. 9
( 10)


custom253 as a basis for a particular legal norm has become one of the
opinions of the school, albeit a weak one (qawl Ka cCf ). Now, necessity
renders the adoption of such an opinion permissible.254 But this con-
stitutes a serious departure from the mainstream doctrine of the school
according to which the application of weak opinions is deemed strictly
forbidden, since it violates, inter alia, the principles of consensus.255
Furthermore, hermeneutically, weak opinions are considered void for they
belong to the category of the abrogated (mansEkh), it being understood
that they have been repealed by a sound or preponderant opinion (rAjiM).
The later Sha¬cites, however, adopted a less rigorous position on this
matter than the nana¬tes, and hence it is to them that Ibn cfbidcn turns
for a way out of his quandary. In one of his fatwAs, the in¬‚uential Taqc al-
Dcn al-Subkc256 states “ concerning a case of waq f “ that a weak opinion
may be adopted if it is limited to the person and matter at hand and if it
is not made transferable to other cases, either in courts of law or in iftA”.257
But Ibn cfbidcn apparently ¬nds that having recourse to a Sha¬cite
authority is insu¬cient. To enhance Subkc™s view, he refers the reader,
among other things, to Marghcnanc™s MukhtArAt al-NawAzil,258 a well-
known work which commentators on the same author™s HidAya often use
in the writing of their glosses. There, Marghcnanc held the opinion that
the blood seeping from a wound does not nullify ablution, an opinion
that Ibn cfbidcn admits to be not only unprecedented, but also one
that failed to gain any support among the nana¬tes during or after
Marghcnanc™s time. Although he fully acknowledges that the opinion is

It is worth noting that Ibn cfbidcn stresses the point that for a local custom to be

considered a valid legal source, it must thoroughly permeate the society in which it is
found. See Nashr al-cUrf, 134.
Ibid., 125: “al-qawl al-Ka cCf yajEzu al-camal bi-hi cinda al-KarEra.”

Ibn cfbidcn, SharM al-ManUEma, 10“11, 48.

For a biographical notice, see Subkc, TabaqAt, VI, 146“227.

Ibn cfbidcn™s reference seems to be to Subkc™s FatAwA, II, 10 ¬.; SharM al-ManUEma,

49: “yajEz taqlCd al-wajh al-Ka cCf f C nafs al-amr bil-nisba lil- camal f C Maqqi nafsihi, lA f C
al-fatwA wal-Mukm.”
Brockelmann, Geschichte, I, 378 (469); Marghcnanc, HidAya, I, 3“9.
The jurisconsult, the author“jurist, and legal change 229
irregular (shAdhdh), he nonetheless argues that Marghcnanc stands as
an illustrious nana¬te, one of the greatest in the school and considered
among the highly distinguished aQMAb al-takhrCj.259 Therefore, he con-
tinues, his opinion ought to be considered sound and the application
of a weak opinion must thus be allowed on a restricted basis when it
is deemed necessary to do so.260 Why only in a restricted sense? Because
given its weak nature, it is not considered universal in the sense that a
local custom gives rise to a legal norm that is applicable only to the city,
town, or village where that custom is predominant.
It is to be noted here that Ibn cfbidcn™s reasoning entails a fundamental
leap which he does not address, much less justify. The restricted practice
which has been deemed permitted by the four schools, usually termed f C
Maqqi nafsihi, is a principle traditionally limited to the person exercising
legal reasoning, the mujtahid. For example, a heretical mujtahid is allowed
to apply his own legal formulations to himself ( f C Maqqi nafsihi) but he
is barred from issuing fatwAs for other Muslims.261 Subkc himself appears
to have made just such a leap in allowing the principle to apply to a waq f
bene¬ciary, and Ibn cfbidcn went even further in imposing its applica-
tion upon the inhabitants of a village, town, and even a city. It is quite
interesting to observe that it is, in the ¬nal analysis, immaterial whether
Ibn cfbidcn vindicates every step he takes in the construction of his argu-
ments. Just as the anomalous opinions of Subkc and Marghcnanc were
readily and unquestioningly brought into Ibn cfbidcn™s discursive strat-
egies to serve an end, so will Ibn cfbidcn™s own conclusion be utilized to
score further points in the future. The question that seems to matter most
at this point “ namely, whether local custom can lawfully give rise to a
particular ruling “ has been solved; and Ibn cfbidcn is responsible for it,
in the face of opponents and proponents alike.
Thus far, local custom has been shown to be capable of yielding a
particular rule in the locale in which it is predominant, even when con-
tradicted by the dictates of a clear text.262 What remains to be clari¬ed is
the relationship between custom and those opinions in UAhir al-riwAya
derived from the texts by means of inferential reasoning. This is perhaps
the most central theme of Nashr al- cUrf, and an important one in SharM
al-ManUEma.263 Ibn cfbidcn avers in these two works that such opinions
are arrived at by mujtahids on the basis of a number of considerations, not

