionof iitEhad wasobvious.Hallaq,writing
in the 1980s, maintainedthat the misunderstanding of technicaltermswas due to
the absence of a common technical directorto which
jurists could conform.l9
Despite all this, however,it is possibleto discerncertain
pointsfromthe historical
confusionwith respectto the constrVaction of a definition.Iqbal's 1930 definition
probably provides us with the best synthesis of all the
definitions we have
discussed thus far in which both the elements of exertion
and independent
judgmentare mentioned.It is noteworthythat definitional
lacunaeexist not just
with regardto the meaning of iitihad, but also with
respect to scope and with
respectto whois entitled to practiceiitihad.
Complexityof the deflnition varies, as well, with later
defimitionstendirlgto
becomesimpler.For example,in 1896 Sell referredto three
degreesof iitihadaxld
gavea lengthy exposition of who was entitled to
exerciseit, not all subsequent
commentators did so. Similarly,Iqbal in 1930and Ali in 1936described
degreesof iitihad,fromabsoluteiitihadexercisedby the the fimer
originalfour imamsto that
ofwhich the mdividualis capable.However,an article
writtenin 1913 in Muslim
Worldpurports to reiterate Sell's detailed 1896
defmition, when it actually
simplifiesit considerably.20Similarly,Gibb in 1932 subsumes
all acts of ijrihad
underone category.2lThis tendency to generalisethe
concept of iitihad is also
evidentin the works of other Orientalist contemporaries
of Gibb. Further
examplesare the 1934 and 1939 works of L. E. Brown
and Edwin Calvery,
respectively, both of which are discussedin the secondpart of this
articlebelow.
Theoreticalvariationsin the defmitionof iitihadconstitutepart
of the problem
ofanalysingthe conceptof the closureof the gateof
iitihad.
thegate of iitihadclosed becomesmore difficultwhen it Ascertainingwhether
is not clearexactlywhat
iitihad
is in the first place. This resultsfrom the failureof
scholarsover the past

15 Rahman, "Post-Formative Developments", p.12.

Ahmed Manzooruddin, Shura, Ijtihad and Ijma in
the Early State in UniversityStudies
(Karachi)
Ii (1964) (hereafter
Ahmed), p.46.
17 Hasan, Ahtnad, "Early Modes of
Ijiihnd: Ra'y, Qiyas, and Istihsan" in 6 IslamicStudies
p.48. (1967),
18 Id.

l9 See generally Hallaq, Wael B, "Was the Gate of

Ijtihad Closed?" 16 Int.3t.MiddleEast Studies,>
41
(1984) (hereafterHallaq).
20 See generally "Western Influences
on MoFummadan Law" in MuslimWorld,1913,
21 Gibb, H.A.R. Whither Islam?(London, 1932) (hereafterGibb, WhitherIslam.>) p.356.
 THE IJTIHAD CONTROVERSY 241

hundred years to produce an adequate or consensual definition of iitihad.For

example, although Gibb's contentionthat the gate of iitihadis closed never to be
opened again22is radicallydifferentfrom Iqbal'sstatingthat a fresh interpretation
of iFtihadprinciples is needed,23these divergent opinions are not necessarily
irreconcilableif each writerhas a differentconcept in mind when using the term
iFtihad".The next part of this article examines the impact of the deEmitional
variationson scholars'opinions on whetherthe gate of iitihadclosed.

WAS THERE A CLOSURE OF THE GATE OF IJTIHAD?

The materialdiscussingiitihadcan generallybe separatedinto three categories.In

the first categoryare writerswho are unequivocaland firm in their belief that the
gate of iFtihadclosed formallyand tightly. The second categoryis comprisedof a
few writers who assert that the gate of iFtihadnever closed. The third category
contains writers who fall between these two extremes and who seem to be
undecided as to whether the gate of iitihadclosed.

The Modernists
In this first category,the writingstend to accept the concept of the actualclosure
of the gate of iitihad.These writersrefer explicitly to the phrase, "closureof the
gate of iitihador "insidad babal-iitihaan',
as well as the actualaction.No argument
or debate surrounding the closure issue is mentioned. Concomitant with this
positive use of the phraseis the acceptanceof the idea that by iima, or consensus,
the Muslim scholarsdecided to close the door on iitihad.
An early writerof the first groupis Count Leon Ostrorog,who discussesiitihad
in his book, The AngoraReform.In this 1927 work, Ostrorogexalts the reform
takingplace in Turkey and speakspatronisinglyof the way in which development
of Islamic law was suppressed.Ostrorogdefnes iitihadas interpretationin the law,
and alleges that the closure of the gate of iitihad,which he defines as "the
slackeningand fmal disappearanceof original mental activity in the province of
constructive"MohammadanJurisprudence"occurredsometimein dchethirteenth
century.24Ostroroghas no doubtthathis closuredid occur, which he delineatesby
stating:
This [the principlethat doctrinesof the Doctors of Law, i.e., the foundersof the four main
schools, must be followed even if seeminglycontradictorywith the Qu'ranor the hadith,
and should be considered a case of nasthor interpretaiion]is final, and nothing could
express more clearly what is meant by the expression, famous in MohammadanEast,

22 Gibb,H.A.R.,ModernTrendsin Islam(1947) (hereafterModernTrends),p.13.

23See generallyIqbal,Mohammad,TheReconstruction of ReligiousThoughtin Islam(Lahore,1930).
24 Ostrorog,Count Leon, TheAngoraReform(1927) (hereafterOstrorog),p.31.
 242 ARAB LAT QUARTERLY

