14

Ijtihād and taqlı̄d

Between the Islamic legal tradition
and ­autonomous western reason

Sherman A. Jackson

To the memory of
Shaykh H
․ asan Salı̄m H
․ asan S․ālih
․

Autonomous reason’s rise to primacy in the modern West was a complicated affair. As late as
the 18th century, even European thinkers who championed the cause of reason questioned its
panacean powers and dreaded its collateral liabilities.1 As fervently as Descartes insisted that
accidental variations of context and substance be abandoned in favour of the exclusively ab-
stract and decontextualized, thinkers such as the French Jesuit Gabriel Daniel questioned the
authenticity of the kind of certainty the cogito ergo sum could actually deliver.2 As forcefully as
Kant and the Aufklärer champions of the Enlightenment cast reason as an independent faculty
insularly nested in some noumenal or mental realm, anti-Enlightenment intellectuals, such
as J. G. Hamann, pushed back, stressing the social, historical, affective and other dimensions
of reason, while challenging its status as the exclusive means of knowing.3 Other objections
to reason’s untrammelled authority came from Romantics, such as Fichte and Schelling, who
stressed its utter inadequacy before the profound.4 Despite these challenges, however, what
would eventually emerge as ‘Western modernity’ embraced reason as the preferred if not
exclusive means of knowing, beyond what the senses could directly apprehend.5 This reason
was autonomous and universal; and it transcended all accidents of time and place. As its own
self-authenticating authority, it displaced the moral community as guarantor or umpire of the
mind’s apposite use.6 Thus, insists Locke, ‘the floating of other men’s opinions in our brain
makes us not one jot the more knowing’.7 Joined by the likes of J. S. Mill, he would scoff at
‘received propositions’ or ‘received opinions’.8 Meanwhile, Kant would condemn as a ‘sim-
pleton’ anyone who ‘always allowed himself to be guided by other persons’.9 By contrast, he
deemed originality a sign of genius.10 Knowledge, according to these men, is not a corporate
entity but ‘the achievement of solitary men’.11 Stephen Toulmin characterizes this develop-
ment as a move away from practical engagement in favour of epistemology.12 ‘Meaning’ in
this context acquires a premium over ‘being’,13 and this casts aspersions on all forms of know-
ing that are grounded in tradition, authority, culture and similar modes of embodiment.
This embrace of modern, autonomous reason rendered continuous progress, originality and

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innovativeness signatures of a proper commitment to rationality and thus civilization. This is

unmistakably captured in Isaiah Berlin’s comment on Kant’s famous response to the question,
‘What is Enlightenment?’

[E]nlightenment is simply the ability of men to determine their own lives, the liberation
of themselves from the leading-strings of others, the fact that men become mature and
determine what to do, whether it be evil or whether it be good, without leaning exces-
sively upon authority … upon the State … upon tradition … upon any kind of estab-
lished values on which the weight of moral responsibility is then squarely laid. A man is
responsible for his own acts … Civilisation is maturity, maturity is self-determination –
being determined by rational considerations, and not being pushed and pulled about
by something or other over which we have no control, in particular by other persons.14

As the academic study of Islam reached maturity in the West in the 19th century, this au-
tonomous, self-authenticating reason was well on its way to becoming the reigning régime
of sense in the Western academy, at least ostensibly. This was not simply reason writ large,
finally uncovered and laid bare in its unadulterated purity; this was essentially history
normalized, internalized and then forgotten as history. Nevertheless, as the touchstone of
the Western academy, this very particular understanding and valuation of reason informed
the basic prism through which the study of Islam was pursued, exerting a significant im-
pact on our understanding and valuation of Islam’s intellectual tradition.15 In this chapter,
I shall compare and contrast three competing perspectives on the Islamic legal institutions
of ijtihād and taqlı̄ d. I shall argue that two of these extremely influential approaches carry
into their analyses Western modernity’s positive valuation of reason, as an autonomous,
self-authenticating episteme, coupled with a negative valuation of mimesis,16 as a heteron-
omous, historically bound means of authenticating claims to (religious) knowledge. These
polarities infuse their authors’ understanding of ijtihād and, especially, taqlı̄ d with certain
biases and presuppositions that distort their actual value and function in Islamic law. Yet,
while these approaches share this common point of departure in modern Western reason,
this is obscured by their authors’ mutually contradictory conclusions on the question of
the closing of the gate of ijtihād. By contrasting these approaches, therefore, with a third
approach – my own – I hope to highlight the fact and impact of their common under-
standing and valuation of ‘reason’ and mimesis. Even where the influence of this modern
Western perspective is ostensibly transcended, as is the case with one of these approaches,
the author’s failure to acknowledge its impact on his earlier work, as well as his reading of
those he critiques, leaves a number of contradictions and antinomies outstanding. In the
end, the true nature of Islamic law, including taqlı̄ d and its mimetic underpinnings, remains
inadequately understood.

1  Two theses
The classic statement on ijtihād and taqlı̄d was put forth some 50 years ago by Joseph Schacht
in his groundbreaking work, An Introduction to Islamic Law:

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 been
thoroughly discussed and finally settled, and a consensus gradually established itself to
the effect that from that time onwards no one might be deemed to have the necessary

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qualifications for independent reasoning in law and that all future activity would have
to be 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 ijtihād,’ as
it was called, amounted to the demand for tak ․ lı̄d, a term which had originally denoted
the kind of reference to the Companions of the Prophet that had been customary in the
ancient schools of law, and which now came to mean unquestioning acceptance of the
doctrines of the established schools and authorities.17

Schacht’s statement was not entirely free of ambiguity.18 What is clear, however, from the
tone and substance of his account, is that, to his mind, the development he describes almost
singularly explained Islamic law’s slide into decline. Over the course of his writings, Schacht
went back and forth on this negative denouement, observing, for example, that,

Whatever the theory might say on ijtihād and taqlı̄d, the activity of the later jurists, after
the ‘closing of the door of independent reasoning,’ was no less creative, within the limits
set to it by the nature of sharı̄ʿa, than that of its predecessors.19

