Source:
http://www.hf-fak.uib.no/Institutter/smi/paj/Vikor.html
One of the crucial topics for discussion in the theory of Islamic Law is the right to ijtihad, loosely translated as "interpretation", or more correctly, "working with the sources of dogma". Of the four standard bases on which Islamic Law is built, threethe Koran, the Sunna and the ijma' are easy to identify. But the fourth has been identified by various terms with widely disparate meanings, as qiyas, ra`y, ijtihad and otherwise. In this disparity lies much of the dynamic of the debate in Islamic Law.
General opinion both among Muslim historians of Law and Western scholars has been that the right to use an independent judgment on the sources of dogma was cut off in Sunni Islam sometime in the tenth century, or perhaps one or two hundred years later. [1] This is covered in the term, "the closing of the door of ijtihad". Recent scholarship, in particular by Wael Hallaq, but also by W. Montgomery Watt, has indicated that this is not true. [2] In fact, the door was never fully closed, the expression was only used as a majority view among Islamic scholars. There was also always a minority that claimed that the closing of the door is wrong, and a properly qualified scholar must have the right to perform ijtihad, at all times, not only up until the four schools of law were defined.
The importance of this cannot be sufficiently emphasized. It is clearly shown by the number of theorists who from different positions have demanded the "reopening" over the last 150 years. It has clearly been a standard point on the agenda of anyone wishing for a reform of Islamic thought in our age, although some of the more consequent modernizers have rejected ijtihad as being to restrictive for a complete renewal of Islamic thinking required for the modern period. [3]
The importance that ijtihad has in these modern debates, stems from the possibility it may give to steer a new course for Islam and Islamic Law, a course that stays within the boundary of Islamic tradition, but at the same time avoids the blindness of simply imitating earlier scholars, without consideration of the changing conditions of society. In other words, both for modernists and Islamists, ijtihad is a prerequisite for the survival of Islam in a modern world.
These views on ijtihad thus have a "utilitarian" aspect. They stem from the realization that imitation, taqlid simply is no longer a viable option. Their major question is, of course, like that posed by Abdullahi an-Na'im, whether ijtihad allows enough room for reinterpretation for it to be useful for the insertion of Islamic Law in a modern society. There is always the danger that if ijtihad in its traditional form is not sufficient for the needs required, it is broadened and changed into something rather looser than what Suyuti and his age might recognize as ijtihad.
There is such a tradition that lends itself to such a study. One can trace a line of Islamic authors from the 17th century down to Muhammad Abduh, who put emphasis on this debate and claim that the gate to ijtihad could not be closed. A starting point for this line may be suggested with Shah Wali Allah al-Dihlawi, and it might include authors like Muhammad b. 'Ali al-Shawkani, Muhammad Ibn 'Abd al-Wahhab, Ahmad b. Idris, Muhammad b. 'Ali al-Sanusi and their students. [4] All of these claimed the right to ijtihad, and all wrote books on this subject, as did several major students of some of them.
These authors share some characteristics; the most striking of which is their link to the peripheries of Islam, either by being from faraway lands like India or Yemen, or by building movements in socially marginal desert areas like Cyrenaica and Najd. They also had a common point of contact in Mecca and the Hijaz, and it can be easily demonstrated that they did belong to a common network of scholars with a Hijazi-Yemeni centre.
Before we posit that they did indeed form a joint tradition for ijtihad, we must, however, demonstrate that their conceptions of ijtihad were similar. The mere fact that they did make this claim, and that they knew about each other and shared teachers, and perhaps learned from each other, can only be indications. Thus, a study of the texts is required, and in particular a study of how these authors conceived of ijtihad, how the various levels of freedom in interpretation was structured, and exactly what kind of ijtihad they claimed was possible and required, and which they claimed for themself.
My own interest concerns one of the mentioned authors, Muhammad b. 'Ali al-Sanusi. [5] My study of his writings of ijtihad is still only in its early stages, and at this point I have only a general framework of the sorts of questions he included into the discussion of ijtihad. What follows, is thus mainly an overview that will have to be filled with real content as the study proceeds. It may however, hopefully, give an indication of what may follow.