desbing the ultmate stage of Mohamrnadan

Jurisprudence:
Seddu Babi 'I-Ijtihad,
Closureof de Gateof Interpretaiion.25
Interestingly, Ostrorog discusses not only the closing of the "door of
interpretation",but also allots a metaphoricalparagraphto each of the closing
of the "doors"of allegoricalexegesis,humanreason,and religiouscriticism.26
The writers emergingafter Ostrorogseem to have adoptedOstrorog'sviews
regardingiitihadwith increasingconvictionand decreasingdebate.For example,
the proent OrientalistH.A.R. Gibb maybe viewedas one of the writersled by
Ostrorog. In the introductionof his 1932 book, WhitherIslam?,Gibb writes:
"Once these decisions [regardingtheology and law] were made, they were
regardedas unalterableand the gate of iitihadwas graduallynarroweddowrlto
minor points until, with the final settlementof these, it svasclosed altogether".27
Similarly,a meretwo yearslater,L.E. Brownespousedthe sameview as Gibb in
a 1934articleentitled,"The Developmentof Islam".In this article,Brownstates:
"It beganto be believedthat the four greatlawyersof Islamhad said the last word
and that there could be no agreementof the Muslim people contraryto the
decisionsof the four lawyers.So the doorsof progresswereclosedand Islamiclaw
becamefossilised".28
The same definitivereferenceto the closureof the door of iitEhadwas used by
Edwin Calveryin 1939 when he wrote, "The Muslim authoritieswe have seen
haveheld that the four sourcesof law anddoctrineareadequatefor all Islamfor all
time. They haveexpressedthis positionby sayingthe doorof iitikador the rightof
personaljudgmentis closed".29This statementis interesting,sincc as we shall
see- it tends not to be the Muslim authoritieswho assertthat the gateof iitihad is
closed, but ratherthe Westernauthoritieswho do so.
In his book,ModernTrendsin Islam,whichwas publishedin 1947,Gibb asserts
that orthodoxscholarslisnitediitEhadbecausethey "fearedindividualreinterpre-
tation".30He states that occasionallythere appearedsomeone who claimed the
rightof iitihad.But Gibb admitsto a paradoxin his own reasoning.First,he states
that a cla of iitihad would be worthless,unless it was supportedby iima, or
consensus.But thenhe admitsthatiitihadwouldhavebeenassertedagamstiimain
the first place otherwise,how could iitihadbe deElnedas mdependentreasoning?
It wouldbe simplyagreeingwith the consensus.Thus, Gibb'sreasoningregarding
tzeaa1S unconvPmcmg.
.. .. . . . .

Gibb himself downplaysthese claimsof iitEhadby statingthat they were given

onlypariialsupportand even thatonly whenthey rejectediJmain orderto "return
to the practiceof the prnmitivecommunity",not to "modernisethe doctrinesof
Islam''.3lAside frombeing a blanketvaluejudgmenton whatexactlyconstitutesa
25 Id-, p.29.
26 Id, 2S27-
27 Gibb, WhitherIslam?,p.67.
28 Brown,L.E., "The Developmentof Islam"in MuslimWorld,1934,p.l74.
29 Glvery, Edwin,"The FundamentalStructureof Islam"in MuslimWorld,1939,
p.376.
30 See Gibb, ModernTrends,p. l3
 THE IJTIHAD CONTROVERSY 243

"pritive" versus "moderncommunity",iis statementis untenablebecause it

implies that iIlterpretationwas applied,if at all) with extremerigidity. If ochiswere
true, how could differencesin doctrinebe tolerated,especiallyto the point of four
differentmadhabs each regardingthe doctrinesof the oier madhabs as legitimate
and equally valid? Gibb never overcomesthis diffculty.
Fifteen years later in his work Islam:an historicalsurvey,Gibb becomes, if
anything, more strident in his approachto iitihad.He writes that ffie:
. . . greatmajorityof Muslim doctorsheld that the "gateof ijtihad
wasshut once and for all,
arld that no scholar, however eminent, could henceforthqualify as a muitahid [onewho
practicesidtihaSJ... Islamic law has remainedin a petrifiedstate ever since the "gate of
ijtihadwas closed in the third century[the tenth centuryof the commonera] . . .X.32

Any paradoxesor doubts dat Gibb may have previouslyhad are ignored)and he
has become certainthat the gate of iitihad actuallyclosed.
This strident attitude towardclosure appearsincreasinglyfrequentlyin works
written during the middle of this century. For example,Joseph Schacht is ofien
quoted as the authorityon iis subject.Schachtstatesfrom the tilird to ie eighth
centuries "the idea began to gain ground that only the great scholarsof de past
who could not be equalled, and not the epigones, had the right to independent
reasoning".33 Schacht maintainsthat at about ie year 900 C.E.,
... the point had been reached when the scholars of all schools felt that all essential
questions had been thoroughly discussed and finally settled) and a consensus graduaIly
establisheditself to the effect that fromthat time onwardsno one might be deemedto have
the necessaryqualificationsfor independentreasoningin law . . . This "closingof the doorof
litihad,as it was called, amountedto the demandfor taklid,a term which had onginally
denotedthe kind of referenceto Compariionsof the Prophetthat had been customaryin the
ancient schools of law, and which now came to mean the unquestioning acceptance of che
doct:rinesof establishedschools and authorities.34
Schachtdivergesfor a moment,almostacknowledginga paradox)when he states
later dat "[w]hateverthe theory might say on iitihadarldtaklid,the activity of
later scholars,after ie closing of the door of ijtihad,was no less creativethan that
of their predecessors".This statementindicatesat Schacht is reaIlyawaredchat
the closing of the door of iitihadwas really only a result of theory and was never
really implemented in practice. But then Schacht concludes his chapter by
revertingto his original course of thought:
It willhavebecomeclearfromthe precedingparagraphs thatIslamiclaw,which1miilche
early Abbasid period had been adaptable and growing, from then onwards became
increasinglyrigid and set in its finalmould.This esseniialrigidityof Islamiclaw helpedit to
maintainits stabilityover the centurieswhich saw the decay of the politicalinsiituiionsof

31 Id.
32 Gibb, H.A.}?., Islam: An HistoricalSurvey(1962) (formerlyMohammadanism)
(hereafterGibb,
Islam),pp.66, 71.
33 Schacht,p.70.
34 Id ) p-7>71*
244 ARAB LAW QUARTERLY

Islam .... Takenas a whole, Islac lawreflectsandfits the socialandeconorniccondiiions

of the early Abbasid period, but has grown more and more out of touch with later
developmentsof state and society.35
In so stating, Schachthas come full circle, especiallywhen it is recalledthat he
beganby stating, "the doctrinethat derliedthe furtherpossibilityof 'independent
reasorling'sanctionedofficiallya stateof things which had come to prevailin fact
[emphasis added]".36This statement seems to contradictthe later statement
quotedabove,which impliesthatthe closureof the doorof iitihad occurredonly in
theory.
Many scholars after Schacht seem to unthinkinglyadopt Schacht's view of
iitihad. For exampIe,Khadduri,writing in the tenth century,assertedthat any
attempt to deviate from the teachings of the four schools of Islarniclaw was
considered an innovation and therefore denounced.37
As a result,iitihAd was graduallyabandonedin favourof taqlid .... At f¢st taqlid reflecteda
tendencyto reducede differencesamongjunsts and lt the numberof schools,but the
growingintoleranceof the Muslimsto legalreasoningrenderedtaqlidarldobsucle to legal
development.Thus the door of ijtihadwas shut and taalidbecarnethe dominaiingrule".38