Elsewhere, however, he suggests that these creative energies were no match for the ‘ankylose’
(rigor mortis) that had set in alongside the immutable nature of Islamic law.20 This would
be joined by even more extreme statements to the effect that even ‘the mechanical method
of reasoning by analogy … was put out of the reach of later generations by the doctrine of
the closing of the gate of independent reasoning (ijtihād)’.21 By all accounts, Schacht was the
leading scholar of Islamic law in his time, about whom G. E. von Grunebaum would later
say, ‘Muslim law[’s] … origin and structure no longer can be seen except through his eyes’.22
This rendered his thesis the going opinion in the field at large, in which capacity it exerted
far-reaching influence. Equally influential, however, was its strong and unmistakeable illo-
cutionary implication: ijtihād is good; taqlı̄ d is bad.
Nowhere, perhaps, is this implication more evident than in Schacht’s choice of a transla-
tion for the terms ijtihād and taqlı̄ d. Ijtihād was not ‘independent interpretation’, ‘unmediated
derivation’ or ‘principled deduction’ – all equally plausible renderings; it was ‘independent
reasoning’. While this may appear neutral on its face, ‘independent reasoning’ signalled pre-
cisely the kinds of intellectual energies and aspirations implied by Kant’s, Locke’s, Mills’ and
Berlin’s Enlightenment reason. It echoed the modern Western ideal that reason, deployed by
solitary persons, was the superior (if not sole) basis of knowing, that it was or could be its own
self-authenticating authority, and that it was progressive and independently dispositive in any
argument. That Schacht’s rendering of ijtihād entailed such a value judgement is thrown into
relief by his translation of taqlı̄ d. Taqlı̄d, according to him, was not the ‘critical extension of
sacred history’, ‘provisional deference to precedent’ or even ‘mediated interpretation’; it was
simply ‘unquestioning acceptance’.23 This connoted precisely the kind of ‘leaning excessively
upon authority … upon tradition … upon … established values’ for which Western En-
lightenment reason would brook no tolerance, clearly echoing the epistemological presup-
positions that had now become native to the Western academy. In this context, once ijtihād
became identified with reason – independent, autonomous reason – taqlı̄ d was doomed to
become a juristic black sheep.
Meanwhile, the illocutionary force of Schacht’s valuation of ijtihād and taqlı̄ d transformed
his thesis into a subtle, civilizational indictment. If ijtihād had expired as the result of a con-
scious, trans-generational decision by Muslim jurists to uphold the propriety of ‘unquestion-
ing acceptance’ for literally centuries, one almost had to question the workings of the Arab

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Muslim mind. Coupled with the fact that he was writing at a time when a number of Arab
Muslim nations had just emerged from colonial rule, such intimations infused Schacht’s thesis
with a degree of provocation. In response, no scholar would put forth a more challenging
and influential counter-thesis than Professor Wael B. Hallaq. In a series of articles (and later
books), beginning in the 1980s, Hallaq argued strenuously against the notion of any ‘closing
of the gate of ijtihād’.24 For our purposes, however, what is most relevant in Hallaq’s thesis
is not his insistence that ijtihād never ceased but his substantive valuation of ijtihād itself (as
well as taqlı̄d) and the extent to which this was driven by the same basic understanding and
valuation of reason (and mimesis) observed in Schacht. While Hallaq opposed Schacht on
the actual closing of the gate of ijtihād, he essentially agreed with the latter in seeing ijtihād
as a positive institution capable of promoting innovativeness and creative legal thinking,
while viewing taqlı̄d as a negative institution doomed to juristic stagnation and unthinking.
This hampered his ability to see the extent to which my own thesis entailed a refutation of
Schacht, in that it depicted taqlı̄ d as being perfectly consistent with juristic dexterity and
pointed to what I termed ‘the regime of taqlı̄d’ as constituting a more rather than a less de-
veloped stage of Islamic law. Later, Hallaq reversed course on this negative understanding
of taqlı̄ d. But, as we shall see, this was done without ever vindicating his earlier hostility to-
wards it or explaining why I was wrong in recognizing taqlı̄ d’s consistency with skilful legal
thinking a full decade earlier.

2  A third thesis (and its critique)

My thesis on the relationship between ijtihād and taqlı̄ d began with my PhD dissertation on
the Egyptian Maliki jurist, Shihab al-Din al-Qarafi (d. 684/1285), which I completed in
1991.25 There I argued, inter alia, that:

1) while ijtihād never ceased to exist entirely, it gave way to a more pervasive ‘regime
of taqlid’, which established itself sometime between the sixth/12th and seventh/13th
centuries;
2) the reason for this development was not the disappearance of jurists deemed capable of
undertaking ijtihād nor a group decision that all essential questions had been finally set-
tled; and
3) taqlı̄ d neither amounted to the absence of independent reasoning nor to the cessation of
deft legal thought.26

In 1996, I published a revised version of this dissertation under the title, Islamic Law and the
State: The Constitutional Jurisprudence of Shihāb al-Dı̄n al-Qarāfı̄.27 In this work, I refined my
thesis on ijtihād and taqlı̄ d, adducing a more explicitly legal explanation of their role and na-
ture, as opposed to the more narrowly pragmatic explication I offered in my dissertation, ‘In
Defense of Two-Tiered Orthodoxy’, where I argued that the legal community settled upon a
regime of taqlı̄d as a means of insulating the law from the abuses of government in collusion
with overly pliant, ambitious or unscrupulous jurists, especially in their capacity as judges.28
If these jurists were entirely free to interpret the law with no binding commitment to prec-
edent or any other authority outside the individual jurist, government, with its free reign to
appoint and dismiss judges at will, could make clean work of this open-ended cornucopia
of legal views.29 In Islamic Law and the State, however, I shifted my focus to authority as law’s
foundational premise and most basic currency. On this analysis, even as taqlı̄ d might continue
to insulate the law from government manipulation, it was more fundamentally valued as the

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institutionalized means of authenticating legal views and regulating access to this interpretive
legal authority, as something approaching a ‘controlled substance’. 30 Because, however, taqlı̄ d
ultimately trafficked in the authority to back legal interpretations as opposed to the substance
of bygone interpretations themselves, it merely worked to domesticate the creative energies
of the jurists, not to obliterate these. In this capacity, taqlı̄ d took no interest in actively pro-
moting juristic unthinking; it simply imposed a stringent, communally owned and policed
standard of authentication upon those who wished to think juristically and have their delib-
erations accepted into the sanctum of Islamic law.31
Just prior to the release of Islamic Law and the State in 1996, I published an article in a spe-
cial edition of the journal Islamic Law and Society devoted to ijtihād and taqlı̄ d.32 In this article,
I adumbrated my understanding of ijtihād and taqlı̄ d as laid out in Islamic Law and the State,
reiterating that taqlı̄ d was fundamentally about authority, i.e. that what jurists borrowed from
the past was not the substance of existing doctrine but the authority attached to the name
or doctrine of an already established authority figure. In this capacity, I noted, again, that
taqlı̄d was not committed to ‘unthinking’ and was not inconsistent with the continued devel-
opment of the law. I acknowledged that ijtihād continued in a limited capacity, but I invited
readers to resist the tendency to inflate its presence or value, especially given its inability to
back itself with requisite interpretive authority. In this context, I sided with Schacht on the
ultimate ‘triumph’ of taqlid (though not on the closing of the gate of ijtihād) as the dominant
approach to Islamic law after the sixth/12th–seventh/13th centuries, against what I took to
be Hallaq’s insinuation of an unabated continuation of ijtihād.33 I advised against the practice
of searching for any signs of ijtihād and suggested that the ‘mujtahid fı̄ al-madhhab’ be  rec-
ognized for what he is: a muqallid.34 For the madhhab, I argued, functioned precisely as the
repository of the kind of interpretive authority any ‘mujtahid’ would need to authenticate his
legal declarations.35
This special issue of Islamic Law and Society was guest-edited by Professor Hallaq. In his
comment on my article in the Introduction to the volume, he criticized my view on ijtihād
and taqlı̄d to the point of rejecting it. In particular, he repudiated the notion that al-­Qarafi’s
skilful approach to calibrating the scope of legal injunctions could be considered an ex-
ercise in taqlı̄ d, as I had argued. Instead, al-Qarafi’s articulations had to be considered ijti-
hād, because they were, in Hallaq’s words, ‘creative and innovative’. Indeed, Hallaq insists,
‘No jurist could claim that such proficient knowledge and skillful manipulation of the law
constituted taqlı̄ d’.36 According to him, I had grafted a confused and alien understanding
onto the concept of taqlı̄ d, which the Islamic legal tradition itself would never recognize.
Thus he wrote:

If Jackson wishes to label Qarāfı̄’s activity as taqlı̄ d, then he must acknowledge that taqlı̄ d
was creative and innovative – in clear and obvious ways. But the Muslim legal tradition
systematically refused to define taqlı̄ d in this manner, to put it in the simplest of terms.
Jackson is free to adopt this label, but whatever name we choose to call it, a mule is a
mule. Qarāfı̄’s activity, as described and analyzed by Jackson, was creative, innovative
and led to perceptible changes and adaptation in the law; and this manifestly is the con-
clusion of Hallaq not Schacht.37

Of course, that was precisely Jackson’s point all along: taqlı̄d did not necessarily preempt ‘cre-
ativity’ or ‘innovativeness’ (though one might ask why these, as opposed to ‘understanding’,
judiciousness’ or ‘capturing the law’ should be so highly valued in a system of law, not to
mention a religious law).38

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As such, even a closing of the gate of ijtihād need not spell the end of dexterous legal
thought. This is partly why I saw no reason to refute Schacht’s thesis on the closing of the
gate of ijtihād in the first place. For, ijtihād, as I understood it, was primarily about substance,
while taqlı̄ d was about authority. But Hallaq insisted that I had simply misunderstood ijtihād
(and taqlı̄ d), and in so doing was not able to recognize ijtihād’s continued contribution across
Islamic legal history. Of course, part of the problem was that Hallaq and I were operating
on different definitions of ijtihād. As I put it, ‘I do not consider to be ijtihād the application
of the tools of usul al-fiqh to anything other than scripture’.39 For him, by contrast, ijtihād
was apparently the assiduous use of the tools of usul al-fiqh in any interpretive effort, be its
object scripture, the madhhabs or perhaps even factual reality. This enables him to maximize
the number of instances in which jurists could be pointed to as practicing ijtihād; indeed, the
bulk of his proof of the continued exercise of ijtihād (not just in this comment) lay precisely
in instances of ‘al-ijtihād fı̄ al-madhhab’. He apparently saw no difference between scripture as
a primary, religious-cum-legal authority and the madhhabs as a secondary interpretive authority
(which is not to negate that they may also function as a legal authority40). As such, the explicit
connection I make between taqlı̄ d and authority41 appears nowhere in his analysis or critique
of my position. In fact, neither the word nor concept of ‘authority’ appears anywhere in his
comment.
Two years later, in 1998, again in Islamic Law and Society, Hallaq reviewed my book,
Islamic Law and the State, which had appeared later in 1996. While Islamic Law and the State
included a bolder and more circumspect treatment of ijtihād and taqlı̄ d, the main thesis re-
garding these institutions was identical to what I laid out in ‘Taqlı̄ d’. Specifically, authority
was identified as the heart of the matter. Thus, for example, speaking of negative translations
of taqlı̄ d, I wrote:

Such appellations tend not only to cast taqlı̄d in a negative light but also to obscure the
basic logic underlying the institution itself. For such translations assume the content of
what is borrowed to be the most important element in the process, imputing, mean-
while a certain timidity and anti-intellectualism to the very act of looking back … Law
[however] … is not philosophy … ‘It is not Wisdom but Authority that makes a law’.42

In his review, however, Hallaq looked past all of this. Instead, his major focus was on what he
took to be the implications of my agreeing with Schacht on the institutionalization of taqlı̄ d.
Again, he reads me as agreeing with Schacht’s ‘pessimism’ regarding the possibility of dexter-
ous thought in Islamic law as a consequence of my agreeing with him on the spread of taqlı̄d.43
In point of fact, however, I stated explicitly that Schacht was wrong to think that Muslim
jurists deemed themselves incapable of independent interpretation,44 that he was wrong to
see a contradiction between taqlı̄d and independent reasoning,45 and that it was misleading
to shoulder taqlı̄d as an institution with primary responsibility for stagnation and decline in
Islamic law.46 But Hallaq’s obsession with the gate of ijtihād and his linking taqlı̄ d with the
cessation of juristic skilfulness would not allow him to see any of this. Instead he writes,
‘Jackson fails to convince the reader that Qarafi’s creativity should be regarded as falling
within the limits of taqlı̄d’.47 And further, ‘I find it sadly ironic that Qarafi’s brilliant achieve-
ment should be coerced into vindicating Schacht’s views about ijtihād when in fact it stands as
an eloquent and easily demonstrable confirmation of my own’.48 Once again, because Schacht
could only see the cessation of ijtihād as resulting in stagnation, my agreeing with him on the
spread of taqlı̄ d had to mean agreeing with him on the inevitability of ‘ankylose’. Meanwhile,
what Hallaq sees as al-Qarafi’s creative activities could only confirm his thesis, because it was

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he and not Schacht who argued for the continuation of creative juristic activity. In all of this,
the fundamental role I attribute to authority as the very raison d’être of taqlı̄ d is summarily
ignored. Once again, neither the word ‘authority’ nor the concept of authority appears any-
where in Hallaq’s review, despite its clear and critical centrality to my entire thesis.
For Hallaq (at this stage in his scholarship at least) taqlı̄ d was clearly not simply a negative
category; it was exclusively negative, with no redeeming qualities or creative capabilities at
all. This is why he set out to negate its pervasiveness in the first place, by arguing against the
closing of the gate of ijtihād. His basic intention, as he put it, was, ‘to revise the widely re-
ceived notion that ‘slavish imitation’ controlled the legal system, and that ijtihād had become
irretrievably defunct’.49 In other words, only by proving that ijtihād had not become defunct
could it be proved that creativity continued and that neither the Muslim legal system nor the
Arab mind was controlled by ‘slavish imitation’. The notion of taqlı̄ d being fundamentally
about authority and that in this capacity it could continue to sustain juristic skilfulness, dex-
terity and even innovation, as I had argued all along, was summarily dismissed.