Ibn cfbidcn, SharM al-ManUEma, 49“50.
Ibid., 50. 261 Ibn al-ralam, Adab al-MuftC, 107.
Although the contradiction is seen in terms of particularization (takhQCQ). See paragraph
ending with the cue for n. 238, above.
Ibn cfbidcn, Nashr al- cUrf, 128 (l. 17); Ibn cfbidcn, SharM al-ManUEma, 46 f.
230 Authority, continuity, and change in Islamic law
the least of which are the customary practices prevalent at the time when
these opinions were formed. The need for taking customary practices
into consideration explains the theoretical requirement that the mujtahid
must possess precise knowledge of the habits and customs prevalent in
the society that he serves.264 The mujtahid ™s reasoning, and the results
it yields, therefore re¬‚ect a particular combination of law and fact, the
latter being in part, if not entirely, determined by custom. If these prac-
tices di¬er from time to time, or from one place to another, they would
lead the mujtahids to di¬erent legal conclusions, depending on the time
and place. This, Ibn cfbidcn argues, explains why the later mujtahids
(mashAyikh al-madhhab) diverged in a number of areas from the rules that
had been established by the school founders, the prevailing assumption
being that had these founders faced the same customs that the later
mujtahids encountered, they, the founders, would have formed the same
opinions as their later counterparts came to hold.
Here, Ibn cfbidcn cites at least a few dozen cases in which mashAyikh
al-madhhab di¬ered with the founding masters.265 One example in point
is the regional and chronological variation in the law of waqf. In Anatolia,
for instance, it is customary to dedicate cash or coins as waqf, when it
is the authoritative doctrine of the school that movable property cannot
be used as charitable trusts.266 In “our region,” Ibn cfbidcn notes, such has
never been the practice. An example of chronological change is the prac-
tice of dedicating a farmer™s axe as waq f, which used to be customary in
Syria during earlier periods “but unheard of in our times.”267 The change
in the habits of a society must therefore lead to a correlative change in the
law. But it is important to note, as Ibn cfbidcn does, that such a legal
change is not precipitated by a change in the law as a system of evidence
or as a methodology of legal reasoning. Instead, it is one that is stimulated
by changing times.268
The impressive list of cases compiled by Ibn cfbidcn is intended to
demonstrate that the jurisconsult “must not stubbornly adhere to the
opinions transmitted in UAhir al-riwAya without giving due attention to
society and the [demands of the] age it lives in. If he does, he will cause
many rights to be lost, and will thus be more harmful than bene¬cial.”269
Ibn cfbidcn, Nashr al- cUrf, 128“30. 265 Ibid., 126“28.
On this practice, see J. E. Mandaville, “Usurious Piety: The Cash Waqf Controversy
in the Ottoman Empire,” International Journal of Middle East Studies, 10 (1979):
Ibn cfbidcn, NAshiya, IV, 364.

Ibn cfbidcn, Nashr al- cUrf, 126: “wa-qad naQQa al- culamA” calA anna hAdhA al-ikhtilAf

