The Gates of Ijtihad and the End of Islam

During the 1960s, scholarship was still impressed with the image that the gates of ijtihad were
closed.
Werner Menski1

This paper is a response to Robert Spencers views regarding the gates of ijtihad. His
views regarding this subject can be found here:
http://www.jihadwatch.org/2007/03/charging-ignorance-to-fool-the-ignorant
Mr. Spencer is a writer on the fringe right of the political spectrum who focuses on
Islamic terrorism and Jihad. He is the founder of the Jihadwatch (from here on JW)
website.
I published a link to this paper many times on the JW website from 2009 to 2011. On 11
July, 2011 Mr. Spencer responded to the paper on one of his threads (a thread on which
he ended up banning me from his site - but ended up unbanning me the same day). On
that tread I offered to debate Mr. Spencer on the subject of the closed "Gates of Ijtihad",
which he did not accept. In a private Email conversation on that same day (which was
related to my being banned), he ended up saying the following to me about my paper:
"As soon as your view becomes the majority view of the umma, I will report on that fact.
Until then, I stand by what I have written about it."
Mr Spencer has seen this paper, been offered a chance to respond to it, and decided
that his original comment on the subject (linked to above) needs no further support. You
can decide for yourself if his comments linked to above, or my response below, are
more convincing.

Contents
Introduction: 3
First Spencer proof: 6
The Early Period of Islamic Law: 7
Limiting ijtihad as a technique: 8
Limiting who can use ijtihad: 10
Taqlid: 13

Ikhtilaf: 17
The Possibility of an Age Being without a Mujtahid: 19
Mujaddids: 20
Second Spencer proof: 21
Typologies: 37
Back to Muslim Canada: 47
Third Spencer proof: 50
Fourth Spencer proof: 55
Secondary Sources: 62
Istihsan: 62
Urf: 63
Maslaha: 66
General Gates of Ijtihad comments: 66
Status of Islamic Law in Just Prior to the Colonial Period: 73
Access to Courts: 74
Cruel Punishments: 76
Divorce: 81
Inheritance: 85
Womens Financial Independence: 87
Womens Dress: 87
Apostasy and Forced Conversion: 88
Overall Conditions: 90
Conclusion: 91

Definition of Ijtihad: 93
The Closing of the Gates of Ijtihad:Codification and Translation: 94
The Gates Reopened: 99
Why?: 110
Conclusion: 113

Introduction
In Islamic law, Muslim jurists define ijtihad as personal exertion on the part of a legal
expert to give a legal opinion on a course of action or a question. 2 Orientalists3 and
their followers assert that Muslim jurists closed the gates of ijtihad centuries ago, and
as a result, Islamic law became static and unchanging. Legal innovation had been
replaced by taqlid, which Orientalists define as blindly following the decisions made by
the earlier jurists. According to this view, Islamic law today is virtually the same as it was
a thousand years ago. Mr. Spencer adopts this view to support his views on jihad. Much
of what Mr. Spencer has to say about jihad is taken from texts written nearly a thousand
years ago, but Mr. Spencer says that citing these old texts is valid because the gates of
ijtihad have been closed ever since, and what was said about jihad a century ago
represents the views of Muslims today.4 This Orientalist notion about the closed gates
of ijtihad, however, is a fabrication by Western writers, and it is what this paper
addresses.
The Orientalist most responsible for popularizing this notion is the famous Joseph
Schacht, who wrote:
By the beginning of the fourth century of the hijra (about A.D. 900)the point had been
reached when the scholars of all schools felt that all essential questions had been
thoroughly discussed and finally settled, and a consensus gradually established itself to
the effect that from that time onwards no one might be deemed to have the necessary
qualifications for independent reasoning in law, and that all future activity would have to
be confined to the explanation, application, and, at the most, interpretation of the
doctrine as it had been laid down once and for all. This closing of the door of ijtihad, as
it was called, amounted to the demand for taklidfrom then onwards [Islamic law]
became increasingly rigid and set in its final mould.5

All of the Orientalists who write about the closing of the gates of ijtihad do so in a
similar manner as Schacht does above.6 They merely state the closure as fact, and
never bother to discuss why this closure happened, who was involved in the decision, or
any other details. In addition, Haim Gerber points out that, it is a well-known though
unfortunate fact that none of the scholars who spoke about the closure of the gates of
ijtihad cared to cite his sources.7 The reason Orientalists cannot cite any sources is
because they do not exist:
Much has been said about the closing of the gate of ijtihad. The phrase, however, has
never been documented. I have not come across any statement to this effect in any
document of the Middle Ages when such closing was supposed to have taken effect.8

Orientalists give no details about the closed gates of ijtihad because it is a fabrication,
and any discussion about specifics would show that their theory is not based on any
facts. For them, it is better to sum up their theory in a vague sound bite without giving
any evidence, and to allow mere repetition of that sound bite to give the theory its
validity. Hallaq brings up the lack of any scholarship whatsoever on the part of the
Orientalists:
Discourse on things Islamic does not take the form of a hypothesis whose truth or
falsehood is to be tested, but rather of a postulate, only to be posited, affirmed, and
reaffirmed, whatever its true epistemic value. More curious, if not astonishing, is the
generality and universality of the judgment, for it offers neither distinctions nor
exceptions. It is categorical, yet it is confident.9

The technique of the Orientalist is to make a sweeping statement with no proof

whatsoever, and to then rely on the ignorant to perform taqlid (in the inaccurate sense of
blindly following, see below) on the sunna of the Orientalists.10
Because Orientalists no not support anything they say using antiquated notions like
sources, their stories end up being somewhat inconsistent. For example, Schacht says
the closure happened in 900 A.D., while US Institute for Peace report (in a paper cited
by Robert Spencer11), claims that scholars effectively terminated the practice of ijtihad
five hundred years ago, in 1500 CE. You would think that scholars should be able to
pinpoint the occurrence of such a well-known event to closer than a 600-year time span.
In reality, the closure of the gates of ijtihad never happened, which was shown very
clearly by Wael B. Hallaq over 25 years ago in his PhD thesis. 12 His thesis was
subsequently published as an article13, which has become the classic work on the
subject. In a review of this article written 14 years later, Weiss remarked that Hallaqs
paper on the subject has no doubt closed the door on further discussion. 14 Since the
publication of this article, nobody has challenged Hallaqs work anywhere in any
scholarly publication. The issue of the closed gates of ijtihad is no longer a topic for

debate in serious academic circles.15 In fact, the evidence for Hallaqs thesis has only
grown since the publication of the article. Ten years later, Hallaq remarks:
Since the publication of the article, I have come across a staggering body of evidence,
both directly and not so directly related to the issue of ijtihad, which clearly supports the
thesis advanced in the article. Conversely, I have not, throughout these years,
encountered any evidence that may in any way undermine that thesis.16

I should note that I said that Hallaqs thesis has not been challenged in a scholarly
publication. This, of course, does not prevent people from endlessly repeating the
closed gates of ijtihad soundbite (without presenting any evidence, of course). In
relation to this, I would like to say a couple things about scholarship. Scholarship is not
repeating soundbites. Scholarship is not quoting other people repeating soundbites.
Scholarship involves positing a theory, and then presenting evidence that supports that
theory. It also involves addressing opposing viewpoints and critiques. Scholarship
involves the use of evidence from primary sources. In the case of the gates of ijtihad
question, it involves reading Islamic texts from the previous 14 centuries. If you are
reading a scholarly article, it will refer to these texts as evidence. In contrast, Mr.
Spencers books usually cite newspaper articles. Scholarly writing on Islamic law does
not cite newspaper articles. Mr. Spencer has even went so far as to quote a writer on a
Muslim bulletin board.17 Bernard Lewis, probably the most distinguished contemporary
Orientalist, quotes a young man in a shop where I went to make a purchase, and a
letter to the editor of the New York Times.18 This is not scholarship. For comparison,
here is a reprint of Hallaqs gates of ijtihad article:
https://www.academia.edu/12249992/Was_the_Gate_of_Ijtihad_Closed
Read the article. If you have never have read an article from a scholarly journal, it will
seem different than what you read on the net, or from someone like Bernard Lewis. It
deals entirely with facts. Look at the endnotes. Notice that they do not refer to
newspaper articles, blogs, or to nameless people from the mall. They refer to primary
sources. This is scholarship. This is research.
In this paper, I have not done any research myself. First of all, I do not know Arabic, so I
am unable to do so. Secondly, I am not an expert on Islamic law. What I have done is to
read the scholarly literature surrounding the gates of ijtihad issue, and I have briefly
summarized that material here. This is a review article. Because I want this paper to be
a reflection of modern scholarship, I have tried not to insert too many of my own
opinions, at least until the end. The paper in large part consists of quotations from
journal articles and books (mainly form scholarly, peer-reviewed journals and books
published by University presses). I relied very heavy on quotations to show that I am

merely summarizing the state of modern scholarship. It will become clear to anyone
without a completely closed mind that the gates of ijtihad issue is a fabrication.
I would also like to add that I am not a Muslim. If I have made any errors in my portrayal
of Islam, I apologize.

First Spencer proof

In the JW website that I linked to in the introduction, Mr. Spencer cites four quotes which
he uses to prove that the gates of ijtihad were closed long ago. I will address each of
these quotes in this paper. Since we just discussed the issue of scholarship, this is a
good time to address one of Mr. Spencers quotes. The quote is from a US Institute of
Peace document which refers to a paper written by al-Qazwini:
One of the gravest mistakes Muslims have committed, according to Qazwini, is closing
the doors of ijtihad. They have limited legal interpretation to only four prominent
scholars: Malik Ibn Anas, Abu Hanifa al-No'man, Muhammad Ibn Idris al-Shafi'i, and
Ahmad Ibn Hambalthe heads of the Maliki, Hanafi, Shafi'i, and Hambali schools of
thought. The motivation for this was political. During the Abbasid Dynasty (7501258
CE), the Abbasids decided to outlaw all other sects in order to strictly control religion and
worship, as well as political matters.
Closing the doors of ijtihad has had extremely detrimental ramifications for the Muslim
world. According to Qazwini, this decision has resulted in chronic intellectual stagnation,
as thousands of potential mujtahids and scholars have been prohibited from offering
workable solutions to newly emerging problems. Muslim thinkers have become captive
to rules that were made long ago, leaving little scope for liberal or innovative thought.19

This is a good example of the scholarship issue that I just discussed. Mr. Spencer has
found someone who repeats the gates of ijtihad soundbite, without giving any details,
references, etc. So what. This is meaningless. (al-Qazwini does bring up one specific
event from the beginning of the 13th century, which relates to independent ijtihad and
starting new schools of law this will be covered later). I am sure Mr. Spencer can find
hundreds of people that will repeat the gates of ijtihad soundbite. Maybe I can find
hundreds that will say, the gates of ijtihad were never closed. All of that would be
completely meaningless. Making unsubstantiated sweeping statements does not prove
anything. I wanted to bring this proof up first to illustrate what my references do not do.
The references I cite in this paper are the result of research done on primary materials,
and reflect actual scholarship. The scholars I refer to write articles and books which use
facts that are based on research of primary sources. They do not write 7 word articles
that say the gates of ijtihad were never closed. They support their statements with
facts and research.

The fact that Mr. Spencer found a Muslim to repeat a soundbite does not mean
anything. Especially when that person is a Muslim whos mosque is located in Detroit,
and likely has personal motivations to repeat Orientalist garbage. Al-Qazwinis personal
motivations may originate in his political stance, which is reflected in this photo of him
giving a big wet sloppy kiss to George Bush20:

It seems as though Bush loves Qazwini as well:

The imam at the Islamic Center of America, Sayyid Hassan Qazwini, is a favorite of the
American government for publicly standing behind President Bush, both literally and
figuratively, over the invasion of Iraq.21

They love each other. How special. Lets now start discussing some facts.

The early period of Islamic Law

In the early period after the death of Muhammad, the emerging Islamic law relied on
three sources; the Quran, the sunan, and ray (discretionary or personal opinion).22
Before the rise of the Prophetic sunan, early Islamic Law made use of sunan of people
other than the Prophet, such as Abu Bakr, Umar I, Uthman, Ali, and others. In this

early period, the sunan of these people did not carry the same weight as the Prophetic
Sunan did later, and the main source of positive law at this time was ray (also known as
ijtihad al-ray). The main advocates of ray were both the caliphs and the Mutazilites,
and they were known as the rationalists (ahl al-ray). Ijtihad al-ray encompassed a
variety of different types of legal reasoning, and had very little formal structure. In reality,
it was little more than someones personal opinion. If the Quran or a known sunna did
not cover a legal question, the answer was supplied by using ones personal judgment.
Moreover, ijtihad al-ray was open to anyone sufficiently interested to embark upon this
kind of speculation on religious law. 23 Anyone who felt like it, then, could start their own
school of law and practice ijtihad al-ray until they were blue in the face. It seems as
though there was no shortage of people willing to do this, considering that some five
hundred personal schools of law are said to have disappeared by the beginning of the
third/ninth century.24 At this point, the gates of ijtihad were truly wide open, and to just
about anyone.
But is it possible to have a system of law where anyone and everyone can have their
own interpretation of what the law is, using whatever arguments they can dream up?
The Quran is the foundation of Islamic law in the same way as the Constitution is the
foundation of US law.25 Would a legal system have worked in the US if the Constitution
was allowed to be interpreted by any citizen of the US, based upon his own personal
opinion? Can you run a society where there are hundreds of different interpretations of
the law? Can you run a society where a school of law in one town says a certain act is
legal, when the law school in the next town over says it is not?
It is ridiculous to think that a system of law can function in this manner. Therefore, it was
absolutely necessary to limit ijtihad al-ray in two different ways. First, to limit it as a
technique for discovering legal rules, and also to limit who can use this technique.
Limiting ijtihad as a technique
Over the course of the eighth century, the Prophetic Sunnan became authoritative over
other sunnan, and began to challenge the authority of ijtihad al-ray. The supporters of
the Prophetic sunan were known as the traditionalists (ahl al-hadith), and they soon
challenged the rationalists over their respective influence on Islamic law. The clash
between the two groups resulted in shaping Islamic law into the form that was to last for
centuries.
As stated above, changes to ijtihad were needed in order for it to become a part of a
practical system of law (and at the same time to meet the challenges of the
traditionalists). The freedom of ijtihad al-ray made it unworkable in the real world due to
its inconsistency. A system of law needs to be consistent and stable in order to have

validity. Citizens cannot be expected to follow the law if they do not know what the law
is. Inconsistency in the early period was a major issue and Ibn al Muqaffa (d. 756)
protested the
multiplicity of mutually contradictory [legal] judgments. This multiplicity has become a
serious matter, affecting lives, sexual rights, and property. Life or sexual union may be
permitted in Hirah while it is forbidden in KufahAll this while no group, from the people
of Iraq or the Hijaz, can inquire into this without becoming confirmed in conceit with what
they have, and slighting the other party.26

The technique of ijtihad needed to be reigned in. Shafii wasone of the first to restrict the
liberal interpretation methods of ijtihad al-ray to a more structured technique called
qiyas (analogic reasoning). (Although Shafii equated qiyas with ijtihad, later jurists were
to include many other analytical techniques under the ijtihad label, which will be
discussed later under the section; Secondary Sources of Islamic Law.) Shafii took the
first step to limiting the wide-open technique of ijtihad al-ray to something that could
support a system of law in a real society. He stressed the importance of the Quran and
the Prophetic Sunnan as the ultimate sources of the law, and de-emphasized the role of
ijtihad.
So who prevailed in this clash between the rationalists and the traditionalists? It turns
out that it was the midpoint between the two movements that constituted the normative
position of the majority; and it was from this centrist position that Sunnism, the religious
and legal ideology of the majority of Muslims, was to emerge. 27 This compromise was
expressed in the methodology of usul al-fiqh, which was the solution to the unrestricted
spread of ijtihad. Kamali states that the need for the methodology of usul al-fiqh
became prominent when unqualified persons attempted to carry out ijtihad, and the risk
of error and confusion in the development of Shari'ah became a source of anxiety for
the ulema.28 But although usul al-fiqh restricted ijtihad as a source in legal matters,
ijtihad was still an integral part of it.
As Hallaq points out29, there were certain conservative groups within the traditionalist
camp that did reject the use of ijtihad altogether, and refused to participate in the
compromise. The most well known of these was the Hashwis, which was led by Dawud
Zahiri (d. 883). The Hashwiyya relied only on the Quran and Sunnan, and rejected
ijtihad. This is one group, then, truly wanted to close the gates of ijtihad. So what
happened to them? Did they succeed? Is this when the closing of the gates
happened? What happened is that the Zahirite school was excluded from Sunnism for
being too conservative. Ibn Khaldun (d. 1406) remarked that the Zahirite school has
become extinct today as the result of the extinction of their religious leaders and
disapproval of their adherents by the great mass of Muslims. 30 Ibn Aqil (d. 1119)
excluded the Zahirite school from Sunnism because they rejected human reason,

saying they believed that there is something in human reason that contradicts the
Sharia.31 Mutahhari says that in the course of history, those Sunni schools of fiqh
which were more rigid and formalistic and allowed lesser role to reason in deduction of
laws, either disappeared gradually or the number of their followers diminished. The
Zahiris, who followed Dawud ibn 'Ali, became altogether extinct. 32
Unlike the Hashwiyya, another conservative school was able to survive until the
present, but only after accepting some rationalist viewpoints which made their school
acceptable to the masses:
Ibn Hanbals jurisprudence restrictive in its ways of reasoning was soon abandoned
by his immediate and later followers. The later Hanbalite school adopted not only qiyas,
abhorrent to Ibn Hanbal, but also, in the long run, istihsan, originally a Hanafite principle
that Shafii had severely attacked as amounting to human legislation.33

It is clear what happens when someone truly does call for the gates of ijtihad to be
closed: they are rejected and excluded from Islam for being too conservative. In order to
survive, the more conservative schools had to relax their views.
Limiting who can use ijtihad
Ijtihad al-ray was open to anyone who had the desire to use it, which led to the
formation of hundreds of schools of law. Bernard Weiss points out the resulting
problems:
Obviously, the very existence of Islamic law as a body of positive law capable of
regulating an entire society presupposes that the great majority of men will leave ijtihad
to the few and act in accordance with what the few decide. If every man were a mujtahid
(practitioner of ijtihad), there would be no law in the ordinary sense: every man would be
a law unto himself. The implications which this would have for society can hardly be
comprehended.34

This simple fact should be easy to understand.

One simple method of limiting who can perform ijtihad is to have strict requirements
regarding a mujtahids knowledge and abilities. This will be covered later.
Another way to control ijtihad was to restrict the number of madhhabs, or schools of law,
that were allowed. As stated earlier, a society cannot function in the presence of
hundreds of schools of law, and it was necessary to reduce this number while also
stopping the formation of new schools. Hallaq finds that limiting ijtihad was a major
factor responsible for the ultimate formation of the four schools of law: the madhhab, in
its most developed doctrinal sense, would never have come into being were it not for
the need to control this thoroughly individualistic character of Islamic law. 35 The process

10

of how the schools disappeared is complex, but scholars cite practical considerations as
the ultimate goal. The unrestricted use of ijtihad al-ray by the rationalists resulted in
school proliferation, and the traditionalists resisted this trend. Makdisi says that if other
numerous schools disappeared, it was not because of lack of legal knowledge on the
part of their leaders. To my mind, it was rather because of a natural movement on the
part of traditionalists to close their ranks in order to present a solid front against the
perennial enemy, rationalism.36 Gerber gives an excellent explanation of how the rise of
madhhabs as a control over ijtihad al-ray resulted in a stable system of law, while
retaining the concept of ijtihad:
We have to bear in mind further that we are talking about a system of law, not
philosophy or poetry. In such other fields similarity is suspect and may well betray lack of
originality. The most important characteristic of a system of law is precisely a systematic
similarity of thought among members of the profession. The rise of madhhabs in Islam is
to my mind nothing less than the molding of a literary-theological turn of mind into a
more systematic legal system and profession. If ijtihad had remained the major
characteristic, this would have meant that Islamic law would have remained a
philosophical movement and nothing else. However, systematic thinking has its limits:
every system of law needs to move forward, and it can do this only if it has a built-in
dynamic mechanism making this possible. In Islamic law ijtihad was one such
mechanism. If the madhhab was the flour in the cake of Islamic law, ijtihad was the
leaven. In other words the important point is its existence, not its relative
predominance.37

Restricting the number of madhhabs was a way to prevent an unlimited number of legal
opinions from making an unworkable legal system. The Islamic word for disagreement
in legal views is khilaf (or ikhtilaf). Stopping the proliferation of madhhabs was a
response to uncontrolled khilaf. Ibn Khaldun (d. 1406) states that restricting the number
of madhhabs and the promotion of taqlid of the established schools did indeed
constitute a closing of a door, but the door was not the door of ijtihad:
The next issue is the phenomenon of taqlid (literally, imitation). Ibn Khaldun describes
this phenomenon as the consequence of the closing of the door of khilaf and its
methods (wa-sadda al-nasu bab al-khilaf wa-turuqa-hu).38

Ahmad explains this further:

In my view, what concerns Ibn Khaldun here is not the intellectual activities of the
scholars but rather the social response of the diversity of opinions regarding religious
matters. We understand that the emergence of the madhhabs was a direct consequence
of the khilaf. The closing of the door of khilaf means that Muslims have enough with the
present madhhabs, and will no longer allow the creation of a new madhhab.39

11

Stopping the spread of madhhabs was an attempt to close the gates of khilaf, not the
gates of ijtihad.
By the beginning of the tenth century, the major Sunni madhhabs had addressed most
of the essential issues regarding positive law, and it was at about this time that it new
schools were no longer tolerated.40 Hallaq comments that in the last three or four
decades of the fourth/tenth century a comprehensive but implicit agreement on the
illegality of establishing new schools and of any separatist tendencies was reached. 41
According to many Muslims, the final date of the crystallization of the four schools
occured centuries later. Maqrizi says that this process began in 665/1267 when only
four qadis were appointed in Cairo belonging to these four schools and all other schools
were disavowed.42 (This is the event that al-Qazwini refers to above).This event will be
discussed further below, and the limiting of the number of madhhabs will also be a
recurring theme.

Taqlid
At this point, we will correct a common Orientalist mistreatment of the word taqlid. The
standard Orientalist view is that after the gates of ijtihad closed, only taqlid was
allowed. As stated above, Orientalists define taqlid as imitating or blindly following
the decisions made by earlier jurists. This is an inaccurate and misleading way of
representing what is done in every legal system that ever existed. Gerber points out that
the translation of taqlid as imitation is not only pejorative, but factually wrong. Taqlid is
used mainly in the context of accepting someones intellectual authority. 43 This is
echoed by Norman Calder, who says that taqlid is more a justified acknowledgement of
authority than Western scholarships blind submission. 44 We can even find an
Orientalist who can comprehend the true meaning of taqlid. Theodor Juynboll defines
taqlid as giving authority to another school regarding a special subject. 45
Authority construction is a vital part of all legal systems. In relation to the Sunnan, the
authority is determined by the isnad, or support, that is attached to a particular hadith.
Graham explains how the mechanism by which Muslims attribute authority to sound
hadiths is certainly not unique to Islam:
No student of a traditional nonliterate or literate society anywhere in the world would
find anything particularly surprising in the general shape of this mechanism. Witness the
gotra or lineage concerns of Hindu brahmans and their expression, for example, in the
guruparampara or teaching lineage, which is central to all Indian learning; the Hasidic or
Zen line of spiritual masters; the idea of Apostolic succession to the Holy Roman papal
office; the Sikh line of gurus; and the lineage system of royal, priestly, or shamanic
succession in many tribal societies. All of these are similar manifestations of a
traditionalist concern for connectedness with past authority. Indeed, there is reason, as

12

Horovitz argued long ago, to think that the isnad itself was influenced by Rabbinic
models of transmission of the oral Torah.46

The Torah teaches taqlid! Primitive bastards!

Taqlid simply means to follow an earlier decision based on its authority. This is what is
done constantly in all systems of law, even, if you can believe it, in the US!:
A judge in a Western legal system who faces a legal problem to be solved is not
supposed to give an answer based on personal opinion or personal intuition, but is ,
rather, expected to give the authoritative view of the law.47

Taqlid provides what all legal system require; stability:

An important feature of all functioning legal systems is stable rules, or at least the claim
to posses them; however, the subjective process of ijtihad, as we shall see, could furnish
only opinions, and even those opinions were subject to change in the light of a
mujtahid's subsequent ijtihad. Most scholars who privilege ijtihad over taqlid rarely
account for the cost of this instablity to the legal system. In my opinion, taqlid, viewed
from the perspective of the sociology of law and the legal process, is best understood as
an expression of the desire for regular and predictable legal outcomes, akin to what
modern jurisprudence terms the rule of law: the ideal that legal officials are bound to
pre-existing rules.48

The vast majority of cases in any system of law are decided using decisions made
previously, and it is done in Islam as well. Gerber points out the simple reason for this:
without a large dose of conservatism no legal system can function, for if decisions are
not based on previously existing rules, the result will be arbitrariness. 49 Taqlid is Islams
term for what is done in all legal systems, and it means to follow a precedent rather than
deciding the case on your own. Menski says that taqlid did not simply mean uncritical
mindless reception or copying, but a prohibition on flying off into private speculation. 50
Hallaq explains the universality of this type of reasoning in all legal systems, and how
reasoning in defense of taqlid is little different than reasoning in defense of change:
Continuity here, in the form of taqlid, is hardly seen as blind or mindless acquiescence
to the opinion of others, but rather as the reasoned and highly calculated insistence on
abiding by a particular authoritative legal doctrine. In this general sense, taqlid can be
said to characterize all the major legal traditions, which are regarded as inherently
disposed to accommodating change even as they are deemed, by their very nature, to
be conservative; it is in fact taqlid that makes these seemingly contradictory states of
affairs possible. For in law continuity and change are two sides of the same coin, both
involving the reasoned defense of a doctrine, with the difference that continuity requires
the sustained defense of an established doctrine while change demands the defense of

13

a new or, more often, a less authoritative one. Reasoned defense therefore is no more
required in stimulating change than it is in preserving continuity.51

Imran Nyazee reveals the US equivalent of taqlid when he says that [usul al-fiqh] lays
down its own system of stare decisis through a process called taqlid.52 Taqlid is
anolagous to stare decisis. When a US judge decides a case based on previous
decisions, do you say he is blindly following other judges? No? I guess only
Orientalists do this to demonize Islam. Sherman Jackson states that the definition of
taqlid as imitation
fails to appreciate that all legal systems, including the American one, are based on
authority (and not simply the substance of a view) and that taqlid is no more
synonymous with blind following than is the American institution of precedent, or stare
decisis. Changes in legal interpretation are, as such, no less inevitable under an Islamic
regime of taqlid than they are under an American one of stare decisis.53

Actually, the analogy between taqlid and stare decisis denigrates the practice of taqlid.
Hallaq shows that the conversion of the Sharia court into a body that operated on the
doctrine of Stare Decisis (which happened when the West colonized Muslim lands), was
in reality a rigidifying process. He explains:
Another fundamental change caused by the creation of Anglo-Muhammadan law and its
translated texts was the rigidification of Islamic law as a whole, a rigidification by the
adoption of the doctrine of stare decisis (the obligation of courts to follow the
uncontroversial judicial decisions of higher courts). This doctrine could have evolved in
Islam, but for a good reason did not. The Sharia assigned legal expertise and, more
importantly, ijtihadic authority to the mufti and author-jurist, not to the qadi who, while
processing the same amount of legal knowledge as did his British counterpart, was
deemed insufficiently qualified to make law. Linguistic and legal interpretation was the
very feature that distinguished Islamic law from modern codified legal systems, a feature
that permitted this law to reign supreme in, and accommodate, such varied and diverse
cultures, sub-cultures, local moralities and customary practices as those which
flourished in Java, Malabar, Madagascar, Syria, and Morocco. But insofar as judicial
practice was concerned, the bindingness of a ruling according to the specifically British
doctrine of precedent deprived the qadi of the formerly wider array of opinions to choose
from in light of the facts presented in the case. Once a determination of law in a specific
case was made binding, as would happen in a British court, the otherwise unceasing
interpretive activities of the Muslim mufti and author-jurist were rendered pointless, both
in law and in the life of the community.
Enshrining in Anglo-Muhammadan law a doctrine of stare decisis in effect transformed
the sources of legal authority altogether. Instead of calling upon the school principles
and the juristic authorities whose props were the dialectics of textual sources and
context-specific social and moral exigencies, the Anglo-Muhammadan lawyer and judge
were forced to look to the higher courts, and the higher courts in turn to the Privy

14

Council, which sat in London, not Delhi or Bombay. The Council was remote not only
geographically but also from the real concerns of the colonized natives.54

It was the West that rigidified Islamic law, which we will discuss further below.
Appeals to authoritative texts are the same whether it is done by the secular American
legal system or from religious institutions. Joseph Vining, the famous Law professor,
writes about the similarities between the operation of the law and churches in respect to
their appeals to authority:
They all look to authoritative texts. This they do not do just for the regulation of their
ritual behavior, for which the authority of the text is almost a matter of definition. At least
in the Western world questions about what to do in the world and how to think are settled
by appeals to authority. If the authoritative statement is uttered by an official, it is made
after reference to an argument about written texts. The agreement of religions on this
point, this point of method, and their identity in this regard with law, is remarkable55

Clark Lombardi explains how recent research shines a much different light on the era of
taqlid predominance:
For many decades, both Muslim and Western scholars seemed to assume that
precedential reasoning in Islam was rigid and that the move from ijtihad to taqlid had led
to a fossilization of Islamic law. Over the last ten years, however, scholars have begun to
study more closely the types of precedential reasoning used by muqallid jurists, and this
body of research has made clear that reasoning in the age of taqlid was quite subtle and
creativeprecedential reasoning was sufficiently flexible that jurists who were
recognized as talented were permitted to reason creatively within their madhhab and
there was, in fact, considerable evolution in the law. Indeed, substantive law in the age
of taqlid continued to develop in response to changing circumstances.56

In addition, Baber Johansen studied how taqlid was more of tool to maintain the
structure of Islamic law rather than reflective of actual practice. He notes that
a re-interpretation of the relationship between ijtihad and taqlid seems desirable. Far
from being a historical reality at all levels of legal activities, taqlid often seems to be a
pious wish rather than the actual practice of the jurists. It is a conscious attempt to
maintain important elements of the legal tradition in the face of social and legal change
that threatened the unity of Hanafite legal teaching.57

Lombardi explains one way how a legal system where taqlid predominates could still
easily evolve. He explains how a muqallid judge who understood the legal principles
underlying earlier decisions could develop laws that seemed different from those laid
down by the earlier mujtahids by finding that the earlier mujtahid would himself have
abandoned his earlier ruling if he were still alive. 58 Under taqlid, a judge could decide
differently than earlier mujtahids simply by asserting that the earlier jurist would have

15

agreed with him if he were still alive. Obviously, this allows for a lot of freedom even
under taqlid.
Orientalists deliberately simplify the meaning of the word taqlid and then demonize
Islam for it when this concept is used in all legal systems. Their goal in doing this was to
justify replacing Islamic law with Western systems of law. This will be covered later.

