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AUTHORITY, CONTINUITY,
AND CHANGE IN ISLAMIC LAW




Wael B. Hallaq is regarded as one of the leading scholars in the ¬eld of Islamic
law. His latest book is about the function of authority in Islamic law, and how
it is constructed, augmented, and utilized. In a comprehensive intellectual trawl
through the intricacies of the law, the author demonstrates how that authority
“ at once religious and moral but essentially epistemic in nature “ has always
encompassed the power to motivate the processes of continuity and change.
The role of the law schools in augmenting these processes cannot be doubted.
However, as the author shows, it was the construction of the absolutist author-
ity of the school founder, an image which he suggests was actually developed
later in history, that maintained the foundations of school methodology and
hermeneutics. The defense of that methodology, reasoned and highly calculated,
in turn gave rise to an in¬nite variety of individual legal opinions, ultimately
accommodating and legitimizing changes in the law. In this way, the author con-
cludes that not only was Islamic law capable of change, but that the mechanisms
of legal change were embedded in its very structure despite its essentially con-
servative nature. This book will be welcomed by specialists and scholars in
Islamic law for its rigor and innovation.
W¬ B. H¬¬± is Professor at the Institute of Islamic Studies, McGill Univer-
sity. His many publications in the area of Islamic law include A History of Islamic
Legal Theories: An Introduction to SunnC uqel al-¬qh (1997) and Law and Legal
Theory in Classical and Medieval Islam (1995).
AU T H O R I T Y, C O N T I N U I T Y,
AND CHANGE IN
I S L A M I C L AW


WAEL B. HALLAQ
McGill University
°µ¬©¤   ° ®¤© ¦  µ®©© ¦ ©¤§
The Pitt Building, Trumpington Street, Cambridge, United Kingdom

©¤§ µ®©© °
The Edinburgh Building, Cambridge CB2 2RU, UK
40 West 20th Street, New York, NY 10011-4211, USA
477 Williamstown Road, Port Melbourne, VIC 3207, Australia
Ruiz de Alarcón 13, 28014 Madrid, Spain
Dock House, The Waterfront, Cape Town 8001, South Africa

http://www.cambridge.org

© Wael B. Hallaq 2004

First published in printed format 2001

ISBN 0-511-03269-2 eBook (Adobe Reader)
ISBN 0-521-80331-4 hardback
To my mother
Samcra cfqleh-nallaq
CONTENTS




Preface page ix

1 Juristic typologies: a framework for enquiry 1
2 Early ijtihAd and the later construction of authority 24
3 The rise and augmentation of school authority 57
4 TaqlCd: authority, hermeneutics, and function 86
5 Operative terminology and the dynamics of legal doctrine 121
6 The jurisconsult, the author“jurist, and legal change 166
Summary and conclusions 236

Bibliography 242
Index 261




vii
PREFACE




To say that authority is the centerpiece of law is merely to state the
obvious. Equally obvious therefore is the proposition that Islamic law “ or
any other law, for that matter “ cannot be properly understood without
an adequate awareness of the structure of authority that underlies it. It
is this theme which constitutes the main preoccupation of the present
work. In Islamic law, authority “ which is at once religious and moral but
mostly epistemic in nature1 “ has always encompassed the power to set in
motion the inherent processes of continuity and change. Continuity here,
in the form of taqlCd, is hardly seen as “blind” or mindless acquiescence to
the opinions of others, but rather as the reasoned and highly calculated
insistence on abiding by a particular authoritative legal doctrine. In this
general sense, taqlCd can be said to characterize all the major legal tra-
ditions, 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 taqlCd that makes these seemingly contradictory states of
a¬airs possible. For in law both continuity and change are two sides of
the same coin, both involving the reasoned defense of a doctrine, with the
di¬erence that continuity requires the sustained defense of an established
doctrine while change demands the defense of 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.
In order to probe the substance and dimensions of these themes of
continuity, change, and their relationship to authority, I have chosen to

1
On these types of authority, see E. D. Watt, Authority (London and Canberra: Croom
Helm, 1982), 45“54, 55“63; Richard T. De George, The Nature and Limits of Author-
ity (Lawrence, Kans.: University of Kansas Press, 1985), 26“61, 191“209; Stanley I.
Benn, “Authority,” Encyclopedia of Philosophy, 8 vols. (New York: Macmillan Publishing
Co., 1967), I, 215“18; Robert Peabody, “Authority,” International Encyclopedia of the
Social Sciences, ed. D. L. Sills, 17 vols. (New York: Macmillan and Free Press, 1968), I,
473“77.

ix
x Preface
examine the relatively compendious discursive construct called juristic
typology which ranks legists according to the various levels of hermen-
eutical activity in which they are deemed competent to engage. This genre
has the virtue of serving a double purpose, one of which is the inherent
feature of self-representation. In speaking of the juristic structure of
authority, of the various levels of its functioning, and of the limits of
legal hermeneutics, it is instructive to listen to the voices emanating from
within the tradition itself, for at a certain analytical level, self-perception
is part and parcel of the objective reality which we have chosen to study.
The other purpose, in contrast, is the harnessing of this typological genre
for a critique that only outside observers of the tradition can pro¬er,
since no participant in the tradition can advance such a critique and
still remain part of that tradition. Subjecting the traditional account to a
critical approach of this kind amounts to no less than deconstructing the
historical imagination and inventions that were necessary to construct
the authoritative edi¬ce of the legal system and doctrine in the ¬rst place.
No one, for instance, can at once question the almost mythological status
of the eponyms of the four schools and still accept the fundamental
assumptions of these typologies as anything more than linguistic struc-
tures needing to be decoded in a historiographical exercise. It is in virtue
of such purposes that juristic typologies will serve to guide us as a frame-
work for inquiry throughout this study.
One of the themes to be challenged, or at least questioned, in these
typologies is the absolutist notion of a school founder. In chapter 2 I shall
attempt to show, among other things, that while the image of a founding
father was unquestionably essential for the school in constructing for
itself an axis of authority, the abundantly available historical data serve to
demonstrate that this image was a later creation and that the presumed
founders of the four schools were far from having played these roles in
their own times. This ¬nding will further clarify the processes involved
in the creation and construction of authority which was needed for the
evolution and functioning of the schools. For our speci¬c purposes, there-
fore, we shall be content to answer the question of how “ rather than why
“ the imams™ authority was constructed. This latter question will be the
focus of another study currently in progress.2
In chapter 3 we shall trace the process by which the early multiple
juristic voices of absolute ijtihAd were progressively reduced to a relat-
ively limited set of doctrines on which a special kind of authority was
bestowed. The construction of the founder™s authority, the reduction and

2
See next note.
Preface xi
narrowing down of the early independent ijtihAdic possibilities, and the
¬nal rise of taqlCd as an expression of loyalty to the schools are 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. The school as a doctrinal
structure will therefore be shown to have constituted the very embodi-
ment of this authority.
The inner dynamics of taqlCd, which represent the functional domin-
ance of school authority, will constitute the main focus of chapter 4.
A close examination of the activity of taqlCd and of the several types of
discourse and reasoned arguments involved in this activity will make clear
the many forms that school authority acquired. Within the con¬nes of
this activity, school authority could mean, at one end of the spectrum, the
simple reproduction or mechanical application of authoritative doctrine,
while at the other, it could involve the reenactment of a given authoritat-
ive opinion in the school, complete with all the ammunition of reasoned
arguments and rhetorical discourse that the jurist could muster. But
whether it was the former or the latter, nearly ijtihAdic, type of taqlCd that
was being advocated, or for that matter any degree of argument that lay
between these two extremes, the defense of the school continued to be a
central, if not the most important, goal of that activity.
In the ¬nal analysis, the defense of the school did not consist in
a preoccupation with doctrinal trivia or with the mere collection and
rehearsal of opinions. Rather, on a quite substantive level, it was a defense
of methodology and hermeneutics, for the school itself was essentially
founded upon a set of identi¬able theoretical and positive principles,
which in turn gave rise to an in¬nite variety of individual legal opinions
and cases. These principles continued to serve as the foundation of the
school as a substantive and authoritative legal entity, although the indi-
vidual opinions and cases which constituted the practical and positivistic
applications of these principles were subject to constant permutations.
Cases and the opinions that governed them were regularly replaced by
others, while the often undeclared principles from which they derived
remained fairly constant.
The school was also de¬ned by its substantive boundaries, represented
by a massive bulk of particular cases and opinions that were articulated by
the vast number of jurists who proclaimed loyalty to it in each generation,
beginning with the presumed founders and their immediate followers,
and ending with the jurists of later centuries. This arsenal of legal opinion
represented, on the one hand, an imposing mass of doctrinal accretions,
and on the other, a staggering plurality in the school™s corpus juris. Now,
xii Preface
this multiplicity of doctrinal narrative resulted in the development of a
technical vocabulary designed to distinguish an authoritative hierarchy
of legal opinion. In chapter 5, therefore, I explore what I call operative
terminology whose function it was to determine which of the opinions
governing a case carried the highest level of authority. For it was this
terminology that designated the process by which a particular legal
opinion was elevated from near obscurity or marginality to the highest, or
one of the highest levels, of authoritative doctrine.
The inner dynamics of legal doctrine functioning under the rubric
of operative terminology permitted the adaptation, mutatis mutandis, of
legal opinions according to the requirements of time and place. And it
is within the boundaries of this hermeneutical activity that much of the
dynamic of legal change lay. In chapter 6 I shall argue that legal change
was not incidental to Islamic law but that it was channeled through
processes that were embedded in the very structures of the law. The chief
agents mediating change through legitimization and formalization were
the jurisconsult (muftC ) and the author“jurist (muQannif ). The former
created the link between social practices and the law, thereby articulat-
ing in piecemeal fashion the changing requirements of legal doctrine.
No less important, however, was the function of the author“jurist who,
together with the muftC, had the authority to create and fashion the
authoritative legal text. Legal works of this kind encompassed not only
the discursive body of the school™s doctrine but also, and more speci¬c-
ally, that portion of the corpus juris which was deemed authoritative, for it
was an integral part of the author“jurist™s function to determine, on his
own authority as well as on the authority of his associates, the standard
and thus authoritative doctrine in his school. It was this authority pos-
sessed by the author“jurist that allowed him to mediate legal change
as re¬‚ected in the juridical practices prevalent in his own social and
regional milieu. In chapter 6, but also throughout the book, one of our
chief concerns will continue to be the delimitation of the scope of author-
ity associated with the most prominent legal o¬ces, namely, the judge,
the jurisconsult, and the author“jurist.
The nature of our enquiry dictates the investigation of sources that
cover both the early and middle periods of Islam, a fairly long stretch of
time indeed. In fact, our sources span the period from the second/eighth
century to the thirteenth/nineteenth, a fact which inevitably imposes
a caveat: The main focus of the book is the post-formative period which
begins with the time when the schools had already reached maturity
around the middle of the fourth/tenth century. The themes which will
be raised here and which belong to the time-frame before the ¬nal
Preface xiii
consolidation of the schools are intended to highlight the processes by
which authority was constructed in preparation for, and during, the
post-formative period. It goes without saying that in the present work
these themes are studied, not for their own sake, but in order to ascertain
their respective roles in the construction of school authority. Similarly,
the much later sources from the tenth/sixteenth century and afterwards
are here utilized to illustrate the processes by which doctrinal author-
ity was made to persist and respond to challenge, to ensure continuity
as well as e¬ect change. Thus, the issues raised in this book ultimately
belong to the centuries that roughly fall between the fourth/tenth and the
ninth/¬fteenth.3
Still, the fact that this study encompasses over ¬ve centuries™ worth
of developments does raise the issue of generalization. Social and other
historians of the Middle East have often attributed general character-
istics to the subjects of their enquiry on the basis of a few case studies.
In like manner, by failing to unravel the connections between these sub-
jects and the society and culture in which they operated and out of
which they emerged, the works of a number of historians appear to lapse
into essentialism. Despite the fairly wide coverage of the present study,
however, it avoids, by sheer necessity, these pitfalls. Insofar as the struc-
ture of legal authority is the focus of our enquiry, no jurist can be said
to have articulated “ or operated within “ a concept of authority that
was at variance with that of his peers and contemporaries. For jurists, by
the nature of their function, were neither philosophers nor theologians
who were largely free to innovate within their own intellectual traditions.
Unlike the latter, jurists were bound by their legal culture, its demands,
restrictions, and, above all, by the infrastructural social and cultural reality
on the ground, a reality whose demands were neither binding nor restrict-
ive in the case of theological, philosophical, or other types of intellectual
discourse. In chapter 6 I will attempt to show that juristic doctrinal
discourse succeeded in appropriating social reality by means of forging
structural mechanisms that involved the functions of the jurisconsult and
the author“jurist. The input of these latter functions, coupled with the
¬ndings “ in chapter 5 “ that the authoritative status of legal opinions
was negotiated through considerations of social and mundane exigencies,
demonstrate an organic connection between social practice and juristic

