The American Journal of Islamic Social Sciences Vol. 8, No. 2, 1991 317 Refections The Crisis in Fiqh and the Methodology of ljtihad The year 310 AH (922 AC), the year in which the last of the acknowledged mujtahidiinl died, may be marked as the beginning of the crisis of fiqh that continues even to this day. At that time Islamic fiqh took a very serious turn and, near the end of the fourth hijri century, its most negative effects began to be apparent. It was then that the thmkmg of scholars was seriously influenced by the apprehension that certain rulers, through their citing permission obtained as the result of the misuse of fiqh, were exploiting the things held dear by the ummah. Thus it was out of fear that the idea of closing the door of ijtihad was born. This essentially defensive notion was accomplished by stipulations to the effect that recourse might only be had to the ijtihad made by the scholars of the earliest generations, that no changes could be made to the ijtihad performed by them, and that any opinion that did not conform to their opinions should be rejected.2 In this way, the sun set on true ijtihad, and in its place there came mere taqlid, which allowed the state of legal and intellectual lassitude to become widespread. Moreover, the ties of the ummah to the two sources of legislation, the Qur'an and the Sunnah, and to the other sources weakened and then fell away entirely. Findly, &hi studies were confined to a few specific textbooks, commentaries on those textbooks, commentaries on the commentaries, and annotations on the commentaries on the commentarie~.~ T&ha J. al 'Alwlini is a member of the Fiqh Academy of the Organization of the Islamic Conference, chairman of the Fiqh Council of North America, and president of the International Institute of Islamic Thought in Herndon, Virginia. 'Ibn Jarir al Tabari. *It would not be out of place here to mention that if the process of ijtihad had included an inherent capacity to reform itself and provide the necessary safeguards against its being misused, and against the Muslim mujtuhiss being negatively influenced by outside pressures, the scholars of those times might have found another way out of the problem-a way other than closing of the door of ijtihad and insisting on taqlid. Tontrast this sorry state of affairs with the way that the earliest scholars used to ap- proach the business of fish. Muhammad Zhid al W t h a r i wrote, in al Banniiri's introduction to Nu+b ul Riiyah by a1 Zayla'T: 'The most obvious of the features that distinguished the legal 318 The American Journal of Islamic Social Sciences Vol. 8, No. 2, 1991 Let us see how al Ghazziili (505 AH/llll AC) described the situation, and how his explanation included mention ofthe most important developments to take place in Shari‘ah studies in general and in fiqh in particular. He wrote: You must know that the office of Wlihfuh after the Prophet of Allah, upon him be peace, was assumed by the ul khuhfii’ ul r%hidiin, who were imams and Shari’ah scholars in their awn right. Moreover, they were active in giving futiiwii and making legal judgments. Therefore, only rarely if ever did they need to seek the opinions of thefuqufi’. The result of this was that thefuquhii’ immersed themselves in knowledge of the next world and shunned all else. Thus, they were known for their refusals to give futiiwii and legal advice on issues of worldly import, perferring instead to devote all of their deductive abilities to the worship of Allah Most High. But when, soon after the deaths of the ul khulufii’ ul riishidiin, the office of khahfuh passed into the hands of those unqualified to lead the ummah and unlearned in matters of fiqh and funuii, it became necessary to consult thefuquhii’ and to seek their advice in nearly everything. At that time, there still remained of the successor generation (the Tabi’iin) those who continued in the same way as before, practicing Islam in complete purity, and following the example of the most learned and devout from their predecessors. Thus, if they were sought out (by those in power who would ask them questions), they would flee or otherwise evade them. The result of this attitude was that the rulers had to resort to pressuring scholars to accept positions as qii& and government school of AbU Hanifah was that it was a school of shUrCi (mutual consultation).” A1 Kawthari then went on to cite several reports by the biographers of AbU Hanifah. Those included a report that: “The associates of AbU Hanifah, those who put fiqh down in writing with him, numbered forty; they were the greatest of the greatest (scholars). Among their number was Y+yi ibn Zakariyi ibn AbU Za’idah who acted as their scribe for thirty years.” Another report, related by al Muwaffaq al MakkT, stated that: “AbU Hanifah made his school of legal thought a school of shrirCi such that he never monopolized the process of ijtihad to the exclusion of others. This was what his ijtihad on the matter had led him to believe; and this was the way that he emphasized his good will for Allah, for the Prophet, and for all the Muslims. Thus, he used to toss out questions, one after another, and listen to what the others had to say about them. Only then would he give his own opinion. Thereafter, they would debate back and forth, sometimes for as long as a month, before they would agree on something, and their decision would be recorded.” Indeed, this was the method followed by most of the other great imams of fiqh in the early stages. See a1 Zayla‘i, N q b al RCiyuh, 2d ed. (Beirut: Dir Ihyi’ a1 Turith al ‘Arabi, lm), 37-8. The Crisis in Fiqh 319 officials. Thus, as the scholars repeatedly turned down the offers made by rulers and leaders, the people of those times witnessed the true nature of their scholarship. This, in turn, influenced many of them to go out and seek knowledge for themselves so that they too might earn the respect of the people and the notice of the rulers. So people flocked to learn about the sciences of the futwii. Thereafter, they did all they could to make themselves known to the rulers so that they could ask for positions and favors. Then, among them were those who failed and those who succeeded. But those who succeeded were unable to avoid the humiliation of sacrificing their dignity in order to ask. In this way, thefuquhii’ went from being sought after to being seekers after, and from being respected for their spurning the offers of rulers to their being scorned for their opportunism. Of course, there were those true scholars of the din who were spared all disgrace by Allah Most High. But, in any case, the greatest interest in those times was in giving legal rulings (fatwir) and judgments ( q 4 ’ ) because of the need for people to fill positions of authority in the courts and in government. Thus, little by little, fiqh was tmsformed as a result of these mistaken practices from acting as a means for the regulation of people’s lives in accordance with guidelines from the Shari‘ah to functioning as a tool to be used for the purpose of legitimizing whatever was current or to satisfying purely intellectual desires to speculate on rulings that might be applied in conjectural situations. The state of fiqh in those days being what it was, it