But Khadduridoes not explorethe consequencesof his reasoning.He states that

innovationwas denouncedand that Muslims were intolerantof legal reasoning.
But a mere paragraphbeforethe above-quotedone, he statesthat Muslimstook a
"tolerant attitude" toward disagreementamong the jurists and "regardedthe
variousopinionsof jurists. . . as variousroutes,all leadingto the truth".39So why
the change from tolerantawitudeto intolerant?No explanationis given for the
radicalshiR in attitudeirsthe Muslim community.Khaddurisimply takes it for
grantedthat the shift occurredand that the door of iitihad was closed as a result.
Othermodernwritersalso neglectto discussthe debatesurroundingor even the
reasons behind the fabled closirlgof the door of iitEhad. For example, J.N.D.
Anderson simply states that "it was commonlyacceptedthat the door of iitEhad
had becomeclosed,and that all laterjuristsweremeremuqallidswho had the duty
of accepting the conclusions reached by previous generationsof scholars as
authoritative;that is, the duty of taqlid".40 Commonlyacceptedby whom? By
using the passiveform for his statement,Andersonsidestepsany need for further
investigationinto the issue of iitihad.
Similarly,Tritton writes, "It is assumedthat the door of iitEhadis closed and
lawyerscan only developthe principleslaid downby the foundersof the rites.The
earlygerlerationsof Muslimswerethe best and it will alwaysbe well with men so

5 Id-)p.75.
36 Id-, p 69-
37 Khadduri, M., "From Religious to National Law" in Thompson & Reischauer (eds.),
Modennzationof the Arab Torld (1966),p.41.

39Id.
40Anderson,J.N.D,. Law Reformin theMuslimWorld(1976),p.7.
 THE IJTIHAD CONTROVERSY 245

long as they take knowledge from their predecessors''.4l Tritton abdicates

responsibilityby using, like Anderson,the impersonal"it is assumed".Tritton's
statementis unequivocalregardingthe closureof the door of iFtihad, but his very
next sentence seems to contradictthis unequivocalstatement:"Following(ittiba")
the opinion of anotherwhen it can be shownto be rightis good but blind imitation
(laqlid)is wrong; in religion the former is right and the latter forbidden".42If
taqlid is wrong, why did it replaceiitihad?
It could be that the taqlid that Tritton is
speakingof here is not the same conceptthat Schachtspoke of above if it were,
then how could taqlid be regardedas more favourablethan iFtihadS? Again this
concept is not one which Tritton examinesin depth.
Liebesny, though writing earlierthan Tritton, is no less unequivocal.He states
the following:
[T]he great creativeperiod of Islamic law came to a close with the formationof the four
orthodox schools, and according to orthodox doctrine the "gate of interpretation"or
"independentreasoning"(babal-iitiha)was officially closed in the ninth century A.D.
(fourth century A.H.). The "closing of the gate" was not recognisedby Shiah doctrine,
which regardsindependentreasoningstill as permissible.However, Sunni jurists had to
confine themselves after this event to cononentarieson the classical works and to the
decisionof individualcaseson the basisof the Koran,the sunna,andthe authoritaiiveworks
of the schools to which they belonged,though so-calledfatuas.43
Again, Liebesny does not specify who exactly "officially closed" the gate of
iFtihad-it is assumed, taken for granted, and therefore entails no need for
controversialexplanations.And it is an importantissue to be so ignored{)ne of
the problems with the entire idea of the gate of iitihad closing is the unlikelihood
that all Muslim scholarsin all partsof the worldwereable to sit down togetherand
actuallyagree upon whether to ban independentthinking.
In keeping with the trend of simplification,N.J. Coulson,in his 1964Historyof
IslamicLaw also seems certain as to the closure of the gate of iFtihad.Coulson
writes that iima, or consensus, was infallible, once formed.44As iima became
increasingly developed, to contradict it was heresy, and therefore iitihadwas
phasedout. Finally, Coulson states, iitihaddisappearedaltogeier when "Muslim
jurisprudenceof the earlytenth centuryformallyrecognisedthat its creativeforce
was spent and exhausted in the doctrine known as "the closmg of the door of
iitEhad." Coulson puts the date of this event in the early tenth century.
Fazlur Rahmandiscusses ijtihad briefly in more than one work, but he adopts
Schacht'sview in his book, Islam. R^marl states:
Even in orderto establishHadith,Ijmawas needed.... Althoughthe Hadithmaterialswere
once more reinterpretedto obtain new legal norllls throughqiyas,fbis largelyremaineda
scholasticactivity. Shornof its funciionas leadingto Ijma,it [iitihador qiyas]graduallylost

41 Tritton,A. S., Materialson MuslimEducationin theMiddleAges(London,1957),p.l63.

42 Id.
43Liebesny, Herbert J., "Religious Law and Westernization in the Moslem Near East", 2 Amer. ^.
Comp.Law(1953), p.495.
44 Coulson, N J.
246 ARAB LAW QUARTERLY

vitalityuntl, whenat the end of the thirdlth andbeginningof the fourth/tenthcenturies,

both de dogmaand the lawhad takena defuiiteshape,the Ijmaarrivedat by thattime was
declaredfinal and the door of iitihadwas closed. In other words, once Hadilh had been
establishedby Ijma,it ousted Ijmaby its very logic.45
Ahmed Hasan has anotherexplanationfor the closureof the door, but he does
not seem to be in any doubt as to the closure itself. In his 1967 article, Hasan
mentionsthe closingof ie doorof iitihad on morethanone occasion.He refersto
Dr S. M. Yusufs reasonfor the closure of the door of iitihad, namely that the
corpusof Islamiclaw had developedto the extentthat it was capableof catermgto
all needs of the time.46Hasanhimselfarguesthat "themorera'ywas discardedand
the scope of iitihadwas narrowed,the morethe conceptof nass[divinerevelation]
dominatedand was extended.Emphasison nassclosedthe door to the use of ra'y
in law 47
Two more writersin this group worth mentioningare the following:Firstly,
Albert Hourani uses the term "closure of the gate of ijtihad" consistently
throughout his book, Arabic Thought in the Liberal Age. He paraphrasesthe
writingof al-Jisr,who acceptedthe "traditional"view of the closureof the doorof
iitihad after the first three cerlturiesof Islam.48Secondly, K.A. Fariq writes in
1957 that the "brakeswere appliedto iitihad afterthe third centuryof Islam as a
reactionto the Mihna (the Inquisition),duringwhich the people of Baghdadsaw
the disastrouseffects of "independentreason"in the guise of Mu'tazila.49
Finally, one very early writer is worth mentioningbecausehe was writing in
India relativelyearly he publishedhis workin 1922.MaulaviSaiyidAmirAli, in
his book, The Spirit of Islam, speaksin his chapterentitled"The Statusof Women
in Islam"of how "it must be rememberedthat the elasticityof laws is the greatest
test of their beneficenceand usefullless''.50He continues:
"The blightthathas fallenon the Moslemnationsis due to the patrisiicdoctne whichhas
prohibitedthe exerciseof individualjudgment(Ijtiha@).... Then once the freedomfrom
the enthralmentof old ideas is achieved,it will be easy for the juristsof each pariicular
Moslem State to abolish,by an authoritaiivedictum,polygamywithirlthat State''.5l

Amir Ali's purpose here is not to discuss iitihad. Instead, he uses ijrEhad
tangentiallyto his mainargument,whichis thatpolygamyshouldbe abolishedand
flexibility in the law is important.He uses the presumedprohibitionon the
exercise of iitihad as a scapegoatfor the neglect of Islamic jurists to abolish
polygamy. Therefore, he has an incentive to portray the ban on iitihad as
absoluthe is, after all, blaming it for polygamyand inflexibilityin the law.