3
Answering the question why authority was constructed will involve us here in enquiries
that are largely irrelevant to the issues under discussion. This question will form part of
a study in progress that addresses the early formation of Islamic law, spanning the period
extending from the ¬rst/seventh century to the middle of the fourth/tenth.
xiv Preface
production of doctrine. At the end of the day, the latter emerges as a type
of what has been called discursive practice.4
Be that as it may, the structure of authority does undergo diachronic
change, a fact clearly attested by the transformations that took place
during and after the consolidation of the legal schools. But the process
of change in the structure of authority was certainly slow and was often
rather subtle and seemingly imperceptible, a phenomenon that places
certain constraints on the historian. For to diagnose and unravel the pro-
cesses of change that were embedded in structures of juristic authority,
a fairly long period of time must be subjected to scrutiny, and a wide
variety of sources examined for this particular purpose. This is why an
examination of juristic production covering several centuries is required,
and, to make the processes of change clearer, sources from earlier and later
periods are needed as well.
In my source coverage, there is admittedly a mild imbalance. I have
attempted to draw evenly on works from the four schools. While this was
largely possible, the nanbalite legal literature was not always adequate
for the task in hand. It will be immediately noted, for instance, that this
school is absent from the list of juristic typologies, since no complete
nanbalite typology had been developed, at least insofar as I know. While
in other parts of this study the nanbalite presence is felt more, it almost
never matches that of the other three schools. (The relative meagerness of
nanbalite sources is not only a function of the small size of the school in
terms of the number of followers, but a historical phenomenon that has
more serious dimensions still awaiting study.)
Finally, a word of thanks. In researching the subject of this book I have
incurred a debt to my students who, as usual, have presented me with the
challenge of having to answer their profound questions and to address
their perspicacious comments. Adam Gacek, Salwa Ferahian, and Wayne
St. Thomas of the Library of the Institute of Islamic Studies have been
unfailingly helpful and supportive. Üner A. Turgay has been an ideal
colleague and an extraordinarily supportive chair. My chief debt goes to
Steve Millier whose library and editorial skills have been invaluable. To
all these students and colleagues, I record my deepest gratitude.

4
Here, a distinction is to be drawn between the demands “ in terms of the nature of
sources “ that are imposed on legal and social historians. For the latter, the connection
between such sources and the realia of social practice are, admittedly, at best tenuous.
But for the former, especially where structures of authority are concerned, they manifest
these connections in no ambiguous manner.
Juristic typologies: a framework for enquiry 1

1

JURISTIC TYPOLOGIES:
A FRAMEWORK FOR ENQUIRY




I

A juristic typology is a form of discourse that reduces the community
of legal specialists into manageable, formal categories, taking into con-
sideration the entire historical and synchronic range of that community™s
juristic activities and functions. One of the fundamental characteristics of
a typology is the elaboration of a structure of authority in which all the
elements making up the typology are linked to each other, hierarchically
or otherwise, by relationships of one type or another. The synchronic and
diachronic ranges of a typology provide a synopsis of the constitutive
elements operating within a historical legal tradition and within a living
community of jurists. It also permits a panoramic view of the transmis-
sion of authority across types, of the limits on legal hermeneutics in each
type, and of the sorts of relationships that are imposed by the interplay of
authority and hermeneutics.
The evolution of the notion of the typology as a theoretical construct
or conceptual model presupposes a conscious articulation of the elements
that constitute them. To put it tautologically, since typologies purport
to describe certain realities, these realities must, logically and historically
speaking, predate any attempt at typi¬cation. And since Islamic juristic
typologies presuppose, by virtue of their hermeneutical constitution,
loyalty to the madhhab or legal school, then it is expected that no typo-
logy can be possible without positing a school structure.
Furthermore, and as a prerequisite to the formation of a typology,
there must be developed a fairly sophisticated historical account of the
school. In other words, no typology can be formulated without a sub-
stantial repertoire of the so-called SabaqAt (bio-bibliographical) literature.
This literature, in its turn, totally depends on the conception of the
madhhab as a doctrinal entity composed of jurist“scholars, their tradition
of learning, and profession. The ¬nal formation of the schools was thus a

1
2 Authority, continuity, and change in Islamic law
precondition to the emergence of SabaqAt literature, just as this literature
was a prerequisite for the rise of typologies.
Since the legal schools took shape by the middle of the fourth/tenth
century,1 and since the ¬rst SabaqAt works of the jurists seem to have been
written by the end of the fourth/tenth century and the beginning of the
¬fth/eleventh,2 we must not expect to ¬nd any typology emerging before
the middle or end of the latter century. Indeed, it is no surprise that our
sources have not revealed a typology prior to that of the distinguished
Andalusian jurist Abe al-Walcd Mumammad Ibn Rushd (d. 520/1126).

II
One year before his death, the Cordoban jurist Ibn Rushd was called
upon to answer what is in e¬ect three questions:3 First, what are the
quali¬cations of the muftC in “these times of ours” according to the school
of Malik? Second, what is the status of the qAKC ™s ruling if he is a muqallid
within the Malikite school and if, in his region, no mujtahid is to be
found? Should his rulings be categorically accepted, categorically revoked,
or only provisionally accepted? Third, should the ruler “ with respect to
whom the qAKCs are but muqallids “ accept or revoke their decisions?

1
This is based on extensive research by this writer as well as on Christopher Melchert,
The Formation of the Sunni Schools of Law (Leiden: E. J. Brill, 1997). See also nn. 1 and
3 of the preface, above.
2
It su¬ces here to quote one of the most important legal biographers in Islam, Taj al-Dcn
al-Subkc, who could not ¬nd a Sha¬cite biography earlier than the beginning of the
¬fth/eleventh century. In explaining his sources, he states: “I have searched hard and
researched much in order to ¬nd those who wrote on SabaqAt. The ¬rst one who is said
to have discoursed on that [subject] is the Imam Abe nafq cUmar Ibn al-Musawwicc
[d. 440/1048] . . . who wrote a book he entitled al-Mudhahhab f C ShuyEkh al-Madhhab.
After him, the Qakc Abe al-tayyib al-tabarc [d. 450/1058] wrote a short work.” See
Subkc, TabaqAt al-ShA¬ ciyya al-KubrA, 6 vols. (Cairo: al-Maktaba al-nusayniyya, 1906),
I, 114. Furthermore, in his al-MajmE c: SharM al-Muhadhdhab, 12 vols. (Cairo: Masbacat
al-Takamun, 1344/1925), I, 40“54, Sharaf al-Dcn al-Nawawc devotes a section to adab
al-muftC and there declares his debt to the works of Ibn al-ralam and cAbd al-Wamid
al-raymarc (d. 386/996), another Sha¬cite who wrote a work with the same title. But
judging by the typology put forth by Nawawc, it is clear that his debt is exclusively to
Ibn al-ralam, since nowhere in his discussion of the types of muftCs does he mention
raymarc. On raymarc and his work, see Amcn b. Ammad Ismaccl Pasha, HKAM al-MaknEn
f C al-Dhayl calA Kashf al-VunEn, 6 vols. (repr., Beirut: Dar al-Kutub al-cIlmiyya, 1992),
I, 633.
Mumammad b. Ammad Ibn Rushd, FatAwA Ibn Rushd, ed. al-Mukhtar b. tahir al-Talclc,
3