should come as no surprise that the Muslims felt uncomfortable and not a little confused. Oftentimes something pronounced br i im by onefuqih would, at the same time, in the same place, and under the same circumstances, be pronounced b l i i l by another faqih. In order to have a sense of what really occurred in 4In the early days of Islam, the only duties of the scholar or mujtuhid were a1 if;’ (giving legal advice) and a1 qu&’ (giving legal rulings, or formally passing judgment). The third duty of the scholar in those times was teaching. Indeed, the great imams of fish used to consider teaching a form of purification, a way of remembering their Lord and Creator, and a method for gaining greater understanding of the &n, in itself a form of worship. For these reasons, the early generations of scholars never sought payment from the authorities for their teaching, but from the awq2fmonies of the Muslims. Those who had to took as much as they needed and no more, and those who had no need taught solely for the pleasure of Allah. In fact, many teachers personally financed the education of their students, and many con- tributed to the endowments of the schools in which they taught. 320 The American Journal of Islamic Social Sciences Vol. 8, No. 2, 1991 those times it should suffice us to note that a new and extensive chapter in jurisprudence was being written then, the chapter known as ul hip1 wu ul makhiirij, or legal stratagems and dodges. Indeed, the mastery of this particular subject became a sign of the fuqih's erudition and academic preeminence! So, as time passed and as the influence of Islam decreased, people began taking more and more liberties with the laws of the Shari'ah. Some of the fiqahii' even went to the extreme of transgressing the bounds of the Shari'ah and its higher purposes (muq@id) with the explanation that they had done so either in order to simplify matters or to make them more difficult. Among them, one group was ever intent on finding new ways to make fiqh conform to whims and worldly desires, while another group was determined to pronounce only the most harsh and disagreeable rulings. Moreover, until this period of stagnation thefutwii had never been used as a means of justification for the policies or practices of government. But this is what happened during a period of weakness in Ottoman rule, and thereafter the affliction continued to spread. The Decline of Ijtihad Under the looming shadows of the circumstances described above, ijtihad disappeared. Many of the pious, however, were concerned that the unqualified and unscrupulous would attempt to practice ijtihad anyway. Indeed, the task of givingfutwii had been undertaken by people who in many cases had been reared under the eyes of rulers and who had grown practiced in twisting the texts to suit their appetites. The other group that gavefutwii in those days comprised those who had been seized by blind loyalty to one or another of the schools of legal thought (mudhiihib). Thus they either abrogated or reinterpreted everything that appeared contrary to their d h h a b , and argued and disputed with anyone who opposed their d h h b or attempted to issue futiiwii based on another mudhhab. When the pious scholars turned their attention to remedying this situation, the only solution they were able to come up with was taqlid: strict adherence either to the opinions of a particularfuqih or to the teachings of a particular madhhab. Imagine what a crisis it must have been for the solution to be the fetters of taqlid! And so it was that the rivalry among thehuh?', their incessant debating, and their pedantic bickering and contradicting all led to the conclusion that the only way out of the confusion they had created was a return to the opinion of the earlier imams. Indeed, owing to the close ties between the q w s (judges) Tihi J. al 'Alwini The Crisis in Fiqh 321 and the rulers (who appointed and provided for them), and to the love of many judges for worldly things as well as the injustices that many of them had allowed to go unanswered, the people lost faith in them and in their judgments as well. Ultimately, the only judgments that people would show respect for were those based on the opinions of one of the four early imams.5 And so the great Muslim masses considered following the four imams, adhering to all that they had opined, and making deductions of what they had not said specifically from what they had said generally, to be an ade- quate guarantee against the kind of judgments and opinions that came from Shari'ah scholars who had no fear of Allah. It was for this reason that Im5m a1 Haramayn (478 AH11086 AC) claimed that there was ijmii' among the scholars of his day that the taqlid of one of the Suwbuh was not acceptable. Rather, people were to adhere to the fish of one of the four imams who had probed and examined the Shari'ah, who had classified and given form to questions of fiqh, and who had digested the teachings and opinions of the Companions and the Successors. This is what finally led to the dictum that the common man, anyone other than a true rnujtuhid, is required to follow one of the four madhijhib.6 Based on this pronouncement by I m h a1 Haramayn and on the claim of ijmii: Ibn a1 S a l a (643 AHA246 AC) claimed that following one of the four imams was obligatory (wiijib), as only their teachmgs had been systematiz- ed, clarified, and preserved, while the opinions of the Companions and the Successors had never received such attention. Moreover, the four mudhiihib had been passed on, in the form of common everyday practice, from genera- tion to generation. It was from this time onward that people began neglecting the Holy Qur'an and its sciences, and likewise the Sunnah and the disciplines associated with it. Instead, they satisfied themselves with quoting teachings from the dif- ferent mudhiihib, and then arguing in favor of those and, under what might be considered the best of conditions insofar as the exercise of legal acumen was concerned, using them as the basis for branching into details. The decline then continued, and the differences of opinion on legal issues increased and became more profound. Indeed, generations of scholars grew up under taqlid, with the result that all independent legal thought was stifled and the tree of ijtihad withered. Consequently, people began to think of the scholars of fiqh as those who had memorized a quantity of the teachings and opinions of the earlier imams 51.e., Abi Hanifah, M&k, al Shifi'i, and Ahrnad ibn Hanbal. %ee ImrTm a1 Haramayn, 'Abd a1 Mdik a1 Juwayni, a1 Burhin, Vol. 11 (Qatar: Mat.ibi' Dohah al Hadithah, 1399 AH), 1146. 