45 an, FaKur,Islam(1966)(hereafteran, Is), p.87.

46 Hasan,Ahmed,"ModernTrendsin Ijma"in IslamicStud. 12 (1973)(hereafter, Hasan,"Modem
Trends"),p.137.
Id., p.54.
48 Hourani,Albert,Arahc Thought in theLiberalAge (London,1962)(hereafter
Hourani),p.223.
49 Fariq,K.A., "Evolutionof Law in Islam",Iqbal6i (1957),p.55, 65.
50 AmirAli, MaulaviSaiyid, TheSpirit of Islam(London,1922),pp.23>31.
 THE IJTIHAD CONTROVERSY 247

However, the fact that he does seem to assumethe prohibitionon the exerciseof
iFtihadis perhapssignificant,since he was writing at a time during which most of
the other authors on ie subject were not as clear and convinced of this
prohibition.This is generallytrue especiallyof the non-Europeanwriters.52Even
so, however, it is noteworthythat he does not use the phraseitself, "closureof the
gate of iFtEhad".

Scholars Rejecting the Closure of Ijtihad

In this category,we have writerslike Hallaq in the 1980s and Iqbal in the 1930s,
who referto the concept of closureof the gate of iFtihadbut who deny both closure
and narrowingof de gates of iitihadand whose argumentsare based on historical
examples of practical iitihad being continually exercised. The most significant
article is by W.B. Hallaq, in which he sets forth numerousargumentsas to why
this view is untenable53
First, Hallaq shows that iitihad was an integral part of Islamic legal theory
because it sCconstituted the only means by which jurists were able to reach the
judicial judgments decreed by God".54Ijtihad was regulated by allowing only
those with certain legal knowledge to practice it, but, Hallaq asserts, such
requirementswere relativelyeasy to fulfil and "facilitatedraffierthanhinderedthe
activity of iitihad".55
Hallaq goes furtherto state that not only was iXtihadfavouredby Sunni jurists,
but those jurists and schools of thought which were opposed to the exercise of
iJtihadwere ostracisedfrom Sunni jurisprudenceand, indeed, from Sunnism as a
whole.56The example Hallaq gives is that of the madhabof Dawud al-Zahiri.
Apparently,followers of this school rejectedqiyas(or analogy)even when it was
based solely on scripture.57The Zahiri school was part of the larger group of
Traditionalists who "were primarily concerned with the study of transmitted
sourcesand their literalinterpretation,while denyinghumanreasonany right to be
exercisedin iFtihador in the process of legal reasoning".58The Zahiri school was
eventuallyexcludedfrom acceptedSunni jurisprudence,andHallaqmaintainsthat
the reason for this exclusion was the Zahiris'refilsalto accept iitihad.59
Secondly,Hallaqassertsthat iitihadwas a religiousduty requiredof all qualified
jurists; why would the jurists have made a conscious decision to abandon their
religiousduty?60In supportof his thesis, Hallaqsets forth the followingadditional
four arguments:

52 This asseriion is discussed in detail in Section IVt.

53 See generally, Hallaq, supra.
54 Id. p.4.
55 Id.)
56 Id.
5 Id-, p 8*
58 Id.
5g Id.
60 Id, p.5.
 ARAB LAW QUARTERLY
248
(1) Juristswho were capableof iitihadexistedat nearly
all times;
(2) Ijtihadwas used in developingpositivelaw afterthe
formationof the schools;
(3) Up to ca. 500 AH there was no mentionwhatsoever
of the phrase"insidadbabal-
iitihaa"'or of any expressionthat mayhavealludedto the
notionof the closure;and
(4) The controversyabout the closure of the gate and
the extinction of muitahids
preventedjunsts from reac}linga consensusto that effect.
Finally, Hallaq states that iitihad may:
. . . ceaseonly when muilahidseitherdeclineto perform
it or when they becomeexonct . . .
The dying out or the absenceof well-learnedjuriststhen
can be the only reasonfor the
closureof the gate of iitihad.... Thus, whetherthe gatehas
alwaysbeen open or had at one
pointof time been closedis virtuallydeterminedby thesetwo
elements:(1) the existenceor
exiinctionof maitahids, and (2) the jsts' consensusthat the gateof iitihad,for
of exonciion was, or was not, closed".62 the reason

The controversy regarding iitihad began then,

according to Hallaq, with an
argumentaboutwhethera maitahid must be in existenceat all
times, an argument
which did not occur until the begig of the sixth/twelfth century.63The
Hanbalisinsistedthata maitahid must be in existenceat all
times. Since a muitahid
isone who practicesijtihad, it follows that iitihad must
be in existence, as well.
However,consensuson this point was neverreachedbecause:
(1) Muitahidsexisted until the tenth/sixteenthcentury
and lateras well, althoughnot
with as much frequency;
(2) The call for maitahidscontinuedafterthe
tenth/sixteenthcentury;
(3) A maitahidwas chosenat the turn of eachcenturyin
the Muslim community;and
(4) The Hanbalis,supportedby some influentialShafi'is,
neveragreedthat a maftahid
could not exist.64
Hallaq's article was published m 1984, but at least one
much earlier
writer shares
hisview, as well. In 1911, Abdul Rahimpublisheda
workin which he discussed
iitihad.
The first interestingpoint to note is ochat
he never mentionsthe "gateof
iitihad"much less the closing of it, despite his lengthy discussion
on iitihad.
Indeed, Abdul Rahimphrasesthe problemsomewhatdifferently
from Hallaq.He
states:
Thereally importantquestion is, is there anythingin the
law or in the Sunni doctrines
whichprecludesthe recognitionof any jurists(Muitahids))otherthan
the ancientdoctors.
Theanswerto dat mustbe decidedlyin the negative.The Hanbalis
go furier andhold that
there
can be no age in which there should not be a Muilahid,
though the other Sunni
Schools
do not deny such a possibility. . . Thereareno doubtsome
age men who thinkthatthe
of independentjuristicthoughthas cometo an end, and
someseemto havegone so faras
to
hold that there can be no furtherexpositionand
developmentof the doctrineseven of a
particular
school. If the age of Ijtihadhad come to an end with the
four imams,their
Id.,p.4.
Id., p.21.
63 Id.

