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l . .
~his ground-brea.l)ing new
that Ijtihad, although long em]:>.}]·!W·~iZed'.
I ' ' . '

." ~

of modem Islamic law, has a ne~aDJe
. cept ofIjtihadhad had immense OOt)wa
segment of Muslim intelligentsia and has -

religious and secular setting, however,

various reform groups agree on its me:anDlg;;[Jr:;~
tive analysis discusses the aims and processes
on the Ijtihad dispute by variousrefolltl
ties, in light of the pressures of m.-lodc~mi~
cultural and administrative. activity:
addition to the field.

"••• greatly helps in setting

raging in Islamic circles overthl!natu'~,
the issue of change and revolutiOn
especially the why of it have light

Legal Reform in the

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The Anatomy of a Scholarly
, Dispute in the 19th and the Early
20th Centuries on the Usage of
Ijtihad as a; Legal Tool

Muneer Goolam Fareed

Austin & Winfield

San Francisco - London - Bethesda

l . 'j
OCl1 61996
Library of Congress Cataloging-m-Publicatioll Data

Fareed, Muneer Goolam, 1956-

Legal reform in the Muslim world: the· anatomy of a scholarly
dispute in the 19th and the early 20th centuries on the usage of CONTENTS
ijtihad as a legal tool / Muneer Goolam Fareed.
p. cm.
Includes bibliographical references and index. DEDICATION i
ISBN 1-57292-002-5 (paper: alk. paper). -- ISBN 1-57292-003-3
(cloth: alk. paper) PREFACE iii
1. Islamic law--Interpretation and construction--History. CHAPTER
2. Islamic law--History. I. Title.
340.5'9'09--dc20 %-13518 TWO .. LEGAL THEORY AND IJTlHAD 19
Copyright 1996 by Muneer Goolam Fareed FIVE. THE ISLAMISTS 105
I All rights reserved. Printed in the United States of America. No part of this SEVEN. CONCLUSION 155
I book may be used or reproduced in any manner whatsoever without written
i permission except in the case of brief quotations embodied in critical articles
I and reviews. INDEX 169


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What follows is essentially the revised version of my doctoral dissertation.
In it I examine, what for me has for some time been an intriguing, if little
understood, perspective on Islamic legal theory: the· polysemic nuances of tlie
concept ijtihQd as used by the reformists of the Muslim world in the 19th and
early 20th centuries. TIlls discourse, I've learnt, was wormed as much by factors
germane to the political upheavals of the era as it was by the intellectual heritage
of Islam or its theological pronouncements.
The colonial experience, in this regard, was particularly portentous, for it
created, so to speak, the need for ijtihQd. The latter was perceived by many in the
Islamic world as the preeminent intellectual tool for the development of Islamic
thought within the framework of the libertarian values touted by -the European
colonialists. Given that, in early Islam it was ijtihQd, no less, that spawned the
intellectual efflorescence of the MusliDi community, it could, this group
maintained, be called upon to serve as the catalyst for Islam's renaissance. But, as
I attempt to show,·ijtihQd so construed, as synonymous With revival and reform,
is indeed a novel idea in Islam, one crystallized by the peculiarities of such social
and political changes as were on the whole, unprecedented in Muslim history.
During the genesis of the sacred Law this concept was, in fact, no more than an
ancillary tool in the repertoire of the legal scholar.
TIlls work also focuses on the so-called "closing of the doors of ijtihQd"
and its concomitant, the regimen of taqud In examining the reactions. of the
iv Preface v
proponents of taqud to the calls for ijtihiUJ, it attempts, fIrstly, to unravel the but instead of yielding one common defInition, ijtihad appears much like the

various academic perspectives to this debate, and searches secondly, for an proverbial moving target, showing once again, that language, far from being a neat

explanation as to why such debates persist, to this day, in some parts of the package of signifiers and corresponding signifIeds is more correCtly described as

Muslim world but not in others. Equally important to this study are the less a limitless interaction of both the above with no obvious end-point. This-is

obvious personal and social factors that predictably influence debates such as this . primarily why I make no attempt herein to "resolve" the debate over 'the nature

one; in this case, the participants' views and opinions are see~ to be conditioned or the genesis of ijithiid; if anything, this study further confIrms that words cannot

as much by a struggle for power and the eventual leadership of the community as be construed as being frozen in any given spatio-temporal frame. Attempting
they were by the historical and acadernic merits of the arguments. therefore, to salvage a positive meaning of trans-historical proportions for any

This particular study, its historical investigations notwithstanding, leans less single idea merely underscore~ the "fragmentary, heterogenous and plural character
towards the perspective of the social scientist than it does towards the humanities : of reality. ,,2 That some might argue,puts this work within the purview of a post-

or the human sciences. It is history to the extent that it attempts to explain through modem inquiry for it eschews the modernist preoccupation of determining the
what Weingartner calls"empathic understanding (Verstehen)", the actions of those essential nature of stuff? Be that as it may, I for one, fmd this presumption of-a

whose views are examined herein, positing, as any good historical work would, center, this search for some form of ontological hierarchy, problematic; this study
that the subjects of the inquiry, had puxposes when they acted. It is said that to , thus avoids the conundrum of seeking out origins, truth and presence?4
do justice to the logical structure of historical explanation, it is necessary, when 'Ii

scrutinising human history, that we consider puxpose for "men have purposes when ' 2Ronald McKinney, "Toward a Revolution of the Moderirlst/Postmodernist
they act; they have motives and intentions; they make plans, and thus their actions I
Debate". Philosophy Today 30 (1986) 234-45.

are in part determined by some goal they seek to achieve in the future.,,1 But I 3David Griffm, "Introduction": SUNY Series in Constructive Postmodem
Thought xi.
unlike the historian who concerns himself, in the main, with particular events in i
history and- "their particular concatenations of citcumstances and personalities", 4But in actual fact, the term post-modem is itself far from free of
indeterminacy: rather than referring to any single idea it is used in a variety of
this study focuses less on past events and more on how a single idea transformed !
ways, some contradictory to others. In artistic and literary circles, for example,
such events and was, in tum, transformed by them. The idea in this case, ijtihiid, post-modernism is almost a riposte to the modernistic movement in artistic
literary circles in the late nineteenth and early twentieth centuries. But as David
is essentially religious and thus sacred, but it is invoked by Muslims, by humans,
Griffin (Ibid., xii) points out, Post-modem architecture did not quite follow the
that is, who reflect all of the ambiguities of the human experience and above all, same trends:
of their language, their means of communicating, of saying as well as of writing.
In some circles the term postmodern is used in reference to that
In tracking their usage of the term ijtihiid, for instance, this study, in effect, potpourri of ideas and syste~ so~etiiries called new ag~
metaphysics, although many of these ideas and systems are more
tracks the evolution of but one single word, the saussurian signifIed if you will;
premodern than postmodem ... Closely related to literary-artistic
postmodemism is a philosophical postmodemism inspired variously
by pragmatism, physicalism, Ludwig Wittgenstein, Martin
IRudolph H. Weingartner, Undergraduate Education: Goals and Means Heidegger, and Jacques Derrida and other recent French thinkers.
(New York: Macmillan, 1992) By the use of terms that arise out of particular segments of this
vi Prefa~e

In closing, I'd like to thank my professors in the Department of Near

Eastern Studies at the University of Michigan for having shared with me their
invaluable knowledge and experience without which this project would surely haJe
remained' a mere idea. Special thanks to Prof. Paul Walker for his useftlll
suggestions and encouragements, to my wife, Wardah for her invaluable assistance
in typing, and my daughter, 'Afaaf for her help.


" The nineteenth and early twentieth centuries have been witness to
momentous changes in the world community. The Industrial Revolution that began
in England in 1760 or. thereabouts, and the complex of economic and social
transformations that followed radically transformed, amongst other things; the
international balance of power. The major technological discoveries of that era not
only established the military-industrial complex as the mainstay of the European
economy but also facilitated what Rudyard Kipling in his novel Kim called
Europe's "Great Game": the rapid deployment of colonial outposts throughout the
globe. This game, played with such gusto and deftness by the Europeans, proved
to be inordinately costly, not to mention humiliating, to the host nations, not least,
the Islamic countries. For the fIrst time in their history, Muslims looked on
helplessly as their lands were reduced to no more than pieces in a game. George
Curzon, one time Viceroy of India described their plight thus: "Turkestan,
Afghanistan, Transcaspia, Persia-to many these names breathe only a sense of
utter remoteness . . . To me, I ~nfess, they are the pieces on a chessboard upon
which is being played out a game for the dominion of the world."l Others, with
greater ambition, itctually "set out to captUre isiiiirt": iii the Middle Iksi, tor
movement, it can be called deconstructive or eliminative
postmodernism. It overcomes the modem worldview thro~gh an instance, during the early years of the First World War, Herbert Kitchener, the
anti-world view: it deconstructs or eliminates the ingredients
necessary for a worldview, such as God, self, purpose, meaning, a
real world, and truth as correspondence. IGeorge Curzon, Persia and the Persian Question (London: Frank Cass,
Chapter One 3
2 Introducti~n
unknown in the Islamic lands. 4
British War Minister, along with his colleagues at White Hall believed that IsI*
itself "could be bought, manipulated, or captured" and pressed quite easily into Such losses were undoubtedly devastating to a once mighty empire that,
Her Majesty's service. 2 for so long, had controlled others but was itself subsequently, reduced to no more
Muslim countries were admittedly, not singled out because of thejr than a motley of colonial outposts, each struggling for its own independence. But
religious persuasion, for colonialism was primarily a commercial venture, but su¢h it was nonetheless, Islam's intellectual heritage, its weltanschauung, that regressed'
ancient rivalries as did exist between Islam and the West certainly helped assuage most: the idealism of the Enlightenment, its belief in the power of human reason,
any misgivings the latter may have had about the morality of its actions. and its secular, humanistic philosophy rendered much of the ancient paradigms of
Christians in the West, Norman Daniels tells us, and particularly those in the Muslim thought obsolete. As Ira LapidUS explains, in the EUropean scheme of·
missionary lobby "rejoiced in the humiliation of Islam by technological superiority things as opposed to the Muslim, "political and economic institutions were fully
and (were) convinced that the triumph of colonialism was the vindication of differentiated from religious norms:
Christianity:13 The Islamic communities offered little resistance: their worseniq.g
the cultivation of scientific and of humanistic mentalities relegated
economy thwarted all efforts at countering colonialist designs militarily, and tlile
religion to a narrowed sphere of worship and communal activities.
political strife so endemic to their history destroyed what remained of Muslim The scientific mentality "disenchanted," demystified the world of
nature and of human relations. Nature, society, and even the human
morale. These erstwhile rulers of the globe were in no position to defend
personality, became accessible to rational understanding and to the
themselves, much less shore up the last vestige of their political authority, the conviction that they could be modified by conscious intervention.s
ailing Ottoman Khiliifa. "For centuries past", Bernard Lewis tells us, "the Ottoman
Muslim leaders were quite disturbed, to say the least, at what they Saw as
sultanate had been the leading power of Islam, representing it in the millennilal
the almost inexorable abjurement of Islam's intellectual and cultUral. structures to
conflict with its Western Christian neighbors." But
western thought. The political elite had additional concems: in India for instance
British control deprived them of "political power, generated economic changes that
The real power of Islam in relation to Europe had, in many
respects, declined. The advance from eastern Europe across the weakened the grip of Muslim landlords on rural revenues, and threatened to
steppes, from western Europe across the oceans, threatened to
undermine Muslim culture."6
enclose the Islamic heartlands in a pincer grip . . . The Muslim
world was also falling behind Europe economically, notably in the These setbacks were admittedly, not without precedent: the 13th century
mobilization and deployment of economic power. The rise of
Mongol invasions, for example, were arguably more devastating, at least in terms
mercantilism in the West helped European states and companies
to achieve a level of commercial organization and concentration

4Bemard Lewis, Islam and the West (Oxford: Oxford University Press,
2David Fromkin, A Peace to End All Peace: The Fall oj the Ottomf-n 1993) 19
Empire and the Creation of the Modern Middle East (New York: Avon BooIfs,
SIra Lapidus, A History of Islamic Societies (Cambridge: Cambridge
1989) 96-105. .
! University Press, 1988).
3Norman Daniel, Islam and the West: The Making of an Image. (Oxfo~d: 6Lapidus, A History of the Islamic Peoples, 560.
One World Publications, 1993) 326 I
Chapter, One
4 Introduction
clear to these scholars the methodology for accomplishing them seemed less so:
of loss of life and property.7 But the European incursion was unique for the
for some, the situation,demanded a virtual restructuring of the sacred Law in light
challenge it posed to the intellectual tradition of Islam, to its culture, and most
of the changes that the community had hitherto undergone, but for others the need
importantly, to the sharI' ah or the sacred law. In much of the Muslim world the
was to preserve rather than reform what remained of that legacy. Much of the
latter lost influence: in North Africa for example, Muslims found themselves
legal history of this period, as will be shown hereafter, has been a struggle
governed almost entirely by the French civil and penal code,S while in South Ea$t
between these two perspectives; the former hoping to fulfil its objectives through
Asia, the Shafiite legal code had all but vanished, replaced, in large measure, by,
ijtihiid and the latter preferring the ~e1ative security of taqlUl. 1I
the Dutch and British legal systems. 9 Worst off probably, were those in Turkey,
The proponents of ijtihiid argued that the formation of the sacred Law was
the erstwhile seat of the caliphate, where the sacred law was unceremoniously
itself accomplished through the use of this legal mechanism: the latter, they
tossed out and replaced with the Swiss Code. 1o claimed, created a thoroughgoing legal system out of what previously consisted
Muslims quickly realized, that without a critical reappraisal of its role vis-
of no more than a motley of do's and don't's. This was precisely the challenge
a-vis modem society, the sharl'ah was clearly at risk of becoming permanentlJY
Islam faced in the contemporary world: this time round however, the need was to
marginalised in their societies. A broad assortment of Muslim scholars, religious
transform the classical legal heritage into a modem system that would at once
leaders and liberal thinkers thus arose, to implement the twin ideas of restoriqg
reflect the teachings of the sacred sources, the Qur'an and the sunna, and yet be
Islamic Law to its erstwhile prominence in the Muslim world and preserving the
in step with modem exigencies.
moral and cultural heritage of its past. Whilst the objectives were, in the main, But the operative principle in Islamic Law for several centuries was taqud,
the unquestioning obeisance to one of the eponyms of the major schools (a' imma
7This period in Muslim history is well documented in G.E.von
al-madhanib,al-arba'a): Abu ~a (d.767), Miilik (d.795),Shifi '1 (d.819), and
!r"1. Grunebaum, Medieval Islam (Chicago, 1953). The Cambridge History of Iran, Iv
I' ~, J:A. Boyle, Cambridge, 1968 provides a good description of the Mongpi A1pnad b. Ibn I;Ianbal (d.855).The 'ulami'of the lOth century, c.e.; anxious to
:l!" mvaslon of Iran and the effects of the scorched earth policy which it pursued fpr
avoid a repeat of the confusion engendered by the untrammelled speculations of
aImost a century. ' ;
the independent jurists of the 7th and 8th centuries, c.e., "promillgated moral and
, spar a survey of pre-colonialist North Africa, see L. Valensi, Le Maghreb
ava~t la prise d.'Alger 179~-18~O (paris, 1969); also, J. Roussier, 'L'application du
spiritual qualifications for ijtihiid so immaculate and rigorous and set standards so
~hra au ;rv.taghrib en 1959, Dle Welt des Islams. vol. vi (1961), pp. 25-55, is an high that they were almost impossible to fulfil."12 The Law, these scholars
informative tract on the organization of justice in North Africa.
maintained, had already been adequately expounded by the eponyms; Muslims,
. ~uch of the info~ation on S.E. Asia is related to the two predominantly thereafter, simply had to follow the school of their choice whiie, scholars
Mushm. states of In~onesla and Malaysia. For a general history of Indonesia See
M.C. Ricklefs, A Hrsto,!.of Modern Indonesia (Indiana: 1981), and on Malay$ia
see W.R. Roff, The Ongms of Malay Nationalism (Connecticut: New Haven '
1967) .. ' IIPor an informative analysis of the process of Islamic reform (tajaui) with
special emphasis on modem Islam, see M.A. 'Abdulla, Identity Crisis within the
l&rurkey had in fact begun with the reform of the shari' ah whilst Ee Islamic Movement: The Dilemma of Tajdidization (Binghamton: SUNY, 1991)
sultanate. was still ex~t; R.H. Davison, Reform in the Ottoman Empire 18 6-
1876 (Princeton, 1963) IS a general survey of the political and legal reforms of e 12pazlur Rahman, Islam (Chicago: University of Chicago Press, 1979) 78
Ottoman governments.
6 Introducti~n Chapter One 7

deliberated over the pronouncements of its imams, providing a commentary including his own madhhab, and especially the sovereign power. 14
(sharlz) where needed or glossing over the occasional inconsistency or error ~at In a more comprehensive rebuttal, Wael Hallaq asserted that scholars, particularly
might surface. The reformists charged that in addition to discouraging scholarshlp in the West, accept the classical thesis at face value mainly because it is
such an approach also had the aggregate effect of replacing the individual's duly congruous with their own view of Islamic law's inherent inflexibility. But Hallaq
to determine the law for himself by way of ijtihiid with the collective burden of ~aintains that Ita systematic and chronological study of the original legal sources
reveals that these views on the history of ijtihad after the second/eighth century
The foregoing perception of Muslim legal history found favor even among
are entirely baseless and inaccurate ... the gate of ijtihad was not closed in
modem western scholars: Joseph Schacht, for one, seems to have accepted, prima
theory nor in practice."'s
facie, the argument that by the beginning of the fourth century of the Islamic
It was not the purpose' of this study to confIrm or deny one or more of the
calendar (about 900 c.e.),
foregoing opinions; but in order to determine the authentiCity or otherWise of the
19th and 20th century perceptions of ijtihiid and taqud, I was compelled to
the point had been reached when the scholars of all !;jchools felt
that all essential questions had been thoroughly discussed and compare such perceptions to those that existed in -early Islam. A careful study of
fInally settled, and a consensus gradually established itself to the
the formative period of the sacred Law, suggested to me that both views suffer
effect that from that time onwards no one might be deemed to have
the necessary qualifIcations for indep~ndent reasoning in law, and certain inaccuraCies. For instance, the view that ijtihiid, as a legal concept, was
that all future activity would have to be confined to the
integral to the juridical activities of the early community is not substantiated by
explanation, application and, at the most, interpretation of the
doctrine as it had been laid down once and for all. 13 any real evidence from the period in question, the various lzadfth traditions
notwithstanding. Except for a mention in, at most, three legal traditions. of the
Schacht's view enjoys wide acceptance to this day bu~ it is nonetheless, not
Prophet, (that of Mu 'adh b. Jabal, being the most prominent) ijtihQd cannot, be
without criticism: in his opus, The Rise of Colleges, Ge<>rge Makdisi, for instance,
said to have existed as a distinctly recognized legal mechanism in early Islam, at
makes the spirited argument that this matter is altogether more complex than is
currently understood. For example, throughout Muslim history, he tells us, the
muftl (jurisconsult) was consulted by the people, and his vocation, also demanded 14George, Makdisi, The Rise of Colleges: Institutions of Learning in Islam
and the West (Edinburgh: Edinburgh University Press, 1981) 199
that he exercise
ISWael Hallaq, "Was the Gate of Ijtihad Closed?" In International Journal
of Middle East Studies 6 (1984) 3. Aziz al-Azmeh, "Islamic Legal Theory and the
his own ijtihQd, his private judgement, in arriving at authoritative
Appropriation of Reality" in Islamic Law (London: Routledge, 1988) 250, calls
answers to questions addressed to him, answers based on the
this a "metaphysical,and ahistorical" characterization of the Islamic intellectual
sources of the law. In doing so, he had to avoid taqlUi, servile
imitation of other jurisconsults. Furthermore, in the best tradition legacy,
of ijtihad, he had to act independently of all outside fiorces,
an old oriental topos which pictures Islamic civilization as, at best, .
one of an irredeemable poignancy, a rather pathetic tragedy,
involving constant deterioration and the ever stunted and cowered
'3Joseph Schacht, An Introduction to Islamic Law. (Oxford: Oxfo~d projects for the renewal of an original ideal without due recognition
University Press, 1964) 70 of the facts of life.
Chapter One 9
8 Introduction
contexts: firstly, ijtihiid, which is synonymous to tal/iq or the process of seeking
least not until its appearance in the legal theory of Shifi '1.16 But ,as I·hope to
a ruling outside the boundaries of a single school of law. Traditionally, after the.
show presently, even for Shafi'l, ijtihad was neither synonymous to individ~al
alleged closing of the doors of ijtlhad in the 10th century, the legal judgements
speculation nor an instrument of reform; it was simply another word for qzyas,
. - I.e.,
(JaMa, pI. tatawa) of the jurists were restricted to particular schools of law or
the individual reasoning (ra'y) of a jurist. 17 To that extent both Makdisi and Hal~aq
madhanib, and this was called taqud. Ijtihad, in this context, refers to
are quite correct in claiming that ijithad continues to be used to this day, bylall
transcending the confmes of any given school, and searching instead,in anyone
judges and jurisconsults who cannot find appropriate text or juristic precedent10n
of the four madhanib. Secondly, ijtihiid refers to the search for a ruling in the
any given case. But the foregoing is certainly far removed from the ijtihiid that
Qur'an and thehadlth traditions instead of in the pronouncements of the
these scholars, and indeed Muslim reformers, in general, have envisioned. If
madhCihib. This last is someti~es used together with the rulings of the madhanib
anything, the ijtihad that the latter particularly, speak so glowingly of is no more.
to search in all four of them--or more· if one includes the unorthodox schools of
than an amorphous rhetorical device that not only promises delivery of the mIlch
law--for a ruling that is closest in letter to the sacred sources. Thirdly, ijtihad may
sought after reform (tajazd) of Islamic Law, but does so in a package said to hlilve
refer to the effort at reconciling the sacred Law to modem, mainly western
been selected by the Prophet himself.
libertarian values. In the chapters ahead I will be examining each of these
Apart from.its rather tenuous relationship with the classical usage. the
interpretations more closely, but first, a word about taqud.
more recent references to ijtihad point to anyone of at least three different
The 'ulama were understandably, in the vanguard of the opposition to the
call for ijtihiid; they saw .thls as no more than a challenge to their right to solely
. 16In addition to. the Qadi"th of ~u 'adh, the ~ollowing traditions, taken only
interpret the sacred law. The reformists however, f~lt that the law had in fact,
from the most authentic wor~, proVide further eVidence of the multifarious Ul'les
of the term by the Prophet himself: ' . suffered irreparable harm in the hands of this "caste which monopolized the

a. The ijtiJ:iid of a jud~e (qat/z):(inna al-q(i¢i idhii ijtahada ...) AI-Bukhiii AI-
explanation of religion, claiming that it alone had the right to speak in the ~e
SaQil} : Kztiib al-l'ti§am(1989:14) .., of religion."18 They attempted therefore, to broaden the term religious scholar, with
the twin purposes of including all people of learning in the process of ijtihiid, and
?: Thhada
e rulher of the ~lim co~~ty and his ijtihiid: (idha luzkama al-lUifcim fa
vta t umma ll§aoafalahu aJran) (1989:31) more importantly, of reducing the influence of the traditional 'ulami' on the Law.
The call for ijtihad did, in time, win over the majority of the 'ulam.a',
c. ~di~duals who exercise ijtihiid in matters of ritual worship' (Ja i nahii ~ -
'ala hiidha bi' ilmihl wa 'adhara hadha bi ijtihiidih;) (1989: 16) n at na particularly in the Middle East but not before some opposition thereto was
convincingly placated. Thus, when Mu§tapha Marighl, one time rector of the
T?e term also app~a~ in the title of Shaiban?s work, Ijtihad al-Ra'y,~'.e.
the d of personal
. exercise . . oplmon;
. but according to Schacht "this meanmg . 0f -.J
u Azhar University in Egypt, called for ijtilUid he was firmly rebutted by 'Abd a1-
IS se~on ary, and Its ongmal meaning 'discretion, estimate: has been preserved in
Ralpnin 'AfiSh, a leading scholar and muftI of the Azhar. The latter wamed that
Medl~ese usa~e, ~d even to some extent in Shafi'1." (1950!105) The last
mentioned, Shari' I s application of ijtihiid, is discussed in the next chapter.

l7!"1ore t~chnically, it i~ reasoning "that is directed towards aChieving 18John Donohue, and John Esposito, eds. Islam in Transition: Muslim
is~e? and gUIded by the parallel of an existing institution. or Perspectives. (New York: Oxford University Press, 1992) 161
eclslon. ee, m IS regard, Schacht, Introduction, 37. .
1I! '.
1.II "
10 lntroductipn Chapter One 11
this action was tantamount to opening a door of evil (sharr) whose closure in tlhe beyond mere law, to the level of dogma, but for him, far from being a means of
future will be an almost impossible task. 19 But in general, the affmity to taqrd preserving the Islamic heritage, taqlUl was an invidious innovation (bid' ~h) in. the
was neither deep nor sustained and the overwhelming majority of the religidus faith, much removed from the spirit of Islam, and closer to idolatry (shirk). More
scholars of that region added their voices to the calls for ijtihiid and tlhe importantly however, ijtihiid for him, was less a way of returning to theological

condenmation of taqud. purity and more a mechanism for restating the sacred law. Through his several

their colleagues in the Indian subcontinent chose to defepd
publications and those of his proteges, 'Abduh successfully imparted many of his
the regimen of taqud from the outset, as indeed, .they stilI" do to this day. Their reformist ideas, including those on ijtihiid and taqud, to the Muslim intelligentsia
efforts have consequently, elevated this concept to the status of dogma, thus at large. His views subsequently influenced the three major expressions of reform
making it the distinguishing,feature of Muslim orthodoxy in India and Pakistan. that emerged in the Middle ,East in the 19th and early 20th centunes: the
That the 'ulama' of the Middle East took the opposite route from the one abclVe Salafiyya, the al-Ikhwan al-Muslimiin or the Muslim' Brotherhood and the
is, to a large extent, due to the efforts of the 19th century reformer, Jamal al-Dm Modernist movement.
Afglianl. Afghinl (d.1897), the intellectual mentor of many in the refotIn Of the three, it is said that the Modernists were closest to 'Abduh in spirit
movement, though an 'iilim himself, was nonetheless a strident critic of the '!lId for like him, they too believed that the plight of contemporary Islam. was
intellectual order, and particularly, the regimen of taqTId. His appeals to ijti/4iid precipitated by a failure on the part of Muslim intellectuals to distinguish between
were not just a means to legal reform per se, but rather, an important elemen~ in the necessary and the contingent aspects of their tradition. Muslim society, as a
his overall efforts to raise the moral and intellectual standards of the Muslims" as consequence, faced the twin challenges of abandoning blind taqliil, and
well .as confront the threat of Western expansionism. His successors reacted incorporating some aspects of the liberal value system into the corpus of the
variously to this package of reforms: some focused on its socio-politiCal sacred law. The nature and extent of such an incorporation, however, is what
dimensions, others on its acadernic implications and others still, on the pur~ly divided this fraternity. Whilst some advocated a cultural synthesis of Islam and
juridical applications thereof. western liberalism, others called for the bifurcation of politics and religion and the
Afghini's philosophy was disseminated primarily by his celebrated disciple establishment of nation-states governed by constitutions. Given' the religious
and one-time Grand Mufti of Egypt, MuQammad, 'Abduh, who, thanks in large sentiments of the Islamic community however, all proponents of reform were
measure to his vocation and training, was able to present his case with more ri~or forced to articulate their thoughts using the classical idiom of Islam's mtellectual
and accuracy than his master. His assault on taqud consequently, is comprehens~ve heritage. Ijtihiid, some modernists discovered, was ideally suited to this end for
and features even in his polernics on Muslim dogma, where, for example, Ihe it provided the flexibility needed for an undertaking such as theirs and was native
attempts to discredit taqTId by equating it to the heresies of pre-Islamic Ara'ia. to Islam to boot.
Much like his Indo-Pakistani colleagues, 'Abduh thus, raised the practice of taqud
.. The Salafiyya, on the other hand, emphasized ijtihiid less in challenge to
modernity and more in fealty to the sacred scriptures. One can, in some ways,

19' Abd al-Ra1;unin 'Allsh, Bayan Ii al-Nii"s wa Taqrlr /jaqaiq bi al-Bur¥n trace their thoughts to the doctrinaire traditionists of early Islam. Known variously
(Cairo: Matba 'at Sabib, 1928)3 !
12 Introducron Chapter One 13

as the Ahle-lJadUh (mainly in the Indo-Pakistani subcontinent) and i the the soundness of applying the term fundamentalist to describe such a complex,
Salajfyya/Wahhiibl movement (in the Arabian peninsula) this group's rejecti0f of global phenomenon.
taqlld was based on reasons that were theological more than legal. For! the Thus, whilst I consider the terms I use herein essential denotative clUsters
Salafiyya, taqlld, simply put, is tantamount to shirk, or idolatry. The muqallid, that help make my task less problematic, I am aware that such terms, given the
(one who subjects himself to the dictates of the madhanib) in deferring complexities of the discourse they symbolize, often necessitate, exhaustive
unquestioningly to one of the eponyms of the schools of l~w, thereby deifies I the analyses of their own. Take for instance, the word modem which features so
latter and accords him a status reserved for the Qur'an and the teachings of the prominently in this study: firstly, definitions of this word along with its derivatives
Prophet.20 are said to be largely synchronic, shaped that is, differently at different points in
The Salafiyya's indifference to the challenges of modernity and their time, without any necessary ~orrelation to historical factors; hence the tendency,
aversion to rational discourse in legal hermeneutics is what set them apart from in some circles, to juxtapose, for instance, modernism with modernity. The former,
another strong proponent of ijtihad: the Islamists or more popularly, i the in this case, is said to refer to the "constituent material elements of the modem
Fundamentalists. Established initially in Egypt and in Indo-Pakistan as the! al- world" and the latter to "the contingent ideological reshaping of human experience
Ikhwan al-Muslimiin and the Jamate-Islaml respectively, this movement, throrgh in response to the modem world".2 1 Then again, for some, both these te~ are
the creation of numerous satellites, gradually extended its sphere of infludnce synonymous to the liberal theology of 20th century Protestantism, wpile for others
throughout the Muslim world. The leadership of this group comprised not of they constitute no more than the pseudo-scientific Catholic theology that Pope
'ulama' but of mainly western educated professionals; for instance, Abul 1\ 'la Pius X roundly condemned in 1907. Also, there is Weber's definition of modem
Maududi, and Hassan al-Banna, the ideologues of the Jamat and the Ikhwan were which is synonymous with rational, and is thus explained as the phenomenon of
trained as journalist and school teacher respectively. Efforts at reifying the proffering rational interpretations to ancient religious beliefs.
weltanschauung of these thinkers elsewhere (Indonesia is what I examine Whilst almost all of the foregoing views crystallized within western
hereUnder) created the kind of ideological heterogeneity that seriously questions- thought and history, their repercussions were certainly felt elsewhere, not least, the
world of Islam. But that this in itself proved to be the catalyst for the genesis of
the modernist movement in Islamdom is both, an exaggeration of the
ZIlJ'he Salafiyya also bear a strong resemblance to the Zihirites for, ~ike pervasiveness of western thought among 19th century Muslims as well as an
the latter, they too restrict ijtihCid to the search for legal rulings in the QUr'an ~d
the sunna alone. But unlike the Zihirites, they do accept in principle, Mwllim understatement of the abiding legacy of the Islamic heritage. As Professor w.e.
orthodoxy's schema of the four sources of the law, i.e., the Qur'an, the su~na, Smith points out, "Never before in human history or evolution has change been
qiyas and ijma'. In practice, however, they also severely restrict the scope o~ the
last two sources, mainly because these constitute the rational element of the liaw,
responsible for reconciling the scriptural edicts of the QUr'an and the prophetic
traditions with specific spatio-temporal conditions. For the SalafiyYh the distinction
between qiyas and the personal opinion of the jurist was not always clejrrly
demarcated, hence their reluctance to accord it a place of significance in Ithe
hermeneutics of the Law. For more information on the Zahirites see It
Goldziher, The Zahirites; Their Doctrine and their History (LeideIl: Brill, 1 71 )1
c 21Bruce Lawrence, Defenders of God: The Fundamentalist Revolt Against
the Modern Age (San Francisco: Harper and Row, 1989)

Chapter One 15
so swift, so pervasive, so perspicuous as today",22 and for Islam this has had rejection of medieval authorities and their insistence on ijtiJuUi--original personal

special consequences, he notes, perceived by most observers as the "impact" bf thought--directly contributed to the intellectual regeneration of Modem Islam.,,26

the West, or of the twentieth century, upon Islam, almost as though the latter were But the Modernists took the process further:

inert. "But Islam, too is a force", he stresses, "one that has been in motion now
whereas the earlier movements, while removing authority, offered
for more than thirteen centuries. Upon the modem Muslim and his society thete little new material to be integrated into the Islamic legacy and
is the powerful impact of Islam, from behind . . . as ~ell as the impact of sought merely to go back to the pristine Islam, leaving the space
or field where ijtihiid should actually work necessarily empty, this
modernity from the side. ,,23 Fazlur Rahman agrees. "To many observers", he says, empty space was now filled in by the intellectual products of the
"the history of Islam in modem times is essentially the history of the Weste~
modem civilization.,,27

impact on Muslim society, especially since the 13th/19th century. They conceive Defining fundamentalism is no less problematic, for this term, in ~ddition
Islam to be a semi-inert mass receiving the destructive blows or the formative to being located within the discourse on Islam and the Muslim community is also
influences from the West.,,24 I would add however, that any analysis of Islamic invoked more generally, when analyzing the rise of religious movements in, for
modernism must not just consider the "powerful impact of Islam from behinp" instance, Christianity, Judaism or even Hinduism. The Fundamentalism Project of
as Smith puts it, but must, in fact, begin with the Islamic tradition itself; empha~;is the American Academy of Arts and Sciences, for example, has based its entire
must thus be placed on the Muslim trying to come to terms with the Modem and efforts on the hypothesis "that one can speak responsibly and accurately of "family
not the latter invading Islamic space. resemblances" among disparate movements of religiously ~pired reaction to
What then, are the peculiarities of Islamic modernism and how are th~e aspects of the global processes of modernization and secularization in the
manifested in the history of the era under consideration? Firstly, MusUm twentieth century.,,28 Bruce Lawrence, in like vein, makes the spirited argument
modernists were heirs to those reform movements of the 17th and 18th centuries that "comparison alone reveals what is common, and also what is unique in each
that strived to purge Islam of the excesses of sUfi' mysticism, the superstition lof fundamentalist ca~". To do so however, one must not only "displace the
the masses, the skulduggery of their religious leaders and the rejection by so~e, biblicist, Eurocentric notion that fundamentalism is, by nature as well as by origin, .
of the intellectual obscurantism that passed for religious thought. The latter the special reserve of Protestant Christianity", but also make manifest "which
particularly, according to Rahman, "directly contributed to the intellect1jla1 forces converge under which circumstances to shape various .fundamentalist
regeneration of modem Islam."lS The pre-modem Islamic movements, "by th~ir groups.29

22Muhammad Iqbal, The Reconstruction of Religious Thought in IsI~m

26lbid., 215.·
(Lahore: Shah Muhammad Ashraf, 1951) 7 '

23Wilfred C. Smith, Islam in Modern History (Princeton: Princeton 271bid., 215.

University Press, 1977) 4
28James Piscatori, Islamic Fundamentalisms and the Gulf Crisis (American
24Rahman, Islam. 212 Academy of Arts and Sciences, 1991) x

2Slbid., 214. 29Lawrence, Defenders of God, 6


Chapter One 17
16 Introductztn
Fundamentalism, according to scholars involved in the Project, is "a "man over animal, good over evil, piety over impropriety and godliness over
idolatry." 34
tendency, a habit of mind, found within religious communities Id
paradigmatically embodied in certain representative individuals and movemen "
for purposes of spiritual and cultural self preservation from the blights :of
modernity and secularism. This, fundamentalists accomplish by selectiv~ly
retrieving "doctrines, beliefs, and practices from a sac~ed past" which they,
subsequently modify and refine such that these serve "as a bulwark against the
encroachment of outsiders who threaten to draw the believers into a syncretistic,
areligious, or irreligious cultural milieu."3o Furthermore, fundamentalism is s~d
to actually operate "within the modernist hegemony while challenging not only:its
original premises but also its pervasive authority."3l As for Ishup.ic
fundamentalism Lawrence calls it "a historical accident that some tend to invoke
as an inevitable process."32 Pauline ,Westerman however, sees it as a process of
"cultural reintegmtion" with the emphasis on the transcendent unity of God or
tawhld, "and where social reintegration of law, politics, and religion has top
priority.,,33I, however, use the term interchangeably with the term Islamist to
defme an individual who speaks primarily of Islam as Ita way of life". To that
extent Islamic fundamentalism is indeed, a challenge to inodernity's "pervasive
authority" and an effort at "cultural reintegmtion". But, for our purposes it is,
equally important to see it as a challenge to the authority of Islamic orthodc)xy
itself, to the weltanschauung of the 'ulam'il' and to their efforts at preserving their
hegemony over Islamic intellectualism. It is also within this global perspective tlhat
fundamentalists perceive ijithad; it is, for them, vital for the ultimate conquest of

3Opiscatori, Islamic Fundamentalisms, xii.

