Rethinking the taqlid hegemony: An institutional, longue-duree approach.

Author:Ibrahim, Ahmed Fekry
Position:Essay
 
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Islamic legal historiography has dealt extensively with questions of continuity and change, as epitomized by the relationship between ijtihad and taqlid. This paper offers a new conceptualization of the ijtihad-taqlid modes of law-making in the Sunni legal tradition. I argue that the institutional transformation from ijtihad to taqlid required that jurists transform the views of the founding authorities of the schools over the course of the eleventh through thirteenth centuries. They achieved this by stratifying legal knowledge in their typologies of muftis and judges in ways that had not been envisioned earlier, justifying their typologies by invoking tropes of decline and the extinction of mujtahids. This longue-duree view will shed light on the institutional significance of the taqlidification of Islamic law, where legal security and stability were privileged over judicial discretion.

INTRODUCTION

In the primary sources of Sunni Islamic legal historiography, premodern Muslim scholars frequently introduced the binary of ijtihad and taqlid as a dichotomy of vitality versus decadence and decline. Some historians of Islamic law, such as Joseph Schacht and Noel Coulson, bought into this primary source trope, reinforcing the decline argument and implying that Islamic civilization was virtually on the wane for most of its history. Modern Muslim reformers were more concerned about another dichotomy inherent in the ijtihad-taqlid binary, that is, change versus rigidity. Like their orientalist counterparts, they generally bought into a notion of decline, but their main interest lay in valorizing legal change (ijtihad) and condemning rigidity (taqlid). (1) More recently, Sherman Jackson and Mohammad Fadel have challenged the characterization that taqlid represents rigidity. Utilizing Alan Watson's concept of "legal scaffolding," Jackson showed that many possible changes could be introduced to a legal doctrine within the system of school conformism, or taqlid. Fadel approached the question from a sociological, institutional perspective, suggesting that the need for legal predictability necessitated the types of restrictions on individual reasoning, or ijtihad, inherent in taqlid. (2)

In this article I focus on yet another dichotomy inherent in the ijtihad-taqlid binary, namely, flexibility versus stability. Building on Jackson's and Fadel's observations, I argue that legal systems--including the Islamic one--value legal stability and efficiency. Very early on, for instance, the Abbasid courtier Ibn al-Muqaffa' (d. ca. 139/756) complained to the caliph al-Mansur (r. 136-158/754-775) that cities of the empire had divergent laws, even different rules within one and the same city. He suggested a caliphal codification whereby uniform laws to be applied across the entire empire were selected by no other than the caliph himself. (3) This proposal failed in the face of strong opposition from jurists, who saw their monopoly of interpreting the revealed sources and of law-making thereby threatened. It is reported, for example, that Malik b. Anas (d. 179/795) turned down al-Mansur's request to use his legal knowledge to codify Islamic law. (4) Ibn al-Muqaffa"s inability to endow the caliph with the power to be the final arbiter on legal matters, coupled with the subsequent failure of the inquisition (mihna) initiated by al-Ma'mun (r. 198-218/813-833), led to the creation of a delicate balance of power between jurists and rulers. The ruler had no say over theological orthodoxy and his prerogative to legislate was limited to the narrow realm of siyasa, while jurists remained the gatekeepers of the law.

This is not to say that the ruler's role in law-making and legal institutional engineering was unimportant or unvarying across different dynasties. (5) Nonetheless, imperial legislation (siyasa) was meant, at least in theory, to be restricted mostly to areas of the law where the Sharia was silent or where the functioning of the courts required uniform legal procedure. (6) In the absence of an actual imperial code in the fashion of Ibn al-Muqaffa"s recommendation, the responsibility of increasing the efficiency and security of the legal system fell on the shoulders of jurists and, to a lesser degree, state authorities. Jurists were aware of the practical problems associated with the public's confidence in the legal system and endeavored to guarantee that the application of the law garnered the respect of legal subjects. (7) This article examines how jurists made a conscious effort to limit legal interpretation and engineered a transition to greater legal security and efficiency in the context of the siyasa-Sharia dialectic. It seeks to answer the following questions: When did this process of circumscribing ijtihad and shifting to taqlid take placeh How was it justified, given that it went against the overt disapproval of the architect of Islamic legal methodology, al-Shafi'ih (8) And why was this process envisioned by jurists in the first place?

