This article explores the concept of collective ijtihad as a means of determining new judicial judgments. Accordingly, it analyzes the theoretical framework of this kind of ijtihad and its application by discussing the various institutions that practice it. In general, this article seeks to present this as a practical mechanism for ascertaining the Shari‘ah’s opinion concerning the Muslim ummah on a variety of current issues. At the outset, it will present briefly the controversy concerning the closure of the gate of ijtihad, for this kind of ijtihad relies heavily upon our recognition that, throughout the history of Islamic law, jurists have never abandoned the task of ijtihad.
The Controversy Surrounding the Theory of the Closure of the Gate of Ijtihad
In his introduction, Joseph Schacht asserted that Islamic law is no longer relevant to modern life, due to its inflexibility and consequent inability to meet the constant changes therein. He stated further that the nature of Islamic law’s unchanging principles had inevitably resulted in this situation. At the time of the classical jurists, although the nature of the system was the same, those involved in legal matters found a remedy for Islamic law’s constrained rudimentaries: ijtihad. This doctrine contributed to easing the law’s rigid foundations by serving as a dynamic device to suit the application of Islamic law to the relevancies of life. This mechanism, however, had been abandoned with the consensus of the jurists, which led to the assertion that the gate of ijtihad allegedly had been closed during the middle of the ninth century.1 This assertion was then echoed by many scholars, especially the Orientalists.2
Some scholars refuted this claim. One of them, Wael B. Hallaq, opined that “these views on the history of ijtihad (i.e., about its abandonment) after the second/eighth century are entirely baseless and inaccurate.”3 He proved that the jurists had never abandoned the mechanism of ijtihad, neither in theory nor in practice. After analyzing the relevant sources in some depth, namely, the subject matter dating from the fourth/tenth century onward, he concluded that his findings contradicted the theory suggested by Schacht and echoed by others.4 The basis of his claim may be summarized by the following four points:
- a) In reality, centuries of Islamic law had witnessed a number of jurists who had reached the level of ijtihad and had practiced such.
b) After the formation of the well-known schools of law, subsequent jurists utilized ijtihad as a way to develop positive law within these schools. The writings of jurists from the sixth century onward provide overwhelming evidence of this development.
c) The phrase insidad bab al-ijtihad, or any expression that may imply this notion of closure, never occurred before 500 AH. Despite this, some scholars claim that closure dated back to the fourth century AH.
d) The claim that there was a juristic consensus regarding such a closure seems unlikely, given the books written by jurists who condemned those who called for or believed in it.
Ibn ‘Abd al-Barr (d. 463/1070) devoted a whole chapter in his Jami‘ Bayan al-‘Ilm wa Fadlihi to refuting taqlid, and called for those eligible to undertak ijtihad to do so.5 Al-Khatib al-Baghdadi (d. 462/1069)6 and al-Mawardi (d. 449/1058)7 made the same call. More interestingly, in his Ahkam al-Sultaniyah, al-Mawardi further insisted that the delegated officials (‘ummal al-tafwid) must apply the result of their own ijtihad even though it may disagree with that of the ruler (imam), because they were not bound to follow the ijtihad of others.8 Some jurists even wrote works claiming that the existence of the mujtahid and ijtihad was indispensable. In his Al-Radd ‘ala man Akhlada ila al-Ardwa Jahila anna al-Ijtihad fi Kulli ‘Asr Fard, the eminent Shafi‘i jurist al-Suyuti (d. 911/1505) argued that ijtihad is a fard kifayah (communal duty) on the Muslim community as a whole. By failing to produce even a single mujtahid, the whole community is in a state of sin.
Pursuing this view, al-Suyuti reasoned that knowing and deriving the Shari‘ah’s opinion in every aspect of life is necessary for all Muslim communities. The only person genuinely qualified to deduce and produce these opinions, by engaging in ijtihad, is the mujtahid. The cessation of the mechanism of ijtihad would eliminate ways of knowing the Shari‘ah’s opinions on issues facing Muslim communities, a situation that could lead to the demolition of the Shari‘ah itself. The demise of Islamic law is inconceivable, for God has promised to protect it until the day of resurrection.9 Consequently, the existence of the mujtahid and the undertaking of ijtihad are indispensable. 10 Courageously, al-Suyuti proclaimed that he was capable of performing the highest rank of ijtihad in the Shafi‘i school: ijtihadmutlaq.11
In addition to these arguments, affirming the jurists’ consensus that the gate of ijtihad has been closed as well as the non-existence of the mujtahid is both self-contradictory and debatable. How could the classical jurists have reached such a consensus if they were not mujtahidun, for if they were not, then their consensus may be disregarded because they were not entitled to undertake it. If they were mujtahidun, how could they deny the existence of something of which they were a part? This clearly demonstrates that the asserted closure of the gate of ijtihad is baseless and inaccurate, and, as such, gives validity to Hallaq’s claims.
The contemporary jurist Muhammad Mustafa Shalabi concurred with Hallaq on the inaccuracy of Schact’s assertion, although his approach to the issue was different. While he admitted that the notion of such a closure was, in fact, renounced by the classical jurists, he claimed that the sole purpose of this was to prevent unqualified people from undertaking ijtihad. Therefore, the phrase insidad bab al-ijtihad must be understood within the context that the gate of ijtihad was – and is – closed to all unqualified people. Although this statement seems merely to repeat the discussion concerning the necessity of holding the necessary qualifications to be a mujtahid, jurists were forced to reiterate this due to the arrogance of some people, even those who were unqualified, who wished to undertake this task.
He further argued that the jurists’ writings are open to interpretation, as there is no textual evidence from any reliable source of Islamic law that supports the notion of the gate’s closure. Shalabi went on to affirm that throughout the history of Islamic law, there were always at least one or two jurists who were eligible to perform ijtihad, and that therefore the Muslim community had never been left without any mujtahid throughout its historical development.12