The Closing of the Door of Ijtihad and the Application of the Law

Abstract

This panel's center of gravity is Islamic legal theory and doctrine,
particularly usul alfiqh. In this mom are many of the West's leading
scholars in this field. This puts me out of step, for my work leads me to
study fiqh and usul alfiqh chiefly from the viewpoint of their application,
an approach that is the result of spending several years in Saudi
Arabia studying the role of fiqh and the ulema in the Islamic legal
system. I wish to submit, however, that there are a number of doctrinal
problems to which a study of the law's application and practice or, in
other words, a study of the legal system, stands to contribute a great deal.
The closing of the door of ijtihad, which I intend to discuss, is such an
issue.
But first let me make some general points to support the general
suggestion I have just made. In western studies of fiqh, we have often
omitted, justifiably or not, any consideration of the law's application.
Among the valid justifications for doing so is the very vastness of the
doctrinal corpus. Another is that to get basic data on the law's historical
application is far more difficult than fvding its black-letter doctrine.
Other justifications are more questionable. For one, we have often made
certain assumptions, which-stating them with due exaggeration-hold
that Islamic law, since it became stagnant at an early period, was usually
ignod in practice. As a d t of this, it is often maintained, fiqh retreated
into the ideal world of scholarship while the application of the law
fell under the sway of arbitrary and despotic rulers. Approaching the law
with such an impression, however much in the background, scholars of
Islamic law have, not surprisingly, spent little time on its application.
This last justification for ignoring the law's application is now, I believe,
rapidly eroding due to the efforts of scholars on many different
fronts. Some, notably Professor Hallaq, are at work countering the exaggerated
idea of the "closing of the door of ijtihad," a phrase used to convey
the idea that fiqh became utterly stultified at an early stage. Other
scholars ate examining late Shari'ah court records and legal documents ...