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wa-uQElihA); W. B. Hallaq, “A Prelude to Ottoman Reform: Ibn cfbidcn on Custom
52 Authority, continuity, and change in Islamic law

IV
Be that as it may, there is no doubt that takhrCj constituted, in the author-
itative doctrinal structure of the four schools, the second most import-
ant body of legal subject matter “ second, that is, to the actual doctrines
of the eponyms, and second only when disentangled from the eponym™s
corpus juris. For it was often the case that attributions to the imam
became indistinguishably blended with their own doctrine or at least
with what was thought to be their own doctrine (a quali¬cation that has
been established in the previous section). We have thus far seen a num-
ber of examples which make it demonstrably clear that the takhrCj of
later authorities becomes the property of the eponyms. This process of
attribution, it is important to stress, did not go unnoticed by the jurists
themselves. They were acutely aware of it not only as a matter of practice,
but also as a matter of theory. Abe Ismaq al-Shcrazc, a Sha¬cite jurist and
legal theoretician, devotes to this issue what is for us a signi¬cant chapter
in his monumental uQEl work SharM al-Luma c. The chapter™s title leaves
us in no doubt as to the facts: “Concerning the Matter that it is not
Permissible to Attribute to Sha¬cc what his Followers have Established
through takhrCj.”133
Shcrazc observes that some of the Sha¬cites did allow such attribu-
tions, a signi¬cant admission which goes to show that this process was
recognized as a conscious act,134 unlike that of attributing to the eponyms
the opinions of their predecessors. Shcrazc reports furthermore that pro-
ponents of the doctrine defended their position by adducing the following
argument: The conclusions of qiyAs are considered part of the Sharcca, and
they are thus attributed to God and the Prophet. Just as this is true, it is
also true that the conclusions of qiyAs drawn by other jurists on the basis
of Sha¬cc™s opinions may and should be attributed to Sha¬cc himself.
Shcrazc rejects this argument though, saying that the conclusions of qiyAs
are never considered statements by God or the Prophet himself. Rather,
they are considered part of the religion of God and the Prophet (dCnu

and Legal Change,” proceedings of a conference held in Istanbul, May 25“30, 1999
(New York: Columbia University Press, forthcoming). See also the Malikite nassab,
MawAhib al-JalCl, I, 41. On the discourse of the Malikite Qaraf c concerning the theory
of takhrCj, see Jackson, Islamic Law and the State, 91“96. Jackson remarks that “Qaraf c
himself engages in this practice on occasion” (p. 96).
133
Abe Ismaq Ibrahcm b. cAlc al-Shcrazc, SharM al-Luma c, ed. cAbd al-Majcd Turkc, 2 vols.
(Beirut: Dar al-Gharb al-Islamc, 1988), II, 1084“85: “FC annahu lA yajEz an yunsab ilA
al-ShA¬ cC mA kharrajahu aMad aQMAbihi calA qawlihi.”
134
The controversy and its relevance are still obvious at least two centuries after Shcrazc
wrote. See Ibn al-ralam, Adab al-MuftC, 96“97.
Early ijtihad and the later construction of authority 53
AllAh wa-dCnu RasElihi ).135 Besides, Shcrazc continues, even this attribu-
tion in terms of religion is inadmissible, for neither Sha¬cc nor any of the
other founding mujtahids have their own religion.
Shcrazc then cites another argument advanced by his interlocutor: If
the eponym holds a certain opinion with regard to one case, say, the
proprietorship of a garden, then his opinion about another case, such as
the proprietorship of land surrounding a house, would be analogous. The
implication here, in line with the ¬rst argument, is that an analogous
opinion not necessarily derived by the eponym belongs nonetheless to
him, since the principles of reasoning involved in the case dictate identical
conclusions. Shcrazc counters by arguing that there is in e¬ect a qualitative
di¬erence between the interlocutor™s example, which is analogical, and
takhrCj, which always involves two di¬erent, not similar, cases. Analogical
cases, Shcrazc argues, may be attributed to the eponym despite the fact
that one of them was not solved by him. But when the two cases are
di¬erent, and when one of them was solved by another jurist, no attribu-
tion of the latter to the eponym should be considered permissible.136
tefc provides further clari¬cation of Shcrazc™s argument. If the eponym
established a certain legal norm for a particular case, and also explicated
the rationale (cilla) which led him to that norm, then all other cases
possessing this identi¬able cilla should have the same norm. In this sense,
the eponym™s doctrine, used to solve the ¬rst case, can be said to have
provided the solution of the latter ones, even though the eponym may not
have even known of their existence. In other words, the latter cases can be
attributed to him.137 On the other hand, should he solve a case without
articulating the cilla behind it, and should he not predicate the same legal
norm he derived for this case upon what appears to be an analogous case,
then his doctrines (madhhab) in both cases must be seen as unrelated. The
disparity is assumed because of the distinct possibility that he would have
articulated a di¬erent cilla for each case or set of cases. But, tef c adds,
many jurists (al-kathCr min al-fuqahA”) disregarded such distinctions and
permitted the activity of takhrCj nonetheless.138
tef c™s testimony, coupled with that of Shcrazc, is revealing. It not
only tells of the presence of a signi¬cant juristic“interpretive activity that
dominated legal history for a considerable period, but also discloses the

135
Shcrazc, SharM al-Luma c, II, 1084. 136 Ibid., II, 1085.
tef c, SharM MukhtaQar al-RawKa, III, 638: “idhA naQQa al-mujtahid calA Mukm f C
137

mas” la li- cilla bayyanahA fa-madhhabuhu f C kulli mas” la wujidat f C-hA tilka al- cilla
a a
ka-madhhabihi f C hAdhihi al-mas” la.” See also the introduction to Zarkashc, SharM, I,
a
28 ¬.
tef c, SharM MukhtaQar al-RawKa, III, 639.
138
54 Authority, continuity, and change in Islamic law
methodological issues that such activity involved. The penchant to
attribute doctrines to the eponym constituted ultimately the crux of the
controversy between the two sides. Curiously, the theoretical exposition
of takhrCj did not account for the contributions of authorities external
to the school of the founder. The recruitment of nana¬te doctrine and
its assimilation into the Sha¬cite school was not, for instance, given any
due notice. In fact, because the theoretical elaboration of takhrCj appeared
at a time when the schools had already reached their full development,
it must not have been in the best interest of the a¬liated jurists to expose
their debt to other schools. We might conjecture that the debt was to a
large extent reciprocal among all the schools, which explains why no jurist
found it opportune or wise to expose the other schools™ debt to his own.
His own school, one suspects, would have been equally vulnerable to the
same charge.

V
It is therefore clear that ijtihAd through takhrCj was a dominant inter-
pretive activity for several centuries and that at least a fair number
of jurists were in the habit of attributing the results of their juristic
endeavors to the founders.139 This process of attribution, which is one
of back-projection, both complemented and enhanced the other pro-
cess of attribution by which the founder imams were themselves credited
with a body of doctrines that their predecessors had elaborated. This
is not to say, however, that both processes were of the same nature,
for one was a self-conscious act while the other was not. The process of
crediting the presumed founders with doctrines which had been con-
structed by their predecessors was never acknowledged, whether by legal
practitioners or theoreticians. Islamic legal discourse is simply silent on
this point. Attributions through takhrCj, on the other hand, were widely
acknowledged.
The explanation for this phenomenon is not di¬cult: The attribution
of later opinions to a founder can be and indeed was justi¬ed by the


See the statement of the nanbalite Ibn Qasim in this regard, quoted in Zarkashc,
139

SharM, I, 31“32. This process of attribution gave rise to an operative terminology
which required distinctions to be made between the actual opinions of the imams and
those that were placed in their mouths. Ibn cfbidcn, for instance, argues that it is
improper to use the formula “Abe nancfa said” (qAla AbE NanCfa) if Abe nancfa
himself had not held the opinion. The takhrCjAt (pl. of takhrCj ) of the major jurists, he
asserts, must be stated with the formula “Abe nancfa™s madhhab dictates that . . .”
(muqtaKA madhhab AbC NanCfa kadhA). See his SharM al-ManUEma, 25.
Early ijtihad and the later construction of authority 55
supposed fact that these opinions were reached on the basis of a meth-
odology of legal reasoning constructed in its entirety by the presumed
founder. The assumption underlying this justi¬cation is that the founder
would have himself reached these same opinions had he addressed the
cases which his later followers encountered. But he did not, for the cases
(nawAzil ) befalling Muslims were deemed to be in¬nite. Here there are
two distinct elements which further enhance the authority of the pre-
sumed founder at the expense of his followers. First, it makes their inter-
pretive activity, or ijtihAd, seem derivative but above all mechanical: all
they need to do is to follow the methodological blueprint of the imam.
This conception of methodological subservience permeates not only the
juristic typologies but also all structures of positive law and biographical
narrative; that is, the doctrinal, interpretive, and sociological make-up
of the law. As we shall see in chapter 4, positive law depended on the
identi¬cation of the imam™s principles that underlie individual legal
norms just as much as it depended on a variety of other considerations
emanating from, and imposed upon them by, their own social exigencies.
Similarly, the biographical narrative, a central feature of Islamic law,
was thoroughly driven by hierarchical structures which would have no
meaning without the juristic foundations laid down by the arch-¬gure of
the imam. The second element is the wholesale attribution to the founder
imam of creating an entire system of legal methodology that constitutes
in e¬ect the juridical basis of the school. I have shown elsewhere that
legal theory and the methodology of the law emerged as an organic and
systematic entity nearly one century after the death of Sha¬cc and a good
half-century after the death of the last of the eponyms whose school has
survived, namely, Ahmad Ibn nanbal.140 The fact of the matter is that
both legal theory (uQEl al-¬qh) and the principles of positive law (also
known as uQEl )141 were gradual developments that began before the pre-
sumed imams lived and came to full maturity long after they perished.
Given the prestige and authority attached to the ¬gure of the founder
imams, it was self-defeating to acknowledge their debt to their immediate
predecessors who were jurists like themselves.142 That link had to be sup-
pressed and severed at any expense. It had to be replaced by another link
in which the imams confronted the revealed texts directly, as we have seen

