Research Notes

The Closing of the Door of Ijtihad

and the Application of the Law'
This panel's center of gravity is Islamic legal theory and doctrine,
particularly USGZ alfiqh. In this mom are many of the West's leading
scholars in this field. This puts me out of step, for my work leads me to
study fiqh and US^ alfiqh chiefly from the viewpoint of their applica-
tion, an approach that is the result of spending sevetal yea= in Saudi
Arabia studying the role of fiqh and the ulema in the Islamic legal
system.I wish to submit, however, that there are a number of doctrinal
problems to which a study of the law's application and practice or, in
other words, a study of the legal system, stands to contribute a great deal.
The closing of the door of ijtihad, which I intend to discuss, is such an
issue.
But first let me make some general points to support the general
suggestion I have just made. In western studies of fiqh, we have often
omitted, justifiably or not, any consideration of the law's application.
Among the valid justifications for doing so is the very vastness of the
doctrinal corpus. Another is that to get basic data on the law's historical
application is far more difficult than fvding its black-letter doctrine.
Other justifications are more questionable. For one, we have often made
certain assumptions, which-stating them with due exaggeration-hold
that Islamic law, since it became stagnant at an early period, was usually
ignod in practice. As a d t of this, it is often maintained, fiqh re-
treated into the ideal world of scholarshipwhile the application of the law
fell under the sway of arbitrary and despotic rulers. Approaching the law
with such an impression, however much in the background, scholars of
Islamic law have, not surprisingly, spent little time on its application.
This last justification for ignoring the law's application is now, I be-
lieve, rapidly eroding due to the efforts of scholars on many different
fronts. Some, notably Professor Hallaq, are at work countering the exag-
gerated idea of the "closing of the door of ijtihad," a phrase used to con-
vey the idea that fiqh became utterly stultified at an early stage.2 Other
scholars ate examining late Shari'ah court records and legal documents

'Paper delivered at the American Oriental Society Conference, Cambridge, Massachu-

setts, 13 March 1992.

*See Wael B. Hallaq, "Wasthe Gate of Ijtihad Closed?," International Journal of

Middle Eastern Studies 16 (1984).
 Vogel: The Closing of the Door of Ijtihad 397

and are fmding that relevant fiqh doctrines were scrupulously applied.
Still others are tracing extensive developments in fiqh law, in the inter-
stices of doctrine, and in genres of fiqh literature, particularly f h i w d ,
which are hierarchically lower than the muan,or basic texts of the legal
schools. Lastly, there are scholars studying Shari‘ah applications in tradi-
tional contemporary societies.
There is a single theme, I submit, that usefully integrates m r c h
into the law’s application: the profound tension or dialectic, apparently
endemic in the Islamic legal venture, between the ulema and the ruler.
While the former are the bearers and advocates of fiqh, the latter is the
inheritor of another principle-namely power-which is as indispensable
to the fulfillment of the Islamic legal ideal as is fiqh itself. The ruler’s
very indispensability lends him an indefeasible legitimacy, which can be
counteted by the ulema only with difficulty. Let us designate this legi-
timacy, as it concerns the operation of the legal system, by the ulema’s
own tetm: siydsuh. The structure of an Islamic legal system arises most
essentially from the complex interaction of these two legitimacies and
institutions-siyiisuh and ruler on the one hand, and fiqh and the ulema
on the other-as they enter into relations of cooperation and competition.
My suggestions here tun counter to the tendency in Muslim and non-
Muslim writings on fiqh to neglect the siydsuh principle found in the law.
For example, we often tepment all legislation and adjudication originat-
ing in siyhuh as “extra-Shati‘ah” by definition. This is to confuse fiqh
(the human endeavor to know God’s law, as represented in the work of
the ulema) with the Shari‘ah (the all-encompassing divine order for hu-
man life) and thereby to accept too uncritically the ulema’s own, some-
times partial, repmentation of the Shari‘ah legal system.
Drawing on such thoughts, I suggest that we augment efforts to
evaluate fiqh controversies, even those involving u$iiZ ulfiqh, for their
significance with regard to the law’s application. We should situate such
controversies within the theory of the legal system as a whole and also,
ideally, within the context of the particular Islamic legal system in ques-
tion. To this end, we must use all tools at our command, among them
fiqh theory (including the theory of qu&’ [adjudication], ijki’ [authorita-
tive opinion] and siyduh), historical explanation, as well as legal, com-
parative, and sociological method.
Turning to the “closing of the door of ijtihad,” I view this as an
example of a problem that is likely to benefit from the approachjust out-
lined. Let us begin with a rather obvious point: how natural, and how
seemingly necessary, the adoption of a theory like the “closing of the
door“ is to the operation of the Islamic legal system.
398 The American Journal of Islamic Social Sciences 103