322 The American Journal of Islamic Social Sciences Vol. 8, No. 2, 1991 without ever having developed the ability to distinguish between the sound and the infirm among them. Quite often, they had no knowledge either of the evidence that led to the formulation of those teachings or of the methods used to deduce them from the sources. Likewise, a rnz&ddith was one who had memorized a number of u m t h and had knowledge of certain technical terms. A great scholar was one who had memorized the basic texts (mum) of a few of the mjor disciplines and who had mastered the subtleties of one or another of the major3qhi or ujiili texts to the point where he could speak or write at length on it. A great scholar of hadith was one who could repeat what some of the early authorities had opined in regard to the authenticity of a hadith text or the veracity of a narrator. It is true that in this atmosphere of pervasive intellectual gloom there were nonetheless a few shining lights. Still, at the time the Ottoman Empire was established in 680 AH (1342 AC), this was the condition of the ummah. Thus, the Ottomans found themselves confronted with a people who retained very little of the elements of their true character; their beliefs (bqii’id) were vague, their behavior was corrupt, righteousness was nearly nonexistent, thought was petrified, ijtihad was paralyzed, fiqh was defunct, infighting was commonplace, and divisions were widespread. Accordingly, the Ottomans obliged the entire ummah to accept a single madhhub, ul madhhub ul hanufi, to the exclusion of all others; and from the Hanafis they chose their judges and other officials, they designated imams for their masiijid, and they appointed teachers of hadith and fiqh for their schools. In their opinion, such a course of action was by far the most prudent, as a return to the texts of the Qur’an and the Sunnah would have required what they considered to be impossible: a collective effort on the part of gifted and dedicated scholars of the Shari‘ah. Owing to the importance of this stage among the many stages in the development of fiqh, it really needs to be divided into several substages based on developments in politics, in society, in thought, and in the discipline of fiqh itself. This, however, would require a very comprehensive study, and this is not the place for it. What has been alluded to above will have to suffice, in order that we may proceed to discuss another point. Fish and Intellectual Freedom It will be worthwhile here to note that the attempts to quell academic freedom in our history, and of course that includes freedom in the discipline of fiqh, may be traced back to quite an early date. In fact, some of those T&i J. a1 ‘Alwini The Crisis in Fiqh 323 attempts took place in the Umayyid period, while other attempts may be seen to have occurred under the Abbasid rulers. Perhaps the most well known of all such attempts was that of Abii Ja‘far al Mansiir to compel all Muslims to follow the teachings of Mdik as recorded in al Muwaga’ and to prohibit them from ijtihad outside of or in contradiction to that work. A similar example may be had from the agreement between Hlnin al Rashid and his chief legal advisor, the q&ii Abii Yiisuf, that through limiting the appointments of judges and muftis to followers of Abii Hanifah people would be compelled to follow the Hanafi school of fiqh. Likewise, al Ma’miin commanded that all his subjects adopt the teachings of the Mu’tazilah in matters of theology. Practically speaking, the result of all of these attempts was to prepare the ummah, mentally and intellectually, for tacit acceptance of the doctrine that the door of ijtihad had been closed. Had the ummah realized the danger of this matter or its negative consequences, or had the scholars been able to differentiate between the purely academic (in which various opinions are offered in answer to questions) and the essentially administrative (in which taqlid is less stifling), the ummah may have been spared the chaos that it was forced to endure in its fiqh and the turmoil in its thought. If such had been the case, there would have been no need to suppress the free flow of ideas at every level. The ummah’s intellectual decrepitude reached its lowest ebb under the Abbasid rulers in the fifth hijri century when closure of the door of ijtihad became a matter of state policy and academic doctrine. Indeed, this was tantamount to a proclamation of the ummah’s mental and intellectual inability to confront the factors of deterioration and decline. Finally, even though a few thinkers and rnujtuhidiin did appear after this period, the general torpor in academic and jiqhi circles had spread to such an extent that the efforts of individuals were no longer of use in preserving the ummah from the elements of dissolution. Thus, when the ummah was caught unawares by the Crusaders it was barely able to defend itself, with the result that the Crusaders were able to take many of the most important cities and territories and establish their institutions there, humiliating the Muslims and defeating their armies. After much reform, however, and after many bitter experiences, the ummah did manage to reclaim something of its former vitality, so that the Crusaders were repelled and the holy city of Jerusalem was retaken by Sal% al Din (1137-93 AC) . ’Salih al Din a1 Ayyubi would never have been able to achieve his political and military triumphs without there first having occurred a number of reforms in the spheres of fiqh, culture, administration, thought, and politics. Indeed, these reforms were first brought about 324 The American Journal of Islamic Social Sciences Vol. 8, No. 2, 1991 In many parts of the Muslim world, however, the affairs of the ummah had passed into the hands of the MumiiZik (slave rulers) who represented the power bases and military leadership. The outcome of this situation was that academics and fiqh, as well as the means for their reform, were ignored. In particular, the Arabic language, the language of the Qur’an and hadith and the foremost means for the exercise of ijtihad, was neglected. The result, then, was that taqlid continued to increase and ijtihad continued to be disregarded, so that the whole subject of fiqh atrophied. Moreaver, the common people held fast to the madhiihib of their fathers and, what was worse, began to be fanatical in their partisanship for one d h h b or another. All of this, of course, only served to contribute further to the dissolution and decline of the ummah. Then, in 656 AH (1258 AC), along came the Tartar hordes to find the way to the destruction of Baghdad prepared for them by divisions resulting from differences in the madhiihib, political schisms, and internal dissension. Fiqh in the Ottoman Empire After the Muslim ummah had been made to suffer all manner of calami- ty and woes, the star of the Ottoman family began to shine above the horizon. Indeed, with the establishment of the Ottoman Empire, the Islamic world was brought together once again under a single banner. The Ottomans came to power in the seventh hijri century (the thirteenth century of the Christian era), and soon much of the Islamic world had come under their sway. In the following centuries, the Arab territories were added to the empire as its expansion continued and as it made major achievements in terms of leader- ship, military victories, consolidation of power, and organization of the army. The Ottomans won major victories in Europe, the Balkans, and Eastern Europe, so that within a relatively short period their empire became the most powerful nation on earth. Indeed, the European states of the time were thoroughly preoccupied with the question of how to deal with the danger posed by the Ottoman Turks. Thus, the Muslims regained their lost honor and pride. Owing to the martial character of the Ottoman