Hallaq, “Was al-Sha¬ci the Master Architect?” 587 ¬. 141 See chapter 4, below.
140

We have already seen that Abe nancfa was associated with the highly authorized
142

statement that “I refuse to follow (uqallidu) the Followers because they were men who
practiced ijtihAd and I am a man who practices ijtihAd.” This statement, especially in
light of the authoritative status it acquired in the school, must have been intended to
defy any admission of debt. See n. 10, above.
56 Authority, continuity, and change in Islamic law
in the instructive example provided by Sarakhsc concerning the levy of the
tithe.143 Obviously, the link with the immediately preceding jurists could
not have been dwelt upon, much less articulated as a theoretical issue.
TakhrCj, on the other hand, was articulated in this manner, and therein
lies the di¬erence.144

143
See section II, above. One implication of our ¬nding in this chapter pertains to the
controversy among modern scholars over the issue of the gate of ijtihAd. Against the
age-long notion that the gate of ijtihAd was closed “ a notion advocated and indeed
articulated by Schacht “ it has been argued that this creative activity continued at least
until late medieval times. See Wael B. Hallaq, “Was the Gate of Ijtihad Closed?”
International Journal of Middle East Studies, 16 (1984): 3“41. Norman Calder has
argued that “Schacht will be correct in asserting that the gate of ijtihAd closed about
900 [A.D.] if he means that about then the Muslim community embraced the prin-
ciple of intisAb or school a¬liation. Hallaq will be correct in asserting that the gate of
ijtihAd did not close, if he distinguishes clearly the two types of ijtihAd “ independent
and a¬liated.” See Calder, “al-Nawawc™s Typology,” 157. Now, if our ¬ndings are
accepted, then Calder™s distinction “ previously suggested by others “ becomes entirely
meaningless, for it never existed in the ¬rst place. If there was ever a claim in favor of
closing the gate of ijtihAd, it could have meant one thing and one thing only, i.e.
precluding the possibility of a new school, headed, of course, by an imam who would
have to o¬er a legal methodology and a set of positive legal principles qualitatively
di¬erent from those advocated by the established schools.
144
The ¬ndings of this chapter ¬nd corroboration in several quarters, each approach-
ing the same general theme from a completely di¬erent angle. See Hallaq, “Was al-
Sha¬ci the Master Architect?” reprinted in Wael B. Hallaq, Law and Legal Theory in
Classical and Medieval Islam (Variorum: Aldershot, 1995), article VII, including the
addenda; Melchert, Formation of the Sunni Schools; and Jonathan E. Brockopp, “Early
Islamic Jurisprudence in Egypt: Two Scholars and their MukhtaQars,” International
Journal of Middle East Studies, 30 (1998): 167 ¬. To these writings one may cautiously
add Norman Calder, Studies in Early Muslim Jurisprudence (Oxford: Clarendon Press,
1993); cautiously, because Calder makes too much of the evidence available to him.
For critiques of this work, see the sources cited in Harald Motzki, “The Prophet
and the Cat: On Dating Malik™s MuwaSSa” and Legal Traditions,” Jerusalem Studies in
Arabic and Islam, 22 (1998): 18“83, at 19, n. 3.
The rise and augmentation of school authority 57

3

THE RISE AND AUGMENTATION OF
SCHOOL AUTHORITY




I

That the so-called founders were not truly absolute mujtahids, and that
they did not exercise ijtihAd across the board, is a ¬nding that has serious
implications. So does our conclusion, in chapter 2, that the authority
of the so-called founders was largely a later creation, partly drawn from
attributions to the eponyms by their successors, and partly a later denial
of the signi¬cant contributions made by the earliest jurists to the forma-
tion of the eponyms™ doctrines. One important implication of these
¬ndings is that the schools that were attributed to the imams did not rely
on their talents as high-caliber mujtahids or, at any rate, as mujtahids of
a special kind. There were many jurists like them during the formative
period, which began at the end of the ¬rst/seventh century and continued
till the middle of the fourth/tenth. Obviously, not one of them, founder
of a school or not, constructed his doctrine out of a sociological and
legal“jurisprudential vacuum. They studied law with previous genera-
tions of legal scholars and transmitted from them a cumulative doctrine
which encompassed both authoritative and less authoritative opinions.
Of course, they reformulated part of this cumulative doctrine, and hence
contributed to the creation of khilAf, the corpus juris of disagreement.
But they also transmitted intact to the next generation of legal scholars a
substantial part of the doctrine they received from their teachers or senior
colleagues. The extent of their ingenuity and creativeness in reformulating
part of the received doctrine was certainly common in all the founders, as
well as in many others who were not fortunate enough to be designated
as founders of schools by later historical forces. For as we saw in the
preceding chapter, it was these complex forces, rather than the distinctive
contributions of the imams themselves, that transformed some of them
into school founders.


57
58 Authority, continuity, and change in Islamic law
This explains in part why Ibn nanbal emerged as a founder when
Muzanc, a far more skillful and creative jurist, did not. Despite the ideo-
logical biases of later biographical literature in favor of a fairly uni¬ed
and strictly authoritative school doctrine, Muzanc still appears to have
been a jurist“rebel in the Sha¬cite tradition. Perhaps more than any other
jurist of this school, he is associated with what was termed tafarrudAt,
a frequently used designation which, when said of a jurist, indicates that
he diverged from the mainstream doctrine of the school. So we can quite
safely infer that the term must have come into being after the emergence
of an authoritative school doctrine, or madhhab, properly speaking. For
it is frequently emphasized in the biographical literature of the Sha¬cite
school that Muzanc™s tafarrudAt are not considered part and parcel of
Sha¬cite doctrine.1 In fact, he is reported to have authored a whole treatise
“according to his own madhhab, not according to that of Sha¬cc.”2 His
divergences from Sha¬cc™s doctrine were so many that Marwazc (d. 304/
916) felt compelled to write a substantial treatise (mujallad Kakhm) in
an attempt to reconcile the doctrines of the two, perhaps by bringing
Muzanc™s doctrine closer to that of Sha¬cc, at least to the extent that this
was possible. The discourse of the biographies suggests that a major pre-
occupation of Marwazc in this work was to smooth the edges of Muzanc™s
critique (i ctirAKAt) of Sha¬cc. But despite his best e¬orts, he seems to
have been unable to bring himself to side consistently with Sha¬cc, and
is reported to have frequently found Muzanc™s opinion superior to that
of the former.3 It is interesting to note in this context that half a century
after Marwazc™s death, when school doctrine had reached a fuller stage of
development, the distinguished Abe Bakr al-Farisc (d. 349/960) attacked
Muzanc in favor of Sha¬cc.4
Thus in the eyes of later madhhab-oriented jurists, Muzanc was any-
thing but a loyal student. Abe Bakr al-Farisc™s attack was to demonstrate
this much. But during the pre-madhhab era, in which Muzanc ¬‚ourished,
unrestricted juristic maneuvering was still quite possible. By virtue of the
force of maintaining tradition, both early and later perceptions combined
to create a dual image of Muzanc. Juwaync and Ra¬cc are reported to have
said that Muzanc™s tafarrudAt constitute part of his own, independent
madhhab, whereas his takhrCj, in which he conforms to Sha¬cc, has pre-
cedence over any other juristic doctrine within the latter™s madhhab, and


Subkc, TabaqAt, I, 243; Ibn Qakc Shuhba, TabaqAt, I, 8 (on the authority of Ibn Kajj
1

[d. 405/1014]).
Nawawc, TahdhCb, I, 285; Subkc, TabaqAt, I, 245“46.
2

Ibn Qakc Shuhba, TabaqAt, I, 71. 4 Ibid., I, 94“95.
3
The rise and augmentation of school authority 59
thus “inescapably belongs to the Sha¬cite school.”5 TakhrCj aside, Ra¬cc
argues, “the man is responsible for an independent school” ( fal-rajul QAMib
madhhab mustaqill ).6 But failing to attract any following, a Muzanite
school was not to be.
It is not our intention here to explain why circumstances did not
favour the rise of Muzanism, as they did Sha¬cism or nanbalism, among
others. Nor is it even within the reach of our knowledge to answer this
question at present. It is su¬cient for us to note that, at least in part,
Muzanc™s case resembles that of numerous other early mujtahids whose
juristic accomplishments were superior to those of some of the school
founders, yet did not receive the same recognition.
For Muzanc was not alone. Independent mujtahids continued to rise
to the challenge of formulating the law. Their names and extraordinary
activities have been recorded in some detail in biographical literature,
despite the “ideological” biases that these later works exhibited in favor
of school a¬liation. Not only Muzanc, but also narmala (d. 243/857),
another student of Sha¬cc, is said to have reached such a level of legal
learning and accomplishment as to have been considered responsible for
a school of his own.7 Another Iraqian jurist whose training combined
elements of Kefan doctrine and Sha¬cc™s teachings was Ibrahcm b. Khalid
Abe Thawr (d. 240/854), whose tafarrudAt were not accepted by the
later Sha¬cites because he “had his own madhhab.”8 Among the Malikites
who demonstrated a strong tendency towards independent reasoning we
¬nd Ammad b. Ziyad and Saccd b. Mumammad Ibn al-naddad (both
appear to have ¬‚ourished around the end of the third/ninth century),
who are reported to have categorically refused to bow to the authority of
the masters without allowing their own reasoning to adjudicate ¬rst.9
To this list of independent mujtahids we must add the very distinguished
group of jurists known as the “Four Mumammads” (al-MuMammadEn al-
Arba ca), namely, Mumammad b. Jarcr al-tabarc (d. 310/922), Mumammad
b. Ismaq Ibn Khuzayma al-Ncsaberc (d. 311/923), Mumammad b. Naqr
al-Marwazc (d. 294/906), and Mumammad b. Ibrahcm Ibn al-Mundhir
al-Ncsaberc (d. 318/930).10 All four were considered absolute mujtahids

