Laws

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 usul a lfiqh. In this room 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 usul al fiqh chiefly from the viewpoint of their application, an approach that is the result of spending several years 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 finding 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 ignored in practice. As a d t of this, it is often maintained, fiqh retreated into the ideal world of scholarship while 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 believe, rapidly eroding due to the efforts of scholars on many different fronts. Some, notably Professor Hallaq, are at work countering the exaggerated idea of the "closing of the door of ijtihad," a phrase used to convey the idea that fiqh became utterly stultified at an early stage. Other scholars ate examining late Shari'ah court records and legal documents and are finding that relevant fiqh doctrines were scrupulously applied. Still others are tracing extensive developments in fiqh law, in the interstices of doctrine, and in genres of fiqh literature, particularly fhiwd, which are hierarchically lower than the muan, or basic texts of the legal schools. Lastly, there are scholars studying Shari‘ah applications in traditional contemporary societies.

There is a single theme, I submit, that usefully integrates research 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 countered by the ulema only with difficulty. Let us designate this legitimacy, as it concerns the operation of the legal system, by the ulema’s own term: siyasah. The structure of an Islamic legal system arises most essentially from the complex interaction of these two legitimacies and institutions-siyasah and ruler on the one hand, and fiqh and the ulema on the other-as they enter into relations of cooperation and competition.

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