Turks, however, they considered their military genius the greatest of their assets and the farthest by his predecessor Nur al Din Zanji and then he, Sal% al Din, brought them to fruition through the victory in which we Muslims pride ourselves even today. Indeed, this period and these reforms need to be made the subjects of serious study. For more information see Khalfi, ‘Imd al Din, Nir a1 Din Zan.1, and al Kaylki, Mijid, &$a w m f i 1 *kh a1 0 -n . Tihi J. al ‘Alwini The Crisis in Fiqh 325 limit of their ambition. Thus, they paid little attention to furthering their successes on the battlefield through effecting reform of the intellect, or culture, or renewing the study of fiqh. Moreover, the Arabic language continued to be ignored, even though its script was adopted for writing the Turkish language. Significant Features of the Ottoman Period In the field of fiqh, whatever freedom of thought had remained was finally dispensed with as the Hanafi madhhab was decreed to be the state d h h a b and the only one referred to in the decisions of the courts. Scholars of the other three madhiihib were permitted to lead prayers in accordance with the teachings of their madh5hib in certain mosques, but only if those who prayed *Allah Most High chose the Arabic language as the vehicle of His message to humanity. Through the medium of Arabic, He revealed His Book; and He chose it to be the language of His Final Prophet (+AS) and those entrusted with the mission of spreading the message of Islam worldwide. Thus, the revelational sources of Islam, the Qur’an and hadith, are in Arabic. Furthermore, regardless of the excellence of translations or of the expertise of translators, it is still next to impossible to translate all the nuances of an Arabic text-its denotations and connotations, subtle indications, figurative expressions, and metaphorical usages. Fur- thermore, there is an inimitability to the Qur’anic text that makes it difficult to arrive at its true and intended meaning solely on the basis of a literal reading. Rather, a complete understand- ing of the text’s stylistic qualities and syntactical elements is required. This being the case in regard to the native speaker of Arabic, what chance then remains of faithfully conveying all aspects of the text in another language? Indeed, the works entitled translations of the Holy Qur’an are in fact works of interpretation or tafir that depend, essentially, on the capacity of the translator to interpret what he or she understands of the text. In no way can such a work be imagined to convey all the shades of meaning, and in precisely the same way, as the original text. The ulama, both past and present, have had much to say on the subject of translating the meanings of the Qur’an. But regardless of their opinions as to whether or not the translation of its meanings is permitted, they are as one in their agreement on the point that it is impossible to convey in another language all that the Qur’anic text contains. It is for this reason that all scholars have agreed that anyone who attempts to study the subject of fiqh or to master the disciplines necessary for ijtihad must first of all attain proficiency in the Arabic language. The khafifuh ‘Umar ibn al KhaGb said: “Become learned in the Sunnah, and become learned in Arabic!” It is also related that ‘Umar said: ‘Learn Arabic, for it is a part of your religion!” Indeed, the early generations of Islam spread the Arabic language to every place they settled. In a few short generations, Arabic was spoken all thrbugh the lands previously held by the Persians and Byzantines. At the present time, there is great need for redoubling our efforts to make Arabic the language of all Muslims. Moreover, it is particularly important that those scholars and thinkers involved in the Islamization of the social sciences should gain as complete an understanding of Arabic as possible. This in itself will represent a very significant step in the Islamization of knowledge. 326 The American Journal of Islamic Social Sciences Vol. 8, No. 2, 1991 there were themselves followers of that particular madhhub. Likewise, there was permission for such scholars to teach the fiqh of their d h i h i b if there was sufficient interest in it. Otherwise, it was at this time that Abii Hm-fah was given the title of uZ Zmiim uZ H p m (the Greatest Imam), and his A h h u b was called Madhhab a1 Irm5n.1 ul A@m. Thereafter, many properties were bequeathed by means of uwqiifto the teaching and promotion of the Hanafi mudhhab. The other madhlihib, however (other than the four major ones), were ignored completely. This was especially true of the Shi'i madhiihib, as relations between the Ottomans and the Shi'i Safavids in Persia remained stormy for three and a half centurie~.~ It should be mentioned here, however, that if the truth be known, the lhrks were not the first to take the Hanafi madhhub as the state madhhb. Rather, it is well known that H m n al Rashid, back in the year 170 AH, appointed Abii Hanifah's pupil and close companion Abii Yiisuf as the chief q&fz of his empire; therefore the appointment of all judges and muftis had to be approved by Abii Yiisuf, or done at his recommendation. Thus, no one other than a Hanafi was ever appointed q&li in Iraq, Khurasan, Syria, Egypt, or North Africa. Obviously, that policy played a great role in the spread of the Hanafi m a d h b . Ibn Hazm is quoted as having said that there were two d h h z b s that became widespread as the result of official decree and authority: the Hanafi madhab and the Maliki mudhhab. When the Ottomans adopted the Hanafi rnudhhd, however, there was a difference. The lhrks, the rulers, the governors, the leaders, and likewise the Albanians and other Balkan peoples were Hanafis to start with, and bigoted ones at that. So, when the Hanafi madhhub became the official court madhhab, the Muslims who followed the other imams really had no choice; either they became followers of Abii Hanifah and made themselves eligible for positions in the military and civil service, or they contented themselves with limited opportunity, hardship, and obscurity. 9The Safavid dynasty in Persia was founded in 907 AH (1507 AC) and was essentially theocratic in nature as the monarchs in the line claimed to be representatives of Shi'i imams. Then, even though the majority of subjects had until that time been Sunni Muslims, Shi'ism was imposed as the state religion. Until the fall of the Safavids in 1145 AH11732 AC, the differences they had with the Onomans, both political and religious, were a source of constant friction. Indeed, much of the ottomans' energy was expended in checking this Muslim neighbor to the east, thus depriving themselves of the resources, military and otherwise, that were needed so badly on the western borders. Tihihi? J. al ‘Alwh- The Crisis of F’iqh The Crisis in Fiqh 327 The late Shaykh Malpniid ShalMt, may Allah have mercy on his soul, described the beleaguered state of fiqh in those times as follows: 0 The spirit of impartial academic inquiry was overcome by disputes over semantics and blind adherence to the words of authors and commentators. 