3  An unexplained reversal
Between 1998 and 2001, however, something happened. The very opening lines of Hallaq’s
new book, Authority, Continuity and Change in Islamic Law, read as follows:

To say that authority is the centerpiece of law is merely to state the obvious. Equally
obvious therefore is the proposition that Islamic law – or any other law, for that ­m atter –
cannot be properly understood without an adequate awareness of the structure of au-
thority that underlies it.50

From here Hallaq goes on to cast taqlı̄ d in a totally a new light. Taqlı̄ d is no longer ‘blind or
mindless acquiescence’; 51 nor does it imply ‘slavish imitation’. Taqlı̄ d is now an ‘undeniably
creative activity’52 that ‘may at times border on the juristic activity associated with ijtihād’.53
Taqlı̄ d is ‘intelligent and creative’.54 In fact, we can now even speak of ‘the achievement of
taqlı̄d’.55 For taqlı̄d is now ‘dynamic and vibrant’,56 ‘far from blind following’,57 perhaps even
‘a reenactment of ijtihād’.58 Whereas it was emphatically wrong for Jackson to consider al-­
Qarafi’s ‘innovativeness’ an exercise in taqlı̄ d, jurists could now readily display their acumen
and innovativeness through this medium, so much so that al-Nawawı̄’s taqlı̄ d in one instance
is described as being ‘of the best kind’.59 Indeed, we can even speak of ‘the liberal nature of
taqlı̄d’.60 In his review of Islamic Law and the State, Hallaq had ridiculed Jackson for consider-
ing takhrı̄ j a form of taqlı̄d, it being, according to him, ‘undeniably a form of ijtihād’.61 Now,
however, takhrı̄ j is unproblematically a cognate of taqlı̄ d, not even always distinguishable
from the latter as a means of garnering interpretive authority.62
Surprisingly, however, nowhere in any of this is there any indication that Hallaq had
changed his mind on any of his previously held views. He offers no mea culpas; and neither
Jackson nor anyone else is cited as having contributed anything to his new understanding,
not even negatively in the form of mistakes that alert him to interpretive pitfalls, dead-ends
or wrong turns.63 Nor does he trace the evolution of his own thinking on the matter. Instead,
he proceeds straight away, as if in a spontaneous epiphany, to amass an impressive array of
sources and to subject these to lively, skilful and rigorous analysis, again, entirely driven, we
are left to conclude, by his own unique and unassisted insights. The end result is a masterful
depiction of taqlı̄d (which is now his primary focus instead of ijtihād64) with which no knowl-
edgeable, fair-minded reader could disagree. Indeed, while one might leave it to the field at

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large to determine the extent of Hallaq’s originality or scholarly rectitude, his thesis on taqlı̄ d
in this work is laid out beautifully and most convincingly. In fact, I would consider it to be
the definitive (and certainly most thorough) statement on taqlı̄ d to date, with one important
exception, to which I shall now turn.

4  Taqlı̄ d between epistemic and mimetic authority

According to Hallaq, while it also includes a moral and a religious element, the authority of
the jurist is ‘mostly epistemic’.65 Taqlı̄d, he observes, can range from the mere reproduction
of the predecessors’ doctrines to bordering on activity associated with ijtihād. Most instances,
however, fall between these two extremes.66 It seems clear, however, that the ‘epistemic au-
thority’ of the jurists accrues to them primarily by virtue of their juristic acumen, not by any
other qualities inhering in them as members of the legal tradition. Loyalty to and defence of
school doctrine67 as well as simple recognition of established ‘practice’68 make their contribu-
tions. But it is primarily principles that lie at the core of taqlı̄d, at least in most instances, and
it is his engagement with principles that lies at the heart of the jurist’s epistemic authority.69
Of course, principles can neither speak for nor obviate themselves but must be extracted,
articulated and deployed via reasoned deliberation, especially when the jurists from whom
they are gleaned are dead and unable to confirm what is claimed in their name. To the extent,
as such, that, ‘The authority being transmitted through taqlı̄ d … is one that has at its center
the articulation of principles’,70 the jurist’s individually exercised reason remains at the heart
of his ‘epistemic authority’.71 It is difficult, over the course of his depiction, to ignore or miss
the sense in which Hallaq clearly seeks to place reason in the position of vindicating taqlı̄ d. In
effect, albeit in modified fashion, he appears to hark back to the very same point of departure
evinced by Schacht. Taqlı̄ d is now good for Hallaq for the same reason that ijtihād was good
for Schacht: it is primarily grounded in reason.
But grounding taqlı̄ d primarily in reason, not to mention autonomous reason, raises prob-
lems of its own. If authority is taqlı̄ d’s actual currency, then, as E. D. Watt observes, ‘author-
itative relationships exist between unequals’.72 Persuasion, on the other hand – seemingly the
very point of relying on rationally extracted principles or adducing reasoned arguments –
implies equality: A is equal to B and thus recognizes B’s arguments only to the extent that
they comport with reason, whose authority A essentially recognizes independent of any
reliance on B. In other words, ‘to judge [an] utterance on the merits of its content is not to
follow it as authoritative’.73 For,

once we have worked through a proof or examined the evidence for ourselves, then not
merely have we no further need of an authority as the reason for our belief; rather, it
is no longer possible to accept it on the authority of someone else, for we have become
authorities ourselves.74

But if this is actually the case, it cannot be the principles or the reasons undergirding them
that our source of authority is ultimately providing for us; for our own ability to assess these
principles and reasons suggests that we are equal to our source in this regard. In order for
our source to remain a source of authority, therefore, it must provide us with something
that we cannot provide ourselves. And it is this ability to provide this unique and heteron-
omous something that sustains the relationship of inequality between our authority-source
and ourselves. Clearly, on such a relationship, the authority of the jurists cannot be ‘mostly
epistemic’.

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We see this very presumption at play in the self-perceptions of pre-modern Muslim jurists
themselves. Al-Suyuti (d. 909/1505), for example, reports that the ‘truly knowledgeable’
(al-muhaqqiqun) among his fellow Shafiʿi masters affirmed that

they did not embrace al-Shafiʿi’s madhhab by way of taqlı̄ d (s․ārū ilā madhhab al-Shafiʿi
lā taqlı̄dan); rather, when they found his method of ijtihād and analogy to be the most
correct, while they themselves also found no alternative to engaging in ijtihād, they fol-
lowed his method (bal lammā wajadū ․tarı̄qahu fı̄ al-ijtihād wa al-qiyās asadd al-t․uruq wa lam
yakun lahum budd min al-ijtihād salakū ․tarı̄qah).75