3lLawrence, Defenders of God, 229. 34Murtuza Mutahhari, Fundamentals of Islamic Thought: God, Man and the
Universe (Teheran, 1983) 23. Whilst this is a statement by a Shi'i thinker it
32Lawrence, Defenders of God, 190
reflects none~~less, with equal emphasis, the sunni fundamentalist perspective,

33Pauline C. Westerman, "The Modernity of Fundamentalism". In and not surpnsmgly, for another salient feature of the fundamentalists one that set
Journal of Religion. 74 (1994) 1 them at odds with the 'ulama, is their virtual disregard for sectarianism.


., How exactly was ijtihad defined in the early centuries of Islam? Was it
,1 indeed, as some claim, the single element that spawned the efflorescence of the
law during that period? And, did it really cease to function in the 4th/10th century,
or were its doors closed much earlier, at the time when Shifi'rs legal doctrine
became the normative principle of Islamic Law? To the extent that they clarify
many of the refonn movement's hypotheses, the foregoing questions I believe,
need to be closely scrutinized. I will therefore, attempt to do so by way of an
analysis of the lexical and conceptual definitions of ijtilWd followed by an analysis
of the role of ijtihiid in the first three centuries of Islam, tJie period in which, it
is claimed, ijtilWd made its great contributions to the Law.
The meaning of the tenn ijtihiid is not at all ,?lear. The dictionaries, for
one, tell us that it connotes a sense of diligent--even painful--exertion in the
perfonnance of some task. By way of example, the Lisan al- 'Arab presents the

ijtahadtu ra 'yz wa nafsz [latta balaghtu majhUdi: I exerted my

intellect and my self to the greatest lengths. 1
The exertion and pain is the consequence of performing some 'weighty' task that
necessitates hardship, as in the case of one who bears a millstone as opposed to

ISee, in this regard, Abu AI-FaQI b. Maniur, Lisan Al- 'Arab, 1358 ed.
Chapter Two 21
wa qaid al-zann i~tiraz min al-qat~ idh la al-qiJ/'-iyyiit:
a mustard seed. 2 For a legal defmition we tum to Lane's lexicon in which ijtiltiid
the (aforementioned defmition) uses the term 'zann' to preclude
is defmed as lithe investigation of the law, or the working out of a solution of I/llY ijtihad in the categorical proofs (qal' iyyat) for it cannot be applied
in the latter case. s . .
difficulty in the law, by means of reason and comparison, and referring a clise
proposed to the judge, respecting a doubtful and difficult point, from the metbod The above, strangely enough, gives the impression that iann proofs are arrived
of analogy (qiyas), to the Qur'an and the sunna. 3 According to Lane therefore, at through ijtihiid, but not· so, proofs that are qal' i: these are self evident,
ijtihiid and qiyas are not synonymous: the latter is but a !egal device while fue apparently, and thus not in need ofijtihiid. But for the modernists ijtihiid qua
former is the process within which that device functions. But I hope to sbow iann did indeed have the· probative value equal 'to that of the qat'i proofs,
presently that, unlike Lane, many who invoked the term ijtihiid in early Islam as whereas for the conservative Salafiyya, ijtihiid was always, without fail; the search
well as in the period under discussion, regarded it as interchangeable with qiyas. for qal' i proofs.
To add to the confusion, terms such as 'aql, ~nn and ray, to name but a f~w, Recent attempts at reconstructing the history of ijtihiid have also failed to
have been used in legal and theological works, as synonymous with ijtihad. underscore such inconsistencies. Rahman's treatment· of the term gives one the
Tihinawl, for instance, in his opus, Kitiib al-Funiin provides the impression that he was not quite conscious as to its multiple interpretaions. For
following definition of ijtihiid: instance, in one place he stateS that ijtihiid, according to the classical view as
eSpoused by shift ~T, was to be expressed through qiyas. This, he says, meant an
istifragh al faqm al-wus'a Ii ta~u iann bi ~ukm sharf: the legist's
"effort to understand the meaning of a relevant text or precedent in the past,
(jaqm) exertion of his power in order to gain a ruling (a zann
ruling that is, as opposed to a qat' i ruling) regarding a religious containing a rule, and to alter that rule by extending or restricting or otherwise
rule.4 .
modifying it in such a manner that a new situation can be subsumed under it by
Ijtihiid therefore, according to the foregoing, is a juristic methodology while ~nn a new solution.,,6· In another place however, these two-ijtihiid and qiyas--takeon
is the probative value of the yield of that methodology. iann howeverj as different meanings: "There is no doubt" he says, "that early scholars of Islam and
understood in early Islam, also referred to a process of sorts, that is, to the jurist's leaders of the community exerciSed a good deal of freedom and ingenuity in
use of his unfettered opinion in all matters of the Law. That the latter is neither interpreting lhe QuI'an, inCluding the principles of ijtihiid (personal reasoning) and
the ijtilWd nor the iann that TihinawT has in mind is clear from the following: qiyas (analogical reasOning from a certain text of the QuI'an and arguing on its

SThe so-called qal'iyyiit and ianniyytlt refer to the verses of the Qur'an that .
speak of legal rules mainly: the former are said to be literal and thus, categorical,
2Alpnad b. MuI;1ammad AI-FayUmi, AI-M4bQll AI-Muneer, 1901 ed. :The in the sense that they admit of no more than one single interpretation; the latter
example therein reads: yuqiil: ~jr al-rQlla, wa la yuqiil: ajtahidu have greater flexibility of meaning and are generally not considered to bave the
Ii ~ml khardala. ~ same juridical value. For more information in this regard see M. Abu Zahra,
U~aL al-Fiqh (Cairo: Dar al-Fikr al-'Arabi, 1958) 94 ff.
3Edward W. Lane, Arabic-English Lexicon, 1984 ed.
6Fazlur Rahman, Islam and Modernity: Transformation of an Intellectual
4Muhammad h. 'Ali' al-Tihinawl, Kashshiif Isila~t al-Funiin (Cairo: 1~63)
Tradition (Chicago: University of Chicago Press, 1989) 8
22 Legal ThejlY Chapter Two I 23

basis to solve a new case or problem that has certain essential resemblances t~ ~h~ the law ought to be'.ll Jjtihiid in a restricted sense,howevet, came to apply to the
former)".' In yet another place he says: "in the late eighth century c.e. shift '1 "use of the method of reasoning by analogy (qiyas)"~
successfully fought for the general acceptance of 'traditions from the Prophet'i as . For a closer scrutiny of the conservative traditionist's definition of ijtihad,
a basis for interpretation instead of ijtihiid and qiyCis',.8 Here Rahman, with~ut I tum to some of the statements of the lzadi"th scholar, Muhammad b. Ismilj} al-
realizing it, clearly refers to the ijtihiid of the early schools, which, as will 'be Bukhin. In his magnum opus, AI-Salzill, whose chapter headings are on the whole,
shown hereunder, was synonymous with personal opinion. (ra'y) and not qiyiis. even yet an echo of his personal opinions on legal' issues, Bukbin makes quite
M.M. Bravmann's explanation of ijtihad and other related terms is one more clear that for him, the terms ijtihad, ra'y and qiyas are far from interchangeable.
example of this incongruity. In his analysis of the sunna and related concepts, He spells this out in one such chapter heading which reads:
Bravmann equates ijtihad and ra'y in the technical sense "as concepts referring
Bab ma yudhkar min dhamm ai-ra'y wa takallufal-qiyas: (Chapter
to each other and supplementing each other."g Goldziher however, rightly po~nts dealing with the condemnation of ra'y, and the pretensions
out that of(qiyas).

As if to drive home the point, he follows with a verse from the Qur'an--a favorite,
In ordinary Arabic usage, al-ra'y is a word of favorable meaning
unless qualified by an adjective abrogating this meaning. In the I might add, with those who regard qiyas as different from ijtihad but synonymous
sense of a good, prudent correct and reasonable view, it is
with ra'y--"Wa la taqfma laisa laka bihz 'ilm" and do not follow that of which
juxtaposed to hawan, a rash decision, prompting misguided passion.
For the conservative traditionist however, al-ra'y is a word of you have no knowledge". 12 For Bukhiii' therefore, qiyas is clearly synonymous
decidedly derogatory connotation,and in the theological sense it is
with ra'y, as opposed to ijtihiid which he regards, if not synonymous with ~~ or
almost equal in meaning to the word hawan. IO
textual proof, then, at least, as a method of searching for such proof. To buttress
This distinction is supported by Schacht who maintains that to "the earliest
his argument he refers·to a tradition ascribed to the Prophet which declares:
specialists in religious law, the search for legal rulings had been identical with the
exercise of their personal opinion (ijtihad al-ra'y), of their own judgement of what za
inna Alliih yanzi' al-' ilm ba' cia an a' liihumiihu intiza' an, wa
lalcin yantazi' uhii minhum ma 'a qahq. aI' ulama' bi 'ilmihim fa
yabqa niisunjuhhiiliin yustaftaunafa yuftiinabi ra'yhimfa yurjilliin
wa yatjilliin . . . God does not suddenly remove knowledge after
having bestowed it to you; He does so, rather by removing the'
scholars together with their knowledge which leaves ignorant
people to be consulted. These will rule by way of their opinions (bi
ra'yhim) and will thus mislead others and be misled themselves.
'Ibid., 8.

IIbid., 18.

~.M. Bravlnann, The Spiritual Background of Islam (i.efden: E.J. Brill,

1972) 188 llJoseph Schacht, An Introduction to Islamic Law (Oxford: Oxford University
. ' Press, 1964) 68
IOJgnaz Goldziher; Introduction to Islamic Theology and Law (New J~ey:
Princeton University Press, 1981) 10 12Qur'an: 36: 17
24 . Legal Therry Chapter Two 25

Bukhiii was nonetheless at pains to point out that ijtihiid, as he interprets it--tbat I have yet to focus on the classical, jurisprudential defInition of ijtihiid, that

is, in conjunctions with 'ilm--is a perfectly legitimate source of the sacred Law is, the defInition as distilled by legal theoreticiaDs through the period of the

as opposed to qiyiis which is illegitimate. As evidence, he cites the follow~ng development of the Law; the latter is essential, both as an indication of the

verse of the Qur'an: development of the Law and also as a referent for further discussions on this
topic. This classical defmition, with a few variations, was almost standardised in
Wa Daud wa Sulaiman idh ya{tkumanfi al-ftarth, idh nafashat/ihi the 17th and 18th centuries and appears thus in moslof the major jurisprudential
ghanam al-qaum wa kunna Ii {tukmihim shiihimn. wa fahhamniiha
Sulaiman wa kullan atayna {tukman wa 'ilman . .. and (remember works of that era. The defInition that I have included hereiD. however, is one
too) David and Solomon who passed judgement with regard to the employed by the 18th century Indian thinker, Wall Allah Dehlawr\ it is
field wherein the sheep of the people had strayed; and We were
indeed witness to their judgement. To Solomon We bestowed particularly useful in this context because, firstly, it alludes to the kind of ijtihad
understanding whilst to each (of them) We gave wisdom and that was practiced prior to shifi'l (see the next section) and secondly, it
encompasses all the major modifications that the term underwent through the ages.
which he then explains as follows: Dehlawi says that

Fa{tamida Sulaiman wa lam yalum DaUd, wa laula ma dhakara

Alliih min amr hiidhain lara'ita anna al-qu{iiit halaka, fa innahii the true nature of ijtihiid, as understood from the discourse of
athna 'ala hiidha bi 'ilmih"l wa athara hiidha bi ijtihiidihl. .. He scholars, is exhaustive endeavor in understanding the derivative
(God) thus praised Solomon without chastising David; and had God principles of the Holy Canon Law by means of detailed arguments
not spoken favorably of these two: praising the one for his their genera' being based on four departments: '
knowledge and the other for his "ijtihiid", you would surely have (1) The Holy Book
seen the judges perish. (2) The Example and Precept of the Prophet

It goes without saying that 'ilm in this context is synonymous with ntJ§~, ii.e.,
irrefutable textual evidence. Looked at in conjunction with each other, tb.ese 14Dehlawi, in addition to his jurisprudential capabilities, is also important for
th~ rol~ he plays in the reformist ideas of almost all Indo-Pakistani reformists.
citations make clear that for Bukhiil, and indeed, for the doctrinaire traditionists HIS philosophy was particularly attractive to those drawn to ijtihiid because as
i.e., the Ahl al-lfadiih l3 of early Islam and their successors, the Salafiyya ot1 the Aziz Ahmed (1967:40) points out he '

early 19th century, it is ijtihiid qua 'ilm that is approbative and not qiyiis, raYland had already mitigated the influence of the watertight
iann. I hope to return to this particular discussion in my analysis of the Inflian compartmentalization of Muslim jurisprudence by permitting a
belie~~r t? ~hoose on any point the ruling of any of the four great
Ahl-e-Ifadiih movement's arguments for ijtihiid. SUDIll Junstlc .schools; (he) had rejected bidtah (innovations) and
accretions borrowed from extraneous· and alien cultural contacts
by Islamic traditionalism. (He) had reiterated Ibn Tayroiyya's
sig~fic.a~t anti-traditi?nalist thesis that the bab al-ijtihtid (the gate
of mdlVldual reasonmg) was still open and should not be
131n order to distinguish between the early Medinan exponents of hadith a$ the considered closed.
preeminent source of the sacred law as opposed to the proponents of opinion~ the
Ahl al-Ra 'y and the later Indian opposition to the madluihib and taqlfd I pave For more information in this regard see 'Ubaid-Allah Sindhi, Shah Wali-Allah
chosen to call the former the Ahl al-Ifadith and the latter, the Ah.l-e-Ifaditl. awr unka falsafa (Lahore: 1949)
Legal Theory Chapter Two 27
nonetheless, tends to obscure the fact that a defacto legal theory, albeit primitive
(3) The Consensus of Opinion of the Muslim Community
(4) The Application of Analogy (qiyas) and unrefmed, was already in place from the very outset. While the sacred canons
Let it be lillderstood from this that ijtihiid is wider than (Le.,
were neither adequately explicit nor particularly systematic "in their legal
confmed not to) the exhaustive endeavor to perceive the principle
worked out by earlier scholars, no matter whether such an endeavor pronolillcements, they did nonetheless, proVide a theoretical paradigm that was
leads to disagreement or agreement with these earlier scholars. It
much needed for a society that was becoming increasingly complex. But, equally
is not limited by the consideration whether this endeavor is made
with or without aid received from some (of the earlier scholars) in misleading, is the view that early Muslims envisaged something as distinct as a
their notification of the aspects of questions involved in a given
comprehensive legal system as such. 17
issue and their notification over the sources of the principles
through detailed arguments. IS The QUr'an for instance, except for addressing explicitly some issues of
personal law germane to the needs of a growing community, dwells, in the main,
I will now explore some of the foregoing ideas more closely, wilth
on themes that are decidedly ethical and moral in character rather than legal and
reference to the early development of the Law.
technical; its goal is the establishment of a just and equitable social order. A point
The birth of ijtihiid as a legal concept went hand in hand with the
implicitly acknowledged, almost from the beginning was that these moral
development of Islamic legal theory. This last, known technically as the ~iil /ill-
exhortations, notwithstanding their lofty ideals, were still in need of a legal system
fiqh, is an a posteriori annex to the Law, evolving, as it did, after the
if true justice was to be realized within the social milieu. In the first place, as
promulgation of a considerabl~ corpus of legal injunctions. Its late arrival
God's vicegerents on earth, Muslims were expected to live their lives in
lillderscores a rather peculiar aspect of Islamic Law: the latter is determined
accordance with the dictates of their faith. Islam being a religio-social
primarily by the ethos and the theology of a faith, whose very articulation spawns
phenomenon was not favorably disposed to the monasticism espoused by others
from within that same Law. This symbiosis of religion and Law is perhaps w1l1at
and to its adherents living the life of a community of hermits devoid of soc~al
defmes Islam more sharply than any other factor, whilst at the same time imbuiing
institutions. It was thus expected of them that they marry, and if need be, divorce,
it with praxis or a sense of 'doing'. That being the case, positive law, from the
and that they indulge in commerce as well as in international relations. A society
outset, almost naturally, became a dominant theme in the religion; legal thOOJy,
with such aspirations could hardly have persevered for long without a coherent
in contrast, contributed so insignificantly to that Law that the latter has often been
legal structure. One is therefore lillderstandably puzzled by Schacht's suggestions
characterized as Ita topical responsa (nawiizil) bereft of systematic connectioIlj or
that "law as such, fell outside the sphere of religion, and as far as there were no
of theoretical elaboration.,,16 This suggestion, though not entirely without trdth,

ISM.D. Rahbar, "Shah Wali Ullah and Ijtihid," The Muslim World 45.4 (19~5):
346 I
16Por an infonnative discussion on how Islamic Law "appropr~ated diffeltent
171 refer to the numerous attempts at exegesis by the Companions of the
realities and systematized them as part of its corpus ... " see Aziz Al- Azmeh,
Prophet as part of an attempt to form some kind of a legal framework, if not a
"Islamic Legal Theory and the Appropriation of Reality," Islamic Law: SOfial
the~I?' as such; . for an o~erview of this period see M.T. Amini, Fundamentals
and Historical Contexts. ed. Aziz AI-Azmeh (London: Routledge. 1988) 2l50-
of ljtlhiid (Delhi: Idarah-l-Adabiyyiit, 1986)
265. .
Legal Theort Chapter Two 29
religious or moral objections to specific transactions or modes of behavior, the indeed". The task that lay ahead was however, enormous: it required that the

technical aspects of law were a matter of indifference to the Muslims" .18 Law--practiced thus far with minimal difficulty--now assume a degree" of

It is, I suggest, hardly likely that Muslim society was bereft of law merely , sophistication and flexibility not known to it previously. It is with this period that

because the 'technical aspects of law were a matter of indifference to thb one can discem the fIrst attempts to apply personal reasoning--the forerunner to

Muslims'. Substantial evidence exists to show an unmistakable concern on the patt the ijtihad ai-ray of the schools of law--by the companions of the Prophet and

of the early Muslims for legal structures. 19 But it is non~theless, essentiall~ particularly by the early caliphs. 22

correct, as Schacht points out, that the law, in the classical period was not a legal But applying personal opinions and rational arguments to the sacred texts

system, technically speaking, comprised that is, of principles and rules as set ou~, was not a task that the early community took lightly. The possibility that, in doing

for example, by the modern state on behalf of the people. This perception of tl1.e so, they were in effect tampering with divine decrees and" earning the wrath of

law, as a thoroughgoing legal system, acquired prominence only in recent tim~s God made the entire venture all the more problematic. The caliph, Abu Bakr, for

in the Muslim world.20 instance, is known to have vacillated a great deal before being convinced that the

Already, during the latter part of the Prophet's life, the community had compilation of the Qur'an, as suggested by his successor, 'Umar, was indeed a

established the fIrst legal institutions which were gradually replacing the sound idea, religiously speaking. He could not bring himself to perform a task, no

customary laws of pre-Islamic Arabia. Por the first time, Arab society was matter how seemingly good, that had no support in the sacred texts. There was

regulated by a judiciary of a sort: qiUjis or judges were appointed to oversee "the thus, a pressing need for a rationa'l, legal mechanism that would serve to interpret

disputes of the communit)r.21 Many of these institutions, however, after the the revelations as embodied in the sacred canons, to extrapolate from them legal

Prophet's demise, outgrew the rudimentary theoretical paradigm upon which th~y rulings not mentioned specifically therein, and to expand the ambit of its

had functioned in the past. This was inevitable given the cOlnmunity's cherished authority.23

vision of an ever expanding, Islamicised world, wherein divine law as embodied According to Muslim scholars, this was a need that the Prophet himself

in the sacred canons ultimately prevails. To that extent, Islamic Law is indeed had anticipated. This much is evident from the I}.acfi"th of Mu 'idh b. Jabal the so-

nomothetic both in its origins and its objectives; it is fIrstly, God's law as revealed called 'locus probans for ijtihQd', wherein the Prophet questions Mu'idh, his

to MuJpuninad, and secondly, it is a Law meant to be exercised universally for,

as the Qur'an put it, "whosoever judges not by God's revelation are infid~ls
22Por examples of the ijtihiid of this period, see generally M. K. Bakk, Tan7ch
al-Tashri' al-Islamf, trans. M.T. 'Uthmani and H.I. Hashmi(Karachi: Dar AI-
ISJ.Schacht, An Introduction to Islamic Law, 19 Isha' at, 1965) "
19See M.M. Azami, On Schacht's Origins of Muhammadan Jurisprudence 230ther scholars have also commented on the origins of this debate in early
(New York: John Wiley and Sons, 1985) for a response to this tlJ-esis. Islam; Wensinck, for instance, has suggested that ". . . the debates on
predestination inaugurated rationalism in Islam." See A. T. Wensinck, The
lOPor the role of legal history in Muslim jurisprudence, see N.J. CoUlst n ,
A History of Islamic Law (Edinburgh: University Press, 1965) !
Muslim Creed, p.53. Arberry, on the other hand, has proposed that the" ... first
I rational act in it's (Islam) history was the recognition of Abu Bakr as Mohamed's
2IM.M. 'Azami, On Schacht's Origin's of Muhammadan Jurisprudence, :10 caliph." A.J. Arberry, Revelation and Reason in Islam, p.12.
30 Legal 17leot Chapter Two 31

governor to Yemen, as to how the latter would address the problems he wouIjd solutions to the multifarious predicaments that were rapidly multiplying. The

encounter. solutions at that time, generally speaking, were not always anchored in any legal
theory as such, or for that matteI', in· the sacred scriptures. For example, when
The Prophet asked: "How will you judge when asked to, 0, challenged with the refusal of some of the tribes to pay religious taxes (zakat)
Mu' adh"? He replied: "In accordance with the Book of God". The
Prophet asked: "What if you fail to [md the answer therein"? He Abu Bakr, the first caliph, acting on his own legal judgement (ijtihiid or ray!) was
replied: "Then I will refer to the traditions of the Prophet". He quite unwavering in his decision to subdue the rebellion forcefully, even though

asked: "What if ypu fail to find the answer in the Book of God as
well as in the traditions of the Prophet"? He replied: "I will strive his actions found no explicit support in the Qur'an or in prophetic precedent.
(sa ajtahidu) diligently, without sparing any effort, to form an Similarly, 'Umar, his successor, imposed a land tenure (kharaj) on the non-
opinion". On this, the Prophet tapped Mu' ildh on the chest and
commented: "Praise God who made appropriate for the messenger Muslim inhabitants of the freshly conquered territories and thus revoked the
of the Apostle that which pleases the Apostle".24 previous system inaugurated by the Prophet which allowed for the distribution of

It must be stressed at this juncture, that the ijtihiid spoken of here is no more th$n the conquered lands among the conquering forces. 25 The same can be said for

the exertion of one's mental faculties in arriving at a decision. A review of the 'Uthmiin and 'AIl, the third and fourth caliphs respectively: the former is credited

rulings given in the early period of the law gives no indication that the term itself with, amongst other things, the introduction of the second call to prayer for the

had ever been explicitly invoked when such a ruling was being made. This onjly Friday services, and the latter, for having reduced--in the law of succession--the

took place much later as will be shown presently. fractional shares as stipulated in the Qur'an in the event that such shares together

With the culmination of the revelatory process and the death of the Prophet exceeded a single unit Governors and other public officials appointed to the

there occurred the territorial expansion of the Muslim empire and the Islamisation administration of the conquered territories were also encouraged to exercise their

of the Arab hinterland. The practical difficulties of governing vast, freshly personal judgement if the occasion so demanded. ShUJ'llylJ for instance, on being

conquered" territories posed a challenge to the administrative and juridical" ski~ls appointed judge during the reign of 'Umar, was told by the latter: "If you ~

of the community. This new phase was singularly significant for its ad hoc something in Allah's Book, consult no one else; if you are not clear about
something in Allah's Book, then follow the sunna; however, should you not [rod
24Abii Daiid, al-Sijistani, Al-Sunan, ed. M.M .• Abd Al-lJamid, (Cairo: 1947) this in the sunna either, then follow your own judgement independently".2(i
This particular tradition, with some variations in wording, appears in the Surl(;m The type of ijtihiid practiced in this era is particularly appealing to the
of al-DarimI, vol.1; Musnad of Alpned b. lJanbal, vol.l; Sunan of al-TinnidJii,
Kitab al.:.Al}kam vol. 4 et al. The ijadith however is not without controverfY; modernist element in the reform movement primarily because it set a precedent
BukharI takes exception to one of the narrators in the sanad (chain of for the supercession of the express injunctions (1lU§U§) of the Qur'an, in some
transmitters) of the hadith, TinnidhI however, accepts the ijadith, notwithstanding
the said weakness, because it is supported by several other traditions. For ml[lre circumstances, by the independent reasoning of the judge or head of state; this,
detail, see Khalil Alpnad, Badhl al-Majhad, (Abidain: Dar al-Bayan, 1973)
This hadith however, has been regarded by both GoldZiMr and Scha~ht
as spurious. The fonner maintained that it was the Ahl al-Ra'y "who. endeavored 25Marshall Hodgson, The Venture of Islam: Conscience and History in a
to fabricate for its (ra 'y) validity an old tradition, and an authority going bac14 to World Civilization (Chicago: University of Chicago Press, 1974) 270
the earliest times of Islam." See Goldziher, The Zahiris 8, and Schacht, Ori1ins
105 ff. 2(iAI-IsfahanI, AbU AI-Farj, Kitdb aI-Aghiini. 20 vols., (Bulaq, 1284-85 h.)
Chapter Two 33
32 Legal The1ry
in this effort, but as Schacht explains, Iraq's role was pivotal: firstly, it served
they maintained, should not be overlooked in any restructuring of the law. '*y
as "the intellectual center of the first. theorizing and systematizing efforts which
theory, the evidence for which I provide in chapter four, is that many modernjist
were to transform U~yyad popular and administrative practice into Islamic
reformers, given their commitment to the adaptation of the sacred' law·. to
law;,,28 and secondly, with regard to the rivalry between the Iraqi scholars and
contemporary, mainly western, ethico-moral standards, were merely striving Ito
their Hijazi counterparts, it must be remembered that legal doctrine almost
break out of the legal framework of the normative u§iil that had so regimented the
invariably. proceeded from Kufa to Medina, and not vice versa. 29 The early schools
practice of that law; it was their hope that this will be l!-ccomplish!'lCl throqgh
of law surfaced around this time. These schools, the precursors of the four schools
of law (al-madhanib al-arba' a) that were allegedly institutionalized after the
The Umayyad period which followed, was characterized by a fortuitCPus
closing of the doors of ijtihad,introduced a new form of ijtihDd, the ijtihiid ai-ray
fusion of legal judgements and state policy, all appropriated from a variety of
that I alluded to earlier.
mostly disparate sources. Elements of Roman, Byzantine and Sassanian law which
The efflorescence of these schools is, in all likelihood, attributable to the
were present in the political and administrative structures of the newly conqu~e,d
'ulama's opposition to the Umayyad practice of legislating independently of the
territories were absorbed into the rapidly expanding Islamic empire. The same was
text of the Qur'an. Their genesis was thU$, embedded, not in juridical precedent
true for the religious and cultural values of these regions if the theological issues
as such, nor even in any thoroughgoing legal theory, but in the.protest movement
that gained prominence in the community during this period are anything to go by.
opposing the legal machinations and court practices of the Umayyads. But the
The separation of the mawCilz (the non-Arab Muslim affiliates or freedmen of! the
alternativ~ that these schools presented were almost equally unsystematic and
conquering Arabs) from the social mainstream is a case in paint: Ws
syncretic. The legal scholars and jurists who belonged to these schools drew their
phenomenon, a stranger to the Arabian peninsula, seems to reflect, to some extent,
decisions from the sacred canons. and the customary \practices of their individual
the hierarchical social. structure typical of the mazdean Persia.17
localities, but. not necessarily in that order. The closest they came to having a legal
The latter portion of Umayyad rule was also significant for its intell~tual
theory as such was in the 1iving sunna' of their respective localities; this last was
endeavours whence the various sciences began to coalesce rapidly, to the ex.tent
essentially, a counterweight to the sunna as construed by the Umayyads. During
that each acquired characteristics that set it apart from the others. The Anibic
the second century of Islam this living sunna of the schools of law first gained
language, for instance, was emerging as a major area of inquiry,with futther
prominence primarily as the custom of a particular locale, but one that contained,
specializations in, for example, rhetoric (baIaghah),syntax (na~w), and etymology
according to Schacht, Ita theoretical or ideal element so that it [came] to mean
(Jar/). Greater strides, however, were being made in Islamic law with a g~ter
normative sunna, the usage as it ought to be.,,30
level of sophistication and heightened philosophical enquiry into the textual and
contextual possibilities of the law. Several parts of the empire were instrum~ntal

. 18Schacht, Introduction, 29.

19Ibid., 29.
17Por the History of early Iranian society see J. M. Cook, The Persian Erppire
(London, 1983). Also see R.Prye, Islamic Iran and Central Asia (7th 12th r 3OSchacht, Introduction, 56 .
. centuries), London 1979.
34 Legal Theory Chapter 1Wo 35
Now, the relationship of these schools to the prophetic epoch and to lUs shifi'l, as ,will be shown, successfully argued that point and consequently
sunna as generally understood is not quite clear: Schacht, for example, opines that changed the nature of ijtihad henceforth.
in their desire to sanctify the ijma' (consensus) of their own schools and to P$ Of the major issues that separated these schools, none was as prominent
it off as being essentially Islamic, a retrospective projection of the living suntm or acrimonious as the one surrounding the legitimacy of using ra y in
back to the Companions and, in some cases, even to the Prophet himself, was eontradistinction to Ijadi"th in legal affairs. We learn from Dehlaw1 that at flISt,
undertaken by the epigones of these schools. Needless to ~y, this view has not only the soundest traditions attributable to the Prophet were accommodated by the
gone unchallenged; the whole charade of projecting backwards what was Kufans in settling legal disputes. 32 The criteria that they had devised for accepting
purportedly the consensus of the regional schools begs the need for such action. the sunna of the Prophet were so rigorous as to effectively exclude all but the
Surely, this could only have occurred if there existed, at the time, the widespre~d soundest accounts thereof. In contrast, their Hijazi counterparts would refrain from
recognition of the prophetic sunna as having probative value for legitimatlpg opining even against unsound traditions. Consequently, the latters' rulings relied
questionable practices. Without this kind of awareness, the 'backward projecti<l>n' more heavily on Ijadi"th literature than did the rulings of their rivals. Schacht's

of ideas would be meaningless. hypothesis in this regard is quite different: he maintains that the Ijadith
Additionally, that there was in the major centers of Islamic leaming a movement, in reaction to the unsubstantiated speculations of the Ahl ai-Ray, put
scholarly presence with links to the Prophet, and hence to his sunna, is wid¢ly into circulation a variety of spurious traditions traced back to the Prophet. The
accepted by scholars past and present. The Kufans, it is said, traced their links, to development of the former vis-Ii-vis the ancient schools, according to him; should
the Prophet through Abu IJanlfah, IJanunid b. Abu Sulaiman and ultimately, the therefore be regarded, not as simultaneous to each but rather as sequential; it was
celebrated companion, 'Abd Allah b.') Mas'ud. The Medinese, who initildly in essence "a movement of religiously and ethically, inspired opposition to the
subscribed to several authorities, eventually chose seven as-representative of their ancient schools of law." The main thesis "of the Traditionists, as opposed to the
views: Sulaymin b. Yasir, Sa'ld b. al-Musayyib, 'Urwa b. al-Zubair, 'Ubayd ancient schools of law, was that formal traditions deriving from the Prophet
Allah b. 'Abd Allah b. 'Utba, Abu Bakr b. 'Abd al-Ralpnin, Kbirija b. Zayd b. superseded the living tradition of the school."
Thaoit, and Qasim b. Mul}ammad b. Abu Bakr. Several scholars traced ~eir From a socio-political standpoint, it is likely that the oppositiOn to the
views thiough 'Abd Alliih b. 'Umar to the Prophet. In Mecca, 'Ali' b. Abu regional schools stemmed from an increasing awareness on the part of the
Rabib and Ikrimah, the freedman of Abd Alliih b. 'Abbas form the link to !the community that the rulings of the jurists on the basis of their personal opinions
Prophet via Ibn 'Abbas.31 Nonetheless, the issue that remained unresolred (ray) posed a threat to their socio-religious cohesiveness in two ways. Firstly, ray

throughout this period was the place of the prophetic sunna in the overall lc)gal was most often an individual scholar's personal opinion based on his own
structure. Until the advent of Shifi '1 it was not absolutely clear that the sun1l4 as knowledge of the scriptures coupled with his experiences as a jurist in a particular
projected by Ijadi"th literature had legal authority second only,.to the QwI'an. locality. As such, it almost challenged, in an unspoken way, the authority of the

31For more information on the Companions of the Prophet and their 32See, in this regard his work, Al-l~af fi Bayan Sabab al-lkhtiliif (Lahore:
contribution to Islamic Law see M.K. Bakk, Tan7ch al-Tashrf' . Auqaf Dept., Govt. of Punjab, 1971)
I Chapter Two 37
36 Legal Theoty
b. Anas. The latter, however, declined his request and effectively epded direct
sacred scriptures. Secondly, because of the localized nature of such rulings, ntaQy
legal and theological conflicts in the greater community started to appear. state interference in Islamic Law.
By deferring to the authority of the legal scholars; the 'Abbasids, in effect,
, The relationship of the Qur'an to the sunna of the· Prophet was until th$l
endorsed an idea that was to. remain in vogue throughout Muslim legal history:
not clearly explicated, and this only exacerbated the problem. When faced with
that the rulers of the Islamic state have authority, not to determine the sacred law
a new or complex issue a single verse of the Qur'an or a saying of the Prophet
would sometimes constitute a general principle and sometiq1es a legal precedept as such, but merely to implement the decisions of the scholars. Nevertheless such
actions could not have substituted for the legal theory that the law still lacked.
often without regard for the social context of such a decision. For instance, the
"Clearly", as Coulson points out, "some unifying process was necessary to save
punishment for one who confesses to sexual misconduct is eighty lashes. This wllS
arrived at, rather arbitrarily, by the jurist who used his personal considered opini~n the law from total disintegration. Equally clearly, the impetus for such a process

to draw an analogy with the Qur'anic punishment for the defamation of chaste had to come from within the Law itself and its qualifled exponents. The hour
produced the man--in the person of Mul}.ammad b. Idrls al-shifi. '1,',33
woman. In this way the 'considered personal opinion' of the jurist and the judge
were gradually transformed into a crude form of analogical deduction in which shiifl 'I is remembered for having formulated the first thoroughgoing legal

the previous judgments of the eponyms of a particular school formed the basis fpr theory in Islam. But what is often overlooked by those who argue that the doors

new judgements; There was a movement of thought, Rahman tells us, "from the of ijtihiid were closed in the 4thf7th century is that shifi. 'I, more than any other

explicitly mown to the explicitly unlmown . . . but, in both the choice of the scholar, was also primarily responsible for the closure of those doors. By

model and the discernment of the point of resemblance, almost unbridled liberty curtailing the personal opinion (ijtihiid al-ra'y) of the early jurists to the rigors

was taken and the results varied between sound analogy on the one hand and of qiyas he effectively banished unsubstantiated legal reasoning from the law.

almost complete arbitrariness on the other." The overall effect of these trends This he succeeded in doing by focusing on the role of the sunna in the law.

were alarming; to say the least. The doctrinal and political unity, forged ISO
The term sunna appears in the Qura'n in several places either as God's

painfully by the Prophet and the early community, was being strained by tlhe custom (sunnat Allah) or pre-Islamic custom (sunnat al-awwali'n).34 The two are

disparate Conclusions that scholars arrived at by way of such legal methods. sometimes used in conjunction with each other to express God's unfailing requital

A rather unique solution to these legal disparities was offered by ~n of those, in the past, who slighted the admonitions and counsel of His apostles.

