Global Intifada

On Sunnipath, there used to be a fatwa which classified mujtahids at three levels: (1) absolute mujtahid who is capable of scrutinizing the sources of legislation and deducing juristic principles (2) madhab mujtahid who is capable of weighing opinions, evidences, and methodologies between madhaib, and (3) mujtahid within a madhab who is capable of weighing various opinions, evidences, and methodologies within a madhab itself.

Many classical Orientalists have attributed the decline of Islamic civilization to the mythical closing of the gates of ijtehad and the rise of taqleed. I use the term “mythical” because many contemporary academics, such as Wael Hallaq, have shown that ijtehad was never actually closed. The ‘Ulema and certain Academics have shown that ijtehad has persisted in the Ummah at the second and third levels of ijtehad, but not necessarily the first.

For many Western students of Islamic jurisprudence, who are naturally curious by nature, we are naturally inclined to query into the reason why absolute ijtehad has been closed. The reason why absolute ijtehad has been closed is not because a secret cadre of fuqaha conspired to preserve their own power and keep the masses away from complying with the Shari’ah. The historical record contradicts such an assertion.

The real reason why absolute ijtehad has been restricted is that it is impossible for a human being to do so. Absolute ijtehad, as described above, is the ability to develop juristic principles based on a scrutiny of the totality of the texts. However, today we have more access to the totality of Islamic texts then previous generations, so why would absolute ijtehad be prohibited? Ijtehad is not about, nor has it ever been, about the accummulation of texts. This is why the early fuqaha were able to give fatwa even without having access to hadeeth. Ijtehad is about legal reasoning, about when a faqih is obliged to follow a text and when to engage in independent reasoning and most importantly, how to engage in legal reasoning. With the rise of the Madhaib, juristic reasoning was elaborated and built upon. As history developed, new legal issues arose and required both an usool response as well as a textual proof.

However, studying this science takes time. Everyone is aware of the statement of Imam Ahmad ibn Hanbal that a scholar is one who memorizes 400,000 hadeeth. Imagine how long it would take for a person to learn a hadeeth, properly, with its chain of narrators and biographies and criticisms of each one. This is just for the science of hadeeth. In order to be considered a mujtahid, one must have mastery of the various Islamic sciences such as Arabic, ilm ul rijaal, tafseer, ilm ul kalam, etc. Studying such materials in and of itself takes time and is already built upon a solid set of proofs. The requisite amount of time it takes to study each proof within a school takes longer and longer time as Islamic jurisprudence grows and develops, incorporating new principles that contain their own sets of proofs. At some point, even if a person that begins studying at a young age spends his entire studying the fundamentals of jurisprudence, it becomes simply impossible to attain mastery of all of basic principles of each school. Furthermore, since new legal issues are constantly arising due to varying circumstances, it becomes a waste of time to deal with theoretical proofs while ignoring daily concerning.

In other words, examining the legal proofs for the basic principles of a school of law would place a tremendous strain on any competent faqih and would ultimately not be of any practical use of people. If a school and its jurists were fixated purely on theory, then their school would cease to evolve and not address the legal questions of their era and ultimately, die out since people require fatwas for day to day living.

Thus, the term “taqleed” is misleading, a better term is the doctrine of “stare decisis” (or “let the decision stand”). Since it would take lifetimes for a single person to acquire the requisite knowledge to develop the principles that constitute absolute ijtehad, this brilliant legal mechanism enables the fuqaha to move beyond the hamster’s wheel of constantly re-engaging the primary sources and moving into new issues. This institution then, enabled Islamic law to grow and evolve and become a transcendant legal entity that could adapt to virtually any new locality at any particular time. Taqleed, then, contrary to the popular view espoused by Orientalists, is not responsible for the decadence of Islamic civilization, it is responsible for the brilliant flowering of Islamic jurisprudence and accounts for its flexible adaptability to entirely unique situations.

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