Legal Reform in the Muslim World: The Anatomy of a Scholarly Dispute in the 19th and the Early 20th Centuries on the Usage of Ijtihad as a Legal Tool

l~his ground-brea.l)ing new

. . that Ijtihad, although long em]:>.}]·!W· ~iZed'. 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

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LEGAL REFO'RlVt··INlTHE MUSLIM WORLti::·

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

1996

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I I i I I I , i I

~'BRAI=l~ OCl1 61996

'~afl~ 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 ijtihad as a legal tool / Muneer Goolam Fareed.

p. cm. Includes bibliographical references and index. ISBN 1-57292-002-5 (paper: alk. paper). -- ISBN 1-57292-003-3

(cloth: alk. paper) 1. Islamic law--Interpretation and construction--History. 2. Islamic law--History. I. Title. LAW <ISLAM 7 Fareed 1996> 340.5'9'09--dc20 %-13518

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PREFACE iii

CHAPTER

ONE. INTRODUCTION 1

CONTENTS

TWO .. LEGAL THEORY AND IJTlHAD 19

THREE. IJTIHAD AND THE MODERNISTS 51

FOUR. THE SALAFIYY A 79

FIVE. THE ISLAMISTS 105

SIX. THE REGIMEN OF TAQLID 125

SEVEN. CONCLUSION 155

BIBLIOGRAPHY 163

INDEX 169

; PREFACE

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

proponents of taqud to the calls for ijtihiUJ, it attempts, fIrstly, to unravel the

various academic perspectives to this debate, and searches secondly, for an

explanation as to why such debates persist, to this day, in some parts of the

Muslim world but not in others. Equally important to this study are the less

obvious personal and social factors that predictably influence debates such as this .

one; in this case, the participants' views and opinions are see~ to be conditioned

as much by a struggle for power and the eventual leadership of the community as

they were by the historical and acadernic merits of the arguments.

This particular study, its historical investigations notwithstanding, leans less

towards the perspective of the social scientist than it does towards the humanities :

or the human sciences. It is history to the extent that it attempts to explain through

what Weingartner calls" empathic understanding (Verstehen)", the actions of those

whose views are examined herein, positing, as any good historical work would,

that the subjects of the inquiry, had puxposes when they acted. It is said that to ,

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 '

they act; they have motives and intentions; they make plans, and thus their actions I

are in part determined by some goal they seek to achieve in the future.,,1 But I

unlike the historian who concerns himself, in the main, with particular events in i

history and- "their particular concatenations of citcumstances and personalities",

this study focuses less on past events and more on how a single idea transformed !

such events and was, in tum, transformed by them. The idea in this case, ijtihiid,

is essentially religious and thus sacred, but it is invoked by Muslims, by humans,

that is, who reflect all of the ambiguities of the human experience and above all,

of their language, their means of communicating, of saying as well as of writing.

In tracking their usage of the term ijtihiid, for instance, this study, in effect,

tracks the evolution of but one single word, the saussurian signifIed if you will;

IRudolph H. Weingartner, Undergraduate Education: Goals and Means (New York: Macmillan, 1992)

Preface v

but instead of yielding one common defInition, ijtihad appears much like the

proverbial moving target, showing once again, that language, far from being a neat

package of signifiers and corresponding signifIeds is more correCtly described as

a limitless interaction of both the above with no obvious end-point. This-is

primarily why I make no attempt herein to "resolve" the debate over 'the nature

or the genesis of ijithiid; if anything, this study further confIrms that words cannot

be construed as being frozen in any given spatio-temporal frame. Attempting

therefore, to salvage a positive meaning of trans-historical proportions for any

single idea merely underscore~ the "fragmentary, heterogenous and plural character

of reality. ,,2 That some might argue,puts this work within the purview of a post­

modem inquiry for it eschews the modernist preoccupation of determining the

essential nature of stuff? Be that as it may, I for one, fmd this presumption of-a

center, this search for some form of ontological hierarchy, problematic; this study

thus avoids the conundrum of seeking out origins, truth and presence?4

2Ronald McKinney, "Toward a Revolution of the Moderirlst/Postmodernist Debate". Philosophy Today 30 (1986) 234-45.

3David Griffm, "Introduction": SUNY Series in Constructive Postmodem Thought xi.

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 ways, some contradictory to others. In artistic and literary circles, for example, 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 Griffin (Ibid., xii) points out, Post-modem architecture did not quite follow the same trends:

In some circles the term postmodern is used in reference to that potpourri of ideas and syste~ so~etiiries called new ag~ metaphysics, although many of these ideas and systems are more premodern than postmodem ... Closely related to literary-artistic postmodemism is a philosophical postmodemism inspired variously by pragmatism, physicalism, Ludwig Wittgenstein, Martin Heidegger, and Jacques Derrida and other recent French thinkers. By the use of terms that arise out of particular segments of this

I. i .. "

l: "

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.

movement, it can be called deconstructive or eliminative postmodernism. It overcomes the modem worldview thro~gh an 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.

CHAPTER ONE

INTRODUCTION

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 instance, during the early years of the First World War, Herbert Kitchener, the

IGeorge Curzon, Persia and the Persian Question (London: Frank Cass, 1966),3-4.

2 Introducti~n

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

Her Majesty's service.2

Muslim countries were admittedly, not singled out because of thejr

religious persuasion, for colonialism was primarily a commercial venture, but su¢h

ancient rivalries as did exist between Islam and the West certainly helped assuage

any misgivings the latter may have had about the morality of its actions.

Christians in the West, Norman Daniels tells us, and particularly those in the

missionary lobby "rejoiced in the humiliation of Islam by technological superiority

and (were) convinced that the triumph of colonialism was the vindication of

Christianity:13 The Islamic communities offered little resistance: their worseniq.g

economy thwarted all efforts at countering colonialist designs militarily, and tlile

political strife so endemic to their history destroyed what remained of Muslim

morale. These erstwhile rulers of the globe were in no position to defend

themselves, much less shore up the last vestige of their political authority, the

ailing Ottoman Khiliifa. "For centuries past", Bernard Lewis tells us, "the Ottoman

sultanate had been the leading power of Islam, representing it in the millennilal

conflict with its Western Christian neighbors." But

The real power of Islam in relation to Europe had, in many respects, declined. The advance from eastern Europe across the steppes, from western Europe across the oceans, threatened to enclose the Islamic heartlands in a pincer grip . . . The Muslim world was also falling behind Europe economically, notably in the mobilization and deployment of economic power. The rise of mercantilism in the West helped European states and companies to achieve a level of commercial organization and concentration

2David Fromkin, A Peace to End All Peace: The Fall oj the Ottomf-n Empire and the Creation of the Modern Middle East (New York: Avon BooIfs, 1989) 96-105. .

!

3Norman Daniel, Islam and the West: The Making of an Image. (Oxfo~d: One World Publications, 1993) 326 I

Chapter One 3

unknown in the Islamic lands.4

Such losses were undoubtedly devastating to a once mighty empire that,

for so long, had controlled others but was itself subsequently, reduced to no more

than a motley of colonial outposts, each struggling for its own independence. But

it was nonetheless, Islam's intellectual heritage, its weltanschauung, that regressed'

most: the idealism of the Enlightenment, its belief in the power of human reason,

and its secular, humanistic philosophy rendered much of the ancient paradigms of

Muslim thought obsolete. As Ira LapidUS explains, in the EUropean scheme of·

things as opposed to the Muslim, "political and economic institutions were fully

differentiated from religious norms:

the cultivation of scientific and of humanistic mentalities relegated religion to a narrowed sphere of worship and communal activities. The scientific mentality "disenchanted," demystified the world of nature and of human relations. Nature, society, and even the human personality, became accessible to rational understanding and to the conviction that they could be modified by conscious intervention.s

Muslim leaders were quite disturbed, to say the least, at what they Saw as

the almost inexorable abjurement of Islam's intellectual and cultUral. structures to

western thought. The political elite had additional concems: in India for instance

British control deprived them of "political power, generated economic changes that

weakened the grip of Muslim landlords on rural revenues, and threatened to

undermine Muslim culture."6

These setbacks were admittedly, not without precedent: the 13th century

Mongol invasions, for example, were arguably more devastating, at least in terms

4Bemard Lewis, Islam and the West (Oxford: Oxford University Press, 1993) 19

SIra Lapidus, A History of Islamic Societies (Cambridge: Cambridge University Press, 1988).

6Lapidus, A History of the Islamic Peoples, 560.

j:

" !r 1. I'

" :l! I'

4 Introduction

of loss of life and property.7 But the European incursion was unique for the

challenge it posed to the intellectual tradition of Islam, to its culture, and most

importantly, to the sharI' ah or the sacred law. In much of the Muslim world the

latter lost influence: in North Africa for example, Muslims found themselves

governed almost entirely by the French civil and penal code,S while in South Ea$t

Asia, the Shafiite legal code had all but vanished, replaced, in large measure, by,

the Dutch and British legal systems.9 Worst off probably, were those in Turkey,

the erstwhile seat of the caliphate, where the sacred law was unceremoniously

tossed out and replaced with the Swiss Code.1o

Muslims quickly realized, that without a critical reappraisal of its role vis­

a-vis modem society, the sharl'ah was clearly at risk of becoming permanentlJY

marginalised in their societies. A broad assortment of Muslim scholars, religious

leaders and liberal thinkers thus arose, to implement the twin ideas of restoriqg

Islamic Law to its erstwhile prominence in the Muslim world and preserving the

moral and cultural heritage of its past. Whilst the objectives were, in the main,

7This period in Muslim history is well documented in G.E.von Grunebaum, Medieval Islam (Chicago, 1953). The Cambridge History of Iran, Iv ~, J:A. Boyle, Cambridge, 1968 provides a good description of the Mongpi mvaslon of Iran and the effects of the scorched earth policy which it pursued fpr aImost a century. ' ;

, 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 ~hra au ;rv.taghrib en 1959, Dle Welt des Islams. vol. vi (1961), pp. 25-55, is an informative tract on the organization of justice in North Africa.

. ~uch of the info~ation on S.E. Asia is related to the two predominantly 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) .. '

l&rurkey had in fact begun with the reform of the shari' ah whilst Ee 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 Ottoman governments.

Chapter, One 5

clear to these scholars the methodology for accomplishing them seemed less so:

for some, the situation,demanded a virtual restructuring of the sacred Law in light

of the changes that the community had hitherto undergone, but for others the need

was to preserve rather than reform what remained of that legacy. Much of the

legal history of this period, as will be shown hereafter, has been a struggle

between these two perspectives; the former hoping to fulfil its objectives through

ijtihiid and the latter preferring the ~e1ative security of taqlUl. 1I

The proponents of ijtihiid argued that the formation of the sacred Law was

itself accomplished through the use of this legal mechanism: the latter, they

claimed, created a thoroughgoing legal system out of what previously consisted

of no more than a motley of do's and don't's. This was precisely the challenge

Islam faced in the contemporary world: this time round however, the need was to

transform the classical legal heritage into a modem system that would at once

reflect the teachings of the sacred sources, the Qur'an and the sunna, and yet be

in step with modem exigencies.

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

al-madhanib,al-arba'a): Abu ~a (d.767), Miilik (d.795),Shifi '1 (d.819), and

A1pnad b. Ibn I;Ianbal (d.855).The 'ulami'of the lOth century, c.e.; anxious to

avoid a repeat of the confusion engendered by the untrammelled speculations of

the independent jurists of the 7th and 8th centuries, c.e., "promillgated moral and

spiritual qualifications for ijtihiid so immaculate and rigorous and set standards so

high that they were almost impossible to fulfil."12 The Law, these scholars

maintained, had already been adequately expounded by the eponyms; Muslims,

thereafter, simply had to follow the school of their choice whiie, scholars

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 Islamic Movement: The Dilemma of Tajdidization (Binghamton: SUNY, 1991)

12pazlur Rahman, Islam (Chicago: University of Chicago Press, 1979) 78

1

6 Introducti~n

deliberated over the pronouncements of its imams, providing a commentary

(sharlz) where needed or glossing over the occasional inconsistency or error ~at

might surface. The reformists charged that in addition to discouraging scholarshlp

such an approach also had the aggregate effect of replacing the individual's duly

to determine the law for himself by way of ijtihiid with the collective burden of

taqud.

The foregoing perception of Muslim legal history found favor even among

modem western scholars: Joseph Schacht, for one, seems to have accepted, prima

facie, the argument that by the beginning of the fourth century of the Islamic

calendar (about 900 c.e.),

the point had been reached when the scholars of all !;jchools felt that all essential questions had been thoroughly discussed and fInally settled, and a consensus gradually established itself to the effect that from that time onwards no one might be deemed to have the necessary qualifIcations for indep~ndent reasoning in law, and that all future activity would have to be confined to the explanation, application and, at the most, interpretation of the doctrine as it had been laid down once and for all. 13

Schacht's view enjoys wide acceptance to this day bu~ it is nonetheless, not

without criticism: in his opus, The Rise of Colleges, Ge<>rge Makdisi, for instance,

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

that he exercise

his own ijtihQd, his private judgement, in arriving at authoritative answers to questions addressed to him, answers based on the sources of the law. In doing so, he had to avoid taqlUi, servile imitation of other jurisconsults. Furthermore, in the best tradition of ijtihad, he had to act independently of all outside fiorces,

'3Joseph Schacht, An Introduction to Islamic Law. (Oxford: Oxfo~d University Press, 1964) 70

Chapter One 7

including his own madhhab, and especially the sovereign power.14

In a more comprehensive rebuttal, Wael Hallaq asserted that scholars, particularly

in the West, accept the classical thesis at face value mainly because it is congruous with their own view of Islamic law's inherent inflexibility. But Hallaq

~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

are entirely baseless and inaccurate ... the gate of ijtihad was not closed in

theory nor in practice."'s

It was not the purpose' of this study to confIrm or deny one or more of the

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

compare such perceptions to those that existed in -early Islam. A careful study of

the formative period of the sacred Law, suggested to me that both views suffer

certain inaccuraCies. For instance, the view that ijtihiid, as a legal concept, was

integral to the juridical activities of the early community is not substantiated by

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

Prophet, (that of Mu 'adh b. Jabal, being the most prominent) ijtihQd cannot, be

said to have existed as a distinctly recognized legal mechanism in early Islam, at

14George, Makdisi, The Rise of Colleges: Institutions of Learning in Islam and the West (Edinburgh: Edinburgh University Press, 1981) 199

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 Appropriation of Reality" in Islamic Law (London: Routledge, 1988) 250, calls this a "metaphysical,and ahistorical" characterization of the Islamic intellectual legacy,

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 projects for the renewal of an original ideal without due recognition of the facts of life.

8 Introduction I

least not until its appearance in the legal theory of Shifi '1 16 But I· h . ,as ope to

show presently, even for Shafi'l, ijtihad was neither synonymous to individ~al

speculation nor an instrument of reform; it was simply another word for . - . qzyas, I.e.,

the individual reasoning (ra'y) of a jurist. 17 To that extent both Makdisi and Hal~aq

are quite correct in claiming that ijithad continues to be used to this day, bylall

judges and jurisconsults who cannot find appropriate text or juristic precedent10n

any given case. But the foregoing is certainly far removed from the ijtihiid that

these scholars, and indeed Muslim reformers, in general, have envisioned. If

anything, the ijtihad that the latter particularly, speak so glowingly of is no more.

than an amorphous rhetorical device that not only promises delivery of the mIlch

sought after reform (tajazd) of Islamic Law, but does so in a package said to hlilve

been selected by the Prophet himself.

Apart from.its rather tenuous relationship with the classical usage. the

more recent references to ijtihad point to anyone of at least three different

. 16In addition to. the Qadi"th of ~u 'adh, the ~ollowing traditions, taken only from the most authentic wor~, proVide further eVidence of the multifarious Ul'les of the term by the Prophet himself: ' .

a. The ijtiJ:iid of a jud~e (qat/z):(inna al-q(i¢i idhii ijtahada ... ) AI-Bukhiii AI-SaQil} : Kztiib al-l'ti§am(1989:14) ..,

?: Thhadae rulher of the ~lim co~~ty and his ijtihiid: (idha luzkama al-lUifcim fa vta t umma ll§aoafalahu aJran) (1989:31)

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

T?e term also app~a~ in the title of Shaiban?s work, Ijtihad al-Ra'y,~' .e. the exercise of personal oplmon; but according to Schacht "this m . f ... -.J . d .. . eanmg 0 Vtz u IS se~on ary, and Its ongmal meaning 'discretion, estimate: has been preserved in 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 is~e?Iat~~sco~lstthen.cy and gUIded by the parallel of an existing institution. or

eclslon. ee, m IS regard, Schacht, Introduction, 37. .

Chapter One 9

contexts: firstly, ijtihiid, which is synonymous to tal/iq or the process of seeking

a ruling outside the boundaries of a single school of law. Traditionally, after the.

alleged closing of the doors of ijtlhad in the 10th century, the legal judgements

(JaMa, pI. tatawa) of the jurists were restricted to particular schools of law or

madhanib, and this was called taqud. Ijtihad, in this context, refers to

transcending the confmes of any given school, and searching instead,in anyone

of the four madhanib. Secondly, ijtihiid refers to the search for a ruling in the

Qur'an and thehadlth traditions instead of in the pronouncements of the

madhCihib. This last is someti~es used together with the rulings of the madhanib

to search in all four of them--or more· if one includes the unorthodox schools of

law--for a ruling that is closest in letter to the sacred sources. Thirdly, ijtihad may

refer to the effort at reconciling the sacred Law to modem, mainly western

libertarian values. In the chapters ahead I will be examining each of these

interpretations more closely, but first, a word about taqud.

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

interpret the sacred law. The reformists however, f~lt that the law had in fact,

suffered irreparable harm in the hands of this "caste which monopolized the

explanation of religion, claiming that it alone had the right to speak in the ~e 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

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',

particularly in the Middle East but not before some opposition thereto was

convincingly placated. Thus, when Mu§tapha Marighl, one time rector of the

Azhar University in Egypt, called for ijtilUid he was firmly rebutted by 'Abd a1-

Ralpnin 'AfiSh, a leading scholar and muftI of the Azhar. The latter wamed that

18John Donohue, and John Esposito, eds. Islam in Transition: Muslim Perspectives. (New York: Oxford University Press, 1992) 161

1.

1 I! '.

I . I "

Ii 10 lntroductipn

this action was tantamount to opening a door of evil (sharr) whose closure in tlhe

future will be an almost impossible task. 19 But in general, the affmity to taqrd

was neither deep nor sustained and the overwhelming majority of the religidus

scholars of that region added their voices to the calls for ijtihiid and tlhe I

condenmation of taqud.

Contrariwise, their colleagues in the Indian subcontinent chose to defepd • I

the regimen of taqud from the outset, as indeed, .they stilI" do to this day. Their

efforts have consequently, elevated this concept to the status of dogma, thus

making it the distinguishing,feature of Muslim orthodoxy in India and Pakistan.

That the 'ulama' of the Middle East took the opposite route from the one abclVe

is, to a large extent, due to the efforts of the 19th century reformer, Jamal al-Dm

Afglianl. Afghinl (d.1897), the intellectual mentor of many in the refotIn

movement, though an 'iilim himself, was nonetheless a strident critic of the '!lId

intellectual order, and particularly, the regimen of taqTId. His appeals to ijti/4iid

were not just a means to legal reform per se, but rather, an important elemen~ in

his overall efforts to raise the moral and intellectual standards of the Muslims" as

well . as confront the threat of Western expansionism. His successors reacted

variously to this package of reforms: some focused on its socio-politiCal

dimensions, others on its acadernic implications and others still, on the pur~ly

juridical applications thereof.

Afghini's philosophy was disseminated primarily by his celebrated disciple

and one-time Grand Mufti of Egypt, MuQammad, 'Abduh, who, thanks in large !

measure to his vocation and training, was able to present his case with more ri~or

and accuracy than his master. His assault on taqud consequently, is comprehens~ve

and features even in his polernics on Muslim dogma, where, for example, I he

attempts to discredit taqTId by equating it to the heresies of pre-Islamic Ara'ia.

Much like his Indo-Pakistani colleagues, 'Abduh thus, raised the practice of taqud ..

19' Abd al-Ra1;unin 'Allsh, Bayan Ii al-Nii"s wa Taqrlr /jaqaiq bi al-Bur¥n (Cairo: Matba 'at Sabib, 1928)3 !

Chapter One 11

beyond mere law, to the level of dogma, but for him, far from being a means of

preserving the Islamic heritage, taqlUl was an invidious innovation (bid' ~h) in. the

faith, much removed from the spirit of Islam, and closer to idolatry (shirk). More

importantly however, ijtihiid for him, was less a way of returning to theological

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

publications and those of his proteges, 'Abduh successfully imparted many of his

reformist ideas, including those on ijtihiid and taqud, to the Muslim intelligentsia

at large. His views subsequently influenced the three major expressions of reform

that emerged in the Middle ,East in the 19th and early 20th centunes: the

Salafiyya, the al-Ikhwan al-Muslimiin or the Muslim' Brotherhood and the

Modernist movement.

Of the three, it is said that the Modernists were closest to 'Abduh in spirit

for like him, they too believed that the plight of contemporary Islam. was

precipitated by a failure on the part of Muslim intellectuals to distinguish between

the necessary and the contingent aspects of their tradition. Muslim society, as a

consequence, faced the twin challenges of abandoning blind taqliil, and

incorporating some aspects of the liberal value system into the corpus of the

sacred law. The nature and extent of such an incorporation, however, is what

divided this fraternity. Whilst some advocated a cultural synthesis of Islam and

western liberalism, others called for the bifurcation of politics and religion and the

establishment of nation-states governed by constitutions. Given' the religious

sentiments of the Islamic community however, all proponents of reform were

forced to articulate their thoughts using the classical idiom of Islam's mtellectual

heritage. Ijtihiid, some modernists discovered, was ideally suited to this end for

it provided the flexibility needed for an undertaking such as theirs and was native

to Islam to boot.

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,

trace their thoughts to the doctrinaire traditionists of early Islam. Known variously

12 Introducron

as the Ahle-lJadUh (mainly in the Indo-Pakistani subcontinent) and i the

Salajfyya/Wahhiibl movement (in the Arabian peninsula) this group's rejecti0f of

taqlld was based on reasons that were theological more than legal. For! the

Salafiyya, taqlld, simply put, is tantamount to shirk, or idolatry. The muqallid,

(one who subjects himself to the dictates of the madhanib) in deferring

unquestioningly to one of the eponyms of the schools of l~w, thereby deifies I the

latter and accords him a status reserved for the Qur'an and the teachings of the

Prophet.20

The Salafiyya's indifference to the challenges of modernity and their

aversion to rational discourse in legal hermeneutics is what set them apart from

another strong proponent of ijtihad: the Islamists or more popularly, i the

Fundamentalists. Established initially in Egypt and in Indo-Pakistan as the! al­

Ikhwan al-Muslimiin and the Jamate-Islaml respectively, this movement, throrgh

the creation of numerous satellites, gradually extended its sphere of infludnce

throughout the Muslim world. The leadership of this group comprised not of

'ulama' but of mainly western educated professionals; for instance, Abul 1\ 'la

Maududi, and Hassan al-Banna, the ideologues of the Jamat and the Ikhwan were

trained as journalist and school teacher respectively. Efforts at reifying the

weltanschauung of these thinkers elsewhere (Indonesia is what I examine

hereUnder) created the kind of ideological heterogeneity that seriously questions-

ZIlJ'he Salafiyya also bear a strong resemblance to the Zihirites for, ~ike 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 orthodoxy's schema of the four sources of the law, i.e., the Qur'an, the su~na, 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 I the hermeneutics of the Law. For more information on the Zahirites see Itc Goldziher, The Zahirites; Their Doctrine and their History (LeideIl: Brill, 1 171)

I I I

Chapter One 13

the soundness of applying the term fundamentalist to describe such a complex,

global phenomenon.

Thus, whilst I consider the terms I use herein essential denotative clUsters

that help make my task less problematic, I am aware that such terms, given the

complexities of the discourse they symbolize, often necessitate, exhaustive

analyses of their own. Take for instance, the word modem which features so

prominently in this study: firstly, definitions of this word along with its derivatives

are said to be largely synchronic, shaped that is, differently at different points in

time, without any necessary ~orrelation to historical factors; hence the tendency,

in some circles, to juxtapose, for instance, modernism with modernity. The former,

in this case, is said to refer to the "constituent material elements of the modem

world" and the latter to "the contingent ideological reshaping of human experience

in response to the modem world".21 Then again, for some, both these te~ are

synonymous to the liberal theology of 20th century Protestantism, wpile for others

they constitute no more than the pseudo-scientific Catholic theology that Pope

Pius X roundly condemned in 1907. Also, there is Weber's definition of modem

which is synonymous with rational, and is thus explained as the phenomenon of

proffering rational interpretations to ancient religious beliefs.

Whilst almost all of the foregoing views crystallized within western

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

pervasiveness of western thought among 19th century Muslims as well as an

understatement of the abiding legacy of the Islamic heritage. As Professor w.e. Smith points out, "Never before in human history or evolution has change been

21Bruce Lawrence, Defenders of God: The Fundamentalist Revolt Against the Modern Age (San Francisco: Harper and Row, 1989)

14

so swift, so pervasive, so perspicuous as today",22 and for Islam this has had

special consequences, he notes, perceived by most observers as the "impact" bf

the West, or of the twentieth century, upon Islam, almost as though the latter were

inert. "But Islam, too is a force", he stresses, "one that has been in motion now

for more than thirteen centuries. Upon the modem Muslim and his society thete

is the powerful impact of Islam, from behind . . . as ~ell as the impact of

modernity from the side. ,,23 Fazlur Rahman agrees. "To many observers", he says,

"the history of Islam in modem times is essentially the history of the Weste~

impact on Muslim society, especially since the 13th/19th century. They conceive

Islam to be a semi-inert mass receiving the destructive blows or the formative

influences from the West.,,24 I would add however, that any analysis of Islamic

modernism must not just consider the "powerful impact of Islam from behinp"

as Smith puts it, but must, in fact, begin with the Islamic tradition itself; empha~;is

must thus be placed on the Muslim trying to come to terms with the Modem and

not the latter invading Islamic space.

What then, are the peculiarities of Islamic modernism and how are th~e

manifested in the history of the era under consideration? Firstly, MusUm

modernists were heirs to those reform movements of the 17th and 18th centuries

that strived to purge Islam of the excesses of sUfi' mysticism, the superstition lof

the masses, the skulduggery of their religious leaders and the rejection by so~e,

of the intellectual obscurantism that passed for religious thought. The latter

particularly, according to Rahman, "directly contributed to the intellect1jla1

regeneration of modem Islam."lS The pre-modem Islamic movements, "by th~ir

22Muhammad Iqbal, The Reconstruction of Religious Thought in IsI~m (Lahore: Shah Muhammad Ashraf, 1951) 7 '

23Wilfred C. Smith, Islam in Modern History (Princeton: Princeton University Press, 1977) 4

24Rahman, Islam. 212

2Slbid., 214.

Chapter One 15

rejection of medieval authorities and their insistence on ijtiJuUi--original personal

thought--directly contributed to the intellectual regeneration of Modem Islam.,,26

But the Modernists took the process further:

whereas the earlier movements, while removing authority, offered little new material to be integrated into the Islamic legacy and sought merely to go back to the pristine Islam, leaving the space or field where ijtihiid should actually work necessarily empty, this empty space was now filled in by the intellectual products of the modem civilization.,,27

Defining fundamentalism is no less problematic, for this term, in ~ddition

to being located within the discourse on Islam and the Muslim community is also

invoked more generally, when analyzing the rise of religious movements in, for

instance, Christianity, Judaism or even Hinduism. The Fundamentalism Project of

the American Academy of Arts and Sciences, for example, has based its entire

efforts on the hypothesis "that one can speak responsibly and accurately of "family

resemblances" among disparate movements of religiously ~pired reaction to

aspects of the global processes of modernization and secularization in the

twentieth century.,,28 Bruce Lawrence, in like vein, makes the spirited argument

that "comparison alone reveals what is common, and also what is unique in each

fundamentalist ca~". To do so however, one must not only "displace the

biblicist, Eurocentric notion that fundamentalism is, by nature as well as by origin, .

the special reserve of Protestant Christianity", but also make manifest "which

forces converge under which circumstances to shape various . fundamentalist

groups.29

26lbid., 215.·

271bid., 215.

28James Piscatori, Islamic Fundamentalisms and the Gulf Crisis (American Academy of Arts and Sciences, 1991) x

29Lawrence, Defenders of God, 6

I:ii!' I" ! ,

16 Introductztn

Fundamentalism, according to scholars involved in the Project, is "a

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.

32Lawrence, Defenders of God, 190

33Pauline C. Westerman, "The Modernity of Fundamentalism". In Journal of Religion. 74 (1994) 1

I

r

Chapter One 17

"man over animal, good over evil, piety over impropriety and godliness over

idolatry." 34

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 reflects none~~less, with equal emphasis, the sunni fundamentalist perspective, and not surpnsmgly, for another salient feature of the fundamentalists one that set them at odds with the 'ulama, is their virtual disregard for sectarianism.

-I

., 1 ,

..

CHAPTER TWO

LEGAL THEORY AND UTmAD

How exactly was ijtihad defined in the early centuries of Islam? Was it

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

following:

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.

20

a mustard seed.2 For a legal defmition we tum to Lane's lexicon in which ijtiltiid

is defmed as lithe investigation of the law, or the working out of a solution of I/llY

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

of analogy (qiyas), to the Qur'an and the sunna.3 According to Lane therefore,

ijtihiid and qiyas are not synonymous: the latter is but a !egal device while fue

former is the process within which that device functions. But I hope to sbow

presently that, unlike Lane, many who invoked the term ijtihiid in early Islam as

well as in the period under discussion, regarded it as interchangeable with qiyas.

To add to the confusion, terms such as 'aql, ~nn and ray, to name but a f~w,

have been used in legal and theological works, as synonymous with ijtihad.

Tihinawl, for instance, in his opus, Kitiib ISilaq.at al-Funiin provides the

following definition of ijtihiid:

istifragh al faqm al-wus'a Ii ta~u iann bi ~ukm sharf: the legist's (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 rule.4 .

Ijtihiid therefore, according to the foregoing, is a juristic methodology while ~nn

is the probative value of the yield of that methodology. iann howeverj as

understood in early Islam, also referred to a process of sorts, that is, to the jurist's

use of his unfettered opinion in all matters of the Law. That the latter is neither

the ijtilWd nor the iann that TihinawT has in mind is clear from the following:

2Alpnad b. MuI;1ammad AI-FayUmi, AI-M4bQll AI-Muneer, 1901 ed. :The example therein reads: yuqiil: ajtahidu.fi~ml ~jr al-rQlla, wa la yuqiil: ajtahidu Ii ~ml khardala. ~

3Edward W. Lane, Arabic-English Lexicon, 1984 ed.

4Muhammad h. 'Ali' al-Tihinawl, Kashshiif Isila~t al-Funiin (Cairo: 1 ~63) 198

Chapter Two

wa qaid al-zann i~tiraz min al-qat~ idh la ijtihiid.fi al-qiJ/'-iyyiit: the (aforementioned defmition) uses the term 'zann' to preclude ijtihad in the categorical proofs (qal' iyyat) for it cannot be applied in the latter case.s . .

21

The above, strangely enough, gives the impression that iann proofs are arrived

at through ijtihiid, but not· so, proofs that are qal' i: these are self evident,

apparently, and thus not in need ofijtihiid. But for the modernists ijtihiid qua

iann did indeed have the· probative value equal 'to that of the qat'i proofs,

whereas for the conservative Salafiyya, ijtihiid was always, without fail; the search

for qal' i proofs.