0 The opinions of earlier generations began to be treated as sacred, so that they were soon above criticism. As a result, new thinking was never taken seriously. Scholars became preoccupied with intellectual speculation about possible rulings on events and circumstances that had never actually taken place, ignoring all the while the development of a practical fiqh that would address the needs of people in their daily dealings and legal affairs. Fiqh scholars became engrossed in the business of inventing legal loopholes and stratagems that would allow people to avoid the rulings of the Shari’ah. Indeed, stratagems were worked out for nearly every subject covered in fiqh. Unlike the early imams of fiqh who worked out legat stratagems solely for the purpose of sidestepping damage or loss, scholars set themselves to the task of inventing ways to dodge legal responsibilities. 0 Fanaticism in preference of a certain madhhb over all others led to debates over issues such as whether or not &iih was permitted behind an imam who followed a different madhhub. As a result, mosques were built with more than one rnihriib so that the followers of different madhiihib could follow their own imams in ~uliih. Credence was given to the idea that all but the four major madkihib should be banned. In this way, a vast body of legal scholarship, itself a mercy from Allah to the ummah, was dismissed. * * It appears that the Ottoman Empire, after itself contributing to the petrification and attenuation of fiqh, became annoyed with it. Thus, on many occasions the state ignored both fiqh and thefiquhii’, choosing instead to solve its problems by means of institutions erected, or legislation promulgated, by the state. The first Ottoman ruler to thus “take matters into his own hands” was Muhammad al F l ih (d. 886 AH11481 AC) who ordered that civil and criminal codes be prepared to replace the hudiid of the Shari‘ah. Indeed, the movement in this direction begun by al Fiitih was completed by the tenth Ottoman ruler, Su lm Sulaymin (d. 974 AH/l566 AC), who was called al Qiiniini (the ‘‘Lawgiver) owing to the great number of laws he enacted. Indeed, 328 The American Journal of Islamic Social Sciences Vol. 8, No. 2, 1991 Sd@n Sulaymin was responsible for instituting major changes in administrative procedures as well as in the orgauiz,ation of the ulama and teachers of religious knowledge. And it was he who made the highest position in the judiciary the position of the mufti, rather than the qii& which was the way things were behre Mu!mnmad al FWJ. Thereafter, when all manner of legal contradictions began to appear in the system, especially when Shari'ah judges wuld rule one way on a question and government officials would rule another, both the people and the state were inconvenienced. So it was decided at last that certain of thefuqahii' should be invited to reconcile all such contradictions through a complete codification of the laws of the land. Thus, as a first step toward helping judges and officials to understand the Hanafi madhhub, the collection of legal rulings known as al Fatiiwii al EtiirWliiniyuh was compiled. Finally, the effort at codification was concluded with the compilation of Majallat al Ahkiim al Nonetheless, the petrification of fiqh, the general intellectual malaise, the misinterpretation of Islam, and the repeated mistakes made in attempting to apply Islamic teachings to changing situations were greater problems than any such fractional solutions could remedy. Indeed, the proper treatment would have been a comprehensive intellectual and fiqh-based effort to return the Muslims to the original sources, the Book of Allah and the Sunnah of His Prophet, and to bring about change through them in every aspect of life. Indeed, it is inconceivable that a community which considers the exercise of ijtihad suspect behavior, or that supposes the appointment of a judge from another madhhab to be an invitation to trouble, could hold on to the reins of world leadership, progress, and civilization. On the contrary, the certain fate that awaits such a community can only be decline and loss of its place in history to those who are capable of making better use of their genius, who free their minds of all shackles, and who confront their difficulties with learning and an understanding of the laws of the universe, of life, of nature, and of humanity. Indeed, that is the way that Muslims should be. At that period of time, the ummah had forgotten its sources, its heart had grown hard, and its people had become fatalistic. Indeed, philosophical notions and Sufi sentiments about one's needing only to trust in Allah had blurred the ummah's vision. Then, having lost sight of its role in this life, the ummah's chance to renew itself disappeared just as the winds of awakening and change were beginning to blow across Europe. Haw ironic that the reformist thought put forward by Europe's philosophers, writers, and thinkers came about, essentially, in reply to the challenge posed to Europe by Islam! In turn, then, the European rennaissance became the greatest of all threats to Islam! ;Maziyah. Tai J. a1 'Alwrlni The Crisis in Fiqh 329 One by one, then, the situations, the questions, and the issues brought to the fore by the Rennaissance and then by the Industrial Revolution turned to confront the negligent Muslim ummah. And, having no answer, the ummah sank deeper into the recesses of its confusion, not knowing what to accept or what to reject. In such a state, its thought was of no use to it, and its fiqh to no avail. The spread of modern technology and inventions throughout the world left millions of Muslims stupefied. For many this was surely the work of Satan or a sign of the coming of the Last Day, and was thus to be resisted or confronted by increased recitation of soporifics like DaZii'iZ aZ Khayriit?O Others sought refuge in proclaiming everything new hariirn. After the printing press was invented and the state made known its intention to print the Holy Qur'an, thehqahii' of the time fell into dispute on the matter until finally the majority ruled that to do so would be hriirn!" Nonetheless, the lands that fell under the rule of the Ottoman Empire were certainly not without those who advocated reform of Muslim attitudes, thought, and fiqh. But the general trend in those lands was to reject all such calls to reform and amelioration. The historian al Jaburti, in his narration of the events that took place in Egypt during Ramadln in the year 1123 AH (1711 AC), wrote: A sermonizer of Turkish extraction sat in the aZ Muhyyzd Mosque in Cairo and exhorted the people to denounce such practices as turning to the graves of the pious, rubbing themselves with the dust they found there, and petitioning the saintly inhabitants for their intercession with Allah. Indeed, the sermonizer acquired a large following. But the scholars of a1 Azhar opposed him. At last, the authorities stepped in and beat or banished the man's followers, so that finally the controversy was quelled.'