Ibid., I, 8; Nawawc, TahdhCb, I, 285: “idhA tafarrada al-MuzanC bi-ra”y fa-hwa QAMib
5

madhhab wa-idhA kharraja lil-ShA¬ cC qawlan fa-takhrCjuhu awlA min takhrCj ghayrihi
wa-hwa multaMiq bil-madhhab lA maMAla.”
Ibn Qakc Shuhba, TabaqAt, I, 8. 7 Suyesc, al-Radd, 188.
6

Ibn Qakc Shuhba, TabaqAt, I, 3“4.
8

Abe cAbd Allah Mumammad b. narith al-Khushanc, QuKAt QurSuba (Cairo: Dar
9

al-Kutub al-Miqriyya, 1982), 282, 201“02.
Subkc, TabaqAt, II, 20“26, 126“30, 130“35, 135“ 40; Ibn Qakc Shuhba, TabaqAt, I,
10

60, 62; Suyesc, al-Radd, 189; Shcrazc, TabaqAt, 86“87.
60 Authority, continuity, and change in Islamic law
who developed independent legal doctrines that were seen later as con-
sisting of a large number of tafarrudAt.11 This phenomenon presents
us with a problem in Islamic legal history because their contributions
appear to have been no less independent-minded and signi¬cant than
those of the four founders; nevertheless, they never succeeded in estab-
lishing schools of their own, or at least none that managed to survive.
Admittedly, this problem cannot be separated from the quandary we have
already discussed, namely: Why did Abe nancfa, Malik, Sha¬c c, and Ibn
nanbal emerge as imams and founders? Why, moreover, to complicate
matters further, did their schools succeed when others failed? To attempt
to answer these questions, however, would take us beyond our present
enquiry.12
Still another problem raised by the Four Mumammads is their place in
the doctrinal con¬guration of the four schools, from which they were not
largely dissociated. We have already seen that Ibn al-Mundhir al-Ncsaberc
¬gures prominently in later nanbalite doctrine,13 and all four were at
the same time considered, rather ambivalently, members of the Sha¬cite
school.14 Yet tabarc did succeed in attracting followers and had, for
a short time at least, a school which was recognizably separate from its
Sha¬cite parent.15 Similarly, Ibn Khuzayma appears to have had his own
followers, most notably Daclaj b. Ammad al-Sajzc (d. 351/962) who “used
to issue fatwAs according to Ibn Khuzayma™s madhhab.”16 The qAKC Abe
Bakr Ammad b. Kalcl, on the other hand, did not issue fatwAs according
to the madhhab of tabarc, although he was his student and one of his
associates (aMad aQMAbihi). Instead, Ibn Kalcl is said to have disagreed with
his mentor, choosing to follow instead a distinct madhhab that consisted
of a combination of various doctrines.17
The foregoing is merely a sampling of the biographical notices and data
dedicated to the jurists who ¬‚ourished by the end of the formative period,
that is, roughly speaking, by the middle of the fourth/tenth century.
The picture that emerges is one of plurality. The so-called independent

Subkc, TabaqAt, II, 139. See also sources cited in previous note.
11
12
See preface, n. 3, above.
13
See Ibn Qudama, MughnC, XI, 259, 263, 271, 272, 277, 281, and passim. See also the
editor™s references to Ibn Qudama™s MughnC in Mumammad b. Ibrahcm al Ncsaberc Ibn
al-Mundhir, al-IjmA c, ed. cAbd Allah al-Baredc (Beirut: Dar al-Jinan, 1986), 182 ¬.,
187 ¬., 191 ¬., 201 ¬., and passim.
Subkc, TabaqAt, I, 244; II, 126, 139; Ibn al-Nadcm, al-Fihrist (Beirut: Dar al-Macrifa
14

lil-tibaca wal-Nashr, 1398/1978), 302.
15
See Ibn al-Nadcm, Fihrist, 326“29, who places Jarcrism on a par with the other schools.
See also Suyesc, al-Radd, 189.
Subkc, TabaqAt, II, 222. 17 Suyesc, al-Radd, 190.
16
The rise and augmentation of school authority 61
mujtahids, the likes of Abe Thawr, Muzanc, and the Four Mumammads,
are not only said to have created their own doctrines but also contributed
to those of schools not their own. All of them developed, albeit to varying
degrees, their own legal doctrines. Yet all of them were recruited to pro-
vide doctrinal support in the Sha¬cite school. Ibn al-Mundhir, one of
the Four Mumammads, was appropriated even more extensively in the
nanbalite school.18

II
This ubiquitous plurality became increasingly circumscribed by the begin-
ning of the fourth/tenth century, as evidenced by the data contained in
biographical collections. Around this time, the school as a guild began to
crystallize, for it was not long thereafter that the school came to be univer-
sally recognized as an authoritative structure. But a distinction must be
made at this point between two fairly separate developments with regard
to the evolution of the school, or at least its usual designation, madhhab.
The word madhhab meant a number of di¬erent things, depending on
how the word was used and in what particular context. One sense of the
word indicated personal a¬liation to the doctrine of an imam, a mean-
ing which had fully emerged and been solidi¬ed by the middle of the
fourth/tenth century. Perhaps a more important sense of the term was
its signi¬cation of the positive and theoretical doctrine of the imam in
particular and of his followers in general. In this sense, therefore, the
madhhab acquired the meaning of “a school™s authoritative doctrine,” a
meaning that was only later to emerge in its ¬nal form, perhaps as late as
the end of the sixth/twelfth century. But the process by which this sense
developed was a lengthy one, with the fourth/tenth and ¬fth/eleventh
centuries proving to be the period of its most signi¬cant growth.
Whereas the earlier period (which had ended, so to speak, by the
middle of the fourth/tenth century) was one of almost indistinguishable
plurality, the century or two immediately succeeding it witnessed a sig-
ni¬cant narrowing of doctrinal possibilities. We demonstrated earlier how
this plurality allowed for the easy appropriation of various doctrines as
one™s own. Ibn Surayj, for instance, perhaps the most important ¬gure
in the Sha¬cite school after Sha¬cc himself, and the jurist responsible
for the spread and success of the school,19 is said to have written a work

18
See n. 13, above.
See Hallaq, “Was al-Sha¬ci the Master Architect?” 595 ¬.; Melchert, Formation of the
19

Sunni Schools, 87 ¬.
62 Authority, continuity, and change in Islamic law
in which he derived his doctrine from Shaybanc™s, not Sha¬cc™s, system
( farra ca calA kutub MuMammad b. al-Nasan).20 This appropriation could
not, and indeed did not, occur in the later period. Like Ibn Surayj, Ibn
al-Qaqq (d. 335/946) belonged to the Sha¬cite school, but in his book
Adab al-QAKC he, by his own admission, combined the doctrines of Sha¬cc
and Abe nancfa.21 Yet another eloquent testimony to this unbounded
plurality was the uncertainty of the young Mumammad b. Naqr al-
Marwazc at the outset of his career as to which imam to follow, Abe
nancfa, Malik, or Sha¬cc.22 Later on in life, of course, he became an
independent mujtahid. Nevertheless, Marwazc™s uncertainty is indicative
of the impertinence of the madhhab as an authoritative doctrinal entity.
Rising students did not see any need or feel any pressure to bind them-
selves to a madhhab, a situation which was soon to change. While the
young Marwazc faced the dilemma of having to choose an imam to study
and follow (in this case Sha¬cc),23 students of the late fourth/tenth and
¬fth/eleventh centuries did not face such uncertainties or even choices, for
they lived in a world where they already had to belong to a madhhab
before embarking on a career in law.
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,24 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 ¬ndings 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.
Even during the post-formative period, that is, during the second half
of the fourth/tenth century and the ¬fth/eleventh, a number of mujtahids
continued to forge their own legal doctrines. cAbd Allah b. Ibrahcm Abe
al-Fakl al-Maqdisc (d. 480/1087) was reported to have risen to the rank
of mujtahid.25 So apparently did Ibrahcm b. Mumammad b. Mihran


Shcrazc, TabaqAt, 109; Ibn Qakc Shuhba, TabaqAt, I, 49.
20

Ibn al-Qaqq, Adab al-QAKC, I, 68: “fa-allaftu kitAbC hAdhA f C adab al-qAKC calA madhhab
21

al-ShA¬ cC wal-KEf C,” the latter being an unequivocal reference to Abe nancfa.
Subkc, TabaqAt, II, 23.
22

This is reported, of course, in Sha¬cite biographical works (cf. Subkc, TabaqAt, II, 23),
23

but the credibility of this account must be questioned.
Hallaq, “Was the Gate of Ijtihad Closed?” 3 ¬.
24

Ibn Qakc Shuhba, TabaqAt, I, 291.
25
The rise and augmentation of school authority 63
Abe Ismaq al-Isfara™cnc (d. 418/1027), the famous jurist and theologian.26
But these were a¬liated mujtahids who operated within the boundaries
of their 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 jurist™s 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 school™s substantive doctrine.
The example of Abe Mumammad al-Juwaync (d. 438/1064), the father
of Imam al-naramayn, may be somewhat extreme, but it does illustrate
our point. Juwaync the father was clearly a Sha¬cite who wrote some of
the more important and in¬‚uential works in the school. Yet he was
also recognized as a mujtahid who consciously stood, or attempted to
place himself, outside the boundaries of any school. It is reported that
he wrote, or at least began to write (shara ca f C kitAb),27 a work entitled
al-MuMCS in which he intended, quite deliberately, to transcend the limits
of the Sha¬cite school by discounting its speci¬c doctrines altogether.28
Juwaync™s radical position is instructive because despite all his attempts at
promoting his own juristic agenda and nonconformity, he continued to
be counted among the staunch Sha¬cites who unquestionably belonged to
the school. At the same time, it is not without signi¬cance that immedi-
ately following this account of Juwaync™s doctrinal dissent, Subkc reports
that the traditionist Abe Bakr al-Bayhaqc, a fervent advocate of Sha¬cc,29
severely criticized Juwaync, arguing that the ultimate authority for every-
thing the latter taught was none other than Sha¬cc himself.30 Here, again,
we witness not only a defense of the constructed authority of the imam,
but also to some extent a denial of the signi¬cance and weight of any
attempt to step outside the boundaries of school authority.31

