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The American Journal of Islamic Social Sciences Vol.^ 8,^ No.^ 1,^^1991
Refections
Taqlid and Ijtihad
The Polemics of Ijtihad
From the second hijri century until the present day, the reality, the essence, the rules, the conditions, the premises, the means, and the scope of ijtihad
have remained a source of debate engaging some of the Islamic world's greatest
theologians, scholars of al wiil, and&&: This debate has also been enriched
by proponents of the view that the door of ijtihad was closed and that the fiqh left by the Four Imams obviated the need for any further ijtihad, as
well as by those who claimed that this door was still open and that the existing
fiqh was not sufficient to guide the contemporary Muslim world.
In our own times, attention is now focused on the suitability of the Shari'ah
as an order and a way of life. This new topic of debate, before unknown
among Muslims, emerged after the crushmg defeats experienced by the Muslim
ummah after the First World War, such as the dismantling of the khihfah
and the creation of artificial states ruled from Europe. Many Muslims blamed
Islam and its institutions for their defeat, and soon began to emulate their conquerors. Others, however, had a quite different view: the Muslim ummah experienced these disasters because it had become alienated from the eternal truths of Islam. Thus, what was required was a return to the true Islam and not its wholesale rejection in favor of alien institutions and ideologies. One
fundamental part of this return would have to be the use of ijtihad, for how
else could Muslims incorporate Islamic principles into situations with which they had never had to deal? Muslims who hold the latter view are aware of the fact that they must meet their opponents in the realm of ideas, for it is here that the future course of the ummah will be decided. To be successful, much energy must be expended in scholarship and conceptual thinking, in seeking to understand humanity's place in the divine scheme of existence and what is expected of it, and how this knowledge might be applied by Muslims as they struggle
Tihi J. al 'Alwh- is a mem&r of the Fiqh Academy of the Organization of the Islamic Conference, chairman of the Fiqh Council of North America, and president of the International Institute of Islamic Thought in Herndon, Virginia.
130 The American Journal of Islamic Social Sciences Vol. 8, No. 1, 1991
to bring themselves and their societies unto conformity with the will of Allah (SWT). Without a complete civilizational design, by means of which the ummah may by restored to its former median position and fulfill its role as being a “witness unto nations,” it will never be able to regain its former position or even to make a new beginning.’
Today, the Muslim ummah is in a deplorable state. No longer can it
present itself as having a unique culture, system of values, personality or anything else which makes a civilization distinct from all others, for large- scale borrowing from the West has undermined and distorted all of its inimitable features. It is now a travesty of its former self, and can only manage to perpetuate itself through the production of religious specialists whose academic background is limited to the personal laws of Islam alone. However, there are some signs that change is in the air. This has taken the form of an attempt at revival, or &zwuh, which is striving to raise the
ummah’s consciousness, to outline the features of its character, and to bring
together its past and present so that it can intelligently chart its future course
by way of studying its cultural personality and its civilizational components as reflected in its thought, methodology, sciences, disciplines, aesthetics, and so on. However, none of this activity will be of any use if its end result is something other than a recognition of the fact that there is a crisis in its thought which can only be solved by a restructuring of the ummah’s cultural mold and a reordering of its priorities. The only way for even the first steps to be taken is a coming together of those enlightened and capable Muslims who can see what has to be done. An indispensable tool in this task is the exercise of ijtihad, for it can be historically shown that the Muslim ummah only entered its current crisis after ijtihad fell into disuse and was gradually replaced by taqlid.
The Dynamism of Ijtihad in Restructuring Islamic Methodology (al Minhij]
The study of ijtihad and its principles is one of the pillars of the “Islamization of Knowledge,” and as such comes within the framework of the study of a distinct “Islamic methodology.” It is this methodology which will, if applied, produce a comprehensive and uniquely Islamic understanding of sociological phenomena, their agents, essential elements, and relationships, along with an appreciation of their governing laws and principles. Such a
T h e reference here is to the verse in b m h ul &qumh: “Thus We have made of you a median ummah, that you might be witnesses over all peoples” (2:143).
