Islamic Law and Culture, 1600-1840

By Haim Gerber | Go to book overview

CHAPTER FOUR
IJTIHAD

As I have said, one of the issues suggested for investigation in this study is that of the rigidity of Islamic law in the post-classical period— the argument that the founders of the schools (madhhabs) reached solutions to problems from which no one could deviate so that all that remained for subsequent generations was to emulate or copy. Whereas this description may appear accurate with respect to the writers of doctrinal textbooks (mutūn), it is irrelevant, because it was these writers' task to present the theory of the field. No one would criticize an introductory textbook on economics for analyzing a problem of foreign trade by using countries A and B and commodities C and D, although everybody knows that a parallel situation does not exist in the real world. Likewise, the idea that the price of any commodity is the point of intersection between the supply and the demand curves is unquestionably true, though it can never be applied in practice because in real-life situations there are always several distorting elements that can never be isolated. And in writing the doctrinal theory it is also quite possible that a premium was placed on lucidity, and certainly often on brevity, disregarding alternatives or innovation.

But the appearance of rigidity is belied—even on theoretical grounds—insofar as practical muftis are concerned because these jurists had to deal with new, current cases, and by definition, any case that was even slightly new presented a problem of interpretation, a problem that no doubt demanded a serious intellectual exertion on the part of well-trained scholars.

From reading Khayr al-Dīn al-Ramlī and his sources and antecedents, one gets the strong impression that Islamic law was not lacking in flexibility. There is no question that most legal decisions were based on the authorities of the Ḥanafī tradition. Jurists were following in the footsteps of former ones in a sort of taqlīd.1 No legal

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1
The translation of taqlīd as imitation is not only pejorative, but factually wrong. Taqlīd is used mainly in the context of accepting someone's intellectual authority. See, for example, ʿAbd al-Rahmān Ibn Khaldūn, al-Muqaddima (Beirut: Dār Ihyāʾ al-Turāth al-ʿArabī, n.d.), 448.

-71-

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