Ikhtilaf
We mentioned previously how Ibn Khaldun talked about closing the doors of khilaf as
a reason for restricting the number of madhhabs and to the rise of taqlid. Limiting the
number of schools and the rise of taqlid did not, however, stop the proliferation of
different opinions on all areas of the law:
This feature of what we might term ijtihadic pluralism had already become an
epistemological element that was integral to the overall structure of the law. Its
permanency is evidenced by the fact that, even after the final evolution of the madhhab,
plurality could not be curbed: not only the old multiplicity of opinion that had emerged
before the rise of the madhhabs, but also the plurality which surfaced later on, at every
juncture of Islamic history. In other words, plurality remained a feature that proved utterly
intractable. Its eradication, which did occur during the nineteenth century, would have
meant the destruction of the distinctive structural and epistemological features of Islamic
law.59

(The eradication of ijtihadic pluralism in the nineteenth century that Hallaq mentions
refers to when the West colonized Muslim lands and transformed their law system, in
effect ending Islamic law. This is when the gates of ijtihad were truly closed, and they
were closed by the West. Again, this will be discussed later).
As we shall see later, mujtahids throughout the centuries were free to disagree with the
founders of the schools, which led to varying opinions on each and every point of the
law:
This individual ijtihad explains the plurality of opinion in Islamic law, known as khilaf or
iktilaf. Each case may elicit two, three, sometimes up to eight or more opinions, all of
which remain opinions that are equally valid.60

And from Vogel:

The schools in their accepted views may offer two, three, or four alternatives among
them, and then within each school and among schools and scholars predating these
schools will appear ther possibilities.61

Of the various opinions on any one matter, the one that is the accepted version at any
point in time does not have to be the opinion of the founder of the school:

16

In principle, the correct answer was what was technically called the authoritative
version (zahir al-riwaya) of the madhhab, the view considered the true one. In one fatwa
in al-Ramlis collection relates explicitly to this legal methodology, making it clear that the
true solution to a legal problem, the authoritative version, here called al-qawl al-sahih or
the correct version, is usually the opinion of Abu Hanifa, the founder of the school, but
sometimes that of others. And indeed, not infrequently Abu Hanifa is cited as holding the
rejected solution. the simple fact is that in scores of fatwas in the collections under
study Abu Hanifa is mentioned as holding opinions that were rejected by the consensus
of the jurists.62

Ikhtilaf was a major avenue by which change occurred in Islamic Law, since choosing
another opinion on a certain matter could effect dramatic change. Hallaq explains how
operative terminology (a process too involved to detail here) was used to make
decisions regarding ikhtilaf, which served the interest of taqlid:
It should come as no surprise then that taqlid functioned as a vehicle for legal change to
the same extent as ijtihad did, if not more so. More, because, ijtihad meant the
introduction of new opinions which often lacked, ipso facto, an intimate, symbiotic
relationship with the ongoing tradition. But through operative terminology, and therefore
through taqlid, familiar opinions once considered weak or relatively less authoritative had
a better chance of rising to an authoritative position in the hierarchy of school doctrine.
Operative terminology and the discourse that surrounded it compel another conclusion,
that if this terminology was an integral part of Islamic law and its working, then the
mechanisms for accommodating legal change were structural features of that law. In
other words, legal change did not occur only in an ad hoc manner, as it were, but was
rather embedded in processes built into the very structure of the law. And since it was a
structural feature, the jurists effected it as a matter of course. This inevitably suggests
that the much-debated issue of whether change ever occurred in Islamic law is a product
of our own imagination. For no medieval jurist lost much sleep over deciding in a given
case that what had hitherto been considered by his predecessors a weak opinion had in
fact much to recommend it as the most authoritative opinion in his school.63

Change is built into Islamic Law, even under the regime of taqlid.

The possibility of an age being without a mujtahid

An issue similar to the Orientalist notion of the closed gates of ijtihad did arise in early
Islam, but it had nothing to do with ending the practice of ijtihad. Although the issue of
the gates of ijtihad being closed has never been raised by a Muslim jurist in a work of
usul al-fiqh, the issue of whether or not it is possible for mujtahids to become extinct
was discussed. (Hallaq notes that the focus of the disputation was the gate of
judgeship, not the gate of ijtihad as such.64) The first person to discuss this issue was
the Hanbali jurist Ibn Aqil, who died in 1119.65 Aqil said that it is not possible for an age
to be devoid of a mujtahid.66 (Ever since then, Hanbalis have held the position that a

17

mujtahid will continue to exist until the appearance of the Anti-Christ, who would signal
the coming of the Judgment.67 When Orientalists speak of the closed gates of ijtihad,
Hanbalis should be explicitly excluded along with the Shiites. Hallaq notes that It is
highly probable that the entire debate on the existence of mujtahids had been inspired
or perhaps provoked by the Hanbali insistence, which was initiated by Ibn Aqil, that a
mujtahid must exist at all times.68) Amidi, who died in 1234, devoted a section in an
usul work to this issue, and he took the view that it is possible for an age to be without a
mujtahid. Since Amidi, the discussion over the possibility of mujtahid extinction has
been a debated issue. For example, Subki (d. 1369), says that though the extinction of
mujtahids is possible its actual occurrence has not been proven. 69
Saying that it is possible for an age to be devoid of a mujtahid, however, is entirely
different from saying that the gates of ijtihad are closed. This is clear when the reasons
for this question being raised are examined.
Writers on usul al-fiqh (theory of law) discuss whether it is possible for any generation of
Muslims to be without a mujtahid, but are far from being in agreement on an answer. In
any case, to affirm that a generation of Muslims could exist without a mujtahid is not the
same as affirming that the gate of ijtihad has been irrevocably closed.70

During this period, it was believed that Judgment Day would come within the next 500
years, and several hadiths talked about signs that this day was coming. 71 One of these
signs was that religious knowledge (ilm) would disappear along with the disappearance
of the religious scholars. It was in reference to this Judgment Day prophecy that the
discussion about the disappearance of mujtahids happened, and for no other reason.
This discussion was simply a theoretical, theological debate, and mujtahids did not need
to disappear for scholars to discuss the possibility of it. This can be seen in a similar
situation that occurred at the beginning of the tenth century. At that time, the caliphate
was still strong. Even so, scholars at the time were debating whether or not caliphs
could become extinct. Nobody, however, had closed the gate on the existence of
caliphs.

Mujaddids
It was mentioned above that Hanbalis believe than a mujtahid must always be present.
In addition, all Sunnis believe that every century God sends an individual to renew the
Islamic faith, and this person is called a mujaddid. The Orientalist Goldziher explains
this:
There is an ancient Tradition traced back to Muhammad: God sends at the head of
each century (lala ras al-mia) a man from among the people of my House who will
explain to them that which concerns their religion. The scholars have explained this
saying to the effect that at the beginning of each century there will be a scholar of

18

superior quality who will renew and regenerate for his contemporaries who are living in
ignorance the theological knowledge that is falling into oblivion. He will be a regenerator
of Islamic knowledge (or, as they called him, a renewer-mujaddid).72

Many Islamic scholars have sought after the title of mujaddid, and there is controversy
over who the mujaddid is for any given century. Mujaddids are, given their status, all
considered mujtahids.73 Ijtihad, then, at a bare minimum is practiced by at least by one
individual every century according to the belief of all Sunnis. This fact has served as an
argument to prove that the gates of ijtihad were never closed, since its continuation
was guaranteed by the appearance every hundred years of the mujaddid.74
Sunnis, by believing in mujaddids, implicitly deny the closing of the gates of ijtihad.

Second Spencer proof

In order to introduce the subject of mujtahid typologies, it will be helpful to first discuss
one of Mr. Spencers references which he claims demonstrates that the gates of ijtihad
are closed. This section is very long, but this was unavoidable. Whenever you analyze
an Orientalist reference, you get caught in a web of lies that is difficult to get out of.
Here is the evidence Mr. Spencer gives:
Then there's this from Muslim-Canada.org: Thus the schools of the four Imams remain
intact after a thousand years have passed, and so the 'Ulama' recognize since the time
of these Imams no Mujtahid of the first degree. Ibn Hanbal was the last....Since their
Imam Qazi Khan died (A.H. 592), no one has been recognized by the Sunnis as a
Mujtahid even of the third class. A mujtahid is someone qualified to perform ijtihad.
Ahmed ibn Hanbal died in 855 AD. Qazi Khan died in 1196.75

Mr. Spencer claims that all of the quotes that he presents as evidence for the closure of
the gates of ijtihad is material from Muslims, implying that even Muslims consider
that gates of ijtihad to be closed. But is the quote above from a Muslim just because it
appears on an Islamic web site? Of course not. The Muslim-Canada web page that
Spencer cites clearly says that the page contains the entry for the term ijtihad as cited
in the Dictionary of Islam by Thomas Patrick Hughes. 76 Hughes was an Orientalist; an
Evangelical Christian missionary priest who was working for the Church Missionary
Society in India when he wrote his dictionary back in 1885. 77 Hughes saw the role of the
missionary as calling upon the millions of Islam to loose from their moorings amidst the
reefs and shoals of a false system, and to steer forth into the wide ocean of religious
inquiry,78 whereupon they would presumably adopt Christianity. This attitude clearly
shows where his motivations and biases lie.
Hughes, however, is not the original source of Spencers quote. In the ijtihad entry of
Hughes dictionary, it says that the growth of this system of divinity is traced by a Sunni

19

writer, Mirza Qasim Beg, Professor in the University of St. Petersburg (extract from
which are given in Sell's Faith of Islam), as follows
From this point on in Hughes definition, which is nearly the entire entry, Hughes is
actually quoting from a book by Edward Sell (which is available online). 79 Sell is another
Orientalist; like Hughes, an Evangelical Christian missionary priest who was working for
the Church Missionary Society in India. In fact, Sell and Hughes were ordained
together.80 Sell wrote his book in 1880 (one year before he obtained his Bachelors
degree in Divinity).81 So at this point we have, not material from Muslims, but an
Evangelical Christian missionary Orientalist quoting his buddy, another Evangelical
Christian missionary Orientalist. Guenther explains the reason these missionaries may
have presented the issue of ijtihad in the manner they did:
It would seem that what motivated the missionaries to oppose modernist reformulations
of the Muslim faith was their desire to see Islam as a system completely opposed to
progress and civilization, incapable of reform, and void of genuine spiritual life, leaving
no options for the dissatisfied Muslim but to cast off the supposedly repressive system
and accept Christianity if he wanted authentic spirituality along with Western civilization.
Such a stance was consistent with their Evangelical beliefs of salvation being found
exclusively in Christ Jesus, and provided a justification for their work in proclaiming the
Gospel in India and other foreign lands.82

So now we know where Hughes and Sell are coming from.

However, we still have not found the source, because Sell is not the original author
either. Sell is quoting the material from a person he calls Mirza Kazim Beg. Hughes,
however, says that the original authors name is Mirza Qasim Beg. Close, but not the
same. The original article, which was written in 1850, is online. 83 You can see from the
article that the original authors name is Mirza Kazem Beg. Two different Orientalists
were unable to simply copy the persons name correctly. More on this later.
Hughes says that Kazem Beg is a Sunni writer, and Sell says that Kazem Beg is a
learned Musalman, and that his article is therefore, of the highest value. Sell and
Hughes put great value in this source because it comes from a Muslim, just as Mr.
Spencer points out that his evidence is material from Muslims. So if Mr. Spencers
quote is of an Orientalist quoting an Orientalist quoting a Muslim, isnt it OK for Mr.
Spencer to claim that the quote is from a Muslim?
The problem is that Kazem Beg was not a Muslim. Although he was born into a
Muslim family, when Kazem Beg was 20 years old he converted to Christianity and
became Presbyterian.84 Kazem Beg was a Christian for 27 years when he wrote the
article that is quoted by Mr. Spencer. The question of how the two Orientalists could not
get Kazem Begs name right seems interesting in light of this. Sell may have made a

20

simple mistake when he gave Kazem Begs name as Kazim Beg, but when Hughes
changed it to Qasim Beg, he was deliberately altering the name to make it sound more
like a Muslim name. This is how Orientalists operate. They lie and deceive.
Kazem Beg was born on 3 August 1803 in Resht, Persia. When he was eight, his family
moved to Derbent, Russia. Derbent was in Persian territory when Kazem Beg was born,
but when he was 3 years old it was acquired by the Russian empire. Although he was
born in Persia, Kazem Beg lived in Russia from an early age. He became a Christian
when he met Scottish missionaries in the town of Astrakhan.
Kazem Beg was a Russian Orientalist, not a Muslim. When he wrote the article Mr.
Spencer quotes from, he was a professor at St. Petersburg University. As a member of
the colonial power, Kazem Begs job was to help assimilate the Muslim population within
Russian territory. In order to do this, the Russian Orientalists needed to replace the
Muslim clerics as the experts on Islamic law. Michael Kemper discusses this in a
review of a Robert Crews book, where Kemper explains how:
Crews detects a general turn towards anticlericalism among Russian officials around
1850, when tsarist officials began to rely less on mullahs and muftis as experts and
intermediaries and more on the advice of non-Muslim specialists. A prominent example
is the Orientalist Professor Alexander Kazem-Bek of St. Petersburg University, a convert
to Christianity. Crews shows how this scholar tended to put the classical legal tradition of
Hanafi law books (some of which he had edited himself) higher than deliberations of
mullahs and Muslim litigants. This is, of course, a wonderful example of Orientalism:
philologists regard themselves as the true specialists of Islamic tradition, and they have
their interpretations enforced by the colonial state.85

Kazem Beg was an expert on Islam for the Russian state, replacing the Muslim clerics
as the expert on Islamic law. Notice how Kazem Beg liked to stick with the traditional
textbooks rather than the opinions of contemporary mullahs. It was Kazem Beg who
was stuck in the past, performing taqlid of the ancients, but then he accuses Muslims of
doing so. This is standard Orientalism. Here Robert Crews explains how the Orientalists
interpreted Islamic law differently than the Muslims did:
Through consultation on specific cases, Orientalists interpreted the sharia in new ways.
Removing the process of disputation and discretionary interpretation from the social
environment of the mosque community, they established binding precedents and limited
the range and flexibility of Islamic interpretation by privileging a handful of legal texts that
summarized major opinions of the Hanafi school of law. Scholars built on the orthodox
agenda of the Orenburg Assembly by narrowing the latitude of Islamic jurisprudence but
simultaneously undermined its authority by shifting final control over Islamic law
judgments to the upper echelons of the appellate hierarchy in St. Petersburg. KazemBek in particular contributed to the official redefinition of the sharia as a species of
positive law, reducing the range of outcomes to a single judgment on a uniform basis.86

21

Once again, it was not Muslims that caused problems with Islamic law, it was the
Orientalists who did. Muslims never closed the gates of ijtihad, the Orientalists did.
We will discuss the effects of colonialism on Muslim Law later in the paper.
Mr. Spencers quote, then, is not material from Muslims, but is actually from an
Evangelical Christian missionary Orientalist quoting his buddy, another Evangelical
Christian missionary Orientalist, who is quoting a Russian Presbyterian Orientalist who
participated in the administration of the Muslim population within the Russian territory.
That is the true source of the quote.
At this point, lets analyze Mr. Spencers quote by looking at the quote in the original
Kazem Beg paper, and then seeing how it was changed by Sell (and then copied by
Hughes). Although Kazem Beg wrote the original paper, it is somewhat appropriate not
to consider him the original author of the quote that Mr. Spencer gives. This is because
Kazem Beg wrote his article in French, and Sell then translated it into English for his
book. However, Sells translation is nothing close to the original article, and for this
reason, what Mr. Spencer quotes could be considered the work of Sell, not Kazem Beg.
Most of what Kazem Beg wrote is left out of Sells translation (which is how KazemBegs 56 page article became five pages in Sells version), and what is included is
severely edited. This is also standard Orientalist practice. You could write a book
detailing what Sell left out and why, and how he manipulated what he included.
However, we will deal here only with the parts that Mr. Spencer quotes, along with the
context of those quotes.
Here is Mr. Spencers quote of Sell:
Thus the schools of the four Imams remain intact after a thousand years have passed,
and so the 'Ulama' recognize since the time of these Imams no Mujtahid of the first
degree. Ibn Hanbal was the last....Since their Imam Qazi Khan died (A.H. 592), no one
has been recognized by the Sunnis as a Mujtahid even of the third class.

These two quotes are from different sections, so lets look at the first one first:
Thus the schools of the four Imams remain intact after a thousand years have passed,
and so the 'Ulama' recognize since the time of these Imams no Mujtahid of the first
degree. Ibn Hanbal was the last.

First, it is important to emphasize that in this sentence, Sell is speaking of mutjahids of

the first degree, In Kazem Begs view, these are mujtahids who are able to start their
own schools of law. Ijtihad is, of course, possible without starting your own school of
law. Change happens in Islamic Law without having to start a new school every time a
change occurs.

22

The quote above begins with thus, which means that the statement being made in
that sentence is supported by what came before it. In Mr. Spencers quote, Sell makes
the claim that no mujtahid of the first degree has been recognized since Hanbal, but the
supporting information for this claim has already been given before the quoted
sentence. So lets look at what was said before the quote given by Mr. Spencer to find
out why Sell makes this claim. At the same time, we will compare Sells material with the
original paper by Kazem Beg.
Lets start on page 34 of Sells book with this:
Since the time of the Tabi'in, this degree of ijtihad has only been conferred on the six
great Imams. Theoretically any Muslim can attain to this degree, but it is one of the
principles of jurisprudence that the confirmation of this rank is dependent on many
conditions, and so no one now gains the honour.

Here is the corresponding text from the original:

Ce degr d'idjtihad n'a t confr, aprs les Tbi's, qu'aux six personnages dont nous
avons dit quelques mots dans notre premier article, mais il y a eu de leur temps, et
mme aprs eux, des hommes qui ont atteint ce degr par leurs connaissances, et qui
se sont donn eux-mmes le droit de mudjthid, sans que cependant leur autorit ait t
reconnue par les ulmas.
J'ai dit dans un axiome cit au commencement de cet article, que chaque mukellef peut
atteindre le degr d'idjtihad par l'austrit de sa vie et l'tendue de ses connaissances
dans les sciences du Chari'at; cependant, pour empcher l'augmentation du nombre de
mudjthids ce qui aurait nui aux quatre principales coles des Sunnites, et aurait pu faire
tort l'islamisme, il est dit dans les lments de la jurisprudence, que la confirmation du
degr d'idjtihad absolu dpend de beaucoup de conditions dont l'accomplissement est
fort difficile et presque impossible aujourdhui.

Here is the original translated into English:

Since the time of the Companions, this degree of ijtihad [first degree] was conferred
upon the six people we mentioned in part I of the article. But there were times after them
that men achieved this degree of knowledge and gave themselves the status of
mujtahid, but without being recognized by the ulema.
I said in an axiom at the beginning of this article that every believer can reach the level
of ijtihad through leading an austere life and through his knowledge of the science of
Sharia, but in order to prevent increasing numbers of mujtahids from threatening the
four main schools, which could harm Islam itself, the principles of jurisprudence states;
the confirmation of the status of absolute ijtihad depends upon many conditions which
are very difficult and almost impossible today.

23

I have color coded the English translation of the original so we can compare it to the
Sell translation. The parts in green were translated by Sell correctly from the original.
Parts in red are parts of the original article that Sell left out. Parts in purple are parts that
Sell included in his translation, but were edited by Sell to say something other than
what the original said.
In the Sell version, he acknowledges that theoretically any Muslim can attain the first
degree of ijtihad, but that the qualifications are so difficult that no one now gains the
honour. This seems strange to me. When Mr. Spencer states that the gates of ijtihad
are closed, I picture a situation where a conscious decision was made not to allow the
practice. I did not picture the concept of the closed gates of ijtihad meaning that
anyone is allowed to practice ijtihad, even at the highest level, but that in practice the
qualifications are just too difficult to achieve. (I do not know what Mr. Spencerss
explanation is as to why he thinks the gates of ijtihad have closed. As far as I know, he
has never stated one. He does, however, quote Mr. Sell, who says the reason is
because the qualifications are too difficult to achieve, and he also quotes Cyril Glasse,
who makes the same argument see below. Maybe Mr. Spencer can clarify this.) When
Sell says that the qualifications for the highest level of ijtihad are so difficult that no one
now gains the honor, he has edited the original. The original says that the conditions
are very difficult and almost impossible. Just because something is very difficult and
almost impossible does not mean it cannot happen and no one now gains the honor. It
is very difficult and almost impossible for any individual to become a member of the
US Supreme Court, but yet some people do indeed gain the honor of being one.
In the Sell version, the reason for limiting who can become a mujtahid of the first degree
is left out from the original, and that reason is to prevent increasing numbers of
mujtahids from threatening the four main schools, which could harm Islam itself. We
already visited this issue. It is essential in any system of law to have consistency, and
that is the reason for limiting the number of schools, and for saying that nobody can
reach the first level of ijtihad. Not doing so would not merely harm Islam itself, but it
would end Islam. Nevertheless, although no other official schools ever formed, there
have been mujtahids that have reached this level anyway, or at least a level which is
very similar.
Even Kazem Beg acknowledges that later scholars did claim this level of ijtihad, and he
brings up as the main examples (on pages 188-189) being al-Tabari (d. 922) and alSuyuti (d. 1505). Kazem Beg, however, claims that scholars did not recognize these two
as first-degree mujtahids.
Regarding Tabari, Kazem Beg says that he was not honored by the dignity of being a
first-degree mujtahid.87

24

Really? Kazem Beg equates being a first-degree mujtahid with having started your own
school of law. Besides the founders of the four existing schools (Hanafi, Malik, Shafii,
and Hanbal), the only others that Kazem Beg acknowledges as having had their own
schools are Thawri (d. 778) and Zahiri (d. 884). Kazem Beg is an imbecile. Al-Tabari
founded his own school of law, and it was called the Jariri school. 88 Al-Ashari (d. 936)
even wrote a book titled An Introduction To and Support of Tabaris School! 89
A direct descendent of a Companion writes a book on Tabaris school, but the Orientalist
denies that the school existed! Funny. Even later Orientalists such as Schacht listed
Tabari as a school founder.90
The Jariri school did not survive because Tabari unsuccessfully impugned Ahmad b.
Hanbals qualifications as a jurisconsult.91 If Tabari had not challenged Hanbal in this
way, his school may well have survived. Gibril F. Haddad summarizes what Muslim
scholars thought about Tabari, saying that the authors of the books of biographical
layers (Tabaqat) are unanimous that [al-Tabari] is a mujtahid mutlaq.92
Regarding Suyuti, Kazem Beg has this to say:
According to those who observed Suyuti, we are aware of the objections that were
made by the ulemas of his time, in relation to which he kept silent. We can find them in
sufficient detail in a number of passages in Abd al-Rauf al-Munawis commentary on
Suyutis al-Jami al-saghir, [the title of which is: Fayd Al Qadir]. Not only was he not
recognized, but he was not even honored with a lower degree of ijtihad, although he is
one of the most famous scholars of the Orient.93

Kazem Beg says that the ulema objected to Suyutis claims of being a first-degree
mujtahid, and Suyuti had nothing to say in response, presumably because the
objections were well founded. This is more deceptive crap. First of all, Suyuti never
claimed to be what Kazem Beg calls a first-degree mujtahid, so Kazem Beg is wrong
before he even begins. (This will be addressed in detail when typologies are discussed
at the end of this section).
Although many did object to Suyutis ijtihad, the reason why they did so is left out of
Kazem Begs passage. The reason is that Suyutis contemporaries thought he was a
pompous ass, and justifiably so. To give an example of Suyutis personality, he said
God has bestowed on me alone and uniquely the duty of undertaking ijtihad in this
age. Besides boasting, he would also belittle his fellow jurists, calling them fools, if not
worse.94
Even though Suyuti was indeed a mujtahid, people generally do not acknowledge a
persons accomplishments when that person is both egotistical and calls them fools at
the same time. Read a psychology book to find out more about this. Suyuti not only

25

claimed ijtihad for himself, but he also declared himself the mujaddid of the tenth Islamic
century. Resistance to Suyutis claims, then, was no more than an emotional response
to an abrasive personality, and not an objective evaluation of Suyutis ability. For
example, when al-Sakhawi (d. 1497) charged Suyuti with plagiarism, a later jurist (alShawkani (d. 1834)) remarked that:
The reason why he [al-Sakhawi] has related the ulemas sayings which allow the
denigration of al-Suyuti is the latters claim to be a mujtahid. This remains the habit of
people regarding those who attain this rank.95

Similarly, Amal Ghazal says:

In fact, al-Suyuti was able to practice ijtihad but his contemporaries denied him not the
right to ijtihad but rather his claim to be superior to them.96

Now that Suyuti has been dead for 500 years, people are better able to judge Suyuti
objectively, and they consistently refer to him as both a mujtahid and a mujaddid.97
Kazem Beg says that the ulema made objections to Suyutis claims to be a mujtahid,
and that Suyuti remained silent. Kazem Beg gave zero references for his comments
about Tabari, but surprisingly, he does give a reference for what he is talking about here
with respect to Suyuti. He refers the reader to al-Munawis (d. 1621) book titled Fayd Al
Qadir.98 Trouble is, this is a 6-volume work, and Kazem Beg doesnt bother to give
even a volume number, much less a page number. Orientalist scholarship at its best.
However, the event Kazem Beg addresses here was also discussed and commented on
by Mahmud Shukri al-Alusi (d. 1924).99 Al-Alusis book was a critique and refutation of a
book by al-Nabhani (d. 1932).100 In that book, Nabhani describes the Suyuti incident by
quoting Ibn Hajar al-Makki al-Haytami (d. 1567), an incident which al-Alusi notes was
also described by al-Munawi.
Here is how al-Haytami describes what happened:
When Jalal al-Suyuti claimed ijtihad, his contemporaries attacked him and criticized him
en masse. They wrote him a petition presenting a number of legal questions on which
Shafii jurists had proposed two different rulings considered equally valid. They
demanded that if he had even the lowest level of ijtihad - that is, ijtihad al-fatwa - then he
should explain the opinion he considered most acceptable in this regard, and provide the
appropriate evidence according to the rules of ijtihad. Al-Suyuti, however, sent back the
petition without writing any answer, and excused himself, saying that he was busy with
other concerns that prevented him from looking into the matter.101

The truth, once again, is quite different from how Kazem Beg presents it. Suyuti did not
remain silent because he was unable to respond. From Suyutis point of view, inferiors
were challenging him, and he didnt feel like jumping through their hoops. So what. This

26

means nothing. Al-Alusi responded to this incident by bringing up the well-known story
of how when Imam Malik (a first-degree mujtahid) was asked 40 questions, his
response to 36 of them was I dont know. 102 A first-degree mujtahid clearly is not
required to be all knowing. Moreover, Suyuti, unlike Malik, was not unable to answer the
questions, he simply declined to do so. (Al-Alusi also mentions how people like Haytami
are not very consistent. Haytami claimed that ijtihad had been discontinued for 600
years (since the 10th century), but elsewhere also said that there was a consensus that
al-Subki practiced ijtihad.103 Al-Subki died in 1355. Haytami almost sounds like an
Orientalist!)
To summarize, Tabari had his own law school, and was what Kazem Beg terms a firstdegree mujtahid, although Kazem Beg denies it. Suyuti was not what Kazem Beg
described as a first-degree mujtahid, but he never claimed he was (see below). He was,
however, contrary to what Kazem Beg says, a mujtahid.
Lets go on with Sells quote. At this point (after the paragraph ending with, so no one
now gains the honour), Sell describes the qualifications for becoming a mujtahid. The
information here needs to be addressed, but we will cover mujtahid qualifications later.
Since this section is translated fairly accurately from the Kazem Beg original, so there is
no need to go into any discrepancies.
After the section about mujtahid qualifications, Sell continues with this:
The obstacles, then, are almost insurmountable. On the one hand, there is the severity
of the 'Ulama, which requires from the candidate things almost impossible; on the other,
there is the attachment of the 'Ulama to their own Imams, for should such a man arise
no one is bound now to listen to him. Imam Hanbal said:Draw your knowledge from
whence the Imams drew theirs, and do not content yourself with following others for that
is certainly blindness of sight. Thus the schools of the four Imams remain intact after a
thousand years have passed, and so the 'Ulama recognise since the time of these
Imams no Mujtahid of the first degree. Ibn Hanbal was the last.

The last two sentences here are what Mr. Spencer quotes on his website. As before, we
will now look at the corresponding text from the original:
Dans un tel tat de choses, ceux qui veulent parvenir i'idjtihad, trouvent des
obstacles presque insurmontables, d'un ct dans la svrit des ulmas, qui exigent
des candidate des choses presque impossibles; et de l'autre, dans l'attachement de ces
mmes ulmas leurs imams, et dans leur ambition particulire. Cependant, d'aprs les
rgles des Ussouli-Figkh, il est permis chacun d'aspirer cette dignit, comme il a t
dit plus haut.
L'imam, Achmet-ben-al-Henbel, le dernier des quatre auteurs des systmes juridiques, a
dit ses lve's: . Puisez vos

27

connaissances la source o les ont puises les autres imams, et ne vous contentez
pas de suivre les autres, car c'est un aveuglement d'esprit. (Voyez , chap.
IV.)
Outre cela, une tradition dit: Que la carrire de l'idjtihad doit tre ouverte tant que
l'islamisme existera.
Pour viter des rptitions, nous dirons que les jurisconsultes philosophes ont runi ces
deux rgles des Ussouli-Figkh, et pris, la majorit des voix, les deux dcisions
suivantes: 1) il est possible d'atteindre le degr d'idjtihad ceux des mukellefs qui, par la
bndiction de Dieu, travailleront y arriver, en joignant la pit une connaissance
approfondie des principaux lments du Chari'at. Une fois qu'ils y sont parvenus, ils
devront indispensablement, et de leur propre aveu, renoncer au Tagklid, et remplir leurs
devoirs d'aprs les lois, selon leur propre manire de voir; 2) les ulmas, avant de
reconnatre au candidat le degr d'idjtihad, doivent s'assurer qu'il a rempli toutes les
conditions qui lui sont imposes.
Les savants musulmans concluent de la combinaison de ces deux principes, que
chaque mugkelid peut atteindre les degrs de l'idjtihad, et jouir de tous les droits qui y
sont attachs; mais ils se rservent la libert d'adopter ou de rester son systme de
jurisprudence, d'o il rsulte, premirement, que ceux des ulmas qui, d'aprs leur
conviction, ont atteint un degr de l'idjtihad, peuvent n'tre pas connus comme tels, et
que personne n'est oblig de suivre leurs enseignements. Secondement, qu'aucun des
ulmas contemporains n'ayant de raisons suffisantes de quitter son imam pour
s'attacher au nouveau mudjthid, ne reconnat pas la ncessit d'tablir une nouvelle
cole, ou une nouvelle secte. C'est ainsi que les coles des quatre imams sunnites
restent intactes depuis prs de mille ans, et voil pourquoi leurs ulmas ont pu ne pas
reconnatre d'autres mudjthids.

Here is the original translated into English:

Under such circumstances, those who want to attain ijtihad were met with
insurmountable obstacles in terms of the rigorousness of scholars who require nearly
impossible things of the candidates on one hand, and because of the attachment of the
younger scholars to their Imams on the other. However, according to rules of usul al-fiqh,
everyone is entitled to aspire for that honor, which is very high, as noted earlier.
Imam Ahmad bin Hanbal, the last of the four eponyms, told his students, Seek
knowledge from the sources that the scholars drew on. Do not be content by following
others, for that would be blindness of perception." (See al-Sharani, al-mizan al-kubra,
chapter IV)
Besides, according to one tradition, The career of ijtihad should be open as long as
Islam exists.

28

To avoid repetition, we will say that philosopher-jurists combined those two rules of usul
al-fiqh, and, based on the majority of votes, the following two decisions were taken: first,
reaching the degree of ijtihad is possible for Mukallaf who, with the blessings of God,
work on attaining it, combining both piety and profound knowledge of the principal
elements of Sharia. Once they have arrived there, they will indispensably and of their
own free will have to renounce taqlid, and fulfill their obligations in accordance with the
laws, based on their own respective views. Second, the ulemas, before recognizing a
candidates degree of ijtihad, must first make sure they he has fulfilled all conditions
imposed on him.
From those two conjoined principles, learned Muslims concluded that each muqallid
could attain the degrees of ijtihad and enjoy all the rights attached thereto. However,
they retain the right to adopt or reject their systems of jurisprudence, which primarily
leads to the fact that those ulemas who, based on their own conviction, have attained
the degree of ijtihad, may not be recognized as a mujtahid, and that no one would be
forced to follow their teachings. Secondly, that none of the contemporary ulemas, not
having sufficient reason to leave his Imam in order to follow a new mujtahid, would
recognize the need to establish a new school, or a new sect. Thus, the schools of the
four Sunnite Imams have remained intact for nearly a thousand years, and it is for those
reasons that their ulemas could not recognize other mujtahids.