Id.,pp.2S33.
 THE IJTIHAD CONTROVERSY 249

disciples,and those that ediately followedthem, one would have expectedto find some
mentionof such an importantdoctnne in the bookson Usul, which is the sciencethat deals,
as we know, with the sourcesof law.65
Abdul Rahin has several reasonsfor his view that a majtahid may exist in the
modern-or, indeed, any age. First, Rahimnotes that the qualificationsfor being
a maftahidare moderateand not difficultto attain.Second, he assertsthat the law
regardingiima(consensus)contemplatesthe possibilityof therebeing a muitahid in
every age, as is evidenced by the Qu'ranic text governing juristic deductions:
"Then ask those who have knowledge,if you yourselvesdo not know".66Third,
Rahimopines that a doctrineeffectivelylimitingor eliminatingiimaandiitihad(in
his opinion, the two most importantsourcesof law) would be in conflictwith basic
principles of Sunni jurisprudence, namely the principle that "all juristic
deductions are uncertainand discretlonary...X.67 Abdul Rah goes on to state
that "it would practicallyinvolve the position that the individualopmions of the
ancient jurists, supposing we are able to ascertain what they are, cannot be
dissented from and must be followed like absolute and certain laws".68 He
concludes, "The fact is that the theory of Taqlidhas a historicalratherthan only
legal significance''.69
Abdul Rahim's view seems to be that not only is the presence of a maftahid a
possible state of circumstances,it is a preferable,perhapseven necessarystate of
circumstances.For example,he assertsthat each of the fourmadhabs have ample
room for expansion and development of the law.70He further advocates the
developmentof the law in moderntimes and statesthat even m the time of the four
founders of the madhabs,the question of:
... difference of opinion among the masters regardedas a matter for discussion and
controversyand it was not supposedthat, becausea certainview had foundvogue arnongthe
principalexponentsof a particularSchool, it was on that accountbinding . . . in preference
to any other view which had the supportof some other Sunni School. It was not uniil very
moderntimes that an attemptwas made by meansof the doctnne of Taslidto confinethe
Court and the juriststo one of the four Schools of law from the others''.7l
This assertion, appearing in both Hallaq's and Abdlll Rahim's works, that
iXtEhad
was alwayspracticed,and is cuxTentlypracticed,surfacesin other scholarly
works, as well. Direct referenceto the active use of iitihadand non-closure are
observablein the 1920s. For example,in an articleentitled"Islamand the Modern
World", Khuwa Bukhashasks, "Couldthe numeroussects have arisenin Islam if
Islam had strangledthought, crushedfree thinking?... Basing themselveson an

65 Rbim, MuhammadaninspHence, p.173.

6 Id, p.174.
Id., p.l75.
68 Id.
6g Id.
7o Id.
Id., p.178.
250 ARAB LAW QUARTERLY

independentinterpretationof the Quran,eminent Muslim

scholarsare making
strenuouseffortsto liberateIslam from the fettersof
authority".72
In 1930, MohammadIqbal arguednot just that iitihad
was an active principle,
"theprincipleof movementandthe structureof Islam",73
but alsothatan iimawas
never reachedby the four imams.Iqbal states:"Did the
foundersof our schools
ever claim finIlality for the reasoningsand interpretations[?]-never".74
Iqbal discussesiitihadas an active conceptand uses as In fact,
examples(1) the fact that
Ibn Taiiyya and de sixteenthcenturySuyuticlaimedthe
privilegeof iitihadarld
(2) che realityof currentuse of iitihadin modernday
(1930s)Turkey, "wherethe
powerof iitihad[was]manifestedin recentthoughtand
activityin that country".75
From these examples,Iqbal concludes,"The closingof the
door of iitEhad is pure
fiction suggestedpartlyby the crystallisationof legal thought
in Islam and partly
by intellectuallaziness".76Iqbal also cites Sarkashi,a
tenth-centuryscholar,as
writing,"If the upholdersof this fictionmean that the
previouswritershad more
facilities[to exerciseiitihad]while the laterwritershad more
way,it is a nonsense".77 difficultiesin their
Hourani's 1962 work (partiallydiscussedabove) also contains
made to the non-closure of the gate of iitihad.First, two references
Hourani translatesal-
Afghani'sstatementsas depicted in al-Makhzumi'sliterature
on al-Afghanias
follows."The doorof iitihadis not closedand it is a dutyas
well as a rightfor men
to apply the principle".78Secondly, Hourani
translatesMohammadAbduh's
remarks,originally in Arabic, as presented in J. Jomier's
book entitled Le
Commentaire Coranique du Mana, as follows: "IndividualiFtihadis not only
permitted,it is essential"79 although only certain muitahids can perform it.80
Furthermore, Hourani translatesAbduh as havirlgstated, "A sort of iima
growup in time [on a certainissue], but it is never does
infallibleand cannotclose the
doorof iFtihad".8' This latter statement,it should be noted, is one of the
references we have of the explicit phrase,"closethe door of first
iitihad".
Abduh is cited also by Gibb in WhitherIslam?in the
context of iFtihad.
Interestingly, Gibb assertsthat Abduh, a leaderof the liberalnineteenth
theologians century
m Egypt, advocatedthe reopeg of the gate of ijtihadas imperative.
Thisstatementis extremelymisleadingbecauseit implies
that the gate must have
closedfor it to have to be reopened. Abduhin factneversaidthatthe gateof iFtihad
closed,as indicatedby the afore-mentionedquotations how
could he advocatea
reopening if he did not assertthat it had closedin the firstplace?
Althoughit is not

72Bukhash,Khuwa,"Islamand the ModernWorld"in

MuslimWorld,1929,
p.65.
Iqbal, supra,p.207.
Id., p.234.
5 Id ) p*215
6 Id-)p-247-

77 Id.
Hourani,stlpra,p.l27.
Hourani,supra,p. l47.
80 Id.
81 Id.
 THE IJTIHAD CONTROVERSY 251

a misstatementor an incorrectquotation,Gibb's assertionis misleadingin that it

implies that even theologiansof Abduh's calibreacceptedthe closure of iitihad.