Muqaffa (d. 757), a Persian convert to Islam and a secretary of state during the While the Qur'an makes no allusion to the Prophet when referring to·the sunna,

reign of the caliph, Man§iir (d. 775). He urged the caliph to exercise his oWn the Prophet himself, in. several authentic. traditions, is recorded as having used the

ijtihiid, i.e., his personal opinion, as head of state to replace the living tradition of term to refer to his own normative practices. In one, Malik quotes him as saying:

the regional schools. This, probably the first proposal for state legislation in Islam,
was rejected because MIll1§Ur was all too conscious of the fact..that a simUar
course of action was the undoing of his predecessors. Instead, he attemp~, 33Coulson, A History of Islamic lAw, 133

without success, to bring about the legal harmony that Ibn Muqaffa had envisa,ed 34See QUr'an 17:79,33:62,35:42 for examples of the first type, and 8:39,
by giving his· seal of approval to the legal system of the Medinese jurist, 1ik 15:13, 35:41 for the second.
Chapter Two 39
38 Legal Thef7Y -
independent source qf the law, had not crystallized at the death of the Prophet is
"I leave among you two ordinances; if you adhere to them diligently, you Jul
not entirely without merit.
never stray: the Qur'an and my sunna." Admittedly, in that period, the sU7/.na
The Prophet's death, it must be remembered, had the immediate effect of
referred also to the customary law of Arabia, or the sunna of a partic~lar
throwing open the question of authority in Islam. Previously, the Prophet himself
individual, or, as used infiqh, as but one referent in the structure of ritual practice.
determined the laws of the community, but his authority to do so was inherited by
Still, if we go by the early accounts of that era, it becomes quite evident ~ it
not one but three often contradictory criteria whose relationship with each other
was the sunna. of the Prophet, in a practical sense, that sprang to mind whene:wer
was not always clearly de~cated; these were: the Qur'an, the practice of the
the term was commonly invoked. If looked at in the light of the Qur'an's h~vy
Prophet himself and the customs of Arab society. Missing, still, was a theoretical
emphasis on the role of Mul}ammad as a prophet of reform, these accounts, I
paradigm that would both govern the relatio~hip of these structures to each other
suggest, are not without merit. Clearly such reforms, notwithstanding ~eir
as well as to the adherents of ,the faith. Given that hiatus, it Was almost inevitable
religious tenor, were, in effect, a thoroughgoing restructuring of ordinary Ajrab
that a new sunna would emerge, one that would work towards the coalescence of
social and political institutions.35 It follows, therefore, that the Prophet's task was
these disparate tendencies in the law. That it did by way of the 1iving tradition'
no less than the overhaul of the mom structures, social norms and the custoniary
of the schools of law in the different regions was neither anticipated nor
laws of Arab society. In short, he Was to replace the pre-prophetic sunna with! his
wholeheartedly welcomed. If anything, it simply exacerbated the problem of
own. The early community therefore, could hardly have been oblivious to Uris
authority by appending one more facet to what was already a much variegated and
meaning of sunna. 36 Even so, Schacht's notion that the prophetic sunna, as an
convoluted way of determining the dictates of the law.
shift '1 was at first, merely a spectator to this conundrum; Initially, in
35An informative expose of the sociological and historical significance o~ the Medina under the tutelage of Miilik b, Anas, he looked on as the scholars
sunna is offered by 1. Goldziher in his Introduction to Islamic Theology pp.Z30
painstakingly tried to unravel the already tangled web of interpretations vis-a-vis
36Schacht however, argues that n Sunna in its Islamic context originally (for
the sacred law and the sunna. At one time the latter would be ascribed to the
the companions of the Prophet!) had a political rather than a legal connotation;
it referred to the policy and administration of the caliph. The question wh«*her companions of the .Propbet:
the administrative acts of the frrst two caliphs, Abu Bakr and 'Umar shoulcll be
regarded as binding precedents, arOse probably at the time when a successor to
wa kadhiiLika ja'at al-atkar wa al-sunan Ii ~hao al-nabiyy: and
'Umar had to be appointed(23/644), and the discontent with the policy of the Utird
thus have the reports and the sunan come [fi:in, about,with!] the
caliph, 'Utlnnan, which led to his assassination in 351655, took the form of a
companions of the Prophet.
charge that he, in his tum, had diverged from the policy of his predecessors Iand
implicitly from the Qur'an. In this connexion, there appeared the concept of the
'sunna of the Prophet', not yet identified with any set of positive rules! but and, at others, to the pronouncements of the scholars of a locality:
providing a doctrinal link between the sunna of AbU Bakr and 'Umar' and the
Qui-'an." Even this sunna of the Prophet' according to him, refers to the 'lilving
. tradition' of the ancient schools retrospectively put into the mouth of the
Prophet. (Origins 58) Notwithstanding his reference to some historical evidence
in this regard, Schacht's views, in essence, exclude entirely, the Qurlanic
directives vis-a-vis the Prophet as well as the overwhelming evidence
reports on the early community. In !his <egard see M.M. Azami, O. Scha hi',
Origins, and JuynboU, Muslim Traditions.

,, ..
: i

40 ugm~~
qiila Ibn Shihao: 'a hiya al-sunnah?' qiila Miilik: 'wa 'alQ dhiili/ca
Chapter Two

the community would be fulfilling its duty to God because "God instructed men

adraktu ahl al-' ilm bi baladina: Ibn Shiha""b asked: 18 this the that their recourse to the Apostle to judge among them is a recourse to God's
sunna? Milik replied: (Yes) Thus, have I found the scholars of our judgement ... for his (the Prophet) judgement is imposed by Him and by His
established knowledge--rendering him a man of destiny and assisting him by
In Iraq the same uncertainty prevailed. At times the sunna would be used to refer preserving him from error.
to the established practice of the area: Singularly consistent in his advocacy of the role of the Prophet in the Law,
Shifi '1 maintains throughout that the Prophet was not empowered merely to
al-sunna 'an rasiil Alliih wa 'an al-salaf min ~hiibihr: wa min
qaum juqahii': the sunna (is) from the messenger of God and the articulate the dictates of the law, in the sense of being best qualified to interpret
forebears, his companions and the jurists. the Qur'an; rather, in matters of the 'law, he was the very instrument of God,

At others it applied to the well established customs: "al-sunna al-mab-ftiia al- whose judgements were both divinely imposed and preserved from error (ma '~iim

ma'rufa: the well known and well recognized sunna." 'an al-khaJ' i). As Coulson points out, "for shift'l this was the inescapable
shift '1, however, finally came round to the idea that sunna, for purpos~s significance of the Qur'anic command to obey God and His -Prophet and the

of both theological rectitude as well as socio-political harmony, can refer only tIo similar injunction to follow the Book and the Wisdom (lzikma); for this last couid

the practice of the Prophet as expressed through the authentic traditions (IJadith) mean only the actions of Mulpunmad."37

attributed to him. Muslims, shifl '1 tells us, are constrained to follow the Prophet's The accentuation of these twin features of the Prophet--that of being

sunna, for "God has placed His apostle-orin relation to] His religion, H~s divinely inspired and also infallible in his pronouncements vis-a-vis the sacred

commands and His Book--in the position made clear by Him as the distinguishing law--was indeed a defining moment in the development of Islamic thought. The

standard of His religion by imposing the duty of obedience to Him as well as ~y sheer weight of scriptural evidence presented in support of the preeminence of the

prohibiting disobedience to Him. /I God also prescribed subordination to a;.s sunna was .eclipsed only by the theological appeal in Shift'rs rationale.
Apostle, for if a person believes only in Him, and not in His Apostle, the Il8$e Henceforth, no Muslim. could possibly deny the authority of the Prophet in matters

of the perf~t faith will never apply to him until he believes in His Apostle of law as understood through IJadiih-all the more so when the latter was

together with Him. Also, the 'wisdom' referred to in the Qur'an, Shift '1 tells tJs, juxtaposed to the ijma' or living tradition of the regional schools of law, or worse

is none other than the sunna of the Prophet, still, against the rational speculations of individual scholars.

For the Qur'an is mentioned [first], followed by Wisdom; then God The upshot of these changes in the theoretical framework of the law was
mentioned His favor to mankind by teaching them the Qur'an and an almost immediate rise to prominence of prophetic .traditionS as the sole
Wisdom. So it is not permissible for wisdom to be called here
[anything] save the sunna of the Apostle of God. repository of the prophetic sunna. Already in Shift'rs own era, largely because
of his attacks on the previous notions of sunna, there were moves towards the
The sunna (wisdom) thus, is closely linked to the Qur'an afl.d, seeing that
canonization of one's own laws and the 'de-canonization' of those of others by way
God has decreed obedience to both, it is not permissible to regard anything a$ a
duty save that set forth in the Qur'an and the sunna of His Apostle. In doing so,
37Coulson, A History of Islamic Law, 135
Chapter Two 43
42 Legal Theory
i textual rulings (nass) or textual intimations (diia"1a), to the (correct)
of the qadiih. shift '1 himself was not unconcerned about such ad hoc usage of
qadiih judging from his own efforts to provide a theoretical paradigm lor
It is ergo the text, the Qur'an and the 1}adi'th literature, that functions as the
resolving such conflicts. 38
paradigmatic underpinning for all legal reasoning i.e., for all ijtihiid. Fealty to a
A second milestone that marked the knell of ijtiMd as the temps prindpal
prophetic narrative or, in its absence, to qiyiis on the strength of a specific
of legal theory grew out of shift'1's critique of ray and his concomitant
narrative is the only acceptable means of deducing the law, for God forbad, since
exposition of qiyiis. He was asked: "What is qiyiis? ijtilWd or are they
the time of the Prophet, the issuance of directives not based on legal knowledge,
different? He replied:
i.e., the Qur'an, the sunna, consensus, or qiyiis based on such texts.
They are two names for the same concept . . . in the life of. a Ijtihad for shift '1 was simply the effort exerted in applying the criteria of
Muslim there is always, either a binding order (lzulan lazim) or
the Qur'an and the qadiih in any given situation. He provides several examples
some evidence as to the correct order (dizaza maujiida). With
regard to the first, where a decision already exists it should be of this in the Risiila where he endeavors to convince his interlocutory about the
followed; in its absence however, a decision should be sought by
'efficacy and legitimacy of ijtihiid. He is asked,
way of ijtiMd, and ijtiMd is qiyas (wa al-ijtiMd al-qiyiis).39

In another place shifi'l again reiterates this point; he says, "thus have we Are you able to cite, in addition to your previous contentions, proof
for the validity of ijtihiid? He replies: "Yes, by reference to the
mentioned to you previously that, according to us, in the absence of an exJ)licit
statement of God: 'Whichever place you come from, tum your face
text we are bound to seek [a solution] by way of ijtiMd through qiyiis." Ij~had in the direction of the Sacred Sanctuary; and wherever you are,·
tum your face· in its direction' . . . One's knowledge points to the
for sbifi '1, therefore, is synonymous, not with any untrammeled I!ltiOnal
fact that for one wanting to face the sacred sanctuary it would be
speculation (ray or iann) as such, nor even with the considered opinion of the correct to establish the directions thereto by way of ijtihQd; because
the one encumbered with the responsibility of facing (the sacred
eponyms of the regional schools (the so called living traditions) but with qiyls in
sanctuary) (need do no more than) look at the guidelines known to
the narrow sense. him, just as someone else is entitled to use other guidelines knoWn
to him, albeit, in variance with the formers".
That ijtiMd, for shift '1, was also not a philosophical pursuit of the JU!.ture

and objectives of the law--the very fabric of legal theory-is quite evident froDil the The other examples that Shifi '1 refers to in this regard, are the following:
following: he says, that determining the compensation for killing an animal whilst in a state of II}.ram
(pilgrim sanctity), and the consequences for one who unwittingly has sexual
God, glory be to Him, has conferred the servants with intelligence
intercourse with his slave who turns out also to be his sister. In all caseS cited, the
whereby He indicates to them the dissimilarities of the conflicting
(views), and guides them, by way of explicit, incontrovertible, legal ruling is explicitly found in the canonical texts; what remains is simply to
I quantify, specify or identify the object of that ruling, an undertaking that is so

38See in this regard AI-Shifi'I, AI-Risiila (Cairo: Dar al-Turath, 1979) 1210
'"1bid., 215.
39J:bid., 210.
II Chapter Two 45
44 Legal The~ry
After Shafi'rs doctrines became normative to the sacred law an elaborate
basic as to be almost pedestrian; certainly a far cry from the lofty connotatidns scheme was created to monitor and control legal speCUlations. Known
that the term ijtihiid conjures in the writings of recent scholars.
subsequently as the maratib al-ijtihiid, this scheme required of the mujtahid that
It was also Shafi'l who introduced qualifications that would limit tjhe
he combine in himself five types of knowledge:
practice of ijtihiid to a select group of scholars. Ijtihiid, he said, is vouchsafed OlUy
to those competent to do so, that is, those adept at distinguishing between tlhe (1) the knowledge of the Book of God, the Glorious; (2) the
knowledge of the Example and Precept of the Prophet: (3) the
prescriptions of the Quran and its ethical exhortations i.e., jts general guidelities
knowledge of the speeches of the scholars of yore regarding their
and its specific rules. Mere intellectual proficiency, i.e., the ability to speculate consensus of opinion and their difference of opinion; (4) the
knowledge of language; and (5) the knowledge of analogy, which
outside of the boundaries of the texts, without an adequate familiarity with tlhe
is the method of eliciting the principle from the Qur'an or the
sacred texts themselves, precludes, in his mind, a scholar from making legal 1;tadi'th when the principle is not found in the statutes of the Quran,
the 1;tadi'th and the consensus of opinion.
pronouncements. Additionally, the jiJrisdiction of one who does ijtihiid does npt,
ipso facto, bear a universal purport. These qualifications slowly gained prominence These prerequisites which were, most likely, unheard of prior to or even at the
after Shafi '1 and significantly curtailed the previous laissezfaire approach to hlW time of Shafi '1 were eventually integrated into the maratib themselves. These
making. maratib underWent a series of modifications through the years and were ultimately
Shilfi'rs efforts to produce a law that was at once 'Islamized' in terms, of categorized as follows:
textual authority and rationale through its embracement of reason (ijtihiid) fuelled (1) AI-Mujtahid al-Mustaqil: This category,also referred to as the mujtahid
what soon proved to be a monumental debate between those who perpetuated the mutlaq, or absolute mujtahid, generally points to the eponyms of the four extant
logic of theAhl ai-Ray and those who carried the scripturalist mantle of the ~hl schools of law: Abu I;Ianlfa, Millik, Shifi'l and A1;tmad b. I;Ianbal. The salient
al-IJadith. The former consisted of members of both the old regional schools, the feature of this category, according to Muhammad Abu Zahra, a recent scholar of
IJanaf'i'mainly, but also elements of those who adhered to the legal philosophy of legal theory, is the fact that in deducing the laws from the Qur'an and the sunna
shilfi '1. The latter comprised of elements of the pre-Shafiite doctrirufre (istikhr{ij al-abJeiim min al-Kitiib wa al-sunna) scholars in this category are not
traditionists along with disenchanted disciples of shifi'l himself, those that. is, obliged to' follow the dictates of any other scholar; Aside from the l;Ianbalis, most
who renurlned ill at ease with the rational elements that their master had have concluded that the qualifications for ijtihad in this category are so rigorous
incorporated into the Law. Though this group--known variously as the Zihirites, as to effectively exclude the possibility of anyone attaining to this category in the
the Daudis or the l;Iashwiyya--remained peripheral to the developments iPat future. Ghazzii:ll writing in the 5th/11th century, declared that this category, of
subsequently took place in the Law, its voice of dissent was never quite quell~d; mujtahid had ceased to exist. Rahman suggests the following explanation for this
it remained a strident, albeit numerically insignificant, opposition to Muslim phenomenon: the complex of academic, intellectual and spiritual prerequisites "

orthodoxy right through to the present times. 41 .. . . . were made so immaculate and rigorous and. were set so high that they were
humanly impossible of fulfillment." That this door of ijtihad is in effect closed is

41The most exhaustive study still on the Zahiris and Ibn l;Iazm is, a· view shared by most classical sCholars. Even some of the l;Ianbalis who, as
The Zahiris: Their Doctrine and Their History (Leiden: E.J. Brill, 1971) .
: I'
i i

46 Legal Theory Chapter Two 47

mentioned previously, had a dissenting view in this regard, seem to allow such an (3) AI-Mujtahidfi"al-Madhhab 43: In the proliferation of the schools of law in the

event only in'the case of the centennial reformer, the mujaddid who is said to 5th century, the scholars of this category featured more prominently than moSt

appear at the head of each new century. others. There are two r~sons for this: firStly, they derived both the principles of
(2) Al-Mujtahid al-Munt~ib: Sometimes called Al-Mujtahid ft al-Madhhab: this the law as well as positive legislation from the eponyms of their respective
category is made up of the disciples of the aforementioned eponyms whose legal schools; and seCondly: in the absence of any legal directive pertaining to a specific
principles they share but with whom they often, disagree in ~e application of such issue they would simply apply the principles of the school, or in some cases, draw
principles. 42 There were however scholars who saw this scheme as an elabonite an analogy from a similar ruling within that school. Some of the more prominent
system of unquestioned obedience (taqud) of sources other than the Qur'an and names that come to mind in this regard are al-Muzanl of the Shafiiteschool, 'Abd
the Prophet. That scholars in this category were accused of being mere imitat<)rs al-Ralpnan b. al-Q'iisim ofthe Malikite school, Muwaffaq al-Om b. Qudama of the
(muqallid) is evident from the following statement of al-Sinjl, a 5th/11th century lJanbalite school and Kamal al-Om b. Humam of the lJanafite school.

disciple of Shm'1:, (4) AI-Mujtahid al~Murajjih: This category consists of scholars who merely
determine the validity of the arguments presented by scholars of the previous
atba Ina ai-Shaft' duna ghairihl, lianna wajadna qaulahu arjah al-
aqwiil wa a'dalaha, za anna qalladnCihu: we followed ,Shafi '1
because we -found his views to be most preferable' and most
balanced, and not because we (were given to) imitating him. 43Technical terms were routinely confused by scholars who wrote on the
martitib. Hallaq (1983:69) gives us the following example of this confusion. He
In truth, a significant number of those said to fall into this category wj:re says
independent mujtahids whose only relationship with their masters seems to be <)ne The definition of the term mujtahid TnU/laq (absolute) in
of tutelage. Such was the case with Abu Ylisuf, for example, and Mul}anunad!al- Ghazzali's time, for instance, differed from that given to it later.
For Ghazzali, mujtahid mU/laq is a jurist who is capable of
Shaybiinl, the celeQrated disciples of Abu ijanlfa whose contributions to Jhe interpreting all branches of law within It given school, but this
school clearly rivals that of their master. mujtahid cannot be the founder of the school. For Majd al-Din Ibn
Taymiyya (d. 652/1254) and Ibn al-SalaJ}. (d. 643/1245) the term
TnU/laq and mustaqill (independent) are synonymous. But unlike
Ghazzali, they give the title mujtahid mu/laq or mustaqill to the
eponyms of the schools rather than to less qualified mujtahids. What Ghazzali
calls mu/laq they call munt~ib (affiliated). Nawawi (d. 676/1277) follows the
arrangement of Ibn Taymiyya and Ibn al-Salah. Suyuti (d. 911/1505) uses mU/laq
for men like Shari and Malik and mustaqill for mujtahids within the school such
as Ibn Surayj and himself. By so doing, Suyuti differs from Ibn aI-Salah and Ibn
Taymiyya who in tum differ from Glulzzali. Like Ibn al-SalaJ}., Siddiqi means by
mustaqill the rank of a school founder. He observes that some jurists consider
munt~ib a rank higher than mu/laq. And Laknawi (d. 1304/1886) conferred the
42Their role, according to Abu :lahra is the following: ta/bfq 'illat al-I;;pan compound title mujtahid mu/laq-muntll§ib upon a jurist who' performs ijtihiid.
aUate istanba/ahii al-stibiqan: the application of the 'illa that was derived by! the within a school. It is of no surprise then that a good deal of the disputation over
precursors." For an explanation of the operation of this principle see F. ~an, the subject of mujtahids and ijtihiid had been caused by such undisciplined usage
Islam 71. of terminology.
, Chapter Two
48 Legal TheplY 49
I ideas. For others it was a means to link the uncertain present to the glorious past.
category and· then proceed to select, from among these arguments, that whic~ is
most suited to the circumstances at hand. This category is significant becausb it
is the point at which taqud starts to assume a more prominent role in the schema.
(5) Al-Mujtahid al-Mubafii.: This is a scholar who painstakingly records the most
acceptable rulings in his school in a compendium to which less qualified scholars
would refer. Examples of such works are: /fiishiyat RfuJd al-Mukhtar"",al-
Majmu'45 and Fath al-Qadlr. 46
(6)AI-Muqallid: This is a scholar who has command over the Arabic language;!lnd
is competent enough to comprehend the· rulings of the scholars in the hig~er

categories. He is however, in no position to decide which of the previous rulings

is both, most consistent with textual evidence as well as true to the legal thepry
of his school and because of this inability he is reckoned to be a pure muqal,id.
As will be shown in the ensuing chapters, the debate on ijtihad did not
really use the foregoing categorizations of the mujtahid as any kind of frame of
reference or even as the basis for further refinement of the classical Islamic I~al
theory. To claim therefore, as have the proponents of ijtihiid, that their efforts at
reform were organically tied to the classical heritage is, I believe, quite incorr¢et.
A perusal of their literature, which I undertake hereafter:'~1 yield not even a
perfunctory analysjs of the historical development of the sacred Law nor yelt a
passing reference to the genesis of the concept of ijtihQd. In light of this, I thjnk
it will not be unreasonable to suggest, as I have, that ijtihQd for some in the
reform movement was no more than a classical concept steeped in the heritage of
the faith, that was· preeminently suited to the legitimation of iIUlovative, foreign

44Ibn 'Abidin, lJiishiyat Radd al-Mukhtiir 8 vols., (Cairo: Mu~taIa Babi lal-
. HalabI, 1966)
4sMul;1yi<!.dln al~NawawI. Al-Majmil': SharI}. al-Muhazzab 18 vols., (Cai/ro:
·Matba'aal-'A~ima.1966) i

46Mul;1ammad b. al-Humam, Fatl}. aI-Qadir: SharI}. al-Hidaya (Kuitah: lal-

Maktaba al-RashIdlyya, 1991) •


Modernists who commonly invoke the term ijtihad in their reform

programs are likely to have been influenced in more ways thim one by Jamal al-
OIn AfghanI (d. 1897),i Mul}.ammad 'Abduh (d. 1905),2 RashId Riga (d. 1935)3 or
Mul}ammad Iqbal (d. 1938), 4all pan-Islamic thinkers who distinguished themselves
from the secular constitutionalists or social reformers by the fact that they
presented their modernizing views using the rhetoric and the symbols of classical
Islam. s It goes without saying that each of the foregoing individual's academic

iMul}ammad 'lmira, AI-A'miil ai-Kamila Ii !amii[ ai-Din ai-Afghani

(Cairo: Dar al-Kutub al-'ArabI, n.d.) is an informative analysis in Arabic of the
life and times of MghanI. It alsQ contains the only exhaustive work that Mghani
ever undertook: the RisaJ.a al-Radd 'ala al-DahriyyIn. For a political biography
in English see N. Keddie, Sayyjd !amiil ad-Din ai-Afghani (Berkeley: University
of California Press, 1972) .

2The biography of 'Abduh, available in 3 volumes, was compiled by his

celebrated student, RashId RieJa. See, Tarikh al- Ustiidh al-Imiim ai-Sheikh
Muhammad 'Abduh (Cairo: AI-Manar·, 1931)

3Por the life and works of Rashid RieJa see Shakib Arslan Rashid Ritjii wa
Ikhii' Arba'in Sana (Cairo, 1937)

4Por an analysis of Iqbal's philosophy see Aziz Ahmad, Islamic Modernism

in India and Pakistan: 1857-1964 (London: Oxford University Press, 1967)

sAccording to Ira Lapidus (1988:621), for example, "tbe most influential

spokesmen for nineteenth-century Egyptian Islamic modernism wereJamal al-DIn
ai-Afghani (1839-97) and his Egyptian disciple Mul}.ammad 'Abduh (1849-1905). "
Chapter Three 53
52 The Modemfsts
threatens its irreducible moral teachings. Their disdain for taqlfd was surpassed
accomplishments, historical experiences, and philosophical perspectives were s\Jch
only by their contempt for the 'ulama', the custodians of this decadent legacy of
that they set him apart from the others; but it was nonetheless, their shated
unquestioning obedience. The 'ulama in tum, accused them of, amongst other
weltanschauung that made them the touchstone of Muslim modernists. They tlIrus
things, subjecting Islamic Law to the dictates of western thought and pandering
expressed similar concerns for the welfare of Islam against what they consideted
to the demands of secular liberalism in contravention of the madhtihib, and the
to be two common perils: the onslaught of Europe's political hegemony, and the
principles of Islamic law.
de-Islamisation of the intellectual elite of Islam.
The task they set themselves was also similar: reconciling their OWn Their training in the traditional sciences of Islam was thorough, at
fealty to Islam to their abiding admiration for modem civilization. Each triedl to least in the case of AfghiinI, 'Abduh and Riga who were all
qualified religious scholars. As for Iqblil, whilst not an 'alim by
show, by his peculiar interpretation of the Islamic legacy, that the two were 1I10t vocation, he was nonetheless, well acquainted with the traditional
quite as incompatible as appeared at first blush. While not quite claiming Ian sciences, in addition to being the most qualified in modern
philosophy and western thought.
unconditional harmony between the two, they nonetheless, seem to affIrm tht
there were essentially no irreconcilable differences between the authentic Islam In light of the fact that a significant number of modernists confess to either
as articulated by the~ and modem civilization. They also showed a particular being disciples of the foregoing individuals or being strongly influenced by them
endearment for ijtihtid, an unflinching faith in its ability to remove all in their understanding of reform, I thought it superfluous that concepts of ijtihtid
impediments to a rejuvenated Islam, a mechanism geared to address contempo~ry as understood by others within this group be scrutinised with the same rigor.
issues in a· way that neither jeopardizes the authority of the sacred sources nor There is however, a group for whom ijtihtid was less significant than was .its
antipode, taqlid; their disavowal of the latter must not be construed as a necessary
endorsement of ijtihtid as explained thus far, but rather as an attempt to break
In similar vein John Esposito, (1988:129) writes that the major modernist themes free from the past, from the anti-rationalism of Ash'arism in some cases to the
and activities are illustrated in Afghani, 'Abduh, Ri<Ji. Iqbal and Sayed AQrnIld
Khan. With regard to Sayed Atunad. I am of the opinion--one that I will be inflexibility of scriptural hermeneutics. 6 The ,nineteenth century Indian reformer.
exploring presently--that he represents a pattern of reform that basically operatl=d Sayed Ahmad Khan (d. 1898) is a case in point: Sir Sayed believed that ijtihtid
outSide the constraints of the texts of the faith and one in which the traditional
mechanisnis for reform such as ijtihad were less important.
As for Afghani, he stood out, according to Nikkie Keddie, for Ilis
"political activism, the freer use of human reason, and efforts to build up the
political and military power of Islamic states". More importantly however.

By seeking these values within the Islamic tradition instead of

openly borrowing them from the hostile West, Jamiil ad-Din was 6Por Abu al-lJasan al-Ash'arr (d. 935) and his followers reason was an
able to attain an influence on religious Muslims not possible for integral aspect of religious tought though not the preeminent one. Steering a via
those who simply appropriated Western ideas. As the first "Neeo- media between Mu'tazili rationalism and lJanbali literalism they contended that
Traditionalist" whose influence spread beyond the borders of a
while divine truths can only be known through revelation, revelation itself is
single Muslim country, Afghani can be regarded as a precursor of protected and articulated through reason. In this regard see A.J. Arberry,
various later trends in the Islamic world which reject both pure Revelation and Reason in Islam (London, 1957)
traditionalism and pure Westernism. (1972: 1)
54 The Modernt,sts Chapter Three 55
was the inalienable right of every individual Muslim to be used to resolve the dogma. "11 But then he fell under the spell of Sir Sayed, or as he puts it "the
difficulties inherent in the four traditional sources of Muslim Law7 period of taqlfd of Sir Sayed"; thereafter, almost all of Muslim intellectual 'history
became redundant--pure Islam had finally been unveiled after thirteen hundred
By this erroneous belief (Le. that the door of ijtihiid would be
closed and that nowadays a mujtahid would be superfluous) we do years of obscurity. The irony of this new form of taqlfd did not however, escape
harm the Islamic religion and society seriously. We should be kad for he goes on to say, "how strange that man can never forsake taqlfd!. In
aware of the fact that times change and that again and again we are
confronted with new questions and new needs .. In other . the name of being opposed to taqlfd, he' begins, in fact, to adopt taqlfd to
words: today also we want mujtahidun. 8 whomsoever he respects. "12

But as 1.M. Baljon, his biographer, points out, Sir Sayed only adopted ijtihad On a less personal level, kad, like •Abduh before him, was not

to the extent that he.could utilize it to reform the sacred law but so "far as he Was oblivious to the role of ijtihiid and taqlfd in. the reform of Muslim society; he was

hindered in his reforming aspirations by the regulations which the mujtahid,un as galled by the obscurantism of his colleagues, the 'ulamii.' in their defence of

had once introduced in Islam, he rejected the principle of ijtihiid. ,,9 taqlfd as indeed he was by the unfettered liberalism of the westernized class. He
thus says:
A more striking example of the anti-taqIId phenomenon in .the reform
movement is that of Abul Kalam Azad (d.1958), the "principal theoretician of the
The shopkeepers of religion (the 'ulama ') have given the name of
Khilafat Movement in India. ,,10 Azad brings the problem of this particular !dnd 'religion' to ignorance and taqZfd, to prejudice and indulgence ...
. The purveyors' of the philosophy of enlightened thought and
of taqlfd into sharp relief, for his life, according to him, was but a movement
modem research have dressed up atheism and free thought in the
from one taqlfd to another. At first, he says, he broke free of the taqIrd of the disguise of wisdom and ijtihiid. 13 .

madhiihib as well as that of "ancestors, devotion to ancient customs, and inherited

But kad would have had little hesitation endorsing the ijtihiid of Jamiil
al-Din AfghlinI, who more ~ any other Muslim thinker, was responsible for
pioneering reform (tajdfd) through ijtihiid. 14 It must be said however, that though
A. Ahmed, Islamic Modernism in India and Pakistan (London: Oxford
University Press, 1967) 54 the idea of reform through ijtihiid was virtually unknown prior to him, AfghiinI

81.M. Baljon, The Reforms arii:l Religious Ideas of Sir Saiyed Ahmad Ki1I1n
(Lahore, 1958) 59 lIA.K. Azad, Tadhkira Ed. ,M~ Ram, (New Delhi: Sahitya Academy,
1968) 22 .
9Jbid., 67.
, 12l.Douglas, Abul Kalam Azad: An Intellectual and Q, Biography
IOAs Mumtaz Alnned explains, the Khilafat Movement of the 1920's was (Delhi: Oxford University Press, 1988) 53
launched "to save the Turkish caliphate from dismemberment in the wake of the
post, World War I rearrangement of European and Middle Eastern stilte 13Azad, Tadhkira, 165
boundaries. See, in this regard, his article, The Politics of .War: Islamic
Fundamentalisms in Pakistan. In Islamic Fundamentalisms and the Gulf Cri~is, 14AfghiinI, in the words of Hourani (1962: 108ff.), was one :who embodied
(Chicago: The American Academy of Arts and Sciences, 1999). M<j>re the essence of revolutionary pan-Islamism, a blend "of religious feeling, national
importantly, see G. Minault, The KhlZafat Movement: Religious Symbolism a,nd feeling and European radicalism" and one whose life '~deeply affected the whole
Political Mobilization in India. (New York: Columbia University Press, 198~) Islamic world in the last quarterof'the nineteenth century."
% . . ~M-+
did not gain prominen~ because of this contribution; more than anything el*,
Chapter Three 57

. . AfghanI had envisioned a process of reform based on a ratio~l approach

he is remembered for having pioneered "pan Islamism", a revolutionary call tpr to Islam and its sacred texts, and undertaken by like-minded political and social
the unification of the entire Muslim world against the twin evils of western leaders such as Mutmmmad 'Abduh, the grand mufti of Egypt, and Sa'd
expansionism and internal decadence. In his view, the political and military mig~t ZaghlUl, its one time prime minister. In this way he hoped to revolutioIlize the
of the Muslim world was in itself, quite inadequate to withstand Europe's military intellectual heritage of Islam through the use of ijtihiid, but only if it conformed
adventurism and Lts cultural hegemony; what was needed was a thoroughgo~ to the norms of the rational spirit. AfghanI· was himself a tireless champion of
reform of the spiritual and intellectual heritage of the COmlnunity. He appealed reason, which he regarded as the postulate of Islam second in importance only to
to Muslims to hold fast to the bonds of religion which he described as "$e <
the belief in a transcendental reality. In the only extensive written work that he
sturdiest of bonds that bring together the Turk, the Arab, the Persian, the Indian, undertook, the al Radd 'Ala al Dahriyyfn, AfghanI states,
the Egyptian and the MaghribI; it is for them (far stronger than) the bonds of
kinship.nls He believed it imperative that Muslims understand the religion and its the first pillar on which the religion of Islam is built is that the
idea of divine unity should burnish the human mind and cleanse it
history afresh, unconstrained by the interpretations of the 'ulama'. But Afgh~ from the weakness of illusion. Most important, without doubt, is
was more the ebullient and energetic political reformer given to crisscrossing the the belief that God is alone in the disposition of beings, single in
the creation of things which act and those which are acted upon
Muslim world, with the hope that he would forge a link between its dispar~te
and that it is an obligatioll to cast aside all belief that men or
factions than he was the!=onscientious philosopher/scholar preoccupied with the inanimate bodies, whether higher or lower, have any influence of
good or evil upon creation . . . It is necessary to reject any belief
crystallization of revolutionary ideas. This therefore, left him with little time aM . that God in the Highest has appeared or appears in the garb of
even less patience to adequately expound his own vision for legal reform. A¢ human kind or any other animal, to do good or ill, or that the
Holy Essence has suffered the extremes of pain or the pains of
while he was reputed to be highly articulate in many languages-a talent he ~o disease in certain phases, for the benefit of any created thing. 17
doubt, puHo good use in his fiery speeches-he was nonetheless, never quite able
AfghanI's polemics are designed to show that Islam is above the superstitions and
to articulate his thoughts adequately in anyone of them. Systematic discourse
pagan practices of animism, the mysteries of Christianity, and the racial elitism
was certainly not his forte, nor for that matter, was originality in thought, at least
of Judaism and Hinduism. Islam is the religion of reason, par excellence, its
in the view of some historians. AfghanI's genius, it is said, lay, not in pioneerittg
essence is to that extent, identical to modem rationalism and the scientific
many new ideas butin recognizing a point or plea at a given moment as suitable
method. 18
to his cause. In this way he became a vigorous advocate of all kinds of ref0$,
As for ijtihiid, AfghanI had no need to legitimate his philosophy of refQrm
some political, others religious and others still, social. 16
thereby, and thus used it less frequently than did others in the reform movement.
One reason for this perhaps, is the fact that his weltanschauung, notwithstanding
15M. 'Imara, AI-A 'mal ai-Kamila, 29
17Hourani, Arabic Thought, 126
16M. Hodgson, The Venture of Islam: Conscience and History in a Wotld
Civilization (Chicago: University of Chicago Press, 1974) vol. 3, 308 18M. 'Imara, AI-A 'mal ai-Kamila, (Cairo: Dar al-Katib al-' ArabI, n.d.) 174
58 Chapter Three 59

its indebtedness to the ideas of philosophers like Ibn Rushd, was on the wbole who appropriate the cultural entrapments of the colonialists. "Experience teaches
, '
adequately supported by the traditional intellectual paradigm. He thus predic~ted us," he says

his reform package on the social and political structures of early Muslim soci~ty,
as do past events, that the imitators (muqalIidun) in every nation,
helped, no doubt, by his singularly consistent claim that Muslims will never be those that is, who adopt the ways of other, become thereby, an
truly liberated and progressive unless their future development is based on' the instrument in the hands of the enemy, a platform for launching
attacks on the culture of the indigenous people, and bases for the
Qur'an and the ljadfth traditions. 19 dissemination of foreign propaganda and intrigue. They end up
But AfghanI acknowledged that the QUr'an itself was in need of a new becoming a curse to their community because of their adoration of
those they imitate. 22
hermeneutical paradigm, one that would at Olice be loyal to the dogma of
orthodoxy and in keeping with the rational spirit of the new age. Such a Afghani's treatment of ijtihtid vis-a-vis the sacred law was however,

reinterpretation, seeing that it will be based on reason which is common tq all neither unique nor revolutionary; he simply reiterated the stock criticisms levelled

human beings, will also serve to make the Qur'an accessible to all thinking pe~ple against the closing of the door of ijtihtid without making any effort to weave this

and not just a religious elite. "Since reason can interpret," AfghanI maintained, concept into his broader efforts at reform. In one place, for instance, he asks

"all men can interpret, provided they have sufficient knowledge of Arabic, are I

What is meant by 'the doors of ijtihtid are closed?' And on what

of sound mind and know the traditions of the sala/. the pious ancestors. " He goes text was this closing based? Further, which of the Imams had
on to say, "The door of ijtihtid is not closed . . . and it is a duty as well as right decreed that it does not behoove Muslims, after them, to apply
"ijtihtid in understanding religion, or to take guidance (directly)
for men to apply the principles of the Qur'an to the problems of their time. 20 For from the Qur'an and the authentic traditions, or to strive earnestly
AfghanI therefore, ijtihtid was not just an element of the Law, but rather, an in order to broaden ,their intellectual horizons thereby, and to
derive, by way of analogy (qiyas) from the contemporary sciences-
effective tool for broadening the intellectual legacy of Isl~. -keeping in mind the needs of the times-that which does not
Afghani also condemned taqlfd in dogma which he described as the blind contradict the explicit texts (ntlli). 23

imitation of the beliefs of the bygone generations. In this regard he says that 1the But seeing that God had sent Mu1}.am:mad as messenger with the Qur'an
frrst subject that ought to be inscribed onto the souls of the community is Ithe in the Arabic language, those seeking to do ijtihtid must at least be familiar with
dogma ('aqida) that is based on authentic proofs and sound arguments as folimd the language. And so, any person who was adequately familiar with Arabic, along
in the Qur'an. The Muslim intellect should shun mere assumption (with reIDlrd wi~ the textual and historical elemen~ ~f the Qur'an has the right to draw legal
to such dogma) and transcend the blind imitation of the previous generatipns conclusions from the sacred sources themselves. 24 The celebrated jurists of the
(taqlfd al-iiba ').21 But he also uses the term taqlfd in his denunciations of MusHms past, like Abu ijanifa, if alive today, would certainly have continued with the

1~. Rida, Tarikh, 82 22Ibid., 197

2°A. Hourani, Arabic Thought in the Liberal Age, 127 23Ibid., 37.