Ibid., I, 158“59; Shcrazc, TabaqAt, 124.
26
27
We know that he completed the ¬rst three volumes of the work, which were read by
Abe Bakr al-Bayhaqc. See Subkc, TabaqAt, III, 209“10.
Ibid., III, 209: “kAna al-Shaykh AbE MuMammad qad shara ca f C kitAbin sammAhu
28

al-MuMCS, cazama f C-hi calA cadam al-taqayyud bil-madhhab wa”annahu yaqif calA
mawrid al-aMAdCth lA yata caddAhA wa-yatajannab jAnib al-ta caQQub lil-madhAhib.” See
also Suyesc, al-Radd, 190.
Evidenced in his ManAqib al-ShA¬ cC. See also Hallaq, “Was al-Sha¬ci the Master
29

Architect?” 599“600.
Subkc, TabaqAt, III, 210.
30
31
Of Mumammad b. Ammad b. Sulayman al-Aswanc (d. 335/946), Subkc reports that he
wrote a two-volume work on the basis of Sha¬cc™s doctrine, but throughout the book
objected to certain of the latter™s views. Subkc adds that his objections themselves were
open to criticism and reconsideration, and that the later jurists subjected them to “cor-
rection” (taQMCM). See his TabaqAt, II, 108. On taQMCM, see chapter 5, section IV, below.
64 Authority, continuity, and change in Islamic law
This denial is also manifested in a language critical of divergences from
school doctrine, a language that became technical in nature. In addition
to tafarrudAt, the chief term made to carry the burden of divergences
from the authoritative doctrine was gharCb, usually employed in the plural
form gharA ”ib. Thus, while cAbd al-Wamid b. Mumammad al-Shcrazc
(d. 486/1093) was credited with the distinction of having contributed to
the spread of the nanbalite school, his biographers could not overlook the
fact that he produced “many gharA ”ib in the law.”32 The same was the case
with Ammad b. Mumammad al-Qassan (d. 359/969) and cAbd al-cAzcz
al-Jclc (d. 632/1234).33 The latter is said to have been an expert in the
authoritative doctrine of the school, but his commentary on Ghazalc™s
WajCz contained many gharA ”ib; because of this he was rumored, espe-
cially among law students, to be a weak jurist. Nawawc and Ibn al-ralam
also caution that in his tafarrudAt, which is most probably a reference to
his divergences, Jclc is not to be considered a reliable authority.34
Similarly, during the same period, which begins around the middle
of the fourth/tenth century, the biographical works inaugurate a new
terminology that was widely used in de¬ning the achievements of
jurists, terminology that is utterly absent from writings belonging to the
third/ninth or second/eighth century. Now, jurists are often described
as carriers of the madhhab, not in the sense of personal authority but
rather as keepers and promoters of a shared authoritative doctrine. An
example of this emerging terminology appears in the case of the nanbalite
Abd al-Khaliq b. chsa al-Hashimc (d. 470/1077) who is said to have
c

“excelled in the madhhab” (bara ca f C al-madhhab).35 Another characteriza-
tion is intimate knowledge of the school doctrine (kAna cArifan f C al-
madhhab), associated with such ¬gures as the nanbalite talma b. talma
al-cfqelc (d. 512/1118).36 The nana¬te Bakr b. Mumammad al-Zarnajrc
(d. 512/1118) was considered exemplary in his knowledge (by heart) of
the madhhab, and was for this reason nicknamed the Little Abe nancfa.37
c
Abd al-Wamid al-raymarc (d. 386/996) was counted among the pillars
of the Sha¬cite school of his day, one of his most notable qualities being
that he memorized and was well versed in the doctrine of his school
(MA¬Uan lil-madhhab).38


Ibn Rajab, Dhayl, I, 70. 33 Ibn Qakc Shuhba, TabaqAt, I, 96; II, 93“94.
32
34
Ibid., II, 94. 35 Ibn Rajab, Dhayl, I, 16.
36
Ibid., I, 138“39.
Laknawc, al-FawA ”id al-Bahiyya, 56: “(kAna) yuKrab bi-hi al-mathal f C MifU al-madhhab,
37

wa-kAna ahl baladihi yusammEnahu bi-AbC NanCfa al-AQghar.”
Subkc, TabaqAt, II, 243.
38
The rise and augmentation of school authority 65
With this development, the madhhab became an object to be studied,
memorized, excelled in. When Imam al-naramayn al-Juwaync ¬‚ed per-
secution in his home city of Ncshaper and found himself in the Hijaz, he
spent the four years of his stay there teaching, issuing fatwAs, and “collect-
ing” the various doctrines of the school ( yajma c Suruq al-madhhab).39
Finding the best opinions of the madhhab was already considered an
accomplishment much to be desired; thus, during the period under
question, a number of works were written in an e¬ort to bring together
those opinions. The treatises of Abe cAbd Allah Mumammad b. Yamya b.
Mahdc al-Jurjanc (d. 398/1007),40 Abe namid al-Marwazc (d. 362/972),
Abe cAlc al-tabarc (d. 350/961),41 and raymarc, were among the great
many works that proliferated during and after this period. Once again,
the extraordinarily rich biographical and bibliographical data covering
the third/ninth century lack any reference to works on such topics.
Immediately after the formative period, the search for authoritative
opinions became a notable yet common activity. Thus, Subkc makes
special mention of Mumammad b. cAbd Allah Ibn Waraqa al-Bukharc
(d. 385/995) who used to espouse the sound wujEh of the madhhab,
namely those reached through takhrCj.42 It is also reported that cAbd
al-Ramman al-Feranc (d. 461/1068), whom we encountered earlier as one
of aQMAb al-wujEh,43 was credited for his admirable ability to pin down the
sound opinions (saMCM) of the mukharrijEn, a task which he performed in
his work al-IbAna. It is revealing that he was credited by the biographers
as having been one of the ¬rst, if not the ¬rst, to engage in this activity.44
Revealing, because such a piece of information suggests to us that taQMCM,
which is the designation for establishing the correct school opinion on a
matter,45 could not have arisen in a context where there was no authoritat-
ive school doctrine, i.e., a madhhab. To say that there is a sound opinion
is thus also to say that there are others which are either unsound or less
sound. More importantly, it is to say that there exists an established
doctrine, a standard doctrinal yardstick against which the sound can be
measured against and separated from the less sound. This yardstick is the
madhhab which began to emerge in the beginning of the fourth/tenth
century. But the process that carried the madhhab to a full maturity was a
lengthy one, spanning another two or three centuries.


Ibn Qakc Shuhba, TabaqAt, I, 275. 40 najjc Khalcfa, Kashf al-VunEn, I, 398.
39

For the last two, see Shcrazc, TabaqAt, 114, 115. 42 Subkc, TabaqAt, II, 168.
41
43
See chapter 2, section III (no. 12), above.
Ibn Qakc Shuhba, TabaqAt, I, 266; Subkc, TabaqAt, III, 225.
44
45
See chapter 5, section IV, below.
66 Authority, continuity, and change in Islamic law

III
In order to gauge this development, we shall now turn from the evidence
provided in biographical dictionaries to works of legal theory and sub-
stantive law. We shall follow this development through two channels,
represented in the criteria of ijtihAd and taqlCd. For to follow or abide
by the madhhab as a doctrinal entity was a manifestation of taqlCd; nay,
it was taqlCd pure and simple (although we shall see in the next chapter
that taqlCd was much more than following another™s opinion without
questioning).
Two of the most important juristic roles in the Islamic legal system
were undoubtedly the muftC and the qAKC, the jurisconsult and magistrate.
How their juristic functions related to ijtihAd and taqlCd throughout the
centuries is an issue that represents and illustrates the evolution of the
madhhab as an authoritative and binding doctrine. These two domains,
then, will constitute the bulk of our enquiry throughout the rest of this
chapter.46
Sha¬cc does not explicitly state that a jurisconsult must be capable of
ijtihAd. However, he enumerates the branches of knowledge in which the
jurist must be pro¬cient in order to qualify as a muftC. It turns out that
these branches are precisely those at which the mujtahid must be adept,
and include skilled knowledge of the Quran, of Prophetic Sunna, the
Arabic language, the legal questions subject to consensus, and the art of
legal reasoning (qiyAs).47
More than two centuries later, the requirement remained unchanged.
Abe al-nusayn al-Baqrc (d. 436/1044) explicitly maintains that for a
jurist to qualify as a muftC, he must be a mujtahid. Now, to reach the rank
of ijtihAd, an all-encompassing knowledge of legal reasoning is a pre-
requisite. Baqrc, however, subsumes virtually all branches of rational and
textual knowledge under the category of legal reasoning, since reasoning
about the law, he argues, requires expert knowledge of the revealed texts,
of the sciences that treat them “ such as the abrogation and transmission
of Prophetic traditions “ and of the methods of establishing and verifying
the ratio legis (cilla).48 Only when all these sciences and texts have been
mastered may one be permitted to issue fatwAs. The sole exception to this

The following section on iftA ” and its relationship to ijtihAd draws in part on my article
46

“IftA” and IjtihAd in Sunnc Legal Theory: A Developmental Account,” in Muhammad
Khalid Masud et al., eds., Islamic Legal Interpretation: MuftCs and their FatwAs (Cam-
bridge, Mass.: Harvard University Press, 1996), 33“ 43.
Sha¬cc, KitAb IbSAl al-IstiMsAn, 492, 497.
47