To analyze this, we will first consider what Kazem Beg said in the original paper.
After having just listed the requirements for becoming a mujtahid, Kazem Beg says that
it is impossible to fulfill those requirements, and that even if someone did, the ulema are
already committed to their original Imam and are unlikely to switch to someone new.
This part was included by Sell in his translation. Then Kazem Beg reiterates how
everyone is entitled to become a mujtahid; Sell leaves this sentence out, (and at this
point, you should understand why).
At this point things get very interesting. Kazem Beg brings up two things that show how
early scholars encouraged ijtihad to continue forever. First, he quotes Hanbal saying
that people should not follow the Imams and should instead get their knowledge from
the sources that the scholars drew on, namely; the Quran and the Sunna. Many
others have quoted this in slightly different ways. For example, here is an alternate
version:
May God have mercy on Ahmad ibn Hanbal when he said Dont imitate me, nor Malik,
nor al-Shafii, nor Thawri; but take from where they have taken.104

And another:
Dont imitate me, and dont imitate Malik, al-Thawri, or al-Awzai. Rather, draw from the
sources that they draw from.105

29

Kazem Beg then quotes an Islamic tradition that says, ijtihad should be open as long
as Islam exists. These two items quoted by Kazem Beg are at odds with the idea of
new schools not being allowed, so naturally at this point he tries to explain why no new
schools formed in spite of what Hanbal said and in spite of the ijtihad tradition. What he
says in response to these quotes is that even if someone fulfills the qualifications for a
first-degree mujtahid, the ulema will not recognize it, and in practice they do not
recognize anyone as a first-degree mujtahid because they are already attached to their
original Imam and feel that there is no need to form another school. It is only after this
explanation that Kazem Beg says that thus, the schools of the four Sunnite Imams
have remained intact for nearly a thousand years. (Which is the starting point of Mr.
Spencers quote).The word thus in Kazem Begs article refers to his explanation of
why new schools are no longer recognized in spite of the two pro-ijtihad items quoted
above.
When Sell translates this section using his technique of picking and choosing what
sentences to include and what to leave out, he destroys whatever logic the original
paper had. In Sells version, he quotes one of the two pro-ijtihad statements that Kazem
Beg quoted; namely, Hanbals statement that people should not imitate him and should
instead get their knowledge from the Quran and Sunnah. At this point, he first skips the
part about Islamic tradition saying that ijtihad should last as long as Islam does, then he
skips Kazem Begs entire explanation of why new schools did not form despite Hanbals
wish (!), and moves right to the statement of thus the schools of the four Imams remain
intact after a thousand years have passed. This is ridiculous! In Kazem Begs
version, thus referred to his explanation of why no new schools formed. What is the
word thus referring to in Sells version? Nothing, because Sell left the explanation out!
So here is Sells quote paraphrased:
Ibn Hanbal said that people should not imitate the Imams, and should instead get their
knowledge directly from the Quran and Sunnah. Thus, no new schools formed for a
thousand years.

This makes no sense whatsoever, and Sell is a complete and total imbecile. An
equivalent statement would be:
The US government repealed the prohibition law. Thus, nobody has taken a drink
since.

Only within Orientalist scholarship can a statement like this end up in print.
After this sentence, Sell adds that Ibn Hanbal was the last [first-degree mujtahid]. This
was nowhere in the Kazem Beg original, and Sell simply made it up. Kazem Beg did
not say this, because even Kazem Beg recognized Zahiri as a school founder and first-

30

degree mujtahid, and he came after Hanbal. Sell even includes the following statement
of Kazem Beg in his translation on page 33:
The founders, all Imams of the first class, were Abu Hanifa, the Imam-i-'Azam or great
Imam (A.H. 150), Safian As-Sauri (A.H. 161), Malik (A.H. 179), As-Shafa'i (A.H. 204),
Hanbal (A.H. 241) and Imam Daud Az-Zahari (A.H. 270).

If you are able to grasp the idea of chronological order, you will see that Zahiri came
after Hanbal. Sell translates this, yet, two pages later he fabricates a sentence and says
that Ibn Hanbal was the last. The stupidity of an Orientalist cannot be measured.
As for what Kazem Beg said about the schools of law, he is correct to a degree. Of
course no new schools were allowed after the formative period, because doing so would
have ended Islam. Limiting the number of schools, along with limiting the scope of
ijtihad, were essential for the survival of Islamic law:
The construction of the founders authority, the reduction and narrowing down of the
early independent ijtihadic possibilities, and the final rise of taqlid as an expression of
loyalty to the schools are the phenomena that share a single common denominator,
namely, the augmentation of school authority without which the legal system could not
have continued to exist, much less evolved or even thrived.106

There is one school of law allowed in the US, and I doubt it will allow any others. If I
want to start a new school of law that is based on equality instead of our present system
where the top 0.1 percent gets most of the wealth, will the judges and lawyers in the
present system allow it and recognize it? I doubt it. Does that mean we have a static
system based on taqlid? Vogel points out how the madhhab, or Islamic law school, is
similar in concept to our present law system in the US:
A favorite contemporary western concept of law is that it is a system of formal,
objective, publically known, generally applicable, compulsory rules, whether determined
from general, published legislation, from the decisions of courts interpreting legal
materials and applying them, or from authoritative scholarly analyses of legislation, court
decision, and other sources of lawPerhaps another form of [Islamic] law resembling
this western notion of law is the law of a legal school, insofar as it is seen as a fixed legal
corpus of rules that is binding on the schools adherents.107

Why is it that it is fine for the US to have one law school, but because Islamic law will
not allow more than four, they have a primitive, static system?
In reality, change, including fundamental change, occurs within Islamic law within the
framework of the four schools.

31

Before getting to the topic of typologies, we still need to look at the second quote given
by Mr. Spencer, which is:
Since their Imam Qazi Khan died (A.H. 592), no one has been recognized by the
Sunnis as a Mujtahid even of the third class.

Here is the corresponding text from the Kazem Beg original:

Les principaux mudjthids de troisime classe de l'cole des hanafis sont: Abou-BekrAl-Khassaf, qui vivait au milieu de III siecle, et qui mourut lan de lhegire 261; AbouHazim-Al-Bassri, (mort en 292), Abou-Dja-far-Al-Tahavi, (mort en 321); Abul-Hassan-Al
Kerkhi, (mort en 340); Abul-Gkassim-Assaffar de Balk, (mort en 339); Abul-Less de
Samarcand, (mort en 383); Chams-ul-Amm-Al-Helvani (autrement Al-Helva), (mort en
449); Chams-ul-Amm-Muhamed-Asserrakhssi, (mort en 491) [sic:483]; ce dernier est
connu par son grand ouvrage intitul: Al-Mabsout, qui consiste en quinze volumes, et
qu'il composa pendant son emprisonnenlent dans la ville de Uz-Kend; et, dit-on, de
mmoire seulement. Deux frres, surnomms Al- Pezdevi, ce sont:(mort en 492); et
(mort en 493); Al-Imam-Fakhr-ud-Din-Gkazi-Khan, (mort en 592). Outre ceux-ci, on
pourrait en nommer beaucoup d'autres, mais il m'a paru suffisant de faire connatre les
noms des principaux savants de l'cole des hanafis, comme tant la plus ancienne, et
celle pour laquelle de nombreux ouvrages servent de guide aux muftis et aux
jurisconsultes.

Here is the original translated into English:

The principal Mujtahids of the third class in the Hanafi school were: Abou Bakr AlKhassaf, who lived in the mid third century of the Hegira, and died in 874; Abu Khazim
(d. 905), Abu Jafar al-Tahawi (d. 933); Abu al-Hasan al-Karkhi (d. 951); Abu Nasr alFarabi (d. 950); Abu al-Layth al-Samarqandi (d. 993); Abu Uthman al-Sabani (d. 1058);
Muhammad bin Ahmad al-Sarkhasi (d. 1090); the latter was best known for his
renowned fifteen-volume book Al-Mabsout, which he wrote during his imprisonment in
the city of Uz-Kand from memory only. The two brothers al-Yazdawis; Fakhr al-Islam alYazdawi (d. 492 AH), and Abu Yossr Mohammed al-Yazdawi (d. 492 AH); Imam Qadi
Khan (d. 1196). Aside from those, we can name many others. However, it seems
sufficient to make known the names of the principal learned figures of the Hanafi school,
being the oldest, and the authors of several books that guided the Muftis and Jurists.
(italics added)

There is no need to color code the English version of the original, because there is
nothing at all in common between the original and the Sell translation. The Sell

translation is a complete fabrication. Sell says that Qadi Khan was the last
third degree mujtahid. Kazem Beg, however, gave a list of the principal mujtahids of
the Hanafi school only. The list he gives is not inclusive, and he specifically says that
aside from those he listed we can name many others. Sell fabricated the sentence

32

quoted by Mr. Spencer, and Sell is a liar. Another good example of what is called
Oriental scholarship. Mr. Spencers reference is a joke.
We can extend Kazem Begs list of mujtahids after Qadi Khan with the following: alRazi (d.1209), Ibn Abd al-Salam (d. 1262), Abu Shama (d. 1267), al-Nawawi (d. 1278),
Ibn Daqiq al-Id108 (d. 1302), Ibn al-Rifa (d. 1310), Nasafi (d. 1310), al-Zamalkani (d.
1326), Ibn Taymiyya (d. 1328), Ibn Sayyid an-Nas (d. 1334), Ibn al-Imam (d. 1342), Taqi
al-Din al-Subki109 (d. 1355), al-Asnawi (d. 1370), al-Bulqini (d. 1403), Zayn al-din al-Iraqi
(d. 1404), al-Firuzabadi (d. 1414), al-Shirazi (d. 1415), al-Uqbani (d. 1439), Ibn Hajar
al-'Asqalani (d. 1448), Ibn al-Sabbagh (d. 1451), Ibn al Humam (d. 1456) 110, Suyuti (d.
1505), Suud (1574), Dahlawi, (d. 1762), Panipati (d. 1810), Shawkani (d. 1834), etc.111
In relation to examples of mujtahids, Jaques wrote a book that examined the Tabaqat
al-fuqaha al-shafiiyah, which was written by Abu Bakr b. Ahmad Ibn Qadi Shuhbah (d.
1448). This book gave biographies of 784 jurists that existed up until the time of
Shuhbah. Of these 784 jurists, 25 were listed as mujtahids, and there is a fairly even
distribution of mujtahids across time.112 There was no point where mujtahids ceased to
exist. According to the biographers who listed qualified jurists as mujtahids, there was
no closing of any gates.
Jaques proclaims that the above analysis of Ibn Qadi Shuhbahs historical argument
both confirms and qualifies aspects of Hallaqs view, while it also clearly disagrees with
Schachts view that ijtihad ended after the beginning of the tenth century. 113
Earlier we discussed ikhtilaf, which is the disagreement among jurists on a particular
point of the law. When a jurist chooses one opinion over another, he uses ijtihad to do
this. Choosing one opinion over another is a full process of ijtihad (we will discuss the
definition of ijtihad in detail later). In order to be able to choose the correct opinion, you
must be able to consult the Quran. In addition to the 25 mujtahids listed by Qadi
Shuhbah, he lists many more jurists that were experts in ikhtilaf. Although the ikhtilaf
experts were not all mujtahids, they were still able to consult the Quran directly in order
to make their decisions:
Of the 220 jurists that Ibn Qadi Shuhbah considered authoritative voices in ikhtilaf, and
thus capable of using the texts of revelation as sources for their legal opinions114
There were many, many jurists who were allowed to consult the Quran directly in order to make
their decisions.

Typologies
At this point, it is time to discuss mujtahid typologies. The typology mentioned by Kazem
Beg, where there are three grades of mujtahids, two of which are foundational and

33

active only prior to the formation of the schools, is the typology of Kamal Pasha (d.
1533).115 This typology is very conservative, and describes only a low level of ijtihad still
being in practice.
There have been many jurists, however, that have described mujtahid typologies other
than Pasha. Ibd Rushd (d. 1198), for example, was the first known jurist to articulate a
mujtahid typology. The highest level in his three-tier typology encompassed the top
three levels in Pashas system. This level was the only level capable of ijtihad, and no
level, including this one, was extinct. There was no difference between later mujtahids
and the founding eponyms, and ijtihad involved direct confrontation with the revealed
texts.
Ibn Salahs (d. 1245) typology gave the highest level to the four original eponyms, and
said that this level was extinct, but the next level was still attainable, and was equal to
the top level in every way. Giving a separate level to the four Imams was simply a way
to honor them, but becoming equivalent to them was attainable. 116 The elevation of the
eponyms to a separate level is simply a part of authority construction, which gives the
madhhab structure:
The madhab, therefore, was mainly a body of authoritative legal doctrine existing
alongside individual jurists who participated in the elaboration of, or adhered to, that
doctrine in accordance with an established methodology attributed exclusively to the
eponym, The latter (whose knowledge was presumed to have been all-encompassing,
and to have been utilized by him to confront revelation directly) thus becomes the
absolute and independent mujtahid, and all subsequent mujtahids and jurists, however
great their contributions, remain attached by their loyalty to the tradition of the madhab
that is symbolized by the figure of the founder. What made a madhab (as a doctrinal
school) a madhab is therefore this feature of authoritative doctrine whose ultimate font is
presumed to have been the absolute mujtahid-founder, not the mere congregation of
jurists under the name of the titular eponym, This congregation would have been
meaningless without the polarizing presence of an authoritative, substantive and
methodological doctrine constructed in the name of a founder.117

The elevation of the founder to an unattainable level was a process by which later
opinion were attributed to the founder, which then became part of the madhhabs
doctrine:
Generally speaking, takrij, as a process through which later opinions were attributed to
the so-called founding imams, was not recognized either in practice or in theoryit is
clear that the general silence over the matter of attribution itself a significant process in
the doctrinal construction of the schools bespeaks the significant weight of the juristic
community that found this attribution permissible.118

34

This process of authority construction was essential if the madhhab was to survive. In
failed schools there was no process of authority construction that would produce an
accretive doctrine and methodology and that would raise the figure of the leader to the
status of an absolute mujtahid.119
But these were early jurists. Maybe Pashas typology was how the situation stood after
the gates closed? This is also incorrect. To see this, we can look at a typology written by
Murtada Mutahhari published by al-Islam.120 Mutahhari calls the top rank independent
ijtihad, and says that this rank is extinct. His next rank, however, is semi-independent
ijtihad (al-'ijtihad al-mutlaq al-muntasib), and is not extinct.121 A mujtahid of this level
may formulate his own independent legal opinions which may be different from the
legal opinions of the founder.
In Mutahharis description, the only thing that is forbidden is the formation of new
schools. Later mujtahids, however, can do whatever they like, including disagreeing with
the school founders, as long as they dont start their own school. What this means is the
gates of ijtihad are open. The only closed door is to not forming your own school of law.
This same door is closed in the US. Do you see any new systems of law forming in the
US since the formation of the country?
Other contemporary scholars confirm the fact that the levels of ijtihad that are still open,
whether it is called semi-independent ijtihad or ijtihad within the school, allow for all the
freedom necessary in a legal system. In describing mujtahidun within the school,
Kamali states that:
It is observed that although these ulama all followed the doctrines of their respective
schools, nevertheless they did not consider themselves bound to follow their masters in
the implementation of the general principles or in arguments concerning particular
issues. This is borne out by the fact that they have held opinions that were opposed to
those of their leading Imams.122

Similarly, Murad describes the level of mujtahid fil-madhhab, as a scholar who remains
broadly convinced of the doctrines of his school, but is qualified to differ from received
opinion within it.123
The mujtahid within a madhhab is bound by the methods of the school, not the
conclusions:
The mudjtahid by a school of jurisprudence (bil-madhhab), or the mudjtahid affiliated
(muntasib) to a school of jurisprudence, as he is also called, is the mudjtahid who is
bound by the methods and foundations but not by the ramifications of a certain school of
jurisprudence. For example, a Hanafi jurisprudent is bound by the maxim of
interpretation that a general rule shall be presumed to be general and that any exception
to a general rule must be specifically provedThe fact that a mudjtahid by a school of

35

jurisprudence is bound only by the foundations and basic principles of the school to
which he is affiliated, gives him a great amount of freedom in forming his opinions and
makes his rank almost equal to the rank of an absolute mudjtahid.124

Mujtahid typologies all reflect the fact that the gates of ijtihad are open. Orientalists,
however, were still able to present the subject of typologies in a deceptive way in order
to make it appear otherwise. They first found a typology written by a little known
conservative jurist (Orientalist Bernard Lewis refers to Pasha as an historian, and not
a Mufti125 - also, biographers did not even bother to give any details of Pashas activity
as a Mufti126), and they then presented that typology in such a way as to make it seem
like it was the only one that ever existed. All other typologies that tell a different story
were ignored. Using Pashas conservative typology was not quite good enough,
however, because even Pasha said nothing about the closed gates of ijtihad.127 What
the Orientalists did to solve this problem was to lie, and they fabricated a story to make
it look like Pasha did say that the gates were closed.
If Orientalists are making the claim that Islam not allowing more schools to form means
the gates of ijtihad are closed, they simply are not making any sense. Normally,
Orientalists will not say this initially. They will simply make the claim that the gates of
ijtihad are closed, and then remark how this resulted in stagnation in Islamic law. No
other details are given, and the reader then assumes that jurists could do nothing but
follow earlier judgments. If they are pressed and shown that their claims are bogus,
Orientalists will then admit that what they really mean is that the top level of ijtihad is
closed, meaning that no new schools of law are allowed to form. At this point, their
argument becomes even more ridiculous, for the reasons already mentioned. In reality,
ijtihad has always existed and this includes the freedom to disagree with even the
founders of the schools. This allows as much freedom as any other system of law.
Stopping the formation of schools did not stop ijtihad:
The closing of the gate to the formation of new madhabs could only be the result of
refusal by the jurisconsults themselves to form them. There was no other authority in
Islam that could bring a new madhab into existence; and madhabs ceased to exist only
as their advocate gradually decreased in number to the point of extinction. This closing
may be said to have occurred in the fourth/tenth century with the formation of the last of
the four madhabs, But the individual jurisconsults went on practising their ijtihad, being
individually charged by Islamic law to make use of it in order to arrive at a legal opinion
when solicited for it.128
the initial discussion of the so-called closing of the gate of ijtihad (a metaphor for the
end of independent legal reasoning) came about because jurists representing the
established schools of Islamic law wanted to prevent new schools from arising. Legal
theorists argued that the ability to develop new methods of textual interpretation came to
an end after the deaths of the four eponymous founders of the Hanafi, Shafii, Maliki, and

36

Hanbali schools. This theory, however, did not mean that the ability of jurists to discover
new rules in the texts of revelation came to a complete halt.129
precedential reasoning was sufficiently flexible that jurists who were recognized as
talented were permitted to reason creatively within their madhhab and there was, in fact,
considerable evolution in the law. Indeed, substantive law in the age of taqlid continued
to develop in response to changing circumstances.130
The emergence of a personal and doctrinal madhhab by no means spelled the end of
ijtihad. Elsewhere, I have shown that the reported closure of the gate of ijtihad was no
more than a myth, to be interpreted, if taken seriously, as a closure of the possibility of
creating new schools of law in the manner the imams were said to have forged their own
madhhabs. In light of our findings in the previous chapter, the doctrine of the closure of
the gate can now be seen as an attempt to enhance and augment the constructed
authority of the founding imams, and had little to do with the realities of legal reasoning,
the jurists competence, or the modes of reproducing legal doctrine.131

There are also some Muslims who speak of the closed gates of ijtihad in the sense of
not allowing any more schools of law to form. For example, Aqa Buzurq Tehrani wrote a
paper called Ta'rikh hasr al-ijtihad in the early 20th century.132 In it, he speaks of the
closure of the gates of ijtihad in the same way Orientalists do, and he takes the
position that there should have been no such limitation on the number of schools.
Muslims can be just as thick as Orientalists. However, he brings up another point worth
mentioning. Typologies written by jurists are simply a theoretical framework, but it turns
out that reality is much more flexible than what is written in books. First, Tehrani brings
up an event that was mentioned earlier133 when he describes the closure of the gates of
ijtihad occurring in 1266 when four qadis, one from each of the present schools, were
appointed in Egypt. (Tehrani says that al-Fuwati has a different version of this story
occurring in 1247). Tehrani, however, points out that after the occurrence there were
mujtahids who were of the highest degree despite the closure (more on this later).
Tamyiyyahs views, for example, do not accord with the views of any of the four
madhahib and indicate his independent approach. (Tehrani is not the only one who
considers Tamyiyyah as an independent mujtahid: Ibn Tamiyya is normally considered
a mujtahid mutlaq by his contemporaries and later scholars, even those who were
critical of his doctrines.134)
Tehrani continues:
Similarly, many eminent scholars who have lived throughout these centuries down to
our own times did not submit to the restriction on the madhahib and did not believe that
any Islamic precept made it obligatory upon all Muslims to follow one of the four Imams
or made it unlawful for them to go beyond their rulings in matters of ahkam, which
cannot be known except through inference from the Qur'an and the Sunnah. That is

37

because none of the sources of Islamic law, i.e. the Qur'an, the Sunnah, consensus
(ijma') and reason ('aql), proves this restriction.

Regardless of the practical necessity of limiting the number of schools, and the fact that
this restriction was generally observed, individuals can reach the top level of ijtihad
anyway. These top jurists can have completely independent views, but they do not go
so far as to claim to have their own school of law. Not even the arrogant Suyuti went so
far as to claim such a thing. In reality, divergent views are simply absorbed into the
existing schools.
Mufti M. Mukarram Ahmed also brings up the theory vs. reality issue regarding ijtihad in
his 25 volume Encyclopedia. After first describing the same issue of the closing of the
gates of ijtihad in Egypt with the appointment of the four qadis 135, he says that if we
focus less on the state and the official proclamations of its ulema and more on the lived
reality of Muslims, we see a different situation with ijtihad.136 He then explains:
From one perspective of application of Law, the concept of there being closed gates of
ijtihad is indeed odd. By relying on stultifying descriptions of a static legal discourse,
Western scholars have missed the actual function of Islam in communities..but putting
aside the received histories and the powerfully argued al-Risalah of the founding father
Imam Shafii, and concentrating on the actual case by case debates, I was able to reevaluate the history. It did take me a while to determine why that conventional
description was so jarring; it is because the phenomenon being described is two-fold, but
the description is one-sided. As Vogel pointed out, Western studies of Islam often
omitted the laws applicationIslamic law has two sides. There is the fiqh, which is the
superstructure of interpretation erected on the revealed text. This superstructure sorts
and classifies the determinative properties (ahkam, singular hukm) of the revealed text
into categories such as lawful/unlawful; obligatory, recommended, neutral, disliked, and
forbidden; generally addressed and specifically addressed, abrogated and abrogating;
and so on. And then there is qada, the settling of affairs The fiqh and qada are two
separate activities. Ijtihad is done everywhere and always, despite talk of its closed
gatesThere are two sides to Islamic law, and there are two types of ijtihad; there is the
ijtihad of the fiqh, which has been severely restricted, and there is the ijtihad of the qada,
which is constant in practice (at least in healthy communities).137

Once again, reality is different from what is in the books. Muftis always had the freedom
to ignore established doctrine. Ibn Rushd (d. 1198) said that some students were
misled in believing that the mufti is not entitled to diverge from the established doctrine
of the school, and that it has been the common understanding of the community of
jurists that the mufti may choose not to follow a doctrine if he thinks that it does not rest
on sound grounds. Consequently, Ibn Rushd felt free to challenge a legal doctrine
that was not only unquestioned in his school but also had no competing counterpart
and his actions showed that even highly regarded doctrines, defended by the most

38

eminent jurists (e.g., Malik, Ibn al-Qasim, Ibn al-Hajj), can be questioned and set
aside.138
Vogel reiterates this in an article (the Vogel article Ahmed refers to above). First, Vogel
brings up the same issue regarding the closing of the gates:
Restrictions on ijtihad were adopted when the ulama, knowing that their theory of law
caused practical problems in actual legal systems, made the concessions necessary to
ensure that their fiqh would survive and could compete successfully against contending
principles in the legal system, chiefly siyasah.139 Thus closing of the door was one piece
in a complex mechanism of ulema doctrines and institutions designed to protect and
advance, in competition mainly with the ruler, their vision of law and legitimacy.140

Vogel then talks about theory vs. reality:

This hypothesis can explain a paradox noted by Hallaq. He observes the oddity that
scholars should declare ijtihad nonexistent, while they at the very same time acclaim
certain fuqaha of their own age as mujtahids, exercising ijtihad. The explanation for this
paradox lies in the link between the closing of the door and the day-to-day operation of
the legal system: the doctrine was intended to constrain rank-and-file qadis and muftis,
not the elite. Elite scholars, who possessed the capabilities and the courage to exercise
ijtihad as well as the prestige to make it stick, could breach the barrier.141

It was necessary to proclaim that there were to be no new schools as a matter of written
theory to prevent any dimwit from starting his own school and causing disunity within
Islam. But for the ulema themselves, it is certainly possible to operate at any level that a
persons knowledge and reputation would allow.
Even present day jurists continue to have opinions that are not in line with traditional
views. For example, Shaykh Bin Baz, the Grand Mufti of Saudi Arabia in the 1990s, had
opinions that were in opposition to the views that have been routinely applied by the
courts in the Sunni Muslim world, and in Saudi Arabia, for hundreds of years. 142
It is not only top scholars that operate at the top levels if ijtihad in the world of actual
case law. For example, al-Ramli (d. 1671) stated that if there was no existing solution
for a specific case that even a simple mufti or qadi was free to extract the law from the
Quran and the Sunna just as the founding Imams did. In this way, even a qadi might
qualify as a small-scale mujtahid mutlaq or independent mujtahid.143 Powers describes
an example of this. On 5 January 1423, an imperial decree was issued by the Sultan
charging the qadi with the task of resolving a dispute. Qadi = Abu al-Fadl Abd al-Aziz b.
Abi Jamaa al-Tujibi. Powers was unable to identify this qadi, because he was a
complete unknown.
the decree concluded with a request that the qadi address himself to this [deed] in the

39

manner of the distinguished qadis who are his models, and exercise his independent
reasoning (ijtihad) regarding it in the manner of those Muslim scholars who possess
insight and discernment.144

The average qadi did not need to be given a grant of ijtihad by the Sultan in order to
contribute to the growth of Islamic law. The qadis daily activity of issuing fatwas served
that purpose. Hallaq shows that massive evidence in our sources to indicate that
fatwas played a considerable role in the growth and gradual change of Islamic
substantive law.145
Under specific circumstances, then, even an unknown qadi could use ijtihad.
Also, muqallid jurists who understood the legal principles underlying earlier decisions
could develop laws that seemed different from those laid down by the earlier mujtahids
by finding that the earlier mujtahid would himself have abandoned his earlier ruling if he
were still alive.146
It is quite clear that reality was much more fluid that the textbooks.
Having mentioned typologies, we can now return to the issue of Suyuti and his claims to
ijtihad and being a mujtahid. Kazem Beg said that Suyutis claim of being a first-degree
mujtahid was rejected by the ulema. Remember that in Kazem Begs (which is Pashas)
typology, a first-degree mujtahid is one who can start his own school of law. Suyuti,
however, never claimed to operate at this level, as is explained by G.F. Haddad:
It is questionable whether Imam al-Suyuti actually meant he was a mujtahid mutlaq
although he did claim being qualified to be one: I did not mean by this that I was similar
to one of the Four Imams, but only that I was a School-affiliated mujtahid (mujtahid
muntasib). For, when I reached the level of tarjih or distinguishing the best fatwa inside
the school, I did not contravene al-Nawawi's tarjih. And when I reached the level of
ijtihad mutlaq, I did not contravene al-Shafii's school.147

Suyuti did claim to be a mujtahid mutlaq, but what he meant by this term was different
from how some other jurists used it. To illustrate this, lets look at al-Nawawis typology.
In his typology, a type 1 mufti was completely independent, and his type 2 was almost at
the same level:
This mufti [type 2] does not submit (taqlid) to his imam either in madhhab or in proofs,
because he has the quality of independence. He is linked to him only because he follows
the imams method of ijtihad.148

Nawawis type 2 level is independent of the founding imam, but is still not a fully
independent mufti in terms of having his own school of law. Calder explains that the
term mujtahid mutlaq was used by al-Suyuti to designate al-Nawawis Type 2 mufti.149

40

Although Suyuti never claimed to have or want his own school of law, he was still
independent of his imam and was a very high-level mujtahid. As mentioned above, his
genius was not recognized by his contemporaries due to his personality, but it is
certainly recognized now. Calder himself recognizes Suyutis claim:
I would be inclined to recognize the justice of al-Suyuti's claim to Type 2 status in so far
as he issued a series of important fatwas which dealt with certain practices characteristic
of the piety of the mystic orders, having the effect of integrating them into normative
Islam. Because many of these were not previously embedded in the structures of fiqh,
and because the structures of fiqh did not contain a pre-formed framework for their
solutions, it is possible to acknowledge that he was acting, not independently, since he
did not claim Type 1 status, but with a remarkable degree of creative independence.150

In the following quote, Suyuti explains his claims to ijtihad and reveals his typology of
mujtahids (as paraphrased by Sartain):
There are two different types of mujtahid. Very briefly, the two main kinds are the
mujtahid mutlaq, or unrestricted mujtahid, who fulfils the duty of ijtihad on behalf of the
Muslim community, and the mujtahid muqayyad, or restricted mujtahid, who does not
fulfil the necessary requirements, though both can pronounce fatwas. There is a belief
prevalent in al-Suyutis time that the unrestricted mujtahid is no longer found, and only
the restricted mujtahid exists. This belief is incorrect, and results from the confusion of
the unrestricted mujtahid with the independent mujtahid (mujtahid mustaqill). It is this last
kind which has disappeared, and is indeed no longer permissible. The independent
mujtahid is one who constructs his own legal system on principles of law which are
different from the principles of the four established schools of law (madhahib, sing.
madhhab), and he does not follow anyone else. This type of ijtihad is no longer possible.
On the other hand, the unrestricted mujtahid who is not independent but is affiliated to
one of the four schools of law (mujtahid mutlaq muntasib), does exist, and he has the
same qualifications as the independent mujtahid, but he does not originate principles. He
follows the method of one of the four imams in his ijtihad, and deduces his own legal
decisions without necessarily accepting the proofs or conclusions of that imam. The
restricted mujtahid, who by virtue of his inferior qualifications is naturally also affiliated to
one of the four schools of law (mujtahid muqayyad muntasib), has to take his decisions
from the texts of his imam, instead of directly from the sources of law, which are the
Quran and the sunnah.151

Suyutis top level, which allows the formation of your own school, is extinct, and he did
not claim to be at this level. He claimed to be a mujtahid mutlaq muntasib. This level of
mujtahid has the same qualifications as an independent mujtahid, and can deduce his
own decisions. He can disagree with the proofs or decisions of the imam of his school.
Unlike restricted mujtahids, a mujtahid mutlaq, which still exists, can derive his
decisions directly from the Quran and sunnah.

41

As mentioned in note 150, Suyuti assembled a whole battery of quotations to illustrate

his points, including his views on ijtihad. The quotations he gives are mainly from
orthodox Sunni jurists, showing that what he said was the mainstream view. The
following quotation from Sartain discusses this. First, he describes the standard
Orientalist view of the closing of the gates of ijtihad in a way similar to Mr. Spencer,
which was the common viewpoint in 1975. He then says:
I believe that this viewpoint needs some modification. It can be seen from the
authorities quoted by al-Suyuti in his al-Radd ala man akhlada ila l-ard, that many
scholars disagreed with the view that the gates of ijtihad were closed, and it should be
stressed that, while al-Suyuti does indeed quote from some of the more unorthodox
authors such as Ibn Hazm, Ibn Taymiyyah, and Ibn Qayyim al-Jawziyyah, nevertheless
the majority of his sources are orthodox Shafiite authorities, like Imam al-Haramayn, alGhazali, al-Rafii, al-Nawawi, and Fakhr al-din al-Razi, to name only a few. We find
therefore that al-Suyutis contention that ijtihad is always necessary has a strong basis in
Shafiite legal works; he did not have to go to obscure or unorthodox authors to prove his
point.152

To reiterate, Kazem Beg was wrong. Suyuti never claimed to have or want his own
school of law, and Suyuti was a high-level mujtahid. In addition, mainstream,

orthodox Sunni scholars disagreed with the view that the gates of
ijtihad were closed.
Back to Muslim Canada
To refresh the readers memory, this section is a response to a quote given by Mr.
Spencer from a Muslim Canada website, which we found was actually from an Oriental
source. In response to my analysis, maybe Mr. Spencer would say something like:
It doesnt matter that the quote is not material from Muslims, and it does not matter
that original source is full of deceptions, lies, errors, and fabrications what matters is
that a Muslim quoted it. If a Muslim quotes something, it must be their belief, even if it is
a bunch of lies.
This type of reasoning is also fruitless. In an effort to give as much background
information as possible for beginning readers, Muslim Canada quotes all types of
material from all types of sources.153 Muslim Canada posted the link to an old Orientalist
book because it contains some general information. So what. It is convenient to do this
with old books because copyright laws are not an issue, and the entire text can be
printed on the web. In addition, posting a link to something does not mean that every
sentence contained within that link is the official stance of all Islam. The link that Muslim
Canada gave regarding ijtihad was not in response to any question regarding the gates
of ijtihad, and the link was not intended to give any specific material regarding this

42

issue. If we want to find Muslim Canadas actual position on ijtihad, or any other issue,
we can look at the writings of Syed Mumtaz Ali, who is Muslim Canadas founder. In an
interview with Ali posted on the Muslim Canada website, the subject of ijtihad was
brought up by Ali in response to the following question:
And what interpretation of Sharia will you apply here [in Canada]? ... Nigerian?
Afghani ... say of the Taliban? ... Saudi or Pakistani?