21M. 'Imara, Al-A'mdl ai-Kamila, 174 24Ibid., 38.

60 The Mode J"" Chapter Three 61

conflicting systems of education that were in vogue in Egypt at t!1e time: the old
process of ijtihiid, he says. Their accomplishments were indeed great butleir
religious school system represented by the Azhar and the modem missionary one
meditations on the sacred text, far from exhausted them of meaning and ~th;
established by the British and the French. The former wll~ reluctant to change its
much remains therein waiting to be applied to the needs of today.
I ancient philosophies and methodologies while the latter, with its focus on
Afghiini, more so than any other refonner, imbued the tenns taqlid,and
European rationalism, had created an outlook that was spiritually and
ijtihiid with a new sense, a new purpose almost, that expanded the possibilities
intellectually alien to Muslim society. He feared that society would eventually be
of reform. The term taqlfd particularly, was redefmed to echo the Qur' anic sense
destroyed by its "restless spirit of individual reason--always questioning, always
of unquestioning obeisance to a higher temporal authority rather than the
doubting. " 'Abduh was aware of the danger to society if, as he put it, these
narrower definition accorded it in legal discourse; the term for him, it w.,uld
destructive weapons were in hands not fully conversant with it. Muslim graduates
seem, was not just the antipode of ijtihiid.
of western schools also alarmed him, for whilst being sycophantic to the culture
As for ijtihiid, its interpretation awaited the sharp intellect of his disc,ple,
and mannerism of the West, this group remained unappreciative .of the rigors of
Mul}.ammad 'Abduh, a more systematic thinker than his master and one who 'was
western.intellectual disciplines. "It is", he said, "the appearance of strength which
to leave an indelible impression on the intellectual legacy of modem Islam.
has led the orientals to imitate Europeans in matters in which there is no profit
'Abduh however, acknowledged his indebtedness to AfghiinI for helping him
without perfecting their knowledge of its sources. ,,26
distance himself from his own form of taqlfd. The asceticism that he had
'Abduh, however, was no less reproachful of the old order: his revulsion
practiced previously, and which he subsequently forsook for a life of social and
for taqlfd appeared at an early age, while still a young student at the Alpnadi
educational reform occurred subsequent to his contact with AfghanI. Despit¢ his
mosque in Tanta where he was taught~ by rote, the ancient texts and their
love for teaching and education in general, 'Abduh, \ffider the guidaiJ.~~ of
commentaries. Later in life he turned his attention to developing a syllabus that
Afghiini, initially became involved politically in the Egyptian struggle agamst
he hoped, would unshackle the Muslim mind from such blind imitation and allow
colonialism. This undoubtedly distracted him from his intellectual pursui1ls, a
it to
point worth remembering for it explains to some extent the alleged superficiality
and immaturity of his philosophy that some have drawn attention to.25 understand religion as it was understood by the elders of the
'Abduh's interests in ijtihiid stemmed from his belief that the politica~ and community before dissension appeared; to return, in the acquisition
of knowledge, to its first sources, and to weigh them in the scales
economic weakness in the Muslim world was but symptomatic of a deep selated.- of human reason, which God created in order to prevent excess or
malaise that had gripped the very soul and psyche of the average Muslim.; He adulteration in religion, so that God's wisdom may be fulfilled and
the order of the human world preserved. 27
took very seriously Afghani's message from the Qur'an that God does not chimge
the condition of a people until they change themselves. The spirit of the Egy~tian
and Muslim intellectual, he believed, had become deeply diviCled by the: two

26A. Hourani, Arabic Thought, 139

"W.e. Smith, "Law and Ijtibad in ""un" Int,rnoJionoJ IsLe 27R. Rida, Tan1ch al-Ustadh, 944
Colloqllium Papers (Lahore: Punjab University Press, 1960) 111
Chapter Three 63
62 The Moderni 'S
the sunna, categorical and unequivocal in its language, peremptory in its juridical
It was thus, taqlfd as espoused by the 'ulaina' that had destroyed the fabr c
authority with no room for refusal. A Muslim is compelled to know such
of the community; the latter had allowed it to metastasize and destroy e
community's resolve, particularly in the development of the sciences. The West. injunctions, if not through the Qur'an, or the sunna then through the practice of
the Muslim community. 'Abduh regarded, such a ruling as qat'iya mujma'
he maintained, had made such rapid progress because of its break from its
!alayhi; la majal JiM Ii ijtiMd al-mujtahidfn, i.e. a categorical ruling,
religious past, from its false dogma and the superstitions that had imped~d

scientific progress. In Islam, however, intellectual endeavour. was held in bondage unanimously agreed upon, and one wherein there is no possibility of ijtihiid. 30

by the antiquated doctrines of the 'ulamii'. "I raised my voice," 'Abduh state$, As for matters not decided by an express injunction (na§§ qaJ'i) or by the
consensus of the community (ijmii'), these could, he argued, be determined by
to free the mind from the chains of blind obeisance (taqlfd) for ijtihiid. This would, in effect, exclude the rituals ('ibiidiit) and those acts that are
how far are those who believe in taqlfd from the guidance of the
Qur'an! It propounds its laws in a way that prepares us to use prohibited and termed al-mulJ.arramiit al-dfniyya. Ijtihiid therefore, will only be
reason, makes us people of insights ... it prohibits taqlfd. But the applied to secondary matters that are, in some way, related to the express
('ulama ') command us to follow their words blindly; and if one
attempts to follow the Qur' an and the traditions of the Prophet, injunctions or have-to do with...the application of such an injunction ina given
they oppose him with denial, presuming that in so doing they are context or in relation to mattetsthat belong to public law not covered by na§§.
preserving the religion. 28
'Abduh does not provide explicit examples in either case, perhaps because of the
The schools of law (madMhib) however, were not without their positive obvious difficulty of identifying specific verses as either tanni or qat'f--the
features: 'Abduh saw them as methods of argumentation (juruq al-istidlalf) classical categorizations are far from convincing. 'Abduh himself paid mere lip
employed by the eponyms of the ancient schools of Law to understand the Qur'$ service to the traditional categories, it would seem: he argued strongly, for
and the sunna. According to Ri4a, 'Abduh would urge hi~;students to emulate example, that modem interest bearing transactions be allowed, notwithstanding
these imams but only in their adherence to the sacred scriptures (Taba 'hum fi their prohibition in the Qur'an itself. He argued that while the
i'ti§iimihim bi al-kitiib wa al-sunna), for adherence to a madhhab meant no more
than that. To regard the pronouncements of any given imam as integral to tlte
faith, or worse still, as an act of worship, was contradictory to the very spirit C\>f
Islam itself. 29
'Abduh used the traditional discourse of Muslim orthodoxy to explain hJs
interpretation and application of ijtihiid. Matters relating to religion, he statecll,
were of two kinds: al}kiim qal'iyya and aI}kiim ghair thiibita bi ntl§§ qaJ'f. The
former, he explained, was a divine injunction, enunciated in either the Qur'an ci>r

28 RRida, ed., Majalla al-Mandr, vol. viii, pp. 731-32.

3OIbid., 940.
2~. Rida, Tan-kh al-Ustiidh, 940.
64 Chapter Three 65

people of Bukhara allowed interest bearing transactions on the to those whose knowledge they trust for advice in the Law. The lay person as
basis of the needs of the time (tjanlra al-waqt), Egyptian scholars such, is generally not qualified to subscribe to. the legal principles of any
remained unyielding (in their ruling) and dealt with the affluent in
the community rather harshly, with the result, that the latter particular madhhab; thus, the madhhab of the mufti that such a person refers to
viewed Islam as inadequ.ate (for modem times). Also, people were for advice will, in effect, serve as his own.
now being forced to seek loans, at exorbitant interest rates, from
foreigners and this is undoubtedly depleting the resources of the The tension in 'Abduh' s thought between the claims of Islam and the lure
country and turning it over to outsiders. The jurists are to blame of modem civilization offered a "temptation to thinkers of polemical tendency,
for this in the eyes of God and for every other llHltter wherein
people flout the rules of the sharf'ah. It is necessary that these more anxious to defend the reputation of Islam than to discover and expound its
jurists familiarize themselves with the conditions of the time and truths. "33 FarId WajdI (d. 1954), one time editor of the Majallat al-Azhar,34 the
adapt their rulings to the (changed circumstances) in a way that
would facilitate its practice for the general public. The (jurists) Azhar University journal, is one such example. His work, Islam and Civilization
were never called upon to restrict themselves to the preservations clearly echoes this tension between Islam with its truths and laws revealed by
of the inscriptions of the books (ofjiqh) and to regard such works
as the final word in every matter. 31 God, and modem civilization with its own laws discovered by rational thought
and the scientific method. 35 But whereas 'Abduh invoked ijtihiid to resolve the
This ruling, the appeal of its logic notwithstanding, violates 'Abduh's own rules
. i
conflict between the two, WajdI simply ignored or rationalized any Islamic rule
governing ijtihiid. To compound the issue, he argues his case using the rule pf
that he construes as being in disharmony with modernity. As Hourani explains,
necessity or tjarara, a rule that applies to unusual circumstances of a temporaty
whereas 'Abduh resolved such conflicts by saying that only true civilization will
nature; it is to that extent, only an exception to an established rule rather than a
conform to the teachings of Islam, WajdI held that only true Islam will conform
replacement thereof; as such, it cannot abrogate nll§~. 32 'Abduh's application pf
to the truths of civilization~ 36 WajdI's hermeneutics, like that of his Indian
ijtihiid in this case, is clearly contrary to the hermeneutics ~f Muslim orthodo~y
counterpart,Sir Sayed, are thus clearly extra-textual: he regards modem science
and indeed, his own because of its obvious conflict with the text of the Qur'an.
and not the sacred scriptures of Islam as the criterion of truth. It is therefore not
And finally, a word about 'Abduh's attitude to the ijtihiid of the masses.
surprising that ijtihiid of the inter-textual variety featured less prominently in his
Despite his severe rebuke of those who ignore reason in matters of law aJ)ld
become slaves of taqlfd, 'Abduh nonetheless, warns against allowing all aJ!ld
sundry the right to exercise ijtihiid. The general public, he maintains, must refer
33A. Hourani, Arabic Thought, 162.

l4The significance of the position that Wajdi held as editor of this journal
31Ibid., 944. can be gauged from W.C. Smith's (1977: 123) observation that "although no voice
can be said to speak officially for Islam whether traditional or modernist, the
32According to Abu Zahra (Usul al-Fiqh:40) the rules governing tjarura official organ of the Azhar can hardly be dismissed as insignificant." For a
fall under the category of rukhsa and 'azfma or ordinances of indulgence and ! thorough analysis of Wajdi's role in the journal itself see W.C. Smith, The
. ordinances of performance. If it so happens that a categorical proftibition exists Azhar Journal, Survey and Critique (princeton: Princeton University Press, 1948)
which functions as the primary ruling I}ukm ll§U, and a situation arises tqat
justifies the violation of such a ruling, one wherein there may be a danger to liJfe 35Ibid., 163.
or limb, then in such a case only would it be permissible to apply the rule of
tjarara and that too, until the impediment is removed. 36Ibid., 162.
66 The MOde~ists Chapter Three 67

, Abduh had other disciples who tried to emulate his method of reconl·iling touching the s~t of emotion in the heart and persuasion in the
the past with the present; none however, could quite match the enthusiasm f his
Syrian protege, Rashid Ricj.a. But Ricj.a, initially, also came under the sw.y of He met •Abduh in. 1894 and was immediately impressed by the latter's knowledge

what Hourani identifies as the five most influential elements of that· partipular and erudition. Thereafter, he committed himself to the propagation of his

milieu: the 'ulama', the sUfi movements, the Salaft school of reform, the modem master's thoughts: together, they launched the al-Manar, a periodical which

scientific spirit, and European philosophy. His early ~aining in the classical functioned as a conduit to transmit their thoughts to the general public. Some of

Islamic disciplines offered by the local Qur'anic schools in Tripoli! was 'Abduh's ideas however, underwent a transformation at the hands of RicJli, which

complemented by the modem syllabus that the Turkish government had newly is why I chose to deal with those regarding ijtihtid in this section as well as in the

introduced to the area. His first experience with reform however, was tluPugh section dealing with the salaft perspective on ijtihtid. Ricj.a, as I.will explain
~aftsm: like 'Abduh, he too, initially belonged to a ~iifi order, the NaqsMandf presently, was a modernist or neo-salafi in terms of his political philosophy but

tarIqa, that is, until he witnessed some of their less than orthodox syncr~stic a salaft in terms of his religious outlook.

practices, at which point his formal affiliation· with the order ended. He Muslim retrogression, he believed, was the result of factionalism, religious
nonetheless, remained deeply influenced by its teachings, and in particular, by the intolerance and territorial nationalism; these had severely curtailed the dynamism
ethics and mysticism of GhazzalI as enunciated in his opus Il}.ya 'Ulam al-+Dfn. of the Islamic community, the umma. Islam, Ricj.a averred, has prescribed for the

That the latter left a lasting impression on Ricj.a long after his disenchantment; with . umma ijtihtid and ra'y as a means of .making civic and social policy conform. to
sufism is, I think, evidenced by his stress, in all his works, on good intentions the changing times and circumstances. At a time when the Turks were grappling
(niyya) , self purification (tadhkiyat al-nafs), and the need for spiritual with their own political destiny and that of the Islamic world, RicJli compiled his
development. OPliS al-AI}.kiim al-Shar<iyyaft al Khiliifa alIsliimiyya as a solution to the Turkish

The greatest influence on him thereafter, was, without doubt, the wri~ngs dilemma. 38 Turkey, which had tried, with limited success, to come to terms with

of al·AfghanI and 'Abduh that appeared in their short-lived journal, Al- 'Urwa al- ~estem civilization and particularly the. west's miliary prowess, was acutely
Wuthqa. Later in life, he was to become the friend and confidante of 'AbdUh, a aware of the limitations of the old political structure of which it was chief, and

relationship that left a deep impression on him. Of the effects of the journal on the need to reform that structure. The kind of reforms that Ricj.a was suggesting
him, Ricj.a writes under the rubric of ijtihtid was called teceddut and later yenilik .by the
modernizing Turks. Teceddut however, was. singularly distinct from ijtihtid in that
I found copies of the journal among my fathers papers and every
number was like an electric current striking me, giving my soul a
shock, or setting it in a blaze, and carrying me from one state to 37A. Hourani, Arabic Thought, 226
another ... My own experience and that of others, and history,
have taught me that no other Arabic discourse in this age or the 38For a thorough study of the intellectual and social aspects of Turkish life
centuries which preceded it has done what it did in the way of in the nineteenth and twentieth centuries see Bernard Lewis, The Emergence of
Modem Turkey (Oxford: University Press, 1961) and Serif Mardin, The Genesis
of Young Ottoman Thought: A Study in The Modernization of Turkish Political
Ideas (princeton: University Press, 1962)
68 The ModerJ,.ists Chapter Three 69
it transcended the dictates of the sacred texts as expounded in Islamic Law. The kind of leadership needed for the promulgation of new Islamic legislation in
entire refonn effort of Turkish modernism was thus, undertaken, not in the ~e military, economic and political matters. Riga concurred with the reformists that
of Islam as such, but in the name of the Revolution, the great dominating fa~tor if the reins of power were given to them they would fail hopelessly in leading
in Turkish political and social life. This of course, was but a harbinger oi1 the Turkey to prosperity .42
Kemalist revolution that was to pledge itself, in the fIrst place, to Turkey ,and But the alternative was no less worrisome to Riga: judging by the number
then to Islam, to nationalistic interests rather thafl to those of the umma, anji to of Muslims who became alienated from their faith, the fears that •Abduh voiced
the calls of Ataturk, more so, than to those of Mu1}.ammad. vis-a-vis deracinated Muslim intellectuals, had come to pass. This too, he' blamed
But for now, the Turkish debate on political teceddut involving the two on the "lethargy of the 'ulamii', (and) their inability to explain the verities of the
main parties of the time, the Turkish Nationalists and the Party of Religious faith to its adherents and to defend' it against the exigencies of the modem era" . 43
Refonn of Said l,;IalIm Pasha did indeed focus on Islam as a factor in the The Turks he maintained, were in· no position to defend Islam nor were the
country's future. 39 The latter party, for instance, propounded the orthodox Vliew Hijazis; the situation thus demanded the resuscitation of the Khiliifa in a neutral
that Islam is not just an element in Turkish nationalism but rather a univ~sal territory (Riga had' suggested Mosul in Iraq) under the command of one who
unity of "the eternal verities of freedom, equality and solidarity . . . (and) as would be endowed with the qualities of leadership and ijtihild.
.there is no English mathematics, German astronomy or French chemistry .. " so This individual, will be a graduate of a special college set up to train the
there is no Turkish, Arabian, Persian or Indian Islam. 40 The Turkish Nationalists nominees for a legislative assembly, and will ultimately have but one primary
on the other hand, were preoccupied primarily with the establishment of; the function: to be the mujtahid of the umma, its supreme legislator, and one who
modem nation-state: this, they believed, was the essential factor in Tur~h will bring the sacred Law to bear on contemporary society. To that extent, he
national life, it detennined the character and ethos of allliOther factors inclu4ing will have to be thoroughly acquainted with the Islamic sciences as well as with
the religious. 41 Islam, to that exteD:t, was subordinate to the national will ~d current affairs, including, amongst other things, the structure of the political and
separate from the political considerations of the state. Both parties were religious organs of the world such as the Papacy and the Vatican. His deputies
nonetheless, in agreement that ~ditional Islam as practiced till then in Turkey will be scholars qualifIed to give legal rulings (fatiiwti) as well as those competent .
was inadequate for the refonnation of Turkish society. As for the 'ulamii', they to officiate in courts and those who specialize in public law. Riga was thlls not
were so preoccupied with protecting their personal interests by placating ithe hostile to the idea of a legislative assembly (al-tashrf1 but only if it comprised
discredited old order, that it became all but impossible for them to exercise~the of scholars ,trained in the traditional sciences of Islam. In this way, he argued,
the sacred sources will maintain their primary role in the legislature and ensure
39See in this regard, S. Mardin: Religion and Social Change in Mod,ern that the laws promulgated are in consonance with the dictates of Islam.
Turkey (Albany: Suny Press, 1989)

~. Iqbal, The Reconstruction of Religious Thought in Islam (Lahlj>re: 42R.Riga, Al-Khilafa au al-Imama al-'Uuna. (Cairo: Matba'a al-Manar,
Shah Muhammad Ashraf, 1951) 156 . 1922) 64
4IIbid., 153. 43Ibid., 65.

70 The MOder~ists Chapter Three 71

In his political structure, the khalifah, along with his cabinet are to sJrve increasingly difficult for him to remain faithful to the salafi elements of 'Abduh's
as the official representatives of the Prophet; as such they must be endowed ~ith as. well as the modernist, is most apparent in his treatment of riba or usury.
all the powers and responsibilities that accompany such a position. Obediencl:! to Given the Qur'an's condemnation of riba, not to mention the harshness
the khalifa is compulsory, and to the extent that his pronouncements ar~ in of the punishment it promises those who flout the law (barb min Allah)46 one
confonnity with the sacred sources, his ijtihtid supersedes that of any o(ber expects from Ri<Ja a strong condemnation of this form of commerce; instead, one
mujtahid and is binding upon every Muslim .. It will theref9re, not be permissible finds a rather spirited argument in favor of1he practice. Though he concedes that
to follow any other ijtihtid in public affairs (al-1na§iilib al- 'iimma); the individual Islamic law prohibits interest bearing transactions and that it ultimatel is the
however, is not precluded from following his own ijtihtid or that of some odler ideal way for the community to follow, he nonetheless, argues in favor f such
mujtahid in matters that are strictly personal. 44 practices because, as he puts it, Muslims are now faced with great dif lculties
In truth, Ri<Ja' s package of legal reform is neither unique nor modem, ibut when trying to secure a loan, and when they do, it is more often than n t from
his idea of establishing a school for aspiring mujtahids cum legislators is quite non-Muslims who are hostile to them and to their religion. This, he belie es also
novel, perhaps the most progressive suggestion for political reform to come f110m depletes the resources of the community, and is therefore, clearly detrim ntal to
a traditional scholar. But his legal ijtihtid, as such, remains grounded. in the economic welfare of the Muslim. world.
traditional thought: it essentially revives the call for the ijtihiid mu/laq of !the Ri<Ja, like 'Abduh before llim, argues for the relaxation of the ri a rules
classical period i.e., the inter-textual inference of laws directly from the Qut'an on the basis of tjarara or necessity; but this recourse, as mentioned previously,
and the sunna without recourse to historical interpretation. His legal reform$us only provides temporary relief from the strictures of the law and is in no way
lacked the kind of boldness that characterized the ijtihtid of 'Abduh's other meant to replace a ruling, particularly not one that is based on ~~. But Ri<Ja
disciple' AlI 'Abd al-Raziq, whose controversial work, Al-/tliim wa U~ul al-lJU/cm seems unperturbed by this and states: "The jurist's broadening of the definition
was in fact roundly condemned by Ri<Ja himself. That Ri<ja's ijtihtid was fmhly of riba and their inclusion therein of factors unknown in the period of revelation
entrenched in the sacred sources is also clear from the fact that the khalifa in ~is . . . and the great strides that the economic and monetary fields have made, of
scheme must be fluent in the Arabic language. This is a requirement the kind that give instant benefits to those who pursue their monetary affairs along
ijtihtid, sO he says, is contingent on a thorough understanding of Arabic syntax that pattern . . . all these factors have brought about the subservience of the
and etymology, poetry and prose; in short, on every aspect of the language tpat Muslim masses to foreign powers. "47 Now, it may indeed be that,}u<Ja presented
sheds light on the text of the Qur'an and the sanna.4S This, I might add,! is this argument, against his better judgement, in support of his master,' Abduh, but
precisely the kind of ijtihiid--call it 'Abduh's salafllegacy, if you will--that
surfaces with regularity, in Ridli's political philosophy. That it became

461 refer to the following: "0, believers, fear God and forego the interest

that remains if it be that you truly believe; for if you choose not to then be
44Ibid., 79. warned of war with God and His Apostle." (279:2)

4sIbid., 87 47Ibid., 98.

72 Chapter Three 73
The Modernists
Hourani inclines to the view that Ri~a genuinely believed that ijtihlid could be realization in a single individual;" and this, "has reduced 'the ··law of Islam

applied in this way in contradiction even to the text of the Qur'an. i

practically to a state of immobility. "so

Finally, Ri~ shared some of Muhammad Iqbal, the Indo~pruJstani He believed that this was brought about fIrstly, by Muslim orthodoxy's

thinker's perspectives on the Islamic intellectual process, particularly his viei.. that reaction to the con~oversy surrounding the question of the creation of the Qur' an:

ijtihtid is Islam's "principle of movement". Without ijtihlid, it wouW be the. 'ulama' who were perturbed by the destabilizing effects of the Mu'tazilite's

impossible to unite Muslims and restore Islam to its erst,!,hile position of cop.trol, rationalism on the moral and ethical fabric of Muslim society, were constrained

Ri~a claimed. Muslims, not too long ago, controlled the far comers of the ijlobe; to utilize the binding force of the shan'ah and to make the structure of their

now, however, thanks to their abandonment of ijtihiid, they have been ass.gned legal system as rigorous as possible. The second factor that he believed, stultifIed

a peripheral role by others. In addition, they suffer from within, a debilitating the creative impulse of ijtihlid was sufism in its speculative, as well as its ascetic

spiritual and moral torpor that robs them of their will to control their own destiny expressions. The former, a form of free thought that was in alliance with the

and, worse still, causes many to abandon religion. 48 Ri~a confesses that to ~each rationalism of the kalam philosophers, posed the same threat to the Muslim world

the Egyptians and the Turks about Islam is indeed an onerous task, fori they as did mu'tazili rationalism. As for the latter, its emphasis on the distinction of

ignore the Law and the teachings of the past generations. His appeal therefore, the itihir from the btiJin (appearance from reality), where appearance would refer

is directed to what he calls the ahl al-qa~d wa al-i'tidal or those well intenttoned to this world and reality to the hereafter, created an attitude of indifference to all

and moderate scholars of religion and science who are endowed with the gift to that was this worldly and hence, not teal. 51 The third factor was the sacking of

search for a via media between the crass materialism of modern society and the Baghdad in the mid-thirteenth century. Muslim, scholars, devastated by the

obscurantism and superstitions of what passed for the Muslim intellectualle~acy. aftermath of the Mongol scourge, saw the need to maintain the social life of the

Iqbal would certainly have approved; he was after all, one of a handful community, and they undertook to do so in the only way known to them: by

of Islamic thinkers who grappled with the "question of reformulating the basic preserving the sanctity and the preeminence of the law.

ideas of Muslim theology. ,,49 But he was nonetheless, no less confused tru.n his Thus far, Iqbal has stated what he believes, contributed to the f~ssilization

modernist colleagues in his understanding of the concept and its place in thJ new of legal thought in Islam or, in his words, "the reduction of the law to a state of

theology. As mentioned previously, ijtihlid for Iqbal was nothing short of the immobility." But nothing has yet been said about the fate of ijtihiid. Did Iqbal

very "principle of movement in Islam", synonymous with the ijtihiid mUJipq of consider its doors closed? Apparently not, for he states quite emphatically,

the early community, except that it was no longer confined to the founders q,f the elsewhere, that the closing of the doors of ijtihiid is "pure fIction", suggested'

school. This ijtihiid, "though not formally abrogated in the law, has over the partly by the crystallization of legal thought in Islam, and partly by that

years been hedged round by conditions which are well-nigh impossibJe of intellectual laziness, which, "especially in the period of spiritual decay, turns

48Ibid., 82.
so M. Iqbal, The Reconstruction, 149
49JI. Gibb, Modern Trends in Islam (Chicago: University of Chicago !tress
1954) 10 ' ' 51Ibid., 150.
74 The MOde1nists Chapter Three 75
great thinkers into idols." In this way Muslim orthodoxy succeeded intuJjning Iqbiil refrained from using the term ijtihad for these efforts at'reform seem to
the idea of the closing of the doors of ijtihiid into dogma, despite the fac~ that substantiate the idea that the term for him had transcended its historical
"neither in the foundational principles nor in the structure of the ISI~mic connotation. To what extent this is so is however, not clear. I will illustrate this
intellectual system . . . is there anything to justify the presept attitude. ,,52
by examining his treatment of the debate on secularization and the Khilifa that
Iqbal, unlike-many others in the reform movement, was not unfatl1-iliar raged in Turkey prior to Ataturk's decision to abolish the Khilifa and formally
with the history of Islamic law. He thus, speaks with und~rstanding, of Shafi'f's accept secularism as part of the Turkish constitution. With regard to the
views on the subject as well as those of some of the later thinkers like' Ibn Nationalist Party of Turkey and its advocacy of secularism he says firstly, that
Taymiyya and SuyiiJI. He was also aware of how the term was used by "the structure of Islam as a religio-political system, no doubt, does permit such
reformists such as the Wahhabis, but while he heartily praised the spirit of reform a view . . . ; "56 but later, he contradicts this by stating that "Islam is a single
in these movements, particularly that of the Nejdi, Ibn Wahhab,s3 and the Nprth unanalysable reality. . . In Islam, the spiritual and the temporal are not two
African, Ibn Tumart,54 he nonetheless, remained skeptical of their calls for distinct domains, and the nature. of an act, however secular in its import, is
ijtihiid. He thus points out "that while these movements rose in revolt against the determined by the attitude of mind with which the agent does it. 1157
finality of the schools (the mo.dhtihib), and vigorously (asserted) the right of The above is but one example of the dilemma that Muslim modernists
private judgement, (their) vision of the past is wholly uncritical, and (in matiters have been faced with vis-a-vis the sacred law and ijtihiid and it is one that is most
of law) they mainly fall back on the traditions of the Prophet ... 55 The fact that conspicuous in the thoughts of Iqbil. The unmistakable vacillation that surfaces
frequently in his treatment of ijtihiid as the principle of movement in Islam is but

S2Ibid., 178. a reflection of the dilemma modernists face trying to move into the future without
destroying the past. In his discussion on the history and structure of the Law, for
S3Muhammad b. 'Abd al-Wahhab (1703-87) made tauhrd or belief inithe
unity of God the mainstay of his mission. To that end he rejected, out of hand, instance, he accepts, at the outset, the classical deflnitionof ijtihiid as equal or
magical rituals, the intercession of the deceased, and the worship of saints. Ow.y synonymous to qiyas. This, in effect should have subordinated ~s concept of
the Quran and the Prophet were valid authorities in Islam; all others, including
the eponyms of the schools of law, were but fallible human beings whose ijtihiid to the sacred sources of the Law, the Qur' an and the sunna. But after
teachings -
conceding this much to orthodoxy, Iqbal attempts to incorporate into his paradigm
can never be accepted unquestioningly. On the Wahhabi movement ~ee
G. TRoeller, The Birth of Saudi Arabia: Britain and the Rise of the House of S4uti the very liberal value system that prompted him to undertake his reconstruction
(London, 1976). .
iIi the first place, an effort that has mixed results, at best. Thus, on occasion he
54 . : considers abolishing the laws engendered by the jurists and muftis or dispensing
Muhammad b. 'Abd Allah b. Tumart was the 12th century founder< of
the Almohad (al-Muwa1;.l}idanJ reform movement in southern Morocco. lIe with the schools of law and going beyond even that, to the sacred sources and
preached the preeminence of the Quran and the Sunna and rejected the autho~ity
. of the mo.dhtihib. But he also rejected the anthropomorphist teachings of $n
Taymiyya etc., in favor of Ash'arite theology. For more information see .
Laroui, The History of the Maghrib (Princeton: Princeton Universtiy Press, 19 7) S6Ibid., 154.
551bid., 153.
S7lbid., 154.
76 The MOdernrsts Chapter Three 77
questioning the utility of a law that was promulgated quite that far back. Butl he undertook to reinterpret the law'by distinguishing between the purely religious
often shows misgivings about this and doubles back to defend a traditional elements of the law and the social. The latter, he maintained, stemmed from the
perspective from the criticism of others. value judgements of a given community and were, to that extent, open to
For example, while he accepted that ijtihiid only operates within the lunits modifications as may be demanded by the collective conscience of the
ef the revealed texts and therein it is absolutely free,58 he was also '.willing: to eommunity.61 Iqbal responds by focusing on what he sees as a tendency within
broaden its scope to include other sources of guidance such as the modem sOdial Islamic liberalism to trample on tradition and destroy the broad human outlook
sciences. This is evident from his statements on the Turkish experiment Wlith which Muslim people have imbibed from their religion. 62 In their zeal for reform,
legal reform. He says, "we frod (in Turkey) that the idea of ijtihiid, reinforced Iqbal fears that the liberals may exceed the proper limits of such reform.
and broadened by modern philosophical ideas, has long been working in the In summary, Iqbal's dilemma viS-a-vis legal reform is, in many ways,
religious and political thought of the Turkish nation. This is clear from Halim symptomatic of modernist thought in general: coping with a legacy whose
Sabit's new theory of Muhammedan Law, grounded on modem sociologi(:al vibrancy was stultified not so much by dogma nor yet by the ethics of the faith
concepts. If the renaissance of Islam is a fact, and I believe it is a fact, we 1100 but rather, by a particular state of mind, taqlfd and perhaps, more importantly by
one day like the Turks, will have to reevaluate our intellectual inheritance)'59 its protagonists, the 'ulamli'. But unlike those whose appeal for change and
With regard to one such inheritance, the schools of law, Iqbal has this to say: hence, ijtihiid was but a transient moment in their flight from the past (taqlfd),
one frods in the foregoing scholars, particularly in Ricja and Iqbal, an
I know the 'ulamli' of Islam claim fmality for the popular schools
of Muhammedan Law . . . but since things have changed and the unmistakablt:: uneasiness in abandoning that very past. "No people can affQrd to
world of Islam is today confronted and affected by new forces set reject their past entirely," Iqbal asserts; "for it is their past that has made their
free by the extraordinary developments of human $oughts in all
directions, I see no reason why this attitude should be maintained personal identity. "63 For these individuals therefore, the reformation of the past
any longer. Did the founders of our schools ever claim fmality for is all the more complex, and the rejection of its rules as preserved by the 'ulamii'
their reasoning and interpretations? Never! The claim of the
present generation of Muslim liberals to interpret the foundational through taqlfd all the more perplexing; after all, each one 'of these rules; simple
legal principles, in the light of their own experience and the altered though they might appear to be from the outside, is" in the words of Iqbal.
conditions of modem life is, in my opinion, perfectly justified. 60
"endowed with a life value of its own, inasmuch as it tends to give such society
But Iqbal was equally quick to criticize those very interpretations; this much! is a specific inwardness, and further secures that external and internal uniformity
clear from his reaction to the ideas of Zia Gokalp (d. 1924), the TurkiFh
thinker/poet. As a reformer who also happened to be a sociologist, GokaiIp

61For an overview on Gokalp's philosophy see, Z. Gokalp Turkish

Nationalism and Western Civilization: Selected Essays Of Ziya Gokalp (London:
S8Ibid., 178. Unwin Ltd., 1959)
59Jbid., 153 62M. Iqbal, Reconstruction. 163.
6OJbid., 159-60 63lbid., 167.
78 Th'M~
which counteracts the forces of heterogeneity always latent in a societyi of a
composite character. 1164



The term salati, which today is almost synonymous with the reform
movement of Mul}.ammad 'Abduh and Rashid Riga has in fact a conceptual
connotation and a historical reality that antedates by several centuries this mOre
recent usage of the term. The modernist movement, as shown previously, sought
to legitimize its liberal reform proposals by linking them historically to early
Islam, or conceptually to its intellectual heritage. The appropriation of the concept
of ijtihiid therefore, is but one example of this phenomenon.
Thus, in recent times when the idea of the nation-state crept into the
Muslim world, this. kind of linkage with the past was performed in order to
'Islamise' this concept. The system of parliamentary democracy with its
executive, juridical and legislative structures was legitimised in some circles
through ijtihtld: the Qur'anic concept of consultation, (shilra), in conjunction with
the executive branch of government, the /child/a, was said to be, in essence,
identical to the democratic process.
But it occurred to some, I imagine, that this ad hoc method of reform,
under the guise of ijtihiid was not half as effective as ascribing one's entire
methodology of reform to a historical figure or epoch; to such scions of the faith
whose moral and spiritual rectitude and intellectual accomplishments was