3 vols. (Beirut: Dar al-Gharb al-Islamc, 1978), III, 1494“1504; Ammad b. Yamya
al-Wansharcsc, al-Mi cyAr al-Mughrib wal-JAmi c al-Mucrib can FatAwC cUlamA ” IfrCqiyya
wal-Andalus wal-Maghrib, 13 vols. (Beirut: Dar al-Gharb al-Islamc, 1401/1981), X,
30“35.
Juristic typologies: a framework for enquiry 3
Ibn Rushd answered that the community of jurists consisted of three
groups. The ¬rst had accepted the validity of Malik™s school by following
it without knowledge of the evidence upon which the school™s doctrine
was based. This group concerned itself merely with memorizing Malik™s
views on legal questions along with the views of his associates. It does so,
however, without understanding the import of these views, let alone dis-
tinguishing those which are sound from those which are weak.
The second group deemed Malikite doctrine valid because it had
become clear to its members that the foundational principles on which
the school was based were sound. Accordingly, they took it upon them-
selves to study and learn by heart Malik™s legal doctrines alongside
the doctrines of his associates (aQMAb).4 Despite the fact that their legal
scholarship was not pro¬cient enough to enable them to derive positive
legal rulings from the texts of revelation or from the general precepts laid
down by the founders, they also managed to learn how to distinguish
between those views that accord with the school™s principles and those
that do not.
The third group also came to a deep and thorough understanding of
Malik™s doctrine as well as the teachings of his associates. Like the second
group, this group knew how to di¬erentiate between the sound views that
accord with the school™s general precepts and those that are weak and
therefore are deemed to stand in violation of these precepts. However,
what distinguished the members of this group from those belonging to the
other two is that they were able to reason on the basis of the revealed texts
and the general principles of the school. Their knowledge encompassed
the following topics: the legal subject matter of the Quran; abrogating
and abrogated verses; ambiguous and clear Quranic language; the general
and the particular; sound and weak legal MadCth ; the opinions of the
Companions, the Followers, and those who came after them throughout
the Islamic domains; doctrines subject to their agreement and disagree-
ment; the Arabic language; and methods of legal reasoning and the proper
use in them of textual evidence.
Now in terms of their function, the members of the ¬rst group are
disquali¬ed from issuing fatwAs. True, they may have memorized the
The term aQMAb (pl. of QAMib) here means those who studied with Malik, as well as those
4

who happened, generations later, to follow his doctrines together with the doctrines of
his immediate students. On QuMba in the educational context, see George Makdisi, The
Rise of Colleges: Institutions of Learning in Islam and the West (Edinburgh: Edinburgh
University Press, 1981), 128“29; Michael Chamberlain, Knowledge and Social Practice
in Medieval Damascus, 1190“1350 (Cambridge: Cambridge University Press, 1994),
118“22; Jonathan Berkey, The Transmission of Knowledge in Medieval Cairo (Princeton:
Princeton University Press, 1992), 34“35.
4 Authority, continuity, and change in Islamic law
founding doctrines of the Malikite school, but they have not yet
developed the critical apparatus which allows one to discriminate be-
tween doctrines that are sound and those that are less sound. What they
possess, in other words, is not cilm, i.e., the genuine understanding of
the quality of textual evidence and the lines of legal reasoning through
which legal norms are derived. All they have managed to do is to
acquire by rote the school™s doctrine, which permits them to issue fatwAs
only for themselves, that is, in situations where they are personally
involved ( f C Maqqi nafsihi ). Should there be more than one opinion on
the matter, then members of this group would be governed by the same
rule applied to the layman (cAmmC ), namely, that they are to accept one
of the following options: (1) to adopt whichever opinion they deem
suitable; (2) to investigate the credentials of the jurists who held these
opinions so as to adopt the view of the most learned of them; and (3) to
choose the most demanding of the available opinions in order to be on
the safe side.
Since the members of the second group have distinguished themselves
by a pro¬cient knowledge of the school™s doctrines and general pre-
cepts, they are quali¬ed to give legal opinions lying within the doctrinal
boundaries of the school of Malik and his associates. In other words, they
are not to attempt any form of ijtihAd which may lead to the discovery of
an unprecedented legal ruling.
By contrast, those belonging to the third group do have the freedom to
exercise ijtihAd since they have perfected the tools of original legal reason-
ing on the basis of the revealed texts. The quali¬cations permitting them
to practice ijtihAd are not a matter of quantitative memorization of legal
doctrines; rather, they are the re¬ned qualities of legal reasoning and an
intimate knowledge of the Quran, the Sunna, and consensus. But how are
these quali¬cations to be recognized? Ibn Rushd maintains that acknow-
ledgment of an accomplished jurist who has reached such a distinguished
level of legal learning must come from both the community of legal
specialists in which he himself lives, and from the jurist himself. The
judgment is thus both objective and subjective.5
Let us recall that the ¬rst question addressed to Ibn Rushd referred
in part to the muftC ™s quali¬cations during “these times of ours.” It is
remarkable, and quite signi¬cant for us “ as shall become clear later “ that
Ibn Rushd did not view his own age as being any di¬erent from the ones
preceding it, insisting that “the attributes of the muftC which he should
ful¬ll do not change with the changing of times.”6

5 6
Ibid.; Wansharcsc, al-Mi cyAr al-Mughrib, X, 34.
Ibn Rushd, FatAwA, III, 1503.
Juristic typologies: a framework for enquiry 5
Ibn Rushd™s tripartite classi¬cation of muftCs is intended to prepare the
ground for a reply to the ¬rst question, namely, What are the quali¬ca-
tions of the muftC according to Malikite doctrine? The answer is that,
in light of the classi¬cation set forth earlier, no one is entitled to issue
fatwAs “ whether in accordance with Malikite law or otherwise “ unless he
is able to investigate the textual sources of the law by means of the proper
tools of legal reasoning. Put di¬erently, if the jurist is unable to reach
this level of competence, then no matter how extensive his knowledge
of Malikite law he lacks the necessary quali¬cations of a muftC. Thus, the
prerequisite is the attainment of ijtihAd, and ijtihAd, Ibn Rushd seems to
say, cannot be con¬ned to any particular school or to boundaries preset
by any other mujtahid, be he a contemporary, a predecessor or even the
founder of a school.
As for the second question, the solution may be found in the discussion
of the second category of jurists, namely, those who study and learn by
heart the Malikite doctrines and who are able to distinguish between
sound and unsound opinions, but who are unable to derive positive legal
rulings from the texts of revelation or from general precepts laid down
by the masters. It is clear that Ibn Rushd places qAKCs in this category
by process of elimination, since they ¬t neither in the ¬rst category of
muqallids nor in the third, which comprises only mujtahids. These qAKCs
are permitted to rule on cases already elaborated in Malikite law, but in
cases where there is no precedent they are obliged to seek the opinion of
a muftC who is quali¬ed to practice ijtihAd, whether or not this muftC is to
be found in the locality where the judge presides. Here, Ibn Rushd is
merely acknowledging an age-old practice where jurists were in the habit
of soliciting the opinion of a distinguished muftC.7
The third question Ibn Rushd answers summarily: If a muqallid
presiding as a judge should rule on a matter requiring ijtihAd, then his
decision would be subject to judicial review. The ruler™s duty is to decree
that such judges should not dabble in matters involving ijtihAd but should
refer these matters to jurists who are properly quali¬ed.8
The issues which gave rise to these questions were the subject of
heated debate among the jurists of early twelfth-century Tangiers. Failing
to persuade each other, these jurists addressed themselves to Ibn Rushd,
at the time the most distinguished and recognized legal scholar in the
7
Ibn Rushd™s own fatwAs, published in three volumes, re¬‚ect this reality. A large number
of the istiftA ”s came from both qAKCs and private individuals who resided in nearby and
distant Spanish and North African locales. The present fatwA, for instance, came from
Tangiers.
8
Ibn Rushd, FatAwA, III, 1504.
6 Authority, continuity, and change in Islamic law
Malikite school. The authority that Ibn Rushd carried was beyond dis-
pute, whether during his lifetime or centuries thereafter. What he said
was taken seriously, and his fatwAs and other writings became, over the
course of the following centuries, authoritative statements that were
incorporated into law manuals, commentaries, and super-commentaries.9
The fatwA discussed above, for instance, was incorporated in a number
of works, including Wansharcsc™s Mi cyAr, Burzulc™s NawAzil, al-Mahdc
al-Wazzanc™s NawAzil, Ibn Salmen™s al-cIqd al-MunaUUam, and nassab™s
MawAhib al-JalCl.10 The point to be made here is that Ibn Rushd™s
opinion continued to have relevance for centuries after his death, and as
such it stood as an authoritative statement re¬‚ecting a juristic reality
within the Malikite school both during and long after the lifetime of this
eminent jurist.
I shall reserve further commentary on Ibn Rushd™s fatwA to a later
stage in the discussion, but for now it is worth noting one signi¬cant
aspect. The point of departure in this fatwA is that the limits of legal inter-
pretation are con¬ned to Malikism, an assumption that seems implicit
in the question posed by the jurists of Tangiers. The three questions
they submitted to Ibn Rushd revolved exclusively around the tasks
and hermeneutical skills of muftCs and qAKCs. These were the parameters
that Ibn Rushd accepted in his discussion of the ¬rst two types of jurists,
whom he regarded as indeed obliged to conform to school doctrine
since they lacked the tools of ijtihAd (although the second type was still
permitted to issue fatwAs). When he came to discuss the third type,
however, Ibn Rushd parted company with his fellow jurists. In his
eyes, the muftC “mujtahid was not bound by the limitations of the school,
and his task (once the case proved to require ijtihAd ) entailed a direct
confrontation with the revealed texts. Dependence on the opinions
and doctrines of the predecessors “ that is, on established authority “
was no longer relevant nor needed at this stage. Even muftCs of the
second type were not permitted to issue fatwAs “according to Malik™s
school” unless they themselves were able, through independent means,
to verify the opinions they cited from earlier authorities. That is to
say, once ijtihAd enters the picture, independence of mind becomes a
must. This is the context for Ibn Rushd™s leading statement, which is of