132 The American Journal of Islamic Social Sciences Vol.^ 8,^ No.^ 1,^1991
As we consider the Islamization of Knowledge to be one of the higher
purposes of Islam, as well as a living and civilizational necessity, the need
for ijtihad becomes obvious. Not only is it required for the creation of an
Islamic methodology, but it also has a pivotal role to play in a Muslim's daily
life, in the formation of a spiritually, mentally, and intellectually balanced Muslim personality which can assume the role of Allah's vicegerent, and pursue the ummah's best interests. Thus its correct exercise, in conformity to the specified conditions, is extremely important.
This illustrates a fundamental difirence between the two types of Muslims
which we see today. One group accepts the viewpoint outlined above, while the other rejects it and calls for the wholesale adoption of Western knowledge. This latter group, frequently referred to^ as reformers, has yet to acquire an appreciation for the differences between Islam and the West, differences that sometimes reach the point of outright contradiction.
As we have noted earlier, the role of ijtihad in freeing the Muslim ummah
from its bondage to the West is primary. It is only through the use of ijtihad that Muslims will be able to construct a new methodological infrastructure capable of replacing the current Western one, one which will allow Muslim scholm to once again base their knowledge and epistemological paradigms
upon the original sources of Islam. The degree to which we can accomplish
this task is directly related to the amount of success we will have in freeing ourselves of Western d~mination.~No efforts in this field will be wasted, for they are investments in the future of Islam, and may eventually provide
solutions to the apparent contradictions which bedevil us today: traditionalism
versus modernism; classical thought versus contemporary thought; the material world versus the afterlife; science versus religion, and others. Many of the current theories dealing with Islamic thought are in need of definition, perspective, and proper points of departure, for without a proper
methodology and a clear overview they appear to be the result of muddled
and opaque thinking. The resulting theories are repeated and restated, and
discussed again and debated, and finally are treated to solutions either imported
from abroad or inherited from the past. Thus, nothing gets settled, solved, or agreed upon, which is certainly an intolerable situation. For Muslims,
ijtihad provides the way out of this morass.
'For a more detailed discussion of the matter, see Islamiuztion of Knowledge: Geneml Principles und ubnk Plan (Herndon, VA: International Institute of Islamic Thought, 1409fl989). 5For the distinction between praiseworthy and blameworthy differences (iwlriGfl, see al ShaTfi'i, A1 Risiiluh ed. m a d M. S W r (Cairo: Al Halabi and Sons, 1940), 560; a 1 Shcfi'i. Jimii'al Ylm, ed. m a d M. S W r , (Cairo: n.d.); and TX J. al 'Alwh-, Adab a 1 IwltitGf fi a 1 I s h (Herndon, VA: International Institute of Islamic Thought, 1987).
T&i J. a1 ‘Alwini Taqlid and Ijtihad^133
A Panoramic Assessment of the
Progression of Ijtihad
In this study, we would like to evaluate previous studies and extract what is useful. Also, we would like to discuss the use of ijtihad from being the preserve of the few to one suited to the needs of all qualified scholars and thinkers in the ummah. This is done in the hopes that it may be the catalyst
needed to help the ummah break through the barriers preventing it fmm creating
its own cultural, scientific, and epistemologicalframeworks and then regaining
its former position in the world community. In classifying previous studies of taqlid and ijtihad, we may say that
they fall into two general categories: 1) Specialized U$il Studies, and 2)
Nonspecialized Studies.