Recent attempts at reconstructing the history of ijtihiid have also failed to

underscore such inconsistencies. Rahman's treatment· of the term gives one the

impression that he was not quite conscious as to its multiple interpretaions. For

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

"effort to understand the meaning of a relevant text or precedent in the past,

containing a rule, and to alter that rule by extending or restricting or otherwise

modifying it in such a manner that a new situation can be subsumed under it by

a new solution.,,6· In another place however, these two-ijtihiid and qiyas--takeon

different meanings: "There is no doubt" he says, "that early scholars of Islam and

leaders of the community exerciSed a good deal of freedom and ingenuity in

interpreting lhe QuI'an, inCluding the principles of ijtihiid (personal reasoning) and

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, in the sense that they admit of no more than one single interpretation; the latter have greater flexibility of meaning and are generally not considered to bave the 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.

6Fazlur Rahman, Islam and Modernity: Transformation of an Intellectual Tradition (Chicago: University of Chicago Press, 1989) 8

22 Legal ThejlY

basis to solve a new case or problem that has certain essential resemblances t~ ~h~

former)".' In yet another place he says: "in the late eighth century c.e. shift '1

successfully fought for the general acceptance of 'traditions from the Prophet'i as .

a basis for interpretation instead of ijtihiid and qiyCis',.8 Here Rahman, with~ut

realizing it, clearly refers to the ijtihiid of the early schools, which, as will 'be

shown hereunder, was synonymous with personal opinion. (ra'y) and not qiyiis.

M.M. Bravmann's explanation of ijtihad and other related terms is one more

example of this incongruity. In his analysis of the sunna and related concepts,

Bravmann equates ijtihad and ra'y in the technical sense "as concepts referring

to each other and supplementing each other."g Goldziher however, rightly po~nts

out that

In ordinary Arabic usage, al-ra'y is a word of favorable meaning unless qualified by an adjective abrogating this meaning. In the sense of a good, prudent correct and reasonable view, it is juxtaposed to hawan, a rash decision, prompting misguided passion. For the conservative traditionist however, al-ra'y is a word of decidedly derogatory connotation,and in the theological sense it is almost equal in meaning to the word hawan. IO

This distinction is supported by Schacht who maintains that to "the earliest

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

'Ibid., 8.

IIbid., 18.

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

1972) 188 . '

IOJgnaz Goldziher; Introduction to Islamic Theology and Law (New J~ey: Princeton University Press, 1981) 10

Chapter Two I 23

the law ought to be'.ll Jjtihiid in a restricted sense,howevet, came to apply to the

"use of the method of reasoning by analogy (qiyas)"~

For a closer scrutiny of the conservative traditionist's definition of ijtihad,

I tum to some of the statements of the lzadi"th scholar, Muhammad b. Ismilj} al­

Bukhin. In his magnum opus, AI-Salzill, whose chapter headings are on the whole,

even yet an echo of his personal opinions on legal' issues, Bukbin makes quite

clear that for him, the terms ijtihad, ra'y and qiyas are far from interchangeable.

He spells this out in one such chapter heading which reads:

Bab ma yudhkar min dhamm ai-ra'y wa takallufal-qiyas: (Chapter dealing with the condemnation of ra'y, and the pretensions of(qiyas).

As if to drive home the point, he follows with a verse from the Qur'an--a favorite,

I might add, with those who regard qiyas as different from ijtihad but synonymous

with ra'y--"Wa la taqfma laisa laka bihz 'ilm" and do not follow that of which

you have no knowledge". 12 For Bukhiii' therefore, qiyas is clearly synonymous

with ra'y, as opposed to ijtihiid which he regards, if not synonymous with ~~ or

textual proof, then, at least, as a method of searching for such proof. To buttress

his argument he refers·to a tradition ascribed to the Prophet which declares:

inna Alliih za 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.

llJoseph Schacht, An Introduction to Islamic Law (Oxford: Oxford University Press, 1964) 68

12Qur'an: 36: 17

24 . Legal Therry

Bukhiii was nonetheless at pains to point out that ijtihiid, as he interprets it--tbat i

is, in conjunctions with 'ilm--is a perfectly legitimate source of the sacred Law I

as opposed to qiyiis which is illegitimate. As evidence, he cites the follow~ng

verse of the Qur'an:

Wa Daud wa Sulaiman idh ya{tkumanfi al-ftarth, idh nafashat/ihi ghanam al-qaum wa kunna Ii {tukmihim shiihimn. wa fahhamniiha Sulaiman wa kullan atayna {tukman wa 'ilman . .. and (remember too) David and Solomon who passed judgement with regard to the field wherein the sheep of the people had strayed; and We were indeed witness to their judgement. To Solomon We bestowed understanding whilst to each (of them) We gave wisdom and knowledge.

which he then explains as follows:

Fa{tamida Sulaiman wa lam yalum DaUd, wa laula ma dhakara Alliih min amr hiidhain lara'ita anna al-qu{iiit halaka, fa innahii athna 'ala hiidha bi 'ilmih"l wa athara hiidha bi ijtihiidihl. .. He (God) thus praised Solomon without chastising David; and had God not spoken favorably of these two: praising the one for his knowledge and the other for his "ijtihiid", you would surely have seen the judges perish.

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

citations make clear that for Bukhiil, and indeed, for the doctrinaire traditionists

i.e., the Ahl al-lfadiihl3 of early Islam and their successors, the Salafiyya ot1 the

early 19th century, it is ijtihiid qua 'ilm that is approbative and not qiyiis, raYland

iann. I hope to return to this particular discussion in my analysis of the Inflian

Ahl-e-Ifadiih movement's arguments for ijtihiid.

131n order to distinguish between the early Medinan exponents of hadith a$ the 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 chosen to call the former the Ahl al-Ifadith and the latter, the Ah.l-e-Ifaditl.

Chapter Two 25

I have yet to focus on the classical, jurisprudential defInition of ijtihiid, that

is, the defInition as distilled by legal theoreticiaDs through the period of the

development of the Law; the latter is essential, both as an indication of the

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

the 17th and 18th centuries and appears thus in moslof the major jurisprudential

works of that era. The defInition that I have included hereiD. however, is one

employed by the 18th century Indian thinker, Wall Allah Dehlawr\ it is

particularly useful in this context because, firstly, it alludes to the kind of ijtihad

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.

Dehlawi says that

the true nature of ijtihiid, as understood from the discourse of scholars, is exhaustive endeavor in understanding the derivative principles of the Holy Canon Law by means of detailed arguments their genera' being based on four departments: ' (1) The Holy Book (2) The Example and Precept of the Prophet

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. HIS philosophy was particularly attractive to those drawn to ijtihiid because as Aziz Ahmed (1967:40) points out he '

had already mitigated the influence of the watertight compartmentalization of Muslim jurisprudence by permitting a belie~~r t? ~hoose on any point the ruling of any of the four great 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 considered closed.

For more information in this regard see 'Ubaid-Allah Sindhi, Shah Wali-Allah awr unka falsafa (Lahore: 1949)

26 Legal Theory

(3) The Consensus of Opinion of the Muslim Community (4) The Application of Analogy (qiyas) Let it be lillderstood from this that ijtihiid is wider than (Le., confmed not to) the exhaustive endeavor to perceive the principle worked out by earlier scholars, no matter whether such an endeavor leads to disagreement or agreement with these earlier scholars. It is not limited by the consideration whether this endeavor is made with or without aid received from some (of the earlier scholars) in their notification of the aspects of questions involved in a given issue and their notification over the sources of the principles through detailed arguments. IS

I will now explore some of the foregoing ideas more closely, wilth

reference to the early development of the Law.

The birth of ijtihiid as a legal concept went hand in hand with the

development of Islamic legal theory. This last, known technically as the ~iil /ill­

fiqh, is an a posteriori annex to the Law, evolving, as it did, after the

promulgation of a considerabl~ corpus of legal injunctions. Its late arrival

lillderscores a rather peculiar aspect of Islamic Law: the latter is determined

primarily by the ethos and the theology of a faith, whose very articulation spawns

from within that same Law. This symbiosis of religion and Law is perhaps w1l1at

defmes Islam more sharply than any other factor, whilst at the same time imbuiing

it with praxis or a sense of 'doing'. That being the case, positive law, from the

outset, almost naturally, became a dominant theme in the religion; legal thOOJy,

in contrast, contributed so insignificantly to that Law that the latter has often been

characterized as Ita topical responsa (nawiizil) bereft of systematic connectioIlj or

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

i 16Por an infonnative discussion on how Islamic Law "appropr~ated diffeltent

realities and systematized them as part of its corpus ... " see Aziz Al- Azmeh, "Islamic Legal Theory and the Appropriation of Reality," Islamic Law: SOfial and Historical Contexts. ed. Aziz AI-Azmeh (London: Routledge. 1988) 2l50-265. .

Chapter Two 27

nonetheless, tends to obscure the fact that a defacto legal theory, albeit primitive

and unrefmed, was already in place from the very outset. While the sacred canons

were neither adequately explicit nor particularly systematic "in their legal

pronolillcements, they did nonetheless, proVide a theoretical paradigm that was

much needed for a society that was becoming increasingly complex. But, equally

misleading, is the view that early Muslims envisaged something as distinct as a

comprehensive legal system as such.17

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,

on themes that are decidedly ethical and moral in character rather than legal and

technical; its goal is the establishment of a just and equitable social order. A point

implicitly acknowledged, almost from the beginning was that these moral

exhortations, notwithstanding their lofty ideals, were still in need of a legal system

if true justice was to be realized within the social milieu. In the first place, as

God's vicegerents on earth, Muslims were expected to live their lives in

accordance with the dictates of their faith. Islam being a religio-social

phenomenon was not favorably disposed to the monasticism espoused by others

and to its adherents living the life of a community of hermits devoid of soc~al

institutions. It was thus expected of them that they marry, and if need be, divorce,

and that they indulge in commerce as well as in international relations. A society

with such aspirations could hardly have persevered for long without a coherent

legal structure. One is therefore lillderstandably puzzled by Schacht's suggestions

that "law as such, fell outside the sphere of religion, and as far as there were no

171 refer to the numerous attempts at exegesis by the Companions of the Prophet as part of an attempt to form some kind of a legal framework, if not a the~I?' as such; . for an o~erview of this period see M.T. Amini, Fundamentals of ljtlhiid (Delhi: Idarah-l-Adabiyyiit, 1986)

28 Legal Theort

religious or moral objections to specific transactions or modes of behavior, the

technical aspects of law were a matter of indifference to the Muslims" .18

It is, I suggest, hardly likely that Muslim society was bereft of law merely ,

because the 'technical aspects of law were a matter of indifference to thb

Muslims'. Substantial evidence exists to show an unmistakable concern on the patt

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

correct, as Schacht points out, that the law, in the classical period was not a legal

system, technically speaking, comprised that is, of principles and rules as set ou~, for example, by the modern state on behalf of the people. This perception of tl1.e

law, as a thoroughgoing legal system, acquired prominence only in recent tim~s

in the Muslim world.20

Already, during the latter part of the Prophet's life, the community had

established the fIrst legal institutions which were gradually replacing the

customary laws of pre-Islamic Arabia. Por the first time, Arab society was

regulated by a judiciary of a sort: qiUjis or judges were appointed to oversee "the

disputes of the communit)r.21 Many of these institutions, however, after the

Prophet's demise, outgrew the rudimentary theoretical paradigm upon which th~y

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

vision of an ever expanding, Islamicised world, wherein divine law as embodied

in the sacred canons ultimately prevails. To that extent, Islamic Law is indeed

nomothetic both in its origins and its objectives; it is fIrstly, God's law as revealed

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

ISJ.Schacht, An Introduction to Islamic Law, 19

19See M.M. Azami, On Schacht's Origins of Muhammadan Jurisprudence (New York: John Wiley and Sons, 1985) for a response to this tlJ-esis.

lOPor the role of legal history in Muslim jurisprudence, see N.J. CoUlstn, A History of Islamic Law (Edinburgh: University Press, 1965) !

I 2IM.M. 'Azami, On Schacht's Origin's of Muhammadan Jurisprudence, :10

Chapter Two 29

indeed". The task that lay ahead was however, enormous: it required that the

Law--practiced thus far with minimal difficulty--now assume a degree" of

sophistication and flexibility not known to it previously. It is with this period that

one can discem the fIrst attempts to apply personal reasoning--the forerunner to

the ijtihad ai-ray of the schools of law--by the companions of the Prophet and

particularly by the early caliphs.22

But applying personal opinions and rational arguments to the sacred texts

was not a task that the early community took lightly. The possibility that, in doing

so, they were in effect tampering with divine decrees and" earning the wrath of

God made the entire venture all the more problematic. The caliph, Abu Bakr, for

instance, is known to have vacillated a great deal before being convinced that the

compilation of the Qur'an, as suggested by his successor, 'Umar, was indeed a

sound idea, religiously speaking. He could not bring himself to perform a task, no

matter how seemingly good, that had no support in the sacred texts. There was

thus, a pressing need for a rationa'l, legal mechanism that would serve to interpret

the revelations as embodied in the sacred canons, to extrapolate from them legal

rulings not mentioned specifically therein, and to expand the ambit of its

authority.23

According to Muslim scholars, this was a need that the Prophet himself

had anticipated. This much is evident from the I}.acfi"th of Mu 'idh b. Jabal the so­

called 'locus probans for ijtihQd', wherein the Prophet questions Mu'idh, his

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-Isha' at, 1965) "

230ther scholars have also commented on the origins of this debate in early Islam; Wensinck, for instance, has suggested that ". . . the debates on predestination inaugurated rationalism in Islam." See A. T. Wensinck, The Muslim Creed, p.53. Arberry, on the other hand, has proposed that the" ... first rational act in it's (Islam) history was the recognition of Abu Bakr as Mohamed's caliph." A.J. Arberry, Revelation and Reason in Islam, p.12.

i i

30 Legal 17leot

governor to Yemen, as to how the latter would address the problems he wouIjd

encounter.

The Prophet asked: "How will you judge when asked to, 0, Mu' adh"? He replied: "In accordance with the Book of God". The Prophet asked: "What if you fail to [md the answer therein"? He replied: "Then I will refer to the traditions of the Prophet". He 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 (sa ajtahidu) diligently, without sparing any effort, to form an opinion". On this, the Prophet tapped Mu' ildh on the chest and commented: "Praise God who made appropriate for the messenger of the Apostle that which pleases the Apostle".24

It must be stressed at this juncture, that the ijtihiid spoken of here is no more th$n

the exertion of one's mental faculties in arriving at a decision. A review of the

rulings given in the early period of the law gives no indication that the term itself

had ever been explicitly invoked when such a ruling was being made. This onjly

took place much later as will be shown presently.

With the culmination of the revelatory process and the death of the Prophet

there occurred the territorial expansion of the Muslim empire and the Islamisation

of the Arab hinterland. The practical difficulties of governing vast, freshly

conquered" territories posed a challenge to the administrative and juridical" ski~ls

of the community. This new phase was singularly significant for its ad hoc

24Abii Daiid, al-Sijistani, Al-Sunan, ed. M.M .• Abd Al-lJamid, (Cairo: 1947) This particular tradition, with some variations in wording, appears in the Surl(;m 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; BukharI takes exception to one of the narrators in the sanad (chain of transmitters) of the hadith, TinnidhI however, accepts the ijadith, notwithstanding the said weakness, because it is supported by several other traditions. For ml[lre 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 to fabricate for its (ra 'y) validity an old tradition, and an authority going bac14 to the earliest times of Islam." See Goldziher, The Zahiris 8, and Schacht, Ori1ins 105 ff.

I

Chapter Two 31

solutions to the multifarious predicaments that were rapidly multiplying. The

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

challenged with the refusal of some of the tribes to pay religious taxes (zakat)

Abu Bakr, the first caliph, acting on his own legal judgement (ijtihiid or ray!) was

quite unwavering in his decision to subdue the rebellion forcefully, even though

his actions found no explicit support in the Qur'an or in prophetic precedent.

Similarly, 'Umar, his successor, imposed a land tenure (kharaj) on the non­

Muslim inhabitants of the freshly conquered territories and thus revoked the

previous system inaugurated by the Prophet which allowed for the distribution of

the conquered lands among the conquering forces.25 The same can be said for

'Uthmiin and 'AIl, the third and fourth caliphs respectively: the former is credited

with, amongst other things, the introduction of the second call to prayer for the

Friday services, and the latter, for having reduced--in the law of succession--the

fractional shares as stipulated in the Qur'an in the event that such shares together

exceeded a single unit Governors and other public officials appointed to the

administration of the conquered territories were also encouraged to exercise their

personal judgement if the occasion so demanded. ShUJ'llylJ for instance, on being

appointed judge during the reign of 'Umar, was told by the latter: "If you ~

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

this in the sunna either, then follow your own judgement independently".2(i

The type of ijtihiid practiced in this era is particularly appealing to the

modernist element in the reform movement primarily because it set a precedent

for the supercession of the express injunctions (1lU§U§) of the Qur'an, in some

circumstances, by the independent reasoning of the judge or head of state; this,

25Marshall Hodgson, The Venture of Islam: Conscience and History in a World Civilization (Chicago: University of Chicago Press, 1974) 270

2(iAI-IsfahanI, AbU AI-Farj, Kitdb aI-Aghiini. 20 vols., (Bulaq, 1284-85 h.)

32 Legal The1ry

they maintained, should not be overlooked in any restructuring of the law. '*y

theory, the evidence for which I provide in chapter four, is that many modernjist

reformers, given their commitment to the adaptation of the sacred' law·. to

contemporary, mainly western, ethico-moral standards, were merely striving I to

break out of the legal framework of the normative u§iil that had so regimented the

practice of that law; it was their hope that this will be l!-ccomplish!'lCl throqgh

ijtihad. The Umayyad period which followed, was characterized by a fortuitCPus

fusion of legal judgements and state policy, all appropriated from a variety of

mostly disparate sources. Elements of Roman, Byzantine and Sassanian law which

were present in the political and administrative structures of the newly conqu~e,d

territories were absorbed into the rapidly expanding Islamic empire. The same was true for the religious and cultural values of these regions if the theological issues

that gained prominence in the community during this period are anything to go by.

The separation of the mawCilz (the non-Arab Muslim affiliates or freedmen of! the

conquering Arabs) from the social mainstream is a case in paint: Ws

phenomenon, a stranger to the Arabian peninsula, seems to reflect, to some extent,

the hierarchical social. structure typical of the mazdean Persia.17

The latter portion of Umayyad rule was also significant for its intell~tual

endeavours whence the various sciences began to coalesce rapidly, to the ex.tent

that each acquired characteristics that set it apart from the others. The Anibic

language, for instance, was emerging as a major area of inquiry ,with futther

specializations in, for example, rhetoric (baIaghah),syntax (na~w), and etymology

(Jar/). Greater strides, however, were being made in Islamic law with a g~ter

level of sophistication and heightened philosophical enquiry into the textual and

contextual possibilities of the law. Several parts of the empire were instrum~ntal r

..

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 (7thr12th

. centuries), London 1979.

Chapter Two 33

in this effort, but as Schacht explains, Iraq's role was pivotal: firstly, it served

as "the intellectual center of the first. theorizing and systematizing efforts which

were to transform U~yyad popular and administrative practice into Islamic

law;,,28 and secondly, with regard to the rivalry between the Iraqi scholars and

their Hijazi counterparts, it must be remembered that legal doctrine almost

invariably. proceeded from Kufa to Medina, and not vice versa.29 The early schools

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

closing of the doors of ijtihad,introduced a new form of ijtihDd, the ijtihiid ai-ray

that I alluded to earlier.

The efflorescence of these schools is, in all likelihood, attributable to the

'ulama's opposition to the Umayyad practice of legislating independently of the

text of the Qur'an. Their genesis was thU$, embedded, not in juridical precedent

as such, nor even in any thoroughgoing legal theory, but in the.protest movement

opposing the legal machinations and court practices of the Umayyads. But the

alternativ~ that these schools presented were almost equally unsystematic and

syncretic. The legal scholars and jurists who belonged to these schools drew their

decisions from the sacred canons. and the customary \ practices of their individual

localities, but. not necessarily in that order. The closest they came to having a legal

theory as such was in the 1iving sunna' of their respective localities; this last was

essentially, a counterweight to the sunna as construed by the Umayyads. During

the second century of Islam this living sunna of the schools of law first gained

prominence primarily as the custom of a particular locale, but one that contained,

according to Schacht, Ita theoretical or ideal element so that it [came] to mean

normative sunna, the usage as it ought to be.,,30

18Schacht, Introduction, 29 .

19Ibid., 29.

3OSchacht, Introduction, 56 .

I 34 Legal Theory

I Now, the relationship of these schools to the prophetic epoch and to lUs

sunna as generally understood is not quite clear: Schacht, for example, opines that

in their desire to sanctify the ijma' (consensus) of their own schools and to P$

it off as being essentially Islamic, a retrospective projection of the living suntm

back to the Companions and, in some cases, even to the Prophet himself, was

undertaken by the epigones of these schools. Needless to ~y, this view has not

gone unchallenged; the whole charade of projecting backwards what was

purportedly the consensus of the regional schools begs the need for such action.

Surely, this could only have occurred if there existed, at the time, the widespre~d

recognition of the prophetic sunna as having probative value for legitimatlpg

questionable practices. Without this kind of awareness, the 'backward projecti<l>n'

of ideas would be meaningless.

Additionally, that there was in the major centers of Islamic leaming a

scholarly presence with links to the Prophet, and hence to his sunna, is wid¢ly

accepted by scholars past and present. The Kufans, it is said, traced their links, to

the Prophet through Abu IJanlfah, IJanunid b. Abu Sulaiman and ultimately, the

celebrated companion, 'Abd Allah b. Mas'ud. The Medinese, who initildly ')

subscribed to several authorities, eventually chose seven as-representative of their

views: Sulaymin b. Yasir, Sa'ld b. al-Musayyib, 'Urwa b. al-Zubair, 'Ubayd

Allah b. 'Abd Allah b. 'Utba, Abu Bakr b. 'Abd al-Ralpnin, Kbirija b. Zayd b.

Thaoit, and Qasim b. Mul}ammad b. Abu Bakr. Several scholars traced ~eir

views thiough 'Abd Alliih b. 'Umar to the Prophet. In Mecca, 'Ali' b. Abu

Rabib and Ikrimah, the freedman of Abd Alliih b. 'Abbas form the link to !the

Prophet via Ibn 'Abbas.31 Nonetheless, the issue that remained unresolred

throughout this period was the place of the prophetic sunna in the overall lc)gal

structure. Until the advent of Shifi '1 it was not absolutely clear that the sun1l4 as

projected by Ijadi"th literature had legal authority second only,.to the QwI'an.

31For more information on the Companions of the Prophet and their contribution to Islamic Law see M.K. Bakk, Tan7ch al-Tashrf' .

Chapter 1Wo 35

shifi'l, as ,will be shown, successfully argued that point and consequently

changed the nature of ijtihad henceforth.

Of the major issues that separated these schools, none was as prominent

or acrimonious as the one surrounding the legitimacy of using ra y in

eontradistinction to Ijadi"th in legal affairs. We learn from Dehlaw1 that at flISt,

only the soundest traditions attributable to the Prophet were accommodated by the

Kufans in settling legal disputes.32 The criteria that they had devised for accepting

the sunna of the Prophet were so rigorous as to effectively exclude all but the

soundest accounts thereof. In contrast, their Hijazi counterparts would refrain from

opining even against unsound traditions. Consequently, the latters' rulings relied

more heavily on Ijadi"th literature than did the rulings of their rivals. Schacht's

hypothesis in this regard is quite different: he maintains that the Ijadith

movement, in reaction to the unsubstantiated speculations of the Ahl ai-Ray, put

into circulation a variety of spurious traditions traced back to the Prophet. The

development of the former vis-Ii-vis the ancient schools, according to him; should

therefore be regarded, not as simultaneous to each but rather as sequential; it was

in essence "a movement of religiously and ethically, inspired opposition to the

ancient schools of law." The main thesis "of the Traditionists, as opposed to the

ancient schools of law, was that formal traditions deriving from the Prophet

superseded the living tradition of the school."

From a socio-political standpoint, it is likely that the oppositiOn to the

regional schools stemmed from an increasing awareness on the part of the

community that the rulings of the jurists on the basis of their personal opinions

(ray) posed a threat to their socio-religious cohesiveness in two ways. Firstly, ray

was most often an individual scholar's personal opinion based on his own

knowledge of the scriptures coupled with his experiences as a jurist in a particular

locality. As such, it almost challenged, in an unspoken way, the authority of the

32See, in this regard his work, Al-l~af fi Bayan Sabab al-lkhtiliif (Lahore: Auqaf Dept., Govt. of Punjab, 1971)

I 36 Legal Theoty

sacred scriptures. Secondly, because of the localized nature of such rulings, ntaQy

legal and theological conflicts in the greater community started to appear.

, The relationship of the Qur'an to the sunna of the· Prophet was until th$l

not clearly explicated, and this only exacerbated the problem. When faced with

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

often without regard for the social context of such a decision. For instance, the

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 to draw an analogy with the Qur'anic punishment for the defamation of chaste

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

the previous judgments of the eponyms of a particular school formed the basis fpr

new judgements; There was a movement of thought, Rahman tells us, "from the

explicitly mown to the explicitly unlmown . . . but, in both the choice of the

model and the discernment of the point of resemblance, almost unbridled liberty

was taken and the results varied between sound analogy on the one hand and

almost complete arbitrariness on the other." The overall effect of these trends

were alarming; to say the least. The doctrinal and political unity, forged ISO

painfully by the Prophet and the early community, was being strained by tlhe

disparate Conclusions that scholars arrived at by way of such legal methods.

A rather unique solution to these legal disparities was offered by ~n

Muqaffa (d. 757), a Persian convert to Islam and a secretary of state during the

reign of the caliph, Man§iir (d. 775). He urged the caliph to exercise his oWn

ijtihiid, i.e., his personal opinion, as head of state to replace the living tradition of

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~, without success, to bring about the legal harmony that Ibn Muqaffa had envisa,ed

by giving his· seal of approval to the legal system of the Medinese jurist, 1ik

Chapter Two 37

b. Anas. The latter, however, declined his request and effectively epded direct

state interference in Islamic Law.

By deferring to the authority of the legal scholars; the 'Abbasids, in effect,

endorsed an idea that was to. remain in vogue throughout Muslim legal history:

that the rulers of the Islamic state have authority, not to determine the sacred law

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.

"Clearly", as Coulson points out, "some unifying process was necessary to save

the law from total disintegration. Equally clearly, the impetus for such a process

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

shiifl 'I is remembered for having formulated the first thoroughgoing legal

theory in Islam. But what is often overlooked by those who argue that the doors

of ijtihiid were closed in the 4thf7th century is that shifi. 'I, more than any other

scholar, was also primarily responsible for the closure of those doors. By

curtailing the personal opinion (ijtihiid al-ra'y) of the early jurists to the rigors I

of qiyas he effectively banished unsubstantiated legal reasoning from the law.

This he succeeded in doing by focusing on the role of the sunna in the law.

The term sunna appears in the Qura'n in several places either as God's

custom (sunnat Allah) or pre-Islamic custom (sunnat al-awwali'n).34 The two are

sometimes used in conjunction with each other to express God's unfailing requital

of those, in the past, who slighted the admonitions and counsel of His apostles.

While the Qur'an makes no allusion to the Prophet when referring to·the sunna,

the Prophet himself, in. several authentic. traditions, is recorded as having used the

term to refer to his own normative practices. In one, Malik quotes him as saying:

33Coulson, A History of Islamic lAw, 133

34See QUr'an 17:79,33:62,35:42 for examples of the first type, and 8:39, 15:13, 35:41 for the second.

38 Legal Thef7Y

"I leave among you two ordinances; if you adhere to them diligently, you Jul

never stray: the Qur'an and my sunna." Admittedly, in that period, the sU7/.na

referred also to the customary law of Arabia, or the sunna of a partic~lar individual, or, as used infiqh, as but one referent in the structure of ritual practice.

Still, if we go by the early accounts of that era, it becomes quite evident ~ it I

was the sunna. of the Prophet, in a practical sense, that sprang to mind whene:wer

the term was commonly invoked. If looked at in the light of the Qur'an's h~vy

emphasis on the role of Mul}ammad as a prophet of reform, these accounts, I

suggest, are not without merit. Clearly such reforms, notwithstanding ~eir

religious tenor, were, in effect, a thoroughgoing restructuring of ordinary Ajrab

social and political institutions.35 It follows, therefore, that the Prophet's task was

no less than the overhaul of the mom structures, social norms and the custoniary

laws of Arab society. In short, he Was to replace the pre-prophetic sunna with! his

own. The early community therefore, could hardly have been oblivious to Uris

meaning of sunna.36 Even so, Schacht's notion that the prophetic sunna, as an

35 An informative expose of the sociological and historical significance o~ the sunna is offered by 1. Goldziher in his Introduction to Islamic Theology pp.Z30

36Schacht however, argues that n Sunna in its Islamic context originally (for 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 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 'Umar had to be appointed(23/644), and the discontent with the policy of the Utird caliph, 'Utlnnan, which led to his assassination in 351655, took the form of a charge that he, in his tum, had diverged from the policy of his predecessors I and 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 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 0t the reports on the early community. In !his <egard see M.M. Azami, O. Scha

l hi',

,

Chapter Two 39 -

independent source qf the law, had not crystallized at the death of the Prophet is

not entirely without merit.

The Prophet's death, it must be remembered, had the immediate effect of

throwing open the question of authority in Islam. Previously, the Prophet himself

determined the laws of the community, but his authority to do so was inherited by

not one but three often contradictory criteria whose relationship with each other

was not always clearly de~cated; these were: the Qur'an, the practice of the

Prophet himself and the customs of Arab society. Missing, still, was a theoretical

paradigm that would both govern the relatio~hip of these structures to each other

as well as to the adherents of ,the faith. Given that hiatus, it Was almost inevitable

that a new sunna would emerge, one that would work towards the coalescence of

these disparate tendencies in the law. That it did by way of the 1iving tradition'

of the schools of law in the different regions was neither anticipated nor

wholeheartedly welcomed. If anything, it simply exacerbated the problem of

authority by appending one more facet to what was already a much variegated and

convoluted way of determining the dictates of the law.

shift '1 was at first, merely a spectator to this conundrum; Initially, in

Medina under the tutelage of Miilik b, Anas, he looked on as the scholars

painstakingly tried to unravel the already tangled web of interpretations vis-a-vis

the sacred law and the sunna. At one time the latter would be ascribed to the

companions of the . Propbet:

wa kadhiiLika ja'at al-atkar wa al-sunan Ii ~hao al-nabiyy: and thus have the reports and the sunan come [fi:in, about,with!] the companions of the Prophet.

and, at others, to the pronouncements of the scholars of a locality:

Origins, and JuynboU, Muslim Traditions.

40 ugm~~ qiila Ibn Shihao: 'a hiya al-sunnah?' qiila Miilik: 'wa 'alQ dhiili/ca adraktu ahl al-' ilm bi baladina: Ibn Shiha""b asked: 18 this the sunna? Milik replied: (Yes) Thus, have I found the scholars of our

city."

I

In Iraq the same uncertainty prevailed. At times the sunna would be used to refer

to the established practice of the area:

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 forebears, his companions and the jurists.