The founder of the Sanusi movement was born in the Maghreb, outside Mustaghanim in western Algeria, in 1787 and studied subjects like Sufism, Law etc., first at the Qarawiyin university of Fez and later in Cairo and Mecca. In law, he studied with the muftis of all four schools of law, and in his autobiographies, he does not seem to favour the mufti of his own Maliki school over the others, perhaps more the contrary. He also studied with a number of Sufi leaders, collecting Sufi Ways and substituting more eleveated chains for lesser ones in his Ways as he met new initiatiors along his travels.
His greatest influence was the fellow Moroccan teacher Ahmad b. Idris (1750-1837), [6] and in Sufism, al-Sanusi's Way became that of Ibn Idris. However, al-Sanusi in his writings mostly kept his Sufi interests and identity apart from his scholarly work. When he wrote on fiqh and history, he wrote in the manner of scholars of his time, arguing by quotation rather than by personal authority, very unlike e.g. the style of his master Ibn Idris, whose writings (actually lectures) in fiqh seem very much influenced by his Sufi experience.
Al-Sanusi is reported to have written a large number of books. The total number of titles we know are somewhat over 50; [7] however, for many of them we have no knowledge except for the listing in a bibliography or a biography; some may be different titles to the same work. We only have the text of ten works, with some fragments of a few others. Among the missing, and which we certainly know existed because other authors quote from them, are his two main fahrasas, the Shumus al-shariqa and the Budur al-safira.
Of the ten, three are in the general area of Law. They are the Shifa` al-sadr, the Iqaz al-wasnan and the Bughyat al-maqasid fi khulasat al-marasid. [8]
The first and smallest is a discussion on the correct method in some aspects of prayer, in particular the question of qabd, the clasping of the hands across the chest in prayer. Here, al-Sanusi rejected the standard Maliki way of praying with the hands along the sides, and insisted that qabd, as practiced by the Shafi'is, was the correct method. This is thus the method of prayer used by adherents of the Sanusi brotherhood, and is a clear demarcation to the Maliki environment they normally worked in.
The second work, the Bughya, is an abbreviation and compilation of three works on Law, again concerning various elements of the method of prayer. The first part of the Bughya is based on the Iqaz al-wasnan - a work on theory - the second on a work we no longer have in the original, where the hadith on the matters in question are presented and discussed directly (not bringing in what later scholars said), and a third, which is based on the Shifa', where the main point of debate is the presentation of the views of these scholars of the later periods.
Thus, the Bughya presents a trilogy of fiqh that progresses in the methodology and practice of interpretation. First, there is the section on the theory of ijtihad and why it is possible and required to work by using ijtihad in some specified circumstances. Ijtihad is here presented as working directly on the sources of dogma, in particular hadith. Then, a section puts this theory in practice, by indeed discussing these ten matters in the hadith and thirdly a section where his views are supported by the authority of later scholars, but again concentrating on the hadith of these matters and how later authors discuss them, rather than simply presenting these authors' views, letting them be the sole authority for practice.
The longest and most detailed work by al-Sanusi on ijtihad is thus the full-length discussion in the Iqaz al-wasnan fi 'l-'amal bi'l-hadith wa'l-Qur`an. The work contains a long introduction, taking up about a third of the book, and three chapters on hadith, ijtihad and taqlid.
Most of the introduction is an extensive quotation from Ibn Taymiya, containing most of the latter's Raf' al-malam 'an al-a`immat al-a'lam. [9] In it, Ibn Taymiya discusses the fallibility of both the founders of the Schools of Law, the imams, and the other early authorities of Islam. As "it is not allowed for anyone to believe that any of the imams that are generally accepted by the community would accept going against the Prophet, may the blessings and peace of God be upon him, in his Sunna in small or large matters", the Sunna must prevail. "If it is found for anyone of them an opinion for which a Sound Tradition has been found that contradicts it, then there is no doubt that he must excuse himself and leave it". [10] He lists ten reasons why this could happen and the imam could possibly rule against a sound Tradition. The most common is obviously that he did not know it; "God has not charged one to whom the Traditionhas not been transmitted with practising in accordance with it ... And no one is capable of being fully submerged in the Sunna". Other reasons could be that the imam considers the Tradition to be weak or abrogated, or that he did not understand it, or considered that it did not pertain to the matter at issue, or simply that he had forgotten it.