Here was his reply:

Each of those countries adopts, adjusts, modifies the Sharia provisionswhich suit the
peculiar circumstances of that country. So the interpretation Nigeria considers consistent
with their own peculiar circumstances may not be suitable to Afghanistan, under a
certain regime, or to Saudi Arabia, Iran or Pakistan. Therefore different countries adopt
or interpret it in different ways, and they are all permissible ijtihad.154

Ali describes adjusting and modifying the Sharia in different ways in different countries
as permissible ijtihad. Does this sound like he thinks the gates of ijtihad are closed?
Spencer is very concerned with the issue of jihad, and it is in connection with this issue
that Mr. Spencer discusses the issue of ijtihad. So lets look at Syed Mumtaz Alis
opinions regarding jihad as well. Here is a quote from a paper by Marmaduke Pickthall,
which is referenced by Muslim Canada:
Wars which fall under the heading of jihad can be fought only in self-defence, for the
protection of the weak who are oppressed and the redress of wrongs. Non-combatants
must not be harmed, priests and religious institutions must be respected, crops must not
be laid waste, fruit bearing trees must not be cut downThe Muslims are those who
always fight in the way of Allah (as it is called in the Qur'an), that is, in self-defence or
for the protection of the weak and oppressed or for the redress of wrongs. To wage
aggressive war on people, simply on account of their religious opinions, is not allowed
nor can the term 'jihad' by any means be stretched to cloak such warfare. Jihad is
striving in the way of Allah, and the way of Allah, if we must seek a modern phrase to
express it, is devotion to the cause of human progress. It is only when a nation or
community does grievous wrong to Muslims, attempting to terminate or enslave them,
and extinguish truth by force of arms, that war against them is a duty for all Muslims.155
(Bold in original)

Here is another paper referenced by Muslim Canada, which gives Islams viewpoint on
terrorism, as printed in the Muslim World League Journal:
In Islam, Jihad is ordained to uphold right, repel injustice and establish justice, peace,
security and clemency, with which the Prophet (peace be on him) was sent to take
mankind out of darkness into light. More specifically, Jihad has been ordained to
eliminate all forms of terrorism, and to defend the homeland against occupation, plunder

43

and colonialism. Jihad is waged against those who support others in driving out people
out of their homes, as well as against those who are in breach of their covenants. Jihad
is meant to avoid tempting away Muslims from their faith or restricting their freedom to
conduct peaceful propagation of their religion.156

Lets also look at Syed Mumtaz Alis opinions about jihad through his own writings. In
one paper, he says:
Generally speaking, war is forbidden in Islam. Period. However defensive wars may be
permissible under Islamic lawThese may be referred to as jihadThe right of selfdefence, in western public international law, is very similar to the public international law
of Islam. It has been nicely expressed by Michael Mandel (a professor of law at
Osgoode Hall Law School - York University, Toronto). He is a specialist in international
criminal law. He says, The right of self-defence in international law is like the right of
self-defence in our own law: It allows you to defend yourself when the law is not around,
but it does not allow you to take the law into your own hands. It follows, therefore that
the Taliban government of Afghanistan, now under attack, has the right of self-defence
so long as the U.S. aggression continues. But once the aggression stops, the
Afghanistan government, whether run by the Taliban or not, does not have the legal right
to retaliate against the attackers or aggressors. Just like the attack on Afghanistan is
motivated by vengeance and the desire to show self-righteous American strength and
prowess, any Afghan retaliation (commenced after the American offensive ceases)
against the U.S. or other allied nations would also be attributed to similar unlawful
motives. As such, it would be a crime against humanity and NOT a jihad
sanctioned by the Shari'ah.157 (Bold and italics in original)

In another paper, he states:

To establish liberty of conscience in the world was one of the aims and objectives of the
Prophet Muhammad. Therefore the concept of 'holy war' in Islam cannot be employed
for the purpose of imposing Islam on non-Muslims or compelling anyone to become
Muslim. The spirit of Jihad is one of sacrifice to ensure that the word of God and the
practices entailed by that word are not extinguished and, therefore, are available for
those who wish to follow the Divine Word and concomitant practices. Waging war for any
other reason is illegal. There is absolutely no question of waging war in order to compel
people to embrace Islam. This would be an unholy war.158

All of these writings on jihad are very different from how it is portrayed by Mr. Spencer.
How can they be so different? If the gates of ijtihad are closed and interpretations
have not changed for a thousand years, shouldnt they be the same?

Third Spencer proof

In the third proof from Mr. Spencer, he uses a quote from Murtada Mutahhari to show
that the gates of ijtiad were closed. Mutahhari was a top Islamic scholar, and anything

44

he says must be taken very seriously. So how do I account for the fact that he says the
gates are closed? First, lets look at the quote:
The right of ijtihad did not last for long among the Sunnis. Perhaps the cause of this was
the difficulty which occurred in practice: for if such a right were to continue [for any great
length of time], especially if ta`awwul and the precedence of something over the texts
were to be permitted, and everyone were permitted to change or interpret according to
his own opinion, nothing would remain of the way of Islam (din al islam). Perhaps it is for
this reason that the right of independent ijtihad was gradually withdrawn, and the view of
the Sunni `ulama became that they instructed people to practice taqlid of only the four
mujtahids, the four famous Imams - Abu Hanifa [d.150/767], al Shafi`i; [d.204/820], Malik
b. Anas [d.179/795] and Ahmad b. Hanbal [d.241/855] - and forbade people to follow
anyone apart from these four persons. This measure was first taken in Egypt in the
seventh hijri century, and then taken up in the rest of the lands of Islam.

It is understandable that this quote is deceptive for those who are ignorant of the
subject, but Mutahhari is saying nothing that has not been said already in this paper,
and he is not saying that the gates of ijtihad are closed. Mutahharis paper (along with
another one quoted below) are in reality solid support for the gates of ijtihad never
having been closed. In order to better understand what Mutahhari is saying, one must
read his entire paper. (I know this sounds hard, but give it a try). In the quoted
paragraph, Mutahhari is talking about independent ijtihad, which is why he used the
term independent ijtihad. If you look at the title of the section this quote comes from,
you will see that it is called: The kind of ijtihad which is forbidden by the shari'a. The
kind of ijtihad Mutahhari is talking about in this entire section is ijtihad al-ray. Mutahhari
defines ijtihad al-ray as follows: when the mujtahid passes a judgment which is not in
the Book (the Qur'an) or the Sunna, according to his own thought and his own opinion.
We discussed ijtihad al-ray above, saying that it is impossible to have a legal system in
which the law can be derived by anyone by simply using his own judgment or opinion.
This was the type of ijtihad that originally existed (at the time of the original four
eponyms), and this type of ijtihad led to the formation of hundreds of schools of law.
When Mutahhari says that the right of independent ijtihad was gradually withdrawn, he

is speaking of independent ijtihad, or the ijtihad al-ray that he was speaking about
in the entire section titled: The kind of ijtihad which is forbidden by the shari'a. In Mr.
Spencers quote, Mutahhari says that this type of ijtihad ended. Yes, I know. We
discussed this and the reasons for it, and Mutahhari reiterates the reason when he says
that if such a right were to continue [for any great length of time]and everyone were
permitted to change or interpret according to his own opinion, nothing would remain of
the way of Islam. This is exactly what we said before: i.e., it would end Islam.
Mutahhari says that this event happened in Egypt in the seventh hijri century, which

45

was the event we already discussed which happened in 1266 (according to Tehrani - or
1247 according to Fuwati).
Immediately after Mr. Spencers quote, the paper continues with a section titled Ijtihad
permitted by the shari'a. This permitted ijtihad is the ijtihad that continued throughout
the centuries for both Sunnis and Shiites, which is defined by Mutahhari as the
maximum employment of effort and exertion in deducing the rulings of the shari`a from
the valid proofs. This type of ijtihad never ended for any Muslim. Mr. Spencer concedes
that the gates of ijtihad never closed for Shiites. The gates of ijtihad that Mutahhari
says closed for the Sunnis, however, were never allowed for the Shiites to begin with.
The first section in Mutahharis paper is titled, The kind of ijtihad which is forbidden by
the shari'a. This was independent ijtihad, or ijtihad al-ray. Mutahhari explains that
Shiites never allowed this type of ijtihad, because according to Shi`i Islam, this kind of
ijtihad is forbidden. The Sunnis, however, did allow this type of ijtihad for the first few
centuries, and because of the difficulties it caused in the real world, they eventually
closed the doors to this type of ijtihad. From that point on, regular ijtihad was allowed
by both Sunnis and Shiites, which Mutahhari calls Ijtihad permitted by the shari'a.
Once again, the gates of ijtihad that Mutahhari says closed for the

Sunnis was never allowed for the Shiites to begin with. Sunnis
closed the door on the type of ijtihad that Shiites NEVER ALLOWED
TO BEGIN WITH. The type of ijtihad allowed by both Sunnis and Shiites that
continued on through the centuries was what Mutahhari defined as the maximum
employment of effort and exertion in deducing the rulings of the shari`a from the valid
proofs. So why do Orientalist say that the gates of ijtihad closed for Sunnis and not for
Shiites? Because they are imbeciles.
Mutahhari explains all this more clearly and in more detail in a different article available
on the same website as the one Mr. Spencer quotes from. 159 Here is a paragraph from
that article which is similar to the one Mr. Spencer quotes:
The emergence of this class of jurists did not require any special conditions.
Occasionally, social conditions demanded that one prominent individual should be
recognized by the people and followed in religious precepts. Gradually, this resulted in
the emergence of diverse legal approaches and schools, which in turn were preserved
and perpetuated by the pupils of the originator after his death. In this way, various legal
schools and sects emerged amongst the Sunnis, the most famous of them being the
Hanafi, the Shafi'i, the Maliki, the Hanbali and the Zahiri schools. Of course, the founders
of these schools were not the only early jurists and mujtahidun that were there. There
were others who held their own legal opinions and were not followers of anyone.
However, this independence gradually disappeared after the fourth/tenth century and no
independent mujtahid emerged after this time in the Sunni tradition. Apparently, the last
person to have been an independent mujtahid with his own independent approach in

46

legal issues was the well-known historian and exegete Muhammad ibn Jarir al-Tabari (d.
310/922), who although famous for his work on history, is considered a Sunni faqih of
the first rank.

Tabari had his own school! Wow! Lets tell Kazem Beg!
Here again Mutahhari reiterates how independent ijtihad disappeared, and that this
means that no more schools were allowed. Later in the same paper, he again talks
about the final crystallization of the four schools:
However, there was a gradual rise in the followers of the four imams, for, according to
al-Maqfizi in al-Khitat, al-Malik al-Zahir, the ruler of Egypt, officially declared in the year
665/1257 that except the four schools - Shafi'i Maliki, Hanafi and Hanbali - other schools
had no official recognition and that no judge had the right to give judgement except on
the basis of the four schools.

Tabari gives the date of this event as 1266, Fuwati gives 1247, and Mutahhari says
1257. Close enough. In this paper, Mutahhari also gives the reason for the
disappearance of independent ijtihad, as he did in the previous paper. He quotes Shah
Wali Allah saying that closure of the door of independent ijtihad happened in order to
safeguard Islam and protect the religion from disintegration. In other words, if this
closure did not happen, it would have ended Islam.
Immediately after explaining how independent ijtihad had disappeared, Mutahhari
explains what this means:
The later Sunni mujtahids were either al-mujtahid al-mutlaq al-muntasib or mujtahid alfatwa (also occasionally known as mujtahid al-madhhab). 'Al-mujtahid al-mutlaq almuntasib' means a mujtahid who is attached to one of the well-known schools and
follows the juristic approach of its founder but in deducing legal rules, on the basis of the
school's juristic principles, he may formulate his own independent legal opinions which
may be different from the legal opinions of the founder. For instance, while being a
Shafi'i or a Hanafi in jurisprudence, he may differ with al-Shafi'is or Abu Hanifah's
express fatwas in legal matters. A number of eminent Sunni jurists are considered to
belong to this class, such as: Imam al-Haramayn al-Juwaym, Abu Hamid Muhammad alGhazali, Ibn al-Sabbagh, and others.
Mujtahid al-madhhab' or 'mujtahid al-fatwa' is someone who follows the founder of the
school in all matters in which the founder has expressly given his views. However in
issues in which he does find an opinion of the founder, he may exercise his own Ijtihad
and give fatwa .
Accordingly, Ijtihad is of three kinds: independent Ijtihad, semi-independent Ijtihad
(al-'ijtihad al-mutlaq al-muntasib), and Ijtihad within the framework of the juristic and legal
positions of a school (Ijtihad al-fatwa).This brief description shows that when we talk of

47

the closure of the door of Ijtihad in the Sunni tradition, we refer to the Ijtihad of the first
kind, i.e. independent ijtihad. As to the second kind (al-Ijtihad al-mutlaq al-muntasib) and
the third kind (ijtihad al-madhhab), their doors have remained open.

Mujtahhari explains how independent ijtihad had disappeared, as we discussed. As for

the next level, which is al-ijtihad al-mutlaq al-muntasib, Mutahhari says that their

doors have remained open. A mujtahid of this level:

is attached to one of the well-known schools and follows the juristic approach of its
founder but in deducing legal rules, on the basis of the school's juristic principles, he
may formulate his own independent legal opinions which may be different from the legal
opinions of the founder.

The ijtihad whose doors are still open (which, again, is the same ijtihad practiced by
Shiites) allows the mujtahid to deduce his own legal rules and formulate his own legal
opinions. He only follows the approach of the founding imam. This is very similar to
what is said by Salah, Suyuti, and Nawawi above; and what is explained by Murad,
Omar, and Kamali. Ibn Salahs (d. 1245) typology gave the highest level to the four
original eponyms, but the next level was still attainable, and was equal to the top level in
every way. Suyuti said that a mujtahid of this level follows the method of one of the four
imams in his ijtihad, and deduces his own legal decisions without necessarily accepting
the proofs or conclusions of that imam. Nawawi says a mujtahid of this level does not
submit (taqlid) to his imam either in madhhab or in proofs, because he has the quality of
independence. He is linked to him only because he follows the imams method of
ijtihad. Murad says that a mujtahid of this level is a scholar who remains broadly
convinced of the doctrines of his school, but is qualified to differ from received opinion
within it. Omar says that a mujtahid of this level is bound by the methods and
foundations but not by the ramifications of a certain school of jurisprudenceThe fact
that a mudjtahid by a school of jurisprudence is bound only by the foundations and
basic principles of the school to which he is affiliated, gives him a great amount of
freedom in forming his opinions and makes his rank almost equal to the rank of an
absolute mudjtahid.Kamali says that a mujtahid of this level did not consider
themselves bound to follow their masters in the implementation of the general principles
or in arguments concerning particular issues. This is borne out by the fact that they
have held opinions that were opposed to those of their leading Imams.
Do you see the pattern? Heres yet another example from the web explaining the
meaning of mujtahid al-muntasib:
The Mujtahid al-Muntasib is in fact similar to the Mujtahid al-Mutlaq, in that he takes
from the sources such as the Qur'an and the Sunnah, except he does not reach the step
of complete independance in having own usul. He rather makes ahkam upon the usul of
an Imam of the A'immah mentioned above, i.e. the independent Mujtahidin such as Abu

48

Hanifah, Malik, al-Shafi'i and Ahmad to name the famous four examples. Ibn al-Salah
says that he is not a muqallid of his Imam, not in madhhab (i.e. doctrine or jurisprudential
opinion) nor in his dalil, because of his feature of being independant in a major way. He
is simply affiliated to him because of his reliance on the imam's way of ijtihad; he may
agree with him, or disagree, with respect to his ijtihad; agreement with him results
because of his agreeing with his ideas, not because of taqlid; disagreement likewise, a
result of making tarjih and weighing evidences and performing istinbat.160 (underline in
original)

Once again, the only door that is closed is to not forming new schools of law. This same
door is closed in every society and country in the world. The level of ijtihad that is still
attainable allows for as much change as any other system of law. A mujtahid can say
whatever he wants, can disagree with his imam, and can derive his own laws from the
Quran and Sunnah. Mutahhari simply confirms this.161
In addition, there is the theory vs. reality issue regarding independent ijtihad.
Independent ijtihad was forbidden in theory because it would lead to the formation of
new schools and would therefore have ended Islam. However, ijtihad that did amount
to independent ijtihad did still occur in practice, but rather than leading to new schools it
was simply absorbed into the doctrine of the existing schools:
From this point on, ijtihad, however creative it might have been, was performed within at
least a nominal school structure. In other words, even though a jurists activity may have
amounted to so-called independent ijtihad, the activity was deemed to fall within the
hermeneutical contours of the school, just as the outcome of this sort of ijtihad was said
to be a contribution to the schools substantive doctrine.162

Fourth Spencer proof

In order to introduce the subject of mujtahid qualifications, we will discuss another of Mr.
Spencers references which he claims demonstrates that the gates of ijtihad are
closed. His quote of Cyril Glasse is the following:
...Therefore it is said that the door of ijtihad is closed as of some nine hundred years,
and since then the tendency of jurisprudence (fiqh) has been to produce only
commentaries upon commentaries and marginalia.163

Before dealing with the quote, lets first find out who Cyril Glasse is. Mr. Spencer
repeatedly refers to Glasse as an Islamic scholar. 164 But what does Mr. Spencer mean
when he calls someone a scholar? The only information Mr. Spencer gives about Mr.
Glasse is the following short bio:
Cyril Glasse is a graduate of Columbia University and a practicing Muslim. His
published work includes a translation of Margaret Von Berchen's study of Islamic

49

Jerusalem, a Guide to Saudi Arabia (Berlitz, 1981) and The Pilgrim's Guide to Mecca
written for the Hajj Research Centre, King Abdul Aziz University, Jeddah.165

This is word for word from the back cover of Mr. Glasss encyclopedia, which Mr.
Spencer does not cite.166 Mr. Spencer used this info from the back cover because it is
very difficult to find any information whatsoever on Mr. Glasse. A search of the scholarly
literature shows that he has never appeared as an author in a journal article anywhere,
which is quite strange for a scholar. It is also very difficult to find information about him
on the web, other than a short biography of him an Amazon. 167
The following is a short timeline of Mr. Glasss life as it relates to possible qualifications
as an Islamic scholar: He graduated from Columbia University in 1967 with a BA in
Russian.168 Upon graduation (at draft age during the Vietnam war), he joined the Peace
Corps and went to Morocco, where he converted to Islam. From 1972-1978 he lived in
Switzerland, where his Amazon bio says he was an editor of an international journal. It
turns out that this international journal was not associated with Islamic Studies, but was
actually World Scouting magazine, the magazine of the International Boy Scouts. In
1981, he returned to the US and started writing his encyclopedia, which was published
in 1989. It was not until 1991, two years after the encyclopedia was published, that he
was awarded a masters degree in Islamic Studies from Columbia. He never received a
PhD. The back cover of the encyclopedia mentions two other published works. He
either wrote or translated The Berlitz Guide to Saudi Arabia in 1981,169 and he was the
editor of A Pilgrim's Guide to Mecca for the Hajj Research Center of King Abd al-'Aziz
University in Jeddah. The first is a travel guide, and the second is unavailable
anywhere, but sounds like a travel guide as well. I have to admit that I learned a lot
reading the Berlitz travel guide. For example: in Saudi Arabia, sweetmeats are always
kept ready for the unexpected guest, camels can go for days without water, and at the
beach at Ash Shuqayq, you are likely to see herons, pelicans and flamingoes. 170 This
is all fantastically interesting information, but does not qualify Mr. Glasse as an Islamic
scholar. Other than his encyclopedia, he has never written another book or article on
anything related to Islam or Islamic Law.
I am not sure what Mr. Spencers criteria is for considering someone an Islamic
scholar, but Mr. Glasse does not meet mine. He wrote a travel guide (possibly just
translated it), and edited another one that may be no more than a pamphlet. He also
edited a Boy Scout magazine. He did get a masters degree in Islamic Studies, but that
was after he wrote his encyclopedia (similar to Mr. Sell above). The only degree he had
at the time he wrote his encyclopedia was a Bachelors degree in Russian. When I think
Islamic scholar, I think of several books that are published by University publishers
along with dozens of journal articles. I think of a PhD in the appropriate field and a
lifetime of research, usually as a professor.

50

Living in the Middle East for 8 years in order to dodge the draft, along with writing (or
translating) a tour guide, does not make you an expert on Islamic law. If it does, he is
even more of an expert on US law. He has lived in the US for 51 years, and is a tour
guide in New York City.171 Those two things must make him one of the top scholars on
US law in the world!
It is likely the result of Mr. Glasses complete lack of an education regarding Islamic
Studies at the time he wrote his encyclopedia that it ended up getting the type of
reviews it did within scholarly publications. Here is an excerpt from one review:
The publication of a book such as this, no matter how well intentioned, says all too
much about the continued profound ignorance of Islam in religious studies and the
pitfalls awaiting unguided readers in this field.172

Here is another review from a different author:

This reference work on Islam, which contains fifty colored illustrations, is aimed at
readers with no knowledge of the religion. Its accessible format consists of some 1,300
entries, with definitions ranging from a single sentence to fifteen or more paragraphs.
The compiler, Cyril Glasse, is described on the book jacket as a practicing Muslim who
has lectured worldwide on comparative religion. The New Encyclopedia of Islam is a
useful resource for public libraries, high schools, and community colleges, and it would
make a good gift for Muslims to give to non-Muslim friends who have inquired about
various Islamic beliefs, customs, and practices. However, most definitions are much too
basic to satisfy those who want to undertake a serious study of Islam. Moreover,
scholars of Islam are likely to find the definitions inadequate for use in introductory
undergraduate-level courses about Islam.173

This book is written at the high school level at best.

Lets now look at the quote of Mr. Glasse that Mr. Spencer uses:
Therefore it is said that the door of ijtihad is closed as of some nine hundred years, and
since then the tendency of jurisprudence (fiqh) has been to produce only commentaries
upon commentaries and marginalia.174

In Spencers first quote covered above, the quote started with the word thus, and we
found it necessary to look at the text before the quoted passage to understand what that
word was referring to. In the same way, this quote starts with the word therefore. What
does this word refer to? Why does Mr. Glasse say that the door of ijtihad is closed?
Lets find out by looking at the previous sentence:
Although the possibility of a Mujtahid arising today is accepted in theory, the preliminary
qualifications expected of him would be tantamount to perfect knowledge of all the laws

51

expounded before him; this would surely be an insurmountable obstacle across his
path.

Mr. Glasses reason for why the gate of ijtihad is closed is very similar to that of KazemBeg and Sell. They all agree that ijtihad is theoretically allowed, but claim that the
qualifications are so difficult that no one is able to meet them. This is ridiculous, and we
will now look at the issue of mujtahid qualifications.
Abu Husayn al-Basri (d. 1044) published the earliest known account in which the
qualifications of mujtahids are stated.175 According to Basri, a mujtahid must have a
thorough knowledge of the Quran, the Sunna, and the principles of inference. He must
know the routes of hadith transmission, and the trustworthiness of the transmitters. He
must have a thorough knowledge of qiyas, which involves knowing not only the rules
contained in the Quran and Sunna, but also the illa (efficient cause) of these rulings. In
order to understand the efficient cause while avoiding inner contradictions, knowledge
of metaphors, particularization, and abrogation was also needed. He must by familiar
with Arabic and with customary law, and he must be acquainted with Gods attributes
and with the doctrine of the infallibility of the Muslim community. Finally, he must know
the previous rulings of his school that have been agreed to by consensus. This sounds
like a lot of work, but it is ridiculous to say that it is an unattainable goal. It sounds like a
simple PhD program. This may sound impossible for people like Mr. Glasse or Mr. Sell,
but it is not.
Shirazi (d. 1083), also stated his qualifications for the practice of ijtihad.176 In agreement
with Basri, Shirazi requires a thorough knowledge of the Quran and Sunna, but only
those parts that relate to the Sharia, meaning parts such as proverbs and tales are not
required. Shirazi also requires knowledge of Arabic and a thorough knowledge of qiyas.
He must also know where previous jurists agree and disagree. Also similar to Basri,
Shirazi requires that the methods of deducing the illa from the text be known, along with
being able to distinguish the between varieties of illa, and which are preferable. Once
again, big deal.
The requirements of Basri and Shirazi turn out to be very difficult when compared to
what was required by later jurists. Ghazali (d. 1111), for example, required that the 500
law verses be known, but memorization was not required. 177 The mujtahid needed
knowledge of Hadith, but memorization again was not required. All that was needed was
to have a copy of either Abu Dawuds or Baayhaqis collection on hand. He should also
know the previous rulings and point of consensus, but a complete knowledge of all
cases was not necessary. It was only required that any decisions made by the mujtahid
did not conflict with that of a previous jurist. He must know how the law is derived from
the texts, and he must know Arabic. The principles of the language, however, need not
be completely mastered. He should know about abrogation, but the details need not be

52

mastered. He must simply show that the hadith in question had not been abrogated.
The authenticity of the hadith in question must also be known, but again, full knowledge
of the science of hadith criticism was not required. The above requirements were for the
jurist who practiced in all areas of law. Ghazali said, however, that to practice in a single
area, one need only know the material required to solve a problem in that area. Wow.
Its getting even easier. To say this type of knowledge is unattainable is a complete joke.
The requirements of Amidi (d. 1234) were very similar to those mentioned above. 178
Amidi, however, emphasized that if a less knowledgeable mujtahid did not meet the
requirement, he was still allowed to solve cases. He just needed whatever tools were
necessary to solve the case before him.
Hallaq then goes on to comment on later jurists views on mujtahid qualifications,
including that of Baydawi (d. 1286), Subki (d. 1369), Isnawi (d. 1370), Ibn al-Humam (d.
1456), Ibn Amir al-Hajj (1474), Ansari (d. 1707), and Ibn Abd al-Shakur (d. 1810). Once
again, the requirements of all these jurists were very similar to those above. Importantly,
all these jurists said that a limited knowledge of the law was permissible, as long as the
mujtahid met the requirements that were relevant to that particular case, he could
perform ijtihad.
Here are the qualifications of a mujtahid according to Suyuti:
The qualifications of a mujtahid are considered to be a knowledge of the Quran and the
sunnah, or practise of the Prophet, at least those parts of each which are concerned with
legislation, an ability to distinguish between general and particular, a knowledge of
abrogating verses or traditions and abrogated ones, and a knowledge of the Arabic
language and of the agreements and disagreements of scholars. Qualities such as
intelligence and piety are also desired.179

Oh my God! Thats impossible!! Here is Kamali talking about mujtahid qualifications:

Some observers have suggested that the practice of ijtihad was abandoned partly
because the qualifications required for its practice were made 'so immaculate and
rigorous and were set so high that they were humanly impossible of fulfilment'. This is,
however, an implausible supposition which has been advanced mainly by the
proponents of taqlid with a view to discouraging the practice of ijtihad. As for the actual
conditions, Abdur Rahim (with many others) has aptly observed that `the qualifications
required of a mujtahid would seem to be extremely moderate, and there can be no
warrant for supposing that men of the present day are unfitted to acquire such
qualifications'. There is little evidence to prove that fulfilling the necessary conditions of
ijtihad was beyond the reach of the ulema of later periods. On the contrary, as one
observer has pointed out, `the total knowledge required on the part of the jurist enabled
many to undertake ijtihad in one area of the law or another'. Their task was further
facilitated by the legal theory, in particular the Hadith which absolved the mujtahid who

53

committed an error from the charge of sin and even entitled him to a spiritual reward.
Furthermore, the recognition in the legal theory of the divisibility of ijtihad, as we shall
presently discuss, enabled the specialist in particular areas of the Shari`ah to practice
ijtihad even if he was not equally knowledgeable in all of its other disciplines.180

Scholars recognize that these qualifications are not difficult whatsoever to attain:
Scholars continued to recite as the qualifications of the mujtahids traits that do not seem
exacting or rare.181

From the above it should be very clear that the requirements to perform ijtihad are
simply not that hard. For Glasse to say that the requirements would be tantamount to
perfect knowledge of all the laws expounded before him and would be an
insurmountable obstacle is simply ridiculous.
For fun, lets look at a quote from Glasse defition for the term jihad, which is a central
concern for JW readers:
In colonial times, when many Islamic countries were under non-Muslim domination an
anomalous condition from the point of Islamic law it was concluded that, provided
Islam was not prohibited, and indeed as long as certain of the institutions peculiar to it
were allowed to continue, holy war could not be justified. Although opportunistic calls to
jihad have been made sporadically when the interests of particular political leaders could
be advanced by such warfare, they have never received general support from the
religious authorities (ulama)In the West, jihad is often considered a strange institution.
However, it should be remembered that no-one who declares a war believes that his war
is unholy. Every country justifies its war by elevating it to a high moral level: to make
the world safe for democracy, to establish a new world order etc. Defense of owns
country is generally considered a sacred duty. The notion of jihad is no different; in the
ontext of divinely instituted laws it has its place, just as marriage does, or commerce. Or
the law of contracts.182

Does Mr. Spencer still consider Mr. Glasse an Islamic scholar after reading his definition
of Jihad? It does not seem to agree with what Mr. Spencer says about jihad.
In addition, here is what follows Mr. Spencers quote in Mr. Glasses encyclopedia entry
for ijtihad:
Nevertheless, it is also clear that ijtihad is always necessary and inevitable because of
the need to act in situations which are new or unique, or because information is lacking
or competent authorities not present. As long as an individual is responsible for himself
until the Day of Judgement, every believer finds himself in the position of Muaz, and has
to fall back upon the ijtihad of personal decision. Within the Sunni world, the decisions of
Judges in certain domains over the years represent small increments of ijtihad at the
levels of the Schools of Law.

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Mr. Glasse makes the claim that the gates of ijtihad are closed, and gives an untenable
reason. At least he qualifies his assertion with the above. He does mention that ijtihad
within the madhhab occurred, which we already have seen allows for all the growth that
is necessary in a legal system. By saying this, Mr. Glasse is merely saying, in an obtuse
way, that only independent ijtihad ceased to exist. (Why did independent ijtihad exist?
Because not doing so would have ended Islam.) Although this qualification still does
not represent reality, it makes sense that Mr. Spencer did not bother to include this in
his quote.
One other obvious question is; if the gates of ijtihad were closed, then why did jurists
throughout history repeatedly state the requirements to be a mujtahid? Why state what
the requirements for a mujtahid are if the gates of ijtihad are closed? That would be
like the US writing law after law detailing at what age a woman can be a prostitute,
where and when prostitutes can find clients, what disease testing should be done, etc.,
when prostitution itself is illegal. Would this make any sense?
Orientalists admit that Islamic theory allows for the existence of mujtahids, but claim the
qualifications are too difficult to attain, which is why the gates of ijtihad are closed. (Is
this Mr. Spencers position?) It is clear that mujtahid qualifications are not difficult at all
(maybe they seem hard to an Orientalist). The gates of ijtihad are open.