(huwa) ikhtilAf caQr wa-awAn lA ikhtilAf Mujja wa-burhAn.”
Ibid., 131; SharM al-ManUEma, 47.
The jurisconsult, the author“jurist, and legal change 231
“The jurisconsult must follow custom even though it might contradict
the authoritative opinions of UAhir al-riwAya.”270 Both universal and local
customs are included under these generalizations. “Even if local custom
opposes the school doctrines (al-naQQ al-madhhabC ) that have been trans-
mitted on the authority of the school founder (QAMib al-madhhab), it must
be taken into consideration.”271
Having reached this conclusion by what he takes to be an inductive
survey of the law, Ibn cfbidcn goes on to say that the jurisconsult must
treat both local and universal customs as equal insofar as they override
the corpus of UAhir al-riwAya. The only di¬erence between them is that
universal custom produces a universal legal norm, whereas local custom
e¬ects a particular norm. Put di¬erently, the legal norm resulting from a
universal custom is binding on Muslims throughout Muslim lands, while
local custom is binding in the village or town in which it prevails.272
These conclusions Ibn cfbidcn seeks to defend and justify at any expense.
Here, he introduces a statement reportedly made by Ammad al-namawc
in his NAshiya calA al-AshbAh, a commentary on Ibn Nujaym™s work.
In this work, namawc remarked that from Ibn Nujaym™s statement that
“a local custom can never yield a universal legal norm” one can infer that
“a local custom can result in a particular legal norm.”273 Obviously, there
is nothing in the logic of entailment that justi¬es this inference. But Ibn
fbidcn accepts namawc™s conclusion readily and unquestioningly.

The principles that justify the dominance of local custom over the
school™s authoritative doctrine also justify, with equal force, the continu-
ous displacement of one local custom by another. If a local custom could
repeal those doctrines that had been established by the school founders,
then a later local custom, superseding in dominance its forerunner, can
override both the forerunner and the UAhir al-riwAya. This much is
clear from Ibn cfbidcn™s statement that the local custom that overrides
the school™s authoritative doctrine includes both old and new local
customs.274 The legitimization of this continuous modi¬cation lies in Ibn
fbidcn™s deep conviction that the founding fathers would have held the

Nashr al- cUrf, 131“32, restated at 133. 271 Ibid., 133.
Ibid., 132: “fal- curf al- cAmm fC sA”ir al-bilAd yathbut Mukmuhu calA ahli sA”iri al-bilAd

wal-khAQQ fC balda wAMida yathbut Mukmuhu calA tilka al-balda faqaS.”
Ammad al-namawc, SharM al-AshbAh, printed with Ibn Nujaym™s al-AshbAh wal-
NaUA”ir, 137; Ibn cfbidcn, Nashr al- cUrf, 132: “qAla al- callAma al-Sayyid AMmad al-
NamawC . . . al-Mukm al- cAmm lA yathbut bil- curf al-khAQQ, yufham minhu anna al-Mukm
al-khAQQ yathbut bil- curf al-khAQQ.”
SharM al-ManUEma, 45; Ibn cfbidcn, Nashr al- cUrf, 133: “ammA al- curf al-khAQQ, idhA

AraKa al-naQQ al-madhhabC al-manqEl can QAMib al-madhhab fa-hwa mu ctabar . . . wa-

shamala al- curf al-khAQQ al-qadCm wal-MAdith.”
232 Authority, continuity, and change in Islamic law
same legal opinions had they encountered the same customs that the later
jurists had to face.275 This is one of Ibn cfbidcn™s cardinal tenets which he
nearly developed into a legal maxim.
Ibn cfbidcn™s hermeneutical venture resulted in a con¬‚ict between
his loyalty to the authoritative hierarchy of nana¬te doctrine and the
demands of custom not only as a set of individual legal cases but more
importantly as a source of law. For as a body of individual legal cases,
custom was fairly successfully incorporated into law, a fact abundantly
attested in the works of early jurists, and exempli¬ed, as we have seen,
in Sarakhsc™s MabsES. But in attempting, as Ibn cfbidcn did, to raise the
status of custom to that of a legal source, there arose a distinct di¬culty
in squaring this source not only with UAhir al-riwAya but also with the
legal methodology that sustained both the doctrinal hierarchy and the
theological backing of the law. That Ibn cfbidcn was entirely loyal to
the hermeneutical imperatives of the nana¬te school and, at one and the
same time, a vehement promoter of custom as a legal source makes his task
all the more remarkable. Ultimately, through the discursive tools of the
author“jurist, Ibn cfbidcn succeeded in constructing an argument that
elevates custom to the status of a legal source, capable of overriding the
e¬ects of other sources, including the Quran and the Sunna.
Ibn cfbidcn™s discourse on custom is instructive from a number of
perspectives, not the least of which is the way it invokes the weak and
minority positions in the tradition. These positions are made, by neces-
sity, to juxtapose with the authoritative doctrine of the school, that which
represents the dominant mainstream of legal doctrine and practice. The
initial impulse that propelled the minority position was Abe Yesuf ™s
opinion which had largely been abandoned by Ibn Nujaym™s time. Abe
Yesuf ™s opinion was revived through the device of necessity, a device that
must have seemed handy when all other hermeneutical ventures appeared
to have no prospect of success. Ibn cfbidcn™s hermeneutics also entailed
the manipulation of other minor opinions, such as those of Subkc and
Marghcnanc. In this hermeneutical exercise, which turned the ladder of
doctrinal authority right on its head, Ibn cfbidcn™s skills as a polemicist,
author, and textual strategist are not to be underestimated. Admittedly,
however, they involved certain ¬‚aws in logical argumentation, ¬‚aws
which were undoubtedly more a result of the strains inherent in Ibn
fbidcn™s hermeneutically exacting venture than they were a re¬‚ection of