In turn, the first category can be further divided into two additional
categories. The first one consists of comprehensive works on zqzil ulfiqh
in general, meaning those works dealing with source evidence and how legal
rulings are derived from it, and with the status of the mujtuhid or muqullid
who derives such rulings. Regardless of the author’s mudhhab or whether
he wrote in the style of a mutakallim or a f q i h , or in a combination of both,
these works have changed little over the centuries. Nearly every work contains a book, a chapter, or a subchapter on ijtihad and taqlid. The topics discussed
nearly always include the reality (haqiquh) of ijtihad, the different kinds of
ijtihad, the ijtihad of the Prophet (SAAS), whether or not every mujmhid
is right, and similar complicated, technical matters concerning the principles of ijtihad and the way they are applied for obtaining legal rulings. The second one consists of books written specifically on ijtihad. In
classical times, this kind of study closely resembled the type of studies found
in the first category. The main difference, however, is that where the
comprehensiveworks of zqzil ul$qh are brief in their treatment of the subject,
these works explain at length those points which the comprehensive works only summarized, provide instances and examples, and even add new topics such as “Closing the Door of Ijtihad,” “Partial Ijtihad,” “Ijtihad within a
Madhhub,” and so on.
Nonetheless, the two categories are alike in their presentation of ijtihad from a purely descriptive perspective.6This manner of treating ijtihad makes
it a complex, specialized exercise limited and qualified by its means, methods,
and conditions. Thus, it is no longer a creative and contemplative endeavor,
%bd al Ralynin al Mal@lrlwi, Tmhil al wid ilii ‘Ilma1 U$, (Cairo: Mus@fi al B b i ,
‘See A1 Shaykh al MuFafi, Bughyat al M@Gj (Cairo, Maktabah al A z f i , n.d.), no.
n.d.), 8-9.
1442, p. 4.
Tihha J. al 'AlwhaN Taqlid and Ijtihad 135
now find themselves hard-pressed to conceal the shallowness of their thought,
or the crisis of their identities, and so have started to use other means and
terminologies, both contemporary and classical, to accomplish their goal. Such writings are unmistakable for the kind of symbolism they employ and the folly. they espouse. The second group consists of works by Muslims who believe that the ummah is passing through a period of intellectual crisis which can only be ended by the recovery of its pristine character, the reform of its inner life, the reshaping of its mentality, and the building up of its individuality. In their opinion, the ummah reached its present deplorable state only after its members had stopped making relevant and intelligent contributions to its daily life.
This group also eventually comes around to the same discussion mentioned
above as engaging the first group of writers, but only after passing through
the following steps: the rationalists (uhl ul ru'i) versus the traditionists (ahl
ul w i t h ) , the codification of fiqh-oriented ijtihad, and the history of the
call to end further ijtihad and accept the legal authority of the four Sunni
Imams of fish or taqlid - a truly barren landmark in the ummah's intellectual
life, as well as the starting point of its present intellectual crisis and cultural decay. Then the discussion about the opening and closing of the door of ijtihad begins. Some participants, however, fail to realize that the overall intellectual and cultural climate of the ummah is one matter, and that the discussion of ijtihad's lack of movement in one limited field (i.e. fiqh) among the many fields of knowledge is an entirely different matter. Thus, discussion turns into controversy among those who insist that the door of ijtihad was closed and those who insist that it was not. In my estimation, the majority of those who claim that the door of ijtihad
is closed are in reality pointing to the fact that the ummah's intellectual
contribution to the social sciences has ended, while the second group is coming
from the angle that the collected corpus ofJiqhi literature is still able to address current problems, regardless of whether legal decisions are issued or not. Nonetheless, fiqhi questions are essentially questions about details. Thus, if one scholar refuses or is unable to make a legal decision, another will ~ 8Among the stranger instances of ijtihad undertaken by such writers is their transferral of the day and the duty of the jurnbh prayer to Sunday in Western countries where Sunday is nearly universally a holiday. Likewise, some of these writings have proclaimed that Muslim may now eat pork, for pigs are raised under carefully controlled conditions, whereas during the time of the Prophet they were allowed to run free. Another instance of this type of "ijtihad" is the opinion that polygamy is allowable only for the guardians of orphans, as they are the only ones mentioned specifically in the verse that legislated polygamy. A further instance is the denial of jihad as one of the principles of Islam.