* The attempts at reform in the ummah at times of oppression have been many; and many attempts have been made to throw off the stifling yoke of taqlid and to free the Muslim mind from its influence. Nonetheless, that yoke continues to throttle the ummah to the present day. Likewise, the yearning for true ijtihad continues to be just that: yearning, despite all the attempts, many of which were truly inspired. l0It is not the intention of the author here to undermine the value of this book or its contents. It is, rather, the mentality of those who turn to its recitation. or to the recitation of sahib a1 &khan or of ten thousand Subbin Allihs instead of dealing realistically with the problem at hand that the author is condemning. "See al Nabahini, a1 Dawlah a1 Isliimiyah, 138. lZSee Tiriq a1 Bishri, a1 Mashlah a1 Qininiyah, 669. 330 The American Journal of Islamic Social Sciences Vol. 8, No. 2, 1991 As I prepared this study, I returned to the writings of Muhammad a1 Khudm-, one of the best known authors on the subject of the history of Islamic law. In describing the period we are discussing, that from the fall of Baghdad in 656 AH (1258 AC) to the present, he wrote: It was not at all clear to me what I could possibly say about this period because the stirrings of ijtihad had come to a standstill, and there were no features of sufficient interest to write about. Then he added: There was much to say about the first period because that was the time when Allah revealed His commandments to the heart of the Prophet, upon him be peace, who then propagated the message and explained it to the people; and about the second and third periods because those were when the Companions and the Successors clarified the methods of deducing legal rulings from the Book of Allah, the Sunnah of His Prophet, and by means of sound reasoning; and about the fourth period because that was when the major imams and the greatest of thefiqaha' were active in recording and giving order to the detailed rulings of the Shari'ah; and about the fifth period because that was when the Shari'ah rulings were sorted and pruned and selected and given preference, one over another. But what is there to say about this last period? Especially when there is nothing to distinguish it? Nonetheless, as this period includes our own, and as we are sorely in need of reforming ourselves as our pious predecessors had, I thought it would be useful here to list our shortcomings, for if these can be identified, our thinkers and scholars can devise solutions for them. The most significant aspect of this period is the way that taqlid has so dominated the Muslim mind that not a single scholar has aspired to achieve the level of rnujtahid. The author, al Khudari, continues: From the outset of the tenth hijri century to the present, the situa- tion has changed, as have the landmarks, so that it has even been announced that nofuqih is to choose between the teachings within a d h h a b (in cases where more than one opinion on a certain question has been recorded from the imam or from his com- T i h i J. al ‘Alwini The Crisis in Fiqh 331 panions), or to attempt to give perference to one over another, because the time for that has passed and because a great deal of time has elapsed since the books of the early fiqh scholars were written, so that scholars today should rely only on works produc- ed by the later generations. The reasons for decline, as articulated by al Khu&iri, may be summarized as follows: 1. 2 . 3 . 4. The lack of ties between fish scholars from different parts of the Islamic world. The lack of attention paid to, and outright ignorance of, the works of the earliest fish scholars. The debilitating trend toward abridgment in writings on the subject, especially in textbooks (al mutiin). Faulty and timeworn methods of teaching. In my own estimation, and certainly Allah knows best, these are only a few symptoms of the true reasons for our decline. Essentially, the cause behind all of these is the backwardness of our thought, what I call the crisis of thought, our loss of direct contact with the Book of Allah and the Sunnah of His Prophet, our loss of clear vision, and our complete ignorance of the testimony of reason. It is interesting to note the second reason mentioned by al Khu@ui, because it shows how unwilling our scholars have been to go back to the sources. What of their refusal to deal directly with the Qur’an and the Sunnah? They are loath to delve any further back than the fifth hijri century! Moreover, when al Khudari mentioned the trend toward abridgment, he wrote: Near the end of this period, the trend toward abridgment took an unexpected turn. This was the attempt to cram as many ques- tions of fiqh into as few words as possible. Then, as their facility with the Arabic language was limited (the authors of this genre of abridged &hi texts), their writing began to resemble puzzles, as if the authors had intended that their works should never be understood. Indeed, my opinion is that they intended their works to be unraveled rather than understood, because the solving of puzzles was one of the signs of erudition among them! A1 Khudari listed examples of this style of writing from three of the most noted works still used as textbooks in many of our 332 The American Journal of Islamic Social Sciences Vol. 8, No. 2, 1991 Shari'ah institutions. These are works in which the meanings are so briefly summarized that they have become enigmatic. In many of the sentences you will find the predicate mentioned on the page after the subject is mentioned, or you may have to saircii even lurther for it, or you may have to surmise what it is by means of implication! It was for this reason that the textbooks required commentaries, and the commentaries required notes, and the notes required glosses. The situation is so bad with some of these texts that the teacher's attempt to explain the intended meaning of a single passage may take days on end! At first, ijtihad was prohibited. Then, in the fifth and sixth centuries, scholars were restricted to turjih, or giving preference to the opinion of one imam or another on questions of fiqh. But then turjih was prohibited, and scholars were restricted to choosing between the rulings within a single d h h b (in cases where more than one opinion on a certain question had been recorded from the imam or from his companions). In this way the door to independent legal thought was shut and then barred. Having reviewed something of the historical background, we may now proceed to study the question of ijtihad as a question of methodology that was affected by positive and negative factors in its historical development. A Methodological Perspective on the Question of Whether or Not the Door of Ijtihad is Closed Those opposed to an Islamic solution for contemporary society often charge that the door of ijtihad was closed at a very early date in the history of the ummah, and that Islam teaches that no one is to exercise ijtihad on issues not dealt with by the early imams. Of course, their intention in making these charges is quite clearly to cause difficulties for the advocates of an Islamic solution by portraying them to the ummah at large as incompetent people without the capability to put forward any sort of reasonable answer to the numerous and complicated problems faced by the ummah today. By further implication, the opposition means to say that Islam is essentially a historical phenomenon whose day has come and gone. Thus, they open the way for their own ideologies and pretensions. In order to analyze this question properly, and in a way that clarifies the issues that surround it and those that result from it, it will first be necessary to study it from three separate viewpoints. Only in this way will we be able to discern the question with ~larity.'