Secondary sources of Islamic law

Along with ijtihad, there are also other techniques within Islamic Law that allowed it to
remain flexible over time. These include istihsan, urf, and maslaha.
Istihsan
In Mr. Spencers reference, Mutahhari says that istihsan means to see, quite
independently, without taking similar cases into account, what is nearest to the truth and
to justice, and to give one's opinion according as one's inclination and intellect
approve.183
Wow. Doesnt sound that rigid to me. Makdisi explains istihsan by drawing an analogy.
In the present US system, conflicts can occur between established legal principles. If
the conflict is between a precedent and a newly enacted statute, then the new law will
be given priority over the established precedent. However, if there is a conflict between
two case precedents, then a decision is made and one precedent is overruled in favor of
the other. This technique was given the term reasoned distinction of precedent by
Henry Hart and Albert Sacks in 1958. He then compares this technique to istihsan:
Is istihsan a rational element in Islamic law? In Weberian terms, Islamic law itself is
irrational to the extent that it depends on divine sources without rational justification. The

55

provisions of the Koran and the sunna need no further justification in Islamic law than
that they are divinely revealed. Yet, on the whole, these provisions are few and, for the
most part, of a general nature. The rules of law which are derived from these sources
through reasoning by analogy and modified through istihsan, use a process which is
quite rational. Rules derived in this way compose the vast majority of rules in the corpus
juris of Islamic law. Contrary to the opinions of certain American scholars, the method of
legal reasoning in Islam is not arbitrary, discretionary or unsystematic. In the form of
istihsan, it compares very closely with the American concept of reasoned distinction of
precedent. If istihsan is to be given a translation within the context of American legal
terminology, it might be called the 'reasoned distinction of qiyas (reasoning by
analogy).184

Islamic law makes use of a very similar technique that the US does, only they did so
over a thousand years ago.
Gerber says that istihsan is another way to interpret the sources, as, for example, by
preferring one of two analogies, and that by definition, istihsan points to a change in
attitude to a legal question. He then goes a step further and says that the decision is
not made strictly by which interpretation better matches the texts of the Quran and
Sunnah, but instead is born within the felt needs of the society and then read into the
legal sources and therefore, it became a major avenue to quietly introduce innovations
that are socially desirable.185
Gerber finds that al-Ramlis use of istihsan was outside of the formal structure of Islamic
law. Ramli used the technique on purely practical grounds:
Istihsan was the major mechanism by which rules that were too far-reaching were
relaxed, although al-Ramli makes no effort to show how the relaxation is derived
logically from the law. It is done simply for the good of society.186

Here is Kamali on istihsan:

Istihsan is a method of exercising personal opinion in order to avoid any rigidity and
unfairness that might result from the literal enforcement o the existing law. Juristic
preference is a fitting description of istihsan, as it involves setting aside an established
analogy in favour of an alternative ruling that serves the ideals of justice and public
interest in a better way. Enforcing the existing law may prove to be detrimental in certain
situations, and a departure from it may be the only way of attaining a fair solution to a
particular problem. The jurist who resorts to istihsan may find the law to be either too
general or too specific and inflexible. In both cases, istihsan may offer a means of
avoiding hardship and generating a solution that is harmonious with the higher
objectives of the Shariah.187

Urf

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Libson explains that one factor that provides an impetus for change is the emergence
of customs - social, economic and other practices that develop among people at the
grass roots level and force the normative system to adapt itself. 188
In Islamic Law, these customs are called urf. Kamali defines urf as recurring practices
that are acceptable to people of sound nature, 189 which in a word is custom. Kamali
says that custom that does not contravene the principles of Sharih [sic] is valid and
authoritative; it must be observed and upheld by a court of law. 190 He then explains how
urf relates to ijtihad:
The rules of fiqh that are based in juristic opinion (ray) or in speculative analogy and
ijtihad have often been formulated in the light of prevailing custom; it is therefore
permissible to depart from them if the custom on which they were founded changes in
the course of time. The ijtihadi rules of fiqh are, for the most part, changeable with
changes of time and circumstance. To deny social change due recognition in the
determination of the rules of fiqh would amount to exposing the people to hardship,
which the Shariah forbids. Sometimes even the same mujtahid has changed his
previous ijtihad with a view to bringing it into harmony with prevailing custom. It is wellknown, for example, that Imam al-Shafii laid the foundations of his school in Iraq, but
that when he went to Egypt, he changed some of his earlier views owing to the different
customs he encountered in Egyptian society.191

Shafiis idea that the law was subject to change according to different places and times
was repeated often by Islamic scholars throughout the centuries. For example, alSamani (d. 1166) said that:
Fiqh is an ongoing science continuing with the passage of centuries and changing with
the change of circumstances and conditions of men, without end or interruption.192

Ibn Khaldun (d. 1406) stated the following:

The conditions, customs, and beliefs of peoples and nations do not indefinitely follow
the same pattern and adhere to a constant course. There is, rather, change with days
and epochs, as well as passing from one state to anothersuch is the law of God that
has taken place with regard to His subjects.193

Ibn Abidin states the same, and says that changing customs will alter the authoritative
position of a school, sometimes even that of the Quran or Sunna:
[Abidin]: And if you say: custom changes with the change of time, and when a new
custom appears, is the mufti in our time to decide according to it, against what is written
in the books of madhhab, and likewise, is the qadi now to judge by circumstantial
evidence? I said:know that the late jurists who decided against the text of the books of
the madhhab in the aforementioned questions diverged from it only because of the
change of time and customs, and [because of] their knowledge that the founder of the

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madhhab, had he lived in their time, would have said what they said. We see that Ibn
Abidin claims that the urf overpowers the books of the madhhab, but is illegal if it
counters a nass, that is, Quran, Sunna and ijma. In fact, even this latter is an ideological
position, and is considerably relaxed in less ideological contexts of discourseIbn
Abidin explicitly admits that sometimes even a Sunna of the Prophet is not considered
legally binding across the centuries.194

Hallaq also shows that urf was at times used to overrule material from the Quran and
Sunna:
Wael Hallaq sharply contests the notion that Islamic law in the Ottoman period, or any
other period for that matter, suffered from the effects of inertia. On the contrary, Hallaq
argues, change was a structural feature of the law, as amply illustrated in the Ottoman
period through the work of Ibn Abidin (1783-1836), a mufti and jurist-writer from
Damascus. Hallaq traces his development of a very original contribution to doctrine,
namely the idea that custom could serve as a source of law, even to the extent of
overriding material from the Quran and the hadith. The salient point here is that Ibn
Abidin was not a maverick thinker, but rather was entirely loyal to the hermeneutical
imperatives of the Hanafite school, which provided the methodologies and multiplicities
of opinion that allowed him to turn the ladder of doctrinal authority right on its head.195

Libson explains how urf was used often, and some even considered it a formal source
of the law:
One of the most important devices adopted was the acceptance of custom as a material
source. That is to say, Muslim jurists granted de facto recognition to certain customs by
resorting to other, legitimate, sources of lawIbn Nujaym (d. 970/1563), for example,
asserts that the frequent appeal to custom had made it an independent legal source.196

Many comparisons are made between urf and the common law tradition in the West.197
It is more accurate, however, to say that Islamic law as a whole is the origin of the
common law tradition in the West, and not Roman law, as is claimed by the
Orientalists.198
Maslaha (or istislah)
Maslaha is defined as a consideration that is proper and harmoniouswith the
objectives of the lawgiver; it secures a benefit or prevents a harm; and the Shariah
provides no indication as to its validity or otherwise. 199 In short: it is public interest.
Maslaha has been shown to be equivalent to a natural law tradition within Islamic Law:
Maslaha is defined as the salah or something that poses a good. Through adopting the
maslaha as a basis for legislation, al-Ghazali fused the empiricism of nature and the
good with a scripturally justified normativity that could serve as the foundation for

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discretion-based obligation. He based the normative value of masalih (sing. maslaha) on

the foundation of scripture and demanded a rational nexus between the maslaha and the
basic aims of the law. But once maslaha was determined to be a foundation for
generating law, the maslaha became the focal point for al-Ghazali's soft naturalism.200

An interesting example of a situation where Ghazali did not permit the use of maslaha
was in relation to torture. Ghazali admitted that torture may serve the public interest of
catching a criminal, but he said that this is outweighed by the public interest in
protecting the innocent. In Ghazalis words:
Perhaps [the alleged thief] is innocent of the infraction. Omitting physical injury on a
guilty person is less important (ahwan) than hitting the innocent. In hitting is an open
door to deterring theft, but in hitting is an opening to punishing the innocent.201

At least in respect to torture, the US system has not yet developed to the point where
Islamic Law already was nearly a thousand years ago.
With respect to these secondary sources of Islamic Law, Gerber states the following:
Islamic law was not sealed off from full-fledged innovations, which took place under the
banner of istihsan, local custom (urf), necessity (darura), and public interest (maslaha)
By means of these techniques, Islamic law remained flexible an changed over time,
while its structure remained solid and functioning.202

General gates of ijtihad comments

At this point, I will quote some authors commenting on the gates of ijtihad. Unlike
Orientalists practice of making unsubstantiated and unsourced comments about the
gates of ijtihad being closed, most of the following statements are based on the authors
research of primary sources, or at least quote relevant sources in other peoples work.
Other state the current status of knowledge in the field. There are a couple, however,
that make statements without providing references. Sue me.
Menksi remarks how,
during the 1960s, scholarship was still impressed with the image that the gates of ijtihad
were closed.

How funny! I guess he doesnt know that some people are still impressed with this idea
even today! Menski then continues:
The doors of ijtihad thus never really closed, as scholarship today recognizes.203

Mallat:

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Contrary to earlier twentieth century scholarship, recent studies have suggested that the
phenomenon known as the closing of the door of interpretation which was ascribed to
the sharia towards the tenth or eleventh century CE, is unfounded.204

Arabi:
No doubt the present conclusion rejoins recent efforts in Islamic studies to unearth the
dimension of mobility in the millenary history of Islamic law which dear and long-held
conceptions have tended to obscure from the perception of even the best scholarship.
Thus J. Schacht: But from the fourth/tenth century onwards, and until the growth of legal
modernism in the present generation, there has been no official scope for independent
new developments, and what development there has been consists, on principle, only of
interpretation and application (Joseph Schacht, An Introduction to Islamic Law [Oxford,
1962], 202). Such conceptions are put to the test and emerge as highly questionable in
the works of (among others) Wael Hallaq, Was the Gate of Ijtihad Closed, International
Journal of Middle East Studies 16 (1984): 3-41; Baber Johansen, The Islamic Law on
Land Tax and Rent (London, 1988); and Gerber, State, Society, and Law.205

Kabbani:
Though some scholars have attempted to freeze the interpretation of Islam, most
accept the view that Islamic Divine Law, or sharia, is subject to ongoing re-evaluation
according to the principles of juristic reasoning, known as ijtihad. The purpose of this
ongoing process of ijtihad is to adapt sharia to changing societal circumstances. Thus,
most Islamic scholars say that the door of ijtihad remains open.206

Arshad:
Islam allows for the use of ijtihad at all times because the door of ijtihad never closed in
theory or in practice.207

Malik:
The fact is that the gate of ijtihad was never closed.208

Codd:
Scholars writing on the subject have assumed that the right of Ijtihad fell into abeyance
after about the fourth century of the Hijra, approximately AD 900, and that the so-called
Gate of Ijtihad was closed soon afterwards resulting in the stagnation of Islamic law.
However, these views are based on misconceptions and a failure to really investigate
whether Ijtihad was abandonedthe gate of Ijtihad was neither closed in theory or in
practice.209

Oxford Encyclopedia:

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It has often been suggested that the closure of the gate amounted to a complete ban on
ijtihad, and that the Muslim jurists themselves reached a consensus to that effect. This
perception, though prevalent for nearly two centuries, has been shown by recent
scholarship to be entirely without foundation. There exists no evidence of such a closure
either in the tenth century or thereafter, and there certainly was no consensus on it.210

Safi:
As recent scholarship has shown, the gates of ijtihad have always been open.211

Amanullah:
Orientalist arguments do not stand up to counterarguments provided by opponents of
closing of the avenue of ijtihad. Moreover, the opponents to this closure are skeptical
about [not] having any text on the closing of the avenue of ijtihad. In the view of Abu allla, no text confirms the closing of the avenue of ijtihad.212

Weiss:
In fact, there was never a permanent barrier to the exercise of ijtihad, a point to which
the occasional reformer was wont to call attention. The science of usul al-fiqh is largely a
statement of the rules which govern ijtihad, of what would be called rules of
interpretation in Western jurisprudence. It would have been pointless for scholar after
scholar to devote himself to the meticulous propounding of these rules if ijtihad were
nothing but a relic of the past.213

Goolam:
This fatwa proves that ijtihad was practiced after the Third Islamic Century and that the
gate of ijtihad had never been closed.214

Pock:
Nowadays, however, there is a general agreement that the door of ijtihad is not closed
and never was, as eminent scholars continued to make use of it in every age.215

Ali:
The scope of ijtihad is never final, since beyond the ijtihad of one there remains the
scope for the ijtihad of others. In a word, there is no finality in ijtihad. Therefore, from a
purely logical point of view the very concept of ijtihad implies that its door always
remains open.216

Hasan:
As a matter of fact, the gate of ijtihad was never closed. It has been and will always
remain open in order to find out answers to fresh questions. Muslims are bound to obey

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the commands of the Shariah contained in the Quran and the Sunnah, but are not
necessarily bound by the opinions of the jurists of the past.217

Jokisch:
Contrary to this opinion [about the door of ijtihad being closed], and agreeing with
recent research, this study seeks to demonstrate that ijtihad, in reality, continued to exist
after the fourth/tenth century.218

Vogel:
I was repeatedly told in Saudi Arabia that no one holds that the door of ijtihad is
closed.219

Prof. Abd al-Al Atwa:

there is no proof, nor half-proof, nor quarter-proof, for the closing of the door of
ijtihad.220

Tucker:
Western scholarship once differed in its understanding of the role that ijtihad played
over time in the development of the law because some of the pioneers of Islamic legal
theory had embraced the idea that, after a period of legal development, the gate of
ijtihad had been effectively closed in the late ninth century by which time the major legal
doctrines had been put in place. This is no longer the predominant view; rather we now
have broad consensus that ijtihad continued to be a widely accepted practice across the
Islamic centuries, as clearly witnessed by ongoing doctrinal developments in a rich legal
literature, and scholarly attention has turned to various subtleties in the development of
hermeneutical methods.221

Nielsen:
The closing of the gate of independent reasoning (ijtihad) during the mediaeval period
was never generally accepted.222

Fadl:
Furthermore, Rosen is often hesitant and unsure when it comes to Islamic legal history.
In one notable example, Rosen repeats the Orientalist fiction regarding the closing of the
doors of ijtihad in Islamic legal historyIn reality, the doors of ijtihad were never closed
either formally or informally

Vogel and Hayes:

Nowadays most scholars agree with the medieval critics of conformism, and insist that
the door of ijtihad is not closed and never was.223

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Roy, Sfeir and King:

The gate of ijtihad was never truly closed.224

Ghamidi:
It is a misconception that the gates of ijtihad have been closed. They have never been
closed.225

Hallaq:
For the past century, and until quite recently, Western scholarship views this cumulative
textual activity as a hair-splitting exercise, where the piling of commentary upon
commentary yielded nothing of substance worth studying. More recent scholars came to
appreciate the output of Muslim legal scholarship and indeed took delight in studying its
rich and varied scholarly texture; yet their verdict remained that the juristic tradition, with
all its massive corpus of texts, commentaries and super-commentaries, represented no
more than intellectual play, having little, if anything to do with society and its problems.
This brand of scholarship is associated with the academic but predominantly political
doctrine aspousing the Sharias stagnation a doctrine that justifies and rationalizes the
latters eradication as aprt of the colonizing and modernizing projectIn fact, there has
thus far been no research that shows such stagnation ever existed. The latest
scholarship has demonstrated exactly the opposite, namely, that Islamic legal discourse
constituted the vehicle through which legal change as a response to changing social
reality was modulated.226

Living Islam website:

It is our intention to present authentic texts from the Islamic tradition and references of
Islam as the middle way, neither extremist viewpoints, nor modernist interpretations, and
the door of inferring expert legal rulings (ijtihad) is open until the last day.227

Murad:
The evolution of the Four Schools did not stifle, as some Orientalists have suggested,
the capacity for the refinement or extension of positive law. On the contrary,
sophisticated mechanisms were available which not only permitted qualified individuals
to derive the sharia from the Koran and Sunna on their own authority, but actually
obliged them to do this. According to most scholars, an expert who has fully mastered
the sources and fulfilled a variety of necessary scholarly conditions is not permitted to
follow the prevalent rulings of his School, but must derive the rulings himself from the
revealed sources. Such an individual is known as a mujtahid, a term derived from the
well-known hadith of Muadh ibn Jabal.228

Nyayzee:

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The present day Muslim scholars have failed to study the evolutionary growth of their
own legal system. The general trend has been to condemn taqlid and complain about
the closing of the gate of ijtihad. Islamic law has never stopped growing and the
allegations of taqlid and the closing of the gate of ijtihad, against the jurists, are founded
on a superficial understanding o the nature of this law.229

Gerber:
Islamic law under the Ottoman Empire was far from frozen and immutable. It was not
merely the courts that accepted and adapted new solutions to legal problems, but also
the religious scholars, guardians of the sacred law of Islam. While they were not raising
the banner of change for the sake of change, they did not try to conceal new solutions in
little publicized books intended for the expert. Nor did they seem to apologize for their
need to come to grips with circumstances beyond their control. To my mind they seem to
convey the impression that they lacked any inhibition whatsoever about these changes. I
rather suspect that their supposed inhibition about introduction of changes may well be
to some extent at least the creation of modern Western scholarship.230

The creation of modern Western scholarship?? Gee, ya think?

Orientalists realized long ago that their gates of ijtihad nonsense would never stand up
to real scholarship, and it must have been important to them to avoid any type of debate
surrounding the issue. It is likely for that reason that they long ago came up with a
sound bite that would reflect their screwed up view. A sound bite could be repeated over
and over, and this would avoid the need for any real discussion. The closed gates of
ijtihad mantra was the answer. One of the first to popularize this term was Count Leon
Ostrorog in 1927. The Count stated that many gates had been closed in Islam:
And thus the door is closed on historical exegesisAnd this closes the door on
allegorical exegesisWhere there exists a text of Scripture, the door is closed on
human reason. The door is closed again where there exists a saying of the
Prophet. It is closed on historical exegesis. It is closed on allegorical exegesis
There remained one door openbut that last door was not to be left open 231
The gates of ijtihad mantra caught on, and became widespread in 1964 with the
publication of Schachts book that was quoted in the introduction to this paper. It was
only about 10 years later, however, before scholars began to raise serious questions
about the soundbite, and it was only 20 years later before Hallaq completely debunked
the Orientalist lie. (Of course, those outside of academia may continue to parrot the lie
for another century.) Even when an Orientalists own research shows that the gates of
ijtihad were never closed, they still cannot help but to repeat the mantra:
Horii seems still impressed (pp. 140, 180) with Schachts idea of the fixing of orthodoxy
in the tenth century (the closing of the gates of ijtihad) when her own research

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demonstrates the internal fluidity of debate among Muslim scholars and the impossibility
to shut off, let alone solve, certain contested issues by recourse to tradition alone.
Horiis thesis confirms that the core dilemma for Muslim jurists remains ever-present and
had to be addressed by everyone.232

The gates of ijtihad were never closed. Scholarship has acknowledged the fact for
over 30 years. Nobody has challenged the work of the authors cited here who have
shown this to be the case. If Mr. Spencer reads this and still thinks that gates were
closed, I suggest he at least write an article about it and submit it to a scholarly journal.
If he can prove his case, he will certainly be recognized as the top Islamic scholar in the
world, for at this point the discussion on this topic is closed. He would be famous in the
field of Islamic law.

Status of Islamic Law Just Prior to the Colonial Period

Any reader with even the slightest shred of objectivity should realize by now that the
gates of ijtihad were always open. At this point, I would expect the average JW reader
to say something like the following: If the gates of ijtihad were always open, then why is
the Sharia so screwed up today?
A question like this ignores a crucial point, which is that between 1790 and 1807 the
British transformed Islamic criminal law totally and beyond recognition. 233 Islamic law
ceased to exist two centuries ago. At that point in time, Islamic lands that had been
invaded and subjugated by the West had their law system replace by the codified
systems of the invaders. A fair comparison of the Sharia with the legal systems of the
West can only be made before the colonial period, and before the Sharia was
completely mangled by the West.
First, I will compare the Sharia with the status of law in the West at the time, then we
will continue discussing what happened to the Sharia after the colonial period began.
Access to courts and court decisions
To begin with, we will look at who used the court systems, and who prevailed. In colonial
New England, it was the rich who were suing the poor, and they were winning:
A study of colonial New Englandhas shown that the class structure of the society was
clearly supplicated in the working of the court: most of the suits were initiated by
members of the aristocratic elite and were against members of the lower classes.
Moreover, members of the elite won proportionately more cases than did common
people and got away with lighter penalties when sued in criminal charges. The
conclusion is reached that the elite received distinctly preferential treatment.234

The situation in the Ottoman Empire was the exact opposite:

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If, in colonial New Haven the court was mainly used by the aristocracy to regulate and
control the lower classes, this was definitely not so in the case under study, where the
court was used mainly by the common people themselves simply to smooth the flow of
their daily livesIn all but a few cases, it was the social underdog who initiated the case
women versus men, non-Muslims versus Muslims, commoners versus members of the
elite. The court is seen mainly as a tool of the common people to defend a modicum of
legal rightsWomen won seventeen of twenty-two cases against men; non-Muslims
won seven of eight cases against Muslims; commoners won six of eight cases against
askeris. Only in the category of commoners against religious doctors do we find a tie of
ten cases each.235

Unlike in colonial New England, in Islam it was most often commoners suing the rich,
and they won the majority of cases. Even members of the government were not safe in
the Sharia court:
There isno shortage of cases where government officials themselves were involved in
court cases with ordinary citizens and lost them.236

As examples of this, Gerber describes a case where villagers sued high state officials
serving the sultan claiming that they had taken over their pasture land to use for the
sultans court. The villagers won. (The sharia did not have an equivalent for eminent
domain.)
Another example was when ordinary citizens charged a fiefholder with murder. In that
case, the fiefholder was convicted and condemned to death. The sharia did not allow
the rich to get away with murder by hiring an expensive lawyer. (See O.J. Simpson).
Hallaqs research shows much of the same:
It was particularly the courts open and informal forum that permitted the individual and
defenders from within his or her micro-community to argue their cases and special
circumstances from a moral perspective. But it was also the commitment to universal
principals of law and justice that created a legal culture wherein everyone expected that
injustices against the weak would be redressed and the wrongdoing of the powerful
curbed. This was an expectation based on a centuries-long proven practice where
peasants almost always won cases against their oppressive overlords, and where Jews
and Christians often prevailed in court not only over Muslim business partners and
neighbors but also against no less powerful figures than the provincial governor himself.
The Muslim court thus afforded a sort of public arena for anyone who chose toutilize that
space for his of her defense. The highly formalized processes of the modern court and
its structure of legal representation (costly and tending to suppress the individual voices
of the litigants, let alone their sense of morality) were unknown to Islam. So were
lawyers and the escessive costs of litigation that prevent the weak and poor from
pressing their rights. A case in point was women. Considerable recent research has
shown that this group received not only fair treatment in the Muslim court but also even

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greater protection than other groupsThat those who initiated the litigation at the court
were the social underdogs is now beyond debate. They were women versus men, nonMuslims versus Muslims, and commoners versus the economic and political elite. That
they won the great majority of cases and that they found in the court a defender of their
rights is likewise clear from the evidence.237

In terms of fairness with respect to class structure, the Sharia courts were far more
advanced than those in the colonial US or England at that time; or the present time as
well, for that matter.
Winner: Islam.
Cruel punishments
But what about the cruel hadd offenses?238 Specifically, what about the cruel practices
of cutting off peoples hands for theft and executing them for sex outside of marriage?
First, a few general statements about hadd offenses.239 Hadd offenses can only be
proven by witness testimony or by confession of the accused. Circumstantial evidence
is generally not allowed. There must be at least two male eyewitnesses (or one male
and two female), and the witness testimony must not conflict at all. (For example,
witness testimony in one case was not admitted because one witness said that the
accused kicked the victim with his right foot, and the other one said it was his left foot).
For hadd crimes, witnesses are neither morally or legally obliged to give testimony, so
there is no pressure at all to do so. Any confessions made outside the courtroom are not
valid. The accused must confess at the trial, so the judge can see if he is acting
voluntarily. The defendant is free to retract his confession at any time before the
punishment, in which case the hadd punishment will not be delivered. This is still true
today in Saudi Arabia:
If, during the trial of a hadd case, the accused retracts his confession, alleging that he
was coerced into confessing, the case is dropped.240

For zina offenses, the rules were even more strict. In that case, four eyewitnesses were
needed, and they must have seen the act in its most intimate details, i.e. the
penetration, or, in terms of certain hadiths, the witnesses must have observed the act
just like a pencil going into a kohl container (ka-l-mil fi al-mikhala) or a bucket into a well
(ka-l-rasha fi al-bir).241 Unless you decide to have sex before marriage in front of four
males, and those four males all see the mans bucket enter the womans well, and all
four decide to testify against you in court, you will not be found guilty of zina. Guess
what? This does not happen often. For these reasons, in the cases of zina and theft,
the only offenses that required, respectively, capital punishment or mutilation aside
from highway robbery were, short of confession, nearly impossible to establish. 242

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The following is a good example of how easy it is to avoid hadd punishment. According
to Malikite doctrine, circumstantial evidence is allowed in the following situation: if an
unmarried woman has a child, she can be charged with zina. Having a child is pretty
good circumstantial proof of having had sex, correct? Even in this case, the woman can
avoid the hadd penalty by saying that she got pregnant in her sleep without her
knowledge, or that the pregnancy was the result of heavy petting without penetration! It
is clear that hadd penalties were easy to avoid.
Another example:
Hanafis were willing to accept statements from the accused such as you married me or
I married her, even though there had been no legal marriage, as sufficient for
establishing shubha [judicial doubt]. Although a man owed his partner monetary
compensation in this case equivalent to the amount of a fair dower, the judicial doubt
established by these claims voided hadd penalties.243

Here is an example of a male who actually was convicted of zina in the seventeenth
century, and how it happened:
A man voluntarily admitted having had sex at a time when he was unmarried (the exact
time was not mentioned) and demanded to be punished. The qadi proceeded to
investigate the mans mental health by questioning people who knew him. The mental
capacity was also tested by asking him simple questions, such as what day, month, and
year it was. Finally, the qadi gave the man a chance to reconsider his claims. When he
persisted, he was sentenced.244

It is true, then, that if you really wanted to be punished, the Sharia had some harsh
penalties. However, if you did not want to be punished, hadd penalties were very easy
to avoid.
As for homosexual sex, most schools considered it the same as zina, and the same
rules, and the same rules of avoiding hadd penalties, were followed. As with
heterosexual sex, penetration must have occurred, and anything less did not incur the
hadd penalty. Hanafites, however, considered homosexual sex less of an offense than
zina, and left the punishment up to the qadi instead of the automatic hadd penalty.245
As we move from the realm of theory to reality we find that just prior to the colonial
period, zina penalties had loosened up quite a bit beyond what was stipulated by the
Quran:
While the Ottoman qanun paid lip service to the penalties prescribed by the sharia,
which might be imposed in any given case, it also instituted a broad range of alternative
penalties, primarily fines. Sultan Sulaymans criminal code, for example, listed a series
of graduated fines incurred by perpetrators of zina, to be calibrated by the status of the

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perpetrator, whether a virgin or not, and by his or her assets. In the case on consensual
zina, only a recurrent offender, such as a habitual prostitute, incurred stiffer penalties of
flogging, ridiculing in public, or banishment. The law specified that a prostitute could
have her face blackened or smeared with dirt and be led through the streets sitting
backwards on a donkey, holding its tail instead of its reinsIn brief, the Ottoman criminal
code effectively eliminated execution as a penalty for zina, prescribed only monetary
fines for consensual sexual intercourse, and received a range of non-lethal corporal
punishments for those who were violent or habitual offendersSame-sex intercourse
between males was to be punished like zina, with the same system of graduated
fines.246

Usually only habitual offenders were punished, and even then only by fines; even for
homosexual sex. Islamic law was static and unchanging?
To summarize, very few were put to death for unlawful intercourse (unless they really
wanted to be), and in reality only repeat offenders, such as prostitutes, were punished.
And even then usually with fines. As for hand amputation for theft, because the
requirements were so exacting, amputation, at least in the eighteenth century, was
rarely practised as a fixed penalty. 247 Instead, a common result is that the victim would
bring the thief to court and the thief would have to repay the victim the stolen money.
So what did the British do to the cruel practices of Islamic law when they replaced it
with their own law? Did they change the primitive practices of Islamic law and make
them less cruel and more civilized?
Actually, the exact opposite happened. When the British took over, their problem was
with how lenient Islamic law was, not how cruel:
Hastings argued that government would have to intervene to ensure adequate
punishment, because Islamic law was founded on the most lenient principles and on an
abhorrence of bloodshed.248

Peters finds the same:

The main objection of the British to Islamic criminal law as administered in northern
India was that it restricted the power of the courts to hand down capital sentences.
Under Islamic criminal law, as compared to contemporary British law, there were
relatively few capital offences and, in addition, there were so many defenses available
that convictions for such capital offenses were difficult to obtain.249

According to the British, Islamic law left too much discretion to the qadi, who usually
looked for reasons to diminish the penalty. The British wanted fixed and immutable
penalties. (But remember, it was Islamic law that was rigid):

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Contemporary European views on the greater efficacy of fixed and immutable penalties,
as against ancient regime practices of discretionary selection for punishment and cruel
spectacles were posed in India as a contrast between arbitrary justice of the oriental
despot and due process of law under the Company. However, it was the laxity which
indigenous rulers seemed to display in exercising their punitive rights, rather than the
barbarity with which they did so which drew the more strident criticism.250

The British problem with theft was that they wanted the Muslims to be executing
thieves, like they did in civilized England, and not just cutting their hands off:
[Hastings] believed strongly in the necessity, and greater efficacy, of fixed and
immutable penalties. Yet the actual record of Company justice by no means indicates
that arbitrary and discretionary were disavowed. British justice turned out to be far more
draconian-in practice as well as in principle-than Islamic justice had been, resorting
much more frequently to capital punishment, and much less often to community-based
methods of enforcement and reconciliation. As it happened, the Company state was far
more concerned with public order, and with the specific use of the law to protect its own
trade and commerce as well as authority, than was the old regime.251

Cutting thieves hands off was barbaric. The civilized thing to do was to execute the
thief instead:
The British were very outspoken in their opposition to mutilating penalties.
Paradoxically, they seemed to values limbs more than lives, as they attached great value
to capital punishment as a deterrent, introduced it for a variety of offenses and used it
widely.252

It should also be noted that amputation for theft was a rare event, as it still is today in
Saudi Arabia:
Hadd sentences cannot be rashly pronounced. Judges usually award discretionary
punishments: in the year 1403 (1982-3), for example, 4,925 tazir sentences for theft
were pronounced, as against two sentences of amputation for theft.253

(I am sure those two cases of amputation would be prime material for a JW thread!) The
British were shocked at the rare cases of amputation, so they replace the practice with
widespread executions. How civilized!
Taking someone elses property was the most heinous crime that one could commit in
England at that time, and people were executed for it often. For example, in Surrey
County from 1660 to 1800, 84% of those who were hanged had committed property
offenses, as compared to 8% for murder, and 0.4% for rape. 254 Stealing was obviously
far more objectionable to the civilized West than murder or rape. The English had
many capital crimes, but theft was the priority, not murder;

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There were more than two hundred crimes punishable with death. If a man stole a
sheep or a horse, or forty shillings from a dwelling house, five shillings from a shop or
twelve and a half pence from a pocket, he was hanged. If a man broke down a fish pond
where fish might be lost or cut down trees in an avenue or garden, he was hanged. If he
falsely swore, pretended to be a Greenwich pensioner, he was hanged. If he destroyed a
turnpike gate, or was found before the expiration of his term of transportation, or if he
counterfeited coin, he was hanged. But manslaughter was a clergyable felony until 1822
and an attempt to murder merely a Common law misdemeanor until 1803.255

As we saw previously, in the West the courts existed for the benefit of the rich. The rich
were obviously much more concerned about punishing theft than the poor were, and the
death penalty was mainly used for thieves. The English were not afraid to use the death
penalty either: From 1771 to 1783, for instance, there were 467 executions in London
and Middlesex.256
Islamic law acted as a check on the imposed Western law from being too harsh:
In the long run the principles of Islamic law were simply replaced by European ones.
Nor was there any important direct influence of the Islamic law on the new law as
introduced by the Companys legislation. There was, however, a remarkable indirect
influence. The new law was, right from the beginning, not the English criminal law of the
time. It was a law developed more or less independently out of European principles. One
of its prominent features was its comparative mildness if the contemporary criminal law
of England or other European countries was taken as a standard. This mildness was not
the mildness of the Islamic law. But it was a kind of dialectical consequence of it. The
Islamic law was in many respects excessively mild. The purpose of British legislation
was to limit this mildness. But at the same time the original mildness was a check on the
new law being too harsh.257

The court system in England was far more brutal than under the Sharia.
Winner: Islam
Divorce
Maybe now JW readers would bring up talaq. According to Mr. Spencer, all a Muslim
husband has to say is Talaq, and he has divorced his wife. This is just one element of
an institutionalized system of oppression of women 258. First of all, Mr. Spencer leaves
out the part that after the man proclaims talaq, the divorce is not final until three months
later. During those three months, the man can change his mind at any point, which
leaves open the possibility of reconciliation. If the three months passed and the divorce
did become final, the couple was allowed to remarry if they chose to do so. This type of
divorce was called talaq al-ahsan259, and was the preferred method of divorce. Mr.
Spencer calls this type of divorce oppression of women. I dont understand why a man