At others it applied to the well established customs: "al-sunna al-mab-ftiia al­

ma'rufa: the well known and well recognized sunna."

shift '1, however, finally came round to the idea that sunna, for purpos~s

of both theological rectitude as well as socio-political harmony, can refer only tIo

the practice of the Prophet as expressed through the authentic traditions (IJadith)

attributed to him. Muslims, shifl '1 tells us, are constrained to follow the Prophet's

sunna, for "God has placed His apostle-orin relation to] His religion, H~s

commands and His Book--in the position made clear by Him as the distinguishing I

standard of His religion by imposing the duty of obedience to Him as well as ~y

prohibiting disobedience to Him. /I God also prescribed subordination to a;.s Apostle, for if a person believes only in Him, and not in His Apostle, the Il8$e

of the perf~t faith will never apply to him until he believes in His Apostle

together with Him. Also, the 'wisdom' referred to in the Qur'an, Shift '1 tells tJs, is none other than the sunna of the Prophet,

For the Qur'an is mentioned [first], followed by Wisdom; then God mentioned His favor to mankind by teaching them the Qur'an and Wisdom. So it is not permissible for wisdom to be called here [anything] save the sunna of the Apostle of God.

The sunna (wisdom) thus, is closely linked to the Qur'an afl.d, seeing that

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,

Chapter Two 41

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

that their recourse to the Apostle to judge among them is a recourse to God's

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

preserving him from error.

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

articulate the dictates of the law, in the sense of being best qualified to interpret

the Qur'an; rather, in matters of the 'law, he was the very instrument of God,

whose judgements were both divinely imposed and preserved from error (ma '~iim

'an al-khaJ' i). As Coulson points out, "for shift'l this was the inescapable

significance of the Qur'anic command to obey God and His -Prophet and the

similar injunction to follow the Book and the Wisdom (lzikma); for this last couid

mean only the actions of Mulpunmad."37

The accentuation of these twin features of the Prophet--that of being

divinely inspired and also infallible in his pronouncements vis-a-vis the sacred

law--was indeed a defining moment in the development of Islamic thought. The

sheer weight of scriptural evidence presented in support of the preeminence of the

sunna was . eclipsed only by the theological appeal in Shift'rs rationale.

Henceforth, no Muslim. could possibly deny the authority of the Prophet in matters

of law as understood through IJadiih-all the more so when the latter was

juxtaposed to the ijma' or living tradition of the regional schools of law, or worse

still, against the rational speculations of individual scholars.

The upshot of these changes in the theoretical framework of the law was

an almost immediate rise to prominence of prophetic . traditionS as the sole

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

canonization of one's own laws and the 'de-canonization' of those of others by way

37Coulson, A History of Islamic Law, 135

, . . , . : i

42 I

Legal Theory i

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 resolving such conflicts.38

A second milestone that marked the knell of ijtiMd as the temps prindpal

of legal theory grew out of shift'1's critique of ray and his concomitant

exposition of qiyiis. He was asked: "What is qiyiis? Is.it ijtilWd or are they

different? He replied:

They are two names for the same concept . . . in the life of. a Muslim there is always, either a binding order (lzulan lazim) or some evidence as to the correct order (dizaza maujiida). With regard to the first, where a decision already exists it should be followed; in its absence however, a decision should be sought by 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

mentioned to you previously that, according to us, in the absence of an exJ)licit

text we are bound to seek [a solution] by way of ijtiMd through qiyiis." Ij~had

for sbifi '1, therefore, is synonymous, not with any untrammeled I!ltiOnal

speculation (ray or iann) as such, nor even with the considered opinion of the

eponyms of the regional schools (the so called living traditions) but with qiyls in

the narrow sense.

That ijtiMd, for shift '1, was also not a philosophical pursuit of the JU!.ture I

and objectives of the law--the very fabric of legal theory-is quite evident froDil the

following: he says, that

God, glory be to Him, has conferred the servants with intelligence whereby He indicates to them the dissimilarities of the conflicting (views), and guides them, by way of explicit, incontrovertible,

,. I I

38See in this regard AI-Shifi'I, AI-Risiila (Cairo: Dar al-Turath, 1979) 1210 I

39J:bid., 210.

Chapter Two

textual rulings (nass) or textual intimations (diia"1a), to the (correct) path.40

43

It is ergo the text, the Qur'an and the 1}adi'th literature, that functions as the

paradigmatic underpinning for all legal reasoning i.e., for all ijtihiid. Fealty to a

prophetic narrative or, in its absence, to qiyiis on the strength of a specific

narrative is the only acceptable means of deducing the law, for God forbad, since

the time of the Prophet, the issuance of directives not based on legal knowledge,

i.e., the Qur'an, the sunna, consensus, or qiyiis based on such texts.

Ijtihad for shift '1 was simply the effort exerted in applying the criteria of

the Qur'an and the qadiih in any given situation. He provides several examples

of this in the Risiila where he endeavors to convince his interlocutory about the

'efficacy and legitimacy of ijtihiid. He is asked,

Are you able to cite, in addition to your previous contentions, proof for the validity of ijtihiid? He replies: "Yes, by reference to the statement of God: 'Whichever place you come from, tum your face in the direction of the Sacred Sanctuary; and wherever you are,· tum your face· in its direction' . . . One's knowledge points to the fact that for one wanting to face the sacred sanctuary it would be correct to establish the directions thereto by way of ijtihQd; because the one encumbered with the responsibility of facing (the sacred sanctuary) (need do no more than) look at the guidelines known to him, just as someone else is entitled to use other guidelines knoWn to him, albeit, in variance with the formers".

The other examples that Shifi '1 refers to in this regard, are the following:

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

intercourse with his slave who turns out also to be his sister. In all caseS cited, the

legal ruling is explicitly found in the canonical texts; what remains is simply to

quantify, specify or identify the object of that ruling, an undertaking that is so

'"1bid., 215.

I I

44 Legal The~ry

basic as to be almost pedestrian; certainly a far cry from the lofty connotatidns

that the term ijtihiid conjures in the writings of recent scholars.

It was also Shafi'l who introduced qualifications that would limit tjhe

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

prescriptions of the Quran and its ethical exhortations i.e., jts general guidelities

and its specific rules. Mere intellectual proficiency, i.e., the ability to speculate

outside of the boundaries of the texts, without an adequate familiarity with tlhe

sacred texts themselves, precludes, in his mind, a scholar from making legal

pronouncements. Additionally, the jiJrisdiction of one who does ijtihiid does npt,

ipso facto, bear a universal purport. These qualifications slowly gained prominence

after Shafi '1 and significantly curtailed the previous laissezfaire approach to hlW

making.

Shilfi'rs efforts to produce a law that was at once 'Islamized' in terms, of

textual authority and rationale through its embracement of reason (ijtihiid) fuelled

what soon proved to be a monumental debate between those who perpetuated the

logic of theAhl ai-Ray and those who carried the scripturalist mantle of the ~hl

al-IJadith. The former consisted of members of both the old regional schools, the

IJanaf'i'mainly, but also elements of those who adhered to the legal philosophy of

shilfi '1. The latter comprised of elements of the pre-Shafiite doctrirufre

traditionists along with disenchanted disciples of shifi'l himself, those that. is,

who renurlned ill at ease with the rational elements that their master had

incorporated into the Law. Though this group--known variously as the Zihirites,

the Daudis or the l;Iashwiyya--remained peripheral to the developments iPat

subsequently took place in the Law, its voice of dissent was never quite quell~d;

it remained a strident, albeit numerically insignificant, opposition to Muslim I

orthodoxy right through to the present times.41 ..

41The most exhaustive study still on the Zahiris and Ibn l;Iazm is Goldzilj.er, The Zahiris: Their Doctrine and Their History (Leiden: E.J. Brill, 1971) .

Chapter Two 45

After Shafi'rs doctrines became normative to the sacred law an elaborate

scheme was created to monitor and control legal speCUlations. Known

subsequently as the maratib al-ijtihiid, this scheme required of the mujtahid that

he combine in himself five types of knowledge:

(1) the knowledge of the Book of God, the Glorious; (2) the knowledge of the Example and Precept of the Prophet: (3) the knowledge of the speeches of the scholars of yore regarding their consensus of opinion and their difference of opinion; (4) the knowledge of language; and (5) the knowledge of analogy, which is the method of eliciting the principle from the Qur'an or the 1;tadi'th when the principle is not found in the statutes of the Quran, the 1;tadi'th and the consensus of opinion.

These prerequisites which were, most likely, unheard of prior to or even at the

time of Shafi '1 were eventually integrated into the maratib themselves. These

maratib underWent a series of modifications through the years and were ultimately

categorized as follows:

(1) AI-Mujtahid al-Mustaqil: This category,also referred to as the mujtahid

mutlaq, or absolute mujtahid, generally points to the eponyms of the four extant

schools of law: Abu I;Ianlfa, Millik, Shifi'l and A1;tmad b. I;Ianbal. The salient

feature of this category, according to Muhammad Abu Zahra, a recent scholar of

legal theory, is the fact that in deducing the laws from the Qur'an and the sunna

(istikhr{ij al-abJeiim min al-Kitiib wa al-sunna) scholars in this category are not

obliged to' follow the dictates of any other scholar; Aside from the l;Ianbalis, most

have concluded that the qualifications for ijtihad in this category are so rigorous

as to effectively exclude the possibility of anyone attaining to this category in the

future. Ghazzii:ll writing in the 5th/11th century, declared that this category, of

mujtahid had ceased to exist. Rahman suggests the following explanation for this

phenomenon: the complex of academic, intellectual and spiritual prerequisites "

. . . 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

a· view shared by most classical sCholars. Even some of the l;Ianbalis who, as

46 Legal Theory

mentioned previously, had a dissenting view in this regard, seem to allow such an !

event only in'the case of the centennial reformer, the mujaddid who is said to

appear at the head of each new century.

(2) Al-Mujtahid al-Munt~ib: Sometimes called Al-Mujtahid ft al-Madhhab: this

category is made up of the disciples of the aforementioned eponyms whose legal

principles they share but with whom they of ten, disagree in ~e application of such

principles.42 There were however scholars who saw this scheme as an elabonite

system of unquestioned obedience (taqud) of sources other than the Qur'an and

the Prophet. That scholars in this category were accused of being mere imitat<)rs

(muqallid) is evident from the following statement of al-Sinjl, a 5th/11th century

disciple of Shm'1:,

atba Ina ai-Shaft' z duna ghairihl, lianna wajadna qaulahu arjah al­aqwiil 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.

In truth, a significant number of those said to fall into this category wj:re

independent mujtahids whose only relationship with their masters seems to be <)ne

of tutelage. Such was the case with Abu Ylisuf, for example, and Mul}anunad!al­

Shaybiinl, the celeQrated disciples of Abu ijanlfa whose contributions to Jhe

school clearly rivals that of their master.

42Their role, according to Abu :lahra is the following: ta/bfq 'illat al-I;;pan aUate istanba/ahii al-stibiqan: the application of the 'illa that was derived by! the precursors." For an explanation of the operation of this principle see F. ~an, Islam 71.

Chapter Two 47

(3) AI-Mujtahidfi" al-Madhhab 43: In the proliferation of the schools of law in the

5th century, the scholars of this category featured more prominently than moSt

others. There are two r~sons for this: firStly, they derived both the principles of

the law as well as positive legislation from the eponyms of their respective

schools; and seCondly: in the absence of any legal directive pertaining to a specific

issue they would simply apply the principles of the school, or in some cases, draw

an analogy from a similar ruling within that school. Some of the more prominent

names that come to mind in this regard are al-Muzanl of the Shafiiteschool, 'Abd

al-Ralpnan b. al-Q'iisim ofthe Malikite school, Muwaffaq al-Om b. Qudama of the

lJanbalite school and Kamal al-Om b. Humam of the lJanafite school.

(4) AI-Mujtahid al~Murajjih: This category consists of scholars who merely

determine the validity of the arguments presented by scholars of the previous

43Technical terms were routinely confused by scholars who wrote on the martitib. Hallaq (1983:69) gives us the following example of this confusion. He says

The definition of the term mujtahid TnU/laq (absolute) in Ghazzali's time, for instance, differed from that given to it later. For Ghazzali, mujtahid mU/laq is a jurist who is capable of interpreting all branches of law within It given school, but this 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 compound title mujtahid mu/laq-muntll§ib upon a jurist who' performs ijtihiid. within a school. It is of no surprise then that a good deal of the disputation over the subject of mujtahids and ijtihiid had been caused by such undisciplined usage of terminology.

1:1 : I' i i

, 48 Legal TheplY

I category and· then proceed to select, from among these arguments, that whic~ is

i

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) •

Chapter Two 49

ideas. For others it was a means to link the uncertain present to the glorious past.

CHAPTER THREE

IJTIHAD AND THE MODERNISTS

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), 4 all 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). "

52 The Modemfsts I

accomplishments, historical experiences, and philosophical perspectives were s\Jch

that they set him apart from the others; but it was nonetheless, their shated

weltanschauung that made them the touchstone of Muslim modernists. They tlIrus

expressed similar concerns for the welfare of Islam against what they consideted

to be two common perils: the onslaught of Europe's political hegemony, and the

de-Islamisation of the intellectual elite of Islam.

The task they set themselves was also similar: reconciling their OWn

fealty to Islam to their abiding admiration for modem civilization. Each triedl to

show, by his peculiar interpretation of the Islamic legacy, that the two were 1I10t

quite as incompatible as appeared at first blush. While not quite claiming Ian

unconditional harmony between the two, they nonetheless, seem to affIrm tht

there were essentially no irreconcilable differences between the authentic Islam

as articulated by the~ and modem civilization. They also showed a particular

endearment for ijtihtid, an unflinching faith in its ability to remove all

impediments to a rejuvenated Islam, a mechanism geared to address contempo~ry

issues in a· way that neither jeopardizes the authority of the sacred sources nor

In similar vein John Esposito, (1988:129) writes that the major modernist themes 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 exploring presently--that he represents a pattern of reform that basically operatl=d 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 able to attain an influence on religious Muslims not possible for those who simply appropriated Western ideas. As the first "Neeo­Traditionalist" whose influence spread beyond the borders of a single Muslim country, Afghani can be regarded as a precursor of various later trends in the Islamic world which reject both pure traditionalism and pure Westernism. (1972: 1)

Chapter Three 53

threatens its irreducible moral teachings. Their disdain for taqlfd was surpassed

only by their contempt for the 'ulama', the custodians of this decadent legacy of

unquestioning obedience. The 'ulama in tum, accused them of, amongst other

things, subjecting Islamic Law to the dictates of western thought and pandering

to the demands of secular liberalism in contravention of the madhtihib, and the

principles of Islamic law.

Their training in the traditional sciences of Islam was thorough, at least in the case of AfghiinI, 'Abduh and Riga who were all qualified religious scholars. As for Iqblil, whilst not an 'alim by vocation, he was nonetheless, well acquainted with the traditional sciences, in addition to being the most qualified in modern philosophy and western thought.

In light of the fact that a significant number of modernists confess to either

being disciples of the foregoing individuals or being strongly influenced by them

in their understanding of reform, I thought it superfluous that concepts of ijtihtid

as understood by others within this group be scrutinised with the same rigor.

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

free from the past, from the anti-rationalism of Ash'arism in some cases to the

inflexibility of scriptural hermeneutics.6 The ,nineteenth century Indian reformer.

Sayed Ahmad Khan (d. 1898) is a case in point: Sir Sayed believed that ijtihtid

6Por Abu al-lJasan al-Ash'arr (d. 935) and his followers reason was an integral aspect of religious tought though not the preeminent one. Steering a via media between Mu'tazili rationalism and lJanbali literalism they contended that while divine truths can only be known through revelation, revelation itself is protected and articulated through reason. In this regard see A.J. Arberry, Revelation and Reason in Islam (London, 1957)

54 The Modernt,sts

was the inalienable right of every individual Muslim to be used to resolve the

difficulties inherent in the four traditional sources of Muslim Law7

By this erroneous belief (Le. that the door of ijtihiid would be closed and that nowadays a mujtahid would be superfluous) we do harm the Islamic religion and society seriously. We should be aware of the fact that times change and that again and again we are confronted with new questions and new needs .. In other . words: today also we want mujtahidun. 8

But as 1.M. Baljon, his biographer, points out, Sir Sayed only adopted ijtihad

to the extent that he.could utilize it to reform the sacred law but so "far as he Was

hindered in his reforming aspirations by the regulations which the mujtahid,un

had once introduced in Islam, he rejected the principle of ijtihiid. ,,9

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

Khilafat Movement in India. ,,10 Azad brings the problem of this particular !dnd

of taqlfd into sharp relief, for his life, according to him, was but a movement

from one taqlfd to another. At first, he says, he broke free of the taqIrd of the

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

7 A. Ahmed, Islamic Modernism in India and Pakistan (London: Oxford University Press, 1967) 54

81.M. Baljon, The Reforms arii:l Religious Ideas of Sir Saiyed Ahmad Ki1I1n (Lahore, 1958) 59

9Jbid., 67. ,

IOAs Mumtaz Alnned explains, the Khilafat Movement of the 1920's was launched "to save the Turkish caliphate from dismemberment in the wake of the post, World War I rearrangement of European and Middle Eastern stilte boundaries. See, in this regard, his article, The Politics of .War: Islamic Fundamentalisms in Pakistan. In Islamic Fundamentalisms and the Gulf Cri~is, (Chicago: The American Academy of Arts and Sciences, 1999). M<j>re importantly, see G. Minault, The KhlZafat Movement: Religious Symbolism a,nd Political Mobilization in India. (New York: Columbia University Press, 198~)

Chapter Three 55

dogma. "11 But then he fell under the spell of Sir Sayed, or as he puts it "the

period of taqlfd of Sir Sayed"; thereafter, almost all of Muslim intellectual 'history

became redundant--pure Islam had finally been unveiled after thirteen hundred

years of obscurity. The irony of this new form of taqlfd did not however, escape

kad for he goes on to say, "how strange that man can never forsake taqlfd!. In

the name of being opposed to taqlfd, he' begins, in fact, to adopt taqlfd to

whomsoever he respects. "12

On a less personal level, kad, like • Abduh before him, was not

oblivious to the role of ijtihiid and taqlfd in. the reform of Muslim society; he was

as galled by the obscurantism of his colleagues, the 'ulamii.' in their defence of

taqlfd as indeed he was by the unfettered liberalism of the westernized class. He

thus says:

The shopkeepers of religion (the 'ulama ') have given the name of 'religion' to ignorance and taqZfd, to prejudice and indulgence ...

. The purveyors' of the philosophy of enlightened thought and modem research have dressed up atheism and free thought in the disguise of wisdom and ijtihiid. 13 .

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

the idea of reform through ijtihiid was virtually unknown prior to him, AfghiinI

lIA.K. Azad, Tadhkira Ed. ,M~ Ram, (New Delhi: Sahitya Academy, 1968) 22 .

12l.Douglas, Abul Kalam Azad: An Intellectual and Q,eligio.us Biography (Delhi: Oxford University Press, 1988) 53

13 Azad, Tadhkira, 165

14AfghiinI, in the words of Hourani (1962: 108ff.), was one :who embodied the essence of revolutionary pan-Islamism, a blend "of religious feeling, national feeling and European radicalism" and one whose life '~deeply affected the whole Islamic world in the last quarterof'the nineteenth century."

% . . ~M-+ did not gain prominen~ because of this contribution; more than anything el*,

. . he is remembered for having pioneered "pan Islamism", a revolutionary call tpr

the unification of the entire Muslim world against the twin evils of western

expansionism and internal decadence. In his view, the political and military mig~t

of the Muslim world was in itself, quite inadequate to withstand Europe's military

adventurism and Lts cultural hegemony; what was needed was a thoroughgo~

reform of the spiritual and intellectual heritage of the COmlnunity. He appealed

to Muslims to hold fast to the bonds of religion which he described as "$e <

sturdiest of bonds that bring together the Turk, the Arab, the Persian, the Indian,

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

history afresh, unconstrained by the interpretations of the 'ulama'. But Afgh~

was more the ebullient and energetic political reformer given to crisscrossing the

Muslim world, with the hope that he would forge a link between its dispar~te

factions than he was the!=onscientious philosopher/scholar preoccupied with the

crystallization of revolutionary ideas. This therefore, left him with little time aM .

even less patience to adequately expound his own vision for legal reform. A¢

while he was reputed to be highly articulate in many languages-a talent he ~o

doubt, puHo good use in his fiery speeches-he was nonetheless, never quite able

to articulate his thoughts adequately in anyone of them. Systematic discourse

was certainly not his forte, nor for that matter, was originality in thought, at least

in the view of some historians. AfghanI's genius, it is said, lay, not in pioneerittg

many new ideas butin recognizing a point or plea at a given moment as suitable

to his cause. In this way he became a vigorous advocate of all kinds of ref 0$,

some political, others religious and others still, social. 16

.. 15M. 'Imara, AI-A 'mal ai-Kamila, 29

16M. Hodgson, The Venture of Islam: Conscience and History in a Wotld Civilization (Chicago: University of Chicago Press, 1974) vol. 3, 308

Chapter Three 57

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

to Islam and its sacred texts, and undertaken by like-minded political and social

leaders such as Mutmmmad 'Abduh, the grand mufti of Egypt, and Sa'd

ZaghlUl, its one time prime minister. In this way he hoped to revolutioIlize the

intellectual heritage of Islam through the use of ijtihiid, but only if it conformed

to the norms of the rational spirit. AfghanI· was himself a tireless champion of

reason, which he regarded as the postulate of Islam second in importance only to

the belief in a transcendental reality. In the only extensive written work that he

undertook, the al Radd 'Ala al Dahriyyfn, AfghanI states,

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 from the weakness of illusion. Most important, without doubt, is 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 and that it is an obligatioll to cast aside all belief that men or inanimate bodies, whether higher or lower, have any influence of good or evil upon creation . . . It is necessary to reject any belief that God in the Highest has appeared or appears in the garb of 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 disease in certain phases, for the benefit of any created thing. 17

AfghanI's polemics are designed to show that Islam is above the superstitions and pagan practices of animism, the mysteries of Christianity, and the racial elitism

of Judaism and Hinduism. Islam is the religion of reason, par excellence, its

essence is to that extent, identical to modem rationalism and the scientific

method. 18

As for ijtihiid, AfghanI had no need to legitimate his philosophy of refQrm

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

17Hourani, Arabic Thought, 126

18M. 'Imara, AI-A 'mal ai-Kamila, (Cairo: Dar al-Katib al-' ArabI, n.d.) 174

58

its indebtedness to the ideas of philosophers like Ibn Rushd, was on the wbole , '

adequately supported by the traditional intellectual paradigm. He thus predic~ted

his reform package on the social and political structures of early Muslim soci~ty,

helped, no doubt, by his singularly consistent claim that Muslims will never be

truly liberated and progressive unless their future development is based on' the

Qur'an and the ljadfth traditions. 19

But AfghanI acknowledged that the QUr'an itself was in need of a new

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

reinterpretation, seeing that it will be based on reason which is common tq all

human beings, will also serve to make the Qur'an accessible to all thinking pe~ple

and not just a religious elite. "Since reason can interpret," AfghanI maintained,

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

of sound mind and know the traditions of the sala/. the pious ancestors. " He goes

on to say, "The door of ijtihtid is not closed . . . and it is a duty as well as right

for men to apply the principles of the Qur'an to the problems of their time. 20 For

AfghanI therefore, ijtihtid was not just an element of the Law, but rather, an

effective tool for broadening the intellectual legacy of Isl~.

Afghani also condemned taqlfd in dogma which he described as the blind

imitation of the beliefs of the bygone generations. In this regard he says that 1the

frrst subject that ought to be inscribed onto the souls of the community is Ithe

dogma ('aqida) that is based on authentic proofs and sound arguments as folimd

in the Qur'an. The Muslim intellect should shun mere assumption (with reIDlrd

to such dogma) and transcend the blind imitation of the previous generatipns

(taqlfd al-iiba ').21 But he also uses the term taqlfd in his denunciations of MusHms

1~. Rida, Tarikh, 82

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

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

I

Chapter Three 59

who appropriate the cultural entrapments of the colonialists. "Experience teaches

us," he says

as do past events, that the imitators (muqalIidun) in every nation, those that is, who adopt the ways of other, become thereby, an instrument in the hands of the enemy, a platform for launching attacks on the culture of the indigenous people, and bases for the dissemination of foreign propaganda and intrigue. They end up becoming a curse to their community because of their adoration of those they imitate. 22

Afghani's treatment of ijtihtid vis-a-vis the sacred law was however,

neither unique nor revolutionary; he simply reiterated the stock criticisms levelled

against the closing of the door of ijtihtid without making any effort to weave this

concept into his broader efforts at reform. In one place, for instance, he asks

What is meant by 'the doors of ijtihtid are closed?' And on what text was this closing based? Further, which of the Imams had decreed that it does not behoove Muslims, after them, to apply "ijtihtid in understanding religion, or to take guidance (directly) from the Qur'an and the authentic traditions, or to strive earnestly in order to broaden ,their intellectual horizons thereby, and to derive, by way of analogy (qiyas) from the contemporary sciences­-keeping in mind the needs of the times-that which does not contradict the explicit texts (ntlli). 23

But seeing that God had sent Mu1}.am:mad as messenger with the Qur'an

in the Arabic language, those seeking to do ijtihtid must at least be familiar with

the language. And so, any person who was adequately familiar with Arabic, along

wi~ the textual and historical elemen~ ~f the Qur'an has the right to draw legal

conclusions from the sacred sources themselves.24 The celebrated jurists of the

past, like Abu ijanifa, if alive today, would certainly have continued with the

22Ibid., 197

23Ibid., 37.

24Ibid., 38.

60 The ModeJ"" process of ijtihiid, he says. Their accomplishments were indeed great but leir

meditations on the sacred text, far from exhausted them of meaning and ~th; much remains therein waiting to be applied to the needs of today.

I

Afghiini, more so than any other refonner, imbued the tenns taqlid,and

ijtihiid with a new sense, a new purpose almost, that expanded the possibilities

of reform. The term taqlfd particularly, was redefmed to echo the Qur' anic sense

of unquestioning obeisance to a higher temporal authority rather than the

narrower definition accorded it in legal discourse; the term for him, it w.,uld

seem, was not just the antipode of ijtihiid.

As for ijtihiid, its interpretation awaited the sharp intellect of his disc,ple,

Mul}.ammad 'Abduh, a more systematic thinker than his master and one who 'was

to leave an indelible impression on the intellectual legacy of modem Islam.

'Abduh however, acknowledged his indebtedness to AfghiinI for helping him

distance himself from his own form of taqlfd. The asceticism that he had

practiced previously, and which he subsequently forsook for a life of social and

educational reform occurred subsequent to his contact with AfghanI. Despit¢ his

love for teaching and education in general, 'Abduh, \ffider the guidaiJ.~~ of

Afghiini, initially became involved politically in the Egyptian struggle agamst

colonialism. This undoubtedly distracted him from his intellectual pursui1ls, a

point worth remembering for it explains to some extent the alleged superficiality

and immaturity of his philosophy that some have drawn attention to.25

'Abduh's interests in ijtihiid stemmed from his belief that the politica~ and

economic weakness in the Muslim world was but symptomatic of a deep selated.­

malaise that had gripped the very soul and psyche of the average Muslim.; He

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

"W.e. Smith, "Law and Ijtibad in ""un" Int,rnoJionoJ IsLe Colloqllium Papers (Lahore: Punjab University Press, 1960) 111

Chapter Three 61

conflicting systems of education that were in vogue in Egypt at t!1e time: the old

religious school system represented by the Azhar and the modem missionary one

established by the British and the French. The former wll~ reluctant to change its

ancient philosophies and methodologies while the latter, with its focus on

European rationalism, had created an outlook that was spiritually and

intellectually alien to Muslim society. He feared that society would eventually be

destroyed by its "restless spirit of individual reason--always questioning, always

doubting. " 'Abduh was aware of the danger to society if, as he put it, these

destructive weapons were in hands not fully conversant with it. Muslim graduates

of western schools also alarmed him, for whilst being sycophantic to the culture

and mannerism of the West, this group remained unappreciative .of the rigors of

western.intellectual disciplines. "It is", he said, "the appearance of strength which

has led the orientals to imitate Europeans in matters in which there is no profit

without perfecting their knowledge of its sources. ,,26

'Abduh, however, was no less reproachful of the old order: his revulsion

for taqlfd appeared at an early age, while still a young student at the Alpnadi

mosque in Tanta where he was taught~ by rote, the ancient texts and their

commentaries. Later in life he turned his attention to developing a syllabus that

he hoped, would unshackle the Muslim mind from such blind imitation and allow

it to

understand religion as it was understood by the elders of the community before dissension appeared; to return, in the acquisition of knowledge, to its first sources, and to weigh them in the scales of human reason, which God created in order to prevent excess or adulteration in religion, so that God's wisdom may be fulfilled and the order of the human world preserved.27

26A. Hourani, Arabic Thought, 139

27R. Rida, Tan1ch al-Ustadh, 944

62 The Moderni 'S

It was thus, taqlfd as espoused by the 'ulaina' that had destroyed the fabr c

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.

he maintained, had made such rapid progress because of its break from its

religious past, from its false dogma and the superstitions that had imped~d

scientific progress. In Islam, however, intellectual endeavour. was held in bondage

by the antiquated doctrines of the 'ulamii'. "I raised my voice," 'Abduh state$,

to free the mind from the chains of blind obeisance (taqlfd) for 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 reason, makes us people of insights ... it prohibits taqlfd. But the ('ulama ') command us to follow their words blindly; and if one attempts to follow the Qur' an and the traditions of the Prophet, they oppose him with denial, presuming that in so doing they are preserving the religion. 28

The schools of law (madMhib) however, were not without their positive

features: 'Abduh saw them as methods of argumentation (juruq al-istidlalf)

employed by the eponyms of the ancient schools of Law to understand the Qur'$

and the sunna. According to Ri4a, 'Abduh would urge hi~;students to emulate

these imams but only in their adherence to the sacred scriptures (Taba 'hum fi 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 9

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

2~. Rida, Tan-kh al-Ustiidh, 940.

Chapter Three 63

the sunna, categorical and unequivocal in its language, peremptory in its juridical

authority with no room for refusal. A Muslim is compelled to know such

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'

!alayhi; la majal JiM Ii ijtiMd al-mujtahidfn, i.e. a categorical ruling,

unanimously agreed upon, and one wherein there is no possibility of ijtihiid. 30

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

ijtihiid. This would, in effect, exclude the rituals ('ibiidiit) and those acts that are

prohibited and termed al-mulJ.arramiit al-dfniyya. Ijtihiid therefore, will only be

applied to secondary matters that are, in some way, related to the express

injunctions or have-to do with...the application of such an injunction ina given

context or in relation to mattetsthat belong to public law not covered by na§§.

'Abduh does not provide explicit examples in either case, perhaps because of the

obvious difficulty of identifying specific verses as either tanni or qat'f--the

classical categorizations are far from convincing. 'Abduh himself paid mere lip

service to the traditional categories, it would seem: he argued strongly, for

example, that modem interest bearing transactions be allowed, notwithstanding

their prohibition in the Qur'an itself. He argued that while the

3OIbid., 940.