his competence as a reasoner.

Ibn cfbidcn, Nashr al- cUrf, 128, 130: “law kAna AbE NanCfa ra”A mA ra”aw, la-aftA

bi-hi” (at 130, l. 15); Ibn cfbidcn, SharM al-ManUEma, 14.
The jurisconsult, the author“jurist, and legal change 233
Ibn cfbidcn™s discourse is also instructive in that it contained a com-
plex and multi-layered hermeneutical texture, a prominent feature in
the author“jurist™s enterprise. Functioning within the context of a school
authority, Ibn cfbidcn™s discourse was dominated by the ever-present
perception of a legal tradition within which he had to function and
beyond which he could not tread. But the tradition was by no means
so constraining. Rather, it o¬ered multiple levels of discourse originat-
ing, chronologically, in centuries of legal evolution and, geographically,
in far-¬‚ung regions dominated by nana¬te as well as other schools.
This rich multiplicity a¬orded the author“jurist a large measure of
freedom to include or exclude opinions at will. Opinions from distant
and immediate predecessors were selectively cited and juxtaposed. They
represented, at one and the same time, the dominant weight of the
tradition and the means by which the tradition itself could e¬ectively
be manipulated. The author“jurist, the manipulator, cements the selected
citations that make up the building blocks of his discourse through
the medium of interpolations, interventions, counter-arguments, and
quali¬cations. Although the manipulator™s presence in the text that he
produces seems more often than not to be minimal, it is he who decides
how the tradition and its authority are to be used, shaped, and repro-
duced. It is a remarkable feature of the author“jurist™s legal discourse
that it was able to reproduce this varied and multi-layered tradition in
a seemingly in¬nite number of ways. The interpretive possibilities seem

Our enquiry compels us to conclude that it was the muftC and the author“
jurist who responded to the need for legal change by means of articulating
and legitimizing that aspect of general legal practice in which change was
implicit. The qAKCs, as a community of legal practitioners, may have been
involved in the application of newer or weak doctrines that di¬ered from
the established and authoritative doctrines of the school. But such a prac-
tice, assuming that it permeated all the schools, was merely a necessary “
but by no means su¬cient “ condition for the implementation of change.
In the entire process of change, the qAKCs™ contribution, whenever it was
present, was only at an embryonic stage, and could not, in and by itself,
have culminated in change. For in order to e¬ect legal change in a formal
and authoritative manner “ which represents the full extent of the process
of such change “ the intervention of other agents was needed. These were
the muftC and the author“jurist.
234 Authority, continuity, and change in Islamic law
In the previous chapter, we noted that the madhhab-opinions gained
authoritative status due to the fact that they were normatively used as
the basis of fatwAs. The fatwA thus acquired general, almost universal,
relevance within the school, in contradistinction to the qAKC ™s ruling
which was con¬ned to the individual case at hand. And it was in such a
capacity that the fatwA possessed the power to articulate and, in the ¬nal
analysis, legitimize change. Ibn Rushd™s fatwA pertaining to the murder in
Cordoba illustrates a somewhat radical form of change in which a totally
new opinion was introduced to the Malikite juris corpus. But the fatwA
was also instrumental to legal change in less radical ways. In its primary
form, that is, before it had undergone the process of incorporation into
works of positive law, the fatwA was authoritative, a fact evidenced in
the “canonized” fatwA collections which were not a¬ected by the con-
tribution of the author“jurist qua author“jurist. Such collections, as we
have seen, occupied a central place in the authoritative body of school
doctrines. True, formally and in terms of the hierarchy of doctrine, they
were second to many of the early masters™ doctrines; yet, in the reality
of practice they were nonetheless authoritative. Indeed, it is the ever
continuous, diachronic substitution of such authoritative collections that
re¬‚ected the ¬‚uidity of doctrine and thus the adaptability of the law.
This explains not only the cumulative relevance of doctrine to the later
jurists but also the diachronic signi¬cance of authoritative citations: the
later the jurist, the more recent his authorities are, generally speaking, and
the less his reliance on earlier doctrines.
The authoritative character of the fatwA as a universal statement of
the law and as a re¬‚ection of legitimized legal practice made it a prime
target of the author“jurist. An essential part of the muftC ™s function was to
articulate and legitimize legal change, but it was the author“jurist who
was mainly responsible for setting the ¬nal seal on fatwAs by incorpor-
ating them into the school™s works of positive law. This incorporation
signi¬ed the ¬nal stage of legitimization, not as the exclusive doctrines of
the school but rather as part of the school™s corpus juris. We should not
expect more, for it was rarely, quite rarely, the case that a single opinion
governing a particular legal issue could for long stand as the exclusive
doctrine of a school.
It is precisely here, in the multiplicity of opinions for each case, that
the author“jurist was most creative in accommodating legal change. Ibn
fbidcn™s discourse on custom is perhaps the most eloquent illustration