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saying he wants a divorce and getting one after a three month period, is considered
oppression. I was under the impression that even in the West today a man can divorce
his wife if he desires. Is it more honorable in the West because the man must hire a
lawyer and pay him large amounts of money in order to get the divorce? It is true that
women should have the same procedure available to them, but women did have a route
to divorce, which we will discuss in a minute.
Another type of divorce brought up often in the JW website is the triple talaq, which is
called talaq al-bida. In this type of divorce, a man can say talaq three times at once and
divorce his wife immediately. This type of divorce was irrevocable, meaning the woman
must remarry another man before the original couple can remarry. Although this type of
divorce was generally valid, it is not usually discussed on the JW website that this type
of divorce was severely criticized since it goes against the rules laid down by the
Quran.260 Malik even said that this type of divorce was forbidden. 261 Ahmed explains
how this type of divorce originated, even though this form of divorce was clearly not
approved by the Prophet. During the reign of Caliph Umar, loose tendencies had
become commonplace with respect to the approved form of divorce. Umars attempt to
curb these tendencies was to allow the triple talaq, the object of which was to warn the
man that he would have to take the evil consequences of following an un-Islamic
practice to pronounce divorce thrice on one occasion. Umars goal was to get people to
take divorce more seriously, but it had the opposite effect, and the people began to use
the triple talaq rather than avoid it.262 The triple talaq is not favored by Islam, and its use
originated in an attempt to encourage the favored type of divorce.
Spencer says that men can divorce their wives simply by saying, Talaq I divorce you
but women may not do this.263 This is not wholly true. It is true that talaq was a male
initiated divorce, but the wife could acquire the ability to choose her divorce if her
husband delegated this power of talaq to her. Jurists from the main Sunni schools of law
recognized the right of the husband to delegate such power. 264 The act of delegating to
the wife various stipulations in marriage contracts started over a thousand years ago,
and by the 17th century had become common:
Adult women could better protect themselves by taking advantage of the right to insert
stipulations into the marriage contract, with the agreement of the groom to be sure. We
have the most consistent information on this practice in the case of Egypt, where a
marriage contract drawn up as early as the ninth century conferred upon the bride the
power to effect the divorce of any second wife her husband might acquire and sell or
manumit any slave woman he took as a concubineOne study of seventeenthcentury
marriage contracts estimates that a third of them included stipulations.265

Although the different schools placed various limitations of the stipulations in regard to
a wifes right to a unilateral divorce (stipulations were used more often to give the

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woman a right to divorce if the man took another wife or a concubine, or if he forced her
to move where she didnt want to, or if he failed to pay child support, or if he beat her 266),
the conditional delegation conferred some real powers on a woman. 267
Also, the financial consequences of talaq should also be understood:
Talaq, as the jurists understood very well, and as legal practice testifies, was a very
costly financial enterprise for the husband, let alone that in many cases it was effectively
ruinous (a fact which may explain the rarity of polygamy). Upon talaq, the ex-wife was
entitled to maintenance for at least three months (idda), delayed dower, childrens
maintenance, any debts the husband incurred to her during the marriage (a relatively
frequent occurrence), and, if the children were young, a fee for nursing. And if the
husband had not been consistent in paying for marital obligations (also a relatively
frequent occurrence), he would owe the total sum due upon the initiation of his talaq. In
this context, it must be clear that when women entered marriage, they frequently did so
with a fair amount of capital, which explains why they were a source of lending for many
husbands and why so many of them engaged in the business of money-lending in the
first place. In addition to the immediate dower and the financial and material guarantees
for her livelihood, the wife secured a postponed payment, but one that she could retrieve
at any time she wished (unless otherwise stipulated in the contract). But more financially
significant was the trousseau that she received from her parents, customarily consisting
of her share of her natal familys inheritance paid in the form of furniture, clothing,
jewelry and at times cash. Many women, before or during marriage, were endowed with
a waqf portion, giving them further income. Whatever the form of the trousseau and the
total wealth they could accumulate, women were entirely aware of their exclusive right to
this wealth, and understood well that they were under no obligation to spend any portion
of it on others or even on themselves. They apparently spent their own money on
themselves only if they chose to do so, since such expenses as pertained to
sustenance, shelter and clothing (in the expansive meaning of these terms if the
husband was prosperous) were entirely his responsibility, not hers. In other words, unlike
that of husbands, the property of wives was not subject to the chipping effect of
expenditure, but could instead be saved, invested and augmented.268

The man had the right to talaq, but the woman ended up with all the money.
Although talaq is brought up quite often on JW, the khul divorce is rarely discussed.
Khul divorce is a divorce initiated by the woman, and it was apparently more
widespread than talaq.269 Tucker states the commonplace nature of kuhl divorce:
The majority of divorces in Mamluk society were apparently khul divorce, and this trend
seems to continue during Ottoman timesfor example, Madeline Zilfi found that ten to
twelve women came to a court in eighteenth-century Istanbul every month seeking khul,
and this was in just one of several courts in the cityIn Jerusalem, Nablus, and
Damscus, khul was the type of divorce most frequently encountered in court by far270

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Khul divorce was initiated by the woman, and involved paying the man compensation,
usually an amount equal to the dower that she had been given. An extraordinary
explanation for the khul request was not necessary:
In Istanbul and Sofia, most khul requests were preceded by we dont have a good life
together, there was no understanding between us, or there were quarrels and
dissention between us. In Syria and Palestine in the eighteenth century, khul requests
did not usually mention reasons or background; rather, a woman simply asks her
husband to divorce her for a compensation.271

Gerber finds much of the same:

One of the most widespread types of cases involving family law that appear in the
records is khul divorce that is, divorce initiated by the wife, whether of her own free will
or as a consequence of a prior agreement between her and her husband. Such an
initiative on the part of the woman would entail the automatic waiver of her financial
privileges. In most of the cases cited in the records, the reason adduced for the request
is quarrelsome relations. In some cases women even paid sums out of their own pockets
to obtain the divorce. No cases were found where the court tried to dissuade women
from pursuing their effort to obtain a divorce.272

The woman could initiate a divorce, and the practice was common. More common than
talaq. It is not surprising that this is not a topic on JW.
Now for the comparison. What was divorce like in England at the time? Basically,
divorce was only allowed by one group of people: wealthy males! What a surprise:
In England marital controversies were judged by the ecclesiastical courts, and these
courts applied canon law, under which a valid marriage was regarded as indissoluble.
True divorce (divortium a vinculo matrimonii), allowing the partners to remarry, was
never granted unless a marriage was judged null to begin with, on grounds such as
consanguinity, bigamy, or sexual incapacity. Such causes as adultery, desertion, or
cruelty warranted only separation from bed and board (divortium a mensa et thoro),
which sustained the legal obligations of marriage, excepting cohabitation, and did not
allow either partner to remarry. At the end of the seventeenth century, in order to relieve
the stringency of ecclesiastical rule for noblemen whose wives were adulterous, the
House of Lords began to dissolve marriages by private act. Only a select group could
take advantage of this avenue to divorce. The cost often amounted to several thousand
pounds, because a petitioner was expected to have first obtained a decree of divorce a
mensa and a civil judgment against the adulterers. The Lords passed only about ninety
private acts of divorce between 1697 and 1785, all resting on adultery charges and all
awarded to husbands.273

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Within a span of 88 years, all of England awarded 90 divorces, all to rich males. Now
thats how a civilized country deals with divorce! The situation in the colonies was not
much better:
Divorce a vinculo from a valid marriage was more frequent in Massachusetts during the
same period. Between 1692 and 1786, 110 divorces were granted in the province on
grounds other than those considered legitimate by the English ecclesiastical courts-63 to
men, 47 to women- and England and Wales had a population of almost seven million in
1765, when the Massachusetts population was under 250,000.274

In Massachusetts during a span of 94 years, 47 divorces were granted to women. One

every other year for a population of 250,000. Lets compare that to what we already
quoted above:
Madeline Zilfi found that ten to twelve women came to a court in eighteenth-century
Istanbul every month seeking khul, and this was in just one of several courts in the
city275

Lets conservatively estimate 30 divorces every month initiated by women in Istanbul,

whose population in the eighteenth century was about 500,000. 276
The following, then, is the number of divorces granted to women per year per million
women in three different areas:
England: 0
Colonial US: 2
Istanbul: 720
Quiz: Under what legal system did women have the easiest access to divorce?
Winner: Islam.
Inheritance
Since we just brought up the subject of womens financial rights in the contexts of talaq,
it is a good time to bring up another common concern on JW, which is the stipulation
that a male stands to inherit twice the amount that a female would.
In effect, though, all this law did was to balance the financial advantage that women had
in receiving the dower:
The privileged female access to property through the dower system was
counterbalanced, however, by an inheritance law that discriminated against the
females.277

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On balance, it was the women that had the overall financial advantage:
When a womans many property entitlements (mahr, maintenance, and the absence of
any material responsibility to her family members) were taken into account, women
stood to acquire more property through the operation of Islamic rules for property
transfers than did men. 278

And what was inheritance like for women in England? Eileen Spring finds that under
English common law, when indirect inheritance by collateral females is added to direct
inheritance by daughters, twenty-five percent of all inheritances would at common law
go to females.279 If my math is correct, a two to one inheritance disadvantage for
females under Islamic law (neglecting the mitigating factors mentioned above), is still
better than twenty-five percent. Also, Spring finds the inheritance situation for females
got worse over time (the English inheritance gates had not only closed, but stuff was
being thrown out of the gates as well), and reached its nadir in the eighteenth century.
She points out some statistics published by Lawrence Stone:
In An Open Elite?, a book that focuses on the relations between businessmen and
landowners, the Stones have presented as thorough a study of landed inheritance as we
are ever likely to have. They have analyzed the dispositions of over 2,000 owners of 362
country houses in 3 English counties from 1540 to 1879In one table the Stones
indicate what proportion of those inheritances that went directly from father to child went
to daughters and what proportion to sons. If the average is taken over the period 1540 to
1780 then 6 percent of such inheritances went to daughters and 94 percent to sons. In a
second table the Stones indicate what proportion of all inheritances, direct and indirect,
went to women. If a similar average is taken, then 8 percent went to women and 92
percent to menTheir table showing how often women inherited also shows how often
women had inheritance go through them. Taking the average, thirteen percent of
inheritances between 1540 and 1760 went either to or through women. This is a rate
little above what was biologically unavoidable. It is clear then not only that landowners
had much reduced female inheritance, but also that they had reduced it almost as far as
nature permitted.280

Tucker finds much the same:

[Muslim] women were designated by law to inherit from many of their male relatives and
could not legally be disinherited; women, although they often inherited one-half the share
of their male relatives, enjoyed unfettered control of the family property they thus
received; and finally, there were no constraints placed on the kinds of property women
might inherit. We see some marked contrasts here to the rules for female dowers and
inheritance in places like England and China. In England, the practice of primogeniture
when it came to real property had become firmly ensconced in theory and practice by
the early modern period: the eldest male child stood to inherit the familys real property
while female children and younger males were typically allotted maintenance incomes.

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Although historians have pointed out some variations in this pattern, most significantly
among classes, the fact remains that property continued to be transmitted between men
to secure patriarchal social structures.281

Winner: Islamic law.

Womens Financial Inependence
Muslim married women were financially independent. In the West, they were not:
It is worthy of note that, unlike in much of the western legal tradition, the marital status
of a [Muslim] woman had no impact on her legal competence. European legal systems
of the early modern period had placed most women and their property under the legal
authority of their husbands: in the extreme case of the English tradition of coverture, a
husband exercised almost total control over his wifes property; on the continent, dowry
systems protected the assets the wife brought to the marriage but usually gave the
husband broad powers to manage this propertyThe Muslim jurists, with only a few
school-specific exceptions, took the contrary position that marital status held no
ramifications for legal capacity for either spouse, and a husband had no right to manage
or dispose of his wifes property.282

This is another case where Islamic law was clearly ahead of the West. Married women
in Great Britain did not gain the right to own property until 1882, 283 about a thousand
years after Islamic women had that right.
At this point, I will make one more point regarding womens rights in general. Many
Islamic women find the Quran to be the source of needed reforms, not the source of
the problem:
Several women scholars have focused recently on the Quran as the fount of discourse
on gender, and argued that responsible and scholarly Quranic interpretation (tafsir)
leads inexorably to an egalitarian view of gender relations, not the male dominance
expressed in some aspects of the legal tradition. As the number and sophistication of
these works increase, they are entering into serious contention for the hearts and minds
of believing Muslim women and men alike, and they are acquiring the potential to supply
the necessary foundations for more extensive legal reforms.284

Winner: Islam.
Womens dress
But the JW reader says What about the dreaded hijab!! Once again, the situation over
a century ago is probably different than what a JW reader might think:
So we are left with the distinct impression that, prior to the late nineteenth century,
womens dress in general, and the practice of veiling in particular, were not matters that

77

much engaged the attention of Islamic jurists and courts. Women (and men) no doubt
dressed modestly, at least in large parts of the Islamic heartland, but a wide range of
degrees of covering, reflecting differences in class and setting, appears to have been the
norm.285

Muslim women wore modest dress, but probably not much different from Puritan women
were wearing in the American colonies. Overall, women in the West still had much more
freedom to wear more revealing clothes, so if less clothing is a mark of a better society,
we will give the win to the West.
Winner: the West.
Apostasy and Forced Convesion
The death penalty for apostasy in Islam, along with forced coversion, are hot button
topics for the fringe right, and anything that I say here in anything less than a completely
comprehensive way will simply invite a flood of misinformation. For that reason, to
address this issue properly, it will be addressed separately in more detail, similar to
what I am doing here with the gates of ijtihad subject. I will still make a few comments
about the subject, however.
In brief, the Quran gives no punishment for apostasy except in the afterlife, so the
fringe right has to find evidence for Islams sanctioning of apostasy in ahad ahadith. In
response to this argument, it is clear that a solitary hadith cannot overrule the Quran.
Secondly, examples of apostasy resulting in the death penalty involve treason as well.
Treason was a crime that was dealt with severely in many cultures at the time. For
instance, this is an example of how the English punished those convicted of treason:
For high treason the punishment was solemn and terrible. The statute stated that before
the offender was beheaded, he should be half hanged and that his entrails should be
drawn out of his body and burnt before his very eyes. This shocking punishment actually
was meted out to eight officers on Kennington Common in 1746. When one David Tyrie
was so executed on August 24, 1782, the Gentleman's Magazine remarked: It was
astonishing to see what numbers of women there were in the crowd to see such a
savage process, the bare relation of which is shocking to humanity. The heads of traitors
in the first half of the century were hung on Temple Bar, the only remaining gate of the
city of London. The heads thus exposed were allowed to bleach for years in the sun and
rain until the wind hurled them in the footway.286

When looking at the issue of apostasy, it will be important to consider it in situations that
are divorced from any other issues such as treason.
The related issue of forced conversions will also be covered separately. In general, nonMuslims in the Ottoman empire were treated as second-class citizens, and conversion

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to Islam was motivated by a desire to assimilate in order to overcome this. There were
no mass forced conversions:
Although there were obvious cases of enforced conversions, most were nonenforced.
These, often euphemistically called voluntary, were the result of indirect economic and
social, but not administrative, pressure. They were stimulated primarily by the desire to
achieve a distinct kind of integration.287

Ocak agrees:
The Ottoman Empire never considered the official religion as a belief that was to be
imposed on its non-Muslim subjects, and it never carried out any activity in this
regard.288

Ocak does point out that Muslims who challenged the prevailing orthodoxy were dealt
with harshly, however:
The Ottoman center never used Islam as a weapon for the conversion of non-Muslims,
in fact it deliberately avoided doing so. [However] Sunni Islam was used, as an ideology
of suppression in the most unremitting fashion, against deviants or heretics that sprang
from among their own ranks.289

This was, of course, in response to keeping unity within Islam, and not allowing splinter
groups to destroy the religion. The issue of conversion in the Ottoman Empire was
never a central feature, as it was in the Spanish empire, for example :
the Ottoman Empire never had a Propaganda Fide, or an Agency for Convert Affairs,
nor did it have any press which was used by the Propaganda Fide to such good
effect.290

Winner: Islam
Overall conditions
In conclusion, I would like to compare some general observations about what is was like
in the Ottoman Empire as compared to the West. European observers of the Ottoman
Empire made the usual comments about Muslims attaching little value to life and limb
(ironically, they were making these comments at the same time they were executing 35
people per year in London alone). However, they also made the following observations:
European observers in the sixteenth, seventeenth, and eighteenth centuries were
impressed by the efficiency, effectiveness, and even fairness of the Ottoman
administration of criminal justice. In their view, it compared favorably with the long drawn
out and very costly lawsuits and trial in Europe. They noticed with astonishment that in
the Ottoman courts a case was generally dealt with in a single session; there were no
lawyers who would drag out the procedure unnecessarily, and appeals were relatively

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rare. The speedy and often severe punishment meted out, together with the efficient
police methods and the collective responsibility at the whole village or town-quarter for
any crime committed there, were in their opinion the main reasons for the amazingly low
crime rate, especially in the cities".291

An amazlingly low crime rate. So what was crime like in London at the time?:
In some respects Dr. Johnson was right. Crime did pay in the eighteenth century.
Thieving, smuggling, and highway robbery were the fashion of the day. The danger
people ran of being robbed or murdered in the streets was great. As soon as night fell,
highwaymen and footpads emerged from their retreats in the capital like so many bats in
order to begin the work of depredation and plunder. The contempt for the law was great.
Horace Walpole complained that in London one is forced to travel even at noon as if one
was going to battle, and he expected to be robbed one night in his own garden at
Strawberry Hill.292

Another important observation is the use of Sharia courts by dhimmis. Although both
Christians and Jews had their own communal courts available to them, it turns out that
quite a few decided to use the Sharia courts voluntarily for cases involving other
dhimmis as well as their own families. This is especially true for women, who found that
the rules under Islamic Law were far more favorable than under their own religious
rules. For example:
In Ottoman Egypt, Copts as well as other minorities sought the auspices of the sharias
court. Marriages concluded in the court were, as a consequence, dissolvable therein,
and Coptic women also appear to have benefitted from the practice - widespread
among Muslim women in Egypt - of adding protecting clauses to their marriage contracts
(clauses dealing with the rights of children from previous marriages, material support,
etc.). A similar perception appears to have attracted Jews to the Muslim court. This is
particularly interesting insofar as it seems to have appealed primarily to women who, for
example, used the sharia courts in order to obtain a share of their patrimony, denied
them in Jewish law. Jewish women also appear to have sought sharia marriages, which
guaranteed material support (nafaqa) as well as divorce, especially when attempting to
annul marriages made insupportable by deserting husbands.293

If Islamic Law was so primitive, why were so many Christians and Jews going to the
Sharia court when they had their own courts available to them?
I would like to make one last point which relates to contemporary Islamic law. Western
media like to find extreme cases of punishment in Islamic countries and report on them
endlessy. To the extent that these stories are true (which is certainly not the case for all
the stories), they do not represent the Sharia:
Certainly, most if not all of the incidents reported in the Western press as examples of
the implementation of Shariah provisions in many Muslim countries have been gross

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miscarriages of justice according to most traditional Shariah conventions, carried out by

people with only a slogan-like knowledge of traditional mainstream fiqh.294

Conclusion
Overall winner: Islamic law
That Islamic law surpassed the legal systems of the West at the time should hardly be a
surprise, and this is accepted by scholarship. William McNeill notes that:
an intelligent and informed observer of the fifteenth century could hardly have avoided
the conclusion that Islam, rather than the remote and still comparatively crude society of
the European Far West, was destined to dominate the world in the following
centuries.295

Makdisi:
Readers familiar with the intellectual history of the Christian West can hardly fail to see
its development as following that of Islam on parallel lines with a time lag of a century or
soIt is inconceivable that two cultures could develop side by side for literally centuries
without being aware of developments on either side. That Islam cared little for what was
going on in the West is proof of its indifference to a lesser developed culture. On the
other hand, it is common knowledge that the West was not oblivious of the higher
civilization of Islam: it learned its language and translated its works in order to bring itself
up to the level of the higher culture, the better to defend itself against it.296

W.M. Watt:
When one keeps hold of all the facets of the medieval confrontation of Christianity and
Islam, it is clear that the influence of Islam on Western Christendom is greater than is
usually realized. Not only did Islam share with Western Europe many material products
and technological discoveries; not only did it stimulate Europe intellectually in the fields
of science and philosophy; but it provoked Europe into forming a new image of itself.
Because Europe was reacting against Islam, it belittled the influence of the Saracens
and exaggerated its dependence on its Greek and Roman heritage. So today, an
important task for our Western Europeans, as we move into the era of the one world, is
to correct this false emphasis and to acknowledge fully our debt to the Arab and Islamic
world.297

Even Count Ostrorog, the Orientalist who was the first to use the gates of ijtihad
terminology (see above), had this to say about Islamic law in the same presentation
containing his gates garbage:
Considered from the point of view of its logical structure the [Islamic law] system is one
of rare perfection, and to this day it commands the admiration of the studentThose
Eastern thinkers of the IXth century laid down, on the basis of their theology, the

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principle of the Rights of Man, in those very terms, comprehending the rights of
individual liberty, and of inviolability of person and property; described the supreme
power in Islam, or Caliphate, as based on a contract, implying conditions of capacity and
performance, and subject to cancellation if the conditions under the contract were not
fulfilled; elaborated a Law of War of which the humane, chivalrous prescriptions would
have put to the blush certain belligerents in the Great War; expounded a doctrine of
toleration of non-Moslem creeds so liberal that our West had to wait a thousand years
before seeing equivalent principles adopted.298

Even Orientalists sometimes tell the truth in order to appear scholarly. All if this changed
with the coming of the colonial period, which will be discussed later.

Definition of ijtihad
At this point, I will now look at the definition of ijtihad in more detail than what was given
in the introduction of this paper. This is necessary in order to correct any
misconceptions that might result in reading Mr. Spencers definition of the term. Mr.
Spencer defines ijtihad as follows:
Ijtihad is the process of arriving at a decision on a point of Islamic law through study of
the Quran and Sunnah.299

This definition may give the reader the impression that ijtihad involves deriving new laws
directly from Quran and Sunna. This impression would be wrong. Al Ramli, for example:
seems to have understood the term ijtihad as signifying something less than extracting
new laws directly from scripture. Not that new laws did not come into existence; they did,
but they had to appear under a veil of continuity and as a result of interpretation,
because no legal system is or should be proud of brazen innovations.300

Al Ramli used the term ijtihad in several ways, including ways that do not involve
deriving laws directly from the Quran and Sunna:
Al-Ramli uses the term ijtihad in four different meanings without formally differentiating
among them: (1) In some instances ijtihad means choosing one of two solutions supplied
by the tradition; (2) in a number of instances the tradition had no solution whatsoever,
and here the jurist was on his own-he had to use whatever sources he was aware of,
apparently even the Quran and the Sunna, to extract the law to the best of his
understanding, which is of course exactly what the founding imams of the madhhabs did.
In this sense, according to al-Ramli, even a humble mufti or qadi might qualify as a
small-scale mujtahid mutlaq or independent mujtahid. (3) In other instances al-Ramli
used the term in the sense of making an effort to derive the law from the sources in
cases in which no objective aid existed. (4) In some cases ijtihad appears as the
personal attribute of some qadis and muftis, the idea being that it was the personal
choice of a jurist whether he wished to consider himself a mujtahid.301

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Other jurists also do not equate ijtihad with deriving new laws directly from the Quran
and Sunna. Regarding al-Marginani, al-Sarakhsi, Qadikhan, ZaylaI, Bazzazi, Ibn Qadi
Samawna, and Ibn Nujaym:
Not one of these front-line jurists so much as hints at anything like closure of the gate of
ijtihad. In fact, they make it clear that the connection that Orientalists make between
ijtihad and legal innovation did not exist within the world of Islamic jurisprudence. All
these jurists treat ijtihad as one of two things: the intellectual quality of being able to
extract a legal rule according to the accepted methodology of the madhhab; or the
freedom of interpretation to be exercised by muftis and particularly qadis in areas in
which the doctrine of the school remains open.302

Finally, Gerber states the following:

It must however be pointed out that in all the sources seen by this writer no definition
(explicit or implicit) of ijtihad included the element of free interpretation of the
Quran303

The Shorter Encyclopedia of Islam (written primarily by Orientalists) makes no mention

of deriving laws directly from the Quran and Sunna:
Idjtihad meansexerting ones self to form an opinion (zann) in a case (kadiya) or as
to a rule (hukm) of law

Nor does Peters summary of jurists definitions in general:

The classical meaning of idtihad, as found in some minor variations in the technical
dictionaries and handbooks on legal methodology, is exerting ones effort in order to
derive from the bases of the law (adillah) an opinion concerning a legal rule.304

We can give these definitions for a long time (see Ali for at least a dozen). The point of
this is that ijtihad does not necessarily mean reinterpretation of the Quran. It is easier to
claim that the gates of ijtihad are closed if you start out by defining it incorrectly.
In regards to what areas are open to ijtihad, the answer is most everything:
The rulings of the Quran on the essentials of the faith such as salah and fasting, the
specified shares in inheritance and the prescribed penalties, are all qati their validity
may not be disputed by anyone, everyone is bound to follow them, and they are not
open to ijtihad.305

The Closing of the Gates of Ijtihad: Codification and

Translation
Until the colonial period, it is clear that Islamic civilization was far more advanced than
that of the West, including their system of law. The West was unable to compete with

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Islamic culture, but they did find a way to fix that problem. They occupied Islamic lands
militarily, and proceeded to fuck up their society. Once Islamic lands became occupied
by the West, the gates of ijtihad did indeed close. However, they were closed by the
occupying powers, with the help of the Orientalists, and not by the Muslims themselves.
We already mentioned examples of this, but will now add a few points to what has
already been said.
The occupying powers wanted a simple legal code that they could administer
themselves, without the help of the ulema. The solution was to discard the fluid and
flexible system of the Sharia and replace it with fixed rules. Many of these rules were
obtained from old Islamic texts, and were applied to the letter, which is something that
had never been done in Islam:
Coming to understand that the Sharia was authoritative for Islamic legal scholars, many
British administrators glossed over its internal contradictions and finely distinguished
levels of moral approbation. Instead, they set about applying it as a set of homogeneous
legal rulesLooking for a unified Muhammadan law that could be adapted to the
company court system, administrators made the much-celebrated mistake of treating
certain classical Islamic texts as binding legal texts. To apply the laws of the Quran with
respect to Mohamedans was a project that mistook the Quran for a code of law. The
Quran, and even more specifically legal texts such as Al-Hidaya, had never been directly
applied as sources of legal precept. Their legal relevance had always derived from a
properly authoritative qadi whose moral probity and knowledge of local arrangements
could translate precept into practice. Qadis in the Mughal period had left much to what
Bayly calls the sense of the neighborhood, so that justice tended to be highly
personalized and context-specific. Even the most sophisticated text-bound approach
was subject to grave error, simply because texts were applied in ignorance of social
circumstances.306

Codification was a major factor that made Islamic law inflexible. Once again, Islamic
Law was never basely solely on old texts, but was a contantly evolving and fluid system
in actual practice:
Sharia law was not an abstraction, nor did it apply equally to all, for individuals were
not seens indistinguishable members of a generic species, standing in perfect parity
before a blind lady of justice. Each individual and circumstance was deemed unique,
requiring ijtihad that was context-specific. This explains why Islam never accepted the
notion of blind justice, for it allowed the rich and the powerful to stand on par with the
poor and the weak. In the Sharia, the latter had to be protected, and their disadvantage
was turned into an advantage in the Sharia courts of law. This in part explains why there
was no point in stating the law in the way that it is recorded in todays legal codes.
Rather, the law was an ijtihadic process, a continuously renewed exercise in
interpretation. It was an effort at mustering principles in specific life-situations, requiring
the legists to do what was right at a particular moment of human existence. Even in its

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most detailed and comprehensive accounts, the law was mostly a juristic guide that
directed the judge and all legal personnel on the ground to resolve a situation in due
consideration of the unique facts involved therein. As a fully realizable and realized
wordly experience, Islamic law was not fully revealed unto society until the principles
meshed with social reality and until the interaction of countless social, moral, material
and other types of human relations involved in a particular case was made to come full
circle. In other words, Islamic law is not that found in the books of the jurists, but rather
the outcome of a malleable and sensitive application of rules in a complex social setting.
To know what Islamic law was, therefore, is to know how actual Muslim societies of the
past lived it; but most certainly it is not merely the law as abstracted in the books of
jurists.307

The West took a flexible Islamic law and stunted it by transforming it into a text-bound
system:
Codification rendered the laws more inflexible and rigid compared with a fluid system of
local usage and practice. Moreover the laws were mainly taken from old law-books that
often had little in common with the actual practice in Bengal at that time.308

As part of the codification process, three translations of early Islamic texts were made
into English (Al-Hidaya, Al-Sirajiyah (a treatise on inheritance), and A Digest of
Moohummudan Law (a translation of Fatawa Alamgiri and a portion of an Ithna Ashari
text)). These three texts were then used as the basis of all Islamic law:
Together, these three translations formed the textual basis of Anglo-Muhammadan law.
Their errors and inadequacies have been partially recorded in court cases and
commentaries, but sustained research on the ideological biases of their rendering
remains to be pursued. Even a basic text on the usul al-fiqh, or roots of jurisprudence,
that would be fundamental to any detailed understanding of Islamic law, did not appear
until 1911. (A. Rahim: The Principles of Muhammadan Jurisprudence) It is not
surprising that those few texts that were translated came to be treated as authoritative
codes rather than as discrete statements within a larger spectrum of scholarly debate
The reliance on texts over customary practices was a strategy that served to contain the
contumacious complexities of indigenous mores. Colonial legal understandings were not
strictly wrong, but they were highly stylized forms of representation, more often
concerned with a limited kind of textual accuracy than a genuine appreciation of the
norms by which people lived. In simplifying indigenous legal arrangements to a form that
could be administered by colonial courts, Anglo-Muhammadan scholarship sometimes
reduced living norms to immutable concepts of purely divine provenance.309

Hallaq explains the effects of translation and codification on Islamic law:

As it happened, these translations largely succeeded in codifying Islamic law for the
first time in history. Through this act of translation (and codification), the texts were also
severed from their Arabicate interpretive and commentarial tradition,which meant that

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they ceased to function in the way that they had done until then. There were at least
three dimensions to this process. First, through this act, the British in effect disposed of
the Muslim jurists and muftis who had served in the system and who were its backbone.
Second, Islamic law was slowly transformed into a state law, where the legal and judicial
independence of the socially grounded legal profession was displaced by the corporate
and extra-social agency of the modern state. And third, the law was simultaneously
changed to resemble, if not be, English law.
Yet another consequence of undertaking the translation was the suppression of
customary law, whose elimination was intended to streamline (or homogenize) the
otherwise complex and complicated legal forms with which the British had to deal. At the
same time, Islamic law was deprived of one of its mainstays: the communal and
customary laws that were entwined with the Sharia on the level of application. Thus the
very act of translation uprooted Islamic law from its interpretive-linguistic soil, and, at one
and the same time, from the native social matrix in which it was embedded, and on
which its successful operation depended.310

It was the West, then, that closed the gates of ijtihad. The West was not about to admit
that they screwed up Islamic law, so they invented the closed gates of ijtihad myth in
order to blame it on the Muslims. The Orientalist fabrication of the gates myth provided
the necessary justification for replacing Islamic law with the civilized law of the West. It
was done for their own good to aid the primitive culture that had been stagnated for
nearly a millenia:
Justification and rationalization underlie the tenor of Orientalist writings on the so-called
modern reforms. The entire paradigmatic discourse which dominated Orientalist
scholarship until the early 1980's was systematically directed to generate the single
effect that after the 3rd/9th century Islamic law experienced structural difficulties in
accommodating itself to the ever-changing social, economic and other realities - a body
of discourse that took the form of monolithic discussions about the mythic closure of the
gate of ijtihad. This closure had to be posited as justification of the western-inspired
modern reforms that came not only to displace the shari'a, but also to demolish it
systemically. In a nutshell, then, the colonialist enterprise could not have been
successfully effected without postulating the decline and stagnation of the shari'a.311

The gates of ijtihad myth was not the only fabrication of the Orientalists. The entire
history of Islamic law was fabricated in the same manner it was constructed in a way
to minimize the contributions made by Islamic society, and to attribute all the advances
made by Muslims to borrowings from other cultures mainly the West. According to this
discourse, the only periods of Islam worth studying are the formative period along with
the modern period, for it is only at these two points that there was significant contact
with the West. In the formative period, Islam borrowed all their ideas from other cultures
when they formed their system of law, after which they were on their own, and as a
result of being on their own they went into an 800 year long funk (the closed gates of