64

people of Bukhara allowed interest bearing transactions on the basis of the needs of the time (tjanlra al-waqt), Egyptian scholars remained unyielding (in their ruling) and dealt with the affluent in the community rather harshly, with the result, that the latter viewed Islam as inadequ.ate (for modem times). Also, people were now being forced to seek loans, at exorbitant interest rates, from foreigners and this is undoubtedly depleting the resources of the country and turning it over to outsiders. The jurists are to blame 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 jurists familiarize themselves with the conditions of the time and adapt their rulings to the (changed circumstances) in a way that would facilitate its practice for the general public. The (jurists) were never called upon to restrict themselves to the preservations of the inscriptions of the books (ofjiqh) and to regard such works as the final word in every matter. 31

This ruling, the appeal of its logic notwithstanding, violates 'Abduh's own rules . i

governing ijtihiid. To compound the issue, he argues his case using the rule pf

necessity or tjarara, a rule that applies to unusual circumstances of a temporaty

nature; it is to that extent, only an exception to an established rule rather than a

replacement thereof; as such, it cannot abrogate nll§~. 32 'Abduh's application pf

ijtihiid in this case, is clearly contrary to the hermeneutics ~f Muslim orthodo~y

and indeed, his own because of its obvious conflict with the text of the Qur'an.

And finally, a word about 'Abduh's attitude to the ijtihiid of the masses.

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

31Ibid., 944.

32According to Abu Zahra (Usul al-Fiqh:40) the rules governing tjarura fall under the category of rukhsa and 'azfma or ordinances of indulgence and !

. ordinances of performance. If it so happens that a categorical proftibition exists 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 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.

Chapter Three 65

to those whose knowledge they trust for advice in the Law. The lay person as

such, is generally not qualified to subscribe to. the legal principles of any

particular madhhab; thus, the madhhab of the mufti that such a person refers to

for advice will, in effect, serve as his own.

The tension in 'Abduh' s thought between the claims of Islam and the lure

of modem civilization offered a "temptation to thinkers of polemical tendency,

more anxious to defend the reputation of Islam than to discover and expound its

truths. "33 FarId WajdI (d. 1954), one time editor of the Majallat al-Azhar,34 the

Azhar University journal, is one such example. His work, Islam and Civilization

clearly echoes this tension between Islam with its truths and laws revealed by

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

conflict between the two, WajdI simply ignored or rationalized any Islamic rule

that he construes as being in disharmony with modernity. As Hourani explains,

whereas 'Abduh resolved such conflicts by saying that only true civilization will

conform to the teachings of Islam, WajdI held that only true Islam will conform

to the truths of civilization~ 36 WajdI's hermeneutics, like that of his Indian

counterpart,Sir Sayed, are thus clearly extra-textual: he regards modem science

and not the sacred scriptures of Islam as the criterion of truth. It is therefore not

surprising that ijtihiid of the inter-textual variety featured less prominently in his

thoughts.

33A. Hourani, Arabic Thought, 162.

l4The significance of the position that Wajdi held as editor of this journal 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 official organ of the Azhar can hardly be dismissed as insignificant." For a thorough analysis of Wajdi's role in the journal itself see W.C. Smith, The Azhar Journal, Survey and Critique (princeton: Princeton University Press, 1948)

35Ibid., 163.

36Ibid., 162.

66 The MOde~ists , Abduh had other disciples who tried to emulate his method of reconl· iling

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

what Hourani identifies as the five most influential elements of that· partipular

milieu: the 'ulama', the sUfi movements, the Salaft school of reform, the modem

scientific spirit, and European philosophy. His early ~aining in the classical

Islamic disciplines offered by the local Qur'anic schools in Tripoli! was

complemented by the modem syllabus that the Turkish government had newly

introduced to the area. His first experience with reform however, was tluPugh

~aftsm: like 'Abduh, he too, initially belonged to a ~iifi order, the NaqsMandf

tarIqa, that is, until he witnessed some of their less than orthodox syncr~stic

practices, at which point his formal affiliation· with the order ended. He

nonetheless, remained deeply influenced by its teachings, and in particular, by the

ethics and mysticism of GhazzalI as enunciated in his opus Il}.ya 'Ulam al-+Dfn.

That the latter left a lasting impression on Ricj.a long after his disenchantment; with

sufism is, I think, evidenced by his stress, in all his works, on good intentions

(niyya) , self purification (tadhkiyat al-nafs) , and the need for spiritual

development.

The greatest influence on him thereafter, was, without doubt, the wri~ngs

of al·AfghanI and 'Abduh that appeared in their short-lived journal, Al- 'Urwa al­

Wuthqa. Later in life, he was to become the friend and confidante of 'AbdUh, a

relationship that left a deep impression on him. Of the effects of the journal on

him, Ricj.a writes

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 another ... My own experience and that of others, and history, have taught me that no other Arabic discourse in this age or the centuries which preceded it has done what it did in the way of

Chapter Three

touching the s~t of emotion in the heart and persuasion in the mind.l'

67

He met • Abduh in. 1894 and was immediately impressed by the latter's knowledge

and erudition. Thereafter, he committed himself to the propagation of his

master's thoughts: together, they launched the al-Manar, a periodical which

functioned as a conduit to transmit their thoughts to the general public. Some of

'Abduh's ideas however, underwent a transformation at the hands of RicJli, which

is why I chose to deal with those regarding ijtihtid in this section as well as in the

section dealing with the salaft perspective on ijtihtid. Ricj.a, as I.will explain

presently, was a modernist or neo-salafi in terms of his political philosophy but

a salaft in terms of his religious outlook.

Muslim retrogression, he believed, was the result of factionalism, religious

intolerance and territorial nationalism; these had severely curtailed the dynamism

of the Islamic community, the umma. Islam, Ricj.a averred, has prescribed for the

. umma ijtihtid and ra'y as a means of .making civic and social policy conform. to

the changing times and circumstances. At a time when the Turks were grappling

with their own political destiny and that of the Islamic world, RicJli compiled his

OPliS al-AI}.kiim al-Shar<iyyaft al Khiliifa alIsliimiyya as a solution to the Turkish

dilemma.38 Turkey, which had tried, with limited success, to come to terms with

~estem civilization and particularly the. west's miliary prowess, was acutely

aware of the limitations of the old political structure of which it was chief, and

the need to reform that structure. The kind of reforms that Ricj.a was suggesting

under the rubric of ijtihtid was called teceddut and later yenilik . by the

modernizing Turks. Teceddut however, was. singularly distinct from ijtihtid in that

37 A. Hourani, Arabic Thought, 226

38For a thorough study of the intellectual and social aspects of Turkish life 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 I

The ModerJ,.ists i

it transcended the dictates of the sacred texts as expounded in Islamic Law. The

entire refonn effort of Turkish modernism was thus, undertaken, not in the ~e

of Islam as such, but in the name of the Revolution, the great dominating fa~tor

in Turkish political and social life. This of course, was but a harbinger oi1 the

Kemalist revolution that was to pledge itself, in the fIrst place, to Turkey ,and

then to Islam, to nationalistic interests rather thafl to those of the umma, anji to

the calls of Ataturk, more so, than to those of Mu1}.ammad. ,

But for now, the Turkish debate on political teceddut involving the two

main parties of the time, the Turkish Nationalists and the Party of Religious

Refonn of Said l,;IalIm Pasha did indeed focus on Islam as a factor in the

country's future. 39 The latter party, for instance, propounded the orthodox Vliew

that Islam is not just an element in Turkish nationalism but rather a univ~sal

unity of "the eternal verities of freedom, equality and solidarity ... (and) as

. there is no English mathematics, German astronomy or French chemistry .. " so

there is no Turkish, Arabian, Persian or Indian Islam.40 The Turkish Nationalists

on the other hand, were preoccupied primarily with the establishment of; the

modem nation-state: this, they believed, was the essential factor in Tur~h

national life, it detennined the character and ethos of allliOther factors inclu4ing

the religious. 41 Islam, to that exteD:t, was subordinate to the national will ~d

separate from the political considerations of the state. Both parties were

nonetheless, in agreement that ~ditional Islam as practiced till then in Turkey

was inadequate for the refonnation of Turkish society. As for the 'ulamii', they

were so preoccupied with protecting their personal interests by placating i the

discredited old order, that it became all but impossible for them to exercise~the

39See in this regard, S. Mardin: Religion and Social Change in Mod,ern Turkey (Albany: Suny Press, 1989)

~. Iqbal, The Reconstruction of Religious Thought in Islam (Lahlj>re: Shah Muhammad Ashraf, 1951) 156 .

4IIbid., 153.

Chapter Three 69

kind of leadership needed for the promulgation of new Islamic legislation in

military, economic and political matters. Riga concurred with the reformists that

if the reins of power were given to them they would fail hopelessly in leading

Turkey to prosperity .42

But the alternative was no less worrisome to Riga: judging by the number

of Muslims who became alienated from their faith, the fears that • Abduh voiced

vis-a-vis deracinated Muslim intellectuals, had come to pass. This too, he' blamed

on the "lethargy of the 'ulamii', (and) their inability to explain the verities of the

faith to its adherents and to defend' it against the exigencies of the modem era" . 43

The Turks he maintained, were in· no position to defend Islam nor were the

Hijazis; the situation thus demanded the resuscitation of the Khiliifa in a neutral

territory (Riga had' suggested Mosul in Iraq) under the command of one who

would be endowed with the qualities of leadership and ijtihild .

This individual, will be a graduate of a special college set up to train the

nominees for a legislative assembly, and will ultimately have but one primary

function: to be the mujtahid of the umma, its supreme legislator, and one who

will bring the sacred Law to bear on contemporary society. To that extent, he

will have to be thoroughly acquainted with the Islamic sciences as well as with

current affairs, including, amongst other things, the structure of the political and

religious organs of the world such as the Papacy and the Vatican. His deputies

will be scholars qualifIed to give legal rulings (fatiiwti) as well as those competent .

to officiate in courts and those who specialize in public law. Riga was thlls not

hostile to the idea of a legislative assembly (al-tashrf1 but only if it comprised

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

that the laws promulgated are in consonance with the dictates of Islam.

42R.Riga, Al-Khilafa au al-Imama al-'Uuna. (Cairo: Matba'a al-Manar, 1922) 64

43Ibid., 65.

I

70 The MOder~ists In his political structure, the khalifah, along with his cabinet are to sJrve

as the official representatives of the Prophet; as such they must be endowed ~ith

all the powers and responsibilities that accompany such a position. Obediencl:! to

the khalifa is compulsory, and to the extent that his pronouncements ar~ in

confonnity with the sacred sources, his ijtihtid supersedes that of any o(ber

mujtahid and is binding upon every Muslim .. It will theref9re, not be permissible

to follow any other ijtihtid in public affairs (al-1na§iilib al- 'iimma); the individual

however, is not precluded from following his own ijtihtid or that of some odler

mujtahid in matters that are strictly personal. 44

In truth, Ri<Ja' s package of legal reform is neither unique nor modem, ibut

his idea of establishing a school for aspiring mujtahids cum legislators is quite

novel, perhaps the most progressive suggestion for political reform to come f110m

a traditional scholar. But his legal ijtihtid, as such, remains grounded. in

traditional thought: it essentially revives the call for the ijtihiid mu/laq of !the

classical period i.e., the inter-textual inference of laws directly from the Qut'an

and the sunna without recourse to historical interpretation. His legal reform$us

lacked the kind of boldness that characterized the ijtihtid of 'Abduh's other

disciple' AlI 'Abd al-Raziq, whose controversial work, Al-/tliim wa U~ul al-lJU/cm

was in fact roundly condemned by Ri<Ja himself. That Ri<ja's ijtihtid was fmhly

entrenched in the sacred sources is also clear from the fact that the khalifa in ~is

scheme must be fluent in the Arabic language. This is a requirement becajJ.se

ijtihtid, sO he says, is contingent on a thorough understanding of Arabic syntax

and etymology, poetry and prose; in short, on every aspect of the language tpat

sheds light on the text of the Qur'an and the sanna.4S This, I might add,! is

precisely the kind of ijtihiid--call it 'Abduh's salafllegacy, if you will--that i

surfaces with regularity, in Ridli's political philosophy. That it became

44Ibid., 79.

4sIbid., 87

Chapter Three 71

increasingly difficult for him to remain faithful to the salafi elements of 'Abduh's

as. well as the modernist, is most apparent in his treatment of riba or usury.

Given the Qur'an's condemnation of riba, not to mention the harshness

of the punishment it promises those who flout the law (barb min Allah)46 one

expects from Ri<Ja a strong condemnation of this form of commerce; instead, one

finds a rather spirited argument in favor of1he practice. Though he concedes that

Islamic law prohibits interest bearing transactions and that it ultimatel is the

ideal way for the community to follow, he nonetheless, argues in favor f such

practices because, as he puts it, Muslims are now faced with great dif lculties

when trying to secure a loan, and when they do, it is more often than n t from

non-Muslims who are hostile to them and to their religion. This, he belie es also

depletes the resources of the community, and is therefore, clearly detrim ntal to

the economic welfare of the Muslim. world.

Ri<Ja, like 'Abduh before llim, argues for the relaxation of the ri a rules

on the basis of tjarara or necessity; but this recourse, as mentioned previously,

only provides temporary relief from the strictures of the law and is in no way

meant to replace a ruling, particularly not one that is based on ~~. But Ri<Ja

seems unperturbed by this and states: "The jurist's broadening of the definition

of riba and their inclusion therein of factors unknown in the period of revelation

. . . and the great strides that the economic and monetary fields have made, of

the kind that give instant benefits to those who pursue their monetary affairs along

that pattern . . . all these factors have brought about the subservience of the

Muslim masses to foreign powers. "47 Now, it may indeed be that,}u<Ja presented

this argument, against his better judgement, in support of his master,' Abduh, but

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 warned of war with God and His Apostle." (279:2)

47Ibid., 98.

72 The Modernists

Hourani inclines to the view that Ri~a genuinely believed that ijtihlid could be

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

Finally, Ri~ shared some of Muhammad Iqbal, the Indo~pruJstani thinker's perspectives on the Islamic intellectual process, particularly his viei.. that

ijtihtid is Islam's "principle of movement". Without ijtihlid, it wouW be

impossible to unite Muslims and restore Islam to its erst,!,hile position of cop.trol,

Ri~a claimed. Muslims, not too long ago, controlled the far comers of the ijlobe;

now, however, thanks to their abandonment of ijtihiid, they have been ass.gned

a peripheral role by others. In addition, they suffer from within, a debilitating

spiritual and moral torpor that robs them of their will to control their own destiny

and, worse still, causes many to abandon religion. 48 Ri~a confesses that to ~each

the Egyptians and the Turks about Islam is indeed an onerous task, fori they

ignore the Law and the teachings of the past generations. His appeal therefore,

is directed to what he calls the ahl al-qa~d wa al-i'tidal or those well intenttoned

and moderate scholars of religion and science who are endowed with the gift to

search for a via media between the crass materialism of modern society and the

obscurantism and superstitions of what passed for the Muslim intellectualle~acy.

Iqbal would certainly have approved; he was after all, one of a handful

of Islamic thinkers who grappled with the "question of reformulating the basic

ideas of Muslim theology. ,,49 But he was nonetheless, no less confused tru.n his

modernist colleagues in his understanding of the concept and its place in thJ new

theology. As mentioned previously, ijtihlid for Iqbal was nothing short of the

very "principle of movement in Islam", synonymous with the ijtihiid mUJipq of

the early community, except that it was no longer confined to the founders q,f the

school. This ijtihiid, "though not formally abrogated in the law, has over the

years been hedged round by conditions which are well-nigh impossibJe of

" 48Ibid., 82.

49JI. Gibb, Modern Trends in Islam (Chicago: University of Chicago !tress 1954) 10 ' '

Chapter Three 73

realization in a single individual;" and this, "has reduced 'the ··law of Islam

practically to a state of immobility. "so

He believed that this was brought about fIrstly, by Muslim orthodoxy's

reaction to the con~oversy surrounding the question of the creation of the Qur' an:

the. 'ulama' who were perturbed by the destabilizing effects of the Mu'tazilite's

rationalism on the moral and ethical fabric of Muslim society, were constrained

to utilize the binding force of the shan'ah and to make the structure of their

legal system as rigorous as possible. The second factor that he believed, stultifIed

the creative impulse of ijtihlid was sufism in its speculative, as well as its ascetic

expressions. The former, a form of free thought that was in alliance with the

rationalism of the kalam philosophers, posed the same threat to the Muslim world

as did mu'tazili rationalism. As for the latter, its emphasis on the distinction of

the itihir from the btiJin (appearance from reality), where appearance would refer

to this world and reality to the hereafter, created an attitude of indifference to all

that was this worldly and hence, not teal.51 The third factor was the sacking of

Baghdad in the mid-thirteenth century. Muslim, scholars, devastated by the

aftermath of the Mongol scourge, saw the need to maintain the social life of the

community, and they undertook to do so in the only way known to them: by

preserving the sanctity and the preeminence of the law.

Thus far, Iqbal has stated what he believes, contributed to the f~ssilization

of legal thought in Islam or, in his words, "the reduction of the law to a state of

immobility." But nothing has yet been said about the fate of ijtihiid. Did Iqbal

consider its doors closed? Apparently not, for he states quite emphatically,

elsewhere, that the closing of the doors of ijtihiid is "pure fIction", suggested'

partly by the crystallization of legal thought in Islam, and partly by that

intellectual laziness, which, "especially in the period of spiritual decay, turns

so M. Iqbal, The Reconstruction, 149

51Ibid., 150.

i 74 The MOde1nists

great thinkers into idols." In this way Muslim orthodoxy succeeded intuJjning

the idea of the closing of the doors of ijtihiid into dogma, despite the fac~ that

"neither in the foundational principles nor in the structure of the ISI~mic

intellectual system . . . is there anything to justify the presept attitude. ,,52

Iqbal, unlike-many others in the reform movement, was not unfatl1-iliar

with the history of Islamic law. He thus, speaks with und~rstanding, of Shafi'f's

views on the subject as well as those of some of the later thinkers like' Ibn

Taymiyya and SuyiiJI. He was also aware of how the term was used by

reformists such as the Wahhabis, but while he heartily praised the spirit of reform

in these movements, particularly that of the Nejdi, Ibn Wahhab,s3 and the Nprth

African, Ibn Tumart,54 he nonetheless, remained skeptical of their calls for

ijtihiid. He thus points out "that while these movements rose in revolt against the

finality of the schools (the mo.dhtihib) , and vigorously (asserted) the right of

private judgement, (their) vision of the past is wholly uncritical, and (in matiters

of law) they mainly fall back on the traditions of the Prophet ... 55 The fact that

S2Ibid., 178.

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, magical rituals, the intercession of the deceased, and the worship of saints. Ow.y 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 teachings -

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 (London, 1976). .

54 . : Muhammad b. 'Abd Allah b. Tumart was the 12th century founder< of

the Almohad (al-Muwa1;.l}idanJ reform movement in southern Morocco. lIe 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)

551bid., 153.

Chapter Three 75

Iqbiil refrained from using the term ijtihad for these efforts at 'reform seem to

substantiate the idea that the term for him had transcended its historical

connotation. To what extent this is so is however, not clear. I will illustrate this

by examining his treatment of the debate on secularization and the Khilifa that

raged in Turkey prior to Ataturk's decision to abolish the Khilifa and formally

accept secularism as part of the Turkish constitution. With regard to the

Nationalist Party of Turkey and its advocacy of secularism he says firstly, that

"the structure of Islam as a religio-political system, no doubt, does permit such

a view . . . ; "56 but later, he contradicts this by stating that "Islam is a single

unanalysable reality. . . In Islam, the spiritual and the temporal are not two

distinct domains, and the nature. of an act, however secular in its import, is

determined by the attitude of mind with which the agent does it. 1157

The above is but one example of the dilemma that Muslim modernists

have been faced with vis-a-vis the sacred law and ijtihiid and it is one that is most

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

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

instance, he accepts, at the outset, the classical deflnitionof ijtihiid as equal or

synonymous to qiyas. This, in effect should have subordinated ~s concept of

ijtihiid to the sacred sources of the Law, the Qur' an and the sunna. But after

conceding this much to orthodoxy, Iqbal attempts to incorporate into his paradigm

the very liberal value system that prompted him to undertake his reconstruction

iIi the first place, an effort that has mixed results, at best. Thus, on occasion he

considers abolishing the laws engendered by the jurists and muftis or dispensing

with the schools of law and going beyond even that, to the sacred sources and

S6Ibid., 154.

S7lbid., 154.

76 The MOdernrsts

questioning the utility of a law that was promulgated quite that far back. Butl he

often shows misgivings about this and doubles back to defend a traditional

perspective from the criticism of others.

For example, while he accepted that ijtihiid only operates within the lunits

ef the revealed texts and therein it is absolutely free,58 he was also '.willing: to

broaden its scope to include other sources of guidance such as the modem sOdial

sciences. This is evident from his statements on the Turkish experiment Wlith

legal reform. He says, "we frod (in Turkey) that the idea of ijtihiid, reinforced

and broadened by modern philosophical ideas, has long been working in the

religious and political thought of the Turkish nation. This is clear from Halim

Sabit's new theory of Muhammedan Law, grounded on modem sociologi(:al

concepts. If the renaissance of Islam is a fact, and I believe it is a fact, we 1100

one day like the Turks, will have to reevaluate our intellectual inheritance)'59

With regard to one such inheritance, the schools of law, Iqbal has this to say:

I know the 'ulamli' of Islam claim fmality for the popular schools of Muhammedan Law . . . but since things have changed and the world of Islam is today confronted and affected by new forces set free by the extraordinary developments of human $oughts in all directions, I see no reason why this attitude should be maintained any longer. Did the founders of our schools ever claim fmality for their reasoning and interpretations? Never! The claim of the present generation of Muslim liberals to interpret the foundational legal principles, in the light of their own experience and the altered conditions of modem life is, in my opinion, perfectly justified. 60

But Iqbal was equally quick to criticize those very interpretations; this much! is

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

S8Ibid., 178.

59Jbid., 153

6OJbid., 159-60

Chapter Three 77

undertook to reinterpret the law'by distinguishing between the purely religious

elements of the law and the social. The latter, he maintained, stemmed from the

value judgements of a given community and were, to that extent, open to

modifications as may be demanded by the collective conscience of the

eommunity.61 Iqbal responds by focusing on what he sees as a tendency within

Islamic liberalism to trample on tradition and destroy the broad human outlook

which Muslim people have imbibed from their religion.62 In their zeal for reform,

Iqbal fears that the liberals may exceed the proper limits of such reform.

In summary, Iqbal's dilemma viS-a-vis legal reform is, in many ways,

symptomatic of modernist thought in general: coping with a legacy whose

vibrancy was stultified not so much by dogma nor yet by the ethics of the faith

but rather, by a particular state of mind, taqlfd and perhaps, more importantly by

its protagonists, the 'ulamli'. But unlike those whose appeal for change and

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

unmistakablt:: uneasiness in abandoning that very past. "No people can affQrd to

reject their past entirely," Iqbal asserts; "for it is their past that has made their

personal identity. "63 For these individuals therefore, the reformation of the past

is all the more complex, and the rejection of its rules as preserved by the 'ulamii'

through taqlfd all the more perplexing; after all, each one 'of these rules; simple

though they might appear to be from the outside, is" in the words of Iqbal.

"endowed with a life value of its own, inasmuch as it tends to give such society

a specific inwardness, and further secures that external and internal uniformity

61For an overview on Gokalp's philosophy see, Z. Gokalp Turkish Nationalism and Western Civilization: Selected Essays Of Ziya Gokalp (London: Unwin Ltd., 1959)

62M. Iqbal, Reconstruction. 163.

63lbid., 167.

78 Th'M~ which counteracts the forces of heterogeneity always latent in a societyi of a

composite character. 1164

64Ibid., 167.

CHAPTER FOUR

THE SALAFlYYA

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

universally recognized. This, I suspect, is what prompted 'Abduh and, to a lesser

80 The Sq.lafiyya

extent, Riga to use the tenn salafi with such abandon on a movettlent tl$t was,

in reality, quite unlike its namesake.

The neo-Salafiyya, as some have called it or the Manar moveII?-ent--from

AI-Manar, the mouthpiece of the same movement--is described by David

Commins as a movement

that assimilated current ideas about reason, progress, science and technology to a vision of Islam that held out to Muslims the promise of remaining true to their religious and cultural identity at the same time that they were borrowing technology and. scientific learning from the West. 1

The relationship between the West and its technological prowess was inci¢lental,

they maintained, and Muslims therefore were in no way impeded by theiir faith

from making even greater strides in this direction. But first, they would have to

overcome blind allegiance to the recent past, to the 'ulama' who perpetua1ied the

regimen of taqlfd, and sanctioned ritual innovations. 2 These Salafiyya, it must

be. remembered, were ardent proponents of reason and science; contemporary

ideas on these topics were grafted onto Islam through the instrument of ijtihtid

which, for them, had two significant roles to play:

First, ijtihtid gave practical expression to Islam's rationality: 'ulama' exercise their powers of reason to understand scripture; with that understanding, (they) discern general principles by which social affairs should be governed; and they derive specific precepts 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 Ottoman Syria. (New York: Oxford University Press, 1990) 5."

2Commins, Politics and SociaL Change, 141

3Ibid., 141.·

Chapter Four 81

There were certainly quite a number of simlarities between the two salafi

movements: both, for instance, stridently opposed the practice of taqlfd and

condemned its proponents of giving precedence to the rulings of the imams and

their 'ulamii' over those of the Prophet The latter, both claimed, are ina sense

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

even regard the taking of one's life and property in such a case as pennissible.

Even the more pious among them regard the defIlement of their critics honor as

lawful.

Both groups also found problematic the fact that many of the adherents of

the madhahib interpreted the concept of ijmd' such that it applied to the four

schools of law only. This despite the fact that there has been no unanimity among

the .scholars themselves on what constitutes ijmd'; some in fact defme ijmd' in a

way that would preclude the very unanimity they claim.4 The schools were also

accused of a kind of intellectual arrogance for their efforts to restrict ijtihtid to

their adherents only, notwithstariding the fact that there have always been scholars

elsewhere, equally knowledgeable and qualified to exercise ijtihiid.

This fonn of religious refonn however, comprised that is, of a

preoccupation with unity, a disdain for taqlfd, .a condemnation of innovations

(bul'ah) and a partiality to reason in the fonn of ijtihiid, came to be regarded by

many scholars, particularly in the West, as the salient·features of the SalafiyYa

4We know from Schacht (1950:82) that the 'ancient schOols of law' 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 substituted instead, the idea of the universal Muslim consensus but mostly "as a 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

movement, the brain child of Mu1}.ammad 'Abduh. 5 But as Hourani points out, .

when 'Abduh talked of the salaf,

he meant in a general way the creators of the central tradition of Muslim thought and devotion, from the Prophet to GhazzalL Either because of a certain vagueness in his concepts, or from a sense of the overriding importance of unity, he had been content to construct a synthesis of elements which might prove incompatible with one another if any of them were carried to its logical conclusion.6

The remainder of this chapter will, I believe, vindicate the foregoing perception.

that the Salafiyya movement of the nineteenth and early twentieth centuries and

its espousal of ijtihiid was in many Ways unrelated to the pre-modem movement

of its namesake. The genesis of the pre-modem Salafiyya movement, hils in actual

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

Qayyim al-lawzlyyah (d. 1389). The former, regarded by some as a "bright and

bold spirit" and by others as the "rigid fundamentalist. who was intractably:

opposed to §ufi innovations and the blind imitation of the rnadhiihib"1 held certain

unorthodox views on ijtihiid, taqlfd, . reason and revelation, views which'

subsequently became the salient characteristics of the Salafiyya. But it was, above.

snus we find in Marshall G.S. Hodgson, The Venture of Islam: The Gunpowder Empires and Modem Times (Chicago: University of Chicago Press) i

Vol. iii, P.288, that 'Abduh's followers, led a move~ent, the Salafiyyah "which i eventually spread throughout the Arab lands and even in Malaysia. " Ira Lapidus, : 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

" I

6 A. Hourani, Arabic Thought in the Liberal Age (London: Oxford i . University Press, 1962) 230

'H. Gibb, Modem Trends in Islam. (Chicago: Chicago University Press, 1954) 34

Chapter Four 83

all, the Yemeni scholar Mu1}.ammadb. 'Ali al-Shaukani (d. 1834) who brought

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

the movement a reformistic character.

ShaukanI, regarded by many as the intellectUal doyen of sunni

fundamentalism, was in fact a ShI'I, boni and reared in a Yemeni family of the

ZaydI persuasion--the sect that constitutes, in relation to the sunnis, the more

moderate element in Shi'ism.8 But unlike the Sunni schools who regarded the

'doors of ijtihiid' as closed, the Zaidis, we learn from Messick

had no such debate concerning the practice of interpretation. For the Zaidis, the 'gate of ijtihiid' had always been unproblematically open, and the aggressive advocacy and pursuit of interpretation became a hallmark of their school. 9

It is likely that ShaukinI imbit>ed some of his partiality to ijtihiid and his aversion

for ra 'y from this tendency in ShI'I legal hermenutics. It must be remembered

however, that the Shi'I emphasis on ijtihiid applies only to the derivation of the

law from the sacred texts. Rational mterpretation of the law, outside the text as

such, was not one dimension of this form of ijtihad, which means, that the

principle of qiyiis, a key element in Sunni jurisprudence was, in effect, not

recognised. Tabataba'i, in his Introduction to Shi'i Law explains

that the inference of legal precepts in Shi'i l~w is fundamentally baSed. on logical analysis and reasoning within the framework of Qui"anic texts and Tradition. Rational argument is accepted on the

sne Zaydis are distinguished from the Ithna 'Asharis or the 'twelvers' 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 up in 12271741 in Kufa as rival to la'far al..,Siidiq. See, in this regard R. Strothman, "Zaidia," Eneyclopedia of Islam, 1913-34 ed .

~. Messick The Calligraphic State: Textual Domination and History in a Muslim Society. (Berkeley: University of California Press, 1993)

84 ~~ basis of Aristotelian deduction, which brings certainty according to the principles of that logical system. The, kind of analogical reasoning which is entitled qiyas in Islamic Law was rejected by the Shi'a from the time it came into Islamic Law, in the 2nd/8th century, because it leads only to a probable cause for a precept, not to the certain one, 10

In other words, a law so derived, by way of analogy will be based, not on an:

explicit text (fUl§~) as such but on rational speculation (ra'Y). The same can,

therefore, be said for other juristic principles integral to Sunni law such as'

istihsan,l1 17Ul§lahal2 and isti~~abI3 all of which are rational tools for legal

inquiry. 14

IOJI. Tabatabii'I, An Introduction to Shi'i Law, (London: Ithaca Press, ' 1984) 29

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. .

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 to Goldziher (Introduction: 233) "one may depart from the norms established in 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 schools of law, "seeks a link", according to which a practice once proved to be widespread may be presumed to be both traditional and continuing. "(Qadri, 1991:124) But as Coulson (1964:92) points out, the concept as such, is not, 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 . . !

. is as suCh, endorsed by Islamic jurisprudence as whole, although the Shafi'Is i

perhaps apply it more consistently than the other schools. "

14Tabatabii'I (1984:33) points out that the question of rational discourse in : the law in ShI'I circles was not entirely dissimilar to approaches in sunni circles: : there was a conservative tendency as well as a rational. The latter only accepted I

well-authenticated hadIth traditions and "implemented those principles bf u§iil al­fiqh which were contained in the traditions of the Imams. Like SUnni"traditionists, however, they were chary of writing about legal subjects with words other than I

exactly those mentioned in the traditions." As for the consevatives, they "followed traditions without compromise and completely ignored the principles

Chapter Four 85

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

one above: he too propagated a return to the texts, a rejection of ra'y, rational

speculation in the law and, if the following statement is any indication, shared in

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

ijtihad, for relaxing the hold of taqlfd, and for not restricting the permissibility

(of ijtihiid) to specific imams in contrast to the other taqlfdi imams. "IS But even

as he praised the Shiite proclivity for ijtihiid he found that the mood among them

was increasingly inclining towards taqlfd, a fact that no doubt, bolstered his

resolve to oppose such practices.