He supports each of these points with reference to a Tradition. Thus even the rightly-guided caliphs were fallible when it came to knowing the Traditions of the Prophet, and on occasion judged in contradiction to them. Therefore it was correct for later rulers like Mu'awiya to disregard the rulings of 'Umar and use Tradition, when he knew better.
In this way, al-Sanusi questions the absolute reliance both on the Schools of Law and on the six orthodox collections, and argues for a critical evaluation of both.
Using Traditions is clearly the key to interpretation, as that is as close to the revelation as one can get. He says that "the proofs of the Koran and Sunna are one" and that they must be given precedence over the view of any mujtahid or scholar, even "preferring the weak Tradition over analogy and (individual) opinion".
It is not permitted to imitate an imam in a question where the imam's grasp is weak. And even if he follows him in other matters, the Maliki not permitted to imitate Malik in a judgement where Malik's knowledge of it is weak, and only to imitate him in matters where his proof is agreeable or his proof is stronger than the proofs of others. [11]However, his view is not to reject taqlid completely and replace it with the interpretation of each individual scholar. In the latter part of his book, he instead debates the various levels of ijtihad known to the science of the Principles of Law and the requirements a scholar must fulfil in order to employ interpretation at each level. Only the most knowledgeable of scholars may be "free" mujtahids; as his competence decreases, the scholar is required more and more to limit himself to his particular School of Law and to imitate the founders or the masters of that School. Thus one may have (less comprehensive) interpretation within each School as well as a more complete one going beyond the "fetters" of the School. For someone who lacks necessary knowledge and can attach himself to a scholar or existing opinion based on such knowledge, imitation is required, just as interpretation is in the opposite case.
Neither this view nor his structuring of the various levels of interpretation may be particularly new or radical. However, al-Sanusi argues that it is not a historical discussion. Also, he says, there is a distinction between imitation and conformity (ittiba') to the early scholars. They must not be confused, so that the latter is rejected along with the former.
A view that with some justification may be termed liberal (or perhaps pluralist) is his insistence that claiming a Muslim to be an infidel is a error, quoting the well known Tradition, "When a Muslim calls a Muslim an unbeliever, then one of them is an unbeliever" (or, "unbelief will revert upon one of the two"). [12]
The most important elements of the work must be where he discusses the requirements for the mujtahid, and the levels of ijtihad within the schools of law, and beyond them; still to be studied. There is clearly a distinction between the mujtahid mutlaq (or mustaqill, al-Sanusi seems to use the former term more extensively), and the mujtahid fi 'l-madhhab. However, all are certainly present in every age.
While the book does not in any way refer to al-Sanusi himself or make any claims for him, it must lead to the conclusion that he was of the highest rank, given also the veneration that we know was accorded to him; and which he seems to have invited from his fellows. Also, the presentation of his theories in the Bughya and the argumentation in favour of qabd would point in this direction. It is, however, noticeable how he presents this argumentation. He does not say that Malik is wrong in favouring the alternative means of prayer. Instead, he claims that al-Shafi'i and Malik were in fact in agreement that qabd was the preferred method. Thus, the four madhhabs were unanimous, and the different practice of the Malikis is a later innovation introduced by one of Malik's students.
Several Egyptian writers attacked al-Sanusi and his ideas (and those of his colleagues Ibn Idris and al-Mirghani) on ijtihad. [13] One important point in their debate was the place accorded to the imams, the founders of the madhhabs. Al-Sanusi stressed again and again that while these were paragons of virtue and the pinnacle of knowledge, even they stressed incessantly their own fallibility, and the need to test their views against the Koran and Sunna. The Egyptian opposition claimed, however, that the imams were given their knowledge by supra-human means, by direct inspiration from the Prophet. This was thus the basis for their rejection of the possibilty of later generations to question the views of the imams, and the need to imitate them.
