Rethinking taqlid in the early Shafi'i school.

AuthorShamsy, Ahmed El
PositionEssay

INTRODUCTION

The concept of taqlid in Islamic law has long received a bad press. Juxtaposed with the creative vigor of ijtihad--direct and independent engagement with the sacred sources--taqlid, or legal conformism, has been dismissed as "servile imitation of other jurisconsults" (1) or "slavish obedience to one or other of the four recognized legal schools." (2) By approaching the concept from the perspective of legal studies, Norman Calder. Mohammad Fadel, Wael Hallaq, and Sherman Jackson have provided important correctives to this disparaging view. (3) Drawing primarily on analyses of post-formative legal texts, they have demonstrated that, instead of representing the mere empty shell of ijtihad, taqlid in fact embodies a more developed form of law, since it can accommodate precedent and communal legal reasoning in contrast to the unrealistically solipsistic process of ijtihad. The consequent development of a body of binding precedent was the crucial ingredient that enabled the establishment and survival of the schools of Islamic law (madhahib).

Methodologically, what these studies of taqlid have in common is that they employ the term as an objective description of practice among Muslim jurists, unaffected by the self-understanding of the jurists themselves. The rationale for such externalism lies in the perceived existence of a gulf between the reality of juridical practice and the indigenous discourse on legal hermeneutics (usul al-fiqh), which long maintained a strident rejection of taqlid. Only in the post-formative period are Muslim jurists seen to begin the reconciliation between theory and practice by explicitly acknowledging the practice of taqlid by the majority of their predecessors. (4) Given that the theorization of taqlid in early legal theory appears to have little relevance to the actual modus operandi of early jurists, modern scholars have been left to define taqlid for themselves and then to apply their definitions to the works of the jurists whom they study. This has given rise to competing classifications: while someone like Muhammad b. Idris al-Shafi'i (d. 204/820) clearly did not see himself as a follower, or muqallid, the modern scholar--based on his own definition--"unmasks" him as actually practicing taqlid. (5)

In this essay, I will pursue an alternative strategy towards reconstructing the history of taqlid within the early Shafi'i school. First, by tracing the meaning and function of the concept in the intellectual context within which it emerged--namely, the scholarship of al-Shafi'i and of those scholars who inspired and were inspired by him--I demonstrate that the Shafi'i principled rejection of taqlid in works of legal hermeneutics was intimately connected to the very raison d'etre of the discipline of usul as conceived by al-Shafi'i. Second, I argue that beyond the ideal theory of usul, a conscious debate regarding the actual practice of taqlid can be discovered at the unlikely site of positive law (fiqh). This debate reveals that classical Muslim scholars were keenly aware of the tension between the taqlid taboo instituted by al-Shafi'i and the practical advantages of acknowledging and following prior legal positions. They sought to resolve this tension by developing an implicit theory of precedent, which paralleled but remained separate from the discourse on ijtihad and taqlid within legal hermeneutics. These dual discourses created a structure of authority within the Shafi'i school that simultaneously guaranteed the integrity of a closed canon of sacred sources and made possible the communal cohesion and predictability generated by precedent.

THE ORIGINS OF TAQLID AS A LEGAL-THEORETICAL CONCEPT

In order to uncover the original meaning and purpose of the term taqlid, we must begin our search with al-Shafi'i's teacher Malik b. Anas (d. 179/796). This is not because of any real theory of the practice in Malik's own work: Malik does employ the term taqlid in the Muwatta', and it is also found several times in the Mudawwana, (6) but in none of these instances has it anything to do with legal conformism; rather, it refers to the girding of the sacrificial animal (taqlid al-hadi) during Hajj. (7) The reason why Malik's thought nonetheless offers an illuminative starting-point for an investigation of taqlid lies in the role played by his conception of the nature of Islamic law, and the problems inherent in this conception, in shaping the very different legal theory developed by his student al-Shafi'i--a theory based on the identification and rejection of taqlid.