ShaukanI's movement appeared in aD. era quite distinct from that of

'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

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

of any foreign power as such nor against the kind of religious laxity that occurred

elsewhere as a direct consequence of the deculturation of the Muslim intellectual.

of U§iil al-fiqh and the rules by which a tradition could be examined. They completely ignored the procedures of debate, reasoning and modes of discourse. " The ShI'I traditionis,ts were thus, in more ways than one, similar to their SunnI counterparts, the Zahirites.

15M. 'Imara, Al-A 'mal al-Kamila Li Jamal ai-Din ai-Afghani. (Cairo: Dar al-Katib al-'Arabi, n.d.) 161

16Southern Yemen was colonised by the British in 1839 when it gained -control of the port of Aden; this period of colonisation only ended in 1967 with the establishment in the south of the Peoples Republic of Yemen. As for the north, it remained under Ottoman control until the end of the first world war in 1918 when the empire itself collapsed. For a an o~erview of the latter period see Farouk 'UthmanAbazah, AI-Qukmal-'Uthmdnfftal-Yemen(1872-1918) (Cairo: al-Maktaba al-'Arabiyya, 1975). Also see Mul}ammad b. Yahya ai-Haddad, Al­Tan1ch a17Amm Ii al-Yaman, 5 vols'. (Beirut: Dar al-Tanwir, 1986) for a general history of the Yemen.

,

86 .. "lbL4a

Rather, It was the result of factors that were wholly indigenous to Islamic society

and, to some extent, traceable to events that took place during the early phase <i>f

the law i.e., the period following Shaft'I.

I mentioned previously (see ch.2) that Shaft'i successfully melded the

scriptural and speculative expressions of early Islamic law into a stru.c~e wherein the latter, as the hermeneutical tools qiyiis anq ijmo:, would bea

subordinate to the sacr~d texts. Shaft'f's thesis, which ultimately became the

normative theory of the Law, failed nonetheless, to placate the dOctrinaitte

traditionists entirely. Some remained intractably opposed to qiyiis and ijrna '--as

was the case with the Zahirites17 and the ijashwiyya18---while others, such as the

ijanbalitesl9 , sharply curtailed its practice. The scriptural literalism of the earllY

Ahl al-ljadfth, although relegated to the periphery of Muslim intellectualism,

nonetheless remained a strident voice of dissent throughout the centuries.

Shaukani, who belonged to this cadre of thinkers succeeded--where !tis

counterparts had not--in achieving some respect and recognition even amon~

modem reformists~ But whereas Afghani, and more so, 'Abduh popularized the

idea of ijtihtid among the liberal elements of Muslim society, it is Shaukani who

should take credit for having done so among conservatives. While his writings on

17Ib . n ijazm (d.1064) of Cordoba, the arch proponent of the Zahirite doctrine had this to say about qiyiis: "qiyiis constitutes an error, disobedience an4 innovation. Its us~ ~s not permissible for a~ving at legal decisions regard~ any 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)

1BPor ~ore information on this group see A.S. Halkin, "The Hashwiyya, ~ Journal of African and Oriental Studies, 54 (1934), 1-28. !

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 See m ~s rega~ Ibn qudama ~I-Maqdi~i, AI-RaWljat al-Nai.fr wa al-Jannat all Mantiilr fi al-U§ul al-Ftqh. (Cairo: Dar al-Pikr n.d.)

I

Chapter Four 87

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

circles in Arabia and Indo-Pakistan respectively they also contributed greatly to

the anti-madhhab sentiments that are today rampant in much of the educated

circles of the Muslim world. In order to understand his philosophy regarding

ijtihiid I will now examine one of his polemical works, . the Al Qaul al-MUftd ft Adilla al-Ijtihiid wa al-Taqlfd.

In this work, Shaukani presents his arguments in the form of a discourse

with persons whose identity is for some unknown'reason kept a secret. He merely

describes them as adherents of heretical practices or as scholars defen~ing . such

practices. Given the situation in Yemen at the time, they may well have been

adherents of the Shaft'r school for, as Messick points out, there was indeed a tug­

of-war of sorts between these traditional rivals for territorial control of that part

of Arabia. Confmed originally "to a far northern sphere of influence by strong

Sunni states based in the southern highlands, Zaidi imams eventually managed to

assert their control over the districts of Lower Yemen as well. ,,20 A long, period

of political control interrupted· only by a relatively brief reappearance of the

Ottomans in the latter part of the nineteenth century

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 population (ra'~a); the inverse of this imaging was theShafi'i view of the Zaidi imams as tyrants and of their tribal sUpporters as ignorant and ruthless. A reciprocally hostile sentiment long characterised Zaidi-Shaft'i interaction. . .21 . .

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,

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,

~essick, The Calligraphic State, 40-42

2IIbid., 41.

I 88 The SalaMa

endorses· taqlfd in this verse, for He instructs those without knowledge to reter

to those more knowledgeable among them. But Shaukanr points out that the verse

is in fact, being quoted out of context; the Qur' an, in the said verse, does ~o

more than rebut the criticisms of those who question the likelihood of revelatibn

ever coming to a mere mortal. One cannot therefore, draw conclusions from this

verse on the permissibility or otherwise of taqlfd. But ev~n if one goes alopg

with the opponents' improper use of the verse, he says, it still fails to prove their

point, for the term dhikr in the verse in question refers to the Qur'an and sunrza

and thus makes abundantly clear the fact that the Quran endorses !tribii' and not

taqlfd. 22

This attempt at distinguishing between text-based ittibii' and blibd

obedience (taqlfti) is characteristic of Salafiyya polemics, found in almost aU lof

their major works. In addition to the Qur'an, appropriate I}.adlth traditions of the

Prophet are also used extensively; these may take the form of directives that t)le

Prophet and his senior companions gave to persons soliciting rulings about Islatn.

In all such cases, Shaukani shows the solicitation to be, not an act of taqlfd, but

merely a search for textual evidence. This, according to the Salafiyya is wIiat

distinguishes ittibii' qua ijtihad from taqlfd: the former is always based on textual

evidence, albeit, in the form of a legal pronouncement (jatwa) of a muftI, while

the latter refers to an opinion or even a fatwa that is not corroborated in the same

way. That the taqlfd that they railed against, may in fact be the inevitable

consequence of the very literalism that they so greatly prize, seems to have

escaped Shaukani. This search for textual proof is, after all, no more than ~e

postponement of the moment at which taqlfd becomes necessary, for, the

questioner, notwithstanding his scrutiny of the sources, will at some point ~e

constrained to defer to 'blind obedience' and accept, prima facie, the evidence ~f

some scholar on a matter beyond his scope of knowledge. In .,doing so, he

22M. Shaukani, AL-Qawl al-Mufidfi Adillat al-ljtihad wa al-Taq/id Carrb, 1974. 110. I

. -

Chapter Four 89

becomes, ipso facto, a muqallid. This point is underscored by the proponents of

taqlfd, as will be shown hereafter.

A slightly varying but not unrelated argument that ShawnI presents deals

with the question of mediating scripture through rational inquiry, or, as he puts

it khafr al-ightirti bi al-r~'Y mujarradan 'an al-kittib wa al-sunna. Thus, those

who practice taqlfd defer to mere conjecture, and, by extension to .their whims

(hawan), while those who follow scripture follow ijtihtid. If, as the Qur'an says

this day have I perfected your religion and completed My favors unto you and have chosen for you Islam as the religion'(9:5) and 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 innovated .. .if they believe that (their ra 'y) is integral to the faith 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 it is in fact not integral to the faith, then what possible gain is there in becoming involved in matters not related to the. faith. 23

This is, perhaps, the most pronounced difference between the neo-salafi method

of' Abduh et al., and Shaukani: for the latter, reason, or more accurately, rational

discourse not related to the establishment of the primacy of textual evidence in

any given matter, is an inappropriate mechanism in the Law.

ShaukiilI also ascribes to taqlfd the fragmentation of the Muslim

community. The unity that Muslims so yearn for, and that which in reality, is

a religious obligation, can occur only when the muqallids abandon the madhiihib

and strictly follow the most authentic proofs from the scriptures.24 That this policy

may instead cause a proliferation of schools far greater in number than the current

four is something that seems not to have overly concerned the Salafiyya.

Muqallids also use ijma' in support of taqlfd:the latter, they argue, cannot

be pronounced heretical because it has been ratified and appropriated into the

23Ibid., 159.

24Ibid., 138.

90 The salata

sacred' Law by the ancients. But Shaukanr is quick to point out that there is. if

anything, a historical lack of consensus in this regard: the eponyms of ithe

schools, including the Hanafis, are in fact, on record as having opposed Ithe

practice. Abu Hamfa himself is quoted as having declared: "it is not permissible

for one to follow our pronouncements if he is unaware of our sources. "25 He Who

follows this advice no longer remains a muqallid but becoIl}es rather, a mujtahid.

That the Hanafis were singled out for special mention points to the existence of

a substantial Turkish influence in the area. The Ottomans, who, at the time ~re

making concerted efforts to change the sultanate into a full-blown khilafa gained

much notoriety for also trying to promote the Hanafi school throughout areas

under their control. According to Hodgson26 this led to much discriminatio~: it I

often required that an Ottoman, in addition to being Muslim, also be a Hanafi.

Shaukanr, it is likely, was familiar with this policy, which perhaps, only fur¢.er

strengthened his resolve to oppose taqlfd.

That the muqallids constituted a telling presence in Yemen is clear from

his comment that were a mujtahid to raise his voice publicly in protest agaiJnst

taqlfd, it is likely that he will be physically assaulted if not killed. The muqalljps, -

he indicates, in addition to the political favors which they ~enjoyed, were alsa in

control of the educational institutes of the area and the masajid.27 M4nY

proponents of ijtihlid, he claims, were thus forced into silence by the bullying

tactics of their influential adversaries, not just in Yemen but throughout /he

Muslim world.

But he admits that taqlfd also flourished because of internal decay: it Pas become entrenched in the minds of the masses" he says. "Hanafis espouse it, as

do Malikis, Shafi'is, Hanbalis,. and indeed, the shiite Zaidis; and thus, any

25Ibid., 128. .. 26M. Hodgson, The Venture of Islam: Conscience and History in a World

Civilization. Vol. 3, (Chicago: University of Chicago Press, 1974) 107 I

27Shaukani, Al-Qawl al-Sadid, 133.

I-I ,

Chapter Four 91 1

intelligent person would agree that were someone to openly attack this practice

he could well stir up a riot. "28 The masses, out of ignorance, are wont to follow

their scholars rather than scripture while the scholars, for social and economic

. reasons, are unwilling to guide them towards ijtihiid. In addition to the popularity

and social status that they procure in this way, the 'ulama' of taqlid, ShaukanI

explains, also obtain teaching posts in schools on the basis of their affiliation to

a specific madhhab. The same can be said for the imams and khaffbs, preachers

of the local mosques; they too are reluctant to jeopardize their careers by

abandoning taqlfd. 29

Like the modernists, Shaukanr saw taqlfd as a threat to the dynamism of

the sacred law but how he hoped to reconcile that with his antipathy to reason and

rational discourse is not clear. The proponents of raqlfd, he says, in closing the

doors of ijtihiid, are in effect, saying that the understanding of human beings have

changed for the worse since the advent of Islam. To accommodate such a

preposterous postulate is to concede that the Law is inaccessible in so far as new

problems present themselves. Not having the intellectual aptitude to unravel

solutions to new problems, in effect, gives the lie to the very belief of every

Muslim that the sacred law in conjunction with human intelligence can provide

answers for every contingency. 30

But he then launches an attack on reason and rational discourse. He cites

numerous traditions of the Prophet, all of which convey, more or less, the same

message: "this umma, " the traditions warn us "will have gone astray the moment

it begins basing its actions on ra 'y. "31 Here again, for Shaukani, as opposed to

the neo-Salafiyya, reason is only meant to unravel the rule of the sacred law as

28Ibid., 131.

29Ibid., 167.

30Ibid., 169.

31Ibid., 153.

92 The sa~yya I

enunciated in the scriptures; all else is nothing but delusion (tjalala). T~ that

extent, 'Abduh's refQnn movement, which he characterized as salafi, cont~ined

two contradictory impulses not found in the thoughts of ShaukanI: the scri~tural

legalism of traditional salafism and the modernist proclivity to reason and rational

discourse. Some of 'Abduh's disciples therefore, shared ShaukanI's revulsion for

the decadence of popular Islam with its innovations and .foreign accretions!; and

broke with 'Abduh by following ShaukanI's views on the question of reason. This

group which became increasingly suspicious of modern thought and the liberal

ethos that it was engendering in the Muslim world gradually replaced 'Abduh's

enlightened salafism for the more doctrinaire version touted by ShaukanI. Thus

we fmd fof example, that in the Morocco of the 1920's some of 'Abduh's

disciples shifting the emphasis from taqifd towards salafi literalism; this, in ilarge

part, due to the discrediting of the traditional 'ulama' no doubt, but also, to'some

extent, to the rejection of western liberalism. The stress, Lapidus points out, was

on the purification of Islam through "opposition to saint worship, and defense

against western cultural encroachment. ,,32

It was in Egypt however, under the guidance of 'Abduh's star dis¢ipl~,

RashId Riga, that the conservative element of salaIlSID. made its presence felt.

Riga, whose modernistic tendencies in ijtihiid were examined in the last ch~ptet,

shifted the emphasis of 'Abduh' s salafism from rational thought and the adoption

of liberal values to its erstwhile role of opposition to Shiism, Sufism and t'Wlfd.

According to Gibb33 while 'Abduh, in his 'Treatise on Unitarian Theology'

(Ristila al-Taul}fd) resuscitated the "traditional dialectic" of the Salafiyya, ,Riga

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 University Press, 1988) 707.

33Gibb, Modern Trends in Islam, 34.

Chapter Four 93

combining with this the quasi-rationalism of scholastic logic . but without

Mul}ammad 'Abduh's ballast of catholicity."

As shown previously, Riga's ijtihtid in matters of public welfare were not

unlike those of the liberal factions of the refomi movement: like them, he too

believed that the Muslim community, .through its representatives can promulgate

laws (qanun) that are in the public interest. But in matters of worship and social

customs he maintained an inflexible loyalty to salafi scriptUralism arguing, like

ShaukanI, that the disunity of the umma was directly attributable to the kind of

loyalty that ?v1uslims displayed towards the four schools of law instead of the

sacred scriptures. A return to the Qur'an and the sunna was for him the only

solution to this discord that he believed, had been engendered by the madhtihib.

Unlike ShaukanI however, he concedes that differences of opinion will not all be

eliminated by the solution that the Salafiyya proffer; hence, in the event that the

sacred sources be interpreted contradictorily by two or more equally qualified, he

suggests that the community follow the opinion of the majority. 34

Just as the religious hierarchy of other faiths caused the fragmentation and

disunity of its people by proclaiming to be the only possessors of the truth so too,

Riga maintained,

was the case in Islam; the behavior of the 'ulama' in sowing discord is just as serious, but for a small group (the salafi, no doubt) who were faithful to their convictions. But the voice of this minority is not heard because of the clamor of the majority, especially those (patronised by) the ruling elite who, in turn, (gain by having) their control of the masses bolstered through the legitimacy they procure from such 'ulama'. 3S

34M. 'Abduh and R. Rida, Tafsir al-Qur'an ai-Hakim. 12 vols. (Cairo: Matba'ah al-Manar, 1927-361) vol.1, p.49.

3sIbid., 50.

[

The Salafiyyal 94

Riga traces the beginnings of taqlfd to some of the most prominent

scholars and exegetes of the past and is particularly rankled by scholars such as;

Fakhr aI-Din RazI (d. 1209) for having endorsed the regimen of taqlfd. The latter,

he argues, in doing so, in effect, turned a blind eye to the Qur'an itself whereini

similar unquestioning obeisance by previous nations of its priestly hierarchy is:

repeatedly condemned. The malady of blind obeisance that RazI calls the undoing

of previous religions was in fact perpetuated in Islam by people of his ilk. Razi

ought to have known, Riga argues, that "Muslims are regarded as superior to all

other communities only because of their high regard for evidence (that

corroborates their actions)" ... they therefore, (ought to) refuse to accept any

matter in religion not based on evidence . . . but the blight of taqlfd has made:

them oblivious to this sterling quality that distinguishes them from other

religions. 36

Islam, for him, is certainly the religion perfected by God, and His

argument (hujjat Allah) as expressed through the Qur'an and the $unna. But

Islam's veracity and indeed that of the sacred Law that it spawned cannot be·

demonstrated except through the use of reason. The Law, in particular, is rooted

in ijtiluid, and therefore, whosoever impedes the function of ijtiluid is in effect

impeding the hujjat Allah and destroying not just the infrastructure of the Law but

also its potential for contributing to the betterment of modem times. 37

ljtiluid however, is to be applied only in matters of Law and not dogma

(!aqfda) for the exercise of ijtiluid in the latter case, Riga believes, is bound to !

engender heresy. As in the case of Christians, Muslims too are likely to;

contaminate their faith thereby; this is quite evident, he says, with those who

beseech others besides God to relieve them of their afflictions, believing wrongly.

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

36Ibid., 62.

37lbid., vol.5, p.420.

Chapter Four 95

one closer to Him (yuqarribuna ila Allah Zulfa). It is unfortunate he l;unents, that

only this kind of ijtiluid remains in Muslim circles. This in essence, is nothing but

idolatry (shirk), for it ascribes partners with God in his divinity (uluhiyya).

"There is," he says "no ijtiluid in dogma nor any analogical deductions in the

principles of faith: Iii ijtiluid fl al- 'aqaid wa Iii· qiyas fi a# al-ieman. " This last

is quite possibly directed towards the tendency in some ~i1fi circles to. sanctify

some of their more questionable practices by way of qiyas. The Ahle-l.;Iadlth

movement of India, discussed hereunder, was also particularly vocal in this

regard: like Riga, it too opposed the use of analogy in efforts to legitimize

accretions and deviations such as shrine worship (qabr puja) and the birth

celebrations of the Prophet (milad al-nabf).38

Riga's treatment of ijtihad, I believe, is somewhat arbitrary: apart from

its role in the political structure of Islam--which he, admittedly, explains at some

length--there is no coherent analysis of the possibilities and the limitations of this

legal tool. Instead, he presents, what I would characterize as a string of rather

amorphous arguments that fail to identify essential flaws, both. historical and

conceptual, that he claims, exists in the structure of the madhiihib. For instance,

in one place in his exegesis, he analyses the lack of conjugal affection and

compassion in society and ascribes that, as well, to Muslim society's

abandonment of ijtiluid. Muslims, he says, no longer refer to the Qur'an for

inspiration; their problems instead, are taken to scholars and to their works

which, in addition to being devoid of spirituality and wisdom, are 'also often

divisive. And if someone took it upon himself, to bring peoples' attention to the

~'an, hoping thereby, to rekindle the spirit of ijtiluid. he is accused of

fomenting trouble and of wanting to· destroy the four madhhabs. Little do such

38B. Metcalf, Islamic Revival in British India: Deoband, 1860-1900. (Princeton: Princeton University Press, 1982) 273

96 I The SalaJiYya

people realize that the vitality and well~being of these 171.adhtihib is, in fact,

contingent upon such action. 39

Such arguments however,' should not be construed as the product iof a

mind attuned to the critical ·method of the modernist; it is, in my opinion, sitbply

Riga's way of substituting the taqlfd of the scriptures for that of the madh4hib.

As Jomier points out

l~rsque. ~chld_ Ri9.a attaque l~ soumission aveugle a I'argument ~ a~tonte (taqlld), II se borne a apporter les textes coraniques qui mVltent les hommes a la reflexion mais il ne· fait aucune remarque sur la portee de la reflexion demandee ni sur les limites 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 vue critique la portee de ses ar.guments. 40

Rida's views are, in more ways than one, echoed by the the Ahle-lJaidith

movement of the Indian subcontinent. Furthermore, unlike the Egyptian neo­

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

subcontinent. In addition to having its own ideas on ref?rm, quite apart [tom

other reformists, the AhIe-l;Iadith movement also mai~tains peculiar SQcial

customs: this includes, its own places of worship, style of prayer, and even. an

easily recognizable cut of beard. Along with an antipathy to folk Islam an4 its

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

persecution vis-a-vis other Muslims. This, despite the fact that they generytlly

belong to the middle class and have historically attracted an inordinately bigh

number of Muslims from socially prominent families: some, who were

39'Abduh and Rida, Tafsir al-Qur'an al-Hakim, vol.6, p.398.

. 40J. Jomier, Le Commentaire Coranique du Manar (Paris: Editions G _Po Mamssoneuve & Cie., 1954). '

Chapter Four 97

descendants of the Mughals, others, who belonged to the landed gentry and others

still, who held influential governmental positions.

The movement is said. to have started in the seventeenth century through

contacts with the Hijaz whence the study of l;IadItb as an integral part of the legal

discipline of Islam was introduced in India,. 1]J.e syncretic faith statement of the

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

Muslim's relationship with prophecy and the sunna. The l}adith movement was

thus launched to revive that relationship.41 While many regard Shah WaIi-Allah,

the 18th century reformer, as the movement's intellectual patron, the person who

left a lasting impression on its outlook and philosophy was in fact, the nineteenth

century scholar, Siddiq Hasan Khan, otherwise known as the Nawab of Bhopal.

Nawab Siddiq, who, by his own accounts, had a rather modest beginning was

thrust, in a short time, through marriage, into the influential position of viceroy

of Bhopal.42 ,

The creed of the Ahle-l;Iadith as articulated by Nawab Siddiq was that "of

a group which does not follow, either in the broad principles 01-" in the minutiae

of canon law, any of the four juristic schools, and which in theological dogma

subscribes to the view of neither the Ash'arites, the Mitiiridites nor the

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

similar to that of its precursors, the medieval Zahlris except for the ract that they

also accepted th~ Sufi doctrine of mystical illumination as a function of the faith,

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 Muhammad Siddiq Hassan Khan. Nawwab of Bhopal (Lahore: 1973)

43A. Ahmad Islamic Modernism in India and Pakistan, 114

I 98 The Salafita

but not in its institutionalised form of sanctuaries (Khtinqah), spiritual lead~rs

(ptr) and innovations (bid'ah).44

If understood within the context of Muslim India this movement's calls for

ijtihad will be viewed, not as a response to the alienation of Muslim intellectuals

from their faith nor even as a mechanism to restitute its culture, but as an effbrt

to remove the scourge of popular accretions and personal~ty cults that came' to

characterise the Islam of that era. Its appeal to ijtihiid therefore, was more a

reaction to taqltd than a concern for the restoration of the law to its historical

position of authority in Muslim society. Its sense of suffering and of being 1Ib.e

oppressed upholder of the truth is understandable given the number of ideologi<:al

battlefronts it had created with both, the partisans of the popular ~ijfi practi¢es

and those of the madhtihib. There was, for instance, its dispute with the Barelwis

and their custom laden style of Islam, with its emphasis on the veneration :of

saints (ptrs) and a belief in salvation through intercession rather than good works.

Then there was .the Deobandi group with whom the battle was probably more

spirited if only because . both groups, unlike the Barelwis, styled themselves las

religious reformers.

While . there was agreement between the two vis-a~vis popular practices

(bid'ah), they differed considerably on the question of legal reform. Deobancltis

(see hereunder) were loyal Hanafis, true to the spirit of taqltd, while the Ahle­

IJadrth regarded as sacrilege the practice of identifying strictly with one schQol

of law, and worse still, the taqltd of any single imam.

This movement's condemnation of taqltd'and its espousal of ijtihiut was

not the result of any liberal tendencies on its part. If anything, it viewed the

liberal "nechari" movement of S.A. Khan et.al. as a clear portent, of an

impending apocalypse; such reforms were nothing more than the pretentiQUs

"

44For an explanation of these and other aspects of ~ijfi practice see A. Schimmel, Mystical Dimensions of Islam (Chapel Hill: University of Nor Carolina Press, 1975)

Chapter Four 99

ramblings of those whose hearts were filled with futile (western) knowledge. The

Ahle-IJadlth's objectives vis-a-vis ijtihiid and taqltd were thus, quite unrelated

to those of the neo-Salafiyya of Egypt or the Aligarhl Movement in

India.

The following anecdote, an Ahle-IJadith father's advice to his son on his

way to prison, captures the bellige;,rence that characterized the relationship

between the latter and the Deobandis. "My son," he cried out, "never forsake

amen and ra/,yadain (practices peculiar to the Ahle-IJadIth form of worship) and

keep firm in the faith. It is not Christians and Jews who have destroyed you but

the Hanafis". 4S The arguments between these two groups revolved around issues

of positive law' that were, in the main, peripheral to the Muslim predicament in

India. The most contentious issues were equally the most highly visible; in the

words of a British official, who was witness to one such issue which caused a

near riot: "A vital question of religion, no doubt a most important question . . .

should Amen be said loudly with the hands crossed over the chest, or should it

be said softly with the hands crossed over the stomach. " 46

The term taqltd is more prominent in Ahle-IJadlth literature than is ijtihad,

and this for several reasons. Firstly, like their salafi counterparts they too

accepted ijma' and qiyiis as part of the principles of Islamic law but, unlike the

majority of Muslims, they did so in a restricted sense only. Their preoccupation

with precise interpretations, and their suspicion of reason as a legitimate source

of the law all but excluded the exercise of ijtihad in the form of qiyiis. The

sources of the law were strictly the Qur'an and even more so, the I}adlth

traditions of the Prophet. To them both the modernists and the Hanafis were

wrong in their attitude to I}adlth; the former because they lacked the "capacity of

4sQuoted in B. Metcalf, Islamic Revival in British India, 281

46Ibid., 275

100 The-to determining the correct hadis by comparing it scientifically with the incorrect" 47

and the latter for subjecting l,1adIth to the pronouncements of their school of Iiaw.

The Able-I;Iadlth, like the Salafiyya are at pains to distinguish betJeen

taqIfd and ittiba': the former is the blind imitation of an imam or a school of!law

while the latter is conformity to the norms and behavior of the Prophet as

enunciated in l)adlth. "AmuqaUid"; Nawab ~iddlq tells l!s,

is one who does not ask about the ruling of God or the Prophet (in any matter) while the muttabi' always enquires as to the ruling 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 muftI (who he refers to for a ruling) responds accordingly. If it occurs to the (questioner) that the fatwa (in question) is contradictory to the Qur'an or the sunna of His messenger then he ignores the ruling.48

This, according to the Able-I;Iadlth, is when textual evidence (riwayah) is b¢ing

solicited from (the muftI) and not opinion (ra'y): the first was construed as itt{bti'

and the second as taqlfd and innovation (ibtidti').

The taqIfd th~t the Ahle-I;Iadith found most repugnant--and their

adversaries most relevant--was taqIfd shakh.§i or the emulation of a single imjun.

Nawab Siddlqpoints out that a quest~oner is under no obligation to attach ~elf

to the rulings of any single imam or mufti. Thus,

if another matter requiring (legal clarification) should come to pass then the (abovementioned) questioner need not ask the same muftI; any scholar that he encounters would do. Nor does he have 10 devote himself to the fatwa of the first imam nor cling obdurately 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. 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

47Ibid., 275.

48Ibid., 172

Chapter Four

al-bid'ah: .. providence in (practicing) the sunna is better than striving in the performance of an ifinovation 49

101

In conclusion, it is clear that for the Able-I;Iadlth, as well as theSalafiyya, taqlid

was the real object of scrutiny; their entire process of reform ''was based on its

removal and replacement with emulation of l)adlth; to that .extent ijtihtid was

relevant.

The case of the Syrian reformer, Jamal aI-Din al-QasimI and his treatment

of ijtihtid and taqlid is rather unique in that it encompassed to some extent all the

factors espoused by both the conservative Salafiyya and its more liberal

namesake, the neo-Salafiyya of 'Abduh. Ijtihtid, for Qasmi, whilst significant for

legal reform, was nonetheless, more important as an instrument for scientific and

material progress, an intellectual weapon in the fight against secularism and

western liberalism, a mode of discourse for rational inquiry into the faith, and a

means to avoid the inflexibility and obscurantism that came to be associated with

taqlid.

While the 'ulama' of Damascus defended taqlid as a safeguard against the

misinterpretation of the Quran and l;Iadlth literature, QilsimI railed against it for

its anti-rational and divisive tendencies. He thus wrote that "taqlfd is a leprosy

which has spread widely among the people. It has begun to wipe them out: indeed

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

opinions of the four madhtihib all of whom are reputed to have denounced taqlid

and encouraged ittiba' . Like 'Abduh, he also believed that· "the only correct wa~ to follow the imams would be to apply their methods, not to reiterate their

substantive rulings"and like him, he also lamented the fact that taqlfd closes the

49Jbid., 175.

sOCommins, Politics and Social Change in Late Ottoman Syria, 71

102

doors on rational discourse and reason and impedes society's quest for the trulhi.51

"The hearts of most people", he points out,

are confused with the disease of imitation', they believe something, then seek a proof for it. They do not want anything but what agrees with what they believe. When someone comes with' what differs with their belief, they reject it; they would oppose it, even if that led to negating reason entirely. Most people believe and then reason; you rarely fmd one who reasons and then believes. 52

Like the modernists, he also argued that the inflexibility that taqlid

engenders makes Islam inappropriate for contemporary society. The socio­

economic problemS that Muslims faced in the mid-nineteenth century--such as the

desertion of wives by husbands who had emigrated to the west in large number$-­

necessitated a reinterpretation of the family laws in Islam. QasimI, for his part

often toured Damascus's environs and nearby district centers, where he met officials and notables who told him that many \ women suffered from such a situation. When he tried to annul their marriages after years with no word from their husbands judges refused on the basis of the Hanafi school's ruling encoded . in the MajaUah, the Ottoman civil code. 53

.: .. The foregoing underscores the point made earlier on, that a significant

number of calls for ijtihiid and attacks on taqlid were in reaction to Otto~

authoritarianism and its insensitivity to the socio-economic hardships that its

rendition of Islamic Law placed on the locals. In Tunisia, we know that effotts

by the Maliki 'uIama' to introduce similar reforms in education through the

introduction of modern subjects and pedagogical methods into the school systetm

51Jbid., 71. ~

52J. Qasmi, Awamir Muhimmaji Islah al-Qada aI-Shar'i, (Damascus: AI-Taraqqi Press, 1913) 72 I

s3Commins, Politics and Social Change, 72

Chapter Four 103

were strongly resisted by the Hanafi scholars and the rulers. 54 The same can be

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

imposition of Hanafi law on followers of the MaIikI school. S5

QasimI however, his intellectual acumen and social awareness

notwithstanding, was, in the end, not unlike Nawiib ~iddIq vis-a-vis ijtihiid: he

made no real attempt to analyse the concept within the context of Islamic law. His

solution to the legal problems were nevertheless, more sophisticated than those

proffered by others in the Salafiyya movement: instead of reducing ijtihiid solely

to the procurement of rulings from the sacred sources with little regard for reason

and particularly qiyiis, he proposed that jurists seek recourse in talflq by

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

applied by jurists throughout Muslim history in situations where adherence to a

specific school of law would have caused hardship. QiisimI proposed that this

practice be formally recognized as a category of ijtihiid and be applied, with

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

precedent as such, but on the principles of the schools of law. This form of

ijtihiid was actively practiced in early Islam after the demise of the eponyms of

the schools by scholars known as mujtahid muntasib or mujtahid fi al-madhhab

(see chapter 1) except for the fact that their ijtihiid often reinterpreted the rulings

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)

s5For an overview of this period of Sudanese history see R.L. Hill, Egypt in the Sudan 1820-1881 (London:1959) ,

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: AL­Taraqqi Press. 1913),

106 ThelS~S each other, in their methodology and approach to the implementation iof the

sacred Law within their respective social milieus. For the Ikhwan, ijtihf4 and

taqlid remained largely peripheral issues overshadowed, in. the main, by the

socio-political circumstances of Egypt, while, for the Jamat, the same issu4!s took

On ponderous proportions in Pakistani society. This study shows, once again, that

even an issue as parochial as taqlid was ultimately, no~ unrelated to the broader

problem of the Muslimworld's perception of its own image vis-a-vis the world

community. While both the Ikhwan and the Jamat became emtteshed in this issue

out of a concern for the future of Islamic Law, their interests therein werej in the

final·analysis, integral and subordinate to their quest for an umma undivi~ed by

the socio-religious paraphernalia of the past.