64Ibid., 167. universally recognized. This, I suspect, is what prompted 'Abduh and, to a lesser
The Sq.lafiyya Chapter Four 81
extent, Riga to use the tenn salafi with such abandon on a movettlent tl$t was,
There were certainly quite a number of simlarities between the two salafi
in reality, quite unlike its namesake.
movements: both, for instance, stridently opposed the practice of taqlfd and
The neo-Salafiyya, as some have called it or the Manar moveII?-ent--from
condemned its proponents of giving precedence to the rulings of the imams and
AI-Manar, the mouthpiece of the same movement--is described by David
their 'ulamii' over those of the Prophet The latter, both claimed, are ina sense
Commins as a movement
guilty of heresy for if they were called upon to renounce the opinions of their
schools in favor ofa sacred text they would refuse, turn violent, and some may
that assimilated current ideas about reason, progress, science and
technology to a vision of Islam that held out to Muslims the even regard the taking of one's life and property in such a case as pennissible.
promise of remaining true to their religious and cultural identity at
Even the more pious among them regard the defIlement of their critics honor as
the same time that they were borrowing technology and. scientific
learning from the West. 1 lawful.
Both groups also found problematic the fact that many of the adherents of
The relationship between the West and its technological prowess was inci¢lental,
the madhahib interpreted the concept of ijmd' such that it applied to the four
they maintained, and Muslims therefore were in no way impeded by theiir faith
schools of law only. This despite the fact that there has been no unanimity among
from making even greater strides in this direction. But first, they would have to
the .scholars themselves on what constitutes ijmd'; some in fact defme ijmd' in a
overcome blind allegiance to the recent past, to the 'ulama' who perpetua1ied the
way that would preclude the very unanimity they claim.4 The schools were also
regimen of taqlfd, and sanctioned ritual innovations. 2 These Salafiyya, it must
accused of a kind of intellectual arrogance for their efforts to restrict ijtihtid to
be. remembered, were ardent proponents of reason and science; contemporary
their adherents only, notwithstariding the fact that there have always been scholars
ideas on these topics were grafted onto Islam through the instrument of ijtihtid
which, for them, had two significant roles to play: elsewhere, equally knowledgeable and qualified to exercise ijtihiid.
This fonn of religious refonn however, comprised that is, of a
First, ijtihtid gave practical expression to Islam's rationality: preoccupation with unity, a disdain for taqlfd, .a condemnation of innovations
'ulama' exercise their powers of reason to understand scripture;
with that understanding, (they) discern general principles by which
(bul'ah) and a partiality to reason in the fonn of ijtihiid, came to be regarded by
social affairs should be governed; and they derive specific precepts many scholars, particularly in the West, as the salient·features of the SalafiyYa
from those general principles . . . Second, ijtihiid would replace
the legal schools as the basis of juridical practice; divisions arising
from legal school partisanship would disappear and Muslims would
attain 3

ISee J. Esposito, Islam: The Straight Path. (New York: Oxford University
Press, 1988) 5. Also see D. Commins, Politics and Social Change in! Late 4We know from Schacht (1950:82) that the 'ancient schOols of law'
Ottoman Syria. (New York: Oxford University Press, 1990) 5." considered their own consensus as the highest authority in the Law,· second only
to the Qur'an itself; Shiifi'r however, rejected this ijrna' out of hand and
2Commins, Politics and SociaL Change, 141 substituted instead, the idea of the universal Muslim consensus but mostly "as a
3Ibid., 141.· subsidiary argument and. as an argument ad hominem." As for Malik, he only
allowed the Ijma' of the people of Medina. .
82 1 The Salajiyya I Chapter Four 83

movement, the brain child of Mu1}.ammad 'Abduh. 5 But as Hourani points out, . all, the Yemeni scholar Mu1}.ammadb. 'Ali al-Shaukani (d. 1834) who brought
when 'Abduh talked of the salaf, into sharp relief the philosophy of this movement, crystallized and spelt out what
. exactly the idea of the "emulation of the salaf (ittibii' al-salaj) entailed, and gave
he meant in a general way the creators of the central tradition of the movement a reformistic character.
Muslim thought and devotion, from the Prophet to GhazzalL
Either because of a certain vagueness in his concepts, or from a ShaukanI, regarded by many as the intellectUal doyen of sunni
sense of the overriding importance of unity, he had been content fundamentalism, was in fact a ShI'I, boni and reared in a Yemeni family of the
to construct a synthesis of elements which might prove
incompatible with one another if any of them were carried to its ZaydI persuasion--the sect that constitutes, in relation to the sunnis, the more
logical conclusion. 6 moderate element in Shi'ism. 8 But unlike the Sunni schools who regarded the
The remainder of this chapter will, I believe, vindicate the foregoing perception. 'doors of ijtihiid' as closed, the Zaidis, we learn from Messick
that the Salafiyya movement of the nineteenth and early twentieth centuries and
had no such debate concerning the practice of interpretation. For
its espousal of ijtihiid was in many Ways unrelated to the pre-modem movement the Zaidis, the 'gate of ijtihiid' had always been unproblematically
of its namesake. The genesis of the pre-modem Salafiyya movement, hils in actual open, and the aggressive advocacy and pursuit of interpretation
became a hallmark of their school. 9
fact, been ascribed to the reform efforts of two fourteenth century iconoclasts, Ibn
Taymiyya al-Harraru (d. 1328) and, to a lesser extent, his celebrated disciple, Ibn It is likely that ShaukinI imbit>ed some of his partiality to ijtihiid and his aversion
Qayyim al-lawzlyyah (d. 1389). The former, regarded by some as a "bright and for ra 'y from this tendency in ShI'I legal hermenutics. It must be remembered
bold spirit" and by others as the "rigid fundamentalist. who was intractably: however, that the Shi'I emphasis on ijtihiid applies only to the derivation of the
opposed to §ufi innovations and the blind imitation of the rnadhiihib" 1 held certain law from the sacred texts. Rational mterpretation of the law, outside the text as
unorthodox views on ijtihiid, taqlfd, .reason and revelation, views which' such, was not one dimension of this form of ijtihad, which means, that the
subsequently became the salient characteristics of the Salafiyya. But it was, above. principle of qiyiis, a key element in Sunni jurisprudence was, in effect, not
recognised. Tabataba'i, in his Introduction to Shi'i Law explains

snus we find in Marshall G.S. Hodgson, The Venture of Islam: The

Gunpowder Empires and Modem Times (Chicago: University of Chicago Press) i that the inference of legal precepts in Shi'i l~w is fundamentally
Vol. iii, P.288, that 'Abduh's followers, led a move~ent, the Salafiyyah "which i baSed. on logical analysis and reasoning within the framework of
eventually spread throughout the Arab lands and even in Malaysia. " Ira Lapidus, : Qui"anic texts and Tradition. Rational argument is accepted on the
A History of Islamic Societies (Cambridge: University Press, 1988) 566, has'
appended to one of his tables on the reform movement the following note:
"Salajiya--founded by' Abduh (d:1905), influenced i~liih and national movements i sne Zaydis are distinguished from the Ithna 'Asharis or the 'twelvers'
" I
over the question of who should have been recognised as the legitimate successor
to the fourth imam;' they aligned themselves with Zayd b.' Ali' who set himself
6A. Hourani, Arabic Thought in the Liberal Age (London: Oxford i up in 12271741 in Kufa as rival to la'far al..,Siidiq. See, in this regard R.
.University Press, 1962) 230 Strothman, "Zaidia," Eneyclopedia of Islam, 1913-34 ed .

'H. Gibb, Modem Trends in Islam. (Chicago: Chicago University Press, ~. Messick The Calligraphic State: Textual Domination and History in a
1954) 34 Muslim Society. (Berkeley: University of California Press, 1993)
basis of Aristotelian deduction, which brings certainty according
Chapter Four

The ijtihiid that ShaukanI championed was in many ways, not unlike the,

to the principles of that logical system. The, kind of analogical

reasoning which is entitled qiyas in Islamic Law was rejected by one above: he too propagated a return to the texts, a rejection of ra'y, rational
the Shi'a from the time it came into Islamic Law, in the 2nd/8th speculation in the law and, if the following statement is any indication, shared in
century, because it leads only to a probable cause for a precept,
not to the certain one, 10 what was essentially a Zaidi disdain for taqlfd. He speaks of the Zaidi scholars
as being "legitimate, particularly in (their call for) the opening of the doors of
In other words, a law so derived, by way of analogy will be based, not on an:
ijtihad, for relaxing the hold of taqlfd, and for not restricting the permissibility
explicit text (fUl§~) as such but on rational speculation (ra'Y). The same can,
(of ijtihiid) to specific imams in contrast to the other taqlfdi imams. "IS But even
therefore, be said for other juristic principles integral to Sunni law such as'
as he praised the Shiite proclivity for ijtihiid he found that the mood among them
istihsan,l1 17Ul§laha l2 and isti~~abI3 all of which are rational tools for legal
was increasingly inclining towards taqlfd, a fact that no doubt, bolstered his
inquiry. 14
resolve to oppose such practices.
ShaukanI's movement appeared in aD. era quite distinct from that of
IOJI. Tabatabii'I, An Introduction to Shi'i Law, (London: Ithaca Press, '
1984) 29 'Abduh and his party: European colonialism had not quite made its presence felt
in the Muslim world and the winds of western liberalism and secular rationalism
11Istihsan refers to a ruling that goes against strict analogy (qiyas) for
reasons of convenience or public interest. See Abu Zahra, UsaJ. al-Fiqh, 207. . were yet to bring changes to the minds and hearts of Muslim intellectuals. 16 His
efforts at reform therefore, were not directed against the territorial expansionism
12Ma#aha (utiUs publica) is the legal principle ascribed to Malik b. Anas
and refers to that which is for the benefit of the community at large. According of any foreign power as such nor against the kind of religious laxity that occurred
to Goldziher (Introduction: 233) "one may depart from the norms established in
elsewhere as a direct consequence of the deculturation of the Muslim intellectual.
the law if it is proved that the interest of the community reqy.ires a judgement'
that differs from the law. "

13This principle which is said to be common to the Shaft'I and the la'farr of U§iil al-fiqh and the rules by which a tradition could be examined. They
schools of law, "seeks a link", according to which a practice once proved to be completely ignored the procedures of debate, reasoning and modes of discourse. "
widespread may be presumed to be both traditional and continuing. "(Qadri, The ShI'I traditionis,ts were thus, in more ways than one, similar to their SunnI
1991:124) But as Coulson (1964:92) points out, the concept as such, is not, counterparts, the Zahirites.
peculiar to the foregoing schools only: "the presumption that a state of affairs
known to exist in the past continues to exist until the contrary is established . . ! 15M. 'Imara, Al-A 'mal al-Kamila Li Jamal ai-Din ai-Afghani. (Cairo: Dar
. is as suCh, endorsed by Islamic jurisprudence as whole, although the Shafi'Is i al-Katib al-'Arabi, n.d.) 161
perhaps apply it more consistently than the other schools. "
16Southern Yemen was colonised by the British in 1839 when it gained
14Tabatabii'I (1984:33) points out that the question of rational discourse in : -control of the port of Aden; this period of colonisation only ended in 1967 with
the law in ShI'I circles was not entirely dissimilar to approaches in sunni circles: : the establishment in the south of the Peoples Republic of Yemen. As for the
there was a conservative tendency as well as a rational. The latter only accepted I north, it remained under Ottoman control until the end of the first world war in
well-authenticated hadIth traditions and "implemented those principles bf u§iil al- 1918 when the empire itself collapsed. For a an o~erview of the latter period see
fiqh which were contained in the traditions of the Imams. Like SUnni"traditionists, Farouk 'UthmanAbazah, AI-Qukmal-'Uthmdnfftal-Yemen(1872-1918) (Cairo:
however, they were chary of writing about legal subjects with words other than I al-Maktaba al-'Arabiyya, 1975). Also see Mul}ammad b. Yahya ai-Haddad, Al-
exactly those mentioned in the traditions." As for the consevatives, they Tan1ch a17Amm Ii al-Yaman, 5 vols'. (Beirut: Dar al-Tanwir, 1986) for a general
"followed traditions without compromise and completely ignored the principles history of the Yemen.

86 .. "lbL4
Rather, It was the result of factors that were wholly indigenous to Islamic society
Chapter Four

ijtihiid and taqlfd have had a special appeal in neo~Wahhabi and


and, to some extent, traceable to events that took place during the early phase <i>f circles in Arabia and Indo-Pakistan respectively they also contributed greatly to
the law i.e., the period following Shaft'I. the anti-madhhab sentiments that are today rampant in much of the educated
I mentioned previously (see ch.2) that Shaft'i successfully melded the circles of the Muslim world. In order to understand his philosophy regarding
scriptural and speculative expressions of early Islamic law into a stru.c~e ijtihiid I will now examine one of his polemical works, .the Al Qaul al-MUftd ft
wherein the latter, as the hermeneutical tools qiyiis anq ijmo:, would bea Adilla al-Ijtihiid wa al-Taqlfd.
subordinate to the sacr~d texts. Shaft'f's thesis, which ultimately became the In this work, Shaukani presents his arguments in the form of a discourse
normative theory of the Law, failed nonetheless, to placate the dOctrinaitte with persons whose identity is for some unknown'reason kept a secret. He merely
traditionists entirely. Some remained intractably opposed to qiyiis and ijrna '--as describes them as adherents of heretical practices or as scholars defen~ing .such
was the case with the Zahirites 17 and the ijashwiyya18---while others, such as the practices. Given the situation in Yemen at the time, they may well have been
ijanbalites l9 , sharply curtailed its practice. The scriptural literalism of the earllY adherents of the Shaft'r school for, as Messick points out, there was indeed a tug-
Ahl al-ljadfth, although relegated to the periphery of Muslim intellectualism, of-war of sorts between these traditional rivals for territorial control of that part
nonetheless remained a strident voice of dissent throughout the centuries. of Arabia. Confmed originally "to a far northern sphere of influence by strong
Shaukani, who belonged to this cadre of thinkers succeeded--where !tis Sunni states based in the southern highlands, Zaidi imams eventually managed to
counterparts had not--in achieving some respect and recognition even amon~ assert their control over the districts of Lower Yemen as well. ,,20 A long, period
modem reformists~ But whereas Afghani, and more so, 'Abduh popularized the of political control interrupted· only by a relatively brief reappearance of the
idea of ijtihtid among the liberal elements of Muslim society, it is Shaukani who Ottomans in the latter part of the nineteenth century
should take credit for having done so among conservatives. While his writings on
foster¢ among Zaidis a sense of their natural ro\e as the overlords·
of Lower Yemen. In Zaidi eyes, the Shafi'i's were a subject
17Ib .
n ijazm (d.1064) of Cordoba, the arch proponent of the Zahirite population (ra'~a); the inverse of this imaging was theShafi'i
doctrine had this to say about qiyiis: "qiyiis constitutes an error, disobedience an4 view of the Zaidi imams as tyrants and of their tribal sUpporters
innovation. Its us~ ~s not permissible for a~ving at legal decisions regard~ any as ignorant and ruthless. A reciprocally hostile sentiment long
characterised Zaidi-Shaft'i interaction. . .21 . .
aspect of the relIgIOn . . . He who amves at legal decisions related to the
religion of God with disregard to God's utterance and that of His Prophet is •
sinner." (qtd, in Chejne 127) As for the treatise itself, the fIrst section is dedicated to refuting evidence
provided by the muqaUids in defence of their position. The latter, for instance,
1BPor ~ore information on this group see A.S. Halkin, "The Hashwiyya, ~
Journal of African and Oriental Studies, 54 (1934), 1-28. ! often cite the Qur'an,43: 16, which reads: "So, ask of those who possess the
reminder (al-tlhikr) if you be unaware". God Almighty, so the argument goes,
19Jbe Hanbaliites maintain that ijm/i' is not really a functioning lega~
concept but rather a historical procedure active only among the comPanions of th~
P~phet. Subsequent to ~at era they argued, it is all but impossible to determin~
With. any ~egree of certamty' the several views that may exist on any given issue ~essick, The Calligraphic State, 40-42
See m ~s rega~ Ibn qudama ~I-Maqdi~i, AI-RaWljat wa al-Jannat all
Mantiilr fi al-U§ul al-Ftqh. (Cairo: Dar al-Pikr n.d.) 2IIbid., 41.

I Chapter Four 89
88 The SalaMa
endorses· taqlfd in this verse, for He instructs those without knowledge to reter becomes, ipso facto, a muqallid. This point is underscored by the proponents of

to those more knowledgeable among them. But Shaukanr points out that the verse taqlfd, as will be shown hereafter.

is in fact, being quoted out of context; the Qur' an, in the said verse, does ~o A slightly varying but not unrelated argument that ShawnI presents deals

more than rebut the criticisms of those who question the likelihood of revelatibn with the question of mediating scripture through rational inquiry, or, as he puts

ever coming to a mere mortal. One cannot therefore, draw conclusions from this it khafr al-ightirti bi al-r~'Y mujarradan 'an al-kittib wa al-sunna. Thus, those

verse on the permissibility or otherwise of taqlfd. But ev~n if one goes alopg who practice taqlfd defer to mere conjecture, and, by extension to .their whims

with the opponents' improper use of the verse, he says, it still fails to prove their (hawan), while those who follow scripture follow ijtihtid. If, as the Qur'an says

point, for the term dhikr in the verse in question refers to the Qur'an and sunrza
this day have I perfected your religion and completed My favors
and thus makes abundantly clear the fact that the Quran endorses !tribii' and not unto you and have chosen for you Islam as the religion'(9:5) and
taqlfd. 22 if God had indeed perfected this faith before the demise of the
Prophet, then pray, tell me, what is this ra 'y that its partisans have
This attempt at distinguishing between text-based ittibii' and blibd innovated .. .if they believe that (their ra 'y) is integral to the faith
obedience (taqlfti) is characteristic of Salafiyya polemics, found in almost aU lof then it (implies) that the faith was only completed through their
ra 'y, a clear refutation of the Qur'an itself, and if they believe that
their major works. In addition to the Qur'an, appropriate I}.adlth traditions of the it is in fact not integral to the faith, then what possible gain is
Prophet are also used extensively; these may take the form of directives that t)le there in becoming involved in matters not related to the. faith. 23

Prophet and his senior companions gave to persons soliciting rulings about Islatn. This is, perhaps, the most pronounced difference between the neo-salafi method
In all such cases, Shaukani shows the solicitation to be, not an act of taqlfd, but of' Abduh et al., and Shaukani: for the latter, reason, or more accurately, rational
merely a search for textual evidence. This, according to the Salafiyya is wIiat discourse not related to the establishment of the primacy of textual evidence in
distinguishes ittibii' qua ijtihad from taqlfd: the former is always based on textual any given matter, is an inappropriate mechanism in the Law.
evidence, albeit, in the form of a legal pronouncement (jatwa) of a muftI, while ShaukiilI also ascribes to taqlfd the fragmentation of the Muslim
the latter refers to an opinion or even a fatwa that is not corroborated in the same community. The unity that Muslims so yearn for, and that which in reality, is
way. That the taqlfd that they railed against, may in fact be the inevitable a religious obligation, can occur only when the muqallids abandon the madhiihib
consequence of the very literalism that they so greatly prize, seems to have and strictly follow the most authentic proofs from the scriptures. 24 That this policy
escaped Shaukani. This search for textual proof is, after all, no more than ~e may instead cause a proliferation of schools far greater in number than the current
postponement of the moment at which taqlfd becomes necessary, for, the four is something that seems not to have overly concerned the Salafiyya.
questioner, notwithstanding his scrutiny of the sources, will at some point ~e Muqallids also use ijma' in support of taqlfd:the latter, they argue, cannot
constrained to defer to 'blind obedience' and accept, prima facie, the evidence ~f be pronounced heretical because it has been ratified and appropriated into the
some scholar on a matter beyond his scope of knowledge. In .,doing so, he

23Ibid., 159.
22M. Shaukani, AL-Qawl al-Mufidfi Adillat al-ljtihad wa al-Taq/id Carrb,
1974. 110. I 24Ibid., 138.
. -
90 The salata Chapter Four 91
sacred' Law by the ancients. But Shaukanr is quick to point out that there is. if intelligent person would agree that were someone to openly attack this practice
anything, a historical lack of consensus in this regard: the eponyms of ithe he could well stir up a riot. "28 The masses, out of ignorance, are wont to follow
schools, including the Hanafis, are in fact, on record as having opposed Ithe their scholars rather than scripture while the scholars, for social and economic
practice. Abu Hamfa himself is quoted as having declared: "it is not permissible . reasons, are unwilling to guide them towards ijtihiid. In addition to the popularity
for one to follow our pronouncements if he is unaware of our sources. "25 He Who and social status that they procure in this way, the 'ulama' of taqlid, ShaukanI
follows this advice no longer remains a muqallid but becoIl}es rather, a mujtahid. explains, also obtain teaching posts in schools on the basis of their affiliation to
That the Hanafis were singled out for special mention points to the existence of a specific madhhab. The same can be said for the imams and khaffbs, preachers
a substantial Turkish influence in the area. The Ottomans, who, at the time ~re of the local mosques; they too are reluctant to jeopardize their careers by
making concerted efforts to change the sultanate into a full-blown khilafa gained abandoning taqlfd. 29
much notoriety for also trying to promote the Hanafi school throughout areas Like the modernists, Shaukanr saw taqlfd as a threat to the dynamism of
under their control. According to Hodgson26 this led to much discriminatio~: it the sacred law but how he hoped to reconcile that with his antipathy to reason and
often required that an Ottoman, in addition to being Muslim, also be a Hanafi. rational discourse is not clear. The proponents of raqlfd, he says, in closing the
Shaukanr, it is likely, was familiar with this policy, which perhaps, only fur¢.er doors of ijtihiid, are in effect, saying that the understanding of human beings have
strengthened his resolve to oppose taqlfd. changed for the worse since the advent of Islam. To accommodate such a
That the muqallids constituted a telling presence in Yemen is clear from preposterous postulate is to concede that the Law is inaccessible in so far as new
his comment that were a mujtahid to raise his voice publicly in protest agaiJnst problems present themselves. Not having the intellectual aptitude to unravel
taqlfd, it is likely that he will be physically assaulted if not killed. The muqalljps, - solutions to new problems, in effect, gives the lie to the very belief of every
he indicates, in addition to the political favors which they ~enjoyed, were alsa in Muslim that the sacred law in conjunction with human intelligence can provide
control of the educational institutes of the area and the masajid. 27 M4nY answers for every contingency. 30
proponents of ijtihlid, he claims, were thus forced into silence by the bullying But he then launches an attack on reason and rational discourse. He cites
tactics of their influential adversaries, not just in Yemen but throughout /he numerous traditions of the Prophet, all of which convey, more or less, the same
Muslim world. message: "this umma, " the traditions warn us "will have gone astray the moment
But he admits that taqlfd also flourished because of internal decay: it Pas it begins basing its actions on ra 'y. "31 Here again, for Shaukani, as opposed to
become entrenched in the minds of the masses" he says. "Hanafis espouse it, as the neo-Salafiyya, reason is only meant to unravel the rule of the sacred law as
do Malikis, Shafi'is, Hanbalis,. and indeed, the shiite Zaidis; and thus, any

28Ibid., 131.
25Ibid., 128.
29Ibid., 167.
26M. Hodgson, The Venture of Islam: Conscience and History in a World
Civilization. Vol. 3, (Chicago: University of Chicago Press, 1974) 107 I 30Ibid., 169.
27Shaukani, Al-Qawl al-Sadid, 133. 31Ibid., 153.
92 The sa~yya
Chapter Four 93

enunciated in the scriptures; all else is nothing but delusion (tjalala). T~ that combining with this the quasi-rationalism of scholastic logic .but without
extent, 'Abduh's refQnn movement, which he characterized as salafi, cont~ined Mul}ammad 'Abduh's ballast of catholicity."
two contradictory impulses not found in the thoughts of ShaukanI: the scri~tural As shown previously, Riga's ijtihtid in matters of public welfare were not
legalism of traditional salafism and the modernist proclivity to reason and rational unlike those of the liberal factions of the refomi movement: like them, he too
discourse. Some of 'Abduh's disciples therefore, shared ShaukanI's revulsion for believed that the Muslim community, .through its representatives can promulgate
the decadence of popular Islam with its innovations and .foreign accretions!; and laws (qanun) that are in the public interest. But in matters of worship and social
broke with 'Abduh by following ShaukanI's views on the question of reason. This customs he maintained an inflexible loyalty to salafi scriptUralism arguing, like
group which became increasingly suspicious of modern thought and the liberal ShaukanI, that the disunity of the umma was directly attributable to the kind of
ethos that it was engendering in the Muslim world gradually replaced 'Abduh's loyalty that ?v1uslims displayed towards the four schools of law instead of the
enlightened salafism for the more doctrinaire version touted by ShaukanI. Thus sacred scriptures. A return to the Qur'an and the sunna was for him the only
we fmd fof example, that in the Morocco of the 1920's some of 'Abduh's solution to this discord that he believed, had been engendered by the madhtihib.
disciples shifting the emphasis from taqifd towards salafi literalism; this, in ilarge Unlike ShaukanI however, he concedes that differences of opinion will not all be
part, due to the discrediting of the traditional 'ulama' no doubt, but also, to'some eliminated by the solution that the Salafiyya proffer; hence, in the event that the
extent, to the rejection of western liberalism. The stress, Lapidus points out, was sacred sources be interpreted contradictorily by two or more equally qualified, he
on the purification of Islam through "opposition to saint worship, and defense suggests that the community follow the opinion of the majority. 34
against western cultural encroachment. ,,32 Just as the religious hierarchy of other faiths caused the fragmentation and
It was in Egypt however, under the guidance of 'Abduh's star dis¢ipl~, disunity of its people by proclaiming to be the only possessors of the truth so too,
RashId Riga, that the conservative element of salaIlSID. made its presence felt. Riga maintained,
Riga, whose modernistic tendencies in ijtihiid were examined in the last ch~ptet,
was the case in Islam; the behavior of the 'ulama' in sowing
shifted the emphasis of 'Abduh' s salafism from rational thought and the adoption
discord is just as serious, but for a small group (the salafi, no
of liberal values to its erstwhile role of opposition to Shiism, Sufism and t'Wlfd. doubt) who were faithful to their convictions. But the voice of this
minority is not heard because of the clamor of the majority,
According to Gibb33 while 'Abduh, in his 'Treatise on Unitarian Theology'
especially those (patronised by) the ruling elite who, in turn, (gain
(Ristila al-Taul}fd) resuscitated the "traditional dialectic" of the Salafiyya, ,Riga by having) their control of the masses bolstered through the
legitimacy they procure from such 'ulama'. 3S
perpetuated that same dialectic "by rejecting taqifd and by appealing t<l> the
authority of the primitive community of the salaf, the "great ancestors" 1 and

321. Lapidus, A History of Islamic Societies (Cambridge: Cambridge 34M. 'Abduh and R. Rida, Tafsir al-Qur'an ai-Hakim. 12 vols. (Cairo:
University Press, 1988) 707. Matba'ah al-Manar, 1927-361) vol.1, p.49.

33Gibb, Modern Trends in Islam, 34. 3sIbid., 50.

94 The Salafiyyal Chapter Four 95

Riga traces the beginnings of taqlfd to some of the most prominent one closer to Him (yuqarribuna ila Allah Zulfa). It is unfortunate he l;unents, that

scholars and exegetes of the past and is particularly rankled by scholars such as; only this kind of ijtiluid remains in Muslim circles. This in essence, is nothing but

Fakhr aI-Din RazI (d. 1209) for having endorsed the regimen of taqlfd. The latter, idolatry (shirk), for it ascribes partners with God in his divinity (uluhiyya).

he argues, in doing so, in effect, turned a blind eye to the Qur'an itself whereini "There is," he says "no ijtiluid in dogma nor any analogical deductions in the

similar unquestioning obeisance by previous nations of its priestly hierarchy is: principles of faith: Iii ijtiluid fl al- 'aqaid wa Iii· qiyas fi a# al-ieman. " This last
repeatedly condemned. The malady of blind obeisance that RazI calls the undoing is quite possibly directed towards the tendency in some ~i1fi circles to. sanctify
of previous religions was in fact perpetuated in Islam by people of his ilk. Razi some of their more questionable practices by way of qiyas. The Ahle-l.;Iadlth

ought to have known, Riga argues, that "Muslims are regarded as superior to all movement of India, discussed hereunder, was also particularly vocal in this

other communities only because of their high regard for evidence (that regard: like Riga, it too opposed the use of analogy in efforts to legitimize

corroborates their actions)" ... they therefore, (ought to) refuse to accept any accretions and deviations such as shrine worship (qabr puja) and the birth

matter in religion not based on evidence . . . but the blight of taqlfd has made: celebrations of the Prophet (milad al-nabf).38

them oblivious to this sterling quality that distinguishes them from other Riga's treatment of ijtihad, I believe, is somewhat arbitrary: apart from
religions. 36 its role in the political structure of Islam--which he, admittedly, explains at some

Islam, for him, is certainly the religion perfected by God, and His length--there is no coherent analysis of the possibilities and the limitations of this
argument (hujjat Allah) as expressed through the Qur'an and the $unna. But legal tool. Instead, he presents, what I would characterize as a string of rather

Islam's veracity and indeed that of the sacred Law that it spawned cannot be· amorphous arguments that fail to identify essential flaws, both. historical and

demonstrated except through the use of reason. The Law, in particular, is rooted conceptual, that he claims, exists in the structure of the madhiihib. For instance,
in ijtiluid, and therefore, whosoever impedes the function of ijtiluid is in effect in one place in his exegesis, he analyses the lack of conjugal affection and
impeding the hujjat Allah and destroying not just the infrastructure of the Law but compassion in society and ascribes that, as well, to Muslim society's
also its potential for contributing to the betterment of modem times. 37 abandonment of ijtiluid. Muslims, he says, no longer refer to the Qur'an for

ljtiluid however, is to be applied only in matters of Law and not dogma inspiration; their problems instead, are taken to scholars and to their works

(!aqfda) for the exercise of ijtiluid in the latter case, Riga believes, is bound to ! which, in addition to being devoid of spirituality and wisdom, are 'also often

engender heresy. As in the case of Christians, Muslims too are likely to; divisive. And if someone took it upon himself, to bring peoples' attention to the

contaminate their faith thereby; this is quite evident, he says, with those who ~'an, hoping thereby, to rekindle the spirit of ijtiluid. he is accused of

beseech others besides God to relieve them of their afflictions, believing wrongly. fomenting trouble and of wanting to· destroy the four madhhabs. Little do such

that such persons function as intermediaries with God and intercede in bringing I

36Ibid., 62.
38B. Metcalf, Islamic Revival in British India: Deoband, 1860-1900.
37lbid., vol.5, p.420. (Princeton: Princeton University Press, 1982) 273
96 I Chapter Four 97
The SalaJiYya
people realize that the vitality and well~being of these 171.adhtihib is, in fact, descendants of the Mughals, others, who belonged to the landed gentry and others

contingent upon such action. 39 still, who held influential governmental positions.

Such arguments however,' should not be construed as the product iof a The movement is said. to have started in the seventeenth century through

mind attuned to the critical ·method ofthe modernist; it is, in my opinion, sitbply contacts with the Hijaz whence the study of l;IadItb as an integral part of the legal

Riga's way of substituting the taqlfd of the scriptures for that of the madh4hib. discipline of Islam was introduced in India,. 1]J.e syncretic faith statement of the

As Jomier points out Mughal emperor Akbar (Dfn-e-Iliihf) which he sought to institutionalise .amongst
all his subjects, resulted in, amongst other things, a weakening in the Indian
l~rsque. ~chld_ Ri9.a attaque l~ soumission aveugle I'argument Muslim's relationship with prophecy and the sunna. The l}adith movement was
~ a~tonte (taqlld), II se borne a apporter les textes coraniques qui
mVltent les hommes a la reflexion mais il ne· fait aucune thus launched to revive that relationship.41 While many regard Shah WaIi-Allah,
remarque sur la portee de la reflexion demandee ni sur les limites the 18th century reformer, as the movement's intellectual patron, the person who
du d~maine ou c~s ?reuves sont absolues. . . Son attitude respire
la fmet la soumlsslon au Coran. 11 n'examine pas d'un point, de left a lasting impression on its outlook and philosophy was in fact, the nineteenth
vue critique la portee de ses ar.guments. 40 century scholar, Siddiq Hasan Khan, otherwise known as the Nawab of Bhopal.

Rida's views are, in more ways than one, echoed by the the Ahle-lJaidith Nawab Siddiq, who, by his own accounts, had a rather modest beginning was

movement of the Indian subcontinent. Furthermore, unlike the Egyptian neo- thrust, in a short time, through marriage, into the influential position of viceroy
of Bhopal. 42 ,
salafis who have been replaced by the neo-Wahhaois, the formercontinu" to
function to this day, as an independent religious sect, in many parts of the Inman The creed of the Ahle-l;Iadith as articulated by Nawab Siddiq was that "of

subcontinent. In addition to having its own ideas on ref?rm, quite apart [tom a group which does not follow, either in the broad principles 01-" in the minutiae

other reformists, the AhIe-l;Iadith movement also mai~tains peculiar SQcial of canon law, any of the four juristic schools, and which in theological dogma

customs: this includes, its own places of worship, style of prayer, and even. an subscribes to the view of neither the Ash'arites, the Mitiiridites nor the

easily recognizable cut of beard. Along with an antipathy to folk Islam an4 its Hanbalites, but binds itself to the clear injunctions of the Quran and the word or
practice (l}adith and sunna) of the Prophet43 The doctrine of the ,Ahle-l;Iadith was
popular rituals and festivals (bid'ah). which they share with their salafi brethren,
members of the AhIe-l;Iadith also feel a deep sense of embattlement Wld similar to that of its precursors, the medieval Zahlris except for the ract that they

persecution vis-a-vis other Muslims. This, despite the fact that they generytlly also accepted th~ Sufi doctrine of mystical illumination as a function of the faith,

belong to the middle class and have historically attracted an inordinately bigh
number of Muslims from socially prominent families: some, who were
41Por an account of this period in Indian Muslim history, see Khaliq
Al}mad NiZimi, Hayiite 'Abd al-ljaqq Mu1;addith Dehlawf (Delhi: .1953)

42For a biography of the Nawwab see, Saeedullah, The Life and Works of
39'Abduh and Rida, Tafsir al-Qur'an al-Hakim, vol.6, p.398.
Muhammad Siddiq Hassan Khan. Nawwab of Bhopal (Lahore: 1973)
. 40J. Jomier, Le Commentaire Coranique du Manar (Paris: Editions G _Po
Mamssoneuve & Cie., 1 9 5 4 ) . ' 43A. Ahmad Islamic Modernism in India and Pakistan, 114
98 The Salafita Chapter Four 99
but not in its institutionalised form of sanctuaries (Khtinqah), spiritual lead~rs ramblings of those whose hearts were filled with futile (western) knowledge. The
(ptr) and innovations (bid'ah).44 Ahle-IJadlth's objectives vis-a-vis ijtihiid and taqltd were thus, quite unrelated
If understood within the context of Muslim India this movement's calls for to those of the neo-Salafiyya of Egypt or the Aligarhl Movement in
ijtihad will be viewed, not as a response to the alienation of Muslim intellectuals India.
from their faith nor even as a mechanism to restitute its culture, but as an effbrt The following anecdote, an Ahle-IJadith father's advice to his son on his
to remove the scourge of popular accretions and personal~ty cults that came' to way to prison, captures the bellige;,rence that characterized the relationship
characterise the Islam of that era. Its appeal to ijtihiid therefore, was more a between the latter and the Deobandis. "My son," he cried out, "never forsake
reaction to taqltd than a concern for the restoration of the law to its historical amen and ra/,yadain (practices peculiar to the Ahle-IJadIth form of worship) and
position of authority in Muslim society. Its sense of suffering and of being 1Ib.e keep firm in the faith. It is not Christians and Jews who have destroyed you but
oppressed upholder of the truth is understandable given the number of ideologi<:al the Hanafis". 4S The arguments between these two groups revolved around issues
battlefronts it had created with both, the partisans of the popular ~ijfi practi¢es of positive law' that were, in the main, peripheral to the Muslim predicament in
and those of the madhtihib. There was, for instance, its dispute with the Barelwis India. The most contentious issues were equally the most highly visible; in the
and their custom laden style of Islam, with its emphasis on the veneration :of words of a British official, who was witness to one such issue which caused a
saints (ptrs) and a belief in salvation through intercession rather than good works. near riot: "A vital question of religion, no doubt a most important question . . .
Then there was .the Deobandi group with whom the battle was probably more should Amen be said loudly with the hands crossed over the chest, or should it
spirited if only because .both groups, unlike the Barelwis, styled themselves las be said softly with the hands crossed over the stomach. " 46
religious reformers. The term taqltd is more prominent in Ahle-IJadlth literature than is ijtihad,
While .there was agreement between the two vis-a~vis popular practices and this for several reasons. Firstly, like their salafi counterparts they too
(bid'ah), they differed considerably on the question of legal reform. Deobancltis accepted ijma' and qiyiis as part of the principles of Islamic law but, unlike the
(see hereunder) were loyal Hanafis, true to the spirit of taqltd, while the Ahle- majority of Muslims, they did so in a restricted sense only. Their preoccupation
IJadrth regarded as sacrilege the practice of identifying strictly with one schQol with precise interpretations, and their suspicion of reason as a legitimate source
of law, and worse still, the taqltd of any single imam. of the law all but excluded the exercise of ijtihad in the form of qiyiis. The
This movement's condemnation of taqltd'and its espousal of ijtihiut was sources of the law were strictly the Qur'an and even more so, the I}adlth
not the result of any liberal tendencies on its part. If anything, it viewed the traditions of the Prophet. To them both the modernists and the Hanafis were
liberal "nechari" movement of S.A. Khan as a clear portent, of an wrong in their attitude to I}adlth; the former because they lacked the "capacity of
impending apocalypse; such reforms were nothing more than the pretentiQUs