In other words, al-Shafiʿi did not provide them with the method itself nor with the ability to
examine proofs independently. On the contrary, all of this they were capable of arriving at on
their own. What al-Shafiʿi provided, therefore, i.e. what they could only have gained from
him, was clearly something other than his facility in principled juristic reasoning.
What exactly did these ‘mujtahid’ jurists derive from their affiliation with al-Shafiʿi? Al-
Shafiʿi provided them with a basis of authority, a means of conferring credence upon their
views and signalling to others the propriety of deferring to them. But why was al-Shafiʿi,
who had been dead for centuries, able to confer this kind of authority? There seems to be
something ‘anthropological’ going on here about which I feel unqualified to speak.76 In more
general terms, however, it was precisely the fact that al-Shafiʿi died in the embrace of the aura
cast by what came to be viewed as ‘sacred history’, such that he could be seen as an extension
of the group and era that preserved and defended the universe of values, proper assumptions,
prejudices, points of departure and commitments, indeed the very Weltanschauung, set in
motion by the legacy of the Prophet. It is not simply his acumen as a jurist that is operative
here but his status as a reliable fragment of the Community’s collective memory/authority as
heir to the Prophet’s interpretive infallibility. This might be cast in even bolder relief by the
case of Ahmad b. Hanbal, who, by some early accounts, was not even considered a jurist. Yet,
he would emerge as eponym and authoritative ground of one of the permanently recognized
orthodox schools of law. Herein lies the key to uncovering and appreciating the mimetic
element in the act of following these figures. As E. D. Watt notes, speaking in the context of
ethics, ‘Perhaps goodness is more readily recognized in a good man than in a good ethical
argument’.77 Speaking in the context of Islamic law, we might say, ‘Perhaps the authority of a
juristic pronouncement is more readily recognized coming from a “good” jurist than coming
from a good juristic argument’. The Pious Ancestors (Salaf ), whom al-Shafiʿi, Ibn Hanbal,
the remaining imams and their presumed heirs came to represent, constitute the ‘good jurists’
of the Islamic legal tradition. They represent, in ways both actual and imagined, the cumu-
lative wisdom, memory, experience and presumed sound judgement of the Community,
not to mention its putative connection with the fount of authority in the Prophet himself.
In this capacity, their arguments always contain something beyond the mere substance of
their reasoned justifications. Thus, while the ‘mujtahids’ whom al-Suyuti cites as choosing
to affiliate with al-Shafiʿi may have been equal to the latter in terms of legal acumen, he was
their unequal superior in terms of authority, a fact very much grounded in his position in the
cumulative train of communal experience and presumed connection to the penumbra cast
by the Prophet. For, in this capacity, he could validate (and add assurance to) their views in
ways that they themselves could not. And this authority, this ability to validate (as we saw in
the case of Ibn Hanbal), ultimately transcended his outstanding ability to reason juristically.78
It was perhaps Schacht who prompted us to assume too complete and radical a dichot-
omy between ijtihād and taqlı̄ d, as if the two were mutually exclusive, zero-sum antagonists.

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I suspect that there were two possible sources for this attitude. The first was al-Shafiʿi him-
self, the depths of whose writings Schacht had plumbed more deeply than anyone else to
date. According to Ahmed El Shamsy, al-Shafiʿi strenuously rejected the taqlı̄d of the forma-
tive period, with a particular animus against the mimetic conformism represented by Malik’s
reliance on Medinese practice (ʿamal). For al-Shafiʿi, Malik’s approach was too opaque, too
arbitrary and subjective. Certain Prophetic or Companion reports would be accepted as
authoritative, while others were rejected or ignored, with the only criterion being their
reception or not by the Community. On this approach, ‘One could not trace the reasoning
that led to a particular ruling; one could only follow it blindly’.79 Al-Shafiʿi insisted that
such discretion be replaced with an objective standard of deliberation grounded in a formal
methodology (which in its full-blown form would become usul al-fiqh). This would level the
playing field between all jurists, since, ‘In the absence of total unanimity … an individual ju-
rist’s interpretation of the canon [would be] formally equal to any alternative interpretation,
even if the latter were accepted by all other Muslim jurists’.80 In sum, according to El Shamsy,
al-Shafiʿi called for the abandonment of taqlı̄ d in preference of ijtihād, which he defined as,
‘direct and unmediated engagement with the canonized sources of the law’.81
In this early, formative period, however, the issue was not merely one of interpretation;
the very identity of the ‘canonized sources’ themselves was still being debated, and taqlı̄d
effectively oscillated between following another’s interpretation and following another’s as-
sessment of the validity of a source. (Did the practice of Medina, for example, represent a
valid source or simply an interpretation of the Prophetic legacy?) In this regard, El Shamsy re-
ports that, despite his rejection of taqlı̄ d, al-Shafiʿi himself exercised it in relation to Ahmad
b. Hanbal, ‘by accepting the latter’s judgments regarding the authenticity of hadith reports
without examining the evidence’.82 But once the sources themselves had been ‘canonized’,
the emphasis would obviously shift from the authority of the sources to the authority of one’s
interpretation thereof.83 Here, however, even Shafiʿi jurists, despite their master’s alleged
prohibition of taqlı̄ d, increasingly came to rely on ‘precedent and collective authority as em-
bodied in the works of the school founder and his successors, rather than by the independent
exercise of ijtihād on the basis of the canonized sources’.84
This takes us to the second likely influence on Schacht. Because he identified ijtihād
with ‘independent reasoning’, Schacht may have assumed that reason in Islamic law func-
tioned (or should function) like reason in the modern West, i.e. as its own autonomous, self-­
authenticating authority. On this understanding, taqlı̄ d could only be seen as a drag on ijtihād
if not a direct contradiction of it. But reason could not function in this way in Islamic law; it
could not authenticate itself independently, especially not against the collective authority of
the historical Community or Salaf (again a diachronically evolving construct in terms of who
actually constitutes it). On this understanding, taqlı̄ d might be more accurately seen not as a
contradiction of ijtihād but as a necessary complement to it, a supplier of the kind of validation that
reason alone could not (or could rarely) confer upon any legal interpretation. Ijtihād, in other
words, could rarely function as an entirely independent enterprise but would almost always
require the kind of validation lent to it by taqlı̄d. In a real sense, therefore, most instances of
purported ijtihād would almost invariably amount to a hybrid exercise of ‘ijtiqlı̄ d’.85
We see an outstanding instance of this ‘ijtiqlı̄d’ in none other than al-Suyuti, who perhaps
more forcefully than any other jurist claimed the propriety of ijtihād. In al-H ․ āwı̄ li-l-Fatāwı̄,
al-Suyuti is asked a question about whether the fur of dead squirrels and other animals is
rendered ritually pure by means of tanning. The questioner explicitly states that he or she is
not asking about the going opinion in the Shafiʿi school but ‘about what is dictated by the
scriptural proofs and their sound investigation by means of ijtihād’ (ʿammā yaqtad ․ı̄ hi al-dalı̄l

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wa-l-naz ․ar min ․haythu al-ijtihād).86 The questioner goes on to insist that the answer be based
strictly on ijtihād and reflect the view of one entitled to express his independent conclusions
(ʿalā ․tarı̄qat al-ijtihād wa-as․․hāb al-ikhtiyārāt).87 Al-Suyuti’s response is rather lengthy, going on
for several pages, and much of this consists of his individual engagement of the sources. But
this is not devoid of the mention of past scholars from both outside and within the Shafiʿi
school, the latter tendency appearing to increase as he moves towards his conclusion. And
yet, despite this generous citation of past scholars, al-Suyuti concludes his fatwā with the
following words: ‘This is what our investigation and ijtihād have led us to regarding this
question’ (hādhā mā addānā ilayhi al-naz ․ar wa al-ijtihād fı̄ hadhihi al-masʾalah).88 Clearly, even
al-Suyuti saw no absolute contradiction between independent investigation of the sources
and the reinforcement of one’s conclusions via the authority conferred by past jurists. More
important, certainly to his mind, the authority of these past jurists went well beyond being
‘mostly epistemic’.