In 1924 when the Kamal regime in Turkey formally abolished the ~slamic

caliphate the final chapter on Islam's political and intellectual hegemony ended.

But more importantly, the world-view that for centuries had served :as the

infrastructure of that hegemony also became a thing of the past; having !ost its

relevance, it too needed to take cognizance of the new world order. Whereas

previously the mere presence of Islamic law influenced societies within its

purview, the disestablishment of the caliphate changed" all that. While Aqtturk's

decision to abolish the caliphate was but the culmination of a long period of

decline and decadence, its effects were nonetheless no less devastating Ion the

psyche of Muslims everywhere. This, because it made explicit what till then, was

obvious only to the Muslim elite: the Muslim world's slow, inexorable sl~(fe into

subservience and its domination by other cultures and civilizations was no'jV a/ait

accompli. Muslim society was thus challenged by an anomie, a lack of P1l1rpose,

if you will, that only served to accentuate the despair of political defeat. '

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

local school teacher, together with the group he helped establish, the Al-rkhwiin

Chapter Five 107

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

weltanschauung that spread rapidly throughout the Muslim world. The formation

of this movement however, just two years after the denouement of the caliphate

was, as Hamid Enayat points out, not unrelated to the social, cultural and political

transformations that were being wrought upon Egyptian society by the

colonialists. These included

the post war orientations to apostasy and nihilism which were engulfmg the Muslim world, the attacks on tradition and orthodoxy--emboldened by the Kemalist.revolt in Turkey--which were organized into a movement for the intellectual and social emancipation of Egypt, and the non-Islamic, secularist and libertarian trends which had pervaded the entire academic and intellectual climate of Egypt. 2

Islam, for both the Ikhwan and the Jamat was based more on its two

foundational documents, the Qur'an and the prophetic tradition, than on any

previous historical interpretation thereof. It was for them, not just a religion, but

rather, a holistic, self-evolving system (mutakamil bi-dhiitihf) , one that addressed

all the vicissitudes of life; it was a faith that was relevant to both the present and

the future, to Egypt and indeed the rest of the world. In short, it represented, for

them, a comprehensive ideology, unrestricted by spatio-temp0ral constraints.3

That Islam for the Muslim in the past was a comprehensive world.view,

applicable to all times and places, is true only to the extent that he knew of no

other system. It was, in other words, a way of life without any ~ alternatives.

But in a world of competing ideologies, where the same world-view, when

contrasted with others, was now being perceived by some as less than perfect, the

Islamic movement's alternative view was propi~ious:it filled a teleological void

lH. Enayat, Modem Islamic Political Thought (Austin: University of Texas Press, 1982) 84

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

that the traditional 'science of disputation' ({ann al-muniii.ara) be revived to

regulate scholarly discourse in an atmosphere of harmony and tranquility. 57 llis

principles of a scholarly dispute have been summarized by Commins as follows:

The fundamental rule is to base conclusions on proofs and to set aside sectarian and legal school prejudices. Thought can wander freely only when it is not limited by the boundaries of the schools . . . in a truly free discussion, only mujtahids free of legal school biases should participate. 'Ulama' with an interest in upholding the schools would refuse to admit the validity of positioils at odds with their schools, thus· allowing partisan interests to distort discourse. By contrast, the mujtahid discussant recognizes the truth no matter who speaks it and admits his own errors. 58

This suggestion, unfortunately for scholarship in general, failed to t'fnd 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.

I S7Por more information on this aspect of the tradition bf intellectpal

discourse in Islam see Ibn Khaldun, Al-Muqaddima (Cairo: Dar al-Pikr, n.~.)

p.458 ~lbid .• 74. I

CHAPTER FIVE

TIlE ISLAMISTS

This chapter will focus on the role of ijtiluid in the reform program of the

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

shared many doctrinal and perspectival commonalities, including that on sacred

law. I Both felt strongly about the sacred Law but its restoration was important,

not as an objective in itself, but because of its centrality. to an undivided, Islamic,

political order.

Like their modernist and salaH counterparts, the Islamists too lanlented the

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

of taqlid. But they differed sharply with the other reformists and indeed, with

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 inefficient system of communication." More to the point, I suspect, was the existence of factors common to the experiences of Muslims everywhere which prompted such remarkably similar responses. Included among these are "a 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

and in time, became a veritable faith statement, an article of faith aIIDost, inv~ked

to this day, by many in.the Muslim world. I

Banna himself, however, was no philosopher, and his approach t~ the

challenge that he had assumed therefore, was less philosophical and centere~ on

a series of practical ventures designed to help realize his quest for a siqgle,

undivided Muslim community. His reform focused on schools, mosques, social

clubs and even cafes, and through the production of literature that simplifi~ the

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

mass appeal: included in its ranks were college professors, teachers, civil servants

and even members of the armed forces and at its zenith the Brethren boast¢d a

membership of almost a million.

Social and religious concerns however, soon gave way toalmo$ta

preoccupation with the political welfare of Egypt. Factors indigenous to Egypt,

but also some outside its borders were largely responsible for this change in

priorities. In addition to the rampant nationalism sweeping through Egyptian

society, and the struggle of the economically·disenfranchised, there was also , the

problem 'of Israel; the birth of a Jewish national state on the fallen ashes ofithe

caliphate hardly. went unnoticed. S

4This was particularly essential in the case of the ordinary Egyptians--by 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 technical, out of date, and require a life study. With the change of economic and 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 produced by groups such as the Ikhwan.

t

sAs is clear from the writings of Muhammad al-Ghazzali (1965:48)'1 an 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 Biblical name, Israel, was but a poignant reminder to the Muslims of their fal'l re 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

Chapter Five 109

This to some extent explains why the complexities of the new

weltanschauung were defmed, not in Egypt by the MUsliin Brethren but in

Pakistan by its sister organization, the Jamat-e-IslamI. The Brethren, Professor

W.C. Smith argues, suffered from a lamentable lack of a realistic awareness of

the actual problems of the modem state· or its society, let alone solutions to

them . . . a failure to recognize that they do not know the answers to modem

politico-socio-economic questions in detail. The Jamat in contrast

was in the fortunate position of having the leadership of Abu al­A'Ia MaudUdI who would appear to be much the most systematic thinker of modem Islam ... (who) presents Islam as a system, one that long ago provided mankind with set answers to all its problems, rather than as a faith in which God provides rltankind anew each morning the riches whereby it may answer them itself. 6

But it must be said with regard ·to the Brethren, that their situation was

quite different: the intellectuals prior to them, beginning with 'Abduh, RilJ.a and

'All 'Abd al-Raziq--whose legacy Hassan al-Banna and the Brethren, correctly

speaking, inherited--had earlier on, engaged in the very issue that Maududl later

took up: the debate on the nature and the necessity of the historical caliphate in

Islam. Ricjli, as shown previously, was one of the few scholars who succeeded,

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

is known, frequented the meetings and sermons of Ricjli and, for some time after

the latter's death, even managed the publication of his journal, the al-Maniir.7

According to Hourani the Brethren: through Banna, appropriated much of the

general outlook of RilJ.a: like him, "they condemned innovations in doctrine and

kingdom of Jordan and the kingdom of Saudi Arabia etc. but no Muslim country prepared' to identify with the faith even in name.

6W.C.Smith, Islam in Modem History (princeton: Princeton University Press, 1977) 234-5

7H. AI-Banna, Mudhiikirat al-Da'wa wa al-Dii'iyya (Cairo, n.~.) 49

i

110 The ISlami~ts worship, and accepted the rights of reason' and public welfare in matters of SOC~al morality, -but insisted that they should work within the limits imposed by ~e

moral principles of Islam. liS But the Brethren, in my opinion, were denied the

opportunity to develop and refme the political, vision of Ri<Ja and others by the

events of the twenties and thirties in Egypt. It was Egypt's struggle against Britilsh

imperialism that held the attention of the movement ~d not the logisti~al

difficulties of setting up an Islamic polity in the modem world as was the case 'in

Pakistan. The Ikhwiin thus, was constrained to forego, for the moment, its vision

of a pan-Islamic world order and to work instead, within a political paradigm

where Islamic interests, proper, were pushed to the periphery.

But the Ikhwiin's involvement in political matters did not entirely isol4te

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

reform efforts of other contemporaneous organizations such as the Salafiyya and

particularly their call for ijtihiid. Banna's response to the madhiihib and taq~id

however, was noticeably less strident. That at least is the impression that Sa'iid

Rama<Jiin, one time architect of the Brethren's legal doctrines, would seem ~

convey. According to RamaQiin, Banna was of the opintonthat every Musl~

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

themselves, as members, to any particular school of law. In this regard he, is

quoted as having said;

And every Muslim who has not attained to the ability to scrutinise the proofs that pertain to subsidiary rulings (adilla al-ahkiim al­Jar'iyya) is obliged to follow an imam and he would do well to strive (an yajtahida) to know the proofs of his imiim notwithstanding this emulation (ittibti '). He should also be willing to accept every directive that is substantiated with proof if it is that

I SA. Hourani, Arabic Thought in the Liberal Age (London: Oxfo~

University Press, 1962) 360

Chapter Five

he is satisfied with the integrity and qualification of the advisor. And if he isa scholar then he ought to hasten to overcome his educational inadequacies so that he may reach the level of the thirikers. (Ahl al-·Nair)

111

Largely because of tms tolerance, Banna succeeded in avoiding the

protracted and enervating squabbles that characterized the relationship of other

reformists with the religious hierarchy and in Pl!I1icular, the 'ulamii'. There are,

in his writings and sermons, no real diatribes aimed at the latter, nor any mention

as such, of substantial disagreements over the legitimacy of exercising ijtihiid in

present times nor of the heterodoxy or otherwise of taqlid and other such issues

which have informed the reform efforts in general. He is, in fact, quite explicit

in his contention

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 the religion, nor does it bring about opposition to (religion) nor hatred, and to every mujtahid there is a reward. Nothing however, prevents impartial scholarly research where differences exist but such research ought to be conducted in an atmosphere of love in God (al-hubb Ii Allah) and cooperation that leads to the truth. This should not, in any way, lead to fanaticism and reprehensible disputes.9

The madhiihib, Banna explains, are a precious legacy whose significance in this

crucial juncture in Muslim history cannot be SUfficiently underscored. II As part

of the efforts to establish the ideal Islamic state,

we hope to establish several Jatwa centers representing the respective madhiihib with a view to facilitating access to the law for both the people and the state. (wa sanujid dar al1atwa al­mut'addida 'ala kull al-madhiihib Ii hiila qiydm al-daula Ii yastaftiha al-afriid wa al-daulafi kuICamr).IO

9Quoted in Sa'id Ramadiin, 78

IOJbid .• 79.

112 The Islalnists

i Banna and the Ikhwan thus, carefully and deliberately avoided the vitriolic

criticisms that characterized the reform efforts of the Salafiyya and the mOdeksts

with regard to the madhiihib: no mention is made of the alleged disuniting

tendencies of the madhiihib nor of its emasculating effects on Islamic dogma.

Muslims are in fact, encouraged to attach themselves to a madhhab witb the

proviso that they understand the sources of the scholars.' Others in the Ilchwan

were even more circumspect in their calls for ijtihiid: Sa'eed IJawwa for eXllIll1ple,

who was, at one time, chief of the Syrian branch of the movement, and olle of

Banna's trusted proteges, came close to actually disavowing the possibilitly of

reopening the doors of ijtihiid. He thus said,

it is difficult for one to become a mujtahid because the c~nditions therefor are hardly likely to abound in any single person. Most people thus have no option but to attach themselves to the 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 shar'i) lest people follow a path unknowingly; this last is what prompted the community to resolVe to fix itself to the schools of law. ,,11 ,-

The latitude and tolerance that Banna articulates vis-a-vis the rnadhiihtb is

but an extension of the catholicity with which all facets of his package of ref<)rms

was imbued. He says with regard to the Brethren that it is in fact a syncretic

effort at religious reform,

l.A salafi missionary movement (00 'wah salafiyya) because it calls for a return to Islam and the sunna of the Messenger. 2. A sunni movement because it encumbers itself to work with the pure sunna particularly in matters relating to the faith and the rituals (al- 'aqa 'id wa al- 'ibadat) 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

IISa'eed IJawwa, Jawlat, 71

Chapter Five

intercourse, loving each other for the sake of God and, being committed to good. 12

113

The kind of catholicity that Banna espoused was, I believe, not unrelated

to what he considered to be the. two greatest needs of the Muslims at the time:

firstly, the need for Muslims to be. united against the' twin evils of western

cultural and intellectual expansionism and the secular liberalism of the Egyptian

intelligentsia and secondly, the need to portray this unity to the outside world.

In contrast, the Jamat-e-IsllimI operated in a political climate which

allowed and even invited groups such as the Jamat to present Islamic alternatives

to secular libertarian ideals. In August of 1947 the national state of Pakistan wits

born and with it the challenge to formulate.an Islamic legal system that would be

practicable in the twentieth century. The Muslim intelligentsia, notwithstanding

its almost unqualified support for an Islamic homeland was nonetheless, far from

convinced that a law as ancient as the shan-'ah. could possibly engender

prosperity and social harmony in an undeveloped country such as Pakistan, a

country beset ;Vith serious etlu:i.ic disparities and communal strife. Mohammad

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

Maudiidi--then, still living in India--to participate in the promulgation of an

Islamic legal structure for Pakistan. Maudiidi was initially against the creation of

such a state for Muslims "because he considered it inappropria(e to use Islam, a

universalist religion, as the ideological underpinning of a nation-state. "13 He

nonetheless, acceded to Iqbal's request, migrated to Pakistan in 1936, and worked

indefatigably towards turning that country into a thoroughgoing Islamic state.

Maudiidf s treatment of ijtihiid was in the context of two factors that were

indigenous to Pakistani society, one of which was largely theoretical in nature and

I~uoted in Ramadan, 84.

13Enayat, Modem Islamic Political Thought, 102.

114 ~l'~' concerned the formulation of a legislature and a judiciary for the newly

independent nation while the other was practical and concerned the religio~

factionalism that had so fragmented Pakistani society.

MaududI's theory of Islamic law as the cornerstone of the Pakistani

legislature distinguishes between one part of the shari'ah which he considered as

having a permanent and unalterable character, and another winch is flexibie • I

enough to meet the ever increasing requirements of every time and age but onJiy

within the purview of the sacred law. ,,14 The unalterable elements of the law ~t

he refers to are the nass injunctions as expounded by classical scholarship; these

would include, inter alia: the prohibition of interest bearing transactions, adulteIl,

the principle that men are protectors and in charge of women, and certa~

limitations on individual liberties such as "the limitation in connection with t:ne plurality of wives where the maximum number has been fixed at four, or that tm: number of divorces to a wife cannot exceed three. "IS

The alterable elements of the law refers to that which is subject "to

modification according to the needs and requirements of the changing times : .

. "16 The legal mechanisms that are essential for the fulfIllment of this facet of the

law are the following:

a- Ta'weel (Interpretation): It consists in probing into the meaning of the injunctions found in the Qur'an and the SUMa. As such, it has always occupied and still occupies a place of immense importance in Islamic Jurisprudence. When those endowed with penetrating insight and legal acumen ponder over the injunctions of the Qur'an and the sunna, they fmd that many of them are open to different fruitful and valid interpretations. Consequently, every one of them accepts some particular interpretation according to his lights on the merits of the case. In this way, the doors of the

14A. Maududi, The Islamic Law and its Introduction in Pakistan. Tr. K~ Ahmed. (Lahore: Islamic Publications Ud., 1960) 26 • '

15Ibid., 26-7.

16Ibid., 27.

Chapter Five J 15

difference of opinions have always been open in the past, are open even today, and will continue to remain so in the future" b- Qiyas (Deduction by analogy): It consists in applying to a matter with respect to which there is no clear guidance, a rule or injunction present for some similar matter. c- Ijtihiid (Disciplined Judgement of Jurists): It consists in legislating on matters for which neither any explicit injunctions nor even precedent exist, subject, of course, to the general principles and precepts of the shan-'ah. • d- IstiJ;.san (Juristic Preference): It means framing rules, if necessary, in non-prohibited matters in conformity with the spirit of the Islamic legal system. '

It is not al all clear from the foregoing what the precise role of ijtihiid would be

in such a legal system. Whilst conceding in passing that the doors of ijtihtid are

still open, he gives no indication as to how such a fact would alter the current

status of the Law. Also, there would seem to be no substa,ntial difference between

his rendition of qiyas, ijtihiid and istilzsan: all three are said to be activated where

a problem has "no clear guidance (from the sacred scripturesr' ... where "neither

any explicit injunctions nor even precedent exist" ... and all three are applicable

"in non-prohibited matters inconformity with the spirit of the Islamic legal

system." What tben, makes them so different from each other?

There is in addition, nothing particularly innovative about the foregoing

definition that would distinguish it from other reformist perspectives. on ijtihiid.

It should be mentioned however. that in contrast to the modernist element in the

reform movement, Maudfidi maintained that ijtihiid is entirely inter-textual and

subordinate to the dictates of the sacred scriptures. In reference to those who

think otherwise he says

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 system of Islam. The real law of Islam is the Qur'an a~d the sunna. The legislation that human beings may undertake must essentially be derived from this fundamental law or it should be within the limits prescribed by it for the use of one's discretion or the exercise of one's opinion. For ijtihiid that purports to be

116 The Islamists

independent of the shan-'ah can neither be an Islamic ijtihiid nor is there any room for such an incursion in the legal system of Islam. 17

Law-makers eager to exercise ijtihiidare also served notice that whilst its

, practice is not confmed to persons professionally qualified as jurists or 'ularna'

as such, it is nevertheless, vital that such persons be suitably qualified for the

task. As prerequisites for the task he cites the following list"of qualifications: a

deep faith in and commitment to the sacred law; a proper understanding of the

Arabic language; a deep understanding of the sacred texts, an appreciation of the'

basic principles of that law and its macro-objectives; a knowledge of the thoughts

and ideas of the classical scholars with a view to maintaining continuity in the

evolution of the law; a thoroughgoing familiarity with contemporaneous issues;

and on ethico-moral disposition'that is not disharmonious with the teachings of Islam. IS

As for the hermeneutics of the process itself, the method of reconciling

traditional Law with contemporary non-traditional society for example, or

reconciling the differences in the classical legal perspectives themselves, these,

and other such areas of complexity and imprecision in the legacy are not dealt

with exhaustively. He simply reiterates the need to respect certain exegetical

principles vis-a-vis the Qur'an and the sunna whose contravention will

undoubtedly cast doubts on the legitimacy of any law that is so enacted. Laws

promulgated in contravention of such principles, he says, "will neither be

accepted by the collective conscience of the Muslim community nor can it form,

an integral part of an Islamic system of law"19

An interesting contribution that Maudiidi makes to the discussion on ijtihiidl

has to do with the various 'mechanisms that he suggests, exist for the I

17Ibid., 79.

18Ibid., 81.

19Jbid., 82.

Chapter Five 117

sanctification of personal ijtihiid and its inauguration into the corpus of the sacred

law . These are, he says:

(a) Consensus of opinion (ijma ') by the learned, men of the community . (b) The ijtihiid of an individual or a group of individuals may gain wide popularity and people may, suo moto adopt their verdict, for instance, the ijtihiid of the Hanafite, the Shafe'ite, the Malikite and the Hanbalite schools of law were voluntarily accepted by large. groups of Muslim masses (c) A Muslim government may adopt a particular piece of ijtihlid as its law, as for example the Ottoman government had adopted the IJanafi. Law as the law of the land, . (d) An institution may be constitutionally empowered in an Islamic state to legislate and it may enact, a particular piece of ijtihlid in the form of law.

Apart from the foregoing, all individual ijtihtid, be it the decision of a judge,

mufti or even the head of state will not count as part of the statutes of an Islamic

state.

Maudiidi's views on ijtihiid were the basis for a lively debate in the legal

and religious circles of Pakistan. Numerous controversies were sparked, one of

which hinged on the role of the sunna in the legal structure that he proposed.

More importantly however, some astute critics of his arguments pointed out that

whilst, in one place, Maudiidi speaks of the overriding authority of the sacred

documents in another he maintained "that in exceptional conditions and

circumstances ijtihiid can be utilized to ascertain the situations justifying

deviations from these injunctions to suit the exigencies of the "time. "20

This proposal, he maintains, is common to legal systems world wide;

every law in the world, 'he says, "makes provisions for exceptions from the

general rules in abnormal and extraordinary situations. "21 Islamic law legitimizes

2OJbid., 82.

2IIbid., 87.

I,J'

118 ' The, Islamists

such practices on the basis of the diction that 'necessities make permissible that

which is otherwise prohibited.' That this process has essentially nothing to dp

with ijtihtid evidently escaped his attention. And if, as he claims, ijtihtid cannot

fall outside the constraints of the Qur' an and the sunna except under extraordinary

circumstances then his concept of ijtihad is narrower even than the classical

versions thereof. Islamic jurisprudence, historically speaking. never did consider

the law of necessity (dariira) an instance of the exercise of ijtihad.

In sharp contrast to Banna and the Ikhwan, MaududI's attitude to the

madhtihib, and the 'ulama' was, generally speaking, considerably less

accommodating; this of course, only served to exacerbate the relationship with

them. Though a IJanafi by birth, he nonetheless refused to be bound by any on~

school as such, for in his opinion, neither the madhtihib nor their antagonists the

Ahle-l;Iadith were entirely correct.22 The latter, despite its claims to not being ~

victim of blind taqifd is, in fact, not to any great degree different from its

adversaries. Its 'meQ1bers too, like the Hanafites attach themselves;

unquestioningly, to the pronouncements of their 'ulama', for the overwhelming

majority of them are quite ill-equipped to exercise ijtihtid; they have no

knowledge of badlth traditions nor of the principles of jurisprudence; their claitn$

that some practice or the other is in conformity to the sacred texts is mere

hearsay; given their limited understanding of these texts, they are in no position

to make such pronouncements.23

But MaududI did not require of his followers that they abjure fealty to the!

schools of law; instead, he welcomed to his group, for reasons that are no.

difficult to fathom, adherents of any doctrinal persuasion. In a country such as

Pakistan, where solidarity and membership of a religious group was the nOTllli

rather than the exception, it was hardly likely that the Jamat would have

I 22A. Maududi, Rasail-o-Masa'il (Lahore: Islamic Publications, 1969)1

voI.l, 235.

23Ibid., 240.

•. t:

Chapter Five 119

succeeded in attracting a substantial number of members 'who had no factional or

sectarian affiliations. It was thus, not prudent for the Jatniit, a reform movement

that advocated pan-Islamic solidarity, to place constraints on potential members.

But he was nonetheless opposed to taqlfd, and like the Salafiyya, he too,

distinguished between it and ittiba'; the former, for him, was the practice of

emulating the pronouncements or the actions of another without regard for its )

basis while the latter was to do the same but with full knowledge thereof. Unlike

many of the Salafiyya however, he maintained that taqlfd is a required practice

for the lay person but not the scholar; the latter should follow only those actions

as are corroborated by textual evidence.24 Even the taqlfd· of the Prophet,

MaududI points out, is permissible only on condition that it be understood at all

times that such authority devolves upon him from God and is thus not absolute.

In other words, it is God, and God alone, who demands total and absolute

obeisance. (Muta' aur amfr Alliih ta 'ala ke siwa kOYf nahi)2S ,'"

He defmes the lay person ('ami) as one who is devoid of any real

understanding of divine proclamations and prophetic traditions and who is unable

to extrapolate legal injunctions from the principles of jurisprudence. Such a

person, he rules, has no recourse but to follow a trustworthy scholar. To believe

however, like many 'ulama' advocate, that one is obliged to emulate a single

scholar at all times to the extent that any disagreement with such a person is

tantamount to heresy is utterly without basis; this contradicts Muslim dogma

because it elevates mere mortals to the ranks of the divine.26

The reactions to MaududI's 'line of moderation between two extreme

perspectives' was quite severe: both groups disparaged his efforts at presenting

what he regarded as an objective analysis of the madhhab issue. He argues that

24Ibid., vo1.3, 356.

2SIbid., voU, 190.

26Ibid., voU, 190.

120 The Islami~ts

'his involvement in this rather. protracted and altogether unwholesome debJte

should be viewed, not as the polemics of a scholar of jurisprudence (jaqfh) nor

that of a l;ladIth scholar (muhaddith) arguing his case, but rather, as the effOItts

of one involved in a reform process whose goals of creating a single, unifi¢d

religious entity were being thwarted by rampant sectarianism. He maintains that

his interests in such matters therefore, only go so far as to address issues that

have prevented Muslim~ from responding to historical conditions ~ohesiv~ly. Ile

concedes however, that his is ultimately, a no-win situation: on the One hand, be

cannot possibly remove sectarian squabbles without addressing them squarely,

while on the other, he cannot possibly do so without, at the same time, alienatiI).g

from his program the very persons he hopes to convince. 27

Members of the Jamat who tried to pursue this line of moderation were

in some cases worse off: their decision to disengage themselves from the variolils

schools often clouded their relationship with their kith and kin. One exasperat~d

member thus wrote to MaudfidI saying

27Ibid., voU, 225-7.

Chapter Five 121

I have always had an aversion for sectarian strife (madhhabi tan/izu ') and have always maintained that where the sacred texts are ambiguous, more than one interpretation could be correct . . . In addition, I make an effort to alternate my own practices such that they conform to the varying interpretations. My father however, a stalwart of the Ahle-lJadlth movement--and, I might add, a member of your Jamat as well--has served me notice that he will terminate our otherwise affable relationship, if I neglect to perform the raj'yadain (the raising of both haDds during prayer, a mark of distinction in Pakistan that serves to distinguish between the two opposing camps). Despite my efforts at reassuring him as to my real intentions, he remains truculent and has even, succeeded in isolating me from the community . . . They now accuse me of having become a lJanafi . . . of being a hypocrite because of my alternating practices (of the sunna) ... of being subdued by the guile of the lJanafis in the Jamat who constitute the overwhelming majority ... and of becoming the muqallid of MaudfidI. They say, "our earljer suspicions that the latter, under the guise of the Jamat, will convert members of the Ahle-lJadlth group to Hanafism are now proving true; MaudfidI has· indeed, surreptitiously caused people to change their madhhab orientations despite his claims to 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

28Ibid., vol.1, 207.

122 . I

The Islamlst~

peripheral to tfie faith as being of its very essence. (fiqhi masa'il hf ko asl dfn samajh beth te he) With regard to the law, 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 (dismemberment) of the community, where Muslims no longer remain a single community but 'become instead, attached to their specific schools of law, then, that I can say, with all honesty will certainly cause the fragmentation of Islam. Islam, as such, has no place for such divisions or fanaticism.

I

The Jamat-e-IslamI's avowed attitude to the madhahib was thus, one of

accommodation and tolerance: whilst its members were at liberty to follow anY'

one of the madhiihib, either out of conviction (ittibii') or out of tradition (taqifd),' .,

they were nonetheless, precluded from raising such issues to a level where they

would threaten the solidarity of their movement.29 Unfortunately for Maudiidl

however, his own attempts to strike a balance between the opposing factions, only.

served to exacerbate the problem; he was, not surprisingly, attacked from all

sides. As will be shown presently, attempts were made to discredit the Jamar.

itself because of his critique of the madhhab issue and this resulted in a large,

segment of his group becoming demoralized by the experience.

Yet, MaudiidI was perhaps the only advocate of ijtihiid who attempted to

explain the conflict at hand between the Ahle-lJadIth and the muqallids from a

historical perspective, as one that was rooted in the early development of the law

itself. That debate, between the Ahl ai-Ray and the Ahl al-lJadfth (see ch. 2)

rested, he says, on the question of the authority of the jurist's pronouncements

vis-a-vis conflicting l}adIth traditions. He was of the opinion that the foregoing

perspectives come into conflict with each other when an effort is made, by.

partisans of both sides, to bestow an overriding importance to one perspective,

over the other. It is, he maintains, as incorrect to regard I}adIth evidence, or, as.

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.

29Jbid., vol.1, 216.

Chapter Five 123

evidence. The former, correctly.speaking, is but evidence of the fact that an

authentic statement of the Prophet with regard to some matter does indeed exist.

But such evidence has yet to be contextualised, which is where the faqih comes

in; his judgement, if you will, must be framed within the paradigm of the sunna

in general, but it need not conform to any single piece of I}adIth evidence as such.

Much like in any court proceeding, the evidence and the rulings are indeed inter­

related and interdependent entities; the judge's rulings are, of necessity,

conditioned by the evidence at hand. But the evidence itself is hardly self­

explanatory; without careful, rational scrutiny it remains an inadequate source for

rule making. The same can be said for the pronouncements of the traditionist

(muhaddith) and the rulings of the jurist ifaqfh): whilst both are integral to the

legal process, yet, both are nonetheless, in the final analysis, only complementary

to each other. It thus behooves a scholar wanting to know the truth for himself,

in any given legal conflict that he carefully scrutinise both the textual evidence

as provided by I}adIth scholars as well as the ijtihiid of the eponyms of the various

schools.

Needless to say, MaudiidI failed to placate any of the parties with his

impartiality: they remained opposed to his reform efforts and even used

arguments like the foregoing to further malign his program. Thus we find a

senior I;Ianafi muftI in India, Mal}miid GangobI, warn his followers that the

Jamat, far from being any kind of reformist group, was in fact merely a new sect

in Islam, one whose tenets and practices were without precedent in Muslim

history.3O "This, because its founder, (MaudiidI) regards both the followers of the

madhiihib and their detractors with equal opprobrium; both blindly follow the

pronouncements of their 'ulama' , he says.31 MaudiidI, who by his own admission,

was no more than a 'well-read' Muslim takes exception to the taqlfd of those

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

31Ibid .• 8.

124

who blindly follow their 'ulamii'

,

I

The ISlamist1

. 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

Pakistan.

"

31Ibid., 8.

331bid., 15.

CHAPTER SIX

THE REGIMEN OF TAQLID

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 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 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

to the past, this phenomenon is no longer confined to the liberal and doctrinaire

traditionist sectors of Muslim laity. Rather, it has become, of late, increas~ly

ubiquitous in 'ulama' circles as well, where there is an almost inexorable shift

away from taqlfd, to the extent that it is today regarded as positively passe to

pronounce a legal ruling (jatwa) within the framework of a single school 0~y.2

Works that deal with the Law do so eclectically, through the selection of a set of

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 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 world civilization. Without ijtihtid, the Muslim mind will never rise to the levels envisioned for it by Islam, and the umma will not take its rightful place in the world. "

That ijtihiid today is still an unrealized dream for 'Alawan is clear from the following: he says, "unless the call to ijtihiid becomes a widespr¢ad intellectual trend, there is little hope that the umma will be able to make any useful contribution to world civilization or correct its direction, build its or-vn culture, or reform its society. "

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 is bound to taklid, it is occasionally demanded of the scholar that he should: be 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 the sacred sources that substantiate and support their school of law as well~ as 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.)