9
On the signi¬cance of incorporating fatwAs in law manuals and commentarial liter-
ature, see chapter 6, below.
10
Editorial references to these works are to be found in Ibn Rushd, FatAwA, III, 1496“97.
nassab discusses Ibn Rushd™s fatwA in Mumammad b. Mumammad al-nassab, MawAhib
al-JalCl li-SharM MukhtaQar KhalCl, 6 vols. (tarablus, Libya: Maktabat al-Najam, 1969),
VI, 94“96.
Juristic typologies: a framework for enquiry 7
particular signi¬cance for us: “The attributes of the muftC [“mujtahid ]
which he should ful¬ll do not change with the changing of times.”
Thus, the ijtihAd of Malik himself, and of the other founding masters
of Malikism, did not di¬er from that of later jurisprudents, including,
probably, Ibn Rushd himself, who was known to have exercised ijtihAd
in a number of cases.11
If later mujtahids were as quali¬ed as the founding masters, however,
did this mean that later mujtahids could establish their own schools?
To the best of my knowledge, Ibn Rushd does not address this question.
But we can generally infer from his ijtihAd ic activities12 and writings that
undertaking fresh ijtihAd in one or more cases does in no way entail either
the abandonment of a legal school or the establishment of a new one.
For Ibn Rushd, this simply was not an issue. The three types of jurists
he articulated operated entirely within the Malikite system, with one
signi¬cant exception. When muftCs of the third type encountered a case
necessitating ijtihAd, they dealt with it as independent mujtahids, in the
sense that they were not bound by the criteria which the founding masters
had established for their own legal construction. This activity, however,
though independent, did little to alienate them or their new opinions
from the Malikite school. On the contrary, the resulting opinions were
added to the repertoire of the school™s doctrine, and were memorized and
debated in their turn by succeeding generations of jurists.

III
About a century later, another major jurist was faced with a similar
question. This was Abe cAmr cUthman Ibn al-ralam (d. 643/1245), a
Sha¬cite muftC, teacher, and author who lived in Damascus for a good
part of his life.13 Ibn al-ralam wrote at a time when the legal schools had
already taken their ¬nal shape, which explains why he framed his dis-
cussion in terms of a¬liation and loyalty to the school, and in a more
developed and self-conscious manner than we found in Ibn Rushd.

See, for example, Wael B. Hallaq, “Murder in Cordoba: IjtihAd, IftA ” and the Evolu-
11

tion of Substantive Law in Medieval Islam,” Acta Orientalia, 55 (1994): 55“83, and
Burzulc™s commentary on the fatwA of Ibn Rushd discussed here, in Ibn Rushd, FatAwA,
III, 1504“06.
12
See previous note.
See his biography in Taqc al-Dcn b. Ammad Ibn Qakc Shuhba, TabaqAt al-ShA¬ ciyya,
13

ed. cAbd al-cAlcm Khan, 4 vols. (Hyderabad: Masbacat Majlis Da™irat al-Macarif
al-cUthmaniyya, 1398/1978), II, 144“46; cAbd al-Qadir b. Mumammad al-Nucaymc,
al-DAris f C TArCkh al-MadAris, ed. Jacfar al-nusaync, 2 vols. (Damascus: Masbacat
al-Taraqqc, 1367/1948), I, 20“21.
8 Authority, continuity, and change in Islamic law
He begins by dividing the muftCs into two categories, independent
(mustaqill ) and dependent (ghayr mustaqill ),14 two terms that augur the
emergence of a technical language through which juristic typi¬cation
came to be articulated. The ¬rst category stands by itself, signaling the
momentous achievement of the school founders. The second category
encompasses four types to which a ¬fth informal type is added. Thus, all
in all, Ibn al-ralam™s typology consists of the following categories and
types:
Category 1 (one type)
Category 2 (types 1, 2, 3, 4, and 5)
MuftCs of the ¬rst category, which he also identi¬es as absolute (muSlaq),
possess expert knowledge of uQEl al-¬qh, which includes Quranic exegesis,
MadCth criticism, the theory of abrogation, language, and the methods
of exploiting the revealed texts and of deriving rulings therefrom. They
are also knowledgeable in the realms of positive law (having mastered its
di¬cult and precedent-setting cases), the science of disagreement (khilAf )
and arithmetic. The mujtahids in this category must maintain these
quali¬cations in all areas of the law, thereby distinguishing themselves
from lesser mujtahids.15
Those who possess these lofty quali¬cations are able to dispense
with the communal duty, the farK al-kifAya, which is incumbent upon
all members of the community but discharged if certain members could
ful¬ll it. They follow no one and belong to no school, the implication
being “ given the then current perception of the schools™ history “ that
this de¬nition applies to the founders of their own schools, the imams,
who appeared on the scene during a ¬‚eeting moment in history. Ibn
al-ralam declares these jurists long extinct, having left behind others to
tread in their footsteps.
Those who follow in their path make up the second category, the
dependent muftCs who are by de¬nition a¬liated with the founding
masters, the imams. Ibn al-ralam falls short of making any explicit con-
nection between the two types, but the connection seems to be assumed
and appears to follow logically. The assumption is necessary because
the entire community of muftCs is conceived here in terms of leaders and
followers, of founding masters and succeeding generations of adherents
who are progressively, in diachronic terms, inferior in knowledge to the

14
Abe cAmr cUthman b. cAbd al-Ramman Ibn al-ralam, Adab al-MuftC wal-MustaftC, ed.
Muwa¬aq b. cAbd al-Qadir (Beirut: cflam al-Kutub, 1407/1986), 86 ¬.
15
Ibid., 89“91.
Juristic typologies: a framework for enquiry 9
imams. This is perhaps why, in the course of the discussion, Ibn al-ralam
changes the designation of the second category from ghayr mustaqill to
muntasib, the a¬liated muftC.
This second category is in turn divided into four (possibly ¬ve) types:
Type 1: Curiously, the ¬rst type is far from being a muqallid, i.e. one who follows
the positive doctrine of the founding master or absolute mujtahid. Rather, this
type of muftC possesses all the quali¬cations found in the absolute, independent
mujtahid, and seems to equal him in every way. However, his a¬liation with
the latter is due to the fact that the muftC has chosen to follow his particular
methods of ijtihAd and to advocate his doctrines. In this context, Abe Ismaq
al-Isfara™cnc (d. 418/1027) is on record as saying that this was the case with a
number of mujtahids who a¬liated themselves with the school founders not
out of taqlCd but rather because they found the imams™ methods of ijtihAd
most convincing. What he in e¬ect means here is that the a¬liation was
created on the grounds that the muftC of the ¬rst sub-type happened to believe
in the soundness of the ijtihAd methods adopted by the absolute mujtahid
because he had arrived independently at the same conclusions. TaqlCd plays no
role here, because the adoption of the founder™s ijtihAd methods presupposes
the existence of the quality of ijtihAd which enables him to determine that the
imam™s methodology is the most sound.
This being the case, the distinction between these two types of mujtahid
is drastically blurred, which raises, for instance, the question: Why should
jurists of the second type “follow” the ¬rst if they are equally quali¬ed? Or
to put it another way: Why should those of the second type not establish their
own schools? It is probably this ambiguity, or blurring of distinctions, that
prompted Ibn al-ralam to interject a clarifying statement: The claim that the
a¬liated mujtahids are devoid of all strands of taqlCd is incorrect, for they,
or most of them (aktharuhum), have not completely mastered the sciences of
absolute ijtihAd and thus have not attained the rank of independent mujtahids.
This assertion seems to stand in ¬‚agrant contradiction to what Ibn al-ralam
had said a little earlier, namely, that this kind of muftC possesses all the cre-
dentials of the absolute, independent mujtahid and stands on a par with him
in nearly every way. The di¬culty in accounting for the role of these mujtahids
in the school hierarchy is underscored by Ibn al-ralam™s quali¬cation “most of
them.” This is signi¬cant since it allows for a certain blurring of distinctions
between this type of muftC and the absolute mujtahid. Isfara™cnc™s assertion thus
remains largely una¬ected, while Ibn al-ralam™s undi¬erentiated reality tends
to accord with the facts of history, for we now know that the eponyms were
not exclusively responsible for the rise and evolution of the schools.16

16
A point we shall develop in chapter 2, below. See also Wael B. Hallaq, “Was al-Sha¬ci
the Master Architect of Islamic Jurisprudence?” International Journal of Middle East
Studies, 4 (1993): 587“605.
10 Authority, continuity, and change in Islamic law
Type 2: The second type is the limited mujtahid (muqayyad ) who is fully quali¬ed
to con¬rm and enhance the doctrines of the absolute mujtahid. His quali¬ca-
tions, however, do not allow him to step outside the principles and methods
laid down by the imam of his school. He knows the law, legal theory, and the
detailed methods of legal reasoning and linguistic analysis. He is an expert
in takhrCj 17 and in deducing the law from its sources.18 This last quali¬cation
becomes necessary because he is held responsible for determining the law
in unprecedented cases according to the principles of his imam and of the
school with which he is a¬liated. Despite his ability to perform ijtihAd, these
quali¬cations of his are marred by a weakness in certain respects, such as in his
knowledge of MadCth or in his mastery of the Arabic language. These weak-
nesses, Ibn al-ralam observes, have in reality been the lot of many muftCs who
happened to be of this type. He also ¬nds it easier to cite examples of such
muftCs than he was when articulating the ¬rst type. He declares, for instance “
without invoking the attestation of other authorities (as he did with Isfara™cnc
before) “ that a certain class of eminent Sha¬cite jurists did belong to this type,
calling these latter aQMAb al-wujEh and aQMAb al-Suruq.19
The relationship existing between the revealed texts and the absolute
mujtahid appears identical to that which links the imam™s founding positive
doctrines to the limited mujtahid of the second type. This latter, in other
words, derives rulings for unprecedented cases on the basis of the imam™s
doctrines, just as his imam derived his own doctrines from the revealed sources.
In rare cases, he may even embark on ijtihAd in the same manner as the muftC
of the ¬rst type does. At a later stage of the discussion, Ibn al-ralam develops
this point. He argues that in unprecedented cases the limited mujtahid is
permitted to conduct ijtihAd in the same manner as the absolute mujtahid.
Sha¬cite mujtahids who have mastered the fundamental principles (qawA cid )
as laid down by Sha¬cc, and who are fully trained in his methods of legal
reasoning, are considered to have the same abilities as the absolute mujtahid
does. In fact, Ibn al-ralam continues, such mujtahids may even be more cap-
able than the absolute mujtahid, for they, we understand, have lived at a
time when the fundamental school principles have long been prepared and
established. Such tools as were available to them were never within the reach of
the absolute mujtahid. Thus, Ibn al-ralam seems to say, they enjoy a de¬nite
advantage.

