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Gates of Ijtihad

Gates of Ijtihad

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Published by dave742
Review of current scholarship concerning the gates of ijtihad. and a rebuttal to Robert Spencer
Review of current scholarship concerning the gates of ijtihad. and a rebuttal to Robert Spencer

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Published by: dave742 on Oct 07, 2009
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05/08/2013

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1
The Gates of Ijtihad and the End of Islam
By dave742
“During the 1960s, scholarship was still impressed with the image that the gates of 
ijtihad
were 
closed.” 
 Werner Menski 
1
 
This paper is a response to Robert Spencer‘s views regarding the ―gates of 
ijtihad 
‖.
Hisviews regarding this subject can be found here:http://www.jihadwatch.org/archives/015565.php Mr. Spencer is a writer on the fringe right of the political spectrum who focuses onIslamic terrorism and Jihad. He is the founder of the Jihadwatch (from here on
 –
JW)website.
Contents 
Introduction: 3First Spencer proof: 6The Early Period of Islamic Law: 7Limiting ijtihad as a technique: 8Limiting who can use ijtihad: 10Taqlid: 13Ikhtilaf: 17The Possibility of an Age Being without a Mujtahid: 19Mujaddids: 20Second Spencer proof: 21Typologies: 37Back to Muslim Canada: 47
1
Menski, p. 340
2
 
‘Ali, p. 19
 
 
2
Third Spencer proof: 50Fourth Spencer proof: 55Secondary Sources: 62Istihsan: 62Urf: 63Maslaha: 66Gen
eral ―gates of ijtihad‖ comments:
66Status of Islamic Law in Just Prior to the Colonial Period: 73Access to Courts: 74Cruel Punishments: 76Divorce: 81Inheritance: 85
Women‘s Financial Independence:
87
Women‘s Dress:
87Apostasy and Forced Conversion: 88Overall Conditions: 90Conclusion: 91Definition of Ijtihad: 93
The Closing of the ―Gates of Ijtihad‖
:Codification and Translation: 94The Gates Reopened: 99Why?: 110Conclusion: 113
 
3
Introduction 
In Islamic law, Muslim jurists define
ijtihad 
 
as ―personal exertion on the part of a legalexpert to give a legal opinion on a course of action or a question.‖
2
Orientalists
3
andtheir followers
assert that Muslim jurists closed the ―gates of 
ijtihad 
‖ centuries ago, and
as a result, Islamic law became static and unchanging. Legal innovation had beenreplaced by
taqlid 
, which Orientalists define as ―blindly following‖ the decisions made by
the earlier jurists. According to this view, Islamic law today is virtually the same as it wasa thousand years ago. Mr. Spencer adopts this view to support his views on
 jihad 
. Muchof what Mr. Spencer has to say about
 jihad 
is taken from texts written nearly a thousand
years ago, but Mr. Spencer says that citing these old texts is valid because the ―gates of 
ijtihad 
have been closed ever since, and what was said about
 jihad 
a century agorepresents the views of Muslims today.
4
This
Orientalist notion about the closed ―gates
of
ijtihad 
, however, is a fabrication, and it is what this paper addresses.The Orientalist most responsible for popularizing this notion is the famous JosephSchacht, who wrote:
―By the beginning of the fourth century of the hijra (about A.D. 900)…the point had been
reached when the scholars of all schools felt that all essential questions had beenthoroughly discussed and finally settled, and a consensus gradually established itself tothe effect that from that time onwards no one might be deemed to have the necessaryqualifications for independent reasoning in law, and that all future activity would have tobe confined to the explanation, application, and, at the most, interpretation of the
doctrine as it had been laid down once and for all. This ‗closing of the door of 
ijtihad 
‘, as
it was called, amounted to the demand for
taklid 
…from then onwar 
ds [Islamic law]
became increasingly rigid and set in its final mould.‖
5
 
All of the Orientalists who write about the closing of the ―gates of 
ijtihad 
‖ do so in a
similar manner as Schacht does above.
6
They merely state the closure as fact, andnever bother to discuss why this closure happened, who was involved in the decision, or
any other details. In addition, Haim Gerber points out that, ―i
t is a well-known though
2
 
‘Ali, p. 19
 
3
 
I use the term “Orientalist” in this paper in accordance with the image painted by Edward Said in his book
Orientalism
, which is that of a Western academic who describes the East in hostile and deprecatory ways.Orientalism began during the Western Imperialist ages of the eighteenth and nineteenth centuries, and continuesto this day.
4
See discussion in Spencer (2007), p.81
5
Schacht, p. 70, 74
6
For example, see Ostrorog, p. 24-26, Gibb, p. 67, Coulson, p. 80, Anderson, p. 7

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