An excellent example of this is the celebrated compendium offatawa i of 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 of reference for many Muslims in the West as well as in most liberal and 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 not confined himself to any single madhhab that prevails in the Muslin wo):'ld 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 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)

Chapter Six 127

rules that either conform to the sacred· documents or are suitable to

contemporaneous exigencies; such works have proven far more popular than those

that present the views of a single imam or school of law. Such is the case, for

example, with the Fiqh al-Sunna of Syed Siibiq, a multi-volume effort that is

extremely popular especially with the well-versed, Arabic speaking professional.

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.

The author makes clear in the foreword that his work

consists of rulings on Islamic Law along with proofs thereto from the Qur'an and the sunna and the consensus of the community .. . It thus gives an authentic picture of Islamic fiqh as sent to the Prophet Muhammad by God, and opens the doors of understanding to people of God and His Mes~enger, and it unites them around the Qur'an and the sunna whilst ruling against conflict and the innovation of the fanaticism of the madhiihib (the four schools of law) inasmuch as it rules against the fictitious saying that the doors of ijtihiid have been closed. 3

The so-called heresy of taqUd that Siibiq and others in the reform movement

speak 'disparagingly of has always been integral to the legal structure of Egypt

and indeed, other places in the Middle East as well. But efforts on the part of

the Salaffs and, later, the Manar group, to undo the fossilized legal heritage of

these societies were temporarily scuttled by certain elements in the 'ulamii.'

fraternity who, perhaps out of a loyalty to the ruling elitejn some cases, and a

desire for self-preservation in others, perpetuated the regimen of taqIfd even after

the collapse of the Caliphate. The Ottoman government, as shown previously, had

a policy of implementing the lJanafi school of law in areas under their control,

in some instances with some coercion. The Ottoman ruler (the padishah or

suI/lin) styled himself as the spiritual-cum-religious guide of the community as

3S.Sabiq, Fiqh al-Sunna (Mecca: 1979) 7

128

wellas its temporal ruler. In this he was "aided by God", for he was, after all,

the "standard bearer" of Islam and "the servant of the two Sacred sanctuaries!".

For the . Turks, a non-Arab nomadic community with no real historical or

intellectual claim to leadership of the Muslims, such titles, howsoever nomitiaI

and trifling in value, were essential props to their claims for leadership,4

But the greater duty that the office of the Sultan carried, one that impinged

on the life of the individual Muslim in a more telling way, was that of 'preserver

of the shari'ah,' the law of God. In addition to the administrative bureaucra¢y

and the armed forces that he controlled, the Sultan also controlled a religious

unit, the ilmiye or the religious functionaries who acted as judges, imams ~

preachers (khatibs). The J;;Ianafi school of law favored by the Turks was to be

implemented by these religious personnel uniformly throughout the empir~,

without regard for the madhhab affiliations of those under their jurisdiction.

According to Houranis it was the mufti of Istanbul, the sheikh ai-Islam "who

acted as the religious adviser of the SUltan. He was regarded as the most exalted

personage in the whole religious order: it was a sign of his freedom of judgement

and his power to curb and rebuke the holders of power that he was not a member

of the Sultan's divan or council of high officials n •6 Two military judges

(kadiasker) however, who belonged to the Sultan's retinue of high officials were

encumbered with the overall control of the judiciary throughout the empire. Eaqh

4It must be noted however, that unlike the Safavids, Ottoman rule was never quite regarded as illegitimate by the Muslims in general. As Lapid,s (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 accommodation of non-Muslim culture, were minimal. " Even RicJii, who regardfjd 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)

sA. Hourani, Arabic Thought in the Liberal Age (Lo~on: OXfojd University Press, 1962) 224

6Ibid., 227.

Chapter Six L 129

province was divided into juridical districts (qatjii) in which the local judge dealt

with a broad range of matters, from the purely legal to the social and even the

personal in many cases.

The policy of implementing J;;Ianafi law in an area that was largely

non-J;;Ianafi created considerable discontent as was alluded to in the previous

chapters. The problem was in no way alleviated by the Ottoman reforms of the

nineteenth century. Such reforms, it will be recalled, were promulgated to

address the requirements of an expanding economy and a new administrative

structure and not to defer to the literalism of the Salafiyya. The neW civil code

that the Ottomans introduced in 1870, the mejelle, inaugurated changes that did

not essentially alter the complexion of the legal structure of the empire in terms

of the schools of law. The mejelle essentially restricted the personal authority of

the Sultan and strived to harmonize the various religious denominations of the

empire by integrating both Muslims and non-Muslims into a new Ottoman

nation. 7

As for the Young Ottomans who initiated a new pe~od of reform in the

early twentieth century, their efforts were directed at making Islam comp~tible

with modem civilization and in getting Muslims to conform to a constitutional

government. In some ways they resemQled their liberal counterparts elsewhere in

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

of the sacred law from within: obedience to the sacred sources instead of the

imam of a school or to the school itself was not part of their package of reforms

as may have been the case elsewhere in the empire. The fact that one was

constrained to worship or perform the rites of hajj--or of any other ritual for that

7The following are some of the more comprehensive studies on the reforms in the Ottoman empire: R. H. Davison,l1.eform in the Ottoman Empire, 1856-1876 (Princeton: 1963); B. Lewis, The Emergence of Modern Turkey (London: 1968) and S. Mardin, "Power, Civil Society and Culture in the Ottoman Empire, H Comparative Studies in Society and History, xi (1969), pp. 258-81.

130

matter---strictly in tenns of lJanafi law is to this day, not a point of conteJtion

iIi Turkish society. The same caD. be said for Islamic laws pertaining tol the

society and the family: these it will be recalled, were replaced in 1917 with the

European legal system. Thus, calls for a return to ijtihad and a move away t;om

the madhiihib and taqlfd would admittedly have sounded rather hollow ~ the

situation that obtained in Istanbul. But the same cannot ~e said for the Sultan's

plenipotentiaries who continued to serve as religious functionaries in areas

outside Turkey: they still functioned in much the same way long after the

denouement of the Ottoman political order and thus, came into conflict with the

local reform movements.

The Azhar university in Egypt is a case in point: many of its leading

scholars and administrators persisted in the didactics of the past, in stark conU-ast

to the efforts of scholars such as 'Abduh and his reformist disciples who so~ght

change in the structures of the institute. For them the educational philosophy of

AfghanI as reflected in his Refutation_of the Materialists, was the starting point,

but their program was more comprehensive and far reaching. It included, for

instance, not just a study of "the classical Arabic works of dogmatic theology for

the defence of the Faith, but also the modem sciences and the history and religion

of Europe--this would help explain the remarkable progress of the West." BlIbe

reformists however, were not without friends within the Azhar itself: MU$taphi

Al-MariighI, an 'Abduh protege who held office as Sheikh al-Azhar, used!his

position to promote the cause of the reformists. He made a public appeal to

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,

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

doors of ijtihiid which, interestingly enough, he says was closed. in "in the last

century (al-qarn al-iikhir) by 'ulamii' who were given to (a life) of comfrrt.

BH.Gibb, Modern Trends in/slam, 39.

Chapter Six 131

Believing that not much (further) could be gained from ijtihiid they closed its

doors, resigned themselves to taqlfd and became attached to books devoid of the

spirit of knowledge." 9 MaraghI's call for ijtihiid formed part of a broader

package of reforms that included, inter alia, the teaching of comparative religio~,

modem philosophy and the history of religion to.the students at the Azhar. This

was no conservative salafi call for the abandonment of taqlfd but rather one that

sought a thoroughgoing overhaul of the academic content of ,the university

including the traditional sciences of Islam such as ta/sir, Arabic literature and of

course, Islamic law.

MaraghI's appeal triggered a particularly ~strong response from the

preeminent lJanafite scholar at the time, 'Abd al-Ra.Qman 'AlIsh. 10 The latter was

reacting, as he explains, out of a conviction that the foregoing refonns posed a

grave danger (khafr jasfm) to the Azhar, its branches, and 1,1ltimately to Islam and

the sacred law. 'Alish also voices strong reservations about MariighI's call, in that

same article, for the reopening of the doors of ijtihiid. He reiterates an oft

repeated argument against ijtihad which is that the derivation of rules froni the

sacred sources is restricted to those qualified persons who fulfll the requirements

for a mujtahid as specified in the great books of jurisprudence -(;,qul-al:!iqh).

'AlIsh is particularly perturbed by MaraghI's .denigration of the 'ulama'. He

reminds him that the loyaltY that these servants of the Faith have shown to the so

called "lifeless books", as MariighI refers to them, happened to be none 'Other

than the sacred scriptures of Islam. "Were they not devoted to the Qur'an", he

9AI-Ahram Daily. (Cairo: 1928) No. 15709.

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 was yet a student at the Azhar. See for instance, vol.l p.146 of the biography for 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 a personal vendetta as it was an academic dispute.

i'j Iii

132

asks,

to the sunna of the Messenger of God and to its compiled books, to the Muwatta of Malik (b. Anas), to his al-Mudawwanall and to the primary sources of his school; were they not· devotecJ to the (Kitab al-Umm12 of Shafi'I and to the primary source of his school and to those of AbulJamla and A1}mad b. lJanbal? Were they not devoted. to the sources of the four schools of law from their very inception to this day . . . were all these works not imbued with the spirit of knowledge, were they not absolutely authentic and correct . . . were they (the 'ulama ') in any way responsible for the dissipation of that legacy?

Taqlid,

As for the madhiihib, 'AlIsh point out that Muslims have been historically in debt,

to these schools and will continue to do so for the latter have anticipated for the

benefit of posterity most contingencies, to the extent that no situation can possibly'

be comprehended where such teachings and principles cannot be applied.

MaraghI further called for the understanding of Islam directly from its

original sources (yantibf'ihf al ala). "How else did the scholars who closed the

doors of ijtihtid these past ten centuries understand the faith?" 'Allsh asks.

Indeed, their closure of the doors was based on a true understanding of the

thoughts and ideas of the al-salaf al-~ali!J (the pious ancestors). Is there any

doubt, he asks, that the pious ancestors correctly understood Islam from its sacred

sources? The truth is that "all the 'ulamii' of Islam, the mujtahids from among

them as well as the emulators (muqallids), understood Islam correctly from its

original sources; the mujtahids did so by way of their ijtihiid and the muqallids

by emulating the former. "

MariighI's . critique of taqlid, and indeed those of his counterparts,

particularly in the Manar movement, is neither specific nor particularly profound.

l1See in this regard, Malik b. Anas, AI-Muwatta ed. MUh. Fu'ad 'Abd al-BaqI, 2 vols. (Cairo: 1951)

12MuQammad b. Idrts al-Shafi'I, Kitdb al-Umm. 7 vols. (Cairo: 1904- 08)

Chapter Six 133

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

and regulations that appear in the Qur'an, the sunna and ijma'. No historical

analysis of the effects of taqlfd on· Muslim society is provided nor any

contemporary survey of how taqlid, in real terms, is hampering progress.

'AlIsh, on the other hand; focuses on the comprehensiveness and the

flexibility of the madJulhib on the whole, and uses that in argument against

MariighI. He says that it is impossible for any scholar to promulgate laws

independent of the four madJulhib for they have virtually encompassed every

single issue that has and is likely to confront all Muslims; the 'ulama' of the Ahl

al-Sunna wa_al-Jama'a13 are unanimous in this regard and disputing this means

going against ijma', a serious indictment indeed. "Nonetheless, I challenge you,"

he says, "you and your coterie of scholars, to present to us a new school of law

distinct from the present ones . . . You have my word, I will be the first to

follow ... but I know that this is impossible. In fact, I challenge you to produce

a novel ruling to but a single issue, and take all the time you want ... "(12)

Here 'AlIsh is underscoring a point made, ironically enough, with regularity by

his own adversaries, the modernists: that a simple return to the sacred sources as

expounded by the doctrinaire Salafiyya will not produce any momentous change

in the Law: nothing short of a th~roughgoing rethink of the entire corpus of

sacred guidance would. For 'AlIsh this was blasphemous; tantamount to the

pursuit of evil and corruption, not to speak of a capitulation to one's passions and

desires. (12)

'AlIsh's strident opposition to the seemingly reasonable calls for

13The term Ahl al-Sufma waal-Jamii'ah was allegedly coined by the medieval theologian Abu al-J;;Iasan al-Ash'art (d.935) to distinguish his school, '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, Muslim Theology (London: Luzac, 1980) 2nd. ed.

, ".

134 Taqlid

. educational reform make sense if it is remembered that almost aU of MaraghI's

suggestions posed a threat to the very profession of the 'ulamii'. Acquiescing tq

anyone of these reforms was tantamount to rendering the entire 'ulamii' fraternity

redundant; their professional appeal in society which was based on their claim t~

being the custodians of Islam's intellectual heritage would be in jeopardy. If, as!

the reformists claim, ijtihdd is a religious duty of every indivi~ual Muslim rather.

than the forte of the 'ulamii', and were Muslims to exercise that duty en masse,

then the entire process of legal counselling, the ifta', along with its functionaries ' "

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

devoid of spirit" ~us posed a threat to the intellectual edifice that justified and

indeed necessitated the institutions of the 'ulamii' and by extension, their

educational seminaries like the Azhar. The training imparted at such seminaries.

was inextricably tied to the madhtihib: the syllabi were formulated within the'

framework of these legal schools as indeed were the prescribed texts.

'AIIsh's efforts at preserving the status quo in academic circles was not

without its parallels in public life where the authority of his colleagues was being

challenged by reformists, both conserVative and liberal. SO,whilst the scholars

at the Azhar grappled with the charges of obscurantism, for example, their

colleagues in the public sector bore responsibility for the proliferation of I

innovative practices. The charge, it would seem, was not entirely without I

justification for there is some evidence, albeit circumstantial, to show that the

religious fraternity did indeed, condone, if not actively partiCipate in unorthodox

practices such as the birthday celebrations of the Prophet, the solicitations of

assistance from deceased saints and the erection of elaborate shrines in memory

of such saints. Some, I would imagine, supported such practices out of loyalty to

the political establishment of the time, whose members patronized such events,

hoping perhaps to procure thereby, some added political advantage in' the I

community, in addition to the spiritual promises that such patronage held. Sultan I

Chapter Six 135

'Abd al-lJamId, for example, was hiinself an enthusiastic patron of the Sufi·

orders. This helped endear him to the Muslim masses whose loyalty was so

crucial to his efforts at laying claim to the caliphate and ultimately, to political

power over the entire Muslim world. For the 'ulanul' therefore, this was hardly

the time to make unpopular noises against folk Islam: it could easily earn the ire

of the Sultan who was already deeply suspicious of those who pandered to the call

of the reformists and their foreign paymasters. Mul)ammad 'Abduh, after all, was

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

there was the problem of the WahhabIs: this Arabian reform movement, which

had previously proved nettlesome to Ottoman rule was again gaining strength in

the Hijaz and challenging 'Abd al-l;IamId's claims to the caFpnate. ls

Also relevant in this regard were the sufi movements who felt most

threatened by the reformis~' condemnations of many of the practices that they

promoted. These movements had strong ties in high places, both within the

political order of the empire and the 'ulamii' fraternity. The Sultan's Syrian

adviser, Abu al-Huda al-SayyadI, for example, also served as head of the

Rifa'iyyah sufi order, a position that allowed him to maintain a vast network 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 of disconnected writings, a literature inspired by definite ideas of progress within an Islamic framework. " See H.A.R. Gibb in the Bulletin of the School of Oriental Studies, vol.ii, p.758

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 strived to purge Islam of all popular accretions .. The movement, which advocated 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 1820 by Mu1}.ammad 'Ali; this effectively ended its political expansionism. Ibn Su'ud subsequently revived the movement early this century and integrated its teachings into his state policies. For the Wahhabi movement see Snouck Hurgronje, Mekka in the Latter part of the Nineteenth Century, tr. J.H. Monahan (London and Leiden: 1931)

136 Taqlidl

clients favorably disposed to the SUltan. 16 There were others who similarly served I

in twin capacities as sufi leaders and religious functionaries. 'Arif al-Munayyar, i

for example, certainly had more than one reason to oppose the calls for reform:

he was both, the Shafiite imam at the Umayyad mosque in Damascus as well as :

leader of the Rifii 'yyah sufi order. 17 Not surprisingly, we find in the writings or:

some of these scholars a defense of both, taqlfd. as well as the. SUfi practices that

reformists condemned.

This, in some measure, would explain the appearance of a specific genre !

of polemicalliteraturti dedicated to dealing with aspects of mysticism and ISlamic .

law in a single publication. 'Abd al-lJamld al-ZahrawI's (d. 1916) work AI-Fiqh

wa al-Tasawwufs is an important contribution in this regard. ZahriiwI was in

sympathy with the Salafiyya in many regards: he too condemned· taqlfd and

adherence to the madhiihib and called for the reopening of the doors of ijtihiid.

TaqUd, he maintained was "an aspect of people's tendency to attribute sanctity to

things ancient, and argued that it signifies the surrender of legislative authority

to famous men, an authority that God granted to no man" .19

ZahrawI was however, more scathing and fundamental in his critique on .

sufism . which he regarded as essentially at variance with the spirit of Islam.

Whereas sufis aspired to frugality and abstemiousness, he argued, Islam ~

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

17 AI-SayyadI ~as indeed an influential man with access to funds from the imperial and provincial treasuries which he used for the construction and maintenance of the sufi lodges. It was probably through his influence that . members of the order were granted a royal exemption from military service. See I

in this regard, Commins, Politics and Local Change, 108. •

IS'Abd al-lJamld al-ZahrawI, Al-Fiqh wa al-Tt1iawwuf (Cairo: AI­'Umumiya Press, 1901)

19Commins, Politics and Social Change in late Ottoman Syria. 57.

Chapter Six 137

purpose in bringing the two subjects together in a single volume which, as

Commins points out, sprang from a desire on his part "to eradicate. non-scriptural

(i.e. taqlfd practices) and irrational practices (i.e.· SUfi practices) and beliefs from

religion ". 20

His adversaries however, some of w.hom also presented joint studies on

.sufi apologetics and taqlid, were often no less bellicose in their rejection oistich

arguments. The 19th century Dam~ne scholar,Yusuf al-Nabhani (d. 1932) who

for many years served in the Ottoman administration as a magistrate and judge

until eventually being inducted into the ranks of the Sultan's '/llama' proteges, also

happened to be an initiate of several Sufi orders. He used his considerable writing

talents sought to debunk arguments against Sufi practices, taqlid and innovations

(bid'ah).21 In one of his better known works, the Shawii,hid 1I1-ljaq fi al istighiitha

bi Sayyid al Khalq: the Attestation of Truth (to the pemussibility) of Beseeching

the Master of Creation (i.e. the Prophet) he combines rchuttals to the anti-taqlId

establishmcnt with argnmcllts against ctitics of sufi practices sueh as Ibn

Taymiyya, for instancc. who preached against the popular practice of seeking aid

from the Prophet.22

His treatise 011 ijtihiid and laqlfdcalled Al-Siham al-Siiiba Ii A§!J.tib al

Da'iiwf al-Kiidhiba: The Straight Arrow for the Companions of False Claims

which appears .as an addendum to the foregoing work, is ill his words, "a rebuttal

2°Ibid., 59.

2lNabhani: has also written popular works in vencration of the Prophet such as Al-Mnjma'a al-Nf./bhiiiliya fi" al··Madifil,l al-NahnwiYYIl 4 vols. BGirnt: AI·Matba'a al-Atlabiyy: •. 1903 and Wasu'it ttl Wu§ul illl Shllfllli'i/ aI-Nasal (Bdrul: AI-Matba'a al-Aliabiyya, 19-m).

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)

138

to the claims of the Wahhtibf sect to the right to practice ijtihiid mutlaq'r.23

Nabhani reiterates in this work the point made by 'AlIsh above that the prj:!s~nt

yield of scholars is quite inadequately equipped to extract rulings from the sacred

sources both in tenns of knowledge as well as personal piety. 24 In any event" he

tetorts, the great eponyms of the four schools have virtually exhausted .all

arguments in establishing. the authenticity of their rulings and it is thus bot

necessary to repeat the process thereafter.

But what if they had erred? He thinks that implausible, for it is har~ly

'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

pronouncements contradicted the sources. Everyone of the eponyms he points iIlut

was loyal to the sacred sources in his own ways differing with his counterpawts

only in his application of such sources. I will return to this question in !by

analysis of the Indian scholar, Ashraf' AlI ThanwI, who as will be shown, deals

more exhaustively with the nature of such juridical differences. ,

The antagonists of taqlfd were also deeply suspicious of the liberal

tendencies in the refonn movement, its efforts to discredit the intellectual acumen

of past scholars and to disparage thereby the regimen of taqlfd. NabhlinI count¢rs

such arguments by focusing on the traditions of the Prophet that emphasize tlhe

'superiority of the early communities over all others (Khair al-quni.n qamf). ,In

light of such traditions, he argues, it does not behoove a Muslim to regard any

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

modem thought and alien behavior as exemplified in their lack of modesty abd

23Yusuf al-Nabhani, AI-Sihiim ai-SCUba Ii Ashtib ai-Va 'awf al-Ktihhioa (Cairo: Mustapha al-BabI al-HalabI, 1955)22

24Ibid., 24.

, Chapter Six 139

total disdain for the strictures of Islamic morality. 2S

NabhlinI also accuses his detractors of conspiring against the Muslim

community in collusion with the WahhabIs, the latest deviant sect, he calls it,

given to disse~nating innovations in Islam and beguiling Muslims of their true

faith and practice.26 Members of this group, along with the other elements bent

on destroying the madhiihib, are mere brigands who sow discord among Muslims

and incite quarrels among the believers. "They too "were members of the

madhiihib at first," he adds, some

were l,;Ianafi, some MalOO, some Shafi'I and some l,;IanbalI, that is, until they distanced themselves from the schools and became a concocted sect whose beliefs and actions consisted of criticisms against the imams of the community, its scholars, SUfis, saints, pietists and the pure from among them. (saru firqa mulaffaqa dfnuhii wa daydanatuha al- i'tiriilj 'dla a'imma al-umma wa 'ulamaiha wa sufiyydtihii wa ~ulal}.a 'iM wa auliya'ihii wa adiya'iM.)27

NabhanI, for his part, was quite obviously trying to rally as broad a coalition of

groups disgruntled with the refonnists as possible. As in the case of the Egyptian

scholars mentioned previously, almost every member of Nabhani's proposed

"coalition" seemed threatened, to some degree, by the reforms: some feared that

it would endanger their relationship with the Sultan and his political entourage,

others that it would render obsolete their social status (such as the pfriB who

2SIbid., 32.

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 of the Mystics of Islam (London: 1942) p. 128

Would that we had not lived to see every demented madman held up by his fellows as a Pole! '

140 Taqlid I I

maintained the dervish convents, the dargah) , and others still, that it would

effectively end their monopoly of the sacred Law.

A somewhat more scholarly response from this group is to be found in the •

writings of MU9ammad Zahid al-Kauthan (d. 1950) who for many years served •

as the head of the council of Muslim Scholars (Wikala al-Mashikha al-lsliimiyya)

in Turkey; and after the 1917 revolution, became a senior me~ber of the faculty

at the al-Azhar. KautharI, in a short article on the madhiihib and taqlfd speaks of

the calls to ijtihiid and the abandonment of the schOols of law as a "bridge to

irreligiousness (AI-Ltimadhhabiyya qanlara al-Ltidiniyya). 29 He maintains that

every discipline known to man spawns a circle of experts who are entrusted with

the task of articulating the wisdom of their discipline to others. Islamic law is in

this regard no different: it too has produced a cadre of scholars preeminently

qualified to maintain the rigors of the law.3o This august retinue of scholars was

acutely aware of the fact that it shouldered the responsibility of the Prophets, for

as the Prophet has said, the 'ulamii' are the heirs of the Prophets. It was also the

Prophet who set the framework for their discipline and entrusted them with the

task of preserving the heritage of Islam. 31 "Now, along comes a group of

reformers," he says, "ill disposed to the sanctity of this heritage, and starts to

advocate the abandonment of the madhiihib in favor of a neW ijtihiid. To them I

have but this to say: you ought to have your head examined by a physician of the

sharI"ah (fabib shar'f). ,,32 Such people, he goes on to say, have taken leave of

When he dies they make him the object of pilgrimage, and hasten to his shrine .

29Muhammad Z. KautharI, Maqiiliit al-Kautharf (Cairo: Matba'a al­Anwar, n.d.) 129

3OJbid., 130.

31Ibid., 132.

32lbid., 133.

"

Chapter Six 141 1

their senses or are in the employ of the enemies of Islam. The righteous believer

will have no dealings with such rabble-rousers for he is deeply aware of the debt

Islam owes the eponyms of these schools. They call themselves Muslims but are

in fact false pretenders (mutamaslim mundass) who have unfortunately, succeeded

even in infiltrating the ranks of the 'ulamii'.

It is difficult to say from the nature of KautharI's polemics who the object

of his vitriolic was. Given his insinuations of a foreign link it is fair to surmise,

I would think, that he was 1l,ot targeting the conservative Salafiyya: as is well

known, they were equally suspicious of foreign. encroachments on Muslim

society. The modernists were more likely his target but, it must be said that his

attitude to 'Abduh on the whole, was rather favorable notwithstanding the latter's

role in the modernist movement nor his critique of popular sufism. It may well

be that he had in mind some of'Abduh's disciples who held academic positions

at the Azhar.

KautharI's rebuttal to the calls for the abandonment of the schools of law

is, generally speaking, neither original nor particularly profound. There is no

thoroughgoing critique in his writings of any of the rather provocative attempts

at ijtihiid during that period: he makes no mention of RiQ.a's novel approach to

ijtihiid and the caliphate nor does he offer any kind of rebuttal to 'All 'Abd

al-Riziq's radical views on the Khilafah. His primary concern would seem to be

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

33To the charge that the imams could have erred in their pronouncements Kauthan cites the historian, Khafib aI-BaghdadI (d.1071) who relates that once someone said that Abu ijamfa had erred to which WakI' , the celebrated traditionist provided the following response: "How could Abu Hamfa possibly have erred given the fact that he had as disciples such experts in analogical 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: Ma'an, and in piety Da'ud al-Tay and FuQ.ail b. 'Ayadh. If ever he was to err

142 Taqlid

l;Ianafism, the following panegyi'icalverses that his biographer Alp:nad KhairI,

offered:

Also,

Alzyayta 'ilm Aba lfanrjafi al-wara wajalauta ma akhfiihu minhu al mumtara You have revived the knowledge of Abu l;IanIfa among mankind and unveiled that which the skeptic had concealed

Yo. ma'shiH al-Alznaf: mata faqfhukum man kanaYadfa 'u 'ankum man yaftan-Oh ye l;Ianafis, your jurist has passed, he who defended you against those who fabricated (against you).

Kham however, is at pains to point out that KautharI was simply

responding to some of the most scurrilous charges imputed to Abu l;IanIfa by his

critics. 34 ··It is, in any case patently incorrect to conclude from the foregoing that

it was exclusively the l;Ianafites who reacted negatively to the reformists' call for

ijtihiid. The 'ulanU1' of other schools were equally disinclined to calls for reform

of the madhiihib; such was the case in Indonesia--a predominantly Shafiite

country--at the tum of the last century.

As stated previously, Muslims in the outlying areas of Islamdom were

strongly influenced by events in the Middle East and Indonesia was, in this

regard, no exception; a considerable number of its reformers and religious

scholars were trained abroad, particularly, in Mecca and Cairo. But interestingly

enough, the Meccan graduates who, in some cases pioneered the reform efforts

in Indonesia, were not overly concerned with the reform of the madhiihib or the

surely they would have rectified him "(qtd in Maqalat:132)

34KhairI gives the example of Imam al-l;Iaramain al-JuwainI who saw fit 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 (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.

Chapter Six 143

deleterious effects of taqlid as was the case with the Egyptians. This, in the view

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

Shiifi'I school of law and a critic of the recent calls for ijtihad.

As in the Middle East, where there existed to some extent a correlation

between the upholders of the regime of taqlfd and institutionalized sufism so too

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

offerings, and used azimat or charms to protect themselves from evil genie or bad

luck. ,,36 Noer points out that there existed an "unquestioning traditionalist attitude

(which) often led to blind obedience, since in bothfiqh and sufism, the teacher

(kijahi or sjech) was regarded as infallible. In this situation Islam and its

interpretation was monopolized by the kijahi or sjech rather than being shared by

its individual followers as well. The kijahi's fatwa was final and should not be

argued with."37

Because of this arrangement the Indonesian modernists, mostly disciples

of • Abduh and Ri<Ji opposed the regimen of taqlfd. They eschewed SUfi

superstitions as much as they did blind obedience to any single scholar. Islam for

them was a religion of reason and rational thought but unlike other liberals in the

Muslim world, they held reason accountable to religion; the former, they

maintained, could lead to good as well as evil, and religion therefore, needed to

direct the power of reasoning along the path of righteousness. 38

Like the Salafiyya, they too recognized only the authority of the sacred

3SDelia Noer, The Modernist Movement in Indonesia, 1900-1942 (Singapore: Oxford University Press, 1973) 297

36Ibid., 301.

37Ibid., 301.

. 38Ibid., 304.

144 , TaqUd

sources, and maintained that the doors of ijtihtid were open and rejected the idea

of taqlfd. But in sharp contrast to the Salafiyya and some modernists they were

not in principle opposed to the schools of law. Their only requirement was that

the tatawa of the school not contradict the Qur'an and sunna. The mt)Vement

however, was not without its extremist elements who maintained that "those who

rely on the books of 'ulamii' differ from each other. Those who have differed

from each other have committed something which God has prohibi~d. Those who

neglect God's prohibition commit a sin, Therefore, those who merely follow the

opinion of others, (taqlfd) commit a sin. "39

Other calls for ijtihad were a great deal less radical: the MUi}ammadiyya,

for example, one of the most influential reforms organizations in Indonesia in the

early twentieth century did not totally reject the madhiihib but simply called for

the re-examination of some of its individual rulings in the light of the Qur'an and

the sunna.40 Thus we fmd that by the early part of the twentieth century there

was a gradual rapprochement between the opposing factions on the question of

ijtihad. The Indonesian scholars, in time, assumed a more accommodating

posture: whereas previously the Nahdatul 'Ulamii', a union of conservative

scholars opposed to the reform movement, considered only the eponyms of the

schools qualified to exercise ijtihtid, their position gradually shifted until, in a

circular of 1935, their leader Kijahi Mahfuz Siddiq, brought his organization

closer to the reformist position on the question of ijtihtid.41 I would suggest that

the legal homogeneity of Indonesia helped a great deal in reconciling the opposing

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.

39Quoted in Noer, The Modernist Movement, 99.

. ~ukti A. 'Ali,. The Muhammadijah Movement, a Bibliographical IntroductIOn, M.A. ThesIs, (Montreal: McGill University, 1957) 52

41Noer, The Modernist Movement, 317.