in point. The multiple levels of discourse that were available to him, and
on which he felt free to draw, enabled him in e¬ect to turn the hierarchy
of authoritative legal sources right on its head. Custom, in the end, was
The jurisconsult, the author“jurist, and legal change 235
to override the authoritative doctrine of the school. It is no less than
impressive that Ibn cfbidcn could have achieved this end while remaining
within the hermeneutical boundaries of traditional nana¬te scholarship “
a testimony to the Muslim jurist and to his ability to navigate so freely in
what is seemingly a constrained tradition. The ability of the muftC and the
author“jurist to articulate, legitimize, and ultimately e¬ect legal change
was not a contingent, ad hoc feature, but one that was structural, built
into the very system that is Islamic law.
236 Authority, continuity, and change in Islamic law


The formation of the legal schools by the middle of the fourth/tenth century was
achieved through the construction of a juristic doctrine clothed in the authority
of the founding imam, the so-called absolute mujtahid. Juristic discourse and
hermeneutics were the product of this foundational authority which was made
to create a set of positive principles that came to de¬ne the school not so much
as a personal entity of professional membership, but mainly as an interpretive
doctrine to be studied, mastered, and, above all, defended and applied. Juristic
authority, therefore, was to be sustained throughout the successive stages of legal
history, each stage passing on its authoritative legacy to the next. But the trans-
mission of authority in juristic typologies was progressively restrictive, re¬‚ecting
not a growing rigidity in the law but rather the evolution of a relatively more
determinate body of positive law. The perception of hierarchical ranking, in
which the interpretive possibilities were, in diachronic terms, increasingly re-
stricted, was thus a function of stability and determinacy, not of incompetence
or unquestioning taqlCd. The hallmark of juristic excellence was not so much
innovation as the ability to determine the authoritative school doctrine. This
recognition of juristic competence in justifying and promoting continuity and
thus stability, predictability, and determinacy was discursively attributed to the
lower ranks of the juristic hierarchy, not because of a lower demand on the
intellectual abilities of the jurist, but because justifying the tradition was an activ-
ity marked by insistence on the epistemic authority of the past, both recent and
remote. For since a jurist could and did, admittedly, function at two or more
levels of the juristic hierarchy, it was inconceivable that a jurist capable of ijtihAd
should have been incapable of taqlCd. Although the reverse of this progression
is not readily obvious, the typologies do nonetheless permit the combination
of a number of juristic functions in one professional career, with each function
representing a di¬erent layer of interpretive activity.
But while we have accepted the structure of authority as an accurate descrip-
tion pro¬ered by the juristic typologies, we have declined to admit to their his-
toricity. It is revealing that the process of authority construction turns out to be
incompatible with a scholarly reconstruction of history. But this incompatibility
itself alerts us all the more readily to the precise nature of authorization and the