The Middle Ground

Between the black and white views of writerswho assert that the gate of iitEhad
closed and those who assert that it never closed exist a group of writers who are
unsure. These writers tend to explore beyond the strict affillllative or negative
answers.Their writings display an awarenessof the differentlevels of iitihadand
who may practiceit, an aspectnot as prevalentin the writingsclassifiedunder the
heading "The modernists"(above).
For example, in 1896 Edward Sell devoted five pages to a technicalaccountof
three degrees of iitihad. He gave historicalreasonsfor the restrictionbut did not
contend that the gate of iitihadclosed. In his book, he writes about iitihad, "It is
now a purely technicalterm and its use and only use is to expressthe referringof a
difficult case to some analogy drawn from the Qu'ran and the Sunna".82
Interestingly, when Sell is quoted in a 1913 article in Muslim World, the
anonymousauthor, (the "jurist")contends, "[Sell argues that] the possibility of
iitEhad, i.e., independent contributionto formativecanon law, is recognisedas
impossible".83The later articleappearsto exaggerateand overstateSell's position
and, furthermore,ignoresthe degreesof iitihadwhich Sell recognised.In fact, the
strongestnotion receivedby the 1913 writeris that of the impossibilityof iitihad,
which is not quite what Sell asserted.
In 1936, Mohammad Ali did malreuse of the explicit phrase, "the door of
ijtihad".However, he did not acceptthe truthfulnessof the phrase.In his workhe,
like Sell, discussesthe evolutionof restrictivepractices.He writes, "It is a mistake
to suppose that the door of iitihad was closed after the four imamsmentioned
above".84He further asserts iat no book on the principlesof jurisprudencelays
down that the exercise of a man's own judgmentis forbidden.85He concludeshis
argument by referring yet again to the limitations that have hamperedijtihad:
';The impressionled to limitationsupon iitihadand the independenceof thought
to which Islam had given an impetus".86
Ziya Gokalp'sviews on iitihadare somewhatsimilarto Ali's, and are discussed
by Albert Hasan in his article, "Modem Trends in Ijma", also referred to
previously.Gokalp,writing in the 1950s, distinguishedbetween circumstancesin
which ijlihadwas and was not perTnissible.In this regard,he stated, "Ijtihadis not
permissible in questions where nass exists, but if nass is the outcome of 'urf
[custom],then iitihadis permissiblethere".87Gokalpcontinuesthat scholarsof the

Sell, supra,p.32.
83 "Western influences on Mohammadan Law" in MuslimWorld1913, p.356.
Ali, supra,p. 112.
Id., p.ll3.
Id., p.ll4.
87 Hasan, "Modern Trends", p.l45.
 252 ARAB LAW QUARTERLY

figh must adapt themselves in accordancewith the necessities of life.88 This

"adaptation"is the very essence of iitihad.
In 1954, Kemal Farukiinterviewedthe maulana muSti,MohammadShafti on
the subjectof iimaand the gate of iitihad.89 Significantly,the muftirespondedin
the presenttense regard1ngthe exerciseof iitihadandwhenit couldbe used.90The
mufti essentially opined that iitihadcould be exercised only in cases of new
impressionwhose solutionshadnot beenhithertodeterminedby iima.9l The mufti
in this text never statedthat the gate of iitihadwas closedand, indeed,neverused
the term "closure of the gate of iitihad".92 However, Faruki,upon makinghis
conclusionsbasedon the responsesof the mufti,does referto the "gateof iFtihad"
and its closure.93This seems inconsistentwith the responsesgiven by the mufti.
Thus, this work is problematic if we examineonly the conversationwith the
mufti,we could very well concludethatijrEhad
was a presentand currentconcern,
but Faruki'sconclusionsundee this view.
UncertaiDtyseems to prevail in the writingsof this group of writers, and no
articleis more characterisedby uncertaintythan W. MontgomeryWatt's article,
"The Closing of the Door of Ijtihad".94 Wattis uneasy about Schacht's view
regardingthe closing of the door and "moreparticuIarlyabout the fact that oche
closing is placed in the early tenth century.95Watt has not reallyformulatedan
argumentaboutthe gate of iFtihad. He cites mainlya workcalledIrsadal-fuXul ila
tahqiqal-haqqminilm al-usulby Shawkani(d. 1832). Shawkanisays there was
never agreementabout the closing of the door of idtEhad, but "that the question
remainedon disputebetweenthe madahib or schools?'.96
Shawkanistatesthat the
Shafi'is,Malikisand Hanafiswerearguingthat iFtEhad couldand shouldcome to a
close, whereasthe Hanbalis held that it could not and would not.97Both sides
arguingthis issue held that iitihadwasprescribedby the Shari'aas a "cornmunal
duty". Wattstates that this "meansthat the duty is fulfilledif some membersof
the communityfulfil it, but that if nobodyfulfils it the whole communityis liable
topunishment".98 The schoolsdisagreedon whetheriitihadwasnecessaryin every
subsequentage or whetherit could cease afterit had been exercisedfor a certain
period.99Watt also cites Ibn al-Humamas addressingthis issue.l°°
Finally,Wattmakesthe followingtwo poillts:First, he notes thatafterthe early
teni centuryno new madhab appeared,and suggeststhat the iXtihad discussions

88Id.
89Faruki,Kemal,Ijmaand the Gateof Ijtihad(Karachi,1954),pp.7-9.
9oId.
91Id., p.9.
92 Id.

93 Id-, p-24-
94 Watt, "Ijtihad",pp.67978.
Id., p.675.
Id., p.676.
97 Id.
9 Id., p.677.
99 Id.
100Ibn al-Humam,Al-tahrfrfi usulal-din(No othercitationinformationgiven).
 THE IJTIHAD CONTROVERSY 253

may have been the reasonfor this lack of development.Secondly,he hypothesises

that since iitihadoperateson a basic or generallevel as well as a specific level, the
early argumentsmay have been at cross-purposes.The definitionalproblemmay
have exacerbatedthe confusionand the argumentationon this issue.l°l
Watt suggests in his article that restrictionand not closure is the key to the
controversyabout iitihad.This ffieme is also evidenced in Ahmed's 1964 article,
C'Shura, Ijtihad,and Ijmain the Early Islamic State". Ahmed states, "It is true
that in the sphere of law, in a certainstage in its development,the scope of iitihad
and iima was greatlyrestricted,though formallyneither the doors of iitihadwere
closed, nor the possibility of arrivingat a new iimawas ever ruled out''.l02
Bernard Weiss, writing in 1978, seems unable to decide whether iitihadwas
ended or not, both with respectto theoryand actuality.Weiss statesthat therewas
a "general reluctance" of jurists after the third century of Islam to engage in
iitEhad,"a development commonly referred to as 'the closing of the gate of
ijtihad'.l03 Weiss furtherstates that one "detectsthroughoutthe literatureof usul
al-fiqha spirit of inquiry;interpretationalways seems to be a presentpossibility,
even if it is not always an actuality''.l04
ContraTyto this somewhatpessimisticattitude, however, Weiss implies almost
in the same breaththat the gateof iitihadnever reallyclosed at all. For example,he
asserts, "the 'closing of the gate of iitihad'and the correspondinggeneralshift to
taqlidwasmore an accidentof history than a requirementof theory. The notion
that at the end of the Third Century(or shortly thereafter)the doctors of Islam
reachedan immutableconsensusof opinion that Erther ijtihadwas unnecessaryis
untenable''.l05Weiss considerssignificantthe on-going dispute about whetheran
age without a mujtihad was possible, and also notes that a consensuson this issue
was never achieved.l06He then makes the following statements, retnarkablein
llght of hls mlt1a pessunlsm:
* . . * . * @