Chapter Six 145

Unlike in the Middle East, where. the I;Ianafi school was, virtually foisted upon

members of the other schools, no such coercive measures were imposed in

Indonesia and consequently, no radical reaction to the reformists was

forthcoming. Another factor that distinguished the Indonesian treatment of ijtihiid

and taqlfd from the Middle Eastern and Indian was the absence of the

conservative Salafiyya or Wahhabi opposition to the madhahib. That the

Indonesians were unsympathetic to this trend in reform is evident from the very

formation of the Nahqat al- 'ulamii' which, it is said, was actually established in

part, as a reaction to the proliferation of the Wahhiibf doctrine in Arabia. 42

The same cannot however, be said for the Ahle-I;Iadith's calls for ijtihiid

in Muslim India for there the response was both significant and enduring, with

distinct lines of demarcation separating the proponents of ijtihad from their

adversaries. The regime of taqlfd was also defended unapologetically by.two

groups of scholars, the Deobandf and the Brelwi who, in every other way, were

bitterly hostile to each other.

The Brelwis who take their name from Bareilly, a city in the state of Uttar

Pradesh, India, started off asa spontaneous reaction to the reform efforts of the

Ahle-I;Iadith and the Deobandi movements. In time they assumed a coherent

philosophy and a character distinct from the other groups, and, thanks to the

efforts of their spiritual and intellectual master, Al}mad Reza Khan (d. 1921) they

successfully launched a counter offensive to the criticisms that the reformists had

levelled against SUfi practices and taqlfd. With regard to the former, Reza Khan

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 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 . . ." But there was no unanimity with regard to this appeal, and so, members of 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 being the Hijaz question. "

'.:"

, ~

146 Taqlid

counted as his adversaries liberals such as the members of the Aligarh movement

of Sayyid Alpnad Khan, conservatives such as those in the Ahle-ijadlth group of

~iddlq ijassan Khan, and the followers of the DeobandI school of thought. 43

The Deobandls, who also derive their name from a small town, Deoband,

in the Uttar Pradesh province in India, had little sympathy for the Brelwls but on

matters of law both these implacable enemies were united against the M~demists,

Islamists and, to a far greater extent, the Ahle-ijadlth. Both these groups were

staunch ijanafis who not only held that the doors of ijtihad were closed but also

insisted that taqlrd was compulsory (wajib) upon all Muslims, laity and scholar

alike.

They were also emphatic in' their contention that the muqallid restrict

himself to a single scholar; this last, better known as the concept of taqlrd

shakh§f, was without doubt, the most contentious issue in the debate on taqlfd,

surpassed, perhaps, only by the debate on the necessity of providing source

reference (dala'il) in legal rulings. It will be recalled that all the reformists,

without exception, argued very strongly that Muslims follow the text and not go

merely by the utterances of a scholar. The Deobandls and the Brelwls however,

thought otherwise: according to them the muftI is not obligated to cite proofs

unless otherwise called upon nor is the questioner (mustajti) obliged to elicit such

proofs.

The focus of this group's attention, it must be remembered, was entirely

internal: it hinged on a rebuttal of the arguments of the Ahle-ijadlth on the one

hand and the Modernists and Islamists on the other. The former had to be

persuaded that the emulation of the ijanafi school of law was not a heretical

practice while the latter had to be exposed as a devious group of charlatans,

ill-equipped to pass judgement on the 'ulama', and bent on distorting Ute sacred

law to suit their personal whims and fancies. One of the most prominent ..

430n the life and teachings of Ahmed Reza Khan see Zafar aI-Din Rizwi Hayate A'la Hazrat (Karachi: 1938) ,

Chapter Six 147

polemicists of the time was the DeobandI scholar, Ashraf 'All ThanwI, who

interestingly enough, was considered by many to be the preeminent sufi of

modem India.44 ThanwI, in addition to his mystical inclinations was also an

accomplished scholar and a prolific writer who translateq. the Qur'an into the

Urdu language, produced an exhaustive exegetical discourse on the Mathnawf, the

mystical work of the Persian sufi,.JaHH ai-DIn RumI, and wrote several shorter

works on the Islamic sciences and Sufism. His concern for the spiritual welfare

of the ordinary Muslim however, was what preoccupied most: it is perhaps this

sentiment that prompted him to write the much celebrated Behishti Zewar: a work

that "claimed to offer the whole knowledge necessary for ~ woman:.the alphabet,

letter writing, simple religious duties, the stories of the prophets, and practical

advice on cookery, care of the sick and domestic management. 45 . Another

important, if less well-known work that he produced was Taqlfd-o-Ijtihad which,

as he explains, was compiled for the laity and the less knowledgeable ('awam

aur kam 'ilm) who have sunk into doubt as regards the permissibility or otherwise

of taqlfd. In the introduction to the book he delineates the primary factorsthl,lt

prompted him to prepare this treatise. It is, he says,

1. A response to those groups who have opposing views onijtihtid and taqlfd;

the. one maintains that the restriction of ijtihtid to themujtahidin alone is wrong

and tantamount to heresy (shirk) while the other holds that.it is expressly

Jorbidden (l}aram) for one Muslim to emulate anoUter (taqlfd).

2. A respo~e to those who, in addition to the foregoing, also. demand that

ijtihad be universalized to include all Muslims, not just the 'ulamii'.

3. An attempt to address the accusations of those who malign the scholars,

particularly AbiiijanIfa, because they permit the exercise of analogical deduction

(qiyas) in the Law for those qualified to do so and compel' others to follow the

44Barbara Metcalf, Islamic Revival in British India: Deoband, 1860-1900 Wrinceton: Princeton University Press, 1969) 157

45Ibid., 211.

148 Taqlid

regimen of taqlfd.

4. To bring to the fore the validity and the merits of taqlfd Shak~f.

Taqlfd, as defmed by ThanwI is the act of accepting bona fide, the

utterance of a person, without inquiring as to his source of reference, but

believing rather, that such a person is in possession of the necessary proof. (ldsf

ka qaul mehez is husne zann par maan lena keh yeh dalfl ke muwafiq batlii

dega).46

In support of this practice he refers to several traditions of the Prophet or those

of the companion where persons have issued rulings without soliciting supporting

evidence. I will refer to one such tradition. Abu Ayyfib al-~an, a companion

of the Prophet, while travelling to Mecca to perform the pilgrimage committed

himself to the il;ram i.e., the state of ritual sanctity that is a requirement of the

hajj ritual. But along the way he was delayed, and only reached Mecca the day

after the hajj. Not knowing quite how to remove the restrictions of the il;ram he

solicited a ruling from 'Umar, the second caliph. The latter advised him without

quoting any sources by way of reference.

ThanwI points out that in the foregoing report· Abu Ayyfib is in fact

making taqlfd of 'Umar for he solicits his ruling without asking for evidence

and it thus proves that taqlfd was practiced by the companions. The salaH

rejoinder to this, as appears in several of their works, is simply to point out that

there is in fact, an implicit understanding, based on AbU Ayyfib's knowledge of

and experience with 'Umar, that the latter as a rule based hisfatwa on the sacred

sources. But this precisely is how ThinwI and others defme taqlfd.41 ,They

emphasize with unfailing regularity, the existence of an implicit understanding,

based on trust between the scholar (mufti) and the questioner (mustajnj where the

46Ashraf A. Thanwi, Taqlid-o-Ijtihtid (Karachi: Dar al-Isba'at) 9.

471n fact ShaukanI (Al-Qawl al-Sadfd) uses this very argument with abandon when faced with examples from the salafwho purportedly sought fatawa without scrutinising the sources.

Chapter Six 149

former will base hisfatwa on the sacred sources and not on his personal opinions.

Modermsts on the other hand, are wont to argue that 'Umar was applying his

personal judgement (ra 'y) to the situation at hand, and not referring directly, to

any precede~ as such. The point is that almost every argument or snippet of

evidence that anyone of the parties to this debate would care to proffer can be

similarly dispensed with by its adversaries. Rarely, if ever, do they analyze such

arguments vis-a-vis the objectives of the sacred law (the so-called maqasid al­

sharf'a). its impact, in real terms, on the welfare of the MU$lim community as

a whole and its influence on the future of the Law.

Yet, it must be admitted, that in many respects ThinwI's critique of

ijtihtid, notwithstanding his exceedingly narrow perspective on the objectives of

the Law itself, is a great deal more systematic and profound than can be said for

other participants in this debate. What he lacks in perspective he certainly makes

up for in critical analysis. This is clear in his treatment of a problem that is not

infrequent in lJanaH law: the case where afatwa happens to contradict an explicit

text (fUl§j). This issue, which is palpably the most significant argument against

the regimen of taqlfd is but the result of those t.wo features integral to the legal

philosophy of the lJanafi school that also serve to set it apart from the others:

firstly, its historical antipathy to all but the soundest traditions--a point that

featured prominently in the early history of the schools of law, and secondly, its

extensive use of analogical deduction (qiyas).

ThinwI responds to this question by pointing out that as much as ijtihtid

may be exercised in determining a ruling from a tradition in any matter so too is

it permissible to exercise ijtihtid in isolating from the tradition itself the 'illa i.e.,

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

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

superseded by a later ruling (known in Islamic jurisprudence as the concept of

150 Taqlid

naskh) or may have been interpreted in conjunction with a similarl}.adlth due to

the existence in both of postulates related to for example, language, or custom

('uif). This is the case, he avers, where an expression is said to be sAhir, that

is, having but one literal meaning only, "such that one may ab initio regard that

meaning as the probable intended meaning.48 It may well be, he says, that the

Prophet intended a non-'{.iihir meaning in some cases and not in <;>thers, but such

a matter can only be decided by way of a contextual clue (qarfna) or by the

process of cross-referencing one prophetic tradition with others, elsewhere (al­

jam' bain al-al}tidlth).

Now, ThanwI's reason for discussing these rather arcane points ofIslamic

jurisprudence is simply to point out the complexity of the undertaking, one that

he believes is well beyond the ability of the average scholar let alone the lay

person. It is thus irresponsible and downright dangerous he adds, 'to fling open

the doors of what is essentially the task of the mujtahid alone or at most a highly

proficient muftlto the public at large; this is tantamount to religious infidelity, not

to mention a real threat to the cohesiveness of the Muslim community.

In support, he refers to the tradition of the Prophet in which he chastised

some Musli.tp.s for wrongly ordering their companion who was hurt in battle to

take a bath because of ritual impurity. These companions, ThiinwI maintains, had

a limited understanding of the sources and were thus unqualified to exercise

ijtihtid, and their doing so cost the life of an individual. 49 Such eventualities can

be minimized by way of taqlld sha/chsl

Taqlld shakh§l, according to ThiinwI, is the emulation of but one

trustworthy schohll' whose ruling is followed without questioning. Such was the

case, he says, with Mu'adh b. Jabal, the emissary of the Prophet to the people

of Yemen. The Prophet, it will be recalled, had sent Mu'adh with instructions

4BJJ. Weiss, The Search for God's Law (Salt Lake City: University of Utah Press, 1992) 138

4~anwi, Ijtihtid-o-Taqlld, 20-21

Chapter Six 151

that he follow the sacred sources in his judgements but no mention was made

about the need on the part of .the Yemeni people to do more than simply obey his

orders, apparently without questioning his sources. The people of Yemen were

thus obliged to follow the regimen of taqlld shakh§l vis a vis Mu'adh.

ThiinwI next, undertakes the not inl;onsiderable task of proving the

peremptoriness of taqlld. He begins by pointing out that peremptoriness (wujab)

in Islam is established in not one but two ways: firstly, there is wujab bi al-dhiit

where something in and of itself is deemed compulsory by the sacred sources as

is .the case, for example, with ~aliit, the daily prayer. Then there are acts which

admittedly have no explicit sanction from the sources but whose peremptoriness

cannot be denied by any human being who has experience in life and good sense.

It is this necessity that prompted the early Muslims to compile the traditions of

the Prophet notwithstanding the lack of any clear indication in this regard in the

sacred sources. Their collective experience had made known to them the fact that

the written word is more often than not, a better safeguard against the loss and

distortion of data than· is human memory. The same is applicable to taqlld

shakh§l; its peremptoriness is established not by scriptural evidence as such, but . -.

by the fulfillment of two prerequisites: firstly, the determination of how taqlld

shakh§l or the lack thereof impinges on and hinders the performance of other

functions and secondly, what the legal status of the said functions are.

As for the first, ThiinwI cites the most popular argument in taqlld circles,

that of the tendency in recent generations for people to defer to their personal

whims and caprices instead of to the dictates of religion whereas Islam demands

that the converse apply. (Khwiihishe nafsiinl ko dln ke tiibi'_baniina). sOJDe other

proof that he cites is no less popular with this group and that is the necessity of

following consensus (ijma'). The example that he forwards, that of the prohibition

of mut'a, temporary marriage, is particularly suited to underscore his contentions

against the SaJafiyya IAhle-ijadlth reformists mainly. Mut'a, which to this day

. so.Ibid., 34.

., "

152 Taq/id

is permissible among the Shii clerics, is one of the features (sha'ii'ir) which

distinguishes Shiites from Sunnis. The sacred sources of the Sunnis however,

provide conflicting evidence on the question of Mut'a: in some it is spoken of as

permissible, whilst in others not. Sunnis concede this much, but add that its

prohibition was established by a caliphal pronouncement ascribed to 'Umar, the

second caliph, following which, a broad consensus (i/ma ') w~s reached totally

abolishing the practice. Such a ruling clearly violates the salafi requirement in

two ways: fIrstly, it is not categorically based on scriptural evidence and

secondly, it appeals to ijma' which they, following Ibn Taymiyya and Ibn Qayyim

allow only in the case of the Companions. Now seeing that some companions,

notably' Abd Allah b. 'Abbas, believed in the permissibility of mut'a, this would

nUllify even that kind of ijmii'. ThiinwI argues that allowing any Muslim access

to ijtihiid and requiring of him that he search for corroborating evidence fromfue

scriptures--the only type of ijtiluid that the Ahle-ij:adlth spoke of, as indicated

earlier on--may well cause such a person to stumble across l}.adlth traditions that

indicate that at one stage the Prophet himself allowed this practice. Now, it is

more than likely, given the pervasive nature of immorality in society today, that

such on individual will fall prey to his desires and indulge in what Sunnis regard

as straight forward prostitution. In addition, his individual ijtihiid will violate a

ruling based on ijma'. Taqlfd S~f, if practiced correctly will circumvent many

such problems, he says.51

Similarly, if allowed to practice talfiq such a person will go from madhhab

to madhhab searching out· that which is most convenient for him in any given

situation, satisfying thereby, the dictates of his passions and desires and not the

decrees of his Lord. Given that our actions will be judged by our intentions~ as

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

5IIbid., 35.

Chapter Six 153

own predilections. 52

As to why only the four madhtihib have been allowed, he says that this is

so because only these four share the quality of having comprehensively exhausted

all possible eventualities that Muslims might face and of having supplied rulings

to everyone of these eventualities. All other schools suffer from the shortcOmings

of not being as comprehensive and thus if one were to follow such a school a

point may be reached where one will have to take recourse to one of the four

schools and in so doing, fall victim to the temptation of human caprice and lust. 53

Finally, Muslims of India are compelled to follow the school of AbU

ij:anIfa simple because it is, by far, the most predominant school in the region.

'Works explaining the intricacies of this school are easily available in the area as

are scholars qualifIed to interpret and explain such works. 54

It will be noticed that ThanwI's sufI sentiments have left their imprints

throughout his argument; he mentions repeatedly, the lack of integrity and

self-indulgence as a primary reason for the absolute necessity, in. the present

times, for taqlfd shakh§f. Also, one fInds in the works of scholars such as

ThanwI, a link of sorts, between the historical m~thodology of the early ij:anafites

and the subsequent .regimen of taqlfd. . The latter were, at the outset, the

preeminent proponents of opinion, (the Ahl ai-Ray of Kufa), opposed, in their

methodology, to the people of l}.adIth (the Ahl al-lJadfth of Medina). The

evidence examined thus far, would seem to lend itself, quite favorably, to the

notion that this methodology of ra'y and more importantly, the rulings arrived at

thereby, were never really abandoned. The approach however, may have changed

somewhat: whereas previously--after Shafi'Ithat is--ray was exercised under the

guise of analogical deduction (qiyiis), later, after the 10th century h., that same

52Ibid., 39.

53Ibid., 50.

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.

/

..

CHAPTER SEVEN

CONCLUSION

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

i I

156 Chapter Seven.

disunited the community.

But ijtihiid itself, in the hands of the reformists, assumed a multiplicity of!

perspectives: while for some, it was simply a return to the scripturalliteralismi

of the early ljadIth folk, for others it was the very 'principle of movement' in

Islamic intellectualism; for others still, it was an escape from the bigotry and

factionalism of the madhahib, from the tyranny cif taqlfd and from the I . '

obscurantism of its patrons, the 'ulamii'.

A close scrutiny of the classical period 'however, has provided no

indication that the term was ever used as an independent legal concept, and even

less so, as the principle of any kind of intellectual movement as such. It is, in

fact, not at all clear how the term was distinguished, in the classical period, from

terms such as 'aql, iann and ra'y which connote the same sense of extensive,

intellectual endeavor. The Prophet and his Companions are known to have

exercised their legal judgements in ways to Which anyone of the foregoing terms,

could equally apply. But their exercise thereof was not performed explicitly under

the rubric of ijtihiid, and the concept to that extent, seems not to have been I

integral to the collective consciousness of the juristic hierarchy of the early,

period.

the flrst thoroughgoing imaIysis of ijtihad and its appropriation into a

strictly legalistic frame of reference occurred with Shafl'I who incorporated it into

his principles of jurisprudence or the U§ul al-fiqh. But his efforts at locating I

ijtihad within the framework of the sacred Law resulted in its restriction to the

twin principles of qiyas and ijmii'. These principles, which Shafl'II I

institutionalized, along with his doctrine of the primacy of the sacred sources, the,

Qur'an and particularly, the sunna, had the cumulative effect of 'closing the doors I

of ijtihad' to posterity. Ijtihad, for Shafl'I, was no more than a synonym fori

qiyas: "they are," he states,· "two names for the same concept ... in.the life of:

a Muslim there is always, either a binding order or some evidence as to the,

correct order. With regard to the flrst, where a decision already exists it should'

I

Conclusion 157

be followed; in its absence however, a decision should be sought by way of

ijtihad, and ijtihad is qiyas. "

Shafl'i's deflnition of ijtihiid was not challenged by the reformists in any

way; in fact their perspective on.;the subject singularly lacks any focus on the

etymology of the term. All who spoke of ijtihiid and its historical contribution to

Islamic intellectualism did so without a clear assessment of its actual development

and use in the formative period. What sufflced was the mere perception that

ijtihiid would facilitate the treatment of contemporary issues in a way that would

neither jeopardize the authority of the sacred texts, nor yet restrict their

articulation within the paradigm of modernity.

Some, like Afgham, and to a greater extent Iqbal, revolutionized the

deflnition of the term. Whereas in the past, ijtihiid was identified exclusively with

the legal process, in the hands of these scholars, it was equated to Islamic

intellectualism itself. While AfghanI based his ijtihiid squarely on the Qur'an and

the sunna, its hermeneutics, he argued, must be contemporaneous to the rational

spirit of the new age. Furthermore, all Muslims should be allowed to interpret the

sacred texts, provided they have a sufflcient knowledge of Arabic, are of sound

mind and know the traditions of the salaf. For Iqbal, on the other hand, ijtihad

was the principle of movement in Islam, and to the extent that it was integral to

his theology, it was much broader than the ijtihiid of the legal scholars. Whilst

his was the only signiflcant criitique of the "closing of the doors of ijtihad" it

nonetheless, failed to recognize the contribution that Shafl'i's legal thinking made

to that closure.

Some in the reform movement chose to interpret ijtihiid by way of it's

antipode, taqlfd, which resulted in the latter term itself being redifmed. For

'Abduhthus, it constituted the anti-rational element in Muslim thought in dire

need of replacement by a new spirit of rationalism epitomised by ijtihad. As in

the case of the West, Muslim society's progress, 'Abduh argued, also hinged on

its ability to break from the obscurantist tendencies in the faith, from the

158 Chapter Seven

irrationality of some of its religious dogma and from the superstitions of its

masses. But 'Abduh's ijtihiid, was defined primarily by the traditions of Islamic

legal thought. This perspective, which I have called the inter-textual, recognizes

the absolute authority of the sacred texts, and generally, only allows ijtihiid in the

absence of textual evidence. Matters pertaining to religion are of two kinds:

fIrstly, those mentioned in the Qur'an and the sunna and passed on from

generation to generation through the practice of the community; such matters

cannot be determined on the basis of ijtihiid. But there are other matters, not

decided by an express injunction of the sacred texts or by the consensus of the

community; these could be determined by ijtihiid.

Extra-textual ijtihad featured less prominently in reform circles: it refers

to those reform packages wherein the scriptural content of the Islamic heritage is

largely overshadowed by the libertarian values of modernity. FarId Wajdi, for

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

that true Islam is that which conforms to the truths of modem civilization and not

vice versa. Sir Sayed felt much the same way, except that in his case, it was

modem science that was the only reliable criterion of the truth. This utilitarian

approach to ijtihad deemed the concept useful only to the extent that it facilitated

the process of modernization itself; but if it hindered Islam's rapprochement with

science or western civilization it was to be rejected.

Ijtihiid also took on new dimensions in the hands of Ri<J,i and Maudfidi:

both saw it as a function of the modem Islamic state and its legislature. As for

Ri<J,i, he further crystallized the ideas of classical jurists like Miwardi of ijtihiid

being the preeminent function of the imam: the latter, he suggested, will function

in the modem, Islamic state as the supreme mujtahid empowered to legislate .and

promulgate rules that are in consonance with the sacred law. To do so however,

it is essential that he be thoroughly familiar with both the sacred science~ as well

as contemporaneous matters. Such a mujtahid/caliph however, will not function

unilaterally, but rather in conjunction with a legislature. Ri<J,i proposed the

Conclusion 159

establishment of a special institution for the training of mujtahids who would

serve on such an institution. The latter's graduates will function as deputies to the

caliph and officiate in that capacity in the judicial system of the government.

As for Maudfidr, he did not specifically single out the caliph as the

mujtahid par excellence but spoke instead of a decentralized process of ijtihad

performed not necessarily by professional jurists or 'ulama' but rather by all who

possessed the necessary qualifIcations. Instead of a legislature filled with qualified

mujtahids, Maududi suggested a number of mechanisms available for the

legitimization of personal,individual ijtihad, and its incorporation into the law of

the state. For example, the "ijtihad of an individual or a group of individuals may

gain wide popularity and people may suo moto, adopt their verdict, " or "a

Muslim government may adopt a particular piece of ijtihad as its law, as for

example the Ottoman government had adopted the .I;Ianafi Law as the law of the

empire. "

It was nonetheless Maududi's views on taqlfdand the madhahib that

grabbed the attention of the Pakistani public; it did irreparable harm to his reform

efforts and exacerbated the rather tenuous relations that he had with the 'ulamii'.

In addition to his refusal to be identifIed with any of the schools of law that

prevailed in Pakistan Maududi also proclaimed that none of these schools was

correct in its entirety. While he maintained that the lay person follow a

trustworthy scholar he refused to endorse the kind of taqlfd that the 'ulama'

advocated. His avowed purpose for becoming embroiled in the madhhab disputes

of the community was because such disputes impeded his efforts at creating a

single, unifIed community. His efforts however, were far from successful, for

instead of providing a rational alternative, as he claimed, for those who acted

impartially in religious disputes, he only caused the already polarized community

to further alienate itself from his message.

Banna shared Maududi's broad objectives with regard to Muslim unity in

the face of modem perils but his efforts were not plagued by legalistic

I I'

160 Chapter Seven

sectarianism as was the case with Maududi. Ijtihiid, for many in the Ikhwlin, was

not the antipode to taqlid and the two were therefore not mutually exclusive to

each other. Banna himself was of the opinion that every Muslim ought to have

the right to choose a madhhab but that he do so only after careful study of its

Sources. The secondary differences in the Law, he maintained, were not

necessarily a divisive factor in the community nor did it engender hatred or

irreligiosity in Muslims. Banna and the Ikhwlin thus dealt with far more

circumspection vis-a-vis the madhiihib than was the case with the Iamat-e-Isliimi.

The only segment of the reform movement with so-called historical claims

to ijtihtid is the Salafiyya or the Ahle-lJadlth movement. The latter have to be

distinguished from the neo-Salafrism of 'Abduh and the Manar movement who

stand out for their assimilation of contemporary notions regarding reason, science

and technology into the vision of an' Islam without sectarian bigotry and

traditional superstitions. The Salafiyya on the other hand trace their philosophy

to scholars SUch as Ibn Taymiyya and particularly, ShauklinI whose thoughts, in

turn, show the unmistakeable influence of his shi'I background. Like the Zaydis,

he too propagated a return to the texts and a rejection of ra 'y or rational

speculation in the Law. Shauklin'I's ijtihiid distinguishes between ra'y, which he

says is synonymous with taqlid, and riwaya which is synonymous with ijtihiill.

Reason for him therefore, is only meant to unravel the rule of the sacred law as I

enunciated in the scriptures; all else is nothing but delusion. SalaflS also

distinguish between ittibti' and taqlid: the former is, for them, always based on

textual evidence while the latter-in the form of a legal opinion or even afatwa-is

not corroborated by such evidence.

In Indo-Pakistan the Salafiyya goes by the name Ahle-ijadlth. Along with

its opposition to the madhdhib and taqlid it also expresses a strong antipathy to

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

Conclusion 161

with the ijanafis--historicallly, the principal proponents of qiyas--is, I think, of

particular importance, for it underscores the point that the salafi version of

ijtihtid, for all practical purposes, excluded the exercise of ijtihiid in the form of

qiyas. The sources of the Law were strictly the Qur'an and the traditions of the

Prophet.

This inquiry .also unearthed a possible link between the regimen of taqlid

and the lJanafi/Ottoman nexus. A significant number of calls for ijtihad and the

abandonment of taqlid came from areas where the Ottomans had imposed lJanafi

law on people who, in the main, were adherents of other schools of law. lJanafis,

on the other hand, seemed to playa substantial role in defending the regimen of

taqlid: some did so in response to the scurrilous attacks on Abu ijanIfa by critics

of taqlid, others, as a show of loyalty to the Ottoman government, and others

still--members of the 'ulama' fraternity, mainly--out of fear of the consequences

of this movement on their vocations. The most strident defenders of taqlid to this

day are to be found in !ndo-Pakistan; not only are the doors of ijtihad kept tightly

shut in that area, but taqlid itself is rigorously imposed upon laity and scholar

alike. It is also, perhaps the only remaining part of the Muslim world where

taqlid shakhsi is religiously observed.

There is also evidence to suggest that those who were inclined to sufISm

and particularly to the popular practices that were promoted in some sufi circl~s

were also sympathetic to the regimen of taqlid. This may be due to the simple

fact that all of these phenomena, viz., taqlid, Hanafism, sufism and the 'ulama',

constituted the orthodoxy of that era and thus found support in each other against

a common enemy, Muslim reform. Or, it may indeed be attributable to a variety

of highly complex factors whose examination however, falls outside the scope of

the present study.

I I }j

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INDEX

Egypt, 10, 11, 13,57,62,77,83,88, 105-110,127,130

Enlightenment, 3 Fatwa, 9, 73, 85, 88, Ill, 1l2, 126, 144,

149, 150, 160 Fiqh, 21, 26, 38, 65, 68, 69, 71,127,131,

136, 143, 155 French,4 Gibb, Hamilton 73,67,77, 130, 135 Go1dziher, Ignaz 12, 13,22, 23, 30, 38,

45,61l Hadith, 25, 30, 81, 83, 118 Hashwiyya, 71 Ibn Hanbal, 5 Ibn Muqaffa, 37 Ibn Qayyim, 66, 153 Ibn Rushd, 58 Ibn Taymiyya, 47, 48, 75, 66, 138, 153,

159 Ibn Tumart, 75 Ijrna', 12,42,64,65,70,71,74,84, 117,

133, 152, 153, 156 Ikhwan, 11, 13, 105-108, 110, 112, 118,

159 India, 1, 3, 10,52,54,55, 79-84, 113,

123, 125, 146, 147, 154 Indonesia, 4, 13, 143-145 Iqbal, Muhammad 14, 69, 73-75, 78, 113,

156 lamal aI-Din Afghani, 10 lamiit-e-Isliimi, 105, 109, 113, 124, 159

170

Jomicr, Jacques 80, 81 Kal!Lhari, Zahid 140, 142 Khalifah, 71 Khariij,31 Khilafa, 70, 75 Lord Cromer, 135 Madhiihib, 5, 9, 12,25, 33, 53, 55, 63,

75,76,65,67,74,78,80, 83,86, 110-112, 118, 122-125, 127, 130, 132-134, 136, 139-141, 143-145, 153, ISS, 158-160

Miilik, Anas 5 Maniir movement, 64 Mariighi, Mustapha 10, 130-133 Maudiidi,AbulA'la109,113,115,1l7,

Mawiili,32 Miliid,80

119-124, 158

Mu'iidh, b. Jabal 8, 30, 151 Muhammad 'Abduh, II Muhammadiyya, 144 Mufti,6 Muqallid, 12,47,49,73,74, 84, 121, 147 Muwatta, 132 NaqshbandJ:, 67 Na§§, 23, 24, 60, 63-65, 72, 68, 150 Nawiib, 82, 84, 85, 88, 89 Pakistan, 10, 13,52,54,55, 71, 82, 109,

110, 113, 114, 117, 119, 121, 124, 126, 158, 160

Qiyiis, 8, 12, 20-26, 38, 42, 43, 68, 70, 71, 79, 84, 88, 115, 148, 150, 154, 156, 160

Ra'y, 8, 20, 22, 23,25, 29-31, 33, 35, 36, 38,42,43,45,68, 67-69, 73, 74, 76, 85, 149, 154, 155,159

Rahman, Fazlur 6, 14, 15, 22, 36, 46, 47 Raii, Fakhruddin 78

. Ridii, Rashid 51-53,63,67,68,70,72, 73, 78, 63, 77-80, 109, 110, 128, 131, 144, 158

Rilla. n Ritii' yyah, Order 136 Salafi. 68. 72. 65, 112, 160 Salafiyya, II, 12,21,25,63,74,86,88,

110, 112, 119, 159, 160 Schacht, Joseph 6, 8, 23, 28, 30, 33, 34,

39,65, 126

Shiifi'i, Idris 5,8,21,22,26,35,37, 40-47,65,68,70,72, 122, 132, 139, 1~3, 145, 154-156

Shafiite, 4 Shari'ah, 4,65,74, 113-116 Shaukiini, 'Ali 67,69, 71-78, 89, 159 Shi'i.68 Shirk, 11, 12,79,148 Sir Sayed, Ahmed 54. 55, 66, 157 South East Asia, 4 ~iifi, 67, 67, 79, 82, 83 Sultan; 128, 129, 135, 136, 140 Sunna, 5, 12, 20, 22, 32, 34-36, 38-43,

. 46,63,64,71,72.75,77, 73. 78, 79, 81. 82, 85, 89, 112,113,115-118,121, 123, 127, 132, 133, 144, 145, 156, 157

Swiss Code, 4 Syed Siibiq, 127 Talfiq, 9 Taqlid, 5-7, 9-12, 25, 47, 49, 53, 55, 56,

59,61-63,65,78,79, 64-67,69-80,83-88, 106, 110, Ill, 118, 119, 121, 122, 124-127, 130, 131, 133, 136-140, 142, 155, 157-161

Teceddut, 69 Thanwi, Ashraf Ali 148, lSI Tihiinawi, Muhammad 20, 21 Turkey, 4 Umayyad, 32, 33. 136 Wahhiibi, 12, 138, 145 Wajdi, Farid 66, 157

Zaghliil, Sa' ad 57 Zahirites, 45, 71 Zan~ 20, 21, 25,43,155 Zaydi,67

171