17
For a detailed account of takhrCj, see chapter 2, sections III“IV, below.
18
In fact, Jalal al-Dcn al-Suyesc calls this type of jurist mujtahid al-takhrCj since the char-
acteristic activity in which he is involved is that of takhrCj. See his al-Radd calA man
Akhlada ilA al-ArK wa-Jahila anna al-IjtihAd f C Kulli cAQrin FarK, ed. Khalcl al-Mays
(Beirut: Dar al-Kutub al-cIlmiyya, 1983), 116.
19
Norman Calder, “al-Nawawc™s Typology of MuftCs and its Signi¬cance for a General
Theory of Islamic Law,” Islamic Law and Society, 4 (1996): 146, mistakenly de¬ned
aQMAb al-wujEh as “those [jurists] whose opinions are preserved.” On this expression, see
chapter 2, section III, below. On aQMAb al-Suruq, see chapter 5, section I, below.
Juristic typologies: a framework for enquiry 11
It is important to realize that the license given to the limited mujtahid to
perform the various activities of ijtihAd is not mere theorization on the part of
Ibn al-ralam. In a key sentence, he declares that the province of this mujtahid ™s
activities is acknowledged in both theory and practice. “This is the correct
doctrine which has been put into practice, the haven of the muftCs for ages and
ages.”20
However, if the limited mujtahid ¬nds that a ruling in a particular case has
already been derived and elaborated by his imam, he must adopt it and ought
not to question them by seeking textual evidence that might countervail or
contradict it (mu cAriK ). The ability to give preponderance to one piece of
evidence over another belongs to the imam, who is seen as the real founder of
the school. This is why the fatwA of the limited mujtahid of this type does not
re¬‚ect his own juristic endeavor, but rather that of the imam. “He who applies
[or adopts; cAmil calA] the fatwA of the limited mujtahid is a muqallid of the
imam, not of the limited mujtahid himself, since the latter relies in validating
his opinion on the imam, for he is not acting independently in validating
its attribution to the Lawgiver.”21 Authority here is hierarchical: Direct con-
frontation with the revealed texts endows the hermeneutical enterprise of the imam
with the highest level of authority. A derivative hermeneutic therefore yields only
derivative and subordinate authority. The derivative nature of this authority
translates, formally, into a¬liation, and substantively, into loyalty.
Type 3: Jurists of the third type are, expectedly, inferior to their counterparts of
the second type: Ibn al-ralam calls them the “jurists who articulated the wujEh
and Suruq” (aQMAb al-wujEh wal-Suruq).22 The muftC of the third type has a
trained intelligence, knows by heart the doctrines of the imam he follows
(madhhab imAmihi ), and is an expert in his methods and ways. These doctrines
and methods he con¬rms, defends, re¬nes, clari¬es, reenacts, and makes pre-
ponderant, presumably over and against the doctrines of others. His quali¬ca-
tions, however, fall short of those posited for muftCs of the preceding types
because he fails to match their knowledge in one or more of the following
areas: (1) the authoritative law of the school, the madhhab;23 (2) the methods
of legal reasoning needed for the derivation of rulings; (3) uQEl al-¬qh in all its
aspects and details; and (4) a variety of tools needed for the practice of ijtihAd,
tools which the aQMAb al-wujEh wal-Suruq have perfected.
Who belonged to this type? Ibn al-ralam is even more speci¬c about which
jurists who fell into this group than he was about the ¬rst and second types.
Here he introduces an explicit chronological element, hitherto absent from
his typology. Many of the later jurists (muta” khkhirEn) who ¬‚ourished up to
a
the end of the ¬fth/eleventh century were, according to him, of this category.

20
Ibn al-ralam, Adab al-MuftC, 96: “hAdhA huwa al-QaMCM al-ladhC calayhi al- camal wa-ilayhi
mafza c al-muftCn min mudadin madCda.” On the signi¬cance of QaMCM and camal, see
chapter 5, sections IV and VI, below.
21
Ibn al-ralam, Adab al-MuftC, 95. 22 See n. 19, above.
23
See chapter 5, section VI, below.
12 Authority, continuity, and change in Islamic law
They were author“jurists (muQannifEn)24 who produced the magisterial works
studied so assiduously by later generations of legal scholars, including, admit-
tedly, the generation of Ibn al-ralam himself. Their juristic competence does
not match that of their colleagues of the second type, but they did contribute
to the ordering and re¬nement of the authoritative positive doctrine of the
school, the madhhab. In their fatwAs, they elaborated law in the same detailed
manner as jurists of the second type did, or, at any rate, very close to it. Their
competence in legal reasoning permitted them to infer rulings for new cases on
the basis of established and already solved cases. In this respect, Ibn al-ralam
states, they were not limited to certain types of legal reasoning, the implication
being that their competence in this sphere was of a wide range.
Type 4: MuftCs belonging to this type are the carriers and transmitters of the
madhhab. They fully understand straightforward and problematic cases, but
their knowledge does not go beyond this stage of competence, for they are
weak in establishing textual evidence and in legal reasoning. In issuing fatwAs,
they merely transmit the authoritative doctrine of the school as elaborated by
the imam and his associates who are themselves mujtahids operating within the
boundaries of their school. In referring to the latter authorities, Ibn al-ralam
has in mind jurists belonging to the ¬rst category and types 1 and 2 of the
second, for he uses a particular term, takhrCjAt, when referring to that part of
the school™s authoritative doctrine which cannot be attributed to the imam™s
juristic activity. Since the sole juristic activity of type 2 is characterized as
takhrCj, then muftCs of type 4 must transmit the doctrines of the imam, muftCs
of type 1, and, by de¬nition, those of type 2.
When muftCs of type 4 do not ¬nd in the school™s doctrine answers to
the questions facing them, they look for analogical cases that might provide
solutions to the questions addressed to them. If they ¬nd such cases, and if
they know that the analogy is sound (i.e., that di¬erences between the cases
are irrelevant),25 then they transfer the rule of the established case to the new.
Similarly, they may venture to apply, in a deductive manner, a general, well-
de¬ned school principle to the case at hand. Such opportunities are common,
for it is unlikely that a jurist should encounter a case which has no parallel in
the school or which does not conform to a general principle. However, should
a muftC be incapable of reasoning on such a level, he should refrain from
issuing fatwAs when the answer has not been established in the school. Finally,
muftCs of this type are unable to commit the entirety of the school™s positive
doctrines to memory. They can memorize most of the doctrines, but must be
adequately trained in retrieving the rest from books.26

24
On the author“jurist and his role in legitimizing legal change, see chapter 6, below.
Commonly known as qiyAs ilghA ” al-fAriq or qiyAs naf C al-fAriq. See Muwa¬aq al-Dcn Ibn
25

Qudama, RawKat al-NAUir wa-Junnat al-MunAUir, ed. Sayf al-Dcn al-Katib (Beirut: Dar
al-Kitab al-cArabc, 1401/1981), 262“63; Jamal al-Dcn Abe cAmr Ibn al-najib, MukhtaQar
al-MuntahA al-UQElC (Cairo: Masbacat Kurdistan al-cIlmiyya, 1326/1908), 132“33.
26
Ibn al-ralam, Adab al-MuftC, 100.
Juristic typologies: a framework for enquiry 13
In a subsequent discussion, related to, but not an integral part of
the typology, Ibn al-ralam remarks that Imam al-naramayn al-Juwaync
(d. 478/1085) and others held the view that a jurist who is adept at
uQEl and knowledgeable in ¬qh is not permitted, solely on that basis,
to issue fatwAs.27 Others are also reported to have maintained that a
muqallid is not allowed to issue fatwAs in those areas of the law in
which they are muqallids. To be sure, there were those who opposed such
views and were prepared to allow a muqallid with thorough knowledge
of the imam™s law (mutabaMMiran f Chi ) to issue fatwAs in accordance
with it. At this point, Ibn al-ralam interjects to explain that what is
intended by the provision that a muqallid should not issue fatwAs is that
he should not appear as though he is the author of the fatwA ; rather,
he should clearly attribute it to the mujtahid whom he followed on that
particular point of law. Accordingly, Ibn al-ralam adds, “in the ranks
of muftCs, we have counted muqallids who are not true muftCs, but who
have taken the places of others performing their tasks on their behalf.
Thus, they have come to be counted amongst them. For example, they
should say [when they are asked a question]: ˜The opinion of Sha¬cc is
such and such.™ ”28
This preliminary discussion seeks to introduce, in a less conscious
manner, what is in e¬ect a ¬fth type. Ibn al-ralam explicitly observes
that this type has nothing in common with the other categories of his
typology, and yet at the same time refuses to assign it a formal place.
This sub-type appears as subsidiary to the formal structure of the typo-
logy, its informality suggesting that it originated as an afterthought. Its
exclusion from the formal structure of the typology is implicitly rational-
ized in the preliminary discussion where the main point made is that
the true or quintessential muftC is the one who is himself able to reason
independently, either by deriving legal rulings directly from the revealed
texts (category 1 and types 1 and 2 of category 2) or by being know-
ledgeable in the methods of derivation and in the material sources so
as to be able to verify the soundness of the opinions he issues (types 3
and 4). A person of the subsidiary type, however, possesses none of
these qualities, for he is de¬cient (qAQir) and all he has “studied is one
or more books of the madhhab . . . If a layman does not ¬nd in his
town anyone other than him, then he must consult him, for this is still
better than a situation where the layman remains confused, having no
solution to his problem.”29 If the town is devoid of muftCs, then the
layman should turn to this qAQir individual who must relay the solution

