Rethinking the taqlid-Ijtihad dichotomy: a conceptual-historical approach.

AuthorIbrahim, Ahmed Fekry
PositionEssay

INTRODUCTION

Islamic legal historians have often discussed the terms ijtihad (lit. exerting effort) and taqlid (lit. imitation, following) as diametric concepts, giving the impression that taqlid occurs when there is no ijtihad. This assumption is understandable given the frequent binary portrayal of the two terms in the primary sources. In addition to this dichotomy, a layer of originality was attached to the term ijtihad that was assumed to be absent from its opposite taqlid. (1) While some juristic writing portrayed originality as the basis for the creation of novel legal doctrines, this view was not unchallenged. Some jurists imagined a middle position that involved neither following precedent nor creative hermeneutical engagement.

This "third way" has mostly escaped attention in Western scholarship. Writing about legal doctrine in the eighteenth and nineteenth centuries, Rudolph Peters draws a distinction between taqlid, in which those who are not capable of exercising ijtihad follow a qualified jurist, and ittiba (lit. following) whereby they follow the Quran and Sunna. (2) Wael Hallaq briefly describes the third category as a second type of taqlid, thus dividing taqlid into two categories. The first follows the mujtahid's authority without questioning, and the second indicates loyalty to a madhhab but with full knowledge of the means by which the doctrine was derived. According to Hallaq, the former meaning was the focus of usul al-fiqh discourse, but later jurists tried to disambiguate the two types of taqlid by introducing the term ittiba. (3) Apart from these cursory remarks, there is a virtual absence of scholarship on the middle category ittiba.

This article seeks to investigate the origins of this "third way," which, although it connotes "following," is far from being a type of taqlid in the sense of "slavish imitation" (thus frequently defined). For some jurists it was a form of ijtihad, for others a third category that breaks the binary distinction between taqlid and ijtihad. In the course of my analysis of this intermediate category, I assess all three terms. The first section of this article deals with the late eighth and early ninth centuries and aims to determine which of the three terms was used in a technical manner in early works of substantive law, specifically al-Asl by Muhammad al-Shaybani (d. 189/805), al-Risala and al-Umm by Muhammad b. Idris al-Shafii (d. 204/820), (4) and al-Muwatta by Malik b. Anas (d. 179/795). (5) In the second section I analyze the evolution of the terms' earliest uses after the death of al-Shafii. I discuss the rise of technical meanings for both taqlid and ittiba among the traditionalists and outline three approaches mobilized by post-Ibn Hanbal jurists with regard to the locus of legal authority and jurists' expectations of the level of engagement required of jurists and laypeople in law-making. In the third section I show that the debate over the importance of an intermediary category between the ijtihad-taqlid binary pairing has continued into the modern period, where it is associated with the modern approach to law known as Salafism. (6)

It is essential to my analysis to make a distinction between ideas and methodologies (the ideational level) articulated in these four works and the consistent association of these ideas with specific technical terms (the terminological level). In other words, an idea might exist in legal discourse without being consistently associated with a particular technical term. It is my assumption that once an idea reaches a certain level of maturity, interlocutors often develop a technical term that they can use to express this idea. The shift from an idea expressed by a lay term to a technical term forging its own semantic space, known in the primary sources as istilah, can assist in dating--albeit roughly--certain historical developments. It is unlikely that a specific legal idea can be debated, contested, defended, and refuted without clear technical terms that govern the debate, and it is therefore an asset to put a date to certain terms that were essential to early debates over law-making. (7)

In order to distinguish the legal thinking of these early jurists on the ideational level, as opposed to the terminological level, I pinpoint areas where they diverge or converge in their utilization of the terms under analysis relative to later traditionalists (ashab al-hadith) such as Ahmad b. Hanbal (d. 241/855). Such an approach can help us guard against conceptual back-projections, i.e., packing technical meanings into fluid nontechnical terms. I attempt to identify when the terms discussed in this article were in common use and whether or not they were used consistently. (8)