Conclusion
Even when Muslim jurists exercised their independent reasoning in the form of ijtihād as
unmediated interpretation of the sources of Islamic law, their aim was not simply to produce
a novel or innovative opinion for the sake of novelty or innovation; their ultimate aim was,
rather, a skilful, pragmatic yet principled articulation of the law that could be corporately
recognized and embraced as falling within the sanctum of sharı̄ʿa. As such, ‘creativity’, ‘in-
novativeness’ or ‘originality’ could not stand alone as self-validating criteria in Islamic law as
they might as reflections of the proper use of autonomous reason in the post-Enlightenment
West. The approach to Islamic law that privileges originality, creativity and the like reflects
not simply the tendency to import non-legal criteria into the study of law but the superim-
position of a very particular understanding and valuation of reason itself, one that sees the
latter as entirely self-authenticating and, in turn, pits it against tradition. Both Schacht and
Hallaq (in his earlier writings) reflect this conceptualization of reason as the prism through
which ijtihād (and taqlı̄ d) is understood and valuated. In his later writings, meanwhile, Hallaq
appears not so much to abandones this conceptualization or valuation of reason as he does to
transfer it onto taqlı̄d. This, however, obfuscates the role of mimesis as the ultimate ground
and conduit of authority that go to the core of this Islamic legal institution.
It was reportedly Kant who elevated reason as episteme, which is grounded in universal
principles, over the Aristotelian ideal of phronesis, or practical reason, which reclines upon the
‘ethos, the cultural and historical conditions current in the community’.89 Paul Ricoeur char-
acterized Kant’s notion as ‘one of the most dangerous ideas’90 in early modern history. Dan-
gerous or not, applying such a conception of reason to Islamic law can only distort the latter.
For it can hardly accommodate the role and value of mimesis, as the medium through which
the ‘ethos’ of the Muslim community in history, as heir to the Prophetic legacy, is preserved,
deployed as authority and then augmented and perpetuated as such. Mimesis functions as a
central element in Islamic law, not instead of but alongside independent reasoning – or perhaps
we should say ‘encumbered reasoning’ – even as the modern West may view any attachment
to the past as a contradiction of reason tout court. Taqlı̄ d in this capacity, far from contradict-
ing independent reasoning, might be seen as functioning, at least for pre-modern jurists, as
that which ultimately kept Islamic law ‘Islamic’ in the face of a potentially unending stream
of originality and innovativeness on the part of individual jurists. Meanwhile, the authority
of the jurists themselves was far more ‘phronetic’ (in the above-cited sense attributed to
­A ristotle) than it was epistemic (in the sense attributed to Kant).

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I would like to end with a story, admittedly apocryphal, that I once heard from a teacher
of mine. My hope is that it will highlight a dimension of mimesis as part of the DNA or
‘super-context’ of Islamic law that is no less present and operative for all the difficulty one
encounters in trying to capture it in words. The story revolves around the celebrated faylasūf
Ibn Sina (d. 429/1037). A student of his once asked him why, as the greatest philosopher in the
world, he didn’t simply start a new religion. Ibn Sina casually dismissed the lad with a mildly
impatient, ‘You don’t understand’. ‘What do you mean I don’t understand?’ protested the stu-
dent. ‘Given your stature and acumen, people would flock to you.’ Ibn Sina simply repeated his
response: ‘You don’t understand.’ The next morning, the two arose and entered the courtyard
to perform ablutions for the morning prayer. Noticing that a thin layer of ice had formed over
the water trough, Ibn Sina advised the youth not to use this water but to use earth (tayammum)
instead. While acknowledging his master’s kind consideration, the boy rejected this advice and
summarily moved to crack the ice and perform ablution. At this Ibn Sina exclaimed, ‘Maybe
now you can understand. He’s been dead for over four hundred years, and you would still prefer
to do what you think would connect you to him rather than listen to me’.91

Notes
1 ‘Philosophers of the late eighteenth century had one very good reason for questioning the authority
of reason: it seemed as if modern science and philosophy were undermining morality, religion, and
the state’. See F. C. Beiser, The Fate of Reason: German Philosophy from Kant to Fichte (Cambridge,
MA: Harvard University Press, 1987), 1. Further: ‘[T]heir [the philosophers’] faith in reason was
largely based upon the assumption that reason could justify morality, religion, and the state. Never
would they have dared to trust reason had they imagined that it would destroy these things’.
Ibid., 2.
2 See R. H. Popkin, The History of Skepticism from Erasmus to Descartes (Assen, The Netherlands:
­Koninklijke Van Gorcum & Comp, 1960), 203.
3 On Hamann, see Isaiah Berlin’s excellent work, The Magus of the North (New York: Farrar, Straus
and Giroux, 1993).
4 On ‘depth’ and ‘profundity’, see I. Berlin, The Roots of Romanticism, ed. H. Hardy (Princeton, NJ:
Princeton University Press, 1999), 118–19: ‘According to the Romantics – and this is one of their
principal contributions to understanding in general – what I mean by depth, although they do not
discuss it under that name, is inexhaustibility, unembraceability … [I]n the case of works which are
profound the more I say the more remains to be said. There is no doubt that, although I attempt to
describe what their profundity consists in, as soon as I speak it becomes quite clear that, no matter
how long I speak, new chasms open. No matter what I say I will always have to leave three dots at
the end.’
5 This was in stark contrast to the pre-modern Muslim recognition of 1) reason, 2) the senses, and
3) reports of the truthful (khabar al-s․ādiq) as the bases of knowledge. Interestingly, despite his rep-
utation as an anti-Sufi, Ibn Taymiyya would add ‘spiritual / supersensory epiphany’ or ‘unveiling’
(kashf ) to this list of valid means of knowledge. See, e.g., his Majmūʿat al-Rasāʾil wa-l-Masāʾil, 2 vols,
ed. M. R. Rid․ā (Beirut: Dār al-Kutub al-ʿIlmiya, 1421/2001), 2: 167.
6 Stephen Toulmin, Cosmopolis: The Hidden Agenda of Modernity (Chicago: Chicago University Press,
1990), 20. See also C. Shannon, Conspicuous Criticism: Tradition, The Individual, and Culture in Modern
American Social Thought (Scranton, PA: University of Scranton Press, 2006), 194: ‘In rejecting the
priority of the moral community as a guarantor of rationality, the modern turn to epistemology has
fostered a social ideal of an isolated individual consciousness as existing somehow prior to or apart
from a community of inquiry.’
7 Cited in E. D. Watt, Authority (New York: St Martin’s Press, 1982), 47.
8 Watt, Authority, 47.
9 Cited in T. Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: S­ tanford
University Press, 2003), 52.
10 Asad, Formations, 52.
11 Watt, Authority, 47.