44For an explanation of these and other aspects of ~ijfi practice see A. 4sQuoted in B. Metcalf, Islamic Revival in British India, 281
Schimmel, Mystical Dimensions of Islam (Chapel Hill: University of Nor
Carolina Press, 1975) 46Ibid., 275
determining the correct hadis by comparing it scientifically with the incorrect" 47
Chapter Four

al-bid'ah: .. providence in (practicing) the sunna is better than

striving in the performance of an ifinovation 49

and the latter for subjecting l,1adIth to the pronouncements of their school of Iiaw.
In conclusion, it is clear that for the Able-I;Iadlth, as well as theSalafiyya, taqlid
The Able-I;Iadlth, like the Salafiyya are at pains to distinguish betJeen
was the real object of scrutiny; their entire process of reform ''was based on its
taqIfd and ittiba': the former is the blind imitation of an imam or a school of!law
removal and replacement with emulation of l)adlth; to that .extent ijtihtid was
while the latter is conformity to the norms and behavior of the Prophet as
enunciated in l)adlth. "AmuqaUid"; Nawab ~iddlq tells l!s,
The case of the Syrian reformer, Jamal aI-Din al-QasimI and his treatment
is one who does not ask about the ruling of God or the Prophet of ijtihtid and taqlid is rather unique in that it encompassed to some extent all the
(in any matter) while the muttabi' always enquires as to the ruling factors espoused by both the conservative Salafiyya and its more liberal
of God and his messenger (hukm Allah wa rasuluha); he doesn't
ask the opinion of another or the madhhab of his imam, and the namesake, the neo-Salafiyya of 'Abduh. Ijtihtid, for Qasmi, whilst significant for
muftI (who he refers to for a ruling) responds accordingly. If it legal reform, was nonetheless, more important as an instrument for scientific and
occurs to the (questioner) that the fatwa (in question) is
contradictory to the Qur'an or the sunna of His messenger then he material progress, an intellectual weapon in the fight against secularism and
ignores the ruling. 48 western liberalism, a mode of discourse for rational inquiry into the faith, and a

This, according to the Able-I;Iadlth, is when textual evidence (riwayah) is b¢ing means to avoid the inflexibility and obscurantism that came to be associated with

solicited from (the muftI) and not opinion (ra'y): the first was construed as itt{bti' taqlid.
and the second as taqlfd and innovation (ibtidti'). While the 'ulama' of Damascus defended taqlid as a safeguard against the

The taqIfd th~t the Ahle-I;Iadith found most repugnant--and their misinterpretation of the Quran and l;Iadlth literature, QilsimI railed against it for

adversaries most relevant--was taqIfd shakh.§i or the emulation of a single imjun. its anti-rational and divisive tendencies. He thus wrote that "taqlfd is a leprosy

Nawab Siddlqpoints out that a quest~oner is under no obligation to attach ~elf which has spread widely among the people. It has begun to wipe them out: indeed

to the rulings of any single imam or mufti. Thus, it is an infectious disease, a general paralysis, and a stupefying .lunacy plunging
man to apathy and indolence."so Like the Salafiyya, QilsimI quoted at length the
if another matter requiring (legal clarification) should come to pass opinions of the four madhtihib all of whom are reputed to have denounced taqlid
then the (abovementioned) questioner need not ask the same muftI;
any scholar that he encounters would do. Nor does he have 10 and encouraged ittiba' . Like 'Abduh, he also believed that· "the only correct wa~
devote himself to the fatwa of the first imam nor cling obdurately to follow the imams would be to apply their methods, not to reiterate their
to him nor defend him in the sense' that if he were to find different
in the Qur'anor the sunnahe (would be reluctant) t9.tum to them. substantive rulings"and like him, he also lamented the fact that taqlfd closes the
The ijtihtid which is other than a search for a ruling in the sacred
sources is to be rejected, for as Ibn Mas'ud, the companion of the
Prophet has made clear al-qa~d fl al-Sunna klzair min al-ijJihtid fi

49Jbid., 175.
47Ibid., 275.
sOCommins, Politics and Social Change in Late Ottoman Syria, 71
48Ibid., 172
102 Chapter Four 103
doors on rational discourse and reason and impedes society's quest for the trulhi. 51 were strongly resisted by the Hanafi scholars and the rulers. 54 The same can be
"The hearts of most people", he points out, said for the Sudan: Egypt's conquest of its southern neighbor during the reign of
Muhammad •Ali instituted unpleasant reforms in that area, not least, the
are confused with the disease of imitation', they believe something,
then seek a proof for it. They do not want anything but what imposition of Hanafi law on followers of the MaIikI school. S5
agrees with what they believe. When someone comes with' what QasimI however, his intellectual acumen and social awareness
differs with their belief, they reject it; they would oppose it, even
if that led to negating reason entirely. Most people believe and notwithstanding, was, in the end, not unlike Nawiib ~iddIq vis-a-vis ijtihiid: he
then reason; you rarely fmd one who reasons and then believes. 52 made no real attempt to analyse the concept within the context of Islamic law. His

Like the modernists, he also argued that the inflexibility that taqlid solution to the legal problems were nevertheless, more sophisticated than those

engenders makes Islam inappropriate for contemporary society. The socio- proffered by others in the Salafiyya movement: instead of reducing ijtihiid solely

economic problemS that Muslims faced in the mid-nineteenth century--such as the to the procurement of rulings from the sacred sources with little regard for reason

desertion of wives by husbands who had emigrated to the west in large number$-- and particularly qiyiis, he proposed that jurists seek recourse in talflq by

necessitated a reinterpretation of the family laws in Islam. QasimI, for his part combining the doctrines of all of the schools in a new legal system. This practice,
though formally rejected by the proponents of taqlid, was nonetheless, routinely
often toured Damascus's environs and nearby district centers, applied by jurists throughout Muslim history in situations where adherence to a
where he met officials and notables who told him that many \
women suffered from such a situation. When he tried to annul specific school of law would have caused hardship. QiisimI proposed that this
their marriages after years with no word from their husbands practice be formally recognized as a category of ijtihiid and be applied, with
judges refused on the basis of the Hanafi school's ruling encoded
.in the MajaUah, the Ottoman civil code. 53 discretion, by muftIs and judges. S6 He also called for the formal acceptance of
another form of ijtihiid: the creation of new legislation based, not on legal
The foregoing underscores the point made earlier on, that a significant
precedent as such, but on the principles of the schools of law. This form of
number of calls for ijtihiid and attacks on taqlid were in reaction to Otto~
ijtihiid was actively practiced in early Islam after the demise of the eponyms of
authoritarianism and its insensitivity to the socio-economic hardships that its
the schools by scholars known as mujtahid muntasib or mujtahid fi al-madhhab
rendition of Islamic Law placed on the locals. In Tunisia, we know that effotts
(see chapter 1) except for the fact that their ijtihiid often reinterpreted the rulings
by the Maliki 'uIama' to introduce similar reforms in education through the
introduction of modern subjects and pedagogical methods into the school systetm
54For a study of Tunisian politics and society in the nineteenth century see
L.C. Brown, The Surest Path by Khair AI-Din al-Tunisi (Cambridge, Mass.,
1967) and A.H. Green, The Tunisian 'Ulama: 1873-1915 (Leiden:1978)
51Jbid., 71. s5For an overview of this period of Sudanese history see R.L. Hill, Egypt
~ in the Sudan 1820-1881 (London:1959) ,
52J. Qasmi, Awamir Muhimmaji Islah al-Qada aI-Shar'i, (Damascus: AI-
Taraqqi Press, 1913) 72 I
S6See in this regard hisfatwa dealing with the question of desertion: Jamal
aI-Din aI-Qasimi, Awamir Muhimma ji I#iil} al-Qatjii' al-Shar'i (Damascus: AL-
s3Commins, Politics and Social Change, 72 Taraqqi Press. 1913),
106 ThelS~S Chapter Five

al-Muslimiln or the Muslim Brethren, laid the groundwork for a new.


each other, in their methodology and approach to the implementation iof the
sacred Law within their respective social milieus. For the Ikhwan, ijtihf4 and weltanschauung that spread rapidly throughout the Muslim world. The formation
taqlid remained largely peripheral issues overshadowed, in. the main, by the of this movement however, just two years after the denouement of the caliphate

socio-political circumstances of Egypt, while, for the Jamat, the same issu4!s took was, as Hamid Enayat points out, not unrelated to the social, cultural and political
On ponderous proportions in Pakistani society. This study shows, once again, that transformations that were being wrought upon Egyptian society by the

even an issue as parochial as taqlid was ultimately, no~ unrelated to the broader colonialists. These included

problem of the Muslimworld's perception of its own image vis-a-vis the world
the post war orientations to apostasy and nihilism which were
community. While both the Ikhwan and the Jamat became emtteshed in this issue engulfmg the Muslim world, the attacks on tradition and
out of a concern for the future of Islamic Law, their interests therein werej in the orthodoxy--emboldened by the Kemalist.revolt in Turkey--which
were organized into a movement for the intellectual and social
final·analysis, integral and subordinate to their quest for an umma undivi~ed by emancipation of Egypt, and the non-Islamic, secularist and
the socio-religious paraphernalia of the past. libertarian trends which had pervaded the entire academic and
intellectual climate of Egypt. 2
In 1924 when the Kamal regime in Turkey formally abolished the ~slamic

caliphate the final chapter on Islam's political and intellectual hegemony ended. Islam, for both the Ikhwan and the Jamat was based more on its two

But more importantly, the world-view that for centuries had served :as the foundational documents, the Qur'an and the prophetic tradition, than on any

infrastructure of that hegemony also became a thing of the past; having !ost its previous historical interpretation thereof. It was for them, not just a religion, but

relevance, it too needed to take cognizance of the new world order. Whereas rather, a holistic, self-evolving system (mutakamil bi-dhiitihf), one that addressed

previously the mere presence of Islamic law influenced societies within its all the vicissitudes of life; it was a faith that was relevant to both the present and
purview, the disestablishment of the caliphate changed"all that. While Aqtturk's the future, to Egypt and indeed the rest of the world. In short, it represented, for
decision to abolish the caliphate was but the culmination of a long period of them, a comprehensive ideology, unrestricted by spatio-temp0ral constraints. 3
decline and decadence, its effects were nonetheless no less devastating Ion the That Islam for the Muslim in the past was a comprehensive world.view,
psyche of Muslims everywhere. This, because it made explicit what till then, was applicable to all times and places, is true only to the extent that he knew of no
obvious only to the Muslim elite: the Muslim world's slow, inexorable sl~(fe into other system. It was, in other words, a way of life without any ~ alternatives.

subservience and its domination by other cultures and civilizations was no'jV a/ait But in a world of competing ideologies, where the same world-view, when

accompli. Muslim society was thus challenged by an anomie, a lack of P1l1rpose, contrasted with others, was now being perceived by some as less than perfect, the

if you will, that only served to accentuate the despair of political defeat. ' Islamic movement's alternative view was propi~ious:it filled a teleological void

There followed however, an almost immediate shift in the Jslamic

weltanschauung, contrived, in large part, in 1928 in ,the unpret~ntious

surroundings of Isma'Ilia, a small town in Egypt. Hasan al-Banna, (d.1949) a lH. Enayat, Modem Islamic Political Thought (Austin: University of
Texas Press, 1982) 84
local school teacher, together with the group he helped establish, the Al-rkhwiin
3Ibid., 85.
104 The SalafiyYa
of their imams. Qasmi was eager to appropriate, through ijtiluid, many of ~e
social and scientific developments of modem times. He regarded all of this as a
great blessing for the Muslim community and reminded the 'ulama' that the ~\vo
great sources of Islam, the Qur'an and the sunna had in them the flexibility
accommodate such developments.
Unlike Nawab Siddlq or ShaukinI, Qasmi was not blind to the fact that the
opening of the doors of ijtiluid can be potentially harmful to the unity of the
community. Given the element of probability and error inherent in every rational
decision he conceded that the exercise of ijtiluid could produce several competing
judgements. In order to reduce the possibility of conflict and dissent, he suggested CHAPTER FIVE

that the traditional 'science of disputation' ({ann al-muniii.ara) be revived to TIlE ISLAMISTS
regulate scholarly discourse in an atmosphere of harmony and tranquility. 57 llis This chapter will focus on the role of ijtiluid in the reform program of the
principles of a scholarly dispute have been summarized by Commins as follows: Islamic Movement. The two leading exponents of this movement, the Al-/khwiin
Al-Musliman in Egypt and its Pakistani counterpart the lamat-e-Isliimi, both
The fundamental rule is to base conclusions on proofs and to set shared many doctrinal and perspectival commonalities, including that on sacred
aside sectarian and legal school prejudices. Thought can wander
freely only when it is not limited by the boundaries of the schools law. I Both felt strongly about the sacred Law but its restoration was important,
. . . in a truly free discussion, only mujtahids free of legal school not as an objective in itself, but because of its centrality. to an undivided, Islamic,
biases should participate. 'Ulama' with an interest in upholding the
schools would refuse to admit the validity of positioils at odds with political order.
their schools, thus· allowing partisan interests to distort discourse. Like their modernist and salaH counterparts, the Islamists too lanlented the
By contrast, the mujtahid discussant recognizes the truth no matter
who speaks it and admits his own errors. 58 obscurantism and intellectual myopia of the professional clergy, and, particularly
with regard to the Law, their inability or unwillingness to break out of the mould
This suggestion, unfortunately for scholarship in general, failed to t'fnd
of taqlid. But they differed sharply with the other reformists and indeed, with
favor with the learned fraternity of the Muslim world. It is likely that, had it been
adopted, this classical discipline, given a few modifications, would lu).ve
inaugured a far more fruitful era in the history of this debate. lAs Binder (1964:43) points out, we must indeed "be interested in the fact
that similar expressions of fundamentalist thought occur at widely separated places
at approximately the same time. One possible explanation of this occurrence is
that we are dealing with a single religious community with an extensive if
I inefficient system of communication." More to the point, I suspect, was the
S7Por more information on this aspect of the tradition bf intellectpal
existence of factors common to the experiences of Muslims everywhere which
discourse in Islam see Ibn Khaldun, Al-Muqaddima (Cairo: Dar al-Pikr, n.~.)
prompted such remarkably similar responses. Included among these are "a

p.458 ~lbid.• 74. I

widespread concern throughout the Muslim world with the problem of the
'decline of Islam,' with the doctrinal attacks of missionaries and scholars, with
the adaptability of Islam to 'modem conditions' and with the general·chal.ellge
of science and rationalism to religion. "
108 The Islarr,sts Chapter Five 109
and in time, became a veritable faith statement, an article of faith aIIDost, inv~ked This to some extent explains why the complexities of the new
to this day, by many in.the Muslim world. I weltanschauung were defmed, not in Egypt by the MUsliin Brethren but in
Banna himself, however, was no philosopher, and his approach t~ the Pakistan by its sister organization, the Jamat-e-IslamI. The Brethren, Professor
challenge that he had assumed therefore, was less philosophical and centere~ on W.C. Smith argues, suffered from a lamentable lack of a realistic awareness of
a series of practical ventures designed to help realize his quest for a siqgle, the actual problems of the modem state· or its society, let alone solutions to
undivided Muslim community. His reform focused on schools, mosques, social them . . . a failure to recognize that they do not know the answers to modem
clubs and even cafes, and through the production of literature that simplifi~ the politico-socio-economic questions in detail. The Jamat in contrast
Islamic thought, he believed he could make accessible to the average Muslim the
jewels of his intellectual legacy. 4 In time, the Ikhwan grew into a movement of was in the fortunate position of having the leadership of Abu al-
A'Ia MaudUdI who would appear to be much the most systematic
mass appeal: included in its ranks were college professors, teachers, civil servants thinker of modem Islam . . . (who) presents Islam as a system,
and even members of the armed forces and at its zenith the Brethren boast¢d a one that long ago provided mankind with set answers to all its
problems, rather than as a faith in which God provides rltankind
membership of almost a million. anew each morning the riches whereby it may answer them itself. 6
Social and religious concerns however, soon gave way toalmo$ta
But it must be said with regard ·to the Brethren, that their situation was
preoccupation with the political welfare of Egypt. Factors indigenous to Egypt,
quite different: the intellectuals prior to them, beginning with 'Abduh, RilJ.a and
but also some outside its borders were largely responsible for this change in
'All 'Abd al-Raziq--whose legacy Hassan al-Banna and the Brethren, correctly
priorities. In addition to the rampant nationalism sweeping through Egyptian
speaking, inherited--had earlier on, engaged in the very issue that Maududl later
society, and the struggle of the economically·disenfranchised, there was also ,the
took up: the debate on the nature and the necessity of the historical caliphate in
problem 'of Israel; the birth of a Jewish national state on the fallen ashes ofithe
Islam. Ricjli, as shown previously, was one of the few scholars who succeeded,
caliphate hardly. went unnoticed. S
to some extent, in his efforts to develop a persuasive argument for an Islamic
system ofgovemment wherein ijtihiid would playa pivotal role. Now, Banna, it
4This was particularly essential in the case of the ordinary Egyptians--by is known, frequented the meetings and sermons of Ricjli and, for some time after
far, the lllIijority--for they were, according to DUnne (1950:80), quite ill-equipped
to "understand the difficult Arabic works on the faith. Most of them a~ far loo the latter's death, even managed the publication of his journal, the al-Maniir.7
technical, out of date, and require a life study. With the change of economic and According to Hourani the Brethren: through Banna, appropriated much of the
social life that is going on around the working classes, a huge gap has grawn
between the 'ulama and the people." That gap was being filled by the litera~re general outlook of RilJ.a: like him, "they condemned innovations in doctrine and
produced by groups such as the Ikhwan.
t kingdom of Jordan and the kingdom of Saudi Arabia etc. but no Muslim country
sAs is clear from the writings of Muhammad al-Ghazzali (1965:48)'1 an prepared' to identify with the faith even in name.
erstwhile member of the Ikhwan himself, the Jewish community's efforts to
establish a homeland in fulfillment of its religious sentiments and to call it byi its 6W.C.Smith, Islam in Modem History (princeton: Princeton University
Biblical name, Israel, was but poignant reminder to the Muslims of their fal'l re Press, 1977) 234-5
to do likewise. Muslims countries, he says, are even unwilling to attach ny
Islamic dimension to the names of their countries; thus, there exists the Hash' ite 7H. AI-Banna, Mudhiikirat al-Da'wa wa al-Dii'iyya (Cairo, n.~.) 49

110 The ISlami~ts Chapter Five 111

worship, and accepted the rights of reason' and public welfare in matters of SOC~al he is satisfied with the integrity and qualification of the advisor.
And if he isa scholar then he ought to hasten to overcome his
morality, -but insisted that they should work within the limits imposed by ~e educational inadequacies so that he may reach the level of the
moral principles of Islam. liS But the Brethren, in my opinion, were denied the thirikers. (Ahl al-·Nair)
opportunity to develop and refme the political, vision of Ri<Ja and others by the
Largely because of tms tolerance, Banna succeeded in avoiding the
events of the twenties and thirties in Egypt. It was Egypt's struggle against Britilsh
protracted and enervating squabbles that characterized the relationship of other
imperialism that held the attention of the movement ~d not the logisti~al
reformists with the religious hierarchy and in Pl!I1icular, the 'ulamii'. There are,
difficulties of setting up an Islamic polity in the modem world as was the case 'in
in his writings and sermons, no real diatribes aimed at the latter, nor any mention
Pakistan. The Ikhwiin thus, was constrained to forego, for the moment, its vision
as such, of substantial disagreements over the legitimacy of exercising ijtihiid in
of a pan-Islamic world order and to work instead, within a political paradigm
present times nor of the heterodoxy or otherwise of taqlid and other such issues
where Islamic interests, proper, were pushed to the periphery.
which have informed the reform efforts in general. He is, in fact, quite explicit
But the Ikhwiin's involvement in political matters did not entirely isol4te
in his contention
it from the purely religious affairs of Egyptian society; it was certainly not
oblivious to the spiritual welfare of the people nor in any way unaffected by the that the differences that exist in the subsidiary branches of the law
(al-khUdJ al-fiqhi fi al-fura') is not the reason for the disunity in
reform efforts of other contemporaneous organizations such as the Salafiyya and
the religion, nor does it bring about opposition to (religion) nor
particularly their call for ijtihiid. Banna's response to the madhiihib and taq~id hatred, and to every mujtahid there is a reward. Nothing however,
prevents impartial scholarly research where differences exist but
however, was noticeably less strident. That at least is the impression that Sa'iid
such research ought to be conducted in an atmosphere of love in
Rama<Jiin, one time architect of the Brethren's legal doctrines, would seem ~ God (al-hubb Ii Allah) and cooperation that leads to the truth. This
should not, in any way, lead to fanaticism and reprehensible
convey. According to RamaQiin, Banna was of the opintonthat every Musl~
disputes. 9
ought to have the right to choose a madhhab and to study the contents of such a
madhhab; it was not a requirement that members of the Brethren anath
The madhiihib, Banna explains, are a precious legacy whose significance in this
themselves, as members, to any particular school of law. In this regard he, is
crucial juncture in Muslim history cannot be SUfficiently underscored. As part

quoted as having said;

of the efforts to establish the ideal Islamic state,

And every Muslim who has not attained to the ability to scrutinise
we hope to establish several Jatwa centers representing the
the proofs that pertain to subsidiary rulings (adilla al-ahkiim al-
respective madhiihib with a view to facilitating access to the law
Jar'iyya) is obliged to follow an imam and he would do well to
for both the people and the state. (wa sanujid dar al1atwa al-
strive (an yajtahida) to know the proofs of his imiim
mut'addida 'ala kull al-madhiihib Ii hiila qiydm al-daula Ii
notwithstanding this emulation (ittibti '). He should also be willing
yastaftiha al-afriid wa al-daulafi kuICamr).IO
to accept every directive that is substantiated with proof if it is that

9Quoted in Sa'id Ramadiin, 78
SA. Hourani, Arabic Thought in the Liberal Age (London: Oxfo~
University Press, 1962) 360 IOJbid .• 79.
112 The Islalnists Chapter Five 113

intercourse, loving each other for the sake of God and, being
Banna and the Ikhwan thus, carefully and deliberately avoided the vitriolic committed to good. 12
criticisms that characterized the reform efforts of the Salafiyya and the mOdeksts
The kind of catholicity that Banna espoused was, I believe, not unrelated
with regard to the madhiihib: no mention is made of the alleged disuniting
to what he considered to be the. two greatest needs of the Muslims at the time:
tendencies of the madhiihib nor of its emasculating effects on Islamic dogma.
firstly, the need for Muslims to be. united against the' twin evils of western
Muslims are in fact, encouraged to attach themselves to a madhhab witb the
cultural and intellectual expansionism and the secular liberalism of the Egyptian
proviso that they understand the sources of the scholars.' Others in the Ilchwan
intelligentsia and secondly, the need to portray this unity to the outside world.
were even more circumspect in their calls for ijtihiid: Sa'eed IJawwa for eXllIll1ple,
In contrast, the Jamat-e-IsllimI operated in a political climate which
who was, at one time, chief of the Syrian branch of the movement, and olle of
allowed and even invited groups such as the Jamat to present Islamic alternatives
Banna's trusted proteges, came close to actually disavowing the possibilitly of
to secular libertarian ideals. In August of 1947 the national state of Pakistan wits
reopening the doors of ijtihiid. He thus said,
born and with it the challenge to Islamic legal system that would be
practicable in the twentieth century. The Muslim intelligentsia, notwithstanding
it is difficult for one to become a mujtahid because the c~nditions
therefor are hardly likely to abound in any single person. Most its almost unqualified support for an Islamic homeland was nonetheless, far from
people thus have no option but to attach themselves to the
convinced that a law as ancient as the shan-'ah. could possibly engender
madhhab of a scholar who is a mujtahid, one they could refer to
if need be. To do so is indeed, a religious requirement (wajib prosperity and social harmony in an undeveloped country such as Pakistan, a
shar'i) lest people follow a path unknowingly; this last is what
country beset ;Vith serious etlu:i.ic disparities and communal strife. Mohammad
prompted the community to resolVe to fix itself to the schools of
law. ,,11 ,- Iqbal, the poet-philosopher who had played a pivotal role in promoting the idea
of a national state for Muslims, had previously extended a personal invitation to
The latitude and tolerance that Banna articulates vis-a-vis the rnadhiihtb is
Maudiidi--then, still living in India--to participate in the promulgation of an
but an extension of the catholicity with which all facets of his package of ref<)rms
Islamic legal structure for Pakistan. Maudiidi was initially against the creation of
was imbued. He says with regard to the Brethren that it is in fact a syncretic
such a state for Muslims "because he considered it inappropria(e to use Islam, a
effort at religious reform,
universalist religion, as the ideological underpinning of a nation-state. "13 He
l.A salafi missionary movement (00 'wah salafiyya) because it calls nonetheless, acceded to Iqbal's request, migrated to Pakistan in 1936, and worked
for a return to Islam and the sunna of the Messenger. indefatigably towards turning that country into a thoroughgoing Islamic state.
2. A sunni movement because it encumbers itself to work with the
pure sunna particularly in matters relating to the faith and the Maudiidf s treatment of ijtihiid was in the context of two factors that were
rituals (al- 'aqa 'id wa al- 'ibadat) indigenous to Pakistani society, one of which was largely theoretical in nature and
3.A sufi truth because it works on the premise that the real basis
for good is the purification of the soul, the cleansing of the heart,
the diligent remembrance (of God), moderation in social
I~uoted in Ramadan, 84.

IISa'eed IJawwa, Jawlat, 71 13Enayat, Modem Islamic Political Thought, 102.


concerned the formulation of a legislature and a judiciary for the newly

~l'~' Chapter Five

difference of opinions have always been open in the past, are open
J 15

independent nation while the other was practical and concerned the religio~ even today, and will continue to remain so in the future"
b- Qiyas (Deduction by analogy): It consists in applying to a
factionalism that had so fragmented Pakistani society.
matter with respect to which there is no clear guidance, a rule or
MaududI's theory of Islamic law as the cornerstone of the Pakistani injunction present for some similar matter.
c- Ijtihiid (Disciplined Judgement of Jurists): It consists in
legislature distinguishes between one part of the shari'ah which he considered as
legislating on matters for which neither any explicit injunctions nor
having a permanent and unalterable character, and another winch is flexibie even precedent exist, subject, of course, to the general principles
• I
and precepts of the shan-'ah. •
enough to meet the ever increasing requirements of every time and age but onJiy
d- IstiJ;.san (Juristic Preference): It means framing rules, if
within the purview of the sacred law. ,,14 The unalterable elements of the law ~t necessary, in non-prohibited matters in conformity with the spirit
of the Islamic legal system. '
he refers to are the nass injunctions as expounded by classical scholarship; these
would include, inter alia: the prohibition of interest bearing transactions, adulteIl, It is not al all clear from the foregoing what the precise role of ijtihiid would be
the principle that men are protectors and in charge of women, and certa~ in such a legal system. Whilst conceding in passing that the doors of ijtihtid are
limitations on individual liberties such as "the limitation in connection with t:ne still open, he gives no indication as to how such a fact would alter the current
plurality of wives where the maximum number has been fixed at four, or that tm: status of the Law. Also, there would seem to be no substa,ntial difference between
number of divorces to a wife cannot exceed three. "IS his rendition of qiyas, ijtihiid and istilzsan: all three are said to be activated where
The alterable elements of the law refers to that which is subject "to a problem has "no clear guidance (from the sacred scripturesr' ... where "neither
modification according to the needs and requirements of the changing times : . any explicit injunctions nor even precedent exist" ... and all three are applicable
. "16 The legal mechanisms that are essential for the fulfIllment of this facet of the "in non-prohibited matters inconformity with the spirit of the Islamic legal
law are the following: system." What tben, makes them so different from each other?
There is in addition, nothing particularly innovative about the foregoing
a- Ta'weel (Interpretation): It consists in probing into the meaning
definition that would distinguish it from other reformist perspectives. on ijtihiid.
of the injunctions found in the Qur'an and the SUMa. As such, it
has always occupied and still occupies a place of immense It should be mentioned however. that in contrast to the modernist element in the
importance in Islamic Jurisprudence. When those endowed with
reform movement, Maudfidi maintained that ijtihiid is entirely inter-textual and
penetrating insight and legal acumen ponder over the injunctions
of the Qur'an and the sunna, they fmd that many of them are open subordinate to the dictates of the sacred scriptures. In reference to those who
to different fruitful and valid interpretations. Consequently, every
think otherwise he says
one of them accepts some particular interpretation according to his
lights on the merits of the case. In this way, the doors of the
No one conversant with the nature of Islamic law can imagine that
there can be any place for this kind of indeperidence in the legal
14A. Maududi, The Islamic Law and its Introduction in Pakistan. Tr. K~ system of Islam. The real law of Islam is the Qur'an a~d the
Ahmed. (Lahore: Islamic Publications Ud., 1960) 26 • ' sunna. The legislation that human beings may undertake must
essentially be derived from this fundamental law or it should be
15Ibid., 26-7.
within the limits prescribed by it for the use of one's discretion or
16Ibid., 27. the exercise of one's opinion. For ijtihiid that purports to be
116 The Islamists Chapter Five 117
independent of the shan-'ah can neither be an Islamic ijtihiid nor sanctification of personal ijtihiid and its inauguration into the corpus of the sacred
is there any room for such an incursion in the legal system of
Islam. 17 law . These are, he says:

Law-makers eager to exercise ijtihiidare also served notice that whilst its (a) Consensus of opinion (ijma ') by the learned, men of the
, practice is not confmed to persons professionally qualified as jurists or 'ularna' community .
(b) The ijtihiid of an individual or a group of individuals may gain
as such, it is nevertheless, vital that such persons be suitably qualified for the wide popularity and people may, suo moto adopt their verdict, for
task. As prerequisites for the task he cites the following list"of qualifications: a instance, the ijtihiid of the Hanafite, the Shafe'ite, the Malikite and
the Hanbalite schools of law were voluntarily accepted by large.
deep faith in and commitment to the sacred law; a proper understanding of the groups of Muslim masses
Arabic language; a deep understanding of the sacred texts, an appreciation of the' (c) A Muslim government may adopt a particular piece of ijtihlid
as its law, as for example the Ottoman government had adopted
basic principles of that law and its macro-objectives; a knowledge of the thoughts the IJanafi. Law as the law of the land, .
and ideas of the classical scholars with a view to maintaining continuity in the (d) An institution may be constitutionally empowered in an Islamic
state to legislate and it may enact, a particular piece of ijtihlid in
evolution of the law; a thoroughgoing familiarity with contemporaneous issues; the form of law.
and on ethico-moral disposition'that is not disharmonious with the teachings of Apart from the foregoing, all individual ijtihtid, be it the decision of a judge,
Islam. IS
mufti or even the head of state will not count as part of the statutes of an Islamic
As for the hermeneutics of the process itself, the method of reconciling
traditional Law with contemporary non-traditional society for example, or
Maudiidi's views on ijtihiid were the basis for a lively debate in the legal
reconciling the differences in the classical legal perspectives themselves, these,
and religious circles of Pakistan. Numerous controversies were sparked, one of
and other such areas of complexity and imprecision in the legacy are not dealt
which hinged on the role of the sunna in the legal structure that he proposed.
with exhaustively. He simply reiterates the need to respect certain exegetical
More importantly however, some astute critics of his arguments pointed out that
principles vis-a-vis the Qur'an and the sunna whose contravention will
whilst, in one place, Maudiidi speaks of the overriding authority of the sacred
undoubtedly cast doubts on the legitimacy of any law that is so enacted. Laws
documents in another he maintained "that in exceptional conditions and
promulgated in contravention of such principles, he says, "will neither be
circumstances ijtihiid can be utilized to ascertain the situations justifying
accepted by the collective conscience of the Muslim community nor can it form,
deviations from these injunctions to suit the exigencies of the "time. "20
an integral part of an Islamic system of law"19
This proposal, he maintains, is common to legal systems world wide;
An interesting contribution that Maudiidi makes to the discussion on ijtihiidl
every law in the world, 'he says, "makes provisions for exceptions from the
has to do with the various 'mechanisms that he suggests, exist for the I
general rules in abnormal and extraordinary situations. "21 Islamic law legitimizes

17Ibid., 79.

18Ibid., 81. 2OJbid., 82.

19Jbid., 82. 2 IIbid., 87.


118 ' Chapter Five

The, Islamists 119
such practices on the basis of the diction that 'necessities make permissible that succeeded in attracting a substantial number of members 'who had no factional or
which is otherwise prohibited.' That this process has essentially nothing to dp sectarian affiliations. It was thus, not prudent for the Jatniit, a reform movement
with ijtihtid evidently escaped his attention. And if, as he claims, ijtihtid cannot that advocated pan-Islamic solidarity, to place constraints on potential members.
fall outside the constraints of the Qur' an and the sunna except under extraordinary But he was nonetheless opposed to taqlfd, and like the Salafiyya, he too,
circumstances then his concept of ijtihad is narrower even than the classical distinguished between it and ittiba'; the former, for him, was the practice of
versions thereof. Islamic jurisprudence, historically speaking. never did consider emulating the pronouncements or the actions of another without regard for its

the law of necessity (dariira) an instance of the exercise of ijtihad. basis while the latter was to do the same but with full knowledge thereof. Unlike
In sharp contrast to Banna and the Ikhwan, MaududI's attitude to the many of the Salafiyya however, he maintained that taqlfd is a required practice
madhtihib, and the 'ulama' was, generally speaking, considerably less for the lay person but not the scholar; the latter should follow only those actions
accommodating; this of course, only served to exacerbate the relationship with as are corroborated by textual evidence.24 Even the taqlfd· of the Prophet,
them. Though a IJanafi by birth, he nonetheless refused to be bound by any on~ MaududI points out, is permissible only on condition that it be understood at all
school as such, for in his opinion, neither the madhtihib nor their antagonists the times that such authority devolves upon him from God and is thus not absolute.
Ahle-l;Iadith were entirely correct. 22 The latter, despite its claims to not being ~ In other words, it is God, and God alone, who demands total and absolute
victim of blind taqifd is, in fact, not to any great degree different from its obeisance. (Muta' aur amfr Alliih ta 'ala ke siwa kOYf nahi)2S
adversaries. Its 'meQ1bers too, like the Hanafites attach themselves; He defmes the lay person ('ami) as one who is devoid of any real
unquestioningly, to the pronouncements of their 'ulama', for the overwhelming understanding of divine proclamations and prophetic traditions and who is unable
majority of them are quite ill-equipped to exercise ijtihtid; they have no to extrapolate legal injunctions from the principles of jurisprudence. Such a
knowledge of badlth traditions nor of the principles of jurisprudence; their claitn$ person, he rules, has no recourse but to follow a trustworthy scholar. To believe
that some practice or the other is in conformity to the sacred texts is mere however, like many 'ulama' advocate, that one is obliged to emulate a single
hearsay; given their limited understanding of these texts, they are in no position scholar at all times to the extent that any disagreement with such a person is
to make such pronouncements.23 tantamount to heresy is utterly without basis; this contradicts Muslim dogma
But MaududI did not require of his followers that they abjure fealty to the! because it elevates mere mortals to the ranks of the divine.26
schools of law; instead, he welcomed to his group, for reasons that are no. The reactions to MaududI's 'line of moderation between two extreme
difficult to fathom, adherents of any doctrinal persuasion. In a country such as perspectives' was quite severe: both groups disparaged his efforts at presenting
Pakistan, where solidarity and membership of a religious group was the nOTllli what he regarded as an objective analysis of the madhhab issue. He argues that
rather than the exception, it was hardly likely that the Jamat would have

I 24Ibid., vo1.3, 356.