27 28 29
Ibid., 101 f. Ibid., 103. Ibid., 104.
14 Authority, continuity, and change in Islamic law
to the layman™s problem as found in a reliable and trustworthy book.
Here the layman would of course be following the opinion (muqallidan)
of the imam, not that of the qAQir. But if he cannot ¬nd an identical case
in any written sources, then he should in no way attempt to infer its
solution from what he might think to be similar cases in their pages.
Overall, then, Ibn al-ralam™s typology encompasses six sorts of jurists,
ranging from the independent muftC, the imam, down to the de¬cient
jurist who is merely able to locate in the law books the cases about which
he is asked. It is interesting that Ibn al-ralam™s younger contemporary,
Nawawc (d. 676/1277), reproduces, with a somewhat di¬erent arrange-
ment of materials, the same typology, including the supplementary,
informal discussion.30 Like Ibn Rushd™s typology, Ibn al-ralam™s version
became highly in¬‚uential within and without the Sha¬cite tradition, more
so than Nawawc™s reproduction of it. In fact, it remained in¬‚uential even
after Suyesc reformulated it nearly three centuries later.31


IV

Some three centuries after Ibn al-ralam and Nawawc, and perhaps shortly
after Suyesc™s lifetime, the Ottoman Shaykh al-Islam Ammad Ibn Kamal
Pashazadeh (d. 940/1533)32 articulated a nana¬te typology of jurists in

30
Calder, who studied Nawawc™s typology in the larger context of his MajmE c, curiously
arrives at eight types altogether. He recognizes the ¬rst six, as I do. But he adds two
more types for which I see no basis either in Ibn al-ralam or in Nawawc. The seventh
type which Nawawc is said to have articulated is indeed not a type but rather a discus-
sion I have characterized as preliminary to his less formal type 5 of the second category.
The eighth type that Calder identi¬es is again not a type since it deals with laymen not
muftCs, and muftCs are what the entire typology is all about. See Calder, “al-Nawawc™s
Typology,” 148; cf. Nawawc, al-MajmE c, I, 44“ 45.
31
See, for instance, the widely quoted work of Shams al-Dcn Ibn Farmen, TabQirat al-
NukkAm f C UQEl al-AqKiya wa-ManAhij al-AMkAm, 2 vols. (Cairo: al-Masbaca al-cfmira
al-Shara¬yya, 1883), I, 51. For Suyesc™s reformulation, see his al-Radd, 112“16. Suyesc,
however, di¬ers with Ibn al-ralam on the terminological de¬nition of the ¬rst type in
the second category. Whereas Ibn al-ralam uses the term “absolute” to describe muftCs
of the ¬rst category, Suyesc argues that type 1 of the second category is also absolute,
albeit a¬liated: “fa-hAdhA muSlaq muntasib lA mustaqill.” Cf. Ammad b. cAbd al-Ramcm
Shah Walc Allah al-Dahlawc, cIqd al-JCd f C AMkAm al-IjtihAd wal-TaqlCd, ed. Mumibb
al-Dcn al-Khascb (Cairo: al-Masbaca al-Sala¬yya, 1385/1965), 3“5.
For his biography, see cAbd al-Qadir al-Tamcmc, al-TabaqAt al-Saniyya f C TarAjim al-
32

Nana¬yya, ed. cAbd al-Fattam al-nulw, 3 vols. (Cairo: Dar al-Rifacc lil-Nashr, 1983), I,
355“57; Abe al-nasanat cAbd al-nayy al-Laknawc, al-FawA ”id al-Bahiyya f C TarAjim
al-Nana¬yya (Cairo: Masbacat al-Sacada, 1324/1906), 21“22; Mumammad Amcn Ibn
fbidcn, NAshiyat Radd al-MuMtAr calA al-Durr al-MukhtAr: SharM TanwCr al-AbQAr,
c

8 vols. (Beirut: Dar al-Fikr, 1979), I, 26.
Juristic typologies: a framework for enquiry 15
which seven ranks (SabaqAt) are recognized.33 The ¬rst is the rank of
mujtahids in the Sharc, consisting of the four imams, the founders and
eponyms of the four legal schools. Also holding this rank are others “like
them,” almost certainly a reference to the eponyms of the schools that
failed to survive. These eponyms established fundamental principles (ta” Cs
s
c
qawA id al-uQEl ) and derived positive legal rulings from the four sources,
i.e., the Quran, the Sunna, consensus, and qiyAs. They are independent,
and follow no one, whether it be in the general principles and methodo-
logy of law (uQEl ) or in positive legal rulings ( furE c ).
Second is the rank of mujtahids within the boundaries of the madhhab,
such as Abe nancfa™s students, especially Abe Yesuf and Shaybanc. These
latter were capable of deriving legal rulings according to the general prin-
ciples laid down by their master, Abe nancfa. Despite the fact that they
di¬er with him on many points of law, they nonetheless follow him in the
fundamental principles he established. It is precisely in virtue of their
adherence to the imam™s fundamental principles that jurists of this rank
are distinguished from other jurists “ such as Sha¬cc “ who also di¬ered
with Abe nancfa on individual points of law. Unlike this rank, however,
Sha¬cc™s di¬erences extended even to fundamental principles, but then he
is in a di¬erent rank altogether.
Third is the rank of mujtahids who practiced ijtihAd in those particular
cases that Abe nancfa did not address. Assigned to this rank, among
others, are Abe Bakr al-Khaqqaf (d. 261/874),34 Abe Jacfar al-tamawc
(d. 321/933),35 Abe al-nasan al-Karkhc (d. 340/951),36 Shams al-A™imma
al-nulwanc (d. 456/1063),37 Shams al-A™imma al-Sarakhsc (d. after 483/
1090),38 Fakhr al-Islam al-Pazdawc (d. 482/1089),39 and Fakhr al-Dcn
Qakckhan (d. 592/1195).40 These jurists, incapable of di¬ering with Abe
nancfa over either the methodology and theory of law (uQEl ) or positive
legal rulings ( furE c ), nonetheless solved unprecedented cases in accord-
ance with the principles that the eponym had laid down.

Ibn Kamal™s classi¬cation became highly in¬‚uential in the nana¬te school, and was
33

recorded in a number of widely read works. See Abe al-Wafa™ Mumammad al-Qurashc,
al-JawAhir al-MuKC ” f C TabaqAt al-Nana¬yya, 2 vols. (Hyderabad: Masbacat Majlis
a
Da™irat al-Ma arif, 1332/1913), II, 558; Tamcmc, al-TabaqAt al-Saniyya, I, 33“34;
c

Ibn cfbidcn, NAshiya, I, 77“78; Mumammad Amcn Ibn cfbidcn, SharM al-ManUEma
al-MusammA bi- cUqEd Rasm al-MuftC, in his MajmE c RasA ”il Ibn cFbidCn, 2 vols. (n.p.,
1970), I, 11“12; Abe al-nasanat cAbd al-nayy al-Laknawc, al-NA¬ c al-KabCr: SharM
al-JAmi c al-RaghCr (Beirut: cflam al-Kutub, 1406/1986), 9“11. References here are to
the text of Qurashc™s al-JawAhir al-MuKC ” .
a
Zayn al-Dcn Qasim Ibn Quslebugha, TAj al-TarAjim f C TabaqAt al-Nana¬yya
34

(Baghdad: Maktabat al-Muthanna, 1962), 7.
35
Ibid., 8. 36 Ibid., 39. 37 Ibid., 35. 38 Ibid., 57“58.
39
Ibid., 41. 40 Ibid., 22.
16 Authority, continuity, and change in Islamic law
The fourth rank di¬ers from the preceding three in that it is de¬ned in
terms of taqlCd, not ijtihAd. Jurists of this rank are only capable of takhrCj,
and are thus known as mukharrijEn.41 Their ability to practice takhrCj is
due to their competence in uQEl, including knowledge of how rules were
derived by the predecessors. It is their task to resolve juridical ambiguities
and tilt the scale in favor of one of two or more opinions that govern a
case. This they do by virtue of their skills in legal reasoning and analogical
inference. Karkhc, Razc,42 and, to some extent, the author of HidAya,43
belong to this rank, which seems a counterpart of the second sub-type
advanced by Ibn al-ralam.
The ¬fth rank is that of aQMAb al-tarjCM who are also described by
Ibn Kamal as muqallids. Characterized as murajjiMEn, they are able to
address cases with two or more di¬erent rulings all established by their
predecessors. Their competence lies in giving preponderance to one of
these rulings over the other(s), on grounds such as its being dictated either
by a more strict inference or by public interest. Abe al-nasan al-Quderc
(d. 428/1036)44 and the author of al-HidAya, Marghcnanc, for instance,
are listed as belonging to this rank.
The sixth is the rank of muqallids who distinguish between sound and
weak opinions, or between authoritative and less authoritative doctrines
(UAhir al-riwAya and al-nawAdir). What is characteristic of these muqallids
is that they, as authors of law books, are careful not to include weak or
rejectable opinions. Among the jurists belonging to this rank are the
authors of the authoritative manuals (mutEn): Ammad Fakhr al-Dcn Ibn
al-Faqcm (d. 680/1281) who wrote al-Kanz;45 cAbd Allah b. Mawded
al-Meqilc (d. 683/1284) who wrote al-MukhtAr;46 radr al-Sharc ca al-
Mambebc (d. 747/1346) who wrote al-WiqAya;47 and Ammad b. cAlc
Ibn al-Sacatc (d. after 690/1291), the author of Majma c al-BaMrayn.48 (It
is worth noting in passing that Ibn Kamal identi¬ed most jurists who
belonged to the fourth, ¬fth, and sixth ranks in terms of their works,
works which represented their contribution to law and which became
the yardstick of the quality of their hermeneutical activities. Here, it is