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ijtihad period). It was only during the colonial period, when Islam was fortunate enough
to be colonized by the West, that Islam was free to advance once again, but only with
the aid of the benevolent West, of course:
The earliest and latest periods share a common denominator that explains their
immediate relevance to Orientalism. At these two temporal junctures, Islamic law perhaps the most defining and distinguishing feature of Islam - crossed paths with
Western culture and its heritageIt should therefore come as no surprise that the
Orientalist construction of Islamic law is both systematically and methodologically cast in
terms of debts and borrowings. The list of writings exposing these debts and
borrowings is too long and admittedly quite varied to rehearse here, but their overall,
cumulative effect is crystal clear: Islamic law is, at best, heavily indebted to the legal
traditions of the cultures that gave birth to Western civilization and, at worst, little more
than a replica of these traditions. This verdict had to be reached, and was reached,
irrespective of the available evidence, which happened in this case to be of the poorest
type. The imaginative nervewas nearly all that Orientalism had at its disposal to
compensate for the deficiency in documentary evidence, with the result that ninth-rate
arguments, that no other field except Islamic Orientalism would even begin to consider,
won the day.312

Regarding the formative period of Islamic law, the Orientalists were unable to attribute
all of Islams innovations solely to borrowings from the West, so they constructed
another myth whereby all the advances that were made by Muslims themselves were
the result of one man. This man, according to the Orientalists, was Shafii. Orientalists
could not admit that Islams culture itself was capable of the innovations that were
made, so they posited that it was all a result of a single individual. The brown people as
a group were primitive, but they were lucky enough to have one smart person who was
responsible for everything that Islam accomplished. He was mutant in a primitive
culture. It was only through the freak mutation of a single individual could Islam make
any contributions to human history. Once the mutant Shafii died, Islam was resigned to
stagnation for the next 900 years until the West reappeared on the scene to once again
guide the helpless brown people. This story, as you might have guessed, was another
pile of crap:
All this is the stuff of legend. We (Schacht included) have no evidence that Shafi'i was a
traditionist or that his defense of Prophetic traditions was outstanding or that it even
mattered very much. If the battle over Prophetic traditions was won, the victory could
have hardly been the work of an individual mind or effort. The Great Man Theory is a
naive way of interpreting history. Furthermore, even a preliminary account of the hadith
collections reveals that Shafi'i never counted as a traditionist, nor was he the architect of
Islamic jurisprudence that he was (much later) made to be. Many of the major theoretical
issues in later theory fundamentally differed from the elements of his jurisprudence. But
most importantly, Shafi'i's legal thought - qualitatively speaking - can hardly equal the

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ingenious formulations of later legal theoreticians and jurists, such as Abu al-Husayn alBasri (d. 436/1044), Imam al-Haramayn al-Juwayni (d. 478/1085), al-Ghazali (d.
505/1111), al-Fakhr al-Razi (d. 606/1209), al-Rafi'i (d. 623/1226), al-Nawawi (d.
676/1277) and many others. Only someone who never seriously read these authors
would be so ignorant of the intricate structure of their thought and would be so blind to
the quality of their presentationsNo one, until recently, has challenged this century-old
nonsense. However, one should not underestimate its power for harm, for even
nonsense has a function: if Islamic law reached its zenith with Shafi'i, and if the 3rd/9th
century ushered in stagnation, where Islamic law lost touch with political and social
reality, then there was little use for Islamic law and, in effect, there was no legal history in
Islam to be written, until, that is, Muslims found salvation in the 19th century C.E.
encounter with the West. Only upon discovering European legal treasures did Muslims
resume their legal history, which is now once again worthy of being recorded and
studied. On the basis of this scenario, therefore, the near millennium between Schacht's
zenith of Islamic law and the Western-inspired tanzimat constituted little more than a
historical vacuum filled with motionless history that needed to be injected with life and
vibrancy by the benevolent European powers.313

The Gates Reopened

I will introduce the next point by looking at the work of Schacht and his discussion of the
gates of ijtihad. I chose Schacht because he is considered the most learned of the
Orientalists, although the scholarly view of his work has been changing as a result of
recent research over the last few decades which is finding his work to have been a big
pile of crap:
It is, I think, the unanimous scholarly view that Schacht's work defined the sub-field of
Islamic legal Orientalism. He is perceived to be its father, so to speak, and to be rivaled
by no other. The grip he possesses over the minds of living Orientalists specializing in
Islamic law has more to it than their enthusiastic and unanimous censure of dissenting
voices critical of his scholarship in conferences and colloquia. It encompasses in fact the
worst form of taqlid - rehashing and reproducing his ideas with little, and in many cases
total absence of, critical and independent thought. His hold on the field has come to
resemble something of a prophetic or saintly authority, in that the most cursory and
passing of his remarks on any issue, however minor, are taken to be dogmatically
authoritative, to be questioned only at one's peril and only when supported by ample
evidence, which Schacht himself often does not bother to provide. Thus, Schacht's
negative effects have been due not only to what he propounded but also to the way he
has been received. His writings, especially in Origins and An Introduction, have led to a
slowing down, if not retarding, of the sub-field of Islamic legal studies during the past five
decades. As we shall see, there is not one single major thesis that he advanced which
has proven to be sound or which has positively paved the way for further, more
advanced research. If his scholarship has engaged the field, it has done so in a way that

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has provoked research with new beginnings, as if he either never wrote or as if in

diametrical opposition to his work.314

We were unable to find a reference in Mr. Spencers proofs that gave any information
regarding the details of the purported closing of the gates of ijtihad. Three out of his
four proofs consisted of people repeating a soundbite: one was a draft dodger with a BS
degree in Russian whose work includes writing travel guides and editing a Boy Scout
magazine, the second was a Muslim who runs a mosque in Detroit and likes to make
out with US presidents, and the third was from a 160 year old work by a Russian
Orientalist that had been creatively edited by a Christian missionary. The fourth proof,
the only one from a highly respected Muslim scholar who actually backed up his
statements with some background, turned out to be a great example of the opposing
view; that the gates of ijtihad were never closed. So lets take a look at what the top
Orientalist scholar relies on as proof that the gates of ijtihad were closed.
In Schachts Introduction to Islamic Law, which was quoted in the introduction,
Schacht does not cite references like other scholars do. He does not insert footnote or
endnote numbers at the end of a sentence within the text of the book. Instead, his
chapters are split into short sections, and at the end of the book each section contains
general references for that section. This is not as specific as the standard method, but
with Orientalist scholarship you take what you can get. The best we can do, then, is to
look at the references Schacht gives for the chapter section which talks about the
closed gates of ijtihad. Lets look at those references.
First, Schacht cites D.B. MacDonalds entry for the term Idjtihad in the Shorter
Encyclopedia of Islam.315 In that entry, MacDonald repeats the typology of Pasha that
we have already talked about, and then says that from time to time individuals
appeared who, moved either by ambition or by objection to fixed positions, returned to
the earliest meaning of idjtihad and claimed for themselves the right to form their own
opinion from first principles. So he says that independent ijtihad ceased to exist (the
errors of this statement have already been addressed), but then he says that people
reached that level anyway. I dont understand this line of reasoning; the gates were
closed, but some people practised ijtihad anyway. An alternative explanation might be
that the gates simply did not close, and the reason people practiced ijtihad was because
nobody stopped them. Also, MacDonald does not care to mention how widespread the
practice of ijtihad was below the level of independent ijtihad. There are no answers
here.
Since the time that the Shorter Encyclopedia of Islam was released, a new edition of the
full version of the Encyclopedia of Islam has been released. Here is an excerpt from the
entry for mudjtahid:

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Until quite recently, numerous authors have reckoned that, towards the end of the
3rd/9th century or the beginning of the 4th/10th, when the sharia had been elaborated in
detail, a consensus was gradually established among the scholar-jurists of all the Sunni
schools, considering that idjtihad could no longer be practicedThis notion of the
closure of the door of idjtihad (insidad bab al-idjtihad) and its logical consequence, i.e.
the disappearance of mudjtahids, has been vehemently opposed by certain scholarjurists. A critical re-appraisal of the question, based on primary sources from the 4th/10th
century, shows that jurists capable of idjtihad existed almost all the time316

The field of Islamic Law has developed in the past few decades, even within Orientalist
sources. There is no reason for anyone to perform taqlid of century-old Orientalist
sources any more.
Schacht then cites himself in the Shorter Encyclopedia, where he spouts of the same
soundbite that he did in his book. Citing yourself saying the same unsupported
nonsense in a different book does not lead to any new discoveries.
Schacht also quotes Kazem Beg! To his credit, unlike Sell and Hughes above, Schacht
is actually able to copy Mirza Kazem Begs name correctly from the reference he quotes
from. I guess that is why Schacht is king of the Orientalists. We have discussed Kazem
Begs paper, and it is also leads to no answers.
His last reference is a book by Theodoor Juynboll, 317 who repeats the same Orientalist
mantra nearly verbatim. It is amazing how close Orientalists gates of ijtihad stories
resemble each other, including having no substantive references or details. Juynboll
then makes nearly the same statement as quoted by MacDonald above:
The abovementioned orthodox Islamic opinion that all later scholars have to adhere to
taqlid was not shared by all Islamic authorities. There have always been scholars who
rejected the concept of madhab and who were of the opinion that later scholars had to
continue trying to understand Gods will according to their knowledge and mind as
well.318

Once again; the gates of ijtihad were closed, but people practiced ijtihad anyway.
Weird. Once again, we find no new information here. I have discovered writing this
paper that researching Orientalist scholarship involves reading the exact same thing in
100-year-old-plus books, over and over again, by different authors. The only difference
is that the language changes. Basically, they are translating the same unsourced,
unsupported paragraph into different languages. Its very boring.
Juyboll brings up a paper319 by Snouck Hurgronje (yet another Orientalist) which talks
about the Shafii jurist Ibrahim al-Bajuri (d. 1860). Hurgronjes paper is a review of a
book written by Eduard Sachau.320 In Sachaus book, he first details the qualifications for
being a mujtahid, then says that jurists disagree about the possibility of absolute

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mujtahids existing (note that he is talking here about independent ijtihad), and then
claims that Bajuri believes that absolute mujtahids can always exist:
According to Ibn Daqiq al-Id [d. 1302], such a person (a general mujtahid) may exist at
any time, except shortly before the Day of Judgement. Following his view, some
extraordinary jurists explain: We do not obey Schafi'i (i.e. we are not his followers), but
our opinions agree with his. Bajuri has the same view.
In contrast, the opposite doctrine, the one by Ghazali, implies that there is no longer a
mujtahid after the four Imams (Abu Hanifa, Mlik, Schafi'i, 'Ahmad Ibn-Hanbal).
According to this theory the individual jurist has nothing other to do than follow the
master (of Abu Hanifa, or Malik, etc.), meaning he must know the principles of his
master, just as his master needed to know the origins of the Law.
The judge therefore has the choice, he may act as mujtahid if he complies with all
conditions set out in this chapter, or he may limit himself to representing the principles of
one of the four masters mentioned. In the latter case he cannot decide according to a
different doctrine other than that of his master.321

Sachau, although not correct, is still somewhat more even-handed regarding his
treatment of the possible existence of mujtahids than most Orientalists were. His claim
that Ghazali was of the view that there is no longer a mujtahid after the four Imams,
however, is dead wrong, as Hallaq has shown (through researching Ghazalis writings
imagine!):
There was no doubt in Ghazali's mind that ijtihad is attainable through diligent study,
intellectual exercise, and immersion in scholarly disputations (munazarat). He admitted
the extinction of independent mujtahids who were able to establish their own school of
law, but he certainly did not imply the same for those jurists who could lead the
community and revive the Shari'a when this need arose. Therefore, it is entirely
inaccurate to say, as some later jurists did, that Ghazali thought all mujtahids to be
extinct; such a claim not only has no basis in Ghazali's writings but also sharply
contradicts the several statements he made throughout his books. To Ghazali, only two
kinds of mujtahids were known, the independent (mutlaq) and the limited (muqayyad).
The latter's activity remains within the limits of his school. Because Ghazali admitted the
fact that the eponyms of the schools are defunct and irreplaceable, and because the
task of tajdid (renovation) requires a jurist of high caliber who does not practice taqlid, it
can be safely said that Ghazali recognized the existence of mujtahids fi al-madhhab,
especially that he himself was a mujtahid in the Shafii school.322

In Hurgronjes review of Sachaus book, he repeats the gates of ijtihad soundbite in a

very similar manner to what we have detailed previously (this time in German). He then
says:

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Islam, as well as the Catholic Church, have quite correctly understood that an infallible
community, if it wants to benefit from its' infallibility, must have living bodies of its
consensus at all times, in order to prevent different viewpoints on the meaning of the
written texts making the agreements illusive. If academics were allowed to differ on the
meaning of Schafi'i's words, there would be no uniform Schafi'itic madhhab.323

This is very funny in light of the section on ikhtilaf above. I guess Hurgronje never heard
of ikhtilaf, and that most every question in Islamic Law has at least a few different
opinions on it. Orientalists are idiots.
Anyway, Hurgronje also points out that Bajuri was of the opposite viewpoint on the
existence of absolute mujtahids than Sachau claimed. Hurgronje quotes Bajuri 324 as
saying that absolute mujtahids were extinct since the year 300 H, and that even fatwamujtahids could no longer be found. Bajuri says in Hurgranjes quote that recent great
jurists such as al-Hajar al-Haytami (d. 1567) and al-Din al-Ramli (d. 1596) were not
even fatwa-mujtahids, although he does admit that there is disagreement on this.
Here, then, is the earliest example I found of a Muslim repeating the Orientalist gates of
ijtihad soundbite. (He does so in a manner similar to the Orientalists; no details or
references.) We talked about Mr. Spencers al-Qazwini example of a Muslim repeating
the soundbite, but also suspected his motives, considering that his mosque is in Detroit
and he likes to get all kissy with President Bush. Bajuri, however, is different. He was
the Grand Imam of al-Azhar University from 1847 unti his death in 1960. He was a
knowledgeable Muslim living in an Islamic nation! Also, I could not find any pictures of
Bajuri making out with any US presidents of the era! I suggest to Mr. Spencer that he
replace his al-Qazwini quote with Bajuris.
So why would Bajuri repeat the Orientalist soundbite? We will address this question
now.
After the West occupied Muslim lands and eradicated their system of Law, two main
groups responded to the situation in different ways. As a result of colonization, the
conservative religious scholars, the ulema, were losing their traditional position as the
custodians of Islamic Law. The Sharia was being decimated by codification, which was
intiated by the West and was allowed to happen by the Islamic rulers. The conservative
scholars were concerned that this would divide the Muslim community and ultimately
destroy it. What they did in response was to play up the Orientalist invention of the
closed gates of ijtihad. In this way, they portrayed themselves as the inheritors of the
true interpretation of Islamic Law, and that only by following this law as they described it
could the Muslim community stay united and retain their culture. Agreeing with the
gates of ijtihad mantra was an attempt to unify the Muslim community and to retain the
ulemas status as the true custodians of Islamic Law.

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Another group, the modernists, or reformers, were collaborators with the West. They
also adopted the Orientalist invention of the closed gates of ijtihad, but their goal was
not to save Islamic culture and their system of law, but to transform their society in the
image of the West. In a transformed, westernized culture, the reformers would in effect
replace the ulema as the intellectual class.
Gesink calls the idea of the closed gates of ijtihad an invented history or invented
tradition,325 and talks about these two groups:
In the nineteenth century, conservative scholars in Egypt met the challenge of state
encroachment and European imperialism by insisting that lay believers follow a
consistent body of rulings within the variety offered by the shari'a, and they claimed that
these bodies of rulings had been unchanged throughout several previous centuries. This
assertion helped satisfy their desire for a consistent body of law in the face of external
challenges and internal divisions. In response, another group, generally known today as
the Islamic modernists, declared that Islamic society had entered a period of moral and
social decline, and that this had produced the divisions in the community that weakened
it. The modernist reformers initiated a movement to reinvigorate religious institutions and
educational systems. In the process, they played up the invented history of an
immutable legal tradition and claimed that this was the cause of moral and social
stagnation. They used this argument to justify introducing an epistemological shift in the
foundations of law and education away from received knowledge (embodied in a legal
method called taqlid, which is similar to following juridical precedents) and toward
individual judgment (embodied in a legal method called ijtihad). The modernists claimed
that this shift toward individual judgment, once it became widespread among Muslims
through an appropriately reformed educational system, would inspire an intellectual
revival of Islamic society. Muslims would discover that the true Islam accorded with the
principles of science and natural law.326

Notice how Gesink defines taqlid as being similar to following juridical precedents, and
not blindly following. Scholarship is moving beyond the Orientalist lies and distortions.
Both of these groups, then, had their own motivations to repeat the Orientalist lie of the
closed gates of ijtihad. One of the members of the conservative group was Bajuri,
who, once again, was in part defending the position of the ulema by repeating the
Orientalist lie:
Nineteenth-century Eyptian legal scholars went beyond restriction of ijtihad to complete
interdiction. The Orientalist scholar Snouck Hurgronje cited Shaykh Ibrahim al-Bajuri,
chief mufti of the Shafi'i madhhab in Egypt, as having stated that ijtihad ended by the
third century after Muhammad's deathIn the latter part of the twentieth century, the
dominant explanation for al-Bajuri's statement was that the community of religious
scholars had retreated into a defensive posture as a result of government encroachment
on their territory.327

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The modernists goal was to modernize in the image of the West, and to do so they
needed to replace the authority of the ulema with their own ideas. In order to do this,
they denounced taqlid and promoted ijtihad. The ulema, however, knew the history of
Islam and what happened in the early centuries when unrestricted use of ray allowed
the proliferation of hundreds of schools of law, which threatened to end Islam through
internal division, and they were not pleased with the modernists plan of allowing anyone
to practice ijtihad:
Indeed, the modernists' proposal to extend the franchise of ijtihad horrified many
nineteenth-century legal scholars, who had for decades been fighting to preserve an
increasingly fractured Muslim community against intellectual and legal divisions. They
raised concerns about the potential of widespread ijtihad to further undermine the
Islamic legal tradition and the unity of the Islamic community. However, they too
projected a tradition of legal inflexibility, to preserve their authority as interpreters of the
shari'a, as repositories of correct religious knowledge, and ultimately as defenders of
communal unity.328

Internal division, however, was exactly what the West wanted, and was likely a primary
goal in their encouragement of ijtihad. From the Wests point of view, the new ijtihad
would lead either to Westernization of Muslim countries, or at least fracture it into a
feuding mess that they could dominate easier.
In the battle between the conservatives and the modernists, the modernists redefined
taqlid and ijtihad, following the Orientalist view (in the quote, al-Afghani [d. 1897] is used
as a prominent example of the modernist group):
Whereas conservative legal scholars such as 'Ilish [d. 1881] had championed taqlid as
the means to strengthen Islamic society and claimed that independent ijtihad had
ceased and should not be revived, the reformers saw taqlid as the cause of weakness
and independent ijtihad as the means of reinvigoration. The Egypt-based reformers took
this a key step further: they stripped taqlid and ijtihad of their legal, technical meanings
and recast them as epistemological concepts with social meaningsWhereas 'Ilish
defined taqlid strictly as a method for providing legal guidance, in which someone who
did not have the knowledge and training to interpret religious sources followed the
opinion of an authority on legal matters, al-Afghani defined it as a violation of the
Qur'anic injunction to seek out proof for one's beliefs rather than doing as one's
forefathers didAl-Afghani therefore stripped taqlid of its technical, legal meaning and
recast it as blind imitation of others' beliefs. This redefined taqlid came to the forefront
in al-Afghani's philosophy as the primary cause and constant of social stagnation and
decay.329

Although the conservatives tried to stop the modernists, in the end, it was the
modernists who were to win the battle:

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Egyptian scholars of the nineteenth century claimed cessation of ijtihad in order to

discredit these movements and protect the Islamic community fom internal divisions.In
the end, the modernists' vision of reform prevailed. While they addressed real social ills
and made great strides in adapting certain areas of law to changing social
circumstances-such as the area of women's education-there was a significant tradeoff.
Their epistemological shift in the understanding of legal methodologies fundamentally
changed the public's understanding of the meaning and ownership of certain legal
methods. Ijtihad, which had generally been understood as the province of specially
trained legal scholars, became something any educated Muslim could do.330

So the Orientalists, along with the West, got what they wanted. The view among many
Muslims became that ijtihad was for anyone, and this idea spread rapidly.
Conservatives, meanwhile, lost their position within Muslim society:
Seven of the eight most popular newspapers and journals published in Egypt between
1870 and 1911 unabashedly supported some version of al-Afghani's program and
utilized al-Afghani's populist concept of ijtihad Over the decades of the twentieth
century, conservatives like 'Ilish who had defended taqlid slipped into obscurity, their
efforts at first ridiculed as reactionary, then discarded as survivals of a stagnant past.331

Now the Orientalists could watch the Muslim community split up and fight amongst
themselves. At the same time, they could co-opt the modernist groups and guide them
into becoming copies of the West. There was one other consequence of the West
opening the gates of ijtihad to anyone, however. When you open the gates of ijtihad
to all, its not only collaborators with the West that are free to exercise it. Those who are
not friendly to the West can exercise ijtihad as well:
Al-Afghani's followers became the intellectual and political elite of the early twentieth
century, including Sa'd Zaghlul, chief architect of the Egyptian independence movement,
and Muhammad 'Abduh, chief mufti of Egypt from 1898-1905 and initiator of modernist
philosophies that traveled the globe. 'Abduh's ideas in particular inspired Islamic
nationalist movements in the Ottoman Empire, the creation of the Muslim Brotherhood in
1928, and Palestinian jihadist organizations in the 1930s. 'Abduh and his follower
Muhammad Rashid Rida were largely responsible for spreading the idea that ijtihad was
an essential duty required of all Muslims. 'Abduh spent his life trying to eliminate the
vestiges of taqlid from the legal and educational systems of Egypt. Rida wrote in alManar that taqlid had lulled the Muslim community into intellectual laziness, which
undermined their faith and weakened their commitment to Islam. In order to "cure" this
weakness, taqlid of the founding Imams would have to be replaced by a kind of ijtihad
based on the Qur'an and the practice of the early community (salaf), which could be
performed by all who were educated in Arabic; this would help strengthen their beliefs
and unify the community.332

95

One of the biggest factors contributing to the rise in Islamic militancy 333 was the opening
of the gates of ijtihad by the Orientalists and the West to anyone who wanted to
perform it. Yet another case of blowback:
The historical reality in which ijtihad continued to be used to bring rulings into conformity
with contemporary practices has only been uncovered in the last decade, and the
rationale behind taqlid still remains buried under a century of polemical fallout. The
redefinition of ijtihad and taqlid has had a transformative effect on the political landscape
of the Islamic world. The reformers' extension of the right of ijtihad to lay believers
contributed to the rise of many divergent sects, from secularists to relativists to militant
groups. The emergence of twentieth-century sects from Egypt-based modernist
movements and these sects' adoption of lay ijtihad has already been well established by
other scholars. For example, the founder of the Muslim Brotherhood, Hasan al-Banna',
the Brotherhood's chief theorist of the 1960s, Sayyid Qutb, and members of the
Brotherhood's more militant splinter groups all trace their philosophies to Jamal al-Din alAfghani and the early Islamic modernists' popularization of ijtihad. Most follow
elaborations of al-Afghani's philosophies by Muhammad 'Abduh's and Muhammad
Rashid Rida, both of whom tended to assume that ijtihad would lead believers to the
essence of a true Islam. According to Shukri Mustafa, executed leader of the militant
splinter group Jama'at al-Muslimin (al-Takfir wa al-Hijra), Islam has been in decline ever
since men have ceased to draw their lessons directly from the Koran and the Sunna,
and have instead followed the tradition of other men, those who call themselves imams.
Shukri Mustafa's own interpretation of Qur'anic verses 2: 216 and 2: 232 indicated to him
that God possesses knowledge and we do not, and that therefore everything outside of
the Qur'an and hadith is based on uncertain knowledge-including the rulings and
methods generated by centuries of jurisprudence. In his opinion, the Qur'an is clear
Arabic and understandable by anyone who has a good dictionary, and so there is no
need to be bound by texts of antique interpretations.334

Hallaq explains how the decimation of Islamic law created a huge black hole in an
entire society. Islamic militants were more than happy to help fill that hole:
Having codified the law on the basis of Western legal models, and having virtually
decimated the infrastructure of the traditional legal profession, the nation-state jettisoned
Islamic law altogether and reigned supreme as the unchallenged center of legal and
political power. I am convinced that when the colonial powers pressed for these reforms,
they did so without understanding either the dimensions or the ramifications of these
changes. They surely did not realize that in doing so they were introducing a deadly
combination that would one day produce a troubled and explosive area of the world. This
effort at pushing traditional Islamic law aside and rendering it inoperable if not defunct
should have alerted many to the fact that not only had the rule of law come to an end but
that a major gap, a virtual black hole, had fairly suddenly been created without any real
substitution or replacement.335

96

As a result of the Orientalists opening of the gates to all, now anyone can issue fatwas,
including Bin Laden:
Bin Ladin, whose formal education consists of college degrees in business and
engineering, has carried out his duty in part by issuing fatwas, or legal advice,
previously the prerogative of the specially trained legal scholars, the muftis. Indeed, the
issuing of lay fatwas has proliferated to such an extent that almost any authority figure
can claim that privilege and be accepted, despite the fact that such fatwas are often
reached using simplistic methods of legal derivation that ignore contrary evidence and
effectively replace an authoritative text with an authoritarian interpreter.336

It was the West that initially closed the gates of ijtihad in order to decimate Islamic law,
then reopened them to anyone and everyone, which resulted in Islamic militant groups
replacing the ulema. Islamic militancy is not a result of taqlid, but a result of opening the
gates of ijtihad to all:
Journalistic attempts to explain Islamic militancy as reactionary adherence to an
outdated and inflexible legal system are informed by an invented history. Islamic
extremism is partly a result of the radical flexibility of twentieth-century Islam, not its
purported rigidity. The Islamic legal tradition was in past practice adaptable to
contemporary social conditions, and attempts to claim that it was not were largely
political in nature and rhetorical in effect. However, a debate in the nineteenth century
over its very flexibility fostered both an invented tradition of legal inflexibility, which
continues to influence Western and Muslim views, and a subsequent dramatic move
toward lay interpretation. Widespread lay interpretation has allowed individuals to read
their own purposes into legal sources and manipulate them to serve various political
agendas-producing the chaos on the earth that nineteenth-century reactionaries had
tried to prevent.337

Al Qaeda is another group who strongly advocates ijtihad:

The ultratraditional Salafist movements associated with Al Qaeda who are in some
sense the polar opposite of the liberal enthusiasts of ijtihad use very similar language
about scrapping the vast corpus of Islamic legal commentaries and returning to the

original texts.338
This struggle between the modernists and the conservatives continues today, and,
fortunately, the trend seems to be shifting back towards more conservative opinions.
The following quote is an example of this. Abou El Fadl, a conservative, challenges
Muqtedar Khan, a modernist, on the folly of allowing ijtihad to be practiced by whoever
has some free time:
Instead of making the effort to study Arabic and study the textsMuqtedar Khan is
simply throwing around terms like ijtihad and mufti and fatwaThis kind of thing is why
theres such a vacuum of authority. This is why we have people like bin Laden going

97

around claiming to be IslamicIf everyones ijtihad is as good as anyone elsesthen

bin Ladens ijtihad is as good as Muqtedar Khans.339

Why?
We talked about the fact that Orientalists fabricated the myth of the closed gates of
ijtihad, but did not discuss why they would want to do so. One reason is obvious: lets
say country A wants to attack country B (or occupy it, or enslave its people, or steal their
natural resources, or install a puppet government to aid with these things, etc). The first
thing country A will do is to dehumanize the government and people of country B. The
government of country A dehumanizes the other country for the benefit of (and to gain
the support of), the citizens in country A. People in country A are much more likely to
support killing the people and decimating the culture of the people in country B if they
see them as something less than human. So the West portrays Islam as a static,
unchanging, primitive culture whose system of Law has not changed for a thousand
years. The government in effect tells its people that although a few of the people in
country B may have to die, we are attacking them for their own good, in order to
advance their culture. Just like we did for the Native Americans. We do so because we
are so generous. So the West occupies Islamic lands and replaces their system of law
with their own. This is basic stuff.
The more interesting question is why would the West encourage ijtihad to be practiced
by all Muslims who care to do so? Before the West colonized Muslim lands, the gates
of ijtihad were open. The West came in, closed them, and later encouraged them to be
reopened. Why close the gates and only to reopen them? The answer involves who the
West wants to be practicing ijtihad. Throughout the centuries, ijtihad was practiced by
only top religious scholars, and change within Islamic law was ushered in by these
scholars through the already established four schools. This resulted in a stable system
of law that lasted for centuries. The West, however, does not want Islam to be stable,
and that is the answer to our question. The West encourages ijtihad to be practiced by
all Muslims in order to end Islam.
Part of the ultimate objective of the West is to homogenize the entire world. Competing
worldviews cannot be tolerated, because the worldview of the West is so vile that it
could never withstand competition. The West, therefore, does not want to compete with
other worldviews, it wants to obliterate them. They want the entire world to be
composed of brain dead sheeple like they have turned Americans into. So how do you
obliterate Islam? Its the age old answer: divide and conquer. The only real threat that
Islam has faced in its long history occurred in the formative period, when the
widespread practice of ijtihad resulted in the formation of hundreds of schools of law
and threatened to fracture it to the point of nonexistence. In the eyes of the West, the

98

best way to end Islam now is to recreate those same conditions, and open the gates of
ijtihad again to everyone:
[Islam] has stood for centuries, withstanding the most bitter blows of its enemies. Only
from within can it be weakened. No doubt, Islam has its intelligent foes among whom this
fact is well-known. The spectacle of the disunity and fitnas which divided the early
Muslims despite their superior piety, and the solidity and cohesiveness of Sunnism after
the final codification of the Shariah in the four Schools of the great Imams, must have
put ideas into many a malevolent head. This is not to suggest in any way that those who
attack the great madhhabs are the conscious tools of Islams enemies. But it may go
some way to explaining why they will continue to be well-publicised and well-funded,
while the orthodox alternative is starved of resources. With every Muslim now a proud
mujtahid, and with taqlid dismissed as a sin rather than a humble and necessary virtue,
the divergent views which caused such pain in our early history will surely break surface
again. Instead of four madhhabs in harmony, we will have a billion madhhabs in bitter
and self-righteous conflict. No more brilliant scheme for the destruction of Islam could
ever have been devised.340

The plan is to end

Islam.

This plan, however, will not work. Although the West has done incredible damage to
Islamic culture of the past two centuries, ultimately, Muslims will not allow their culture
and religion to be destroyed by the West. Islamic culture is in the process of
transformation, and regardless of the exact outcome, Muslims will not allow their system
of law to become a copy of the West:
attempts which have sometimes been made to naturalize European law or parts of it
by finding justification for it in the sacred texts and methodologies of traditional
jurisprudence. The success of this enterprise, which is often subsumed under the
heading of ijtihad, has probably so far been marginal. For millions of Muslims, the
modern law of their countries, lacking a proper religious foundation, has little if any
authority.341

Any legal system that is imposed on Muslims that has any Western fingerprints on it will
never be accepted by the Muslim people in the long term. Whatever form Islamic law
ultimately takes will need to have an organic link with the past in order to be accepted.
All legal systems need authority in order to be accepted. As Thomas Hobbes said, "it is
not wisdom but authority that makes a law." An imposed Western law, or law that is the
result of ijtihad by the lay-person (especially if influenced by the West), will not be
accepted.:
Once Islamic law is viewed from the perspective of law and legal science, the
appearance of stasis and the privileging of provenance over substance take on a
different meaning. Unalloyed, ijtihad turns out to be far less effective as an instrument of

99

change. For without the advantage of a genetic link to pre-existing authorities, the results
of ijtihad often lack the authority to command assent, just as the process of ijtihad itself
lacks the power of self-authentication. This is why feminist, modernist, reformist, and
even fundamentalist forms of independent interpretation tend to exert such little
influence on the actual substance of Islamic law.342

Anything that does not have an authoritative link to the past (taqlid), will ultimately fail:
In view of the fact that Islam and Shariah values are deeply rooted in the Muslim
collective conscience and form a major foundation of Muslim culture, any process of
modernization and development that proves insensitive to these will certainly be met
with resentment and failure. 343

Conclusion
The closed gates of ijtihad was nothing but an Orientalist lie. Scholarship has known
this for at least 25 years. Maybe its time for people in the West to perform some ijtihad
themselves, and to stop performing taqlid of the sunna of the Orientalists.344
The latter claim [about the closed gates of ijtihad], having deep roots in Orientalism and
colonialist policies and sanctioned by Schacht's scholarly authority, has in particular had
adverse effects, for it took Orientalism (not without the help of outsiders) more than a
century before only beginning to emerge from its retarding and paralyzing effects. With
the benefit of hindsight, it now turns out that the gate that was shut was that of
Orientalist ijtihad, not that of the shari'a.345

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1 Menski, p. 340
2 Ali, p. 19
3 I use the term Orientalist in this paper in accordance with the image painted by Edward Said in his book Orientalism,
which is that of a Western academic who describes the East in hostile and deprecatory ways. Orientalism began during the
Western Imperialist ages of the eighteenth and nineteenth centuries, and continues to this day.