22A. Maududi, Rasail-o-Masa'il (Lahore: Islamic Publications, 1969)1
voI.l, 235. 2SIbid., voU, 190.
23Ibid., 240. 26Ibid., voU, 190.
120 The Islami~ts Chapter Five 121
'his involvement in this rather. protracted and altogether unwholesome debJte I have always had an aversion for sectarian strife (madhhabi
should be viewed, not as the polemics of a scholar of jurisprudence (jaqfh) nor tan/izu ') and have always maintained that where the sacred texts
are ambiguous, more than one interpretation could be correct . .
that of a l;ladIth scholar (muhaddith) arguing his case, but rather, as the effOItts . In addition, I make an effort to alternate my own practices such
of one involved in a reform process whose goals of creating a single, unifi¢d that they conform to the varying interpretations. My father
however, a stalwart of the Ahle-lJadlth movement--and, I might
religious entity were being thwarted by rampant sectarianism. He maintains that add, a member of your Jamat as well--has served me notice that
his interests in such matters therefore, only go so far as to address issues that he will terminate our otherwise affable relationship, if I neglect to
perform the raj'yadain (the raising of both haDds during prayer, a
have prevented Muslim~ from responding to historical conditions ~ohesiv~ly. Ile mark of distinction in Pakistan that serves to distinguish between
concedes however, that his is ultimately, a no-win situation: on the One hand, be the two opposing camps). Despite my efforts at reassuring him as
to my real intentions, he remains truculent and has even, succeeded
cannot possibly remove sectarian squabbles without addressing them squarely, in isolating me from the community . . . They now accuse me of
while on the other, he cannot possibly do so without, at the same time, alienatiI).g having become a lJanafi . . . of being a hypocrite because of my
alternating practices (of the sunna) . . . of being subdued by the
from his program the very persons he hopes to convince. 27 guile of the lJanafis in the Jamat who constitute the overwhelming
Members of the Jamat who tried to pursue this line of moderation were majority ... and of becoming the muqallid of MaudfidI. They say,
"our earljer suspicions that the latter, under the guise of the Jamat,
in some cases worse off: their decision to disengage themselves from the variolils will convert members of the Ahle-lJadlth group to Hanafism are
schools often clouded their relationship with their kith and kin. One exasperat~d now proving true; MaudfidI has· indeed, surreptitiously caused
people to change their madhhab orientations despite his claims to
member thus wrote to MaudfidI saying the contrary. "

Clearly, the question of ijtihiid, taqlfd and other related issues, in addition
to rendering the Pakistani intellectual climate a veritable imbroglio of feuding
clerics and academics, also impacted rather portentously on the lives Qf the
ordinary citizen. It was nonetheless MaudtidI's constant refrain that Islam, in
essence, is not in the least averse to differences of opinion nor to disparate
religious practices; if anything, the efflorescence of the Islamic intellectual legacy
is in large measure, indebted to these very disagreements. But, as has happened
in Muslim history in the past, such differences sometimes spawn sects and
factions that give prominence to the dogmas and the rituals that are peculiar to
them over those that are common to the faith in general. 28 He points out

that the logical outcome of this division (tafarruq) is that people

will be inclined to regard such matters of law and ritual as are

27Ibid., voU, 225-7. 28Ibid., vol.1, 207.

122 The Islamlst~ Chapter Five 123

peripheral to tfie faith as being of its very essence. (fiqhi masa'il I evidence. The former, correctly.speaking, is but evidence of the fact that an
hf ko asl dfn samajh beth te he) With regard to the law, authentic statement of the Prophet with regard to some matter does indeed exist.
membership of the Ahle-lJadIth school, the I;lanafi or the Shafi'I
is not per se evil, but if this should culminate eventually in the But such evidence has yet to be contextualised, which is where the faqih comes
(dismemberment) of the community, where Muslims no longer in; his judgement, if you will, must be framed within the paradigm of the sunna
remain a single community but 'become instead, attached to their
specific schools of law, then, that I can say, with all honesty will in general, but it need not conform to any single piece of I}adIth evidence as such.
certainly cause the fragmentation of Islam. Islam, as such, has no Much like in any court proceeding, the evidence and the rulings are indeed inter-
place for such divisions or fanaticism.
related and interdependent entities; the judge's rulings are, of necessity,
The Jamat-e-IslamI's avowed attitude to the madhahib was thus, one of conditioned by the evidence at hand. But the evidence itself is hardly self-
accommodation and tolerance: whilst its members were at liberty to follow anY' explanatory; without careful, rational scrutiny it remains an inadequate source for
one of the madhiihib, either out of conviction (ittibii') or out of tradition (taqifd),' rule making. The same can be said for the pronouncements of the traditionist
they were nonetheless, precluded from raising such issues to a level where they (muhaddith) and the rulings of the jurist ifaqfh): whilst both are integral to the
would threaten the solidarity of their movement. 29 Unfortunately for Maudiidl legal process, yet, both are nonetheless, in the final analysis, only complementary
however, his own attempts to strike a balance between the opposing factions, only. to each other. It thus behooves a scholar wanting to know the truth for himself,
served to exacerbate the problem; he was, not surprisingly, attacked from all in any given legal conflict that he carefully scrutinise both the textual evidence
sides. As will be shown presently, attempts were made to discredit the Jamar. as provided by I}adIth scholars as well as the ijtihiid of the eponyms of the various
itself because of his critique of the madhhab issue and this resulted in a large, schools.
segment of his group becoming demoralized by the experience. Needless to say, MaudiidI failed to placate any of the parties with his
Yet, MaudiidI was perhaps the only advocate of ijtihiid who attempted to impartiality: they remained opposed to his reform efforts and even used
explain the conflict at hand between the Ahle-lJadIth and the muqallids from a arguments like the foregoing to further malign his program. Thus we find a
historical perspective, as one that was rooted in the early development of the law senior I;Ianafi muftI in India, Mal}miid GangobI, warn his followers that the
itself. That debate, between the Ahl ai-Ray and the Ahl al-lJadfth (see ch. 2) Jamat, far from being any kind of reformist group, was in fact merely a new sect
rested, he says, on the question of the authority of the jurist's pronouncements in Islam, one whose tenets and practices were without precedent in Muslim
vis-a-vis conflicting l}adIth traditions. He was of the opinion that the foregoing history.3O "This, because its founder, (MaudiidI) regards both the followers of the
perspectives come into conflict with each other when an effort is made, by. madhiihib and their detractors with equal opprobrium; both blindly follow the
partisans of both sides, to bestow an overriding importance to one perspective, pronouncements of their 'ulama' , he says.31 MaudiidI, who by his own admission,
over the other. It is, he maintains, as incorrect to regard I}adIth evidence, or, as. was no more than a 'well-read' Muslim takes exception to the taqlfd of those
he terms it isnade tzadfth as the decisive element in the law as it is to give!

prominence to the judgement of a jurist (tafaqquhe mujtahid) over textual.

~. Deobandi, Adillah-yi Kiimilah (Kanpur, n.d.) 7.

29Jbid., vol.1, 216. 31Ibid .• 8.


124 The ISlamist1
who blindly follow their 'ulamii' . he deems the taqlid of the 'ulama' a
grievous error, almost a sin, but demands from his followers that they follow hinl
unquestioningly.32 He surreptitiously contrives to lure his followers away froIIl
the madhiihib but unlike the Ahle-lJadlth, who at least, redirect people to the
sacred sources, MaudiidI instead, as absolute leader (amir) of the Jamat compels
his followers to follow his own pronouncements blindly. (to Jamiit un kf taqlid
kame aur un ke piche piche chaIne par qudratan majbur he). "33
The kind of criticism that Gangohi and the Ahle-lJadIth levelled against
the Jamiit-e-IsliimI did eventually succeed, not just in marginalising the Jamat,
but also, in rendering virtually obsolete its method of reform, particularly w~th
regard to the madhhabi sectarianism that has for long been the bane of Indo-
This chapter, in which I hope to examine the reactions of the propone ts
of taqIid to the calls for ijtihad will once again focus primarily on the Mid Ie
East and Muslim India whence the reform process was disseminated elsewhere.
These two areas however, are significantly different from each other in their
response to the anii-taqlId; this difference, as I will explain presently, is
attributable in large measure, to both the geo-political factors operative at the
time, as well as the homogeneity or a lack thereof of the schools of law (the
mat:lhahib) within a given area. Again, as in the previous chaptets, my attempts
to unravel the various positions in this debate will be through a sampling of the
tJioughts, the polemical discourses and rebuttals of a few of the more prominent
scholars of the said areas.
In the Middle East today, I think it is fair to say that the efforts of the
anti-taqlId movement have been largely successful. I Thus we find that, in contrast

II say this notwithstanding the ongoing calls in some circles for greater
ijtihad because, firstly, my comment, as I make clear later on, is based, not on
" how far the process has developed but rather on the pace of its development in
relation to other areas of the Muslim world. I am aware of the dissatisfaction
31Ibid., 8. shOwn by some scholars even with regard to that pace, as is evident from the
spate of recent articles that have appeared in this regard. One such article by
331bid., 15. Taha Jabir al-' Alawan "The Closing of The Doors of Ijtihad and the Application
of the Law," The American Journal of Islamic Social Sciences 10 (1993) 396,
126 Chapter Six 127
to the past, this phenomenon is no longer confined to the liberal and doctrinaire rules that either conform to the sacred· documents or are suitable to
traditionist sectors of Muslim laity. Rather, it has become, of late, increas~ly contemporaneous exigencies; such works have proven far more popular than those
ubiquitous in 'ulama' circles as well, where there is an almost inexorable shift that present the views of a single imam or school of law. Such is the case, for
away from taqlfd, to the extent that it is today regarded as positively passe to example, with the Fiqh al-Sunna of Syed Siibiq, a multi-volume effort that is
pronounce a legal ruling (jatwa) within the framework of a single school 0~y.2 extremely popular especially with the well-versed, Arabic speaking professional.
Works that deal with the Law do so eclectically, through the selection of a set of This work, which follows a·jurisprudential methodology that is· best described
as conservative salafi, examines the opinions of all four the madhiihib in the light
of the sacred texts and then selects therefrom one that is closest to those texts.
says ". . . we are calling for a new type of ijtihiid. Rather than theijtihtid
specified by the scholars of u~m . . . we speak of an ijtihiid that is more of a The author makes clear in the foreword that his work
methodology for thought . . . The umma must understand that ijtihtid provides it
with the fundamental means to recover its identity and to reestablish its place in consists of rulings on Islamic Law along with proofs thereto from
world civilization. Without ijtihtid, the Muslim mind will never rise to the levels the Qur'an and the sunna and the consensus of the community ..
envisioned for it by Islam, and the umma will not take its rightful place in the . It thus gives an authentic picture of Islamic fiqh as sent to the
world. " Prophet Muhammad by God, and opens the doors of understanding
That ijtihiid today is still an unrealized dream for 'Alawan is clear from to people of God and His Mes~enger, and it unites them around the
the following: he says, "unless the call to ijtihiid becomes a widespr¢ad Qur'an and the sunna whilst ruling against conflict and the
intellectual trend, there is little hope that the umma will be able to make any innovation of the fanaticism of the madhiihib (the four schools of
useful contribution to world civilization or correct its direction, build its or-vn law) inasmuch as it rules against the fictitious saying that the doors
culture, or reform its society. " of ijtihiid have been closed. 3

2J. Schacht (Encyclopedia of Islam, 1978 ed.) has drawn attention to the
fact that "while it is the unanimous view that the layman as well as the schdlar The so-called heresy of taqUd that Siibiq and others in the reform movement
is bound to taklid, it is occasionally demanded of the scholar that he should: be speak 'disparagingly of has always been integral to the legal structure of Egypt
aware of the correctness of the idjtihad of his mudjtahid." This is certainly the
case for the lJanafi 'ulama' of Indo-Pakistan, who to this day, closely scrutinise and indeed, other places in the Middle East as well. But efforts on the part of
the sacred sources that substantiate and support their school of law as well~ as the Salaffs and, later, the Manar group, to undo the fossilized legal heritage of
learn of the flaws in the citations of the other schools. See in this regard Mahbub
Rizwi, Darul 'Ulum Deoband ki Ta'limi Khusilsiyat (Deoband, n.d.) these societies were temporarily scuttled by certain elements in the 'ulamii.'
An excellent example of this is the celebrated compendium offatawa of i
fraternity who, perhaps out of a loyalty to the ruling elitejn some cases, and a
the Egyptian scholar, Yusuf al-Qaradawi, AI-lJalill wa al- lJaram fl aI-Is4zm
(Stuttgart: Ernst Klett, 1978), a work that has today, become the standard source desire for self-preservation in others, perpetuated the regimen of taqIfd even after
of reference for many Muslims in the West as well as in most liberal and the collapse of the Caliphate. The Ottoman government, as shown previously, had
reformist circles of the Muslim world. Qaradawi's approach is also eclectic lUld
thus not confined to the schools of law. In this regard he makes clear that he "had a policy of implementing the lJanafi school of law in areas under their control,
not confined himself to any single madhhab that prevails in the Muslin wo):'ld in some instances with some coercion. The Ottoman ruler (the padishah or
because the truth is indeed not restricted to any single school of l,aw. Also, the
eponyms of the respective schools made no claims to being infallible. They w¢re suI/lin) styled himself as the spiritual-cum-religious guide of the community as
simply striving to arrive at the truth; if they err they are nonetheless promis~ a
reward and if they are correct in their endeavors they are entitled to a double
reward. "(10) 3S.Sabiq, Fiqh al-Sunna (Mecca: 1979) 7
128 Chapter Six L
wellas its temporal ruler. In this he was "aided by God", for he was, after all, province was divided into juridical districts (qatjii) in which the local judge dealt
the "standard bearer" of Islam and "the servant of the two Sacred sanctuaries!". with a broad range of matters, from the purely legal to the social and even the
For the . Turks, a non-Arab nomadic community with no real historical or personal in many cases.
intellectual claim to leadership of the Muslims, such titles, howsoever nomitiaI The policy of implementing J;;Ianafi law in an area that was largely
and trifling in value, were essential props to their claims for leadership,4 non-J;;Ianafi created considerable discontent as was alluded to in the previous
But the greater duty that the office of the Sultan carried, one that impinged chapters. The problem was in no way alleviated by the Ottoman reforms of the
on the life of the individual Muslim in a more telling way, was that of 'preserver nineteenth century. Such reforms, it will be recalled, were promulgated to
of the shari'ah,' the law of God. In addition to the administrative bureaucra¢y address the requirements of an expanding economy and a new administrative
and the armed forces that he controlled, the Sultan also controlled a religious structure and not to defer to the literalism of the Salafiyya. The neW civil code
unit, the ilmiye or the religious functionaries who acted as judges, imams ~ that the Ottomans introduced in 1870, the mejelle, inaugurated changes that did
preachers (khatibs). The J;;Ianafi school of law favored by the Turks was to be not essentially alter the complexion of the legal structure of the empire in terms
implemented by these religious personnel uniformly throughout the empir~, of the schools of law. The mejelle essentially restricted the personal authority of
without regard for the madhhab affiliations of those under their jurisdiction. the Sultan and strived to harmonize the various religious denominations of the
According to Houranis it was the mufti of Istanbul, the sheikh ai-Islam "who empire by integrating both Muslims and non-Muslims into a new Ottoman
acted as the religious adviser of the SUltan. He was regarded as the most exalted nation. 7
personage in the whole religious order: it was a sign of his freedom of judgement As for the Young Ottomans who initiated a new pe~od of reform in the
and his power to curb and rebuke the holders of power that he was not a member early twentieth century, their efforts were directed at making Islam comp~tible
of the Sultan's divan or council of high officials n • 6 Two military judges with modem civilization and in getting Muslims to conform to a constitutional
(kadiasker) however, who belonged to the Sultan's retinue of high officials were government. In some ways they resemQled their liberal counterparts elsewhere in
encumbered with the overall control of the judiciary throughout the empire. Eaqh the Middle East--like the latter they too stressed the value of reason above blind
faith. But the efforts of this group were nonetheless-, not directed to the reform
4It must be noted however, that unlike the Safavids, Ottoman rule was of the sacred law from within: obedience to the sacred sources instead of the
never quite regarded as illegitimate by the Muslims in general. As Lapid,s imam of a school or to the school itself was not part of their package of reforms
(1988:544) points out "the doubts about royal authority raised in the Safavid
empire by the Shi'I 'ulamii', and the doubts raised in the Mughal empire by u,.e as may have been the case elsewhere in the empire. The fact that one was
accommodation of non-Muslim culture, were minimal. " Even RicJii, who regardfjd constrained to worship or perform the rites of hajj--or of any other ritual for that
the Ottoman caliphate as a 'caliphate of neCessity' and not a truly Islamic one,
was opposed to the idea of founding a new caliphate to replace the that of the
Ottomans. See in this regard Hourani, (1962:240)
7The following are some of the more comprehensive studies on the reforms
sA. Hourani, Arabic Thought in the Liberal Age (Lo~on: OXfojd in the Ottoman empire: R. H. Davison,l1.eform in the Ottoman Empire,
University Press, 1962) 224 1856-1876 (Princeton: 1963); B. Lewis, The Emergence of Modern Turkey
(London: 1968) and S. Mardin, "Power, Civil Society and Culture in the Ottoman
6Ibid., 227. Empire, Comparative Studies in Society and History, xi (1969), pp. 258-81.
130 Chapter Six 131

matter---strictly in tenns of lJanafi law is to this day, not a point of conteJtion Believing that not much (further) could be gained from ijtihiid they closed its

iIi Turkish society. The same caD. be said for Islamic laws pertaining tol the doors, resigned themselves to taqlfd and became attached to books devoid of the

society and the family: these it will be recalled, were replaced in 1917 with the spirit of knowledge." 9 MaraghI's call for ijtihiid formed part of a broader

European legal system. Thus, calls for a return to ijtihad and a move away t;om package of reforms that included, inter alia, the teaching of comparative religio~,

the madhiihib and taqlfd would admittedly have sounded rather hollow ~ the modem philosophy and the history of religion to.the students at the Azhar. This
situation that obtained in Istanbul. But the same cannot ~e said for the Sultan's was no conservative salafi call for the abandonment of taqlfd but rather one that

plenipotentiaries who continued to serve as religious functionaries in areas sought a thoroughgoing overhaul of the academic content of ,the university

outside Turkey: they still functioned in much the same way long after the including the traditional sciences of Islam such as ta/sir, Arabic literature and of

denouement of the Ottoman political order and thus, came into conflict with the course, Islamic law.

local reform movements. MaraghI's appeal triggered a particularly ~strong response from the

The Azhar university in Egypt is a case in point: many of its leading preeminent lJanafite scholar at the time, 'Abd al-Ra.Qman 'AlIsh. 10 The latter was

scholars and administrators persisted in the didactics of the past, in stark conU-ast reacting, as he explains, out of a conviction that the foregoing refonns posed a

to the efforts of scholars such as 'Abduh and his reformist disciples who so~ght grave danger (khafr jasfm) to the Azhar, its branches, and 1,1ltimately to Islam and

change in the structures of the institute. For them the educational philosophy of the sacred law. 'Alish also voices strong reservations about MariighI's call, in that

AfghanI as reflected in his Refutation_of the Materialists, was the starting point, same article, for the reopening of the doors of ijtihiid. He reiterates an oft

but their program was more comprehensive and far reaching. It included, for repeated argument against ijtihad which is that the derivation of rules froni the

instance, not just a study of "the classical Arabic works of dogmatic theology for sacred sources is restricted to those qualified persons who fulfll the requirements

the defence of the Faith, but also the modem sciences and the history and religion for a mujtahid as specified in the great books of jurisprudence -(;,qul-al:!iqh).

of Europe--this would help explain the remarkable progress of the West." BlIbe 'AlIsh is particularly perturbed by MaraghI's .denigration of the 'ulama'. He

reformists however, were not without friends within the Azhar itself: MU$taphi reminds him that the loyaltY that these servants of the Faith have shown to the so

Al-MariighI, an 'Abduh protege who held office as Sheikh al-Azhar, used!his called "lifeless books", as MariighI refers to them, happened to be none 'Other

position to promote the cause of the reformists. He made a public appeal to than the sacred scriptures of Islam. "Were they not devoted to the Qur'an", he

Fuad, king of Egypt for the implementation of a package of educational refotms

that he had prepared. This was published in August of 1928 in the Egyptian daily,
9AI-Ahram Daily. (Cairo: 1928) No. 15709.
AI-Ahriim as a two-part article, and it called for, amongst other things, reforms
to the teaching and the administration at the university and the opening ofithe 1<lRi4a, in several places in his biography of 'Abduh, speaks of altercations
that took place between the latter and 'AlIsh, one of which occurred when 'Abduh
doors of ijtihiid which, interestingly enough, he says was closed. in "in the last was yet a student at the Azhar. See for instance, vol.l p.146 of the biography for
century (al-qarn al-iikhir) by 'ulamii' who were given to (a life) of comfrrt. an account of this particular incident which focused on the permissibility of
accepting taqlId in matters of doctrine. Seeing that MaraghI was a disciple of
'Abduh it is likely that 'AIIsh's opposition to his reform proposals was as much
BH.Gibb, Modern Trends in/slam, 39. a personal vendetta as it was an academic dispute.
132 Taqlid, Chapter Six 133

asks, Vague references are made to the detrimental effects of madhhabi fanaticism
(al-ta'tl§~ub al-madhhabf) , to the need for Islamic Law to be studied in an
environment that is free from fanaticism and to the dangers of infringing laws
to the sunna of the Messenger of God and to its compiled books,
to the Muwatta of Malik (b. Anas), to his al-Mudawwana ll and to and regulations that appear in the Qur'an, the sunna and ijma'. No historical
the primary sources of his school; were they not· devotecJ to the
analysis of the effects of taqlfd on· Muslim society is provided nor any
(Kitab al-Umm 12 of Shafi'I and to the primary source of his school
and to those of AbulJamla and A1}mad b. lJanbal? Were they not contemporary survey of how taqlid, in real terms, is hampering progress.
devoted. to the sources of the four schools of law from their very
'AlIsh, on the other hand; focuses on the comprehensiveness and the
inception to this day . . . were all these works not imbued with the
spirit of knowledge, were they not absolutely authentic and correct flexibility of the madJulhib on the whole, and uses that in argument against
. . . were they (the 'ulama ') in any way responsible for the
MariighI. He says that it is impossible for any scholar to promulgate laws
dissipation of that legacy?
independent of the four madJulhib for they have virtually encompassed every
As for the madhiihib, 'AlIsh point out that Muslims have been historically in debt,
single issue that has and is likely to confront all Muslims; the 'ulama' of the Ahl
to these schools and will continue to do so for the latter have anticipated for the
al-Sunna wa_al-Jama'a 13 are unanimous in this regard and disputing this means
benefit of posterity most contingencies, to the extent that no situation can possibly'
going against ijma', a serious indictment indeed. "Nonetheless, I challenge you,"
be comprehended where such teachings and principles cannot be applied.
he says, "you and your coterie of scholars, to present to us a new school of law
MaraghI further called for the understanding of Islam directly from its distinct from the present ones . . . You have my word, I will be the first to
original sources (yantibf'ihf al ala). "How else did the scholars who closed the
follow ... but I know that this is impossible. In fact, I challenge you to produce
doors of ijtihtid these past ten centuries understand the faith?" 'Allsh asks.
a novel ruling to but a single issue, and take all the time you want . . . "(12)
Indeed, their closure of the doors was based on a true understanding of the
Here 'AlIsh is underscoring a point made, ironically enough, with regularity by
thoughts and ideas of the al-salaf al-~ali!J (the pious ancestors). Is there any his own adversaries, the modernists: that a simple return to the sacred sources as
doubt, he asks, that the pious ancestors correctly understood Islam from its sacred
expounded by the doctrinaire Salafiyya will not produce any momentous change
sources? The truth is that "all the 'ulamii' of Islam, the mujtahids from among in the Law: nothing short of a th~roughgoing rethink of the entire corpus of
them as well as the emulators (muqallids), understood Islam correctly from its sacred guidance would. For 'AlIsh this was blasphemous; tantamount to the
original sources; the mujtahids did so by way of their ijtihiid and the muqallids pursuit of evil and corruption, not to speak of a capitulation to one's passions and
by emulating the former. "
desires. (12)
MariighI's . critique of taqlid, and indeed those of his counterparts, 'AlIsh's strident opposition to the seemingly reasonable calls for
particularly in the Manar movement, is neither specific nor particularly profound.

13The term Ahl al-Sufma waal-Jamii'ah was allegedly coined by the

l1See in this regard, Malik b. Anas, AI-Muwatta ed. MUh. Fu'ad 'Abd medieval theologian Abu al-J;;Iasan al-Ash'art (d.935) to distinguish his school,
al-BaqI, 2 vols. (Cairo: 1951) 'the followers of the Sunna of the Prophet and the partisans of the Companions'
from his rivals, the Mu'tazilis and the lJanbalis. See in this regard M. Seale,
12MuQammad b. Idrts al-Shafi'I, Kitdb al-Umm. 7 vols. (Cairo: 1904- 08) Muslim Theology (London: Luzac, 1980) 2nd. ed.

134 Chapter Six 135
. educational reform make sense if it is remembered that almost aU of MaraghI's 'Abd al-lJamId, for example, was hiinself an enthusiastic patron of the Sufi·

suggestions posed a threat to the very profession of the 'ulamii'. Acquiescing tq orders. This helped endear him to the Muslim masses whose loyalty was so

anyone of these reforms was tantamount to rendering the entire 'ulamii' fraternity crucial to his efforts at laying claim to the caliphate and ultimately, to political

redundant; their professional appeal in society which was based on their claim t~ power over the entire Muslim world. For the 'ulanul' therefore, this was hardly

being the custodians of Islam's intellectual heritage would be in jeopardy. If, as! the time to make unpopular noises against folk Islam: it could easily earn the ire

the reformists claim, ijtihdd is a religious duty of every indivi~ual Muslim rather. of the Sultan who was already deeply suspicious of those who pandered to the call

than the forte of the 'ulamii', and were Muslims to exercise that duty en masse, of the reformists and their foreign paymasters. Mul)ammad 'Abduh, after all, was

then the entire process of legal counselling, the ifta', along with its functionaries ' reputed to be quite friendly to the British; his kind words about them and his
" warm relations with Lord Cromer were not unknown to the Sultan. 14 And then
, the muftIs, and their Pfonouncements, the fatawa, would at one stroke become
obsolete. Calling for a return to the sources and an abandonment of "books there was the problem of the WahhabIs: this Arabian reform movement, which

devoid of spirit" ~us posed a threat to the intellectual edifice that justified and had previously proved nettlesome to Ottoman rule was again gaining strength in

indeed necessitated the institutions of the 'ulamii' and by extension, their the Hijaz and challenging 'Abd al-l;IamId's claims to the caFpnate. ls

educational seminaries like the Azhar. The training imparted at such seminaries. Also relevant in this regard were the sufi movements who felt most

was inextricably tied to the madhtihib: the syllabi were formulated within the' threatened by the reformis~' condemnations of many of the practices that they

framework of these legal schools as indeed were the prescribed texts. promoted. These movements had strong ties in high places, both within the

'AIIsh's efforts at preserving the status quo in academic circles was not political order of the empire and the 'ulamii' fraternity. The Sultan's Syrian

without its parallels in public life where the authority of his colleagues was being adviser, Abu al-Huda al-SayyadI, for example, also served as head of the

challenged by reformists, both conserVative and liberal. SO,whilst the scholars Rifa'iyyah sufi order, a position that allowed him to maintain a vast network of

at the Azhar grappled with the charges of obscurantism, for example, their
colleagues in the public sector bore responsibility for the proliferation of 14Thus, according to Gibb, 'Abduh "more than any other single man ..
.gave modem Egyptian thought a center of gravity and created, in place of a mass
innovative practices. The charge, it would seem, was not entirely without I of disconnected writings, a literature inspired by definite ideas of progress within
justification for there is some evidence, albeit circumstantial, to show that the an Islamic framework. " See H.A.R. Gibb in the Bulletin of the School of Oriental
Studies, vol.ii, p.758
religious fraternity did indeed, condone, if not actively partiCipate in unorthodox
practices such as the birthday celebrations of the Prophet, the solicitations of lSThis movement derives its name from Mul)ammad b. 'Abd al-Wahhab,
the eighteenth century puritan who hailed from the Nejd province of Arabia and
assistance from deceased saints and the erection of elaborate shrines in memory strived to purge Islam of all popular accretions .. The movement, which advocated
of such saints. Some, I would imagine, supported such practices out of loyalty to violence as a means of accomplishing its objectives, succeeded, for a while in
wresting the holy city of Mecca from Ottoman control but was later defeated in
the political establishment of the time, whose members patronized such events, 1820 by Mu1}.ammad 'Ali; this effectively ended its political expansionism. Ibn
hoping perhaps to procure thereby, some added political advantage in' the I Su'ud subsequently revived the movement early this century and integrated its
teachings into his state policies. For the Wahhabi movement see Snouck
community, in addition to the spiritual promises that such patronage held. Sultan I Hurgronje, Mekka in the Latter part of the Nineteenth Century, tr. J.H. Monahan
(London and Leiden: 1931)
Chapter Six 137
136 Taqlidl
purpose in bringing the two subjects together in a single volume which, as
clients favorably disposed to the SUltan. 16 There were others who similarly served I
Commins points out, sprang from a desire on his part "to eradicate. non-scriptural
in twin capacities as sufi leaders and religious functionaries. 'Arif al-Munayyar, i
(i.e. taqlfd practices) and irrational practices (i.e.· SUfi practices) and beliefs from
for example, certainly had more than one reason to oppose the calls for reform:
religion ".20
he was both, the Shafiite imam at the Umayyad mosque in Damascus as well as :
His adversaries however, some of w.hom also presented joint studies on
leader of the Rifii 'yyah sufi order. 17 Not surprisingly, we find in the writings or:
.sufi apologetics and taqlid, were often no less bellicose in their rejection oistich
some of these scholars a defense of both, taqlfd. as well as the. SUfi practices that
arguments. The 19th century Dam~ne scholar,Yusuf al-Nabhani (d. 1932) who
reformists condemned.
for many years served in the Ottoman administration as a magistrate and judge
This, in some measure, would explain the appearance of a specific genre !
until eventually being inducted into the ranks of the Sultan's '/llama' proteges, also
of polemicalliteraturti dedicated to dealing with aspects of mysticism and ISlamic .
happened to be an initiate of several Sufi orders. He used his considerable writing
law in a single publication. 'Abd al-lJamld al-ZahrawI's (d. 1916) work AI-Fiqh
talents sought to debunk arguments against Sufi practices, taqlid and innovations
wa al-Tasawwufs is an important contribution in this regard. ZahriiwI was in
(bid'ah).21 In one of his better known works, the Shawii,hid 1I1-ljaq fi al istighiitha
sympathy with the Salafiyya in many regards: he too condemned· taqlfd and
bi Sayyid al Khalq: the Attestation of Truth (to the pemussibility) of Beseeching
adherence to the madhiihib and called for the reopening of the doors of ijtihiid.
the Master of Creation (i.e. the Prophet) he combines rchuttals to the anti-taqlId
TaqUd, he maintained was "an aspect of people's tendency to attribute sanctity to
establishmcnt with argnmcllts against ctitics of sufi practices sueh as Ibn
things ancient, and argued that it signifies the surrender of legislative authority
Taymiyya, for instancc. who preached against the popular practice of seeking aid
to famous men, an authority that God granted to no man" .19
from the Prophet.22
ZahrawI was however, more scathing and fundamental in his critique on .
His treatise 011 ijtihiid and laqlfdcalled Al-Siham al-Siiiba Ii A§!J.tib al
sufism .which he regarded as essentially at variance with the spirit of Islam.
Da'iiwf al-Kiidhiba: The Straight Arrow for the Companions of False Claims
Whereas sufis aspired to frugality and abstemiousness, he argued, Islam ~
which appears .as an addendum to the foregoing work, is ill his words, "a rebuttal
encouraged full participation in the material world. Of interest to us is his

16David Commins, Politics and Social Change in Late Ottoman Syria (

New York: Oxford University Press, 1990) 105
2°Ibid., 59.
17AI-SayyadI ~as indeed an influential man with access to funds from the
imperial and provincial treasuries which he used for the construction and
2lNabhani: has also written popular works in vencration of the Prophet such
maintenance of the sufi lodges. It was probably through his influence that .
as Al-Mnjma'a al-Nf./bhiiiliya fi" al··Madifil,l al-NahnwiYYIl 4 vols. BGirnt:
members of the order were granted a royal exemption from military service. See I
AI·Matba'a al-Atlabiyy:•. 1903 and Wasu'it ttl Wu§ul illl Shllfllli'i/ aI-Nasal (Bdrul:
in this regard, Commins, Politics and Local Change, 108. •
AI-Matba'a al-Aliabiyya, 19-m).
IS'Abd al-lJamld al-ZahrawI, Al-Fiqh wa al-Tt1iawwuf (Cairo: AI-
'Umumiya Press, 1901) 2ZFor a lucid account of the vcneration of the Propht:l all long Muslims see
Annemarie Schimmel, Ami t'vfllhammlld is !-lis Messenger (I.onlion: Univt;:r.;ily or
Norlh Cilrolina Pmss, II}K'i)
19Commins, Politics and Social Change in late Ottoman Syria. 57.
, Chapter Six 139
to the claims of the Wahhtibf sect to the right to practice ijtihiid mutlaq'r.23 total disdain for the strictures of Islamic morality. 2S
Nabhani reiterates in this work the point made by 'AlIsh above that the prj:!s~nt NabhlinI also accuses his detractors of conspiring against the Muslim
yield of scholars is quite inadequately equipped to extract rulings from the sacred community in collusion with the WahhabIs, the latest deviant sect, he calls it,
sources both in tenns of knowledge as well as personal piety. 24 In any event" he given to disse~nating innovations in Islam and beguiling Muslims of their true
tetorts, the great eponyms of the four schools have virtually exhausted .all faith and practice. 26 Members of this group, along with the other elements bent
arguments in establishing. the authenticity of their rulings and it is thus bot on destroying the madhiihib, are mere brigands who sow discord among Muslims
necessary to repeat the process thereafter. and incite quarrels among the believers. "They too "were members of the
But what if they had erred? He thinks that implausible, for it is har~ly madhiihib at first," he adds, some
'likely, he responds, that these scholars would have ignored the advice they ~l'\ve
others: to follow the sacred sources instead of their pronouncements if such were l,;Ianafi, some MalOO, some Shafi'I and some l,;IanbalI, that is,
until they distanced themselves from the schools and became a
pronouncements contradicted the sources. Everyone of the eponyms he points iIlut concocted sect whose beliefs and actions consisted of criticisms
was loyal to the sacred sources in his own ways differing with his counterpawts against the imams of the community, its scholars, SUfis, saints,
pietists and the pure from among them. (saru firqa mulaffaqa
only in his application of such sources. I will return to this question in !by dfnuhii wa daydanatuha al- i'tiriilj 'dla a'imma al-umma wa
analysis of the Indian scholar, Ashraf' AlI ThanwI, who as will be shown, deals 'ulamaiha wa sufiyydtihii wa ~ulal}.a 'iM wa auliya'ihii wa
more exhaustively with the nature of such juridical differences.
The antagonists of taqlfd were also deeply suspicious of the liberal NabhanI, for his part, was quite obviously trying to rally as broad a coalition of

tendencies in the refonn movement, its efforts to discredit the intellectual acumen groups disgruntled with the refonnists as possible. As in the case of the Egyptian

of past scholars and to disparage thereby the regimen of taqlfd. NabhlinI count¢rs scholars mentioned previously, almost every member of Nabhani's proposed

such arguments by focusing on the traditions of the Prophet that emphasize tlhe "coalition" seemed threatened, to some degree, by the reforms: some feared that

'superiority of the early communities over all others (Khair al-quni.n qamf). ,In it would endanger their relationship with the Sultan and his political entourage,
light of such traditions, he argues, it does not behoove a Muslim to regard any others that it would render obsolete their social status (such as the pfriB who

era other than the first three as the fmest (al}san al- 'lqur). Those libertarians who
speak disparagingly of the past scholars are in reality smitten by the lure lof 2SIbid., 32.
modem thought and alien behavior as exemplified in their lack of modesty abd
26J:bid., 34.

27Ibid., 35.