Before I start my analysis, a brief word about the ambiguity of the term ijtihad is in order. Its basic linguistic meaning is exerting effort; the technical meaning adds to effort the pursuit of probable legal rules by way of reflection {nazar). (9) This narrow, technical definition of ijtihad can be found in al-Shafii's use of ijtihad as a synonym for analogy (qiyas), in which both effort and reflection are required. Ijtihad does not occur in cases of consensus, or when the texts are so clear that they do not require reflection (apodictic rulings, al-ahkam al-qatiyya). (10) Since reflection occurs only with unclear textual sources, ijtihad is, by definition, non-apodictic (ianni). (11)

I contend that although an early version of Ibn Hanbal's dislike of following precedent can be found in the works of al-Shaybanl and al-Shafii, there was no technical term available to articulate such opposition. The lack of a conceptual distinction between following precedent and following after verification indicates that these ideas were then neither fully mature nor needed in polemics. Only later in the ninth century did a conceptual transformation to create an alternative to following precedent and to counter the shift of authority from the sources of law to individual jurists emerge; in this effort, two main approaches were taken. The first reduced ijtihad to its pure linguistic sense of effort and de-emphasized its technical meaning of reflection. It was argued that ijtihad was so easy to attain that every individual, regardless of background knowledge, could exert effort to reach God's law. The second approach did not treat ijtihad and taqlid as dichotomies. Its proponents argued that the authority for supporting a given rule should be the textual sources on which the jurist relies, not the jurist himself. In their view, it was possible for laypeople to avoid following a view without evidence. They made the layperson responsible for inquiring about the evidence (hujja) for a fatwa before following it, calling this intermediate category ittiha. An ideational, albeit not terminological, ancestor of this process of verification of legal rules can be found in the work of al-Shaybani and al-Shafii.

Both approaches, which emerged around the middle of the ninth century in traditionalist circles, were designed to shift the locus of authority from jurists to the text, with one producing the distinction between taqlid (henceforth, precedent-following) and ittiba (henceforth, verifiable-following). One may think of ittiba as an ideational relative of tahqiq, which Dimitri Gutas translates as "verification," as giving the "evidential grounds (dalil) of a scientific proposition." (12) In the realm of law ittiba refers to the verification of the evidentiary grounds of a legal rule, whether performed by a jurist or a layperson. These three categories (ijtihad, taqlid, ittiba) should be seen as ideal-types, as there was sometimes considerable overlap between those who promoted ijtihad even for the laity and those who emphasized ittiba in lieu of ijtihad. Even the terms ittiba and ijtihad themselves were occasionally treated synonymously by some jurists.

  1. THE LATE EIGHTH TO EARLY NINTH CENTURY

    There was much overlap and intersection among several terms--ray, ijtihad, qiyas, and istihsan--until the end of the eighth century, when the split between proponents of personal sonal reasoning (ashab al-ray) and traditionalists (ashab al-hadith) took place. (13) Christopher Melchert places the split roughly at the death of Abu Yusuf in 182/798, arguing that the traditionalist jurists of Baghdad were alarmed by the proponents of ray during the 180s (796-805 C.E.). According to Melchert, Ibn Hanbal's decision to stop hearing hadith from Abu Yusuf must have been occasioned by the doctrine of the createdness of the Quran, which was promulgated by Abu Yusuf's Hanafi contemporaries, including Bishr al-Marisi (d. 218/833). (14) The view that strong opposition to personal discretion (ray) did not emerge until the end of the eighth century or beginning of the ninth century can also be found in Behnam Sadeghi's work on al-Shaybani's Kitab al-Athar. Sadeghi argues that al-Shaybani quoted a Prophetic tradition and then went against it without trying to harmonize it with his own view to justify the contradiction, suggesting that he was not taking precautions against the traditionalists. (15) The observations of both Melchert and Sadeghi will be confirmed by my conceptual-historical approach, as will be seen.

    I start with Malik's Muwatta, where the q-l-d stem was used dozens of times in a technical, but non-legal sense, e.g., in the sense of placing something (usually a piece of cloth) around the necks of sacrificial animals during the pilgrimage to distinguish them from other animals (taqlid al-hadi). (16) The term ittiba and its derivatives did not appear in a technical sense, (17) but ijtihad and its derivatives appear to have been used by Malik in the sense of exerting effort in matters for which there are no scriptural sources to reach a legal rule. (18) I did not find the term tahakkum (arbitrariness) while ray (both terms being the ideational ancestors of taqlid, ijtihad, and ittiba)...

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