Abe al-nusayn al-Baqrc, al-Muctamad f C UQEl al-Fiqh, ed. Muhammad Hamidullah et
48

al., 2 vols. (Damascus: Institut Fran§ais, 1964“65), II, 929“31.
The rise and augmentation of school authority 67
is a jurist who is adept at such sciences and textual evidence as pertain to
the law of inheritance. He is allowed to issue fatwAs in this area alone,
since inheritance and bequests rarely bear on other branches of the law.
With this sole exception, each jurisconsult must ful¬ll the requirement of
ijtihAd, the implication being that a jurisconsult, when asked to issue a
fatwA, must not follow the teachings of other jurists but should instead
formulate his own opinion.49
This mode of issuing fatwAs is to be distinguished from the response
to a layman™s request in which a jurisconsult“mujtahid merely states an
opinion formulated by other jurists concerning an issue (al-iftA ” bil-MifU).
In such an instance, the jurisconsult must comply with the request and
must name the authority who held that opinion. In all other cases, iftA”
clearly means for Baqrc the exercise of ijtihAd, for if a jurisconsult issues a
fatwA through taqlCd, namely, by following the authority and opinions of
others, then he is said to be a muqallid. According to Baqrc, the logical
conclusion of allowing a muqallid to practice iftA” is grave, since it means
that laymen, who can never be anything more than muqallids, can con-
ceivably issue fatwAs, whether for themselves or for others, on the basis of
the writings of earlier jurists “ a conclusion that is utterly objectionable.50
Baqrc™s discourse is rather representative of ¬fth/eleventh-century writ-
ings on the issue. Abe Ismaq al-Shcrazc (d. 476/1083) lists the sciences and
texts the jurisconsult must master, and these are again identical to those
required of mujtahids.51 The Malikite Abe al-Walcd al-Bajc (d. 474/1081)
insists, after having given a similar list of sciences, that any jurist who falls
short of mastering even one of these ¬elds of legal knowledge cannot
be permitted to practice iftA”.52 Mawardc for his part predicates iftA” on
the attainment of ijtihAd.53 Similarly, Imam al-naramayn al-Juwaync not
only uses the terms “muftC ” and “mujtahid ” interchangeably but also
states that jurists by and large have always required that a muftC possess
a thorough knowledge of both the texts containing the law and the
methods of legal reasoning that are necessary for deriving rules for novel
legal cases. In addition, it is required that he be adept at exegesis and
language, and though he need not memorize the Prophetic traditions, he
must be able to locate the materials he requires to solve the case in hand.
Finally, he must be well versed in legal theory (uQEl al-¬qh) which lays


49
Ibid., II, 932. 50 Ibid.
51
Shcrazc, SharM al-Luma c, II, 1033.
Abe al-Walcd b. Khalaf al-Bajc, IMkAm al-FuQEl f C AMkAm al-UQEl (Beirut: Dar al-Gharb
52

al-Islamc, 1986), 722.
Alc Mumammad b. nabcb al-Mawardc, Adab al-QAKC, ed. Mumyc Hilal Sarman, 2 vols.
53 c

(Baghdad: Masbacat al-Irshad, 1391/1971), I, 637.
68 Authority, continuity, and change in Islamic law
down the methodology and principles of the law.54 In his rather short
work, al-WaraqAt, Juwaync clearly summarizes his view of the matter by
saying that the muftC must be fully able to practice ijtihAd.55
In his work al-MankhEl, the Sha¬cite Abe namid al-Ghazalc (d. 505/
1111) discusses the quali¬cations of the mujtahid in the ¬rst sub-chapter
of KitAb al-FatwA, a clear indication of the interchangeability “ in terms
of hermeneutical function “ between iftA” and ijtihAd. In this chapter,
he declares that “the jurisconsult is he who has complete mastery of the
Sharcca rules embedded in the revealed texts as well as of those discovered
by means of legal reasoning.”56 This statement, coupled with two other
remarks of a similar nature,57 makes it clear that Ghazalc follows his pre-
decessors in a¬rming that to be a jurisconsult is to be nothing less than a
mujtahid.
About a century or so after Ghazalc, an interesting and instructive
change was to occur in the theoreticians™ discourse on the issue. Although
the Sha¬cite Sayf al-Dcn al-fmidc (d. 632/1234) approaches the problem
from the same angle as did his predecessors, and although he insists in
the beginning of his work al-IMkAm on the same quali¬cations for the
jurisconsult,58 he later allocates a separate space to the question (Mas” la)
a
of “whether or not a non-mujtahid is permitted to issue fatwAs according
to the school of a mujtahid.” Immediately thereafter, he adds the signi¬c-
ant phrase “as it is the custom nowadays.”59 After having discussed the
disagreements among jurists with regard to the matter, he argues that
a mujtahid within a school (mujtahid f C al-madhhab) who is knowledge-
able of the methodology of the independent mujtahid (mustaqill ) he
follows, and who is capable of deriving rules in accordance with this
methodology and defending his positions in scholarly debates, is entitled
to practice iftA”. In support of this opinion, fmidc claims the existence
of an indubitable consensus.60
Three signi¬cant changes are evident in fmidc™s discourse. First, he
speaks of juristic disagreement over the quali¬cations of the jurisconsult,
Imam al-naramayn al-Juwaync, al-BurhAn f C UQEl al-Fiqh, ed. cAbd al-cAucm Dcb,
54

2 vols. (Cairo: Dar al-Anqar, 1400/1980), II, 1332“33.
Imam al-naramayn al-Juwaync, al-WaraqAt f C cIlm UQEl al-Fiqh, printed with Ammad
55

b. Qasim al-cAbbadc, SharM calA SharM al-MaMallC calA al-WaraqAt (Surabaya: Sharikat
Maktabat Ammad b. Sacd b. Nabhan, n.d.), 14.
Abe namid Mumammad b. Mumammad al-Ghazalc, al-MankhEl min Ta clCqAt al-UQEl,
56

ed. Mumammad nasan Hayte (Damascus: Dar al-Fikr, 1980), 463, 465. See also his
al-MustaQfA min cIlm al-UQEl, 2 vols. (Cairo: al-Masbaca al-Amcriyya, 1324/1906), II, 391.
57
Ghazalc, MankhEl, 478 (ll. 2, 9“10).
Abe al-nasan cAlc Sayf al-Dcn al-fmidc, al-IMkAm f C UQEl al-AMkAm, 3 vols. (Cairo:
58

Masbacat cAlc rubaym, 1968), III, 245.
59
Ibid., III, 254. 60 Ibid., III, 255.
The rise and augmentation of school authority 69
a disagreement that before the sixth/twelfth century must have been, if
it existed at all, so marginal that no author we know of even cared to
mention it. While Abe nusayn al-Baqrc and “other legal theoreticians” are
said by fmidc to have supported the side demanding ijtihAd, no particular
name is associated with the other side of the controversy. Again, fmidc™s
account of the juristic disagreement suggests that the “other side” was,
by his time, still relatively marginal. Second, according to fmidc, a less
than independent mujtahid may occupy the o¬ce of iftA ”, whereas earlier
jurists (with the partial exception of Baqrc) assumed that unquali¬ed
ijtihAd was indispensable. Third, in fmidc™s work and in others, we ¬nd,
signi¬cantly, a new section or chapter exclusively devoted to discussing
the permissibility (or impermissibility) of issuing fatwAs by a jurisconsult
who lacks the quali¬cations of a mujtahid.61
Although fmidc™s discourse denotes a change in attitude towards the
quali¬cations of the jurisconsult, he nonetheless continues to insist that
the rank requires that a jurist be a mujtahid f C al-madhhab. A younger
contemporary of fmidc, however, goes further. The Malikite Ibn al-najib
(d. 646/1248) concedes that a jurist who is “knowledgeable of a madhhab
and is able to reason correctly, but who is not himself a mujtahid f C
al-madhhab” is nonetheless entitled to issue fatwAs.62
By the middle of the seventh/thirteenth century, the theoretical conces-
sion allowing muqallids to ful¬ll the duty of iftA ” seems to have become
commonplace. Al-cIzz Ibn cAbd al-Salam (d. 660/1262), issuing a fatwA
of his own on the question of who is entitled to be a jurisconsult, takes
the position that if independent ijtihAd cannot be attained, then the
jurisconsult may be a mujtahid f C al-madhhab. Failing this, he may still
issue a fatwA on points of law where he feels, beyond a shade of doubt,
that he is competent. Should the case under review fall within an area
of the law where he is not so competent, but where he has rarely been
mistaken and the likelihood of an error is quite slim, then he is still
entitled to act as a jurisconsult. In all other cases, Ibn cAbd al-Salam
insists, he should be banned from doing so.63

In addition to fmidc, see, for example, Ibn Amcr al-najj, al-TaqrCr wal-TaMbCr: SharM
61
c
alA TaMrCr al-ImAm al-KamAl Ibn al-HumAm, 3 vols. (Cairo: al-Masbaca al-Kubra al-
Amcriyya, 1317/1899), III, 346 ¬.; cAkud al-Dcn al-hjc, SharM MukhtaQar al-MuntahA
al-UQElC, ed. Shacban Mumammad Ismaccl, 2 vols. (Cairo: Masbacat al-Kulliyyat al-
Azhariyya, 1973“74), II, 308 ¬.; Mumammad b. cAlc al-Shawkanc, IrshAd al-FuMEl ilA
TaMqCq al-Naqq min cIlm al-UQEl (Surabaya: Sharikat Maktabat Ammad b. Nabhan,
n.d.), 269.
Jamal al-Dcn Abe cAmr Ibn al-najib, MuntahA al-WuQEl wal-Amal f C cIlmayy al-UQEl
62