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12 Toulmin, Cosmopolis, x.
13 There is an impetus, in other words, to seek ‘meaning’ in all acts and doctrines, on the assumption
that the only activities that can be valuable are those to which we can impute some rationally veri-
fiable ‘meaning’. No activity can be valuable in and of itself. Nor can any doctrine (e.g. that God has
a face or a hand) have any value beyond its rationally explicable meaning. But ‘meaning’ may not be
the only possible validator of actions or beliefs. ‘The world of friendship – of drinking and talking,
working and playing, loving and hating – may bring happiness, or it may not; in neither case does it
bring “meaning.” It is no less important for being, in a sense, meaningless.’ See ­Shannon, Conspic-
uous Criticism, 202–3. As for such doctrines as God’s face or hand, their value might lie not in their
‘meaning’ per se but in their profundity and ability to intimate the ineffable element of religion. For
more on this point, see my Islam and the Problem of Black Suffering (New York: Oxford University
Press, 2012), 130.
14 Berlin, Roots, 81–2.
15 This is most glaringly reflected in scholarly investigations into the role of reason in Islam, where
the tendency is to superimpose Western Enlightenment reason onto Islam and then interpret-
cum-­evaluate the latter through this prism. Thus, Muʿtazilı̄s, e.g. are reputedly progressive, as the
most committed to reason, despite the clear social embeddedness of the reason they invoke and
the more ‘orthodox’ Ashʿari criticism of them for not being a priori enough in their reasoning.
Meanwhile, Ibn H ․ anbal and the Traditionalists are at times cast as not using reason at all, despite
.
such displays as Ibn H ․ anbal’s in al-Radd ʿalā al-Zanadiqa wa-l-Jahmiyya, not to mention the later Ibn
Taymiyya. In law, the partisans of raʾy (reason) are contrasted with the partisans of hadith (tradi-
tion), and the H ․ anafı̄s are cast as the vanguard of the partisans of raʾy. But the early H ․ anafı̄s were
actually more tied to textual sources of hadith than were the ‘traditionalist’ Medinese, who also
used raʾy quite unsparingly. Yet, this questionable opposition has given rise to such myths as the
‘Great Synthesis’ between Traditionalism and Rationalism, which allegedly flowed into Islamic
law. Clearly, it is time to excavate Islam’s own understanding(s) and valuation(s) of reason from
Muslim tradition itself and then to read that tradition through the prism of these understandings
and valuations.
16 The only scholar I know who has explicitly noted the critical role of mimesis in the Islamic legal
tradition is A. El Shamsy. According to him, the pre-Shāfiʿı̄ tendency was to rely on the com-
munity as custodian of ‘an organic stream of normative tradition flowing continuously from the
prophetic time to the present’. This mimesis was supremely valued in Medina, less so in Iraq.
According to El Shamsy, it was the contribution of al-Shāfiʿı̄ to reject reliance on this essentially
uncertain repository of communal wisdom and practice in favour of formally constituted traditions
from the Prophet directly. At al-Shāfiʿı̄’s hands, ‘The communal activity of mimesis gave way to
the individual task of hermeneutics’. See A. El Shamsy, The Canonization of Islamic Law: A Social
and Intellectual History (Cambridge: Cambridge University Press, 2013), 5 and esp. 71 for the above
quotes. El Shamsy also notes that al-Shāfiʿı̄’s followers would eventually resume the practice of
taqlı̄d and hence mimesis, albeit with a modified thrust and mission.
17 J. Schacht, An Introduction to Islamic Law (New York: Oxford University Press, 1964), 70–1. Schacht
was not the first to affirm the closing of the gate of the ijtihād. For an earlier assertion, see H. A. R.
Gibb, Mohammedanism (London: Oxford University Press, 1949), 97–8.
18 One might ask, for example, how one could explain, apply and interpret a doctrine without ques-
tioning such things as its meaning or scope. Indeed, what is meant by ‘doctrine’, given that the
schools routinely consisted of several, competing views? And does the acceptance of ‘the doctrine
as it had been laid down once and for all’ suggest that, outside analogy, quotidian developments
beyond the pale of this ‘doctrine’ were to remain unaddressed? Did the jurists look at the doctrines
of the schools as the early Z ․ āhirı̄s looked at scripture? On the Zahiri attitude, see A. K. Reinhart,
Before Revelation: The Boundaries of Muslim Moral Thought (New York: State University of New York
Press, 1995), 16: ‘Revelation’s writ ran to what it explicitly addressed and no more … it applie[d]
strictly, but it applied [in relative terms] to very little’. Finally, without accounting for some pal-
pable change in the nature and function of the institutions that produced those deemed capable of
‘independent reasoning’ (or, perhaps, some radical disruption in the gene pool or a seismic shift
in vogue), how are we to explain the widespread acceptance that no one was any longer capable of
acquiring such qualifications?
19 ‘The Schools of Law and Later Developments in Jurisprudence’, Law in the Middle East, ed.
M. ­K hadduri and H. Leibesny (Washington, DC: The Middle East Institute, 1955), 75.