41
On takhrCj and the mukharrijEn (=aQMAb al-takhrCj ), see chapter 2, section III, below.
Probably cAlc b. Ammad nusam al-Dcn al-Razc who died in 593/1196. See Ibn
42

Quslebugha, TAj al-TarAjim, 42.
43
Shaykh al-Islam Burhan al-Dcn cAlc b. Abc Bakr al-Marghcnanc (d. 593/1197). For his
biography, see al-HidAya: SharM BidAyat al-MubtadC, 4 vols. (Cairo: Muqsafa Babc al-
nalabc, n.d.), I, 3“9.
44
Ibn Quslebugha, TAj al-TarAjim, 7. 45 Ibid., 13. 46 Ibid., 31.
47
Carl Brockelmann, Geschichte der arabischen Literatur, 2 vols. (Leiden: E. J. Brill,
1943“49); 3 supplements (Leiden: E. J. Brill, 1937“ 42), suppl. 1, 646.
48
Ibn Quslebugha, TAj al-TarAjim, 6.
Juristic typologies: a framework for enquiry 17
signi¬cant that they appear in the role of author“jurists as much as they
are seen as mujtahids or muqallids.)
Finally, the seventh rank contains the lowliest muqallids, including
those who are poorly trained jurists, or who are incapable of “di¬erentiat-
ing right from left.”49

V
Now let us examine the signi¬cance of these typologies within the context
of our enquiry. We begin by noting two important anomalies. The ¬rst
may be found in Ibn al-ralam™s discussion of the ¬rst type of his category
2, which, incidentally, he does not label. Jurists of this type are neither
founders nor followers, strictly speaking. He explicitly states that this type
follows the imam neither in his madhhab nor in his methods and legal
reasoning (lA yakEnu muqallidan li-ImAmihi, lA f C al-madhhab wa-lA f C
dalClihi).50 If this is the case, then why should they even be included? The
answer, I believe, lies in the unique history of the Sha¬cite school, which
appears to have been later consolidated by Ibn Surayj by incorporat-
ing into the school tradition the doctrines of a number of independent
mujtahids whose connection to Sha¬cc seems tenuous. It should be noted
that no trace of this ambiguous type can be found in either the nana¬te
or the Malikite typologies we have discussed here. In the latter, its absence
is clear since Malik and his associates are classed as indistinguishable
equals in what would have otherwise been Ibn Rushd™s fourth group.
In the former typology, the second rank of jurists such as Abe Yesuf,
Shaybanc, and their peers follow Abe nancfa™s path.
The second anomaly is Ibn Rushd™s inverted classi¬cation, which
begins with low-grade muqallids and ends with mujtahids par excellence,
despite the fact that these latter, regardless of their legal creativity, ultim-
ately operated within the boundaries of the Malikite school. By contrast,
Ibn al-ralam™s and Ibn Kamal™s typologies begin with the highest-ranked
mujtahids and descend to the lowest ranks.
It is undeniable that Ibn Rushd™s inverted classi¬cation represents
a deviation from the form of juristic taxonomy that dominated Islamic
culture. All biographical and semi-biographical works dealing with jurists,
theologians, traditionists, and others follow the chronological format,
thus rendering Ibn Rushd™s classi¬cation all the more anomalous. One
possible explanation of this anomaly is the provenance of Ibn Rushd™s
typology, which seems to be one of, if not in fact, the earliest. Indeed, the

Qurashc, al-JawAhir al-MuKC ” , 559.
49 50
a Ibn al-ralam, Adab al-MuftC, 91.
18 Authority, continuity, and change in Islamic law
juristic biographical tradition itself appears to have begun no earlier than
a century or so before Ibn Rushd, which makes the argument in favor of
his unprecedented typology quite persuasive.51
Because it is so early, Ibn Rushd™s typology manifests a relatively
weaker form of loyalty to the school tradition than later became the
norm. An inverted typology conceptually and structurally tends to down-
grade hierarchical authority, or, at the very least, is not acutely conscious
of such an authority. The absence from it of any chronological element
amounts to a virtual weakening of the chain of authority that mediates
between the founding imam and his followers throughout the centuries.
It should not be surprising then that Ibn Rushd does not elaborate a
system of authority which is derivative in nature. Instead, the authority
which is the focus of his typology is almost entirely hermeneutical.
The types he elaborates are independent of each other, and are markedly
disconnected in terms of an authoritative structure. Malik “and his
associates” are not introduced as a “group” in his classi¬cation, although,
admittedly, they are constantly invoked. This omission may have been
dictated by the nature of the question he was asked, although it remains
true that the founding imam™s distinct and prestigious status as advocated
by both Ibn al-ralam and Ibn Kamal is virtually absent from Ibn Rushd™s
scheme. It su¬ces to recall here his assertion that “the attributes of the
muftC which he should ful¬ll do not change with the changing of times,”52
implying that Malik and his associates as well as all later mujtahids of the
third group (type) are equal in juristic competence.
The temporal proximity of Ibn Rushd to the ¬nal crystallization of the
law schools, especially of Andalusian Malikism, was a decisive factor that
a¬ected not only the degree to which the taxonomy was made elaborate,
but also the historical consciousness that undergirded such a taxonomy.
Whereas taxonomic elaborateness and historical consciousness are qual-
ities largely absent from Ibn Rushd™s typology, they dominate those of
Ibn al-ralam and Ibn Kamal. Ibn al-ralam wrote more than two centuries
and a half after the formation of the Sha¬cite school in the east, when
a historical pattern of developments had by then become fairly clear.
By his time, and certainly by Ibn Kamal™s day, historical consciousness
of legal evolution, the structure of authority, and hermeneutical activity
had become well de¬ned. This consciousness is nearly absent from Ibn
Rushd, obvious in Ibn al-ralam, and elaborate in Ibn Kamal.
Ibn al-ralam™s ¬fth type, which he introduces rather informally “
leaving it extraneous to the typology itself “ has its equivalent in Ibn

51 52
Wansharcsc, al-Mi cyAr al-Mughrib, X, 34.
See n. 2, above.
Juristic typologies: a framework for enquiry 19
Kamal™s seventh and last rank, a rank not only articulated in a deliber-
ate and conscious manner, but also formally integral to the typology.
Furthermore, in what is equivalent to Ibn al-ralam™s second type, Ibn
Kamal distinguished two ranks, one able to perform ijtihAd in indi-
vidual questions, the other limited to conducting takhrCj. In Ibn al-ralam
both activities belong to the same type. This leaves us with the following
parallels between the Sha¬cite and nana¬te typologies: Category 1 equals
rank 1; type 1 (of category 2) equals rank 2; type 3 equals rank 5; and
type 4 equals rank 6.
Further comparison shows that Ibn al-ralam™s category 1 and the
¬rst type of category 2, and Ibn Kamal™s ranks 1 and 2, are equivalent
to what would have been Ibn Rushd™s fourth group, although this must
remain a matter for speculation. This is so because Ibn Rushd appears
to deny the founding fathers any special characteristic, arguing in e¬ect
that later mujtahids are no less quali¬ed than these were. Admittedly,
later mujtahids are found to be a¬liated, yet their ijtihAd can often di¬er
from that of the masters of the schools. With this a¬liation in mind, Ibn
Rushd™s third group would then be equivalent to Ibn al-ralam™s types 1
and 2. The second group is even less quali¬ed, encompassing Ibn
al-ralam™s types 3, 4, and possibly 5. The ¬rst group would then be
equivalent to Ibn al-ralam™s type 5, with the di¬erence that Ibn Rushd
does not see them as entitled to issue fatwAs.
Perhaps the most salient feature of these typologies, especially the
Sha¬cite and nana¬te varieties, is that they sketch the diachronic and
synchronic contours of Islamic legal history generally, and the develop-
ment of the respective schools in particular. They sketch this history in
terms of the authority and scope of hermeneutical activity, two separate
domains that are nonetheless intimately interconnected. Interpretive act-
ivity may be more or less authoritative, and its scope may also be wide or
narrow. But in Islamic legal history they stand in a relationship of correla-
tion, for higher hermeneutical authority brings along with it a wider range
of interpretive activity. The most absolute form of these two domains was
the lot of the founding imams. As time went on, increasing numbers of
jurists were to claim less and less competency in these domains. Indeed,
diminishing returns in both authority and hermeneutics went hand in
hand with an increasing dependency on former authority, although to
a lesser extent on earlier corpora of interpretation. Synchronically, there-
fore, the function of these typologies is not only to describe, justify, and
rationalize juristic activities of the past but also, and more importantly, to
construct the history of the school as a structure of authority which is
tightly interconnected in all its constituents. The structure that emerges is
20 Authority, continuity, and change in Islamic law
both hierarchical and pyramidical. In synchronic terms, then, the achieve-
ment is represented in the creation of a pedigree of authority that binds
the school together as a guild.
Diachronically, the typologies justify the tradition in which the muftCs
were viewed as founders of law schools as well as the sustainers of a con-
tinuous activity that connected the past with the present. But the con-
nection was also made in concrete terms. The hermeneutics of one type or
rank represented a legacy to the succeeding type and rank, a legacy to be
accepted, articulated, elaborated, and further re¬ned. The process began
with absolute ijtihAd, passing through more limited ijtihAd, descending to
takhrCj, and then ultimately tarjCM and other forms of interpretive activity.
Participating at each of these stages was a group of identi¬able jurists. Ibn
Kamal, for instance, recognized particular jurists as belonging to each of
the ranks he pro¬ered.
The typologies also function on the synchronic level, for they at once
describe and justify the activities of muftCs both at and before the time
that each typology, as a discursive strategy, came into being. For Ibn
Rushd, the three groups he recognized were still active in his time; this
is not only clear but indeed demonstrable, for Ibn Rushd himself was a
supreme mujtahid in his own right.53 To the exclusion of the ¬rst category
of his typology, and perhaps the ¬rst type of the second, Ibn al-ralam™s
scheme also justi¬es and describes the range of juristic activities that pre-
vailed during his time. Ibn Kamal™s typology, on the other hand, is more
diachronically bound, and thus seems on the surface to be less susceptible
to synchronic justi¬cation. Nonetheless, as in the case of Ibn al-ralam,
ranks 5 to 7 did exist at all times subsequent to the formative period, and
3, and 4 could have conceivably existed at any time. Only ranks 1 and 2,
being foundational, are unique, and thus represent a phenomenon that
cannot be found repeated in later centuries.
The typologies may also serve as a description of the range of activ-
ities of a single jurist. The more accomplished the jurist, the greater the
number of activities, across two or more types, in which he might have
been involved. No doubt jurists operated within a system of authority,
which means that taqlCd constituted the great majority of the cases with
which they had to deal. But jurists of high caliber, such as Ibn al-ralam
himself and Nawawc (as well as al-cIzz Ibn cAbd al-Salam [d. 660/1262]
and, later, Taqc al-Dcn al-Subkc [d. 756/1355]) did deal with less com-
mon, rare, and di¬cult cases which required juristic competence of a
more sophisticated, ijtihAdic type. Such jurists (including Ibn Kamal