~ la& Sayf al Din A M al Fattih, op. cit. T&i J. a1 ‘Alwini The Crisis in Fiqh 333 The First Viewpoint All Muslims, specialists and nonspecialists alike, agree that ijtihad is a legal and vital necessity as well as a permanent religious responsibility. This understanding is substantiated by texts from the Qur’an and the Sunnah, and by reason and all of this is documented in those works on u@Z uZ$qh that deal with the subject of ijtihad and its legal basis and importance. Thus, the assertion that the door of ijtihad is closed is one that is contrary to all of these sources of evidence. Indeed, never during any period of history was there a consensus among Muslims that this door had been closed. That was because Muslims knew that the guarantee for the preservation and continuation of the Shari‘ah was in the vitality of the institution of ijtihad, and the succession of qualified rnujtahidiin, one after another, dawn through the ages. Undoubtedly, ijtihad as an institution suffered more fTom factors inhibiting the Muslim mind than it did from any imagined loss of the institution itself. Indeed, there seemed to be no end to the kind of distorted thinking that produced the notions that the earlier generations had left nothing for the later ones, that ijtihad should be avoided because it included the possibility of error (and errors had to be accounted for), and that the door of ijtihad had to be closed so as to ensure that the unqualified not enter it, and so on. For various reasons and with different intentions, some good and some not, rulers and scholars alike were encouraged to adopt the position that the door needed to be closed. The intention of the rulers in this regard was that the ummah should not feel free to express opposing opinions, even in academic matters, lest the people make a habit of vocalizing all of their opinions, including political opinions. Indeed, the point was finally reached where certain rulers actually issued edicts banning even fully qualified scholars from the exercise of ijtihad or the issuance offutiiwii on particular questions unless their ijtihad andfutiiwii were in agreement with the positions taken by the rulers on those issues. The Second Viewpoint Never in any stage of its unfolding did the claim that the door of ijtihad had been closed rely on authentic Shari‘ah evidence or on the argument that there was no need for ijtihad. Indeed, the scholars of the Shari’ah proved most emphatically, by means of both reason and revelation, that such a need would always exist. One of their major arguments in support of this was to point out that the texts of the sources of legislation are finite while the 334 The American Journal of Islamic Social Sciences Vol. 8, No. 2, 1991 Occurrence of events requiring legal rulings is continuous. Likewise, the Shari‘ah scholars pointed out that it is essential that every age have a mujtuhid capable of interpreting the judgment of Allah:‘ and that it is the responsibility of the ummah to ensure that such scholars continue to be produced; otherwise the entire ummah can be held responsible for having committed wrong. Such group responsibility is called fur4 kijiyuh in the terminology of the Shari‘ah, and it is possible that the claim that the door of ijtihad had been closed was aided in part by the common perception that ijtihad is itself a furd kijiyuh and not an individual responsibility cfard by). That being the case, as most people suppose, it is enough that a few specialized Shari‘ah scholars undertake the responsibility for ijtihad, and only those who are qualified may be held responsible. This common perception, however, represents a faulty understanding of the furd kijiyuh. In fact, this type of furd is of great importance-of more importance, in reality, than the&$ tzyn duties because, quite simply, the fur4 kijiyzh is the concern of the entire ummah. The reason for this is that thefurd kijiyuh duties usually concern principles by which the ummah proves to be the ummah, contributes to civilization, and promotes humanity’s mission as khatfhh, or vicegerent of Allah. Indeed, these are the duties that the Eternal Lawgiver prescribed for the ummah in its capacity as the ummah, and not as a group of individuals gathered together. In this way the responsibilities of civilization and culture were divided equitably and with care. The concept of ijtihad is similarly misunderstood. In the past, it was long supposed to be limited to the spheres of fiqh and jurisprudence. And in the present, its meaning has been so diluted that it no longer retains its original Islamic content, but is used instead to denote any sort of intellectual activity, regardless of its nature or the ideological base from which it originates or toward which it is directed. All of this has contributed to confusion regarding the original Islamic significance of the term, especially among contemporary writers. To some of them ijtihad means Westernization, to some modernization, to some enlightenment, secularism, atheism, change, even the nullification of all Shari‘ah laws and freedom from the teachings of the source texts! All of this has contributed to making the question of whether or not the door of ijtihad is still open a reason for the division of people into several groups, as will be discussed later. 14See JalrTl al Din al SuyUtj, Kitcib al Radd bh man Akhlada ilii a1 Ard wa Jahila anna a1 I j t i W f i Kulli .Ysr Fard, ed. al Shaykh Khalil a1 MTs, (Beirut: Dir al Kutub al ‘Ilmiyah, 1403 AHA983 AC). See also, ‘Ali a1 Khafif, a1 I j t i m f i a1 Shanah a1 tsliirniyah, 210-11. The Crisis in Fiqh 335 The Third Viewpoint In order to clarify the two previously-mentioned viewpoints, it will be necessary to explain ijtihad's opposite: taqlid. Moreover, it is interesting to note that almost none of the early scholars of zqiil attempted with any clarity to trace taqlid to a legitimizing source in the texts of the Qur'an and hadith, or even to defend it or to consider it an absolutely accepted Shari'ah concept. Rather, the most that those early scholars had to say about taqlid was that it was a legal concession given on the basis of ne~essity?~ In the same way that the progress of ijtihad was impeded in a gradual manner, until finally some of the later generations thought it to have been discontinued and its door closed, taqlid also came about gradually. Indeed, the Muslims did not take to taqlid until a number of factors, each of which took some time to develop, had materialized. Essentially, the reason for this was that taqlid was alien to the Muslim mind, far removed from the nature of the tuwhid that nurtured and enlightened that mind. Moreover, taqlid was unknown in the first two centuries of Islam?6 Nonetheless, circumstances were such that certain people supposed, albeit mistakenly, that taqlid was a solution. Thus, the process of ijtihad was arre~ted?