To appreciate this, recall the theory and the role of qa&’ in the
larger legal system. Books of fiqh strenuously make the point that qa&’
is tooted in ijtihad and that ijtihad provides the sole ground for the reli-
gious legitimacy of q&‘. Of the famous thtee q&f& of the hadith-of
whom two are in the Fire and one is in Paradise-what saves the latter
is his sincere ijtihad. The answer to the profound moral dilemma facing
the q&K-how to judge in the name of God’s justice when God‘s law is
uncertain (zm]-is nothing but ijtihad.
This belief that ijtihad is at the root of q&-’ has led to many pecu-
liar tenets associated with the theory of q&’. The most obvious one is
that the qddimust be qualified to practice ijtihad (mujtahid). If this is not
the case, his appointment is void, and so all of his judgments, even
if they are correct. Only the H m f i legal school disputes this view, for
it allows a lesser light to be appointed qddion the condition that he con-
sult one more knowledgeable.
A second tenet is that the q&ffmust be free to rule according to “that
to which his ijtihad leads him.” In the ardent search for God‘s truth that
is ijtihad, nothing but the revealed texts and the concrete facts of the case
ought to constrain the q&iCs conscience. If any other influence inter-
venes-such as a ruler’s command to apply such and such a rule-ijtihad
is not attained, the qddipetsonally risks hell-fire, and his judgment is
void. Likewise, past decisions or precedents, whether his own or some-
body else’s, cannot constrain him,for he is supposed to conduct a fresh
ijtihad for each case, no matter how mutine.
Ijtihad also determines a third tenek that no q&fihas priority over
any other in mattem of truth. Once a case has been decided by ijtihad, it
cannot be reversed by another authority.
If this conception of qa&i’-so idealizing, individualistic, multi-
farious, and unpredictable-were given full scope, Islamic legal systems
would face great practical difficulty. In fact, such complaints are recorded
very early in the ‘Abbikid era. In a famous treatise, Ibn a1 Muqaffa‘ (d.
c. 140 AH / 757 CE) protested the

multiplicity of mutually contradictory [legal] judgments. This

multiplicity has become a serious matter, affecting lives, sexual
rights, and property. Life or sexual union may be permitted in
Wrah while it is forbidden in KSah . . . . All this while no
group, from the people of Iraq or the Hij%, can inquire into this
without becoming confimied in conceit with what they have, and
slighting the other party.3

%n al MuqaW, Treatise of the COmpanions,” in RaM’il al Bulagha’, ed. M b -

mad Kurd ‘AE, 4th ed. (Cairo: 1374 AH 1 1954 CE), 1267.
 Vogel: The ClosiOg of the Door of Ijtihad 399

He mmmmended to the caliph that the latter examine all of the conflict-
ing tulings on each issue, select among them, and then codify his choices
into a written law. This p r o p 1 was defeated, and with it a bid that the
der-wielding the authority of siydsuh with its breadth, flexibility, te
sponsiveness to utility, and, above all, powers of compulsion-should
seize control of legislation and thereby replace the ulema and their
rigorously individualistic and conscience-based ijtihad. At the time Ibn al
MuqafFa' wrote, the Hanafi school was a l md y in formation around Abii
Urn-fah, and with it the practices of taqlid and school discipline that
would lead eventually to widespread limits on ijtihad.
By now my hypothesis should be clear. It is, in essence,that d c -
tiom on ijtihad were adopted when the ulema, knowing that their theory
of law caused practical problems in actual legal systems,made the con-
cessions necessary to e m that their fiqh would Survive and could com-
pete successfully against contending principles in the legal system,chiefly
siykuh. Thus "closing of the door" was one piece in a complex mechan-
ism of dema doctrines and institutions designed to protect and advance,
in competition mainly with the ruler, their vision of law and legitimacy.
This hypothesis can explain a paradox noted by Hallaq. He observes
the oddity that scholars should declare ijtihad nanexident, while they at
the very same time acclaim cettainfuquhd' of their own age as muj-
tuhids, exercising ijtihad. The explanation for this paradox lies in the link
between the "closing of the door" and the day-to-day opetation of the
legal system: the doctrine was intended to constrain rank-and-file q&i&
and muftis, not the elite. Elite scholars, who possessed the capabilities
and the courage to exercise ijtihad as well as the prestige to make it stick,
could breach the banier." Examples exist even among the late Uanafis?
Let us now leave these generalities and look at a specific text that is
partly illustrative of my points: a1 Miwardi's al Ahkdrn ul SuZt&zzpzh.
In this book, the author attempted to assert a complete fiqh doctrine for
both public and constitutional law. Written afkr severe shocks to the legi-
timate caliphate, it seemingly can be read as a tentative blueprint for ad-
vancing the authority of fiqh and the ulema over and against that of
siydsuh and the state. Dealing as he does with many highly sensitive

'This is but one example of the dema's tendency to hierarchize truth, mediating
theory and practice via doctrines and practices arranged in ranking and qualified epis-
temologically.