wal-Jadal, ed. Mumammad al-Nacsanc (Cairo: Masbacat al-Sacada, 1326/1908), 165.
63
Wansharcsc, al-Mi cyAr al-Mughrib, XI, 110.
70 Authority, continuity, and change in Islamic law
Ibn Daqcq al-c cd (d. 702/1302), however, is reported to have gone so
far as to maintain that
predicating futyA on the attainment of ijtihAd leads to immense di¬culties
(Maraj caUCm) as well as to a situation in which people will indulge them-
selves in their own pleasures. Therefore, we hold that if the jurisconsult
is just (cadl ) and is knowledgeable of the school of the mujtahid whom he
cites in his fatwA, then this is su¬cient . . . Indeed, in these times of ours,
there is a consensus on this type of fatwA.64
The great majority of theoreticians who ¬‚ourished subsequently to the
¬gures we have so far discussed make the same concession to the muftC“
muqallid in their writings. These later works, it should be remarked, are
either indirectly based on theories expounded during the ¬fth/eleventh
century or commentaries on such theories. By probing the changes and
modi¬cations that the later commentators make in their commentaries
and super-commentaries, we learn not only something about the rise
of taqlCd and the monopoly of the madhhab, but also how later legal
scholarship negotiated its relationship with the cumulative authority of
the tradition.
Juwaync, we have already seen, equated the jurisconsult with the
mujtahid. Commenting on his short work al-WaraqAt, Jalal al-Dcn
al-Mamallc (d. 864/1459) follows in his footsteps. But in his super-
commentary on Mamallc, cAbbadc stops at the phrase “the jurisconsult,
namely, the mujtahid ” which appears in the original text and, obviously,
in Mamallc™s commentary. This phrase, cAbbadc argues, lends itself to two
interpretations: that the jurisconsult must be a mujtahid or that he may
be a mujtahid if it is possible for him to be one. Immediately thereafter,
c
Abbadc goes on to say that the second interpretation is the more likely
one.65 Later on in his discussion, cAbbadc returns to the issue. He quotes
the works of a number of predecessors in this regard, but, signi¬cantly,
none of the them is earlier than that of fmidc. After discussing the
concession the latter made to the jurisconsult who is a mujtahid f C
al-madhhab, he proceeds to cite Taj al-Dcn al-Subkc (d. 771/1369), who
has, he says, a number of followers on this issue. According to cAbbadc,
Subkc maintains that the bone of contention lies with the question of
whether the “mujtahid al-fatwA who is adept at the school of an imam
and who can give preponderance to one legal opinion of that imam over

64
Cited in Ibn Amcr al-najj, al-TaqrCr, III, 348; Shawkanc, IrshAd al-FuMEl, 270.
65
Ammad b. Qasim al-cAbbadc, SharM calA SharM al-MaMallC calA al-WaraqAt, printed
on the margins of Shawkanc, IrshAd al-FuMEl, 230: “yuMtamal irAdat ittiMAdihimA
mafhEman wa-irAdat ittiMAdihimA mA QadaqA, wa-la calla al-thAnC aqrab.”
The rise and augmentation of school authority 71
another” can engage in iftA ”. The correct view, Subkc maintains, is that he
may do so out of necessity, such as when a mujtahid is not to be found.
c
Abbadc also maintains that in another work Subkc allows a muqallid
to issue fatwAs even if he is not able to give preponderance to one view
over another. Furthermore, such a jurisconsult is under no obligation to
name the authorities whose doctrines he cites “ a clear departure from
the doctrines of early jurists, such as, for instance, Juwaync. cAbbadc
quotes an anonymous commentator on Subkc as saying that this sort
of iftA” had been the prevailing practice in more recent times (al-a cQAr
al-muta”akhkhira). In what seems to be an attempt to bolster Subkc™s view,
c
Abbadc quotes a certain commentator, most probably Nawawc, who es-
sentially makes the same argument.66
In cAbbadc™s super-commentary there are at least three issues worth
noting. First, it is instructive that in his discussion the author engages
Subkc and fmidc rather extensively. In doing so, it is clear that cAbbadc
must have hoped to mitigate the strict demands laid down centuries
before by Juwaync and his peers. Second, the sequence of quoting later
authors parallels an increasing adjustment to a reality in which juris-
consults were by and large muqallids. Thus fmidc, the ¬rst to be cited,
admits the iftA” of a muqallid f C al-madhhab, while the commentator on
the Muhadhdhab, being last, goes as far as to permit a muqallid par excel-
lence to practice iftA”. Third, cAbbadc interprets (not without reason)
Subkc™s expression “mujtahid al-fatwA” as referring to a muqallid.
It is to be noted in passing that in his work Jam c al-JawAmi c, Subkc
allows a muqallid to engage in iftA”, provided he is knowledgeable of the
means by which the doctrines of his school were reached.67 Needless to
say, Subkc deems legitimate the iftA” of the jurist known to fmidc as a
mujtahid f C al-madhhab. Mamallc, who comments on Subkc™s work, adds
that the practice of issuing the latter type of fatwA was long the prevailing
practice and had never been censured or challenged. When speaking of
the former type, the fatwA of the muqallid, he also notes that “it has been
prevalent in recent times.”68
Commenting on both Mamallc and Subkc, Bannanc (d. 1199/1784)
observes that a jurisconsult who is knowledgeable in the law of his school
but cannot derive rulings for new legal cases is commonly called by the
jurists a mujtahid al-fatwA. Bannanc, to be sure, realizes that a contradic-
tion is entailed by the expression and its technical denotation, but he does
66 c
Abbadc, SharM, 244“45.
Abd al-Ramman b. Jad Allah al-Bannanc, NAshiya calA Jam c al-JawAmi c, 2 vols.
67 c

(Bombay: Molavi Mohammed B. Gulamrasul Surtis, 1970), II, 397.
68
Ibid., II, 397, 398.
72 Authority, continuity, and change in Islamic law
not bother to o¬er any explanation.69 However, in his super-commentary
on Bannanc, Shirbcnc explains that the expression is merely conventional
and does not connote the ordinary meaning of the term.70
The changes and modi¬cations brought about by cAbbadc to Juwaync™s
doctrine are by no means singular. A similar modi¬cation may be
observed in hjc™s (d. 756/1355) commentary on Ibn al-najib™s MuntahA.
Following Ibn al-najib, hjc discerns four views held by the jurists as to the
legitimacy of iftA” by muqallids, and he agrees with the ¬rst view which
permits a muqallid to practice iftA”, provided he has mastered the teach-
ings of his school and is able to reason properly. He upholds this view
on the grounds that “at all times, and repeatedly, jurisconsults who are
not mujtahids have issued fatwAs. No one has abjured this [practice] and
thus it has been subjected to consensus.”71 hjc™s claim that a consensus has
been reached is serious, for to invoke the authority of this sanctioning
instrument is tantamount to asserting that the legitimacy of the practice
lies beyond the realm of probability. But hjc™s claim of epistemic certainty
for this view is di¬cult to substantiate, since he himself acknowledges
that the jurists disagreed over the matter. In fact, this is precisely the
objection Taftazanc raises against hjc. In his super-commentary on hjc™s
SharM, he insists that such a consensus has not been reached, since there
were jurists who abjured this practice.72
Furthermore, hjc does not subscribe to the second view held by a certain
group of jurists, namely, that a muqallid can serve as a jurisconsult if and
only if a mujtahid is nowhere to be found. Nor does he accept the third
view which allows a muqallid to issue fatwAs whatever his professional quali-
¬cations. And he obviously rejects the fourth view which denies muqallids
any role in this capacity. In addition to supporting his argument on the
basis of consensus, hjc adds (aiming particularly at those who argue that a
muqallid is merely a layman) that if the muqallid is adept at the doctrines
of his school, then he is not a layman ignorant of legal science but is,
rather, su¬ciently quali¬ed to perform the tasks that iftA” involves.73
The four views reported by fmidc, Ibn al-najib, and hjc seem to have
become an integral part of juristic discourse, at least beginning with
the early seventh/thirteenth century. In his commentary on Baykawc™s
(d. 685/1286) MinhAj al-WuQEl, Asnawc (d. 772/1370) speaks of the same
views, but adds a new element to the issue. He maintains that the con-
troversy recorded by fmidc and Ibn al-najib had to do with the muqallid
of a living mujtahid, and that the issue of a jurisconsult who is a muqallid

hjc, SharM, II, 308.
69
Ibid., II, 389. 70 Ibid. 71
72 73
Ibid., II, 308 (ll. 35“36). Ibid., II, 308“09.
The rise and augmentation of school authority 73
of a dead mujtahid is altogether di¬erent. On this last point, another
controversy had arisen, and it seems that there were two main sides to the
question. The ¬rst maintained that it is not lawful for a muftC“muqallid to
follow the doctrine of a dead mujtahid, since the latter has, in e¬ect, no
opinion (lA qawla la-hu) to be accounted for by the succeeding jurists “
the reason for this being that such an opinion does not count in the
consensus of a later generation. However, a living mujtahid who holds an
opinion that di¬ers from all other opinions can prevent a consensus from
taking place. Therefore, since the opinions of a dead mujtahid cannot be
taken into consideration, the muftC should not resort to them in issuing
fatwAs.74
The second party, on the other hand, argued for the validity of iftA”
according to the doctrine of a dead mujtahid. One of its spokesmen was
Baykawc himself who held in justi¬cation of this position that “since
mujtahids do not exist in the present age, consensus has been concluded
on the practice of this kind of iftA”.”75 Asnawc, however, maintains that
Baykawc™s line of argument is weak, because consensus may be reached
only by mujtahids, and since these no longer exist, any alleged consensus
is invalid. The correct justi¬cation of this position, he argues, is that the
barring of such a practice is detrimental to the welfare of society. What-
ever the reasoning behind their positions, both Baykawc and Asnawc
adopted the view that a jurisconsult may be a muqallid whether the
mujtahid he follows be dead or alive.76
The four positions articulated by the legal theoreticians cannot properly
be understood without reference to diachronic developments. The ¬rst
position dominated legal discourse from the second/eighth to the ¬fth/
eleventh century, when jurisconsults, in order to qualify for the o¬ce of
iftA”, were required in theory to be mujtahids. The second, advocated by
fmidc, among others, re¬‚ected the concession made by a large group of
theoreticians to a reality in which, it was thought, mujtahids of the highest
caliber, the imams and their equals, no longer existed, and that the task
had to fall to mujtahids whose legal activity was con¬ned to the applica-
tion of a methodology already established by the founders. The third
accepted a muqallid in the role of a jurisconsult, but only when a mujtahid
was not available. The fourth approved of the muftC“muqallid, whether or
not a mujtahid was to be found.