4 See discussion in Spencer (2007), p.81

5 Schacht, p. 70, 74
6 For example, see Ostrorog, p. 24-26, Gibb, p. 67, Coulson, p. 80, Anderson, p. 7
7 Gerber (1999), p. 80
8 Makdisi (1981), p. 290
9 Hallaq (1992), p. 173
10 Sunna (plural sunan) is the model conduct of an individual or group which provides an example to be followed by
others. The term sunna of the Orientalists was coined by Hallaq (1992), p. 175

11 Spencer (March 8, 2007), citing a US Institute of Peace report on ijtihad, which is available here:
http://www.usip.org/sites/default/files/sr125.pdf

12 Hallaq (1983)
13 Hallaq (1984)
14 Weiss (1998)

15 Those who support the idea of the closing of the gates of ijtihad likely feel that there is no reason to debate the
subject. Their technique of constantly repeating sound bites works quite well for them in convincing the masses.

16 See Hallaq (1994), Addenda for Chapter V

17 Spencer (2003), p. 21. For some background to this quote, see
http://littlegreenfootballs.com/article/5933_MSA_President_at_ClearGuidance/comments/#ctop The person that Spencer
and Charles Johson at "Little Green Footballs" accused of making the inflammatory statements denied having ever made
them in the comments section. The comments have since been deleted. Scholarship does not involve printing disputed
quotes from blogs that are run by an anonymous author.

18 Lewis (1994), p. 100 and p. 57

19 The USIOP document is here: http://www.usip.org/sites/default/files/sr125.pdf , and the paper written by al-Qazwini
from which it quotes from can be found on al-Qazwinis site here:
http://alqazwini.org/qazwini_org/articles/by_articles/ijtihad.htm

20 http://www.gettyimages.com/detail/news-photo/president-george-w-bush-kisses-iman-hassan-qazwini-a-local-newsphoto/1956413

21 New York Times, Fears of Inquiry Dampen Giving By U.S. Muslims, October 30, 2006, by Neil MacFarquhar
22 For the following discussion, see discussion in Hallaq (2007) p. 34-78, and p.113-121
23 Schacht, p. 70
24 Unulat al-arifin in Kerns Ikhtilaf of Tabari, 14, cited in Bakhsh, p. 212
25 For an article detailing these similarities, see White
26 Ibn al Muqaffa, Treatise of the Companions, in Rasail al Bulagha, ed. Muhammad Kurd Ali/ 4th ed. (Cairo: 1374
AH / 1954 CE), p. 126-7, cited in Vogel (1993), p. 398

27 Hallaq (2007), p. 125

28 Kamali, p. 4
29 Hallaq (1984), p. 7-10
30 Khaldun, al-Muqaddima (Beirut, n.d.), pp. 446-447 (F. Rosenthal's trans. III, 5-6), cited in Hallaq (1984), p. 9
31 Abu al-WafaD Ibn 'Aqil, Kitab al-Funun, ed. G. Makdisi, 2 vols. (Beirut, 1970-1971), II, 510. See also a similar opinion
expressed by Muhammad b. Ahmad Ibn Rushd, Fasl al-Maqal, ed. G. F. Hourani (Leiden, 1959), p. 8, cited in Hallaq (1984),
p. 9.

32 Mutahhari, The Role of Ijtihad in Legislation

33 Hallaq (2009a), p. 58-59
34 Weiss (1978), p. 207
35 Hallaq (2001), p. 26
36 Makdisi (1981), p. 7
37 Gerber (1999), p. 81-82
38 Ahmad, p. 45
39 Ahmad, p. 46
40 See the entry for ijtihad in The Oxford Encyclopedia of the Modern Islamic World, 1995
41 Hallaq (1984), p. 11

42 Al-Maqrizi, al-Mawdiz wa li tibar bi-dhikr al-khitat wa l-athar, II, (Cairo: al-Wahbiya press, 1284/1867), p. 344, quoted
in Makdisi (1981), p. 2

43 Gerber (1999), p. 81-82

44 Calder (2000) p. 217
45 Text: Men noemt dit taklid, dwz. het met gezag bekleeden eener andere school ten aanzien van een bijzonder
onderwerp. Juynboll (1903), p. 35

46 Graham, p. 502, for the Horovitz reference, see Josef Horovitz, "Alter und Ursprung des Isnad," Der Islam, VIII (1918),
pp. 44-47

47 Gerber (1999), p. 116

48 Fadel
49 Gerber (1998), p. 173
50 Menski (2006), p. 342
51 Hallaq (2001), p. ix
52 Stare decisis in US law is simply precedent, see Nyazee, p. 8
53 Jackson (2002), p. 8
54 Hallaq (2009b), p. 88
55 Vining, p. 188-190

56 Lombardi, p.43, 45
57 Johansen, p.124-5
58 Lombardi, p. 44
59 Hallaq (2001), p. 126
60 Weiss (1991), p. 130
61 Vogel (2000), p.13
62 Gerber (1999), p. 74 and p. 120
63 Hallaq (2001), p. 239
64 Hallaq (1997), p. 143
65 Hallaq (1984), p. 21
66 Ibn Aqil, Funun, I, p. 92-93, cited in Hallaq (1984), p. 22
67 Amidi, al-Ihkam, III, 253; Ibn al-Humam, al-Tahrir, III, 339-340; Shawkani, Irshad, p. 253, cited in Hallaq (1986), p. 139.
Also: The Hanbali group was open to people who were able to conduct ijtihad, maintaining that every era should have its
own mujtahid mustagill (independent thought). Hasyim, p. 84. Also: (Smiths paraphrase of Sharqawi): Ibn Hanbal
supported ijtihad based on the Quran, the sunna of Muhammad and of the Rashidun Caliphs, and analogy (qiyas). He called
for applying the spirit of the sharia, not its actual clauses. Smith, p. 192. Also, the Hanbalis maintain that ijtihad in all of its
forms remains open, Kamali, p. 400. Also: There existed also the doctrine, held by the Hanbalites and a number of
Shafiites, that no period would ever be devoid of a mudjtahid, generally understood as absolute mudjtahid. Peters (1980)

68 Hallaq (1984), p. 22
69 Subki, Jam al-Jawami, II, 398-399, cited in Hallaq (1984), p. 23

70 Weiss, p. 208
71 See explanation of this issue in Hallaq (1986), p. 138-139
72 Goldziher, p.81.
73 See: It must be noted that a mujaddid had to qualify as a mujtahid. In Hallaq (1984), p. 38, note 148, and All
mujaddid's are also mujtahid's but not all mujtahid's are mujaddid's, in Keles

74 N. Sh. al-'Umari, al-Ijtihad fi al-islam, Beirut, 1401/1981, pp. 226, 235, Muhammad b. Ali al-Shawkani, Irshad al-fuhul
ila tahqiq al-haqq min ilm al-usul, Cairo, 1347, pp. 223-4, M.H. al Ayyubi, al-Ijtihad wa-muqtadaya al-asr, Dar al-Fikr,
Amman, n.d., pp. 55, 57 (quoting Ibn al-Qayyim)), cited in Landau-Tasseron, p. 83

75 Spencer (March 8, 2007) and Spencer (March 30, 2009)

76 The web site is here: http://muslimcanada.org/ijtihad.html
77 See Hughes, entry for ijtihad on page 198. That the book was first published in 1885, along with other biographical
information for both Hughes and Sell (see below in text), is noted in Guenther, p. 91

78 Thomas P. Hughes, Notes on Muhammadanism, being Outlines of the Religious System of Islam, rev. ed. (London:
Wm. H. Allen & Co., 1877), p. X, also, T. P. Hughes. An Indian Missionary on Muhammad and Muhammadanism, The
Church Missionary Intelligencer, new series, 10, (1874), pp. 330-340. (p. 339-40), cited in Guenther, p. 100.

79 See Sell. Quoted material begins on page 32.

80 Ordination of Missionaries. The Church Missionary Intelligencer, 15 (Sept., 1864), n. p. cited in Guenther, p. 92
81 Guenther, p. 93
82 Guenther, p. 111
83 See Kazem Beg

84 Bivar, p. 284
85 Kemper, p. 127
86 Crews, p. 77
87 Text: ne fut pas honor de la dignit
88 You dont have to go much further than Wikipedia to read about Tabaris law school, but the school is mentioned or
discussed in the following, all of whom disagree with Kazem Beg: Melchert, p. 191, Rosenthal, p. 64, Berg, p.121, Kramer, p.
170, Stewart, p. 327, Goldziher, 97, Vikor, p. 115, Gordon, p.112, Bowersock, p. 714, Makdisi (1979), p. 6, Lucas, p.2,
Bernards, p. 170, Doniger, p. 1050, Murad, Tehrani, p. 12, Mutahhari, " The Role of Ijtihad in Legislation, n.p.

89 Rosenthal, p. 65
90 Schacht, p. 65
91 Makdisi (1979), p. 6
92 Haddad, n.p.
93 Text: Quant ce qui regarde Assuiouti.quoiqu'il soit au nombre des ulmas les plus clbres de l'Orient. p. 189
94 Both quotes from Goldziher, p.98
95 Al-Shawkani, al-Badr al-tali bi-mahasin man bad al-qarn al-sabi, Muhammad Zabara (ed.), 2 vols., photoreprint of
1348/1929 edn, Beirut: Dar al-Marifa, n.d., p. 333-4, as quoted in Haykel, p.87

96 Ghazal, p. 255, note 82

97 For example, the following paper describes Suyuti as the mujtahid imam and renewer [mujaddid] of the tenth Islamic
century: http://data.tanzeem.info/BOOKS/Magzine/2008/hikmat/hkmt07%20to%2009-08/images/hq05.pdf Also, see Kamali.
p. 492. I could make a long list of references like this as I did with Tabaris school (note 88), but I will leave it to the reader to

do so. Do a Google search on: mujtahid imam and Suyuti.

98 The book is available online here: http://islamtoday.al-eman.com/islamlib/viewtoc.asp?BID=139

99 Mahmud Shukri al-Alusi, Ghayat al-amani fil-radd ala al-Nabhani (The Utmost Desire, a Refutation of Nahbani)
(Cairo: Abd al_Qadir al-Tilimsani, 1907), volume 1, pp. 44-60. First published in 1903. Translated into English by Hager El
Hadidi and printed in Kurzman, pp. 158-171

100 Yusuf al-Nabhani, Shawahid al-haqq fi al-istighatha bi-sayyid al-khlaq. See discussion of this book in Fattah, p.144.
Nabhani was a conservative in the early 20th century who was resistant to change within Islamic society. This however, was
not the majority, but the minority opinion. This can be seen in the following passage:Al-Nabhanis writings challenge the
usual representation of Islam in the late Ottoman period. Rather than a picture of Muslims simply trying to modernize, the
picture is rather of rejection and resistance as well as reform. More importantly, al-Nabhani gives voice to the usually silent
and silenced opponents of change that has been depicted as an unqualified good for Muslims and Islam. (emphasis added)
Ghazal, p. 271

101 Mahmud Shukri al-Alusi, Ghayat al-amani fil-radd ala al-Nabhani (The Utmost Desire, a Refutation of Nahbani)
(Cairo: Abd al_Qadir al-Tilimsani, 1907), volume 1, pp. 44-60. First published in 1903. Translated into English by Hager El
Hadidi, cited in Kurzman, p. 159

102 Mahmud Shukri al-Alusi in Kurzman, p. 165

103 Mahmud Shukri al-Alusi in Kurzman, p. 166
104 Mahmassani, p.200
105 Mahmud Shukri al-Alusi in Kurzman, p. 167
106 Hallaq (2001), p. xi
107 Vogel (2000), p. 22
108 Subki said that al-Id was a mujtahid mutlaq with complete knowledge of legal sciences. (Tabaqat, VI, 2, 3, 6).
Ya'muri described Ibn Daqiq as follows: "He was excellent in deriving rulings from the Sunna and the Quran" (Subki, Tabaqat,
VI, 2-3; Suyuti, Husn, I, 143), both quoted in Hallaq (1984), p. 39, note 154

109 Taj al-Din enumerates dozens of cases in which his father [Taqi al-Din al-Subki] completely diverged from Shafi'i or
rulings he had chosen to follow although they were disfavored in the Shafi'i school (see his Tabaqat, VI, 113, 147, 182-196),
quoted in Hallaq (1984), p. 39, note 154

110 some Hanafis have considered Kamal al-Din ibn al-Humam as a mujtahid of the first class, Kamali, p. 499, note 78
111 I wish to be clear: we can make this list longer. All these jurists were described as mujtahids by other jurists and by
scholars. See Hallaq (1984), p. 39, note 154, Haykel, p. 99, Jokisch, p. 120, Roald, p. 196, Ruthven, p. 266, Vogel (1993), p.
399, note 5, Kamali, p. 499, note 78, Omar, p. 377, Alvi, p. 24, Talmon-Heller, p. 106, Mutahhari, The Role of Ijtihad in
Legislation, n.p., Sartain, p. 65, Gerber (1994), p. 89, Powers, p. 169

112 Jaques, p. 164

113 Jaques, p. 183
114 Jaques, p. 201
115 Pasha is referenced in Kazem Begs article on pages 170, 203 and 206. The typology he discusses is also instantly
recognizable as that of Pasha as described in numerous articles and books. For example, see Hallaq (2001), p. 14-17

116 For Rushd and Salah, see discussion in Hallaq, (2001), p. 2-17
117 Hallaq (2005), p. 164
118 Hallaq (2005), p. 162
119 Hallaq (2005), p. 169
120 See Mutahhari, The Role of Ijtihad in Legislation. Mr. Spencer himself referenced a different paper by Mutahhari
posted on the same website (see notes 66 and 67 for explanation).

121 One example Mutahhari gives of a jurist of this rank is Ibn al-Sabbagh, who died in 1451

122 Kamali, p. 492

123 Murad, n.p.
124 Omar, p. 375
125 Lewis, p. 111
126 Repp, p. 234
127 Haim Gerber, in discussing the text where Pasha describes his typology in relation to the closed gates of ijtihad,
comments that, the text does not say this. See Gerber (1999), p. 89

128 Makdisi (1981), p. 290

129 Jaques, p. 3
130 Lombardi, p. 45
131 Hallaq (2001), p. 62
132 Tehrani
133 See xxx regardin Egypt four qadi event
134 Jokisch, p. 120
135 Ahmed, Volume 11, p. 191
136 Ahmed, Volume 11, p. 194

137 Ahmed, Volume 11, p. 194-195

138 Hallaq (1994b),
139 Siyasah is law that is legislated by the ruler of the state rather than the ulema
140 Vogel (1993), p. 399
141 Ibid, In relation to the mentioned paradox, see Hallaq (2001), p. 85 for: It is quite instructive (though in no way
ironic) that Mazari, who unequivocally argued that no jurist of his time could attain the rank of ijtihad, was himself considered
a mujtahid.

142 Vogel (2000), p.7

143 Gerber, (1999), p. 83
144 Wansharisi, Miyar, vol. 7, 314 II, 10-24, cited in Powers, p. 162
145 Hallaq, (1994c)
146 Lombardi, p. 44
147 Haddad titled On the validity of Ijtihad from the viewpoint of Usul
148 Calder (1996), p. 144-145
149 Calder (1996), p. 159, note 43
150 Calder (1996), p. 156, note 34

151 Sartain states: A much more extensive explanation of al-Suyutis claim to ijtihadis found in his al-Radd ala man
akhlada ila l-ard wajahila anna l-ijtihad fi kull asr fard, in which he has assembled a whole battery of quotations, mainly from
orthodox Shafiite authors, to illustrate the following points The quoted material is taken from one of the points. The quote,
then, is from Suyutis writing, but is summarized by the author. See Sartain, p.64

152 Sartain, p. 66
153 See here: http://muslimcanada.org/sitedex.htm
154 http://muslimcanada.org/ambitioninterview.html
155 http://muslimcanada.org/pickthall_fatalism.htm
156 http://muslimcanada.org/fiqhcouncil.html
157 http://muslimcanada.org/binladensfatwa.html
158 http://muslimcanada.org/minorities.html
159 Mutahhari The Role of Ijtihad in Legislation, is from the al-Islam website, which is the same website that contains
the Mutahhari paper Spencer quotes from

160See:

https://islamthought.files.wordpress.com/2008/11/tanzih-of-the-shafiee-madhaab-from-the-innovating-

ashari-mutakalimoon.pdf

161 I am indebted to Mr. Spencer for exposing me to Mutahharis writings, which help to prove the position being
advanced in this paper

162 Hallaq (2001), p. 63

163 Mr. Spencer repeatedly uses this quote. See, for example Spencer, Charging ignorance to fool the ignorant

164 For example, see Spencer (2007), p. 82, http://frontpagemagazine.com/readArticle.aspx?ARTID=32630 and

http://www.jihadwatch.org/2009/03/bible-and-quran-equally-violent

165 See Spencer, Charging ignorance to fool the ignorant

166 Click here to see a clip of the back cover: http://books.google.com/books?id=focLrox-frUC&q=abdul+aziz
167 http://www.amazon.com/New-Encyclopedia-Islam-Revised-Concise/dp/0759101906
168 The Amazon profile says the Russian degree was in 1976, but this is a typo. Information from Columbia was
obtained from the Registrar as public information. Also, see his Classmates.com bio. The rest of this bio is based on these
two sources plus the Amazon bio.

169 See here: http://www.amazon.com/Saudi-Arabia-Travel-Berlitz-travel/dp/0029698405/ref=sr_1_5?

ie=UTF8&s=books&qid=1245988065&sr=1-5

170 Glasse (1985), p. 101, 57 and 87

171 Look him up here: http://www.ganyc.org/ or see his Linkedin profile.
172 Morris, p. 306
173 Hooglund, p. 115
174 Glasse, (2008). p. 209 https://books.google.com/books?id=focLroxfrUC&printsec=frontcover#v=onepage&q&f=false

175 Muhammad b. Ali al-Basri, al-Mutamad fi Usul al-Fiqh, ed. M. Hamidullah, et al., 2 vols. (Damascus, 1964), II, p.
929-931, quoted in Hallaq (1984), p. 5

176 Abu Ishaq al-Shirazi, al-Luma fi Usul al-Fiqh (Cairo, 1908), p. 85-6, quoted in Hallaq (1984), p. 6

177 3) Ghazali, Mustasfa, II, p. 350-4; H. Laoust, La politiqe de Gazali (Paris, 1970), p. 179-80, quoted in Hallaq (1984),
p. 6

178 Amidi, Ihkam, III, p.204-5, quoted in Hallaq (1984), p. 7

179 Sartain, p. 63
180 Kamali, p. 480. Internal quotes from: Rahman, p. 78, Rahim, p.174, Hallaq (1984), p. 14
181 Vogel (2000), p. 62
182 Glasse, p. 272
183 Mutahhari, The Principle of Ijtihad in Islam
184 Makdisi (1985), p. 92
185 Gerber (1998), p. 187
186 Gerber (1999), p. 93
187 Kamali, p. 325
188 Libson, p. 132
189 Kamali, p. 369
190 Kamali, p. 370
191 Kamali, p.371

192 As cited by G. Makdisi (1991), p. 36

193 (Prolegomena, p. 24), cited by Kourides
194 Gerber (1999), p. 112, Abidin quote from: Muhammad Amin Ibn Abidin, Nashr al-Urf fi Bina Bad al-Ahkam ala
a-Urf (Damascus: Matbaat Suriyya al- Jalila, p. 23

195 Tucker, p. 17, Internal quotes from Hallaq (2001), p. 232

196 Libson, p. 138, 140
197 The First Encyclopedia of Islam, for example says that urf is sometimes held to be equivalent to case law or
common law. First Encyclopedia of Islam 1913-1936, Volume VIII, Houtsma, M.T. et al, ed., p. 1031 (Leiden: E.J. Brill, 1987)

198 See John Makdisi, The Islamic Origins of the Common Law
199 Kamali, p. 351
200 Emon, p.
201 Al-Ghazali, Shifa al-Ghalil fi Bayan al-Shanh wa al-Mukhil wa Masalik al-Talil (Muhammad al-Kubaysi ed., Raasa
Diwan al-Awqaf 1971), p. 642-3, quoted in Emon, p. 374

202 Gerber (1998), p. 194-95

203 Menski (2006), p. 340, 339
204 Mallat, p. 264
205 Arabi, p. 62, note 72

206 Kabbani, n.p.

207 Arshad, n.p.
208 Malik, n.p.
209 Codd, p. 113
210 Oxford Encyclopedia, 1995, entry for Ijtihad, written by Hallaq
211 Safi, n.p.
212 Amanullah, p. 167
213 Weiss (1978), p. 208
214 Goolam, n.p.
215 Pock, n.p.
216 Ali, p.
217 Hasan, p. 15
218 Jokisch, p. 119
219 Vogel (2000), p. 78
220 Quoted in Vogel (2000), p. 78

221 Tucker, p. 13
222 Nielsen, p. 28
223 Vogel and Hayes, p. 34
224 Roy, Sfeir and King, p. 323
225 Ghamidi, n.p.
226 Hallaq (2009a), p. 183
227See http://www.livingislam.org/pres.html
228 Murad, p. 11
229 Nyazee, p. 113
230 Gerber (1994), p. 112
231 Ostrorog, p. 24-6
232 Menksi (2002)
233 Peters, p. 119
234 Gerber (1994), p. 55, the referenced study can be found in chapter titled Law and Social Status in Colonial New
Haven, 1639-1665, in Baumgartner

235 ibid

236 Gerber (1994), p. 40 (same reference for the following two examples in the text)
237 Hallaq (2009a), p. 167-68 and 171
238 Hadd offenses are those offenses that are mentioned in the Koran and constitute violations against the claims of
God. Hadd offenses include theft, unlawful sexual intercourse (zina), banditry, falsely accusing someone of zina, drinking
alcohol, and apostasy

239 For the following paragraph, see Peters, p. 12-15

240 Peters (2005), p. 149
241 Peters, p. 15 checked
242 Hallaq (2009a), p. 312 checked. See also, In the Hanafite doctrine in particular, it is nearly impossible for a thief or
fornicator to be sentenced, unless he wishes to do so and confesses. Peters, p.54 checked

243 Tucker, p. 189

244 Galal H. El-Nahal, The Judicial Administration of Ottoman Egypt in the Seventeenth Century (Minneapolis:
Bibliotheca Islamica, 1979), p. 28, quoted in Peters, p. 54 checked

245 See Peters, p. 61

246 Tucker, p. 196
247 Peters (2005), p. 92
248 Letter from Hastings, 10 July 1773, recorded on the progs of Council, 3 August 1773, Supplement, pp. 114-19,
quoted in Singha, p. 3, note 13

249 Peters (2005), p. 109

250 Sungha, p. 3
251 Dirks, p. 221
252 Fisch, p. 108
253 Vogel (2000), p. 247
254 Beattie, page 433 (table)
255 Sherwin, p. 180-181
256 Sherwin, p. 182
257 Fisch, p. 7
258 Spencer, Indian Muslim women fight instant divorce
259 See Tucker, p. 86-92
260 Ahmed, p. 311
261 Tucker, p. 87
262 Ahmed, p. 131
263 Spencer, Blogging the Quran: Sura 2, The Cow, verses 222-286
264 Tucker, p. 91-2

265 Tucker, p. 61-2, for the referenced study, see Nelly Hanna, Marriage among Merchant Families in SeventeenthCentury Cairo, in Sonbol, Women, the Family, and Divorce, p. 152-3

266 Hallaq (2009a), p. 188

267 Tucker, p. 92
268 Hallaq (2009a), p. 190-191
269 Hallaq (2009a), p. 283
270 Tucker, p. 109 for the referenced work, see Madeline C. Zilfi, We dont get along: Women and Khul Divorce in the
Eighteenth Century, in Women in the Ottoman Empire: Middle Eastern Women in the Early Modern Era, ed. Madeline C. Zilfi
(Leiden: Brill, 1997), p. 275

271 Tucker, p. 109, for internal quotes, see Svetlana Ivanova, Marriage and Divorce in the Bulgarian Lands (XV-XIX
c.), Bulgarian Historical Review, Vol. 21, No. 2-3 (1993), p. 118 and p.279

272 Gerber (1994), p. 32

273 Cott, p. 588
274 Ibid, p. 589
275 Tucker, p. 109
276 Population figure from Guillaume-Antoine Olivier, Voyage dans lEmpire Ottoman, lEgypte et la Perse (Paris:
Agasse, 1809), quoted in Ousterhout, Robert G., Studies on Istanbul and Beyond (Philadelphia: University Of Pennsylvania
Museum Publication, 2007), p. 58

277 Tucker, p. 138

278 Tucker, p. 161

279 Spring, p. 275

280 Spring, p. 277-78.For referenced material see Stone, Lawrence and Stone, Jeanne C. Fawtier, An Open Elite?:
England 1540- 1880 (Oxford: Oxford University Press, 1984), table 3.8.8. and table 4.2.9.

281 Tucker, p. 139-40, internal quote, see Wright, Ferguson, and Buck, Women, Property, and the Letters, p. 12
282 Tucker, p. 137
283 Look up the Married Women's Property Act of 1882
284 Tucker, p.224
285 Tucker, p. 196
286 Sherwin, p. 183
287 Tordova, p. 49
288 Ocak, Ahmet Yasar, Osmanli Toplumunda Zindiklar ve Mulhidler (Istanbul: 1998), p. 94, quoted in Deringil, p. 554
289 Ocak, Ahmet Yasar, Osmanli Toplumunda Zindiklar ve Mulhidler (Istanbul: 1998), p. 95, quoted in Deringil, p. 554
290 Deringil, p. 554
291 Heyd, p. 313
292 Sherwin, p. 176
293 Al-Qattan, p. 433

294 Nielsen, n.p.

295 McNeill, p. 485
296 Makdisi (1981), p. 284 and 286
297 W. M. Watt, The Influence of Islam on Medieval Europe (Edinburgh, Edinburgh University Press, 1972), p. 84
quoted in Makdisi (1981), p. 286

298 Ostrorog, p. 30
299 Spencer (2007), p. 83
300 Gerber (1998)
301 Gerber (1999), p. 83
302 Gerber (1998)
303 Gerber (1999), p. 81
304 Peters (1980)
305 Kamali (2003) , p. 28
306 Anderson, Michael, p. 71-72, internal quote from Bayly, C.A., Rulers, Townsmen and Bazaars: North Indian Society
in the Age of British Expansion, 1770-1870 (Cambridge: Cambridge University Press, 1983) , p. 353

307 Hallaq (2009b), p. 166-67

308 Fisch, p. 3

309 Anderson, Michael, p. 74 and 80

310 Hallaq (2009b), p. 86-87
311 Hallaq (2002/2003), note 17, p. 14-15
312 Hallaq (2002/2003), p. 3
313 Hallaq (2002/2003), p. 12
314 Hallaq (2002/2003), p. 6
315 The original Encyclopedia of Islam was a four volume work published from 1913 to 1938 whose terms are defined
by Orientalist scholars of the time. In 1953 an abridged version was published, which was the Shorter Encyclopedia. The
second edition was started in 1954, and was completed in 2005.

316 Calmard, J. "Mudjtahid" Encyclopaedia of Islam, Second Edition. Edited by: P. Bearman , Th. Bianquis , C.E.
Bosworth , E. van Donzel and W.P. Heinrichs. Brill, 2009

317 Juynboll, p. 23-26 and 370-372 (chapter 9 and notes 11 through 13 of the 1925 edition)
318 Text: De hierboven vermelde orthodox-moslimsche opvatting, dat alle latere geleerden tot taklid verplicht zijn, heft
niet bij alle moslimsche autoriteiten instemming gevonden. Ten allen tijde waren er geleerden, die het madzhab-wezen in den
bestaanden vorm veroordeelden en veeleer meenden, dat ook de lateren verplicht waren, zich naar de mate van hunne
kennis en hun verstand te blijven beijveren in het doorgronden van Gods wil. Note 13.

319 Juynboll brings up the following paper in Note 13: Hurgronje, Snouck, ZDMG, Vol. 53 (1899), pp. 125-167, available
here: http://books.google.com/books?
id=dUEUAAAAYAAJ&printsec=titlepage&source=gbs_v2_summary_r&cad=0#v=onepage&q=&f=false

320 Sachau, Eduard, Muhammedanisches Recht nach Schafiitischer Lehre, (Stuttgart: W. Spemann, 1897), available
here: http://books.google.com/books?
id=XDURAAAAYAAJ&printsec=titlepage&source=gbs_v2_summary_r&cad=0#v=onepage&q=&f=false

321 Text: Eine solche Person (einen generellen Mugtahid) kann es zu jeder Zeit geben, ausser kurz vor dem jngsten
Gericht. So nach Ibn Dakik El'id. In seinem Sinne erklren einige hervorragende Juristen: Wir folgen nicht dem Schfi'i (d. h.

wir sind nicht seine Nachbeter), sondern unsere Ansicht stimmt mit der seinigen berein." Auch Baguri ist dieser Ansicht.Die
entgegengesetzte Lehre, diejenige des Ghazli dagegen, geht dahin, dass es nach den vier Imamen (Abu Hanifa, Mlik,
Schafi'i, 'Ahmad Ibn- Hanbal) einen Mugtahid berhaupt nicht mehr giebt. Nach dieser Theorie hat der einzelne Jurist weiter
nichts zu thun als jurare in verba magistri (des Abu Hanifa oder des Mlik etc.), d. h. er muss die Grundstze seines Meisters
kennen, wie dieser Meister die letzten Quellen des Rechts kennen musste.
Der Richter hat danach die Wahl, er kann entweder als Mugtahid auftreten, wenn er allen in diesem angegebenen
Bedingungen entspricht, oder aber sich darauf beschrnken die Grundstze eines der genannten vier Meister zu vertreten.
Im letzteren Falle kann er nicht gezwungen werden nach einer anderen Lehre zu entscheiden als nach derjenigen seines
Meisters. Page 699.

322 Hallaq (1984), p. 17

323 Text: Der Islam hat ebenso wie die katholische Kirche ganz richtig verstanden, dass eine unfehlbare Gemeinde, will
sie einigen Vortheil aus ihre Unfehlbarkeit ziehen, zu jeder Zeit lebendige Organe ihres Consensus haben muss, damit nicht
verschiedene Anschauungen ber den Sinn geschriebener Texte die bereinstimmung illusorisch machen. Wenn jetzt noch
Gelehrte ber den Sinn von Schafis Worten differieren knnten, so gbe es kein einheitliches schafiitisches Madhab. P.
140

324 See quote on page 141-142.

325 Gesink, p. 172 and p. 710. Gesink claims that this invention was that of the conservative Muslim scholars, and not
the Orientalists. This is quite a dubious claim. For a much more plausible and well supported view, see Hallaq (2009a), p. 1011 and part III.

326 Gesink, p. 712

327 Ibid, p. 716-717
328 Gesink, p. 712
329 Gesink, p. 723
330 Ibid, p. 723, 725, 727
331 Ibid, p. 717, 727
332 Ibid, p. 729

333 The biggest factor being the occupation of another country to begin with occupation inevitably results in
resistance.

334 Ibid, p. 730-1

335 Hallaq (2003), p. 6
336 Ibid, p. 732
337 Ibid, p. 733-4
338 Glenn, p. 14
339 Ibid, p. 14
340 Murad, p. 17
341 Weiss (1991), p, 252
342 Jackson, 2003
343 Saif, p. 17
344 Sunna (plural sunan) is the model conduct of an individual or group which provides an example to be followed by
others. This term sunna of the Orientalists was coined by Hallaq (1992), p. 175

345 Hallaq (2002/2003), p. 7