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20 ‘Classicisme, traditionalism et ankylose dans la loi religieuse de l’Islam’, Classicisme et decline culturel
dans l’histoire de l’Islam, ed. R. Brunschvig and G. E. von Grunebaum (Paris: G. P. Maisonneuve et
Larose, 1977), 11.
21 Schacht, Introduction, 211.
22 ‘Presentation of Award to Second Recipient, Joseph Schacht’, Theology and Law in Islam (Wies-
baden: Otto Harrasowitz, 1971), 1.
23 Other renderings of taqlı̄d included: ‘blind following’ (N. J. Coulson, A History of Islamic Law
­( Edinburgh: Edinburgh University Press, 1964)); ‘servile imitation’ (G. Makdisi, The Rise of Col-
leges: Institutions of Learning in Islam and the West (Edinburgh: Edinburgh University Press, 1981),
199); ‘unreasoning acceptance’ (A. K. Lambton, State and Government in Medieval Islam (Oxford:
Oxford University Press, 1981), 12).
24 Of course, the most important and influential of these was ‘Was the Gate of Ijtihad Closed’, Inter-
national Journal of Middle East Studies 16:1 (1984): 3–41. Among Hallaq’s arguments was that ijtihād
could not end, as it ‘constituted the only means by which jurists were able to reach the judicial judg-
ments decreed by God’ (p. 4); ‘the demands of legal theory were relatively easy to meet and they
facilitated rather than hindered the activity of ijtihad’ (p. 4); and ‘ijtihad was not only exercised
in reality, but … all groups and individuals who opposed it were excluded from Sunnism’ (p. 4).
Incidentally, we might note the view of Ibn ʿAbd al-Shakur that the debate around ijtihād applied
only to the period before the appearance of the signs of the end of time (ashrāt․ al-sāʿa). After that, for
a period of indeterminate duration, the disappearance of mujtahids was a point of unanimous con-
sensus (mujmaʿ alayh). See Muh․ ibb al-Dı̄n Ibn ʿAbd al-Shakūr, Musallam al-Thubūt, 2 vols (printed
beneath al-Ghazali’s al-Mustasfā) (Bulaq: al-Mat․baʿa al-Amiriyya, 1322/1904), 2:399.
25 Sherman Jackson, ‘In Defense of Two-Tiered Orthodoxy: A Study of Shihāb al-Dı̄n al-Qarāfı̄’s
Kitāb al-Ih․ kām fı̄ Tamyı̄z al-Fatāwā ʿan al-Ah
․ kām wa Tas․arrufāt al-Qād․ ı̄ wa al-Imām’ (PhD dis-
sertation, University of Pennsylvania, 1991).
26 See Jackson, ‘Defense’, 5–15 and passim.
27 Sherman Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dı̄n al-Qarāfı̄
(Leiden: Brill, 1996).
28 Jackson, ‘Defense’, 13, 131–5.
29 Earlier, W. M. Watt had put forth a similar view, without fleshing out its full implications. See his
Islamic Political Thought (Edinburgh: Edinburgh University Press, 1968), 73–4. Later, M. Fadel quite
convincingly related the adoption or perhaps continuation of taqlı̄d to concerns for the ‘rule of law’
and the ‘rule of recognition’. See his ‘The Social Logic of Taqlı̄d and the Rise of the Mukhtas․ar’,
Islamic Law and Society, 3:2 (1996): 193–233.
30 By ‘interpretive legal authority’ I mean the authority that confers legitimacy upon interpretations
of the law in contradistinction to the authority to promulgate the law initially or to implement it
once promulgated and interpreted. Meanwhile, my work on al-Qarāfı̄ alerted me to the dangers of
an over-inclusive understanding of the scope of this interpretive legal authority, namely the risk of
jurists taking it as a means to back demonstrably non-legal views. This prompted al-Qarāfı̄ to insist
on an important distinction between proper and improper taqlı̄d. See n. 38 below.
31 See Islamic Law and the State, xxiv, xxv, xxxi, xxx–xxxi, xxxiii and esp. 80–3.
32 ‘Taqlı̄d, Legal Scaffolding and the Scope of Legal Injunctions in Post-Formative Theory: Mut․laq
and ʿĀmm in the Jurisprudence of Shihāb al-Dı̄n al-Qarāfı̄’, Islamic Law and Society, 3:2 (1996):
165–92.
33 Hallaq would later insist that I had inflated his claim, that though he argued for the continued prac-
tice of ijtihād he never claimed that it became or remained the dominant trend. See Wael Hallaq, An
Introduction to Islamic Law (Cambridge: Cambridge University Press, 2009), 131. To the extent
that my arguments implied this inflated reading of him, I was mistaken. Mea culpa.
34 In his description of ijtihād, al-Zarkashı̄ asserts that, while memorizing rulings and seeking to
extract them from the texts of law manuals may be ‘called’ ijtihād, this is only linguistically speak-
ing, not according to the technical language of law ( fa-huwa lughatan lā is․․tlāh ․an). See Badr al-Dı̄n
Muh․ ammad b. Bahādir b. ʿAbdullah al-Zarkashı̄, Al-Bah․r al-Muh․ı̄t․ fi Us․ūl al-Fiqh, 2nd edn, 6 vols,
ed. A. al-ʿAni, ʿA. S. al-Ashqar and ʿA. Abu Ghudda (Kuwait: Wizārat al-Awqāf wa-l-Shuʾun
al-Islamiyya, 1413/1992), 6:197. Similarly, in his study (and translation) of a late pre-modern anon-
ymous manuscript on taqlı̄d, Lutz Wiederhold cites his source as holding that one who has not
attained the level of being able to extract all rulings directly from the sources (mujtahid mut․laq) must
resort to taqlı̄d. In other words, the mujtahid fi al-madhhab is a muqallid. See L. Wiederhold, ‘Legal

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Doctrines in Conflict: The Relevance of Madhhab Boundaries to Legal Reasoning in the Light of
an Unpublished Treatise on Taqlı̄d and Ijtihād’, Islamic Law and Society 3:2 (1996), 270 (290 for the
Arabic, where the author mentions taqlı̄d explicitly).
35 See ‘Taqlı̄d’, 169–73.
36 Hallaq, ‘Introduction’, 133.
37 Ibid. (emphasis in original).
38 A fair amount of creativeness and innovation would emerge, however, out of the judicious distinc-
tion maintained between questions of law and questions of fact. It is primarily on this basis that
al-Qarāfı̄ makes an explicit distinction between proper and improper taqlı̄d. See my Islamic Law and
the State, 123–39. In such light, I can hardly concur with the view of A. Nakissa: ‘Research was not
seen as an important goal. Muslim scholars believed that just as there is no progress or creativity
in grammar, there is none in law’. See A. Nakissa, ‘An Epistemic Shift in Islamic Law’, Islamic Law
and Society 21 (2014): 212. For an interesting example of research (and creativity) on the part of
pre-modern jurists, see al-Qarāfı̄, al-Furūq, 4 vols (Beirut: ʿAlam al-Kitāb, n.d.), 1:218, where he
speaks of observing the actual behaviour of hashish smokers at their gatherings, as a propaedeutic
to giving his opinion on the legal status of smoking hashish.
39 See ‘Taqlı̄d’, 167 n. 5. In response, Hallaq almost appears to confuse matters intentionally. Imme-
diately after citing my view he writes: ‘But Calder, in the article in this issue, and in his earlier
study of Sarakhsi, has dealt a coup de grȃ ce to any claim that ijtihād – in the sense of “clear and open
advocacy of views – established in the schools of the mujtahid-Imams” ceased to dominate after the
sixth/twelfth century on’. ‘Introduction’, 132. Of course, there is a clear and obvious difference
between ‘clear and open advocacy of views’ and limiting the application of the tools of usul al-fiqh
to scripture.
40 In other words, on settled issues, one may accept, for example, the going opinion of a madhhab as
‘the law’. In this capacity, the madhhab functions as a legal authority. When it comes unprecedented
issues, however, the madhhab functions more as an interpretive authority to back or authenticate
novel interpretations.
41 At ‘Taqlı̄d’, 171–2, for example, I wrote, as a corrective to the view of both Hallaq and Schacht:
‘[T]he tendency to view taqlı̄d in negative terms appears to turn on the assumption that the content
of what was borrowed from the past