In any case, to affirmthat a generationof Muslimscould exist withouta maftahid is not the
sarneas affirmingthatthe gateof iitihad has been irrevocablyclosed. In fact, therewas never
a permanentbarrierto the exerciseof iitihad, a point to which the occasionalreformerwas
wont to call attention .... It would have been pointless for scholarafter scholarto devote
himself to the meticulous propoundingof ocheserules [of interpretation]if iFtihad were
nothing but a relic of the past''.l07

This paragraph is very different from the initial language discussing the
"reluctance"of scholarsto exerciseiitihad.Weiss seems almostreadyto conclude
affirmativelythat iitEhad
never disappeared,but then he backtracksand implies
tShatiitihadwasonly a possibilityand not an actuality.

Id., p.678.
102 Ahmed, supra, p.48.
103 Id p-208-
104 )
105 Id.
106 Id.
107 Id.
254 ARAB LAT QUARTERLY

As is the casewith writerswho explicitlydenythe closureof the gateof ijlihadat

a practicalor theoreticallevel, both WeissandAhmedidentifythe lackof doctriIlal
supportfor the notionof closure.In fact,Weissargues,"onewho knowshimselfto
be capable of independent interpretationof the source is forbidden by his
conscience to adopt the opinion of others" 108 Yet, Weiss again appears
inconsistexltby stating elsewherein his article that if everyonewere a muitahid
(practitionerof iitihaS),"therewould be no law in the ordinarysense:everyman
would be a law unto himself ... Therefore,it is in the interestof social stability
that not all choose to acquire the qualificationswhich are prerequisitesof
iitihad".109
The uncertaintythat seems to exist in the writingsof the authorsin this part is
probably auributableto the different levels of iitEhad,recognisedby Sell, for
example,as well as to confusionregardingwho was entitledto exerciseiitihadand
whetherit was exercisedin practice,in theory,or both. But it is interestingthat
even when these writers do make statementsassertingthat the gate of iitEhad
closed, often the statements are accompanied by seemingly contradictory
statementsimplying-or even stating that it did not.

CONCLUSIONS: TRENDS

From evaluatingour limited researchin this area, certain very general trends
become evident. First, by the middle of this century,and particularlyafter 1972,
beginningwith Ostrorogand TheAngoraReform,the phrase"the closureof the
gate/doorof iitihad becomes increasinglyprevalent.Second, the convictionthat
such a gate actuallyclosed becomesincreasinglypronounced.Indeed,by the time
Gibb wroteModernTrendsin Islam,he was dogmaticallyproclaimingthat the gate
of iitihad"wasclosed,neveragainto be reopened".l IOEvenmanyMuslimwriters,
such as.Fazlur Rahman,who perhapshave more cause to question this notion
regardit as a fait accompli.
The third trend emergeswhen earlierwritingsare examined,particularlythose
appearing before Ostrorog's picturesque description of the many doors-of
allegoricalexegesis, historicalexegesis,and religiouscriticismoming to a close
and stultifying Islamic law. In these earlierwritings, scholarsare generallynot
nearlyas clear on the closureof the gate of iitEhad.Indeed, most of them do not
even mention the phrase itself even when indulging in lengthy discussions of
ijrWhad.ll l Further,as discussedabove,manyareexplicitlydismissiveof the notion
that iitEhadever carneto an end at all.ll2 lRhetwo exceptionsto this trendare al-
Jisr,as quotedby Houraniand discussedabove,andMaulaviSaiyidArnirAli, who

Id., p.207.
9 Weiss, supra,p.207.
Gibb, ModernTrends,p.l3.
See, e.g., Rahim,Muhanadan gurisprudence.
112 See, e.g., M. Abduh'sremarksin Hourani,supra.
 THE IJTIHAD CONTROVERSY 255

both seem to accept the notion of a gate of iitihad and its closure. It should be
noted that Amir Ali, however,nevermentionsthe phrase,"the closing of the door
of iitihad", despite its alleged fame in the "MohammadanEast".
An illuminatingillustrationof these generaltrendsis the differencebetweenthe
entry on iitihad in the first edition of the Encyclopediaof Islam and the entry on
titihadin the second edition. The first edition was publishedin 1927 and bearsno
mention of iitihad, its gate, or its closure.It simply states, "this broadiitihadsoon
passed into the specialiitihadof those who had a peculiarright to form judgments
and whose judgmentsshould be followed by others''.ll3
This of course parallelsde view of many of the afore-mennonedwriters who
consider the existence of a narrowing of iitihad. The first edition of the
Encyclopediaalso states, "At this point, a difference entered between theology
(kalam)arldlaw (fiqh).Even to the presentday many theologiansassertthat taglid
does not furnish a saving faith . . f.114 The first edition also mentions Ibn
Taimiyyaand Suyuti as examplesof otherswho claimedthe first rankof ijtihadfor
themselves. But it does not mention the gate of iitihador the closing of it.
This is of striking importance when we examine the new edition of the
Encyclopediaof Islam,which was publishedin 1971*This editionbasicallyadoptsa
verbatimversionof Joseph Schachtssviews regardingiitihad,as statedin Schachts
Introductionto IslamicLaw.ll5 The entryin this editionunequivocallystates, 'this
sclosingof the door of iitihad,' as it was called, amountedto a demandfor taqlid
. . .**116
This is a clear manifestationof ie erendtowardsa concretenotion of the
closure of the gate of iitihad in the mid-twentiethcentury.
Another example of these trends ls the omission of a discussiorlof iitihad by
Ignaz Goldziher) an extremely important scholar writing at the nlrn of this
century. Goldziher, oSen proclaimedas the father of modem Islamic law, never
mentions "the closure of the door of iitihad7'*Indeed, he does not even discuss it.
If the closing of the door of iitihad were so famous and so integrala concept in
Islamic law and history,how could the fatherof modernIslamicscholarshipfail to
mention it? It may well be because the notion and the related phrase did not
become "famous"until Ostrorog.
The conclusionthat may be derivedfrom the afore-mentionedresearch,en, is
that in the late nineteenthcenturyand earlytwentiethcentury)writerswere eiier
confilsed, unclear, or undecidedabout the issue of the prohibitionof the exercise
of ijtihad. This would imply, therefore, that the concept itself was still not
universallyacceptedin ie late nirleteenthand earlytwentiei century.The phrase
itself, "the closure of ie gate of iitihad",appearsonly rarelyuntil 1927, when it
appearsin Ostrorog'sAngoraReform.
And then it appearswith a vengeance:Ostrorogrefers to it as the Csexpression)

famous in the MohammadanEast, describingthe ultimatestage of Mohammadan

113Encyclopediaof Islam, 1st edn. (1972),p.449.

