By Muhammad al-Marakeby
This essay aims to explore the concepts of taqlīd (following the legal opinions of earlier jurists) and ijtihād (independent legal reasoning) during the Ottoman period. Although numerous studies have challenged the traditional view that Islamic law in the Ottoman era was stagnant and resistant to change, a critical question persists: How can we explain this with the ʿulamāʾ's (Muslim jurists') assertion that no mujtahid existed during that period, at any level or rank? How do we account for their insistence on identifying themselves as adherents to a specific school (muqallids) while simultaneously engaging in practices that resemble independent legal interpretation (ijtihād)?
Various contemporary scholars have addressed ʿulamāʾ's apparent inconsistency, historically, with their stated adherence to a specific school (taqlīd), viewing it as a predictable outcome of the tension between theory and practice in Islamic law. This theory-practice dichotomy is widely accepted by scholars as a characteristic feature of Islamic law. For example, Professor Sherman Jackson argues that muqallids were not genuine in their claims of taqlid, but they rather attributed their views to the early founders of Islamic law schools (madhhabs) to bolster their credibility. For Jackson, taqlīd is "primarily about authority, not content."[1] He argues that jurists' attempts to balance the demands of specific legal questions with overarching theoretical principles contributed to what he calls the "arbitrariness" perceived in Islamic law.[2] Professor Ahmad Atif Ahmad notes that many Western scholars of Islam perceive "a dichotomy between Islamic legal theory, which reflects the ideals of the Quran and Sunna, and Islamic legal practice, which often succumbs to pragmatism and juristic stratagems."[3]
In contrast, I assume in this essay that the narrow definition of ijtihād has led, intentionally or unintentionally, to endorse this claim of inconsistency. Ijtihād is usually defined as "the maximum effort expended by the jurist to master and apply the principles and rules of uṣūl al-fiqh (legal theory) for the purpose of discovering God's law."[4] However, for a law to reach a final form, it must go through a complex, multi-layered process that extends beyond simply "discovering" it. This process can be divided into at least two stages: the first involves deducing the ruling, as encapsulated in the well-known definition of ijtihād, while the second involves concretizing these rulings by applying them to specific cases. This latter stage has often been overshadowed by the focus on the former.
Abū Isḥāq al-Shāṭibī, the Mālikī Andalusian jurist, (d. 790/1388) elaborates on these two significant levels of ijtihād. According to him, the first involves deducing the ruling from the sacred sources, while the second entails applying this pre-deduced ruling to actual cases after verifying that the rationale of the theoretical ruling is applicable to a real-world case. Shāṭibī explains that rulings are inherently "abstract and general" (muṭlaqāt wa-ʿumūmiyyāt), whereas real-life actions do not occur in this "abstract" form but rather in specific contexts and involving particular individuals. Thus, to issue a ruling in such specific cases, one must first determine whether the particular case falls under the scope of the "abstract" ruling. He elaborates:
Each occurrence of a legal case is unique and unprecedented [in its specific details]. Even if a similar case has happened before, it did not happen to us. Thus, ijtihad is always required. Even assuming an identical case appears now, we must first confirm its exact similarity, which itself involves ijtihādī reasoning.[5]
In other words, Shāṭibī suggests that jurists must engage in two levels of reasoning to arrive at a ruling: first, deducing the ruling from texts and associated sources, and second, applying this ruling to the specific case at hand. Texts cannot be directly applied to cases without this reasoning process, as no two cases are ever exactly the same. To assert that the present case matches a prior example or precedent, we must consider not only the details of the case but also the specific context, circumstances, and conditions in which it arises. While some cases may appear identical to those in the books, they must, as al-Qarāfī, the Egyptian Mālikī jurist, (d. 684/1285) puts it, be "exactly the same . . . letter by letter."[6] Shāṭibī argues that even when cases appear identical, recognizing them as such requires some kind of interpretation (ijtihād).
More importantly, it seems that both mujtahids and muqallids were entitled to perform this kind of ijtihād (which I will refer to as ijtihād of application as opposed to textual ijtihād). Textual interpretation (ijtihād), which refers to deducing rulings from the sacred texts, was restricted to the highest rank of the ulama. However, muqallids, even absolute muqallids, were eligible to perform the interpretation (ijtihād) of application. Shāṭibī elaborates that "this kind of interpretation (ijtihād) cannot cease to exist. It will continue to be practiced until the Day of Judgment, while the second [textual interpretation] may cease before then."[7] Shāṭibī adds that if this former kind of ijtihād could disappear, we would no longer be able to apply Islamic legal rulings, and they would remain merely theoretical (fī al-dhihn).[8]
Similarly, al-Ḥaṣkafī (d. 1088/1677), a prominent Ottoman Ḥanafī scholar, states that "they [the ʿulamāʾ] say that the absolute mujtahid is non-existent. As for the mujtahid muqayyad (affiliated to a specific madhhab), it is divided into the well-known seven ranks. With respect to us [i.e., contemporary scholars], we must adhere to what [previous scholars] determined as valid (ṣaḥīḥ) and more preponderant (rājiḥ)." Ḥaṣkafī, therefore, denies the ʿulamāʾ of his time any rank of ijtihād.
His commentator, Ibn ʿĀbidīn (d. 1252/1836), clarifies that Ḥaṣkafī meant that the jurists of his time were classified under the seventh and lowest rank.[9] Ibn al-Kamāl Pasha (d. 940/1534), the earlier Ḥanafī scholar who established this classification, had defined the seventh rank as follows: "the rank of muqallids who are not capable of any of the above [i.e., takhrīj or tarjīḥ][10]. They cannot distinguish between the bad and the good, nor the left and the right. They just collect all of [the information] they find. Whoever follows them is indeed a loser."[11] This means that Ḥaṣkafī acknowledges that the ʿulamāʾ in his time were absolute muqallids who had no capacity for any degree of interpretive reasoning.
Yet, the picture may not be so stark. Ḥaṣkafī further states:
We should follow them [earlier jurists], but also consider changes in customs, people's circumstances, what is most beneficial, what is commonly practiced, and what seems most compelling. The world cannot be void of those who are capable of making such considerations. Their existence is an actual reality, not speculative (ḥaqīqatan lā ẓannan).[12]
Although Ḥaṣkafī classifies himself and his fellow jurists under the seventh and lowest rank, he insists that, even if they are absolute muqallids, this should not prevent them from considering the circumstances and contexts of the cases to which they apply Islamic law rulings. This suggests that ijtihād of application is not restricted to the ranks of mujtahids or affiliated mujtahids but is also extended to absolute muqallids.
Similar to that position, Ibn Quṭlubaghā (d. 879/1474), the Egyptian Ḥanafī scholar, after admitting that "mujtahids are gone," suggests that, if we find various opinions attributed to the early Ḥanafī scholars without declaring one as the most authentic, "we should do what they did—that is, consider the custom of the people and the changes in their circumstances."[13]
Likewise, in his treatise on custom (ʿurf), Ibn ʿĀbidīn was asked whether a mufti, even as a muqallid, could consider the custom of a case. He answered in the affirmative.[14] Elsewhere, Ibn ʿĀbidīn suggests that "a mufti's or qāḍī's rigid adherence to the external meaning of the texts [of early Ḥanafīs], disregard for customs [of early Ḥanafīs], . . . and the ignorance of how people live has resulted in harm to many people and the loss of many rights."[15]
Some studies rethought the meaning of taqlīd by introducing the concept of partial ijtihād. On their view, a partial mujtahid could perform takhrīj or tarjīḥ, which would allow Islamic law to maintain its adaptive character.[16] However, with the rise of the claim of absolute taqlīd, neither takhrīj nor tarjīḥ remained viable techniques of reform for the jurists of the Ottoman period. Instead, I propose that the concept of ijtihād of application, which is compatible with absolute taqlīd, provides a possible explanation for the flexibility of Islamic law in the Ottoman period.
Various studies have emphasized the significance of the process of application for the continuous development of Islamic law—that is far from new. However, my primary contribution in this essay is to elaborate on the idea that ijtihād can be practiced by an absolute muqallid, and that, when practiced, it does not reflect a coercive shift driven by contextual pressures. I accordingly challenge some contemporary scholars' claim of inconsistency between theory and practice in Islamic law, arguing that this perceived contradiction stems from a failure to acknowledge the multi-layered structure of ijtihād and the flexibility inherent in taqlīd, even the of absolute type. I hope this contribution will inspire further discussion on "the closing of the gate of ijtihād" in the Ottoman period, especially by giving voice to the jurists themselves rather than dismissing their views as insincere.
Notes:
[1] Sherman Jackson, "Taqlīd, Legal Scaffolding and the Scope of Legal Injunctions in Post-Formative Theory Muṭlaq and ʿĀmm in the Jurisprudence of Shihāb Al-Dīn Al-Qarāfī," Islamic Law and Society 3, no. 2 (1996): 165-92, 172.
[2] Ibid., 170.
[3] Ahmad Atif Ahmad, Structural Interrelations of Theory and Practice in Islamic Law: A Study of Six Works of Medieval Islamic Jurisprudence (Leiden; Boston: Brill, 2006), xxiv.
[4] Wael B. Hallaq, "Was the Gate of Ijtihad Closed?," International Journal of Middle East Studies 16, no. 1 (1984):3–41, 3.
[5] Abū Isḥāq al-Shāṭibī, al-Muwāfaqāt (Cairo: Dār ibn ʿAffān, 1997), 5:12.
[6] Shihāb al-Dīn al-Qarāfī, al-Furūq (Cairo: Dār al-Salām, 2004), 107.
[7] al-Shāṭibī, al-Muwāfaqāt, 4:64.
[8] Ibid., 5:12.
[9] Muḥammad Amīn ibn ʿĀbidīn, Radd al-Muḥtār ʿalā al-Durr al-Mukhtār (Beirut: Dār al-Fikr, 1992), 1:77.
[10] Takhrīj refers to the process of drawing an analogy between a novel case and an older, similar one that was addressed by the eponym of the madhhab. It can also refer to deducing the ruling for a new case based on certain principles established by the eponym of the madhhab. Tarjīḥ involves declaring one opinion within the madhhab as the most preponderant. Within a madhhab, there may be multiple narrations attributed to the eponym or various takhrījs conducted by earlier scholars. The role of jurists qualified to perform tarjīḥ is to determine which opinion among these is the most authentic or authoritative. Takhrīj and tarjīḥ are usually considered as partial ijtihāḍ. For further details, see Ibrāhīm ibn Farḥūn, Kashf al-Niqāb al-Ḥājib min Muṣṭalaḥ Ibn al-Ḥājib (Beirut: Dār al-Gharb al-Islāmī, 1990), 62–109.
[11] Ibn ʿĀbidīn, Radd al-Muḥtār, 1:77.
[12] Muḥammad al-Ḥaṣkafī, al-Durr al-Mukhtār Sharḥ Tanwīr al-Abṣār wa-Jāmiʿ al-Biḥār (Beirut: Dār al-Kutub al-ʿIlmiyya, 2002), 16.
[13] Qāsim ibn Quṭlubaghā, al-Taṣḥīḥ wa-l-Tarjīh ʿalā Mukhtaṣar al-Qudūrī (Dār al-Kutub al-ʿIlmiyya 2002), 132.
[14] Muḥammad Amīn Ibn ʿĀbidīn, "Nashr al-ʿArf fī Bināʾ Baʿḍ al-Aḥkām ʿalā al-ʿUrf," in Majmūʿat Rasāʾil Ibn ʿĀbidīn (no edition).
[15] Ibn ʿĀbidīn, Sharḥ ʿUqūd Rasm al-Muftī, 42.
[16] Sherman Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dīn al-Qarāfī (Leiden: Brill, 1996); Ahmed Fekry Ibrahim, "Rethinking the Taqlīd Hegemony: An Institutional, Longue-Durée Approach," Journal of American Oriental Society 136, no. 4 (2016): 801–16.
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