28The extent of control that such individuals exercised over Muslim laity
is clear from the following satire taken from A.I. Arberry, Sufism: An Account
23Yusuf al-Nabhani, AI-Sihiim ai-SCUba Ii Ashtib ai-Va 'awf al-Ktihhioa of the Mystics of Islam (London: 1942) p. 128
(Cairo: Mustapha al-BabI al-HalabI, 1955)22
Would that we had not lived to see every demented madman held
24Ibid., 24. up by his fellows as a Pole! '
140 Taqlid I Chapter Six 141
I 1

maintained the dervish convents, the dargah) , and others still, that it would their senses or are in the employ of the enemies of Islam. The righteous believer
effectively end their monopoly of the sacred Law. will have no dealings with such rabble-rousers for he is deeply aware of the debt
A somewhat more scholarly response from this group is to be found in the • Islam owes the eponyms of these schools. They call themselves Muslims but are
writings of MU9ammad Zahid al-Kauthan (d. 1950) who for many years served • in fact false pretenders (mutamaslim mundass) who have unfortunately, succeeded
as the head of the council of Muslim Scholars (Wikala al-Mashikha al-lsliimiyya) even in infiltrating the ranks of the 'ulamii'.
in Turkey; and after the 1917 revolution, became a senior me~ber of the faculty It is difficult to say from the nature of KautharI's polemics who the object

at the al-Azhar. KautharI, in a short article on the madhiihib and taqlfd speaks of of his vitriolic was. Given his insinuations of a foreign link it is fair to surmise,
the calls to ijtihiid and the abandonment of the schOols of law as a "bridge to I would think, that he was 1l,ot targeting the conservative Salafiyya: as is well
irreligiousness (AI-Ltimadhhabiyya qanlara al-Ltidiniyya). 29 He maintains that known, they were equally suspicious of foreign. encroachments on Muslim
every discipline known to man spawns a circle of experts who are entrusted with society. The modernists were more likely his target but, it must be said that his
the task of articulating the wisdom of their discipline to others. Islamic law is in attitude to 'Abduh on the whole, was rather favorable notwithstanding the latter's
this regard no different: it too has produced a cadre of scholars preeminently role in the modernist movement nor his critique of popular sufism. It may well
qualified to maintain the rigors of the law.3o This august retinue of scholars was be that he had in mind some of'Abduh's disciples who held academic positions
acutely aware of the fact that it shouldered the responsibility of the Prophets, for at the Azhar.
as the Prophet has said, the 'ulamii' are the heirs of the Prophets. It was also the KautharI's rebuttal to the calls for the abandonment of the schools of law
Prophet who set the framework for their discipline and entrusted them with the is, generally speaking, neither original nor particularly profound. There is no
task of preserving the heritage of Islam. 31 "Now, along comes a group of thoroughgoing critique in his writings of any of the rather provocative attempts
reformers," he says, "ill disposed to the sanctity of this heritage, and starts to at ijtihiid during that period: he makes no mention of RiQ.a's novel approach to
advocate the abandonment of the madhiihib in favor of a neW ijtihiid. To them I ijtihiid and the caliphate nor does he offer any kind of rebuttal to 'All 'Abd

have but this to say: you ought to have your head examined by a physician of the al-Riziq's radical views on the Khilafah. His primary concern would seem to be
sharI"ah (fabib shar'f). ,,32 Such people, he goes on to say, have taken leave of the ·protection and· exoneration of the ijanafi school, which, again seems to
support the theory that it was members of this school, more than any other, who
rose in defence of taqlfd. 33 We read, as testimony of his contribution to
When he dies they make him the object of pilgrimage, and hasten
to his shrine .
33To the charge that the imams could have erred in their pronouncements
29Muhammad Z. KautharI, Maqiiliit al-Kautharf (Cairo: Matba'a al-
Kauthan cites the historian, Khafib aI-BaghdadI (d.1071) who relates that once
Anwar, n.d.) 129
someone said that Abu ijamfa had erred to which WakI' , the celebrated
3OJbid., 130. " traditionist provided the following response: "How could Abu Hamfa possibly
have erred given the fact that he had as disciples such experts in analogical
31Ibid., 132. deduction (qiyas) as AbU Yusuf and Zufr, in hadith studies as Ibn AbU Zaida
ijaf~ b.Giyath; ijibbiin and Mundal, in the Arabic language as aI-Qasim b:
32lbid., 133. Ma'an, and in piety Da'ud al-Tay and FuQ.ail b. 'Ayadh. If ever he was to err
142 Taqlid Chapter Six 143

l;Ianafism, the following panegyi'icalverses that his biographer Alp:nad KhairI, deleterious effects of taqlid as was the case with the Egyptians. This, in the view
offered: of Deliar Noer3s was attributable to the fact that many had been students of
Ahmad Khatib, a fellow Shafiite who was himself a strong proponent of the
Alzyayta 'ilm Aba lfanrjafi al-wara wajalauta ma akhfiihu minhu Shiifi'I school of law and a critic of the recent calls for ijtihad.
al mumtara
You have revived the knowledge of Abu l;IanIfa among mankind As in the Middle East, where there existed to some extent a correlation
and unveiled that which the skeptic had concealed between the upholders of the regime of taqlfd and institutionalized sufism so too
Also, in Indonesia the adherents of the Shiifi'I school "venerated keramat (shrines,
graves of saints) gave offerings to spirits, held slametain or kenduri (feasts) as
Yo. ma'shiH al-Alznaf: mata faqfhukum man kanaYadfa 'u 'ankum
man yaftan- offerings, and used azimat or charms to protect themselves from evil genie or bad
Oh ye l;Ianafis, your jurist has passed, he who defended you luck. ,,36 Noer points out that there existed an "unquestioning traditionalist attitude
against those who fabricated (against you).
(which) often led to blind obedience, since in bothfiqh and sufism, the teacher
Kham however, is at pains to point out that KautharI was simply (kijahi or sjech) was regarded as infallible. In this situation Islam and its
responding to some of the most scurrilous charges imputed to Abu l;IanIfa by his interpretation was monopolized by the kijahi or sjech rather than being shared by
critics. 34 ··It is, in any case patently incorrect to conclude from the foregoing that its individual followers as well. The kijahi's fatwa was final and should not be
it was exclusively the l;Ianafites who reacted negatively to the reformists' call for argued with."37
ijtihiid. The 'ulanU1' of other schools were equally disinclined to calls for reform Because of this arrangement the Indonesian modernists, mostly disciples
of the madhiihib; such was the case in Indonesia--a predominantly Shafiite of •Abduh and Ri<Ji opposed the regimen of taqlfd. They eschewed SUfi
country--at the tum of the last century. superstitions as much as they did blind obedience to any single scholar. Islam for
As stated previously, Muslims in the outlying areas of Islamdom were them was a religion of reason and rational thought but unlike other liberals in the
strongly influenced by events in the Middle East and Indonesia was, in this Muslim world, they held reason accountable to religion; the former, they
regard, no exception; a considerable number of its reformers and religious maintained, could lead to good as well as evil, and religion therefore, needed to
scholars were trained abroad, particularly, in Mecca and Cairo. But interestingly direct the power of reasoning along the path of righteousness. 38
enough, the Meccan graduates who, in some cases pioneered the reform efforts Like the Salafiyya, they too recognized only the authority of the sacred
in Indonesia, were not overly concerned with the reform of the madhiihib or the

3SDelia Noer, The Modernist Movement in Indonesia, 1900-1942

surely they would have rectified him "(qtd in Maqalat:132) (Singapore: Oxford University Press, 1973) 297

34KhairI gives the example of Imam al-l;Iaramain al-JuwainI who saw fit 36Ibid., 301.
to include in his description of AbU l;IanIfa the following: that he was seen in a
dream dressed in the skin of a dog and performing the ablution with wine 37Ibid., 301.
(nabIdh) and he (JuwainI, I presume) said 'this is the prayer (~alat) of the
Hanafis. See in this regard JuwainI, Magith al-Khalq (Cairo: 1930) p. 56-8. . 38Ibid., 304.
144 Chapter Six 145
, TaqUd
sources, and maintained that the doors of ijtihtid were open and rejected the idea Unlike in the Middle East, where. the I;Ianafi school was,virtually foisted upon

of taqlfd. But in sharp contrast to the Salafiyya and some modernists they were members of the other schools, no such coercive measures were imposed in

not in principle opposed to the schools of law. Their only requirement was that Indonesia and consequently, no radical reaction to the reformists was

the tatawa of the school not contradict the Qur'an and sunna. The mt)Vement forthcoming. Another factor that distinguished the Indonesian treatment of ijtihiid

however, was not without its extremist elements who maintained that "those who and taqlfd from the Middle Eastern and Indian was the absence of the

rely on the books of 'ulamii' differ from each other. Those who have differed conservative Salafiyya or Wahhabi opposition to the madhahib. That the

from each other have committed something which God has prohibi~d. Those who Indonesians were unsympathetic to this trend in reform is evident from the very

neglect God's prohibition commit a sin, Therefore, those who merely follow the formation of the Nahqat al- 'ulamii' which, it is said, was actually established in
opinion of others, (taqlfd) commit a sin. "39 part, as a reaction to the proliferation of the Wahhiibf doctrine in Arabia. 42

Other calls for ijtihad were a great deal less radical: the MUi}ammadiyya, The same cannot however, be said for the Ahle-I;Iadith's calls for ijtihiid

for example, one of the most influential reforms organizations in Indonesia in the in Muslim India for there the response was both significant and enduring, with

early twentieth century did not totally reject the madhiihib but simply called for distinct lines of demarcation separating the proponents of ijtihad from their
the re-examination of some of its individual rulings in the light of the Qur'an and adversaries. The regime of taqlfd was also defended unapologetically by.two

the sunna. 40 Thus we fmd that by the early part of the twentieth century there groups of scholars, the Deobandf and the Brelwi who, in every other way, were
was a gradual rapprochement between the opposing factions on the question of bitterly hostile to each other.
ijtihad. The Indonesian scholars, in time, assumed a more accommodating The Brelwis who take their name from Bareilly, a city in the state of Uttar
posture: whereas previously the Nahdatul 'Ulamii', a union of conservative Pradesh, India, started off asa spontaneous reaction to the reform efforts of the
scholars opposed to the reform movement, considered only the eponyms of the Ahle-I;Iadith and the Deobandi movements. In time they assumed a coherent
schools qualified to exercise ijtihtid, their position gradually shifted until, in a philosophy and a character distinct from the other groups, and, thanks to the
circular of 1935, their leader Kijahi Mahfuz Siddiq, brought his organization efforts of their spiritual and intellectual master, Al}mad Reza Khan (d. 1921) they
closer to the reformist position on the question of ijtihtid. 41 I would suggest that successfully launched a counter offensive to the criticisms that the reformists had
the legal homogeneity of Indonesia helped a great deal in reconciling the opposing levelled against SUfi practices and taqlfd. With regard to the former, Reza Khan
factions. The madhhab of the Indonesian people was the Shafi'i and it remained
that way throughout the period of colonization and the struggle for independence.
42According to Noer (223) the Muslims from· Java, in response to an
invitation by the Su'udi regime in Arabia, resolved to send a delegation to a
conference held in Mecca in which an appeal was to be made to the King for the
39Quoted in Noer, The Modernist Movement, 99. preservation and continuation of "traditional practices, such as the erection of
tombs on graves, the reading of certain prayers and the teaching of the madhahib
. ~ukti A. 'Ali,. The Muhammadijah Movement, a Bibliographical . . ." But there was no unanimity with regard to this appeal, and so, members of
IntroductIOn, M.A. ThesIs, (Montreal: McGill University, 1957) 52 the various 'ulama fraternities of Indonesia banded together to form the Nahdatul
'ulama' "at a meeting at Surabaja on 31 January 1926, with the main concern still

41Noer, The Modernist Movement, 317. being the Hijaz question. " , ~
146 Taqlid Chapter Six 147
counted as his adversaries liberals such as the members of the Aligarh movement polemicists of the time was the DeobandI scholar, Ashraf 'All ThanwI, who
of Sayyid Alpnad Khan, conservatives such as those in the Ahle-ijadlth group of interestingly enough, was considered by many to be the preeminent sufi of
~iddlq ijassan Khan, and the followers of the DeobandI school of thought. 43 modem India. 44 ThanwI, in addition to his mystical inclinations was also an
The Deobandls, who also derive their name from a small town, Deoband, accomplished scholar and a prolific writer who translateq. the Qur'an into the
in the Uttar Pradesh province in India, had little sympathy for the Brelwls but on Urdu language, produced an exhaustive exegetical discourse on the Mathnawf, the
matters of law both these implacable enemies were united against the M~demists, mystical work of the Persian sufi,.JaHH ai-DIn RumI, and wrote several shorter
Islamists and, to a far greater extent, the Ahle-ijadlth. Both these groups were works on the Islamic sciences and Sufism. His concern for the spiritual welfare
staunch ijanafis who not only held that the doors of ijtihad were closed but also of the ordinary Muslim however, was what preoccupied most: it is perhaps this
insisted that taqlrd was compulsory (wajib) upon all Muslims, laity and scholar sentiment that prompted him to write the much celebrated Behishti Zewar: a work
alike. that "claimed to offer the whole knowledge necessary for ~ woman:.the alphabet,
They were also emphatic in' their contention that the muqallid restrict letter writing, simple religious duties, the stories of the prophets, and practical
himself to a single scholar; this last, better known as the concept of taqlrd advice on cookery, care of the sick and domestic management. 45 .Another
shakh§f, was without doubt, the most contentious issue in the debate on taqlfd, important, if less well-known work that he produced was Taqlfd-o-Ijtihad which,
surpassed, perhaps, only by the debate on the necessity of providing source as he explains, was compiled for the laity and the less knowledgeable ('awam
reference (dala'il) in legal rulings. It will be recalled that all the reformists, aur kam 'ilm) who have sunk into doubt as regards the permissibility or otherwise
without exception, argued very strongly that Muslims follow the text and not go of taqlfd. In the introduction to the book he delineates the primary factorsthl,lt
merely by the utterances of a scholar. The Deobandls and the Brelwls however, prompted him to prepare this treatise. It is, he says,
thought otherwise: according to them the muftI is not obligated to cite proofs 1. A response to those groups who have opposing views onijtihtid and taqlfd;
unless otherwise called upon nor is the questioner (mustajti) obliged to elicit such the. one maintains that the restriction of ijtihtid to themujtahidin alone is wrong
proofs. and tantamount to heresy (shirk) while the other holds is expressly
The focus of this group's attention, it must be remembered, was entirely Jorbidden (l}aram) for one Muslim to emulate anoUter (taqlfd).
internal: it hinged on a rebuttal of the arguments of the Ahle-ijadlth on the one 2. A respo~e to those who, in addition to the foregoing, also. demand that
hand and the Modernists and Islamists on the other. The former had to be ijtihad be universalized to include all Muslims, not just the 'ulamii'.
persuaded that the emulation of the ijanafi school of law was not a heretical 3. An attempt to address the accusations of those who malign the scholars,
practice while the latter had to be exposed as a devious group of charlatans, particularly AbiiijanIfa, because they permit the exercise of analogical deduction
ill-equipped to pass judgement on the 'ulama', and bent on distorting Ute sacred (qiyas) in the Law for those qualified to do so and compel' others to follow the
law to suit their personal whims and fancies. One of the most prominent
44Barbara Metcalf, Islamic Revival in British India: Deoband, 1860-1900
Wrinceton: Princeton University Press, 1969) 157
430n the life and teachings of Ahmed Reza Khan see Zafar aI-Din Rizwi
Hayate A'la Hazrat (Karachi: 1938) , 45Ibid., 211.
148 Taqlid Chapter Six 149
regimen of taqlfd. former will base hisfatwa on the sacred sources and not on his personal opinions.
4. To bring to the fore the validity and the merits of taqlfd Shak~f. Modermsts on the other hand, are wont to argue that 'Umar was applying his
Taqlfd, as defmed by ThanwI is the act of accepting bona fide, the personal judgement (ra 'y) to the situation at hand, and not referring directly, to
utterance of a person, without inquiring as to his source of reference, but any precede~ as such. The point is that almost every argument or snippet of
believing rather, that such a person is in possession of the necessary proof. (ldsf evidence that anyone of the parties to this debate would care to proffer can be
ka qaul mehez is husne zann par maan lena keh yeh dalfl ke muwafiq batlii similarly dispensed with by its adversaries. Rarely, if ever, do they analyze such
dega).46 arguments vis-a-vis the objectives of the sacred law (the so-called maqasid al-
In support of this practice he refers to several traditions of the Prophet or those sharf'a). its impact, in real terms, on the welfare of the MU$lim community as
of the companion where persons have issued rulings without soliciting supporting a whole and its influence on the future of the Law.
evidence. I will refer to one such tradition. Abu Ayyfib al-~an, a companion Yet, it must be admitted, that in many respects ThinwI's critique of
of the Prophet, while travelling to Mecca to perform the pilgrimage committed ijtihtid, notwithstanding his exceedingly narrow perspective on the objectives of
himself to the il;ram i.e., the state of ritual sanctity that is a requirement of the the Law itself, is a great deal more systematic and profound than can be said for
hajj ritual. But along the way he was delayed, and only reached Mecca the day other participants in this debate. What he lacks in perspective he certainly makes
after the hajj. Not knowing quite how to remove the restrictions of the il;ram he up for in critical analysis. This is clear in his treatment of a problem that is not
solicited a ruling from 'Umar, the second caliph. The latter advised him without infrequent in lJanaH law: the case where afatwa happens to contradict an explicit
quoting any sources by way of reference. text (fUl§j). This issue, which is palpably the most significant argument against
ThanwI points out that in the foregoing report· Abu Ayyfib is in fact the regimen of taqlfd is but the result of those t.wo features integral to the legal
making taqlfd of 'Umar for he solicits his ruling without asking for evidence philosophy of the lJanafi school that also serve to set it apart from the others:
and it thus proves that taqlfd was practiced by the companions. The salaH firstly, its historical antipathy to all but the soundest traditions--a point that
rejoinder to this, as appears in several of their works, is simply to point out that featured prominently in the early history of the schools of law, and secondly, its
there is in fact, an implicit understanding, based on AbU Ayyfib's knowledge of extensive use of analogical deduction (qiyas).
and experience with 'Umar, that the latter as a rule based hisfatwa on the sacred ThinwI responds to this question by pointing out that as much as ijtihtid
sources. But this precisely is how ThinwI and others defme taqlfd. 41 ,They may be exercised in determining a ruling from a tradition in any matter so too is
emphasize with unfailing regularity, the existence of an implicit understanding, it permissible to exercise ijtihtid in isolating from the tradition itself the 'illa i.e.,
based on trust between the scholar (mufti) and the questioner (mustajnj where the the ratio decidendi or ratio legis that occasioned the pronouncement of such a
ruling in the first place; the purpose of the latter would then be the establishment

46Ashraf A. Thanwi, Taqlid-o-Ijtihtid (Karachi: Dar al-Isba'at) 9. of a I;ukm watj.'f or a "non- normative categorization" and not the establishment
of a ruling per se. It may also be tiult the l}adlth in question, may have been
471n fact ShaukanI (Al-Qawl al-Sadfd) uses this very argument with
abandon when faced with examples from the salafwho purportedly sought fatawa superseded by a later ruling (known in Islamic jurisprudence as the concept of
without scrutinising the sources.
150 Taqlid Chapter Six 151

naskh) or may have been interpreted in conjunction with a similarl}.adlth due to that he follow the sacred sources in his judgements but no mention was made
the existence in both of postulates related to for example, language, or custom about the need on the part of .the Yemeni people to do more than simply obey his
('uif). This is the case, he avers, where an expression is said to be sAhir, that orders, apparently without questioning his sources. The people of Yemen were
is, having but one literal meaning only, "such that one may ab initio regard that thus obliged to follow the regimen of taqlld shakh§l vis a vis Mu'adh.
meaning as the probable intended meaning. 48 It may well be, he says, that the ThiinwI next, undertakes the not inl;onsiderable task of proving the
Prophet intended a non-'{.iihir meaning in some cases and not in <;>thers, but such peremptoriness of taqlld. He begins by pointing out that peremptoriness (wujab)
a matter can only be decided by way of a contextual clue (qarfna) or by the in Islam is established in not one but two ways: firstly, there is wujab bi al-dhiit .,
process of cross-referencing one prophetic tradition with others, elsewhere (al- where something in and of itself is deemed compulsory by the sacred sources as
jam' bain al-al}tidlth). is .the case, for example, with ~aliit, the daily prayer. Then there are acts which
Now, ThanwI's reason for discussing these rather arcane points ofIslamic admittedly have no explicit sanction from the sources but whose peremptoriness
jurisprudence is simply to point out the complexity of the undertaking, one that cannot be denied by any human being who has experience in life and good sense.
he believes is well beyond the ability of the average scholar let alone the lay It is this necessity that prompted the early Muslims to compile the traditions of
person. It is thus irresponsible and downright dangerous he adds, 'to fling open the Prophet notwithstanding the lack of any clear indication in this regard in the
the doors of what is essentially the task of the mujtahid alone or at most a highly sacred sources. Their collective experience had made known to them the fact that
proficient muftlto the public at large; this is tantamount to religious infidelity, not the written word is more often than not, a better safeguard against the loss and
to mention a real threat to the cohesiveness of the Muslim community. distortion of data than· is human memory. The same is applicable to taqlld
In support, he refers to the tradition of the Prophet in which he chastised shakh§l; its peremptoriness is established not by scriptural evidence as such, but
. -.
some for wrongly ordering their companion who was hurt in battle to by the fulfillment of two prerequisites: firstly, the determination of how taqlld
take a bath because of ritual impurity. These companions, ThiinwI maintains, had shakh§l or the lack thereof impinges on and hinders the performance of other
a limited understanding of the sources and were thus unqualified to exercise functions and secondly, what the legal status of the said functions are.
ijtihtid, and their doing so cost the life of an individual. 49 Such eventualities can As for the first, ThiinwI cites the most popular argument in taqlld circles,
be minimized by way of taqlld sha/chsl that of the tendency in recent generations for people to defer to their personal
Taqlld shakh§l, according to ThiinwI, is the emulation of but one whims and caprices instead of to the dictates of religion whereas Islam demands
trustworthy schohll' whose ruling is followed without questioning. Such was the that the converse apply. (Khwiihishe nafsiinl ko dln ke tiibi'_baniina). sOJDe other
case, he says, with Mu'adh b. Jabal, the emissary of the Prophet to the people proof that he cites is no less popular with this group and that is the necessity of
of Yemen. The Prophet, it will be recalled, had sent Mu'adh with instructions following consensus (ijma'). The example that he forwards, that of the prohibition
of mut'a, temporary marriage, is particularly suited to underscore his contentions
4BJJ. Weiss, The Search for God's Law (Salt Lake City: University of against the SaJafiyya IAhle-ijadlth reformists mainly. Mut'a, which to this day
Utah Press, 1992) 138

4~anwi, Ijtihtid-o-Taqlld, 20-21 . so.Ibid., 34.

152 Chapter Six 153
is permissible among the Shii clerics, is one of the features (sha'ii'ir) which own predilections. 52
distinguishes Shiites from Sunnis. The sacred sources of the Sunnis however, As to why only the four madhtihib have been allowed, he says that this is
provide conflicting evidence on the question of Mut'a: in some it is spoken of as so because only these four share the quality of having comprehensively exhausted
permissible, whilst in others not. Sunnis concede this much, but add that its all possible eventualities that Muslims might face and of having supplied rulings
prohibition was established by a caliphal pronouncement ascribed to 'Umar, the to everyone of these eventualities. All other schools suffer from the shortcOmings
second caliph, following which, a broad consensus (i/ma ') w~s reached totally of not being as comprehensive and thus if one were to follow such a school a
abolishing the practice. Such a ruling clearly violates the salafi requirement in point may be reached where one will have to take recourse to one of the four
two ways: fIrstly, it is not categorically based on scriptural evidence and schools and in so doing, fall victim to the temptation of human caprice and lust. 53
secondly, it appeals to ijma' which they, following Ibn Taymiyya and Ibn Qayyim Finally, Muslims of India are compelled to follow the school of AbU
allow only in the case of the Companions. Now seeing that some companions, ij:anIfa simple because it is, by far, the most predominant school in the region.
notably' Abd Allah b. 'Abbas, believed in the permissibility of mut'a, this would 'Works explaining the intricacies of this school are easily available in the area as
nUllify even that kind of ijmii'. ThiinwI argues that allowing any Muslim access are scholars qualifIed to interpret and explain such works. 54
to ijtihiid and requiring of him that he search for corroborating evidence fromfue It will be noticed that ThanwI's sufI sentiments have left their imprints
scriptures--the only type of ijtiluid that the Ahle-ij:adlth spoke of, as indicated throughout his argument; he mentions repeatedly, the lack of integrity and
earlier on--may well cause such a person to stumble across l}.adlth traditions that self-indulgence as a primary reason for the absolute necessity, in. the present
indicate that at one stage the Prophet himself allowed this practice. Now, it is times, for taqlfd shakh§f. Also, one fInds in the works of scholars such as
more than likely, given the pervasive nature of immorality in society today, that ThanwI, a link of sorts, between the historical m~thodology of the early ij:anafites
such on individual will fall prey to his desires and indulge in what Sunnis regard and the subsequent .regimen of taqlfd. . The latter were, at the outset, the
as straight forward prostitution. In addition, his individual ijtihiid will violate a preeminent proponents of opinion, (the Ahl ai-Ray of Kufa), opposed, in their
ruling based on ijma'. Taqlfd S~f, if practiced correctly will circumvent many methodology, to the people of l}.adIth (the Ahl al-lJadfth of Medina). The
such problems, he says.51 evidence examined thus far, would seem to lend itself, quite favorably, to the
Similarly, if allowed to practice talfiq such a person will go from madhhab notion that this methodology of ra'y and more importantly, the rulings arrived at
to madhhab searching out· that which is most convenient for him in any given thereby, were never really abandoned. The approach however, may have changed
situation, satisfying thereby, the dictates of his passions and desires and not the somewhat: whereas previously--after Shafi'Ithat is--ray was exercised under the
decrees of his Lord. Given that our actions will be judged by our intentions~ as guise of analogical deduction (qiyiis), later, after the 10th century h., that same
the traditions point out, it is clear that this individuals actions are, in essence, an
exercise in futility for he seeks thereby the appeasement of nothing more. than his
52Ibid., 39.

53Ibid., 50.

5IIbid., 35. 54Ibid., 51

154 Taqlid
methodology and its yield, the rulings of the eponyms such as Abu J;IanIfa and
Abu Yusuf, was preserved and perpetuated through taqlfd. A thoroughgoing
analysis of this intriguing, albeit tenuous, theory falls outside the scope of this
inquiry but it is nonetheless, one that I believe, will, if pursued, help further
'Onravel the problematic of emulation in Islamic Law.



In the course of this inquiry I have critiqued several of the more

prominent perspectives on ijtihiid as espoused by the intellectual hierarchy of the
reform movement of the nineteenth and early twentieth centuries. In their attempts
to undo the consequences of European colonialism Muslim reformists turned to
their past, essentially in search of what they believed to be the catalyst that
spawned Islam's intellectual efflorescence in the early years; perhaps it could be

/ called upon, once again, to do the same for its most recent loss of fortunes. For
many, ijtihiid was that impulse: the single element from the sacred heritage that,
of necessity, had to be energized if the sacred law was to return triumphant, to
Muslim society.· But there was also the awareness that for that efflorescence to
occur it was, first of all, essential that the regimen of taqlfd, the unquestioning
obeisance to the decadence of its intellectual past be dismantled.
Whereas ijtihiid was construed as integral to Islam, divinely sanctioned
and piously observed by the early community of believers, taqlfd was an
innovation (bid'ah) foisted upon Muslim society by scholars too weak and

. indecisive to keep apace with the challenges of an evolving society. Also, whereas
ijtihiid was dynamic and vibrant, taqIid was enervating and spirit-less, and
whereas ijtihiid facilitated the formation of a single, cohesive community joined
. in spirit to the sacred law, taqIid engendered unwarranted complexities that
156 Chapter Seven. Conclusion 157
disunited the community. be followed; in its absence however, a decision should be sought by way of
But ijtihiid itself, in the hands of the reformists, assumed a multiplicity of! ijtihad, and ijtihad is qiyas. "
perspectives: while for some, it was simply a return to the scripturalliteralismi Shafl'i's deflnition of ijtihiid was not challenged by the reformists in any
of the early ljadIth folk, for others it was the very 'principle of movement' in way; in fact their perspective on.;the subject singularly lacks any focus on the
Islamic intellectualism; for others still, it was an escape from the bigotry and etymology of the term. All who spoke of ijtihiid and its historical contribution to
factionalism of the madhahib, from the tyranny cif taqlfd and from the I Islamic intellectualism did so without a clear assessment of its actual development
. '

obscurantism of its patrons, the 'ulamii'. and use in the formative period. What sufflced was the mere perception that
A close scrutiny of the classical period 'however, has provided no ijtihiid would facilitate the treatment of contemporary issues in a way that would
indication that the term was ever used as an independent legal concept, and even neither jeopardize the authority of the sacred texts, nor yet restrict their
less so, as the principle of any kind of intellectual movement as such. It is, in articulation within the paradigm of modernity.
fact, not at all clear how the term was distinguished, in the classical period, from Some, like Afgham, and to a greater extent Iqbal, revolutionized the
terms such as 'aql, iann and ra'y which connote the same sense of extensive, deflnition of the term. Whereas in the past, ijtihiid was identified exclusively with
intellectual endeavor. The Prophet and his Companions are known to have the legal process, in the hands of these scholars, it was equated to Islamic
exercised their legal judgements in ways to Which anyone of the foregoing terms, intellectualism itself. While AfghanI based his ijtihiid squarely on the Qur'an and
could equally apply. But their exercise thereof was not performed explicitly under the sunna, its hermeneutics, he argued, must be contemporaneous to the rational
the rubric of ijtihiid, and the concept to that extent, seems not to have been I spirit of the new age. Furthermore, all Muslims should be allowed to interpret the
integral to the collective consciousness of the juristic hierarchy of the early, sacred texts, provided they have a sufflcient knowledge of Arabic, are of sound
period. mind and know the traditions of the salaf. For Iqbal, on the other hand, ijtihad
the flrst thoroughgoing imaIysis of ijtihad and its appropriation into a was the principle of movement in Islam, and to the extent that it was integral to
strictly legalistic frame of reference occurred with Shafl'I who incorporated it into his theology, it was much broader than the ijtihiid of the legal scholars. Whilst

his principles of jurisprudence or the U§ul al-fiqh. But his efforts at locating his was the only signiflcant criitique of the "closing of the doors of ijtihad" it
ijtihad within the framework of the sacred Law resulted in its restriction to the nonetheless, failed to recognize the contribution that Shafl'i's legal thinking made
twin principles of qiyas and ijmii'. These principles, which Shafl'II to that closure.

institutionalized, along with his doctrine of the primacy of the sacred sources, the, Some in the reform movement chose to interpret ijtihiid by way of it's
Qur'an and particularly, the sunna, had the cumulative effect of 'closing the doors I antipode, taqlfd, which resulted in the latter term itself being redifmed. For
of ijtihad' to posterity. Ijtihad, for Shafl'I, was no more than a synonym fori 'Abduhthus, it constituted the anti-rational element in Muslim thought in dire
qiyas: "they are," he states,· "two names for the same concept ... in.the life of: need of replacement by a new spirit of rationalism epitomised by ijtihad. As in
a Muslim there is always, either a binding order or some evidence as to the, the case of the West, Muslim society's progress, 'Abduh argued, also hinged on
correct order. With regard to the flrst, where a decision already exists it should' its ability to break from the obscurantist tendencies in the faith, from the

158 Chapter Seven Conclusion 159

irrationality of some of its religious dogma and from the superstitions of its establishment of a special institution for the training of mujtahids who would

masses. But 'Abduh's ijtihiid, was defined primarily by the traditions of Islamic serve on such an institution. The latter's graduates will function as deputies to the

legal thought. This perspective, which I have called the inter-textual, recognizes caliph and officiate in that capacity in the judicial system of the government.

the absolute authority of the sacred texts, and generally, only allows ijtihiid in the As for Maudfidr, he did not specifically single out the caliph as the

absence of textual evidence. Matters pertaining to religion are of two kinds: mujtahid par excellence but spoke instead of a decentralized process of ijtihad

fIrstly, those mentioned in the Qur'an and the sunna and passed on from performed not necessarily by professional jurists or 'ulama' but rather by all who

generation to generation through the practice of the community; such matters possessed the necessary qualifIcations. Instead of a legislature filled with qualified

cannot be determined on the basis of ijtihiid. But there are other matters, not mujtahids, Maududi suggested a number of mechanisms available for the

decided by an express injunction of the sacred texts or by the consensus of the legitimization of personal,individual ijtihad, and its incorporation into the law of

community; these could be determined by ijtihiid. the state. For example, the "ijtihad of an individual or a group of individuals may

Extra-textual ijtihad featured less prominently in reform circles: it refers gain wide popularity and people may suo moto, adopt their verdict, " or "a

to those reform packages wherein the scriptural content of the Islamic heritage is Muslim government may adopt a particular piece of ijtihad as its law, as for

largely overshadowed by the libertarian values of modernity. FarId Wajdi, for example the Ottoman government had adopted the .I;Ianafi Law as the law of the

example, underscores this perspective quite succinctly, I believe, when he argues empire. "

that true Islam is that which conforms to the truths of modem civilization and not It was nonetheless Maududi's views on taqlfdand the madhahib that

vice versa. Sir Sayed felt much the same way, except that in his case, it was grabbed the attention of the Pakistani public; it did irreparable harm to his reform

modem science that was the only reliable criterion of the truth. This utilitarian efforts and exacerbated the rather tenuous relations that he had with the 'ulamii'.

approach to ijtihad deemed the concept useful only to the extent that it facilitated In addition to his refusal to be identifIed with any of the schools of law that

the process of modernization itself; but if it hindered Islam's rapprochement with prevailed in Pakistan Maududi also proclaimed that none of these schools was

science or western civilization it was to be rejected. correct in its entirety. While he maintained that the lay person follow a

Ijtihiid also took on new dimensions in the hands of Ri<J,i and Maudfidi: trustworthy scholar he refused to endorse the kind of taqlfd that the 'ulama'

both saw it as a function of the modem Islamic state and its legislature. As for advocated. His avowed purpose for becoming embroiled in the madhhab disputes

Ri<J,i, he further crystallized the ideas of classical jurists like Miwardi of ijtihiid of the community was because such disputes impeded his efforts at creating a

being the preeminent function of the imam: the latter, he suggested, will function single, unifIed community. His efforts however, were far from successful, for

in the modem, Islamic state as the supreme mujtahid empowered to legislate .and instead of providing a rational alternative, as he claimed, for those who acted

promulgate rules that are in consonance with the sacred law. To do so however, impartially in religious disputes, he only caused the already polarized community

it is essential that he be thoroughly familiar with both the sacred science~ as well to further alienate itself from his message.

as contemporaneous matters. Such a mujtahid/caliph however, will not function Banna shared Maududi's broad objectives with regard to Muslim unity in

unilaterally, but rather in conjunction with a legislature. Ri<J,i proposed the the face of modem perils but his efforts were not plagued by legalistic

160 Chapter Seven Conclusion 161
sectarianism as was the case with Maududi. Ijtihiid, for many in the Ikhwlin, was with the ijanafis--historicallly, the principal proponents of qiyas--is, I think, of
not the antipode to taqlid and the two were therefore not mutually exclusive to particular importance, for it underscores the point that the salafi version of
each other. Banna himself was of the opinion that every Muslim ought to have ijtihtid, for all practical purposes, excluded the exercise of ijtihiid in the form of
the right to choose a madhhab but that he do so only after careful study of its qiyas. The sources of the Law were strictly the Qur'an and the traditions of the
Sources. The secondary differences in the Law, he maintained, were not Prophet.
necessarily a divisive factor in the community nor did it engender hatred or This inquiry .also unearthed a possible link between the regimen of taqlid
irreligiosity in Muslims. Banna and the Ikhwlin thus dealt with far more and the lJanafi/Ottoman nexus. A significant number of calls for ijtihad and the
circumspection vis-a-vis the madhiihib than was the case with the Iamat-e-Isliimi. abandonment of taqlid came from areas where the Ottomans had imposed lJanafi
The only segment of the reform movement with so-called historical claims law on people who, in the main, were adherents of other schools of law. lJanafis,
to ijtihtid is the Salafiyya or the Ahle-lJadlth movement. The latter have to be on the other hand, seemed to playa substantial role in defending the regimen of
distinguished from the neo-Salafrism of 'Abduh and the Manar movement who taqlid: some did so in response to the scurrilous attacks on Abu ijanIfa by critics
stand out for their assimilation of contemporary notions regarding reason, science of taqlid, others, as a show of loyalty to the Ottoman government, and others
and technology into the vision of an' Islam without sectarian bigotry and still--members of the 'ulama' fraternity, mainly--out of fear of the consequences
traditional superstitions. The Salafiyya on the other hand trace their philosophy
of this movement on their vocations. The most strident defenders of taqlid to this
to scholars SUch as Ibn Taymiyya and particularly, ShauklinI whose thoughts, in
day are to be found in !ndo-Pakistan; not only are the doors of ijtihad kept tightly
turn, show the unmistakeable influence of his shi'I background. Like the Zaydis,
shut in that area, but taqlid itself is rigorously imposed upon laity and scholar
he too propagated a return to the texts and a rejection of ra 'y or rational
alike. It is also, perhaps the only remaining part of the Muslim world where
speculation in the Law. Shauklin'I's ijtihiid distinguishes between ra'y, which he
taqlid shakhsi is religiously observed.
says is synonymous with taqlid, and riwaya which is synonymous with ijtihiill.
There is also evidence to suggest that those who were inclined to sufISm
Reason for him therefore, is only meant to unravel the rule of the sacred law as I
and particularly to the popular practices that were promoted in some sufi circl~s
enunciated in the scriptures; all else is nothing but delusion. SalaflS also
were also sympathetic to the regimen of taqlid. This may be due to the simple
distinguish between ittibti' and taqlid: the former is, for them, always based on
fact that all of these phenomena, viz., taqlid, Hanafism, sufism and the 'ulama',
textual evidence while the latter-in the form of a legal opinion or even afatwa-is
constituted the orthodoxy of that era and thus found support in each other against
not corroborated by such evidence.
a common enemy, Muslim reform. Or, it may indeed be attributable to a variety
In Indo-Pakistan the Salafiyya goes by the name Ahle-ijadlth. Along with
of highly complex factors whose examination however, falls outside the scope of
its opposition to the madhdhib and taqlid it also expresses a strong antipathy to
the present study.
the sufi inspired folk Islam that is prominent in that area. Like its precursor the
. 9

Salafiyya, the Ahle-ijadIth's emphasis on ijtihiid was more a reaction to taqlid I

than a concern for the restitution of the law in Muslim society. Its confrontation


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