114Id.
115 See, footnotes2s32, supra and accompanyingtext.
116 Encyclopedaa of Islam,2nd edn. (1971),p.1026.
 ARAB LAW QUARTERLY
256
Jurisprudence:SedduBabi'I-Ijtihad,
is only after Ostrorog that writers seem ClosureoftheGateofinterpretation''.ll7It
to have seized upon this phrase and
renderedit *ntovogue.And with the popularityof this phrase,
of iitihad",the need for considerationof the concept "closureof the gate
underlying the phraseseemsto
have vanished.With each new utteranceof the expression,
the closureof the gate
of iitihad", the concept becomes simplified,
undisputed, cast itl stone. From
Ostrorogin 1927and for the next 50 years,with increasing
of the closingof the gate of iitihaddevelopsfroman frequency,the concept
unclear,disputeddoctrineto a
sunple catch-phrasewith an assumed truth underlyingit.
It is not until very
recentlythat people like Watt and Hallaq seem to have taken
a fresh look at the
conceptand not just at the catch-phrase.
Why this suddencrystallisationof this conceptof iitihadin
a short span of five
decadeswhen the conceptwas debatedfor centuries?One
to, if not a directresultof, the rise of Orientalismin the explanation maybe tied
eteenth century.This
explanationis one that is deftly illustratedby a passagewrittenby
hisilluminaiingwork,Orientalism.Said quotesand EdwardSaid in
commentsupon the following
paragraph from Gibb' ModernTrendsin Islam:
Itis true that therehavebeen greatphilosophersamong
the Muslimpeoplesandthat some
ofthem were Arabs,but they wererareexcepiions.The
Arabniind . . . cannotthrowoff its
intensefeeling for the separatenessand the individualityof
the concreteevents.This is, I
believe,one of the main factorslying behindthat "lackof
sense of law".... It is this, too,
whichexplains... ie aversionof the Muslimsfrom the
* i i *
thought-processesof rationalism

Said's commentaryon this passageis as follows:

Arewe not once againbeing askedto inspect the Oriental
Muslisnas if his world, unlike
ours "differentlyfromit" had neverventuredbeyond
the seventhcentury?. . . If Islam
isflawed from the start by virtue of its permanent
disabilities,the Orientalistwill find
himselfopposingany Islamic attemptsto reformIslam, because,
reform accordingto his views,
is a betrayalof Islam . .. 118
The conceptof the endingof iitihadisin itself important,
especiallybecausewe
arenot clear as to whether or not it occurredand
which doctrine, if any, was
chosen. But the phrase,"closureof the gate of iitihadis important
besomething that Orientalistsseized upon as a way to becauseit may
generalisede notion of
iitEhad
and not botherwii or even thinkaboutthe detailsrelating
is to it. Indeed,it
a convenientmethodby whichto pronounceIslarnic
law as inferior the gate of
iitihad
closed, and thereforeIslamiclaw has not developedfor
centuries.With this
phrase,then, Islamiclaw is in just a few wordsgeneralisedand
and renderedinferior
backward.
Said's assertionis perfectlyillustratedin the contextof
iitihadin the
quotationfrom L.E. Brown'sarticle:"So the doors of progresswere following
closed and

Ostrorog,
supra, p.29.
118 Said,Edward W., Orientalism (1978),
pp.l056.
 THE IJTIHAD CONTROVERSY 257

Islamic law and theology became fossilised. Thought of all kinds was held in
chains. It is to this case that I attributethe check to Islamic culture, philosophy
and science and its eventual extinction".ll9Too many of the writers discussing
iFtihad,such as Ostrorog,Gibb and Brown, are patronisingand dogrnaticin their
own Orientalistideas of the Arab or the "East" to examine their own scholarly
endeavours,and iXtihad,like the rest of Islam, becomesrelegatedto the backward,
inferior, even "extinct" (!) social and legal systemsof the world.
Finally, a question that ariseswhile evaluatingthis materialis the following: It
seems generallyacceptedthat if the gate of iitihaddid close, then it closed only in
the realm of Sllnni jurisprudence,and not in Shi'i jurisprudence.l20In addition,
much in the way of "backwardness"or "petrification"of Islamic law has been
blamed on the alleged prohibitionof iitihad.l21Yet, if Sunni jurisprudenceis so
backwardbecausethe doors of iitihadwere closed on Sunni jurisprudenceand not
Shi'i jurisprudence,then why is there not a much wider gap-a gap which had
some 70>1,()00 years to widen-between Sunni law and Shi'i law?That there are
some significantdifferencesis acknowledged,but such differencesdo not seem to
be vast enough to be the result of a petrified state of law on the one hand and a
continuallydeveloping law on the other.
In conclusion, then, the above discussion entails hypotheses regarding the
material researched and discussed herein, and attempts to present a coherent
pictureby identifying some generaltrendsand patterns.Xudgingfrom writingsin
English datingfrom the late nineteenthcenturyto the presentday, theredoes seem
to be evidence of a concept which developedfrom just a tentativehypothesisto a
certainty.The interestingthing is that this conceptof closureof the gate of iitihad
as a concrete certainty seems to have developed not as a result of extensive
research, but from the increasing simplification of the concept with each
occurrence of the phrase. The phrase itself may have appeared as a way to
describea tentativeconcept,but eachtime the phrasewas cited, especiallyby those
of Orientalisttendencieswho seized upon it, the catch-phrasebeganto overpower
and simplify the concept itself. The result, finally,was that it was not the concept
with all its controversiesand intricaciesand doubts that was important,but the
phrase itseIf. The phrase itself was what rendered unnecessary further
contemplationof the concept.
These conclusions are based on researchdone only in English and dating from
the late nineteenth century to the present day. Further exhaustive research in
languages other than just English be required to substantive some of the
hypotheses suggested herein, which are thus far theoriesor speculation.But this
article at least may be a startingpoint for furtherresearchin the area.

119 Brown, supra,p.l74.

120 See, e.g., Liebesny, supra,p.495.
121 See, e.g., Amir Ali, Maulavi Saiyid, The Spiritof Islam,pp.23>31.