Summary and conclusions 237
lengths to which the jurists were willing to go in order to achieve it. The dis-
regard shown, on the one hand, for the imams™ debt to their predecessors and, on
the other, the attribution to them of doctrines and opinions that were formulated
by their successors were only two of the means by which the founding imams
were fashioned into rallying points for their respective schools. Detaching them
from their predecessors and successors was an epistemological act through which
they were made into a species of “super-jurists,” as it were, who “ and this is
important “ had confronted the revealed texts directly and had single-handedly,
by means of their own hermeneutical ingenuity, constructed a system of law. It is
this, primarily epistemic, authority that was the object of construction.1 The
schools, therefore, could never have taken on the form and substance that they
did without ¬rst having set in motion a process through which the authority of
the imams was gradually and quite heavily augmented.
Our investigation into the activities of the aQMAb al-wujEh, or the mukharrijEn,
also con¬rmed their importance as an essential element in the rise and ¬nal
formation of the schools. Modern scholarship can no longer a¬ord either to
misunderstand2 or to underestimate the signi¬cance of their contribution. They
partook not only in the signi¬cant activity of constructing the imam™s authority
but also in helping to develop an interpretive methodology that came to char-
acterize each school as a separate and unique juristic entity. One of the tasks
of modern scholarship, therefore, will have to be a close and detailed scrutiny of
their e¬orts, not only as active participants in the processes of authority construc-
tion but also as builders of the schools™ corpus juris.3 No less important are the
juristic achievements of some of those who operated outside the hermeneutical
limits of what came to be the school structure, for it is precisely these achieve-
ments that reveal to us how and why the schools arose in the manner they did
and the complexities involved in this process.
As part of explaining why the four schools have managed to survive and even
¬‚ourish, it is necessary for us to probe the question of why these mukharrijEn
failed not so much to form their own schools (a process in which even the
supposed founders of the madhhabs seem to have played hardly any role) but
to become in their turn objects of the by now familiar process of authority
construction. For it was the latter phenomenon which in the end determined
that certain jurists and not others would go down in history as the originators of
certain well-de¬ned traditions of legal methodology and practice.
Although it is highly likely that their religious and moral authority (two distinct but
secondary types of authority) was likewise subjected to similar processes of construction
and augmentation. The manAqib genre furnishes rich material for tracing these pro-
cesses. See chapter 2, n. 1, above.
See, for instance, chapter 1, n. 19, above.
Among the foremost candidates who should command scholarly attention are Muzanc,
Mumammad b. Shujac al-Thaljc, Ibn cAbd al-nakam al-Miqrc, Ibn al-Qasim, narmala,
Ibn Surayj, al-Qa¬al al-Shashc al-Kabcr, the “Four Mumammads,” (especially tabarc and
Ibn al-Mundhir al-Ncsaberc), Khiraqc, Abe Bakr al-Qa¬al al-Marwazc, and Abe namid
238 Authority, continuity, and change in Islamic law
It is certainly the success of the authority-construction process that has
distorted, historically speaking, the juristic reality in which dozens of so-called
absolute and a¬liated mujtahids operated. The need to bestow authority on
the so-called founders was matched only by the need to deemphasize their debt
(whether direct or oblique) to the mujtahids who had preceded them. This act
of intellectual, juristic, and hermeneutical expropriation constituted only one
element in the process of school formation, for after all, the purpose of construct-
ing the imam™s authority was itself only one means, a tool, for building the school
in its mature form.
The very act of hermeneutical expropriation was only one of the results of the
need to limit the omnipresent plurality of legal opinion that emerged during
the second/eighth century and most of the third/ninth, even though the pro-
liferation of (independent) opinion continued to some extent for more than a
century thereafter. The narrowing of juristic possibilities was no doubt a function
of the tendency to increase the level of determinacy of positive legal doctrine, a
fact represented in the highly applauded search, on the part of jurists, for those
opinions considered to have achieved an authoritative status in the schools.
The emergence of an authoritative body of legal doctrine was a post-formative
phenomenon, or at the very least was symptomatic of the schools™ evolution into
doctrinal entities. Declaring an opinion to be authoritative amounted to a verdict
passed on other opinions governing the same case under review. Such a declara-
tion meant the existence of a standard yardstick by which the authoritative could
be distinguished from the less authoritative, and this was precisely the signi¬c-
ance of the school as a doctrinal entity.
The increasing abandonment of ubiquitous plurality in favor of the search for
authoritative opinions amounted to a transition from what may be called the age
of ijtihAd to that of taqlCd. But taqlCd, it must be stressed, did not represent the
unquestioning acceptance of earlier positions, for as we showed in chapter 4, this
activity “ and it was a juristic activity of the ¬rst order “ involved highly complex
modes of legal reasoning and rhetorical discourse.4 Furthermore, taqlCd in and by
itself was not a causal phenomenon, and this, I suggest, is a fundamental proposi-
tion. Instead, taqlCd was symptomatic of the rise of the schools as authoritative
entities, that is, as objects of constructed authority. It was an expression of the
complex dynamics that came to dominate the school as both a doctrinal entity
and as a subject of hermeneutical engagement.
Part of the overarching activity of taqlCd also comprised a complex system
of operative terminology whose purpose was, among other things, to curb the
plurality of legal opinion by arguing in favor of those opinions deemed to be
supremely authoritative. What constituted the authority of an opinion was no
doubt a matter of some controversy. But two considerations stood as paramount:

In the wide sense, de¬ned and brilliantly analyzed by Chaim Perelman and
L. Olbrechts-Tyteca in The New Rhetoric: A Treatise on Argumentation (Notre Dame:
University of Notre Dame Press, 1969).
Summary and conclusions 239
First, the soundness and persuasiveness of the lines of reasoning sustaining the
opinion, and second, the degree to which the opinion succeeded in appealing
to the community of jurists. Ultimately, these two considerations were not
unrelated, and they did not stand wholly apart from yet other considerations. To
be sure, widespread acceptance did not allude to any democratic principle, for the
issue, in the ¬nal analysis, was an epistemological one. The soundness or persuas-
iveness of an opinion was put to the test of ijmA cic review, although, technically
speaking, the authority of ijmA c was never explicitly invoked in the context of
operative terminology. But an underlying notion of this authority was constantly
at play, nonetheless. Our two considerations therefore collapse into one larger,
all-encompassing criterion.
However, a third consideration might also be subsumed under this criterion,
namely, the degree to which an opinion was applied in the world of judicial
practice. Again, the degree is ultimately adjudged as an epistemological matter,
epistemology here having several dimensions, not excluding, for instance, sheer
necessity as a ground for the dominant application, and therefore proclamation
of an opinion as possessing supreme authority.
Operative terminology therefore served the interests of taqlCd in the sense “ or
rather in accordance with the multi-layered meanings “ we have demonstrated.
It reduced legal pluralism; it increased determinacy and predictability; and, above
all, it promoted legal continuity and doctrinal“systemic stability. Operative
terminology, which ¬‚ourished after the formative period, permeated legal dis-
course and became a quintessential attribute of the system. And in view of the
varied technical connotations of this terminology, no student of legal manuals
can a¬ord to gloss over such terms uncritically. In terms of modern research and
methodology, operative terminology constitutes, without any exaggeration, one
of the keys to unraveling the complexities that engulf the doctrinal history of
Islamic law.
It may seem a curiosity that operative terminology served the interests of taqlCd
as well as working so well as a tool of legal change. To put it di¬erently, operative
terminology as a mechanism of taqlCd also functioned as a tool for legitimizing
and formalizing new developments in the law. Logically, this entails what may
seem an astonishing but valid proposition, namely, that taqlCd embodied in itself
the ability to accommodate legal change. But we need not restrict ourselves to
drawing logical conclusions, for the evidence of our sources amply proves this
much. In the extensive discourse of articulating operative terminology, and
thereby in the very act of declaring certain opinions as authoritative, legal change
was e¬ected, insofar as this was needed. It should come as no surprise then that
taqlCd functioned as a vehicle of legal change to the same extent as ijtihAd did,
if not more so. More, because ijtihAd meant the introduction of new opinions
which often lacked, ipso facto, an intimate, symbiotic relationship with the ongo-
ing tradition. But through operative terminology, and therefore through taqlCd,
familiar opinions once considered weak or relatively less authoritative had a better
chance of rising to an authoritative position in the hierarchy of school doctrine.
240 Authority, continuity, and change in Islamic law
Operative terminology and the discourse that surrounded it compel another
conclusion, namely, that if this terminology was an integral part of Islamic law
and its workings, then the mechanisms for accommodating legal change were
structural features of that law. In other words, legal change did not occur only in
an ad hoc manner, as it were, but was rather embedded in processes built into the
very structure of the law. And since it was a structural feature, the jurists e¬ected
it as a matter of course. This inevitably suggests that the much-debated issue of
whether change ever occurred in Islamic law is a product of our own imagina-
tion. For no medieval jurist lost much sleep over deciding in a given case that
what had hitherto been considered by his predecessors a weak opinion had in fact
much to recommend it as the most authoritative opinion in his school.
One of the conclusions reached in the course of this study was that the struc-
tural modalities of legal change lay with the jurisconsult and no less so with the
author“jurist. It was, in other words, within the normal purview of these two
o¬ces or roles to modulate legal change, and this they did by means of articulat-