'Ibn 'Abidin (d. 125 AH / 1836 CE), "Shar4al M a u m a h al Musammiih bi 'Ucpd

Rasn al Mufti,"in MajmP'at RasG'il Ibn 'Abidih ( B e i i : D t By&' al 'hsth al 'Ambi,
n.d.), 32, defending the ijtihad of the great Hanafi Ibn al H u m h (d. 861 AH / 1456-57
CE).
400 The Americaa Journal of Islamic Social Sciences 103

issues concerning the division of power between siycisah and fiqh, a1

Mwardi at times uses ambiguity, clever phrasing, or uflspoken Bssocia-
tions to convey his points.
This seems to be his approach while discussing the issue of the
qddz-s freedom to exercise ijtihad. In a section on the qualifications of
a qti& al Miiwardi accepts the majority view, holding that the qddf
must be a mujtahid, that the appointment (w'kiyuh) of a non-mujtahid is
void, and that the latter's judgments are to be rejected. He then treats
various questions concerning whether a 9iidz-s judgments must conform
to the positions of a single school. He writes: "Some legal scholars"-
note that he is not dealing yet with the d e r -

have prohibited one who belongs to a certain school from judging

by any other, so that a SEfi'i is prohibited from judging by the
view of Abii Ijm-fah, and the Ijanafl is prohibited from judging
by the school of a1 S M ' i , if his ijtihad leads to [the latter hold-
ing]. This is because of the suspicion and partiality in cases and
judgments attributableto such a practice. If he judges by a school
from which he [is not allowed to] depart, this better prevents
suspicion and is more a g m b l e to the litigants. Even though
good policy (siycisah) q u i r e s (tuqtudo [this result], the rulings
of the Shari'ah do not obligate it (ki tiijibuhu), because taqlid as
to [thew rulings] is prohibited, and ijtihad as to them is requisite
(mustaha49).6

Among the more obvious objections to allowing judges to exercise

ijtihad on a broad scale is that this would both deny predictability to liti-
gants and open the door to judicial arbitmrines and corruption. Here, a1
Miiwanii alludes to thew objections and acknowledges that, due to them,
the practical needs of the legal system-labelled siybuh- "require" that
judges do not vary from a particular school. He then goes on to declare,
with a delicate choice of words, that despite the demands of siycfsah, the
Shari'ah does "not obligate" this result, since ijtihad is "requisite"
( m u b '
Al Miiwardi's discussion ends with a long treatment of the problem
that is pmbably his chief concern: whether a ruler can make a q&fz7s ap-

6A1 M S w d (d 450 AH 1 1058 CE), al A- a1 S u 4 h 3 a h wa a1 Wi@& al

Diirfj~h(Beht: Diir al KUtub al 'Ilmfyah, 1398 AH I 1978 CE), 67-8.
'As he had explained earlier in the section, the Shari'ah's application requires one
who is " d t t e d to the truth (multatim a1 haqq) and not one who merely enforces it
(&nu mukimih)."
 Vogel: The Closing of the Door of Ijtihad 401

pointment conditional upon his agreeing to judge only by a certain

school. Such a condition, al Miiwardi declares, is void. As to whether the
appointment itself is void, he explains how this varies according to the
form used and to the school. (Interestingly, the Hanafi school is most
willing to uphold the appointment.)
This was in the fifth hgn-century. As time progresses, we find differ-
ing formulations dealing with the freedom of qd&. As the conception
spreads that rnujtahids are unavailable, and therefore that qaz3 can no
longer meet the qualifications of office, q&' works begin to make pro-
vision that qaz3 possessing much reduced qualifications and who can
apply only the d i n g s of their own school are acceptable. However, these
works still maintain that this result cannot be compelled by the ruler.8
Finally, with the Ottomans (if not before), we find the ruler reinforcing
this outcome by his decree withdrawing jurisdiction from any judge who
decides by other than the dominant Ijanafi view. As we examine such
positions over history, it is vital that we appmch them with a lively
sense of the roles they play in the actual legal systems of their time.

Frank E. Vogel
Assistant Professor of Law
Harvatd University
Cambridge, Massachusetts

m-ed.
'See, eg., lbn Abi al Dam (SWiY, d. 642 AH / 1244 CE), Kitdb Adab al
Mub
r HaM al S
1:27 -6, 304.
ir& 2 vols. (Bag)adad: Matba'at al 1404 AH / 1984 CE),