Jamal al-Dcn cAbd al-Ramman al-Asnawc, NihAyat al-SEl f C SharM MinhAj al-WuQEl,
74

3 vols. (Cairo: Mumammad cAlc rubaym, n.d.), III, 331“32.
75 c
Abd Allah b. cUmar al-Baykawc, MinhAj al-WuQEl ilA cIlm al-UQEl, 3 vols., printed with
Ibn Amcr najj, al-TaqrCr, III, 331 (ll. 4“7).
76
Asnawc, NihAyat al-SEl, III, 327“32.
74 Authority, continuity, and change in Islamic law
Chronologically, the third position in all likelihood preceded the
fourth. But that the ¬rst position emerged prior to the second, and
the ¬rst prior to the others, seems beyond doubt. The appearance in
later legal literature of a chapter devoted to the legality ( jawAz) of the
muqallid ™s iftA”, and its complete absence from works written prior to and
during the ¬fth/eleventh century, is alone a cardinal piece of evidence that
demonstrates the transformation from ijtihAd to taqlCd. To this evid-
ence may be added the fact that the ¬fth/eleventh-century theorists were
unanimous in their stipulation that a jurisconsult had to be a mujtahid.
Furthermore, they reported no opinion held by any of their predecessors
to the contrary.
If the chronology of the four positions is correct, as the evidence
indicates, then it is possible to use their diachronic emergence as an
indicator of the Muslim jurists™ evolving perception of their profession,
if not of the objective changes that occurred in the structure of legal
authority. It is important to note that the majority of legal theoreticians
did not fail to follow a certain pattern when discussing who was quali¬ed
to act as a jurisconsult. As a rule, they begin with the requirement of
ijtihAd, be it limited or absolute, and then they go on to lower the bar to
admit those possessed of the least amount of legal knowledge they deemed
acceptable. For the early theoreticians, only the fully quali¬ed mujtahid
had the right to practice iftA”; for fmidc and others, it was the mujtahid f C
al-madhhab; and for the majority of later theoreticians, it was ultimately
taqlCd that constituted the minimal requirement, though most of them,
quite signi¬cantly, ¬rst began by stipulating ijtihAd.
Whatever requirements obtained in each period, they were in complete
accord with the practices prevailing on the ground. We have seen that the
argument from wuqE c (the actual practice of the immediate and distant
past)77 was central in justifying the iftA” of the jurist who was less than
a mujtahid. In fact, this argument was used, though unsuccessfully, to
invoke a consensus in legitimizing the muftC“muqallid. The use of such a
discursive argumentation was by no means restricted to the issue under
consideration, for the legal theoreticians resorted to it when dealing with
a number of other controversies. Its deployment, therefore, reveals two
interrelated features of legal theory, namely, that this theory re¬‚ected the
realities of legal practice and legal developments, yet at the same time
tended to lag behind in doing so. The reason for this belated reaction was

77
On the theoretical and epistemological role of the argument from wuqE c, see Abe Ismaq
Ibrahcm al-Shasibc, al-MuwAfaqAt f C UQEl al-AMkAm, ed. Mumyc al-Dcn cAbd al-namcd,
4 vols. (Cairo: Masbacat Mumammad cAlc rubaym, 1970), I, 12.
The rise and augmentation of school authority 75
that legal theory re¬‚ected established phenomena and institutionalized
trends, and its function in part was to rationalize the law as it developed,
allowing for the inevitable twists and turns that the law undergoes.78
The ¬fth/eleventh century marks the end of the period in which the
activity of takhrCj was extensively practiced. This is also the period which
in legal theory is identi¬ed with ijtihAd, a general label which encom-
passes, among other methods, the inferential processes constituted by
takhrCj. This is not to say, of course, that the sort of ijtihAd that involved
direct confrontation with the revealed texts had already ceased by the
end of this period. Elsewhere we have shown that this is by no means the
case.79 It was these activities, which began much earlier, that gave rise
to the view that a jurisconsult must be a mujtahid. But beginning with
the fourth/tenth century, and continuing through the ¬fth/eleventh, we
observe a corollary development which gave shape to the madhhab as
an authoritative doctrine. Now, juristic activity was to become con¬ned
to the boundaries set by the achievements of past generations whose
doctrines represented a legacy to the future. These achievements con-
stituted the madhhab by which the jurisconsult, it was thought, had to
be guided. fmidc™s theoretical representation re¬‚ects this attitude. The
madhhab as both an authoritative doctrine and a monopolizing entity
continued to assert itself long after the ¬fth/eleventh and sixth/twelfth
centuries, a fact of paramount importance. This assertion of authority was
to give rise to the third and fourth theoretical positions, namely, that
a jurisconsult might be a pure muqallid. In works of substantive law, this
position was clearly articulated by the pronouncement, clearly expressed
in all later works, that any fatwA issued on the basis of an opinion not
fully recognized in the school is invalid.80

IV
In addition to the evidence found in biographical dictionaries and the
treatises of theoreticians, this transformation in the structure of authority
is re¬‚ected in works of positive law, a genre that distinguishes itself

78
On this theme of rationalization and justi¬cation, see Wael B. Hallaq, “Considerations
on the Function and Character of Sunnc Legal Theory,” Journal of the American Orien-
tal Society, 104 (1984): 679“89.
79
Hallaq, “Was the Gate of Ijtihad Closed?”; Hallaq, “Murder in Cordoba.”
See, for instance, nassab, MawAhib al-JalCl, VI, 91 (ll. 9“11); Ibn cfbidcn, SharM al-
80

ManUEma, 51; Ibn Farmen, TabQirat al-NukkAm, I, 18, 53; Bacalawc, Bughyat al-
MustarshidCn, 274. On the authority of opinions within the school, see chapter 5,
below.
76 Authority, continuity, and change in Islamic law
from each of the foregoing sources in di¬erent yet fundamental respects.
Unlike biographical dictionaries, works of positive law do not address the
totality of the professional activities and achievements of the jurists them-
selves. Rather, they represent statements about the law as a transmitted,
cumulative tradition, bringing together authoritative doctrines of both
the distant and the recent past. And unlike theoretical works which
articulate a descriptive“prescriptive philosophical discourse of the law,
they are concerned, quite concretely, with the applied law itself “ a point
we shall take up in the ¬nal chapter. Thus there is a particular value in
the manner in which works of positive law re¬‚ect the socio-legal reality
on the ground.
With this in mind, we shall examine how these works demonstrate,
in terms of authority, the transformation that occurred in another central
legal role, i.e., the qAKC. But before proceeding with this matter, a ques-
tion must be posed. Why did works of legal theory regularly omit a
discussion of the qAKC ™s professional credentials when it did provide a
consistent body of discourse related to the jurisconsult? The answer is that
since the prime concern of legal theory is the elaboration of a methodo-
logy of legal reasoning and interpretation for the purpose of construct-
ing legal norms, it was natural that it should turn to the muftC who was
deemed the legal reasoner par excellence. The qAKC qua qAKC, on the
other hand, was not seen in this way. The muftC solved, or attempted to
solve, new and di¬cult cases, while the qAKC applied the solutions in his
court. The locus of legal and hermeneutical creativity was thus the muftC,
whereas the qAKC applied the law much as a bureaucrat applies admin-
istrative rules. The muftC worked with textual and doctrinal evidence “
the stu¬ of hermeneutics “ but the qAKC applied ready-made solutions,
reached by the muftC, to particular cases, after having heard the evidence.81
That the o¬ce of the qAKC, as a legal role,82 was not deemed a province
of legal reasoning and hermeneutical activity explains why his juridical
credentials were not addressed by theoretical works.
This omission also explains a duality in the discourse of positive
legal works with regard to the qAKC ™s professional credentials, particularly
those pertaining to competence in ijtihAd. As early as the second/eighth
century, it was recognized that the qAKC might or might not be a highly
competent jurist, which, as we have seen, was not the case with the muftC.
During this early period, the muftC, as a type, was considered the ultimate

Shihab al-Dcn al-Qaraf c, al-IMkAm f C TamyCz al-FatAwA can al-AMkAm wa-TaQarrufAt
81

al-QAKC wal-ImAm, ed. cIzzat al-cAssar (Cairo: Masbacat al-Anwar, 1967), 29“30.
82
On distinguishing between and among legal roles, see chapter 6, below.
The rise and augmentation of school authority 77
authority, which, by de¬nition, precludes the possibility of him turning
to higher authorities “ at least insofar as theoretical types go. The qAKC, on
the other hand, was never viewed through the same lens. In his al-Umm,
Sha¬cc already encourages qAKCs to seek legal counsel from an author-
ity that “has adept knowledge of the Quran, the Sunna, and the jurists™
doctrines and their opinions. He must be able to reason ( ya crif al-qiyAs)
. . . and [must master] the Arabic language.”83 These ¬elds of competence,
we have seen, are precisely those that Sha¬c c set for the mujtahid. The qAKC
then is strongly advised to seek the counsel of the mujtahid who is at one
and the same time the muftC.
Sha¬cc™s earnest recommendation falls short of listing all the realistic
credentials expected of the qAKC during or even after his time. In a period
in which ijtihAd was a lively activity,84 there certainly were many qAKCs
who were competent as mujtahids, a fact abundantly attested by our
biographical and theoretical works. Thus the qAKC was required to seek
legal advice only when he was unable to reach decisions for the more
di¬cult cases presented to him in his courtroom. This duality in the
qAKC ™s credentials explains the order and arrangement of discourse in
works of positive law in general and those pertaining to adab al-qAKC
in particular. In his commentary on Khaqqaf (d. 261/874), the nana¬te
Jaqqaq (d. ca. 370/981) argues that the qAKC should be knowledge-
able in legal interpretation so as to be able to derive rulings from the
revealed texts. This appears as the ¬rst order of preference. Jaqqaq how-
ever immediately quali¬es this statement by saying that to guard against
risky decisions, the qAKC must seek the counsel of jurists by listening to
their opinions on the cases presented to him in the courtroom. Only then
should he determine which is the soundest and most suitable opinion for
the case in hand.85 Elsewhere in the book, Jaqqaq makes it clear that the
advising jurists are “the people of ijtihAd.”86
Thus far, the doctrinal authority of the qAKC seems to emanate either
from his own ability to reason or from the mujtahid who o¬ers him
counsel. We may also assume that “seeking advice” also meant the advice
of jurists who were not mujtahids. But even then, the counsel of such

