Scope and Limits of Ijtihad for the Continued Evolution of Islamic Law
| Author | Tiphanie Bedas Tueni |
Scope and Limits of Ijtihad for the Continued Evolution of
Islamic Law
Tiphanie Bedas Tueni*
This Article addresses the plethora of opinions stirred by the debate with
regard to the closure of the gate of ijtihad. Some scholars argue that
ijtihad, or creative endeavour by jurists, came to a halt during the third
century of the Muslim era so much so that its gate was closed, ‘never
again to be reopened’.1 This standpoint implies that the law froze so that
only legal conformism could ensue. In contrast, others assert that the
gate of ijtihad never closed, either in theory or in practice. Some authors
abide by neither theories and believe that even if an event such as the
closure of the gate of ijtihad did occur, they find no objection as to why
that gate may not be reopened so as to adapt the law to present-day
human relations. Following an overview of what ijtihad entails in
Section 2, this Article analyses the wide range of accounts for the closure
of ijtihad in Section 3. Based on this aperçu of the divergent standpoints,
the author suggests an equation that best suits the continued evolution
of Islamic Law in Section 4.
I. INTRODUCTION
One of the characteristics of Islamic law lies in its distinction between the
revealed sources and the law.2 The former contains the latter, which are not self-
evident and must be discovered by the jurist through the arduous task of ijtihad.
* Tiphanie Bedas Tueni obtained a Master’s Degree in International Law from Université
Panthéon-Assas, Paris and an LLM in Law of the Middle East with Merit from SOAS,
University of London. She holds the Professional Lawyer’s Certificate from the Paris Bar School.
She wishes to thank Professor Mashood Baderin and Mr Ian D Edge for their invaluable
support and guidance.
1 Hamilton Alexander Rosskeen Gibb, Modern Trends in Isl am (University of Chicago Press 1947) 13.
2 The first source of Islamic law is the Quran: the revealed words of God. These were revealed to
the Prophet Muhammad over a period of 23 years (from the age of 40 until his death at the age
of 63: 609-632 AD). The Meccan verses, which contain moral and religious exhortations, refer to
the revelations made to Muhammad by God through the angel Gabriel from 609 AD to 622 AD.
Due to persecutions, Muhammad had to run to Medina in 622 AD. He received further
revelations known as the Medinan verses, which dealt with social and legislative issues.
94 Scope an d Limits of Ijtihad for the Contin ued Evolution of Islam ic Law
www.soaslawjournal.org
With its literal meaning to ‘endeavour’, ijtihad is the process by which the jurist
puts his utmost effort into independent reasoning to interpret the Quran and the
Sunnah3 which together form the Sharia – or immutable and divine sources of
Islamic law.
As ijtihad amounts to a human endeavour, its outcome is prone to change in
accordance with time, place and social realities. In the strict sense, the process of
ijtihad comprises four levels. First, al-ijtihad al-mutlaq al-mustaqîl, being the
absolute and independent ijtihad carried out by the founders of the four Sunni
schools of law. Second, al-ijtihad al-mutlaq al-muntassab, the absolute ijtihad, but
affiliated to a school of law, such as that undertaken by Abu Yusuf or
Muhammad al-Shaybani in the Hanafi school. Third, al-ijtihad fi al-madhhab,
which is the ijtihad carried out within a school of law. Lastly, al-istinbat fî ba’dh-
il-massail faqat, which consists of developing a specific point of law within a
school of law.
Thus, when an author states that the gates of ijtihad closed at the end of the
third century AH, one cannot be implying that all levels of ijtihad has come to a
halt, to the extent that no reasoning on any given point of law has been
undertaken since the fourth century of the Hijra. This is however what most
Western scholars have asserted: that the law has not changed and from that
point onwards, jurists may only claim to have undertaken taqlid (legal
conformism) in order to establish juristic positions. Some authors have gone so
far as to employ medical terminology to describe the legal activity of muqallids
(a jurist practicing taqlid). For instance, Joseph Schacht, one of the most
prominent Western scholars on Islamic law, made use of the term ‘anchylosis’.4
According to Schacht, Islamic law has become so rigid, to the point that legal
activity has become solely characterised by imitation and a lack of originality.5
Writings from Schacht,6 Coulson,7 JND Anderson,8 and HAR Gibb,9 among
others have been met with criticism, challenging whether the closure of ijtihad
3 The Sunnah are the practices of the Prophet. They consist of his sayings, his deeds and his tacit
approvals and are partially divine.
4 Joseph Schacht, ‘Classicisme, traditionalisme et ankylose dans la loi religieuse de l’Islam’ in
Robert Brunschvig and Gustave von Grunebaum (eds), Classicisme et déclin culturel dans l’histoire
de l’Islam (Maisonneuve et Larose 1977).
5 ibid 141.
6 Joseph Schacht, An Introduction to Islamic Law (Clarendon Press 1965) 70–75.
7 Noel Coulson, A History of Islamic Law (first published 1964, Edinburgh University Press 1994)
81–82; Noel Coulson, Conflicts and Tensions in Islamic Jurisprudence (University of Chicago Press
1969) 42–45.
8 James Norman Dalrymple Anderson, Law Reform in the Muslim World (Athlone Press 1976) 59.
9 Gibb, Modern Trends in Islam (n 1) 12–13 .
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