The ijtihad debate, as al-Sanusi took part in it, was clearly an international debate. It was based on a network of ideashow close a network remains to be seen, but certainly a linkage of learningspanning from India to Morocco, and one where the geographic factor seems to be one worth further study. Thus, the views that al-Sanusi put forward both on the theory of Islamic Law and on the practice of ritual, was not the result of a parochial Saharan Beduin, but a general response to the need for a reinvigoration of Islamic legal thought.
2. Wael B. Hallaq, "Was the gate of ijtihad closed?", International Journal of Middle East Studies, xvi, 1, 1984, 3-41 and W. Montgomery, Watt, "The closing of the door of igtihad" in Orientalia hispanica, sive studia F M Pareja octogenario dictata edenda curavit J M Barral, Leiden 1974, i, 675-8.[*]
3. Abdullahi Ahmed An-Na'im, Toward an Islamic reformation: Civil liberties, human rights, and international law, Syracuse, NY 1990.[*]
4. As in, Shah Wali Allah al-Dihlawi, 'Iqd al-jid fi ahkam al-ijtihad wa'l-taqlid, 'ala 'l-madhahib al-arba'a, Cairo 1327 (1909-10); Muhammad b. 'Ali al-Shawkani, al-Qawl al-mufid fi adillat al-ijtihad wa'l-taqlid, Kuwait 1400/1980; Muhammad Ibn 'Abd al-Wahhab, Risala fi mabhath al-ijtihad wa'l-taqlid, ms; Ahmad b. Idris, Risalat al-radd 'ala ahl al-ra`y, ms. and below. Among the students may be mentioned, Muhammad Sadiq Hasan Khan Bahadar, Husul al-ma`mul min 'ilm al-usul, Istanbul 1879. See also R. Peters, "Idjtihad and taqlid in 18th and 19th century Islam", Die Welt des Islams, xx, 3-4, 1980, 132-45.[*]
5. See in particular my Sufism and Scholar on the Desert Edge. Muhammad b. 'Ali al-Sanusi (1787-1859), Thesis, Bergen 1991 [to be published, London / Evanston, IL 1995]. The biographical summary below is mainly based on this study.[*]
6. On Ibn Idris, see the studies by R.S. O'Fahey, in particuler, Enigmatic Saint. Ahmad Ibn Idris and the Idrisi tradition. London / Evanston IL 1990.[*]
7. For the most complete listing, see my "The Sanusiyya Tradition" i R.S. O'Fahey, Arabic Literature of Africa: I: The Writings of Eastern Sudanic Africa to c. 1900, Leiden 1994, 166-77.[*]
8. Previous printings were, for the Shifa`; Cairo 1360/1941-2; Cairo 1966, 71 pp. and Benghazi 1387/1968, 83 pp.; and for the Bughya, Cairo 1337/1918-9, 141 pp.; Cairo 1960, 296 pp.; Beirut 1388/1968, 195 pp., and Benghazi 1387/1967-8. See further discussion in Sufi and Scholar, 207-13.[*]
9. Taqi al-Din b. Taymiya, Raf' al-malam 'an al-a`immat al-a'lam, Damascus 1383/1964, 84 pp. It covers pp. 9-36 in the Iqaz. [*]
10 Iqaz, 10 and Raf' al-malam, 4. [*]
11. Iqaz 58.[*]
12. E.g., Iqaz,38.[*]
13. Sufi and Scholar, 239-61. The main detractors were Hasan al-'Attar, Mustafa al-Bulaqi and Muhammad Ahmad 'Illaysh; see in particular 'Illaysh's Fath al-'ali al-malik fi 'l-fatwa 'ala madhhab al-imam Malik, Cairo n.d., II, 89-111.[*]
Knut S. Vikør © The author and Nordic Society for Middle Eastern Studies. Archived 1.8.95