136 The American Journal of Islamic Social Sciences Vol.^ 8,^ No.^ 1,^1991
do so on the basis of earlier$ufiwii, through the application of basic principles,
in consonance with the higher purposes of the Shari‘ah, or on the basis of
analogy (qiyiss). The point is that this is not the matter of contention. Rather,
the crisis is in regad to absolute and unrestricted ijtihad, to open minds,
structured thought, and comprehensive vision, all matters without which the
ummah will be unable to build a viable society or to serve as a “witness
among nations.”
R e g d e s s of its apparent current abeyance, in its strictly legal sense
(i.e., ijtihad being the knowledge of juridical source methodology, the rules
for deriving legal rulings, and the ways of indicating legal preference), the
practice of ijtihad never came to a complete halt. Even in our own time,
fbtiiwii dealing with legal problems continue to be issued. However, this does
not balance out the occurrence, from a very early date, of an unhealthy
intellectual and psychological state of mind, one which did not come about
through a sultan’s decree, government legislation, or the lethargy of one or
more scholars. On the contrary, this situation is the result of several factors,
and as^ the^ crisis worsened its^ ill^ effects spread^ to^ every aspect of life, including
the_fiqhi aspect. As the mujtahid played an essential role in Islamic civilization
and may be regarded as the Muslim version of what the West would call
a “Renaissance Man,” the ummah’s scrutiny of the role of fiqh and of the
fuqahii’ in its crisis are perfectly legitimate and understandable.
The Traditional Role of the Faqih
Historically, the&& ’formed a major pillar of Islamic society. Trained
as scholars of the Qur’an and the Sunnah so that they could use ijtihad when
dealing with religious and temporal problems, such people were the ummah’s
fundamental guarantee that its leaders would not lead it astray. In a sense,
these people were the equivalent of such major contemporary institutions
as the Congress and the Senate, and performed the check and balance function
of a federal judiciary system vis-&is the govemment’s executive and legislative
wings. Moreover, their voice was always a moral force for enjoining good
and forbidding evil.
The traditional scholar never waited for someone to come along and
“award” him a degree that qualified him for the exercise of ijtihad. On the
contrary, this status was achieved by dint of his own study, travels, instruction,
and by keeping the company of the learned. When he judged himself ready,
he would choose a pillar in the mosque, face the public, and begin his
discourses. His resulting success or failure depended upon his responses to
the questions of other scholars and of his students, the use of his knowledge
and ability in the field of ijtihad and the solving of new problems, and the
138 The American Journal of Islamic Social Sciences Vol. 8, No. 1, 1991
and articles dealing with taqlid and ijtihad, in addition to numerous chapters
dealing with these subjects in books of fiqh, al zqiil, and the history of Islamic
law. At the end of this work, I shall provide the reader with a complete bibliography of these works. * Despite the number and variety of these studies, I have noticed that almost all of them follow the same path laid down in the fourth and fifth hijri centuries by the authors of the classical compendiums of ujiil al$qh. Moreover, these studies confine themselves to the same issues tackled by classical scholars, such as the meaning of ijtihad and taqlid, the categories of ijtihad and how they are divided, the relation of ijtihad and taqlid to certain other related concepts, the essential conditions for the exercise of ijtihad, how at present there are no rnujtahidiin, how ijtihad has become
fragmented, correct and incorrect ijtihad, and so on. At most, some of these
studies may differ in their inclusion of other topics, possibly because of their authors' viewpoint, or because they include different and varied examples of ijtihad. Thus, the majority of these studies proceed along nearly the same lines, differing only in unessential matters, such as one might elaborate on what
others merely indicate, or a different ordering of subjects. However, I have
also noticed that many important subjects have been either entirely ignored or only mentioned in passing. Among the most relevant of these subjects are the following: a) The historical background to ijtihad and taqlid. This background is essential for an understanding of many of the issues related to these two question^,^ such as the division between intellectual and political authority in the history of Islam and its positive and negative effects on ijtihad and taqlid; the advent of sects and doctrinal divisions (i.e., the Jabriyah, the Qadariyah, the Mu'tazilah, and others) and their positive and negative effects on ijtihad and taqlid; the growth of a Muslim public character incorporating feelings of alienation and the slave mentality due to distortions in the understanding of religion, the world, humanity, shiirii, authority, the head of state, relations between authority and citizenry, internal strife, the appearance of heretical thought and politics, and the effects of all this on ijtihad and taqlid; and the lack of those institutions necessary for the establishment of the requisite methodological consciousness, which caused the consequent reliance on individual undertakings.
