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THE IJTIHAD CONTROVERSY
ShaistaP. Ali-Karamali*and
Fiona Dunne*
I N T R OD U C T I ON
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
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
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,
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
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
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.
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".
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
77 Id.
Hourani,stlpra,p.l27.
Hourani,supra,p. l47.
80 Id.
81 Id.
THE IJTIHAD CONTROVERSY 251
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
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
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
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)
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.