53
See n. 11, above.
Juristic typologies: a framework for enquiry 21
and Shaykh al-Islam Abe al-Suced [d. 982/1574]) did function at
several levels. In Ibn al-ralam™s classi¬cation, these latter operated as type
2 through 5, and possibly even type 1 jurists. In Ibn Kamal™s typology,
they operated on the level of ranks 3“7. This multi-level function-
ing is partly attested by Ibn Kamal™s citation of names as examples of
jurists who represented certain ranks. Marghcnanc, for instance, is cited
as active at ranks 4 and 5, and Karkhc at ranks 3 and 4. We can easily
assume that in Karkhc™s case, he mastered all ranks between, and includ-
ing, 3 and 7.
Karkhc™s case is also instructive insofar as it demonstrates the interplay
between ijtihAd and taqlCd, both of which here acquire a multiplicity of
meanings. For the ijtihAd associated with rank 3 (the mujtahid in indi-
vidual cases) is qualitatively di¬erent from that required in rank 4, and
this, in turn, is to be di¬erentiated from its counterparts in ranks 1, 2,
and 5. Similarly, taqlCd operates on several levels. Ibn Kamal™s second
rank is bound by taqlCd to the imam, but the quality of the taqlCd found
there is entirely unlike that found, for instance, in rank 4, and certainly
unrelated to that which ranks 6 and 7 practice. Thus, while ijtihAd suc-
ceeds in maintaining a positive image, even in the middle ranks, taqlCd
is, on one level, clearly a desirable practice in the higher ranks and an
undesirable one in rank 7. Ibn al-ralam™s informal ¬fth type also shares the
same negative image, although Ibn al-ralam seems more charitable than
Ibn Kamal.54 I say “on one level,” because the level on which taqlCd is
considered negative is one which is de¬ned in terms of intellectual com-
petence, accomplishment, and learning. On another level, taqlCd main-
tains a positive meaning, even in the lowest of ranks and types. This is
the meaning of a¬liation to the madhhab, a relationship in which the
jurists of all ranks and types make a commitment to learn its doctrines,
improve on them when possible, and defend them at all times. Adherence
to the madhhab and an active defense of it constitute, respectively, the
minimal and maximal forms of loyalty, and both represent varying levels
of positive forms and meanings of taqlCd.
The positive senses of taqlCd transcend the province of taqlCd itself
as narrowly de¬ned, for if ijtihAd has a positive image, it is ultimately
because of the fact that it is backed up by taqlCd. To put it more pre-
cisely, except for the category (or type) of the imam, ijtihAd would be an
undesirable practice if it were not for taqlCd, for this latter perpetuates
ijtihAd which is quintessentially a creative, independent, and therefore

54
It is in the sense where it is applied by jurists of the lower ranks that taqlCd was
condemned. See chapter 4, section I, below.
22 Authority, continuity, and change in Islamic law
positive activity. The only way the imams could have been conceived
as establishing their schools was through absolute ijtihAd, and if ijtihAd
were to continue to operate in the same absolute fashion in the absence of
taqlCd, then there would have been no schools but a multitude of inde-
pendent mujtahids. Thus it was taqlCd with respect to the imams™ ijtihAd
that guaranteed the survival of the four schools, and, therefore, loyalty
to them. TaqlCd was a necessary agent of mediating authority, and it was
therefore a quality that permeated all types and ranks, except, of course,
the ¬rst.55
It follows, therefore, that these typologies present us with a variety of
layers of juristic activity, each of which involves the participation of one
or more types of jurists. The elements we have identi¬ed are as follows:
(1) IjtihAd, which was, to varying degrees, the province of all jurists except those
of the lower-middle and lowest ranks. In chapter 4 we shall encounter cases
of taqlCd that bordered, if not encroached upon, the province of ijtihAd. But
equally importantly, we shall attempt to demonstrate, in chapter 2, that even
the ijtihAd of the founders, presumably absolute and wholly creative, fell
short, in the ¬nal analysis, of such high and idealistic expectations.
(2) TakhrCj, a creative activity that involves a limited form of ijtihAd whereby
the jurist confronts the already established opinions of the imam and those
of his immediate mujtahid-followers, not the revealed texts themselves. This
activity, which resulted in a repertoire of new opinions, engaged jurists of
the higher ranks, mostly those who came on the heels of the imams and of
the early masters, but also, to a limited extent, a number of later jurists. The
reasoning involved in takhrCj and its role in the early formation of the schools
will be taken up in the second half of chapter 2.
(3) TarjCM and all other forms of making certain opinions preponderant over
others is an activity that engages, once again, the middle types, excluding the
founders and the lowest rung of jurists. As we shall see in chapters 5 and 6,
this activity was responsible for determining the authoritative opinions of the
school at any stage of its history. This determination, which was to change
from one period to another, was in turn itself instrumental in e¬ecting legal
change.
(4) TaqlCd, which is the province of jurists of all types and ranks, except, pre-
sumably, the ¬rst. For the sake of our analysis, we shall look at this activity
as consisting of mainly two functions, depending on which sort of jurist is
making use of it. The ¬rst is the function of maintaining authority within
the madhhab, or, to put it di¬erently, of maintaining loyalty. In this activity,
jurists of the lower echelons are usually involved. The second function is that
of defending the madhhab, an activity that engages the attention of the jurists
belonging to the middle ranks and types. The founders and eponyms, by
55
However, we shall in due course be compelled to question this theoretical postulate.
Juristic typologies: a framework for enquiry 23
de¬nition, had supposedly56 no tradition to defend, while the lowest-ranking
jurists were deemed intellectually and juristically incapable of putting forth
a defense of the doctrines of their madhhab. In chapter 2 we shall chal-
lenge the typological assumption that ascribed to the founding imams such
absolute originality. On the other hand, in chapter 4 we shall likewise show
that taqlCd of the lowest form also involved defense of the madhhab.
(5) TaQnCf, the activity of the author“jurist which characterizes all ranks and
types except the lowest. This activity is not explicitly articulated in the typo-
logies, but constitutes, nonetheless, a major feature in them. It is obliquely
mentioned in ranks 4, 5, and 6 of Ibn Kamal™s typology, and in type 3 of Ibn
al-ralam™s. But it is assumed that all other higher ranks and types partook in
the activity of writing. The author“jurist, therefore, emerges as a signi¬cant
player in the ¬eld of juristic hermeneutics, whether as an absolute mujtahid,
limited mujtahid, or even as a muqallid of the middle types. In chapter 6 we
shall show the central role that the author“jurist played in sanctioning and
formalizing legal change.
These typologies also enable us to identify four major players: the
muqallid, the muftC, the mujtahid, and the author“jurist (muQannif ).
None of these functions, as we have seen, constitutes an independent
entity existing in complete isolation from the others. Indeed, each of these
functions represents an activity that encroaches, at one level or another,
upon the rest. The muqallid can be, though not in every case, by turns a
muftC, a mujtahid of sorts, and an author. By the same token, a mujtahid,
except theoretically in the case of an imam, can be a muqallid, and
is always a muftC and, nearly always,57 an author. The muftC can be a
muqallid, an author, and a mujtahid. Similarly, the author can be a
muqallid, a mujtahid, and a muftC, often at one and the same time.
Markedly absent from these typologies and from the discourse that
informed them (with the partial exception of Ibn Rushd™s) is the qAKC. In
chapters 3 and 6 we shall attempt to address the import of this omission
when we discuss the hermeneutics which the qAKC ™s function involved.

56
See chapter 2, section II, below.
Among the four imams, Ammad Ibn nanbal was the only one who was not an author“
57

jurist. Shams al-Dcn Ibn Qayyim al-Jawziyya, a nanbalite himself, acknowledges that
Ibn nanbal “disliked writing books” (wa-kAna raKiya AllAhu canhu shadCda al-karAhiya
li-taQnC¬ al-kutub). See his I clAm al-Muwaqqi cCn can Rabb al- cFlamCn, ed. Mumammad
c
Abd al-namcd, 4 vols. (Beirut: al-Masbaca al-cAqriyya, 1407/1987), I, 28. However, all
Ibn nanbal™s immediate followers engaged in writing, as was the case with the followers
of the other imams. See the last part of section II, chapter 2, below.
24 Authority, continuity, and change in Islamic law

2

EARLY IJTIHFD AND THE LATER
CONSTRUCTION OF AUTHORITY

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