T h i s will be published in the forthcoming issues of M I S S. There is no denying that some of the m e n t studies of ijtihad and taqlid presented tentative discussions of these issues inasmuch as they at least indicated that they were important. But the fact remains that such indications, though certainly important, did no more than present these issues in a scattered and fragmentary manner. Thus, they were not placed within the framework of an overall scheme for the study of taqlid and ijtihad, or for understanding, in a renewed and comprehensive way, the core^ issues involved in such a study.
Taihi J. al ‘Alwini Taqlid and Ijtihad 139
b) The connection between ijtihad and the higher objectives (rnaqQid) of the Shari‘ah. Many of these studies have failed to illustrate either the affinity between ijtihad and the maq3id of the Shari’ah, or the antipathy between taqlid and the maqisid. The only exceptions have been works dealing exclusively with the question of the maqiisid in an attempt to bring attention to the essential connection between ijtihad in its general sense and ijtihad as related to the -@id of the Shari’ah?O c) The effect of multiple trends in ijtihad, how this effects the understanding of the issues of the “Oneness of Truth, Reality, and What is Correct” are understood, the clarification of the true parameters of the controversy regarding this issue, and its important intellectual, psychological, and educational consequences on the Muslim mind. Moreover, this subject requires minute attention, for it deals with the most important factors leading to the realization of actual multiplicity in ijtihad, for its clarification of the truth behind differences of opinion (ikhtibfi, and for its task of distinguishing between two different kinds of ikhtiliJ i.e., differences of diversity and differences of contradiction, or in other words, praiseworthy and permitted differences, and blameworthy and prohibited differences. Likewise, most studies dealing with ijtihad and taqlid do not pay enough attention to the question of the “Oneness of the Truth” and differences among the scholars as to exactly what this means and entails. Also missing is any concern for the potentially dangerous effects of not placing this issue in its proper perspective in order to spare the ummah any damaging negative thinking. d) None of these books have presented a realistic and practical solution to the present crisis of ijtihad, or have dealt with the possibilities of “group” ijtihad or the establishment of research institutions and academic organizations to support such an undertaking. The absence of any solution has left the field wide open for those who wish to create and then impose man-made legislation derived from their own understanding, which may or may not include the relevant jiqhi literature, on the ummah. e) The question ofjiqh a 1 wiqi‘(real-world fiqh), its contributory factors, and the necessity of linking it with ijtihad has been ignored. As thejiqh a 1 ahkiim was therefore not dealt with in a satisfactory manner, the circumstances surrounding the formation of the ruling in question (i.e., the occurrence itself, the time, the place, and the human element) were overlooked. This, in turn, resulted in many scholars understanding the entire process of loMuwiifaqGta1 Shriribi wa MaqGid a1 Sharibh by Shaykh Muhammad al Taihir ibn al ‘Ashfir, and MaqGid a1 Sharibh by ‘Allil a1 Fisi are two examples of such works. There are several recent dissertations and graduate level studies on the-subject as well, such as a 1 A U f a1 %nnu.zh li a1 Sharibh a1 tslimiyah by Dr. Ykuf al ‘Alim, soon to be published by the International Institute of Islamic Thought, and Naqariycit a1 Maq@id ’ida1 tmiirn a 1 Shritibi by Dr. &mad a1 Ra’isUni, published in Morocco by the International Institute of Islamic Thought.