Sha¬cc, Umm, VI, 287.
83
84
This translates into the characterization that ijtihAd was seen to have been rampant
because the schools had not yet been ¬nally formed. This is not to say that the activity
ceased later on, but that it was controlled by the hermeneutical imperatives of the
school so that it lost its independent and even undomesticated character.
85
Abe Bakr Ammad b. cAlc al-Jaqqaq, SharM KitAb Adab al-QAKC, ed. Farmat Ziadeh (Cairo:
Qism al-Nashr bil-Jamica al-Amrckiyya, 1978), 37“39. See also Ibn al-Mundhir, IqnA c,
410, who expresses the same views.
86
Jaqqaq, Adab al-QAKC, 42“43, 101“02, 105, 106.
78 Authority, continuity, and change in Islamic law
jurists will have to depend, in the ¬nal analysis, on the authority of a
mujtahid whose opinion is thought to be the best solution to the case
presented at court. In Jaqqaq, it is to be noted, no mention is yet made of
a binding madhhab.
By the time of Mawardc (d. 450/1058), the madhhab as a doctrinal
entity was well on the rise. Mawardc begins by stressing the qAKC™s need
for good advice: “In the qAKC ™s assembly, no one should be present with
the litigants unless he is involved in the case. For we prefer (fa-innanA
nastaMibb) that the assembly not be devoid of witnesses and jurists. The
qAKC should seek the counsel of the jurists . . . because counsel is recom-
mended in matters that are not conclusive (al-umEr al-mushtabaha).”87
Note here that the presence of the jurists in the courtroom is considered
pertinent and germane to litigation. The jurists are placed on a par with
persons directly “involved in the case.” Seeking their advice becomes all
the more urgent in matters that are ambiguous, i.e., cases over which the
jurists have disagreed due to the fact that the pertinent textual evidence
is itself capable of more than one interpretation. In other words, where
there is no certainty “ usually cases that are not sanctioned by consensus
“ counsel is highly advisable.88
Citing with approval Sha¬cc™s discussion of the quali¬cations of court
advisors, Mawardc summarizes these by saying that “in short, any one
whose iftA” is deemed acceptable in the law can be consulted by the qAKC
. . . He should thus ful¬ll the conditions required of the muftC, not the
qAKC.”89 Having said this, he proceeds to enumerate these conditions,
of which the most prominent is competence in ijtihAd. Once these
conditions are met, the jurist can issue fatwAs and provide counsel to
the qAKC.90
Conducting a discussion of the controversial cases, and personally
disputing (munAUara) them with the jurists serve to assist the qAKC in
¬nding his way to ijtihAd. If he arrives on his own at a solution to the
case, he must render judgment according to his solution, not theirs. His
councilors must not voice any objections once he renders a decision, for
he is as much entitled to exercise ijtihAd as they are entitled to their own
opinions.91 It is in this spirit that Mawardc argues in favor of the qAKC ™s
right to apply the results of his own ijtihAd, even though they may be
at variance with the opinions established by the founder of the school
to which he belongs. If he happens to be a Sha¬cite, for instance, and

Alc Mumammad b. nabcb al-Mawardc, al-NAwC al-KabCr f C al-FurE c, ed. Mammed
87 c

Masarjc et al., 24 vols. (Beirut: Dar al-Fikr, 1994), XX, 98, 100.
88
Ibid., XX, 102. 89 Ibid., XX, 103. 90 Ibid., XX, 104. 91 Ibid., XX, 102.
The rise and augmentation of school authority 79
his ijtihAd leads him to deduce an opinion that had previously been held
authoritative by the nana¬tes, then he is permitted to apply it to litigants
appearing in his court.92
Mawardc™s account thus far represents the dominant position assumed
by jurists up to his time. But as the product of a period characterized
by the rise of the madhhab as an authoritative doctrine, Mawardc was
also bound to feel the pressure that this relatively recent development
generated. Some jurists, appearing to be in the minority at the time,93
held that “the schools nowadays have become well established (istaqarrat
al-madhAhib) and the imams followed in these schools have become
known. Therefore, no one who is a¬liated with a school is allowed to
render judgment in accordance with [the doctrine of ] another school.”
Mawardc retorts, signi¬cantly, that although sound opinion justi¬es
this position, the principles of the law do not, because the judge must
render judgment according to his own ijtihAd, not that of others.94 What
is signi¬cant about this rebuttal is that it implies a certain concession
which Mawardc made to his opponent: He admits, albeit quali¬edly, the
legitimacy of the opposing view, a view that was sanctioned by the force
of actual legal practice.
Mawardc™s discourse re¬‚ects a stage of transformation in which old
positions “ re¬‚ecting fundamental structural developments “ were still
fervently maintained while new positions were gradually appearing and
evolving, but with terminal force. It must have seemed to Mawardc that
these were ephemeral positions, re¬‚ecting an equally contingent reality.
Little did Mawardc know that the exceptions and minority positions of
his time would become the dominant voice.


92
Ibid., XX, 75, 226. Such opinions could still be heard a generation or more after
Mawardc. Abe Bakr al-turseshc (d. 520/1126) also held the view that
No Muslim is obligated to follow [the opinion] of the one to whose doctrine he is a¬liated
in regard to legal cases and judgments. Thus, one who is a Malikite is not obligated to
follow in his rulings the opinion of Malik. The same is applicable to the rest of the schools.
Indeed, the judge decides cases on the basis of whatever rule his reasoning leads him to.
Cited in Fadel, “Social Logic of TaqlCd,” 213.
93
In two di¬erent contexts in which this particular issue is raised, Mawardc uses the
term “ba cK,” once in conjunction with “fuqahA”” (jurists) and the other time with
“aQMAbunA” (our associates or colleagues). In either case, ba cK is mostly used to refer to
the singular, a fact which signi¬cantly reduces the weight of the claim, and certainly
justi¬es the assumption that it was a minority who adopted this position. For the two
contexts, see his al-NAwC al-KabCr, XX, 75, 227.
Ibid., XX, 75, 227: “wa-hAdhA wa-in kAna al-ra”y yaqtaKCh fa-uQEl al-shar c tunAf Ch
94

li-anna calA al-MAkim an yaMkum bi-ijtihAdi nafsih wa-laysa calayhi an yaMkum bi-ijtihAdi
ghayrih.”
80 Authority, continuity, and change in Islamic law
Another step in the transition from ijtihAd to taqlCd was taken, half
a century or so later, by the nana¬te al-nusam al-Shahcd Ibn Maza
(d. 536/1141) who wrote a commentary on Khaqqaf ™s work Adab al-QAKC.
In the opening chapter, Ibn Maza follows Jaqqaq in requiring the qAKC
to be a mujtahid, and discusses in some detail the justi¬cation for this
requirement.95 Later in the work he returns to this issue in more detail,
initially restating what he had already said in the opening section: ijtihAd
is required of the qAKC. But Ibn Maza o¬ers, in a somewhat oblique
manner, a signi¬cant variation on Jaqqaq™s theme. The qAKC, he begins
to say, must judge according to the Quran and the Sunna, for “we have
been commanded to follow” these sources. Should he not ¬nd the law
in these two sources, the qAKC must turn to the Companions™ consensus.
If they disagree on the matter under scrutiny, then he is free to exercise
his own ijtihAd in ¬nding the soundest opinion. Should the Companions
have no opinion at all on the issue, he turns to the Followers, treating
their doctrines in the same manner as he would treat those of the Com-
panions. In the absence of any guidance from the Followers, he must
exercise his own ijtihAd in formulating a legal norm that is applicable
to the case in which he is the presiding judge. But if he is no mujtahid,
then he must consult a muftC who is, by de¬nition, a mujtahid.96 At
this point, Ibn Maza abruptly introduces another theme involving
“that on which our associates (aQMAbunA) have agreed and disagreed.”
By “associates” Ibn Maza means the founding masters, especially Abe
nancfa, Abe Yesuf, and Shaybanc. If these three have agreed on a matter,
then the qAKC cannot diverge from their opinions, whether or not he is
a mujtahid. Should the three masters disagree, then the preference is for
Abe nancfa™s opinion, since he was engaged in legal activity at the time of
the Followers.97
Note here that Ibn Maza still labors under the same duality of doctrinal
orientation as did Mawardc before him, but gives it added force and
tension. Mawardc rejected, though lukewarmly, the minority opinion in
favor of following the madhhab. Ibn Maza, on the other hand, upholds
the doctrine of the three masters “ but only when they are in agreement “
as the ultimate doctrine to be followed, whether the qAKC is a mujtahid
or not. When the transition to the madhhab reached its full measure, the
nana¬tes, like all the other schools, demanded that the qAKC follow the
authoritative doctrine of the school, were it held by Abe nancfa or by any
other jurist.98

95
Ibn Maza, SharM Adab al-QAKC, 4 “5. 96 Ibid., 17“18. 97
Ibid., 19“20.
See, for example, Ibn cfbidcn, SharM al-ManUEma, 51.
98
The rise and augmentation of school authority 81
But the near abandonment of ijtihAd in favor of a complete monopoly
of the madhhab required two more steps to be taken, steps that are mani-
festly evident in the changing discourse relative to the qAKC ™s credentials.
The ¬rst of these steps is represented in the discourse of the Sha¬cite jurist
and judge Ibn Abc al-Damm (d. 642/1244). In his KitAb Adab al-QaKA”
he observes that according to the madhhab of “our imam,” the judge must
be an absolute mujtahid (mujtahid muSlaq), which means that he must
have masterly knowledge of the Book, the Sunna, consensus, qiyAs, the
jurists™ doctrines (aqAwCl al-nAs), and the Arabic language. At this point,
Ibn Abc al-Damm expounds in some detail what each of these ¬elds of
knowledge entail in terms of sub-specialties, e.g., abrogation, ambiguity,
transmission, authenticity, etc. Of particular interest is the requirement to
master the art of legal reasoning: The qAKC must, among other things, be
adept at deducing or inducing legal norms from their relevant sources, as
well as being an astute reasoner, an expert in exploiting legal indicants and

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