~ Conclusion Taken jointly, the three viewpoints mentioned above form the essence of the methodological position on the issue of ijtihad. In short, ijtihad is 15See al Shawkhi, a1 Qawl a1 Mufidfi Adillat a1 Zjtihiid wa a1 Taqlsd (Cairo: Mustgfi al Bibi al Halabi, 1347 AH), 3; Ibriihim Ibrih-m Jalil, Wiliiyat All& wa a1 PrTq ilayh& a study and critical edition of al Shawkids Kha? a1 Wls hlii Hadith a1 Wfi (Cairo: Dir a1 Kutub a1 Hadithah), 290; Rifi'ah Rifi' al TahGwi, a1 Qawl a1 M d f i Adillat a1 ZjtihrId wa a1 Taglid (Cairo: Widi al Nil, 1387 AH), 11. 16Sh& Wali Allah al Dahlawi, a1 Zn$ffi Bay& Asb& a1 rwltikif (Cairo: Matba'ah Sharikat al Matbu'it al 'Ilmiyah, 1329 AH), 18. The author quotes Abu T l i b al Makki as saying: "These books and compendiums are recent developments. Likewise, the same is true of quoting others as authorities, of issuingfatiiwii only on the basis of a single madhhab, of considering that madhhab to be the law, of relating only the opinions of that madhhab in regard to all that occurs, and of studying only that one school of fiqh. Certainly, that was not the way of the people in the first and second centuries." 17Hisham a1 Ayyubi, a1 Ijtihiid WII Muqta&yit a1 X y , 147-53. Amin a1 Shinqitj points out that taqlid of a madhhab, in effect, is tantamount to disregarding the Qur'an and the Sun- nah. He writes: "This disregard for the Qur'in and the Sunnah, and-the belief that they may be dispensed with through recourse to the recorded madhrihib followed by the great majority of Muslims is among the greatest of calamities ever to befall the ummah in the centuries of its history." See Amin al Shinqit.i, a1 Qawl a1 Sadid fi Kashf Haqiqat a1 Taqlsd (Cairo: Dir al S*wah, 1985), 107. 336 The American Journal of Islamic Social Sciences Vol. 8, No. 2, 1991 a legal necessity and, therefore, no age may be without a mujtahid. M o w e r , there are certain qualifying conditions that must be met by the mujtahid, conditions like legal expertise and erudition which transform ijtihad into an essentially exclusive process. Finally, the ummah is jointIy responsible for providing the continuing means for the perpetuation of ijtihad; otherwise every member will be held accountable as a doer of wrong. Certainly taqlid, as the opposite of ijtihad, contributed greatly to obstructing it. Furthermore, if an ijtihad-based mentality on the part of the ummah enabled it to undertake a process of civilhtional renovation and continual response to the demands of progress, then a taqlid-based mentality was what incapacitated the Muslim mind so that it was no longer capable of responding satisfactorily to events as they occurred. Indeed, the manifestations of that mentality included state sponsorship of one particular madhhab, improper applications of mudhhb rulings, stubborn adherence to the teachings of the mudhiihib, daring to issue futiiwii without proper qualifications, and the wavering of muftis between severity and laxity without having recourse to any sort of Shari'ah guidelines to govern their responses.'8 Undoubtedly, those who called for the door of ijtihad to be closed needless- ly backed themselves into a position for which, in fact, there were alter- natives. Likewise, they acted in haste when, in actuality, there was ample time to decide the matter without rushing. But ultimately they closed what should have remained open and left open what should have been closed; they closed the door of ijtihad but left it open for kQZiim (scholastic theology). '*For further reading on the subject of the door of ijtihad and the need to keep it open, see the following works: Yisuf al Qarads;wi, a1 Fiqh a1 Isliim, 39% Must@ al &fi'i, a1 Isliim: Intiliiq Li J u m d (Cairo: al Majlis al A'li li al Shu'in al Islb-yah, l386/1966), 174e M m Ibrihim Famj, al Tashn'al I s h - f i MadiMt a1 h a (Cairo: Dir al I%*, 1404/1983), 67% Maammad Su'iTd Jalil, a1 Ijtiihiidfi a1 Shan'hh a1 Zsh-yah, (Cairo: Dir Thabit, 1402/1982), 5ff; M u m a d Sulaymin, Bi Ayyi Shar' %Mum? (Cairo: al Matba'ah al Amiriyah, 1936), 12; Wahbah al ZuIylT, %j&d a1 Ijtihd, included in a1 Ijtihd wa a1 %j&d fi a1 Tashn' al I s h i , Muspfi Kamil al Tizi et al. (This: al Sharikah al Tinisiyah li al Tmzi'), 89-9995; Zuhir W d , a1 Ijtihd wa a1 SGlr a1 I s h - Mu&mmad Zqbd, published in the Fkceedm . gs of the seventeenth Session of the Islamic Thought Forum in Algeria, Ministry of Religious Affairs, 140311983, 5; Ibrahim al Qa&in, "al SharT'ah Silihah li Kull Zamin wa Makin," Majallat a1 Diriisit a1 Isliimiyah 6, vol. 17, (Nov.-Dec. 1982): 48-9; Jamil al Din al Afghini, a1 Ah21 a1 Kiimilah, 329; Al Sayyid Muhammad Rashid Rids;, M&wartlt a1 Mqlih WQ a1 Mugallid wa a1 R@ahh a1 I s h - y a h (Cairo: Matba'ah al Mamir, l323), 135-6; see also, Muhammad Zihid al Kawthm-, ed. Shams al Din al Dhahabi, Zaghal a1 'Ilm (Damascus: Matba'at al Tawfiq, l347), 21, in which al Kawthari writes: "The door of ijtihad is wide open for all time, but shut in the face of any ingenuous incompetent incapable of verifying even a single chapter of fiqh," in commentary on the statement of al Dhahabi, -. . . You don't need usUl alfiqh, 0 mugallid! 0 you who suppose ijtihad to be aver with, and that there will never be another mujtahid!"; see also, M+miid al Sharqiwi, a1 %?awwur R?I a1 Shan'ah a1 Isliimiyah (Beirut: al Maktabah al 'Asriyah, 1969), 212-8. Tihi J. a1 Alwini The Crisis in Fiqh 337 Actually, they really thought that ijtihad was a factor in the creation of divisions among Muslims. But that was true only in regard to the kind of ijtihad exercised in the field of i‘lrn a1 kaliirn. That is an area where all serious scholars agree that there is no scope for ijtihad and where there is no plurality of what can be correct. In matters of belief, the truth is exclusive; and the safest way to arrive at it is to take it directly (as it was revealed in the Qur’an) from the Eternal and All-Knowing. Indeed, it was the delving into matters of belief that caused schisms in the ummah and destroyed its unity so that its entire being was weakened and its very existence threatened. The end result of this was that the ummah split up into sects and subsects. Those who split up their religion, and became sects-each party rejoicing in that which is with itself! (Qur’an 30:32) Certainly, the sects discussed in the books of sects, like Maqiiliit a1 Zsliirniyin by a1 Ash’ari, a1 Milal wa a1 N i b 1 by al Shahrastini, a1 Fiqal by Ibn Hazm, a1 Zliqiidiit by a1 Fakhr a1 Din a l Riizi, a1 Firaq by al Baghdiidi, a! Tab~lr by a1 Isfarii’ini, a1 Hiir a1 % by a1 Yamiini a1 Zubaydi, and others; all of these were sects that grew out of opinions on obscure points of theology, rather than as any result of ijtihad exercised on issues of law or civilization. Even the unfortunate events that took place at various times in our history, events which may have seemed to be the result of differences over points of fiqh; in fact, had it not been for the questions of theology that were at the crux of these disputes, the differences in fiqh would never, on their own, have kindled the flames of open discord. Obviously, it will be necessary to delineate the topics in which ijtihad may be practiced, to describe the various fields, to further explain the concept, and to take care not to overstep the limits of excess or neglect. By doing this, in shiih All&, the true position in regard to this vital issue will be clarified.