Taqlid and Ijtihad 141
It seems that neither the strict nor the liberal interpretations of ijtihad
have given us this term’s true meaning. Also, might there not be other
interpretations, such as the one represented by the group which believes that
the Four Imams have sufficiently done this duty, thereby obviating it for the ummah at large? Or what about those who say that the entirefiqhi legacy must be discarded and replaced by a new one not necessarily based upon the traditional principles and guidelines established earlier, or the group which
believes that the reason for the ummah’s downfall is that a gulf has opened
up between it and the reality of Islam? This latter group, while well aware of what needs to be done to restore the ummah to its former position in the world community, unfortunately does not have the necessary resources and numbers needed for actually changing the course of events. In addition,
the existing condition of the ummah has been so far removed from the purity
of its original sources, and consequently distorted by secularism, Westernization, and the process of cultural change that no one group alone can do the job. Given all of the above, are there any specific courses of action which will actually contribute to opening the door of ijtihad? Upon reflection, it seems that there are two. These are: a) taking into consideration all of the guidelines, rules, preconditions for the process of ijtihad, along with its higher
purposes (i.e., so entrenching it in the Muslim mind that it becomes the
regulator of every move made by the ummah); and b) the option advocated by the secularists and non-religious Muslims, which is to fling open the door of ijtihad as wide as possible, and interpret ijtihad in such a way that it can be used to justify the results, regardless of whether the rulings were based on traditional $qhi criteria or not. Currently, it seems that this latter group has the upper hand, for it has found many unqualified people willing to issue the desired rulings. There are also some contemporaryfuquhi ’who are more than willing to issue the rulings “requested” by those in authority. There is also a conspicuous absence from the arena of those fuqahii ’ who have for whatever reason chosen to remain aloof and uninvolved, in effect leaving self-proclaimed scholars free to issue their rulings. A final factor is the failure of many contempom~fuquhii ’to provide workable solutions to contemporary problems, due to their incomplete understanding of the issues or their inability to fully realize the significance of their premises and predicates. Thus, many
of the rulings which are issued seem to be more applicable to an earlier
age, a development which only discredits the entire endeavor and the people involved. It is for these reasons that this study will focus on several of the previously ignored issues connected with the practice of ijtihad. The study’s main goals are to place these issues within the overall context of the ijtihad process, to explain why they must be studied, to establish their validity and relevance,
142 The American Journal of Islamic Social Sciences Vol. 8, No. 1, 1991
and to define them. By doing this, the establishment of a contempomy Islamic
methodology based on the classical discipline of juridical source methodology
and fiqh may proceed apace in putting its methodological resources to use
for the treatment of those issues which must be dealt with if the goals are to be realized. Among these issues are the following:
1. The presentation of the Islamic Theory of Knowledge and its most important elements, means, and devices, and the role of each. The formulation of an exact and precise definition of the relationship between revelation ( w 4 y ) and reason, for this will help Muslims solve many of the problems arising from the relationship of knowledge to religion, and of knowledge
to practice. It will also help us understand ijtihad from the
perspective of reality, experience, and practice. The development of an agreed upon system of argument and dialogue, respect and acceptance for differing opinions and
results, and an understanding as to why this is essential if
the scholars are to guide the ummah's footsteps aright.
This article is therefore presented in the spirit of being the first in a series aimed at clarifying the source methodology of fish and the methodology of ijtihad for the contemporary social scientist interested in applying what has been discussed in this paper to the field of Islamizing knowledge in general, and its methodology in particular. It is to be hoped that the methodology for the Islamization of Knowledge will benefit from the resulting definitions, clarifications, and organization of a discipline so that it can one day stand on a solid methodological foundation. Only if this present dream becomes a reality will it become possible for Muslim social scientists to study social phenomenon, with all the attendant diversity and complexity, with an Islamic framework and epistemological paradigm and then begin the process of rebuilding Islamic civilization on the basis of its own understanding of the social sciences. This deconstruction and subsequent reconstruction is what is needed if the Muslim ummah is ever to assume its divinely ordained position as a witness to other nations.