ing and legitimizing those aspects of general legal practice in which change was
implicit. Through his fatwA, the jurisconsult created a discursive link between the
realities of judicial practice and legal doctrine. Because the jurisconsult, by the
nature of his function, was an agent in the creation of legal norms of universal
applicability, his opinions were deemed to constitute law proper and as such
were incorporated into the law manuals which were either fatwA collections
or commentarial texts. In addition to fatwAs, the latter also included both the
authoritative, traditional doctrine and the prevalent practices of the day. Both
types of texts, as we have shown, possessed an authoritative doctrinal standing
in the schools.
Texts produced by the jurisconsult and the author“jurist were authoritative in
the sense that they provided contemporary and later jurists “ whether notaries,
judges, jurisconsults, or author“jurists “ with normative rules that were advoc-
ated as standard doctrine. These texts, therefore, not only perpetuated the
legal tradition but were also, at the same time, instrumental in legitimizing and
formalizing legal change. It was the continual substitution of cases and opinions
in the successive legal manuals and commentaries that re¬‚ected the ¬‚uidity of
doctrine and thus the adaptability of the law. Positive legal principles persisted
no doubt, but their case-by-case exempli¬cation was in a state of constant ¬‚ux.
This phenomenon in turn re¬‚ects both the cumulative relevance of the doctrine
to later jurists and the diachronic signi¬cance of authoritative citations: The
later the jurist, the more recent his authorities are, and the less his reliance
on earlier doctrines. Yet, the latter doctrines “ especially those of the so-called
founders “ never faded away, and continued to serve not so much as a reservoir of
positive rulings but rather as an axis of doctrinal authority and as archetypes for
hermeneutically principled arguments that had generated these rulings.
While the jurisconsult™s function in mediating legal change was central, the
author“jurist, to some signi¬cant extent, determined which fatwAs were to be
included in his text and which not. This authorial determination constituted,
Summary and conclusions 241
on the one hand, a device which checked the extent of the jurisconsult™s con-
tribution to the legal text, and sanctioned, on the other, those fatwAs that were
incorporated, whether or not the opinion expressed in them was subject to
the author“jurist™s approval. But the relationship between the jurisconsult qua
jurisconsult and the author“jurist was also dialectical: The fatwAs incorporated
in the author“jurist™s text themselves bestowed authority on the positive legal
principles that they were intended to explicate in the ¬rst place. It is remarkable
that the author“jurist was not subject to the control of other juristic or otherwise
judicial functions and roles, and it is this fact that makes him, not necessarily
a “law-maker” “ as the jurisconsult was “ but the chief legitimizer and formalizer
of legal doctrine and legal change. His epistemic preeminence is furthermore
enforced by his authorial dominance, manifested in his mastery of selective
citations and juxtaposition of various authorities and of generating therefrom
arguments through his own subtle interpolations, counter-arguments, and quali-
¬cations. The author“jurist therefore constantly adduced new arguments from
old materials, without transcending the limits of discourse set by his school.
This is not to say, however, that the author“jurist™s determination set the ¬nal
seal on authoritative doctrines, for the system, as we have seen, was thoroughly
pluralistic. Judges, jurisconsults, and the author“jurists themselves always had
an array of opinions at their disposal. The author“jurist™s legitimization did
not therefore sanction rules as irrevocably authoritative, but was conducive to
increasing determinacy in the diverse body of these rules. In a system that was
and remained thoroughly pluralistic, this was no mean feat indeed.
At the end of the day, the solution to the very problematic created by the
multiplicity of opinion in the formative and even post-formative periods turned
out to be itself the salvation of the legal system during the later stages of its
development. Without this multiplicity, therefore, legal change and adaptability
would not have been possible. The old adage that in juristic disagreement there
lies a divine blessing is not an empty aphorism, since critical scrutiny of its juristic
signi¬cance proves it to be unquestionably true.
242 Bibliography


In classifying entries no account is taken of the letter cayn, the hamza, and the
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