This essay consists of four sections. The first treats the context of the classical concepts of ijtihad and taqlid. The second discusses the periodization of the institutional shift from ijtihad to taqlid. The third, in which I also discuss the stratification of ijtihad and taqlid into epistemological hierarchies designed to accommodate new visions of law-making, examines the ways in which jurists used certain tropes to justify this important transformation; and the fourth section focuses on how this transformation was reflected in court practice and what functions it served.

  1. THE IJTIHAD--TAQLID CONTINUUM

    The need for legal security can be seen in the drafting of the French Napoleonic Code in 1804. Jean Etienne-Marie Portalis (d. 1807), one of four jurists who drafted it, expounded on the importance of clarity and determinacy of rules, an essential motivation for the writing of the code. (9) Ironically, Islamic law, critiqued in the twentieth century for its rigidity (Schacht's closure of the gate of ijtihad (10)), had been decried a century earlier for its arbitrariness, implying an extreme form of flexibility devoid of any formal rules. As such, Portalis juxtaposed his ideal, clear, and determinate code with (the contemporary European view of) Islamic law, contradistinguishing the latter with what French legislators had achieved in the new code.

    En Turquie, ou la jurisprudence n'est point un art, ou le bacha peut prononcer comme il le veut, quand des ordres superieurs ne le genent pas, on voit les justiciables ne demander et recevoir justice qu'avec effroi. Pourquoi n'a-t-on pas les memes inquietudes aupres de nos jugesh C'est qu'ils sont rompus aux affaires, qu'ils ont des lumieres, des connaissances, et qu'ils se croient sans cesse obliges de consulter celles des autres. (11) The image of arbitrariness thus presented predates the concept of Kadijustiz, coined by Richard Schmidt and popularized by Max Weber, by about a century. (12) This similar view of Islamic law emerging as early as Portalis is telling about the construction of the Orient in Europe, with the pasha serving as an early form of the trope of "oriental despotism." But it also ignores the functional institutional advance initiated by jurists from the eleventh through thirteenth centuries toward greater legal security, which belies Portalis's assertions of arbitrariness.

    Contrary to the prevalent treatment of taqlid and ijtihad as binaries, I contend that one should think of the two terms as falling on a continuum of legal method. On one end of the continuum lies interpretive freedom (ijtihad), whose most unqualified type is often known in the sources of the postformative period as "absolute" (mutlaq) or "independent" (mustaqill). (13) Under this legal regime, which we should think of as an ideal type, judges and muftis--in theory--had no restrictions, either methodological or doctrinal, on their interpretations. In reality, ijtihadic legal interpretation was circumscribed even in the formative period by juristic opinion and judicial practice, both of which informed the jurists' hermeneutic efforts and exerted pressure on them not to depart from existing laws or the views of their predecessors. This resistance to legal change is common in legal systems, in which the stability of legal rules (or what Alan Watson terms "legal inertia") is highly valued. (14) On the other end of the continuum one finds taqlid (lit. imitation), the adhering to an existing legal opinion. Generally speaking, under the regime of taqlid (more on this below), jurists were not expected--again, in theory--to depart from the established legal doctrines of their schools.

    Between these two ends of the continuum there is intra-school ijtihad (often known in the primary sources of the postformative period as ijtihad fi l-madhhab), in which a jurist would examine the scriptural sources directly to formulate an opinion, albeit within the methodological and substantive legal parameters of a school. This type of ijtihad was often relied upon in novel cases that lacked a precedent. Also subsumed under intra-school ijtihad is the process, known as tarjih, of weighing one juristic opinion against another on evidentiary grounds, which assumes both the existence of a recognizable hermeneutic methodology and a body of law. In theory, a jurist applied his school's hermeneutic methodology to determine which view in the plethora of competing doctrines was based on superior evidence. One must caution, however, that jurists often used reasoning that did not necessarily flow from their school's methodology to justify existing laws and, less commonly, to produce new ones. They sometimes invoked legal methodological concepts without observing the rules regulating their operation in legal methodology. (15)

    If we focus on the two ends of the continuum as ideal types, we can equate the absolute taqlid end of the continuum with Watson's legal inertia and the...

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