A revealing point of entry into Malik's teaching is a statement attributed to the Umayyad Caliph 'Umar b. 'Abd al-'Aziz (d. 101/720), which Malik is said to have quoted repeatedly: (8)

The Prophet and the holders of authority (wulat al-amr) after him established traditions (sunan). To adhere to them means conforming to the book of God, perfecting one's obedience to Him, and strengthening His religion. ... Whoever seeks guidance from them will be guided, and whoever seeks success through them will be successful. And whoever contravenes them "follows a path other than that of the believers" (yattabi' ghayra sabil al-mu' minin), (9) and God will turn him over to what he has turned to. (10) As Umar Faruq Abd-Allah has shown, (11) Malik equated the "holders of authority" in this quotation with a constellation of Medinan scholars and government officials such as judges and governors. The aggregate of their actions and decisions represented for him the normative path defined by religious tradition that commanded the obedience (ittiba') of every Muslim--in the Qur'anic phrase used by the Caliph, the "way of the believers" (sabil al-mu'minin). In Malik's view, this normative path crystallized in the practice of the people of Medina partial ahl al-Madina). 'Amal embodied the authentic memory of the sacred age, encapsulated in the communal practice of the hallowed city of the Prophet, and it thus ought to be emulated by all Muslims regardless of their location (al-nas taba'un li-ahl al-Madina). (12)

Malik's concept of 'amal was not simply a device for preserving the Sunna of the Prophet. (13) Rather, as the Caliph's statement indicates, it contains the notion of a continuous process of normativity production: each generation builds on the knowledge passed down by its predecessors, modifying and refining collective practice through consultation and personal reasoning. (14) The result is what Schacht described as an organic "living tradition ... represented by the constant doctrine of its authoritative representatives." (15) Although reports attributed to the Prophet were clearly an important element within the body of material upon which this living tradition drew, 'amal was neither limited to nor determined by them. Thus, on the one hand there were reports from later scholars, judges, and other officials that established 'amal, while on the other there were prophetic hadith that, although considered authentic, did not determine 'amal, since the fact that they were not acted upon by the community indicated that they were not normative.

This multilayered and composite nature of the content of Medinan 'amal lay at the heart of al-Shafi'i's disillusionment with and rejection of Malik's theory of law. A passage from al-Shafi'i's Ikhtilaf Malik will clarify the nature of al-Shafi'i's critique. On the question of whether the hand of a runaway slave who had committed theft should be amputated, al-Shafi'i pointed out the multiple inconsistencies of the Maliki position. Ibn 'Umar, a Companion and jurist, had demanded that the hand of his escaped slave be amputated; Sa'id b. al-'As, the governor, had refused to follow the judgment of Ibn 'Umar and order the punishment; Ibn 'Umar had subsequently carried it out of his own accord. The example shows not only that jurists and governors--both carriers of the normative 'amal in the Maliki framework--disagreed on individual issues, but also that these sources in fact contradict the Maliki position that claims to be based on them: Although Malik believed, along with Ibn 'Umar, that an escaped slave should forfeit his hand for theft, he also held that a slave owner was not permitted to carry out a punishment not sanctioned by the authorities. (16) Addressing his Maliki interlocutor in Ikhtilaf Malik, al-Shafi'i queries:

Where is 'amal here? If it is the practice of the governor, then Sa'id was not of the opinion that the hand of the runaway slave who stole should be amputated, while you believe that it should be amputated. Or if 'amal is established by Ibn 'Umar's opinion, then [know that] Ibn 'Umar amputated his hand, while you are of the opinion that one is not allowed to do so [if the authorities disagree]. So we cannot comprehend what you mean when you say "'amal" nor do you seem to know it yourself according to what you have told us, nor could we find clarification with any one of you about what 'amal or consensus (ijma') are. We are forced to conclude, then, that you simply call your own opinions "'amal" and "consensus." (17) What al-Shafi'i points out in this passage is that the anonymous "'amal of Medina" cannot in fact produce a single coherent verdict: it contains multiple contradictory voices, but does not offer any systematic method for adjudicating between them. Malik did recognize complex gradations within the body of material upon which 'amal was based, distinguishing older practices from later ones and widely accepted traditions from those subject to greater degrees of disagreement. (18) However, these gradations did not translate into a reproducible methodology of rule derivation. The reasons why certain sources--prophetic reports, scholars' opinions, and so on--were accepted as normative while others were not could not be deduced from an examination of the sources themselves, but only by reference to their reception, i.e., whether or not they were followed by the...

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