Academic journal article The Journal of the American Oriental Society

Rethinking the Taqlid Hegemony: An Institutional, Longue-Duree Approach

Academic journal article The Journal of the American Oriental Society

Rethinking the Taqlid Hegemony: An Institutional, Longue-Duree Approach

Article excerpt

Islamic legal historiography has dealt extensively with questions of continuity and change, as epitomized by the relationship between ijtihad and taqlid. This paper offers a new conceptualization of the ijtihad-taqlid modes of law-making in the Sunni legal tradition. I argue that the institutional transformation from ijtihad to taqlid required that jurists transform the views of the founding authorities of the schools over the course of the eleventh through thirteenth centuries. They achieved this by stratifying legal knowledge in their typologies of muftis and judges in ways that had not been envisioned earlier, justifying their typologies by invoking tropes of decline and the extinction of mujtahids. This longue-duree view will shed light on the institutional significance of the taqlidification of Islamic law, where legal security and stability were privileged over judicial discretion.

INTRODUCTION

In the primary sources of Sunni Islamic legal historiography, premodern Muslim scholars frequently introduced the binary of ijtihad and taqlid as a dichotomy of vitality versus decadence and decline. Some historians of Islamic law, such as Joseph Schacht and Noel Coulson, bought into this primary source trope, reinforcing the decline argument and implying that Islamic civilization was virtually on the wane for most of its history. Modern Muslim reformers were more concerned about another dichotomy inherent in the ijtihad-taqlid binary, that is, change versus rigidity. Like their orientalist counterparts, they generally bought into a notion of decline, but their main interest lay in valorizing legal change (ijtihad) and condemning rigidity (taqlid). (1) More recently, Sherman Jackson and Mohammad Fadel have challenged the characterization that taqlid represents rigidity. Utilizing Alan Watson's concept of "legal scaffolding," Jackson showed that many possible changes could be introduced to a legal doctrine within the system of school conformism, or taqlid. Fadel approached the question from a sociological, institutional perspective, suggesting that the need for legal predictability necessitated the types of restrictions on individual reasoning, or ijtihad, inherent in taqlid. (2)

In this article I focus on yet another dichotomy inherent in the ijtihad-taqlid binary, namely, flexibility versus stability. Building on Jackson's and Fadel's observations, I argue that legal systems--including the Islamic one--value legal stability and efficiency. Very early on, for instance, the Abbasid courtier Ibn al-Muqaffa' (d. ca. 139/756) complained to the caliph al-Mansur (r. 136-158/754-775) that cities of the empire had divergent laws, even different rules within one and the same city. He suggested a caliphal codification whereby uniform laws to be applied across the entire empire were selected by no other than the caliph himself. (3) This proposal failed in the face of strong opposition from jurists, who saw their monopoly of interpreting the revealed sources and of law-making thereby threatened. It is reported, for example, that Malik b. Anas (d. 179/795) turned down al-Mansur's request to use his legal knowledge to codify Islamic law. (4) Ibn al-Muqaffa"s inability to endow the caliph with the power to be the final arbiter on legal matters, coupled with the subsequent failure of the inquisition (mihna) initiated by al-Ma'mun (r. 198-218/813-833), led to the creation of a delicate balance of power between jurists and rulers. The ruler had no say over theological orthodoxy and his prerogative to legislate was limited to the narrow realm of siyasa, while jurists remained the gatekeepers of the law.

This is not to say that the ruler's role in law-making and legal institutional engineering was unimportant or unvarying across different dynasties. (5) Nonetheless, imperial legislation (siyasa) was meant, at least in theory, to be restricted mostly to areas of the law where the Sharia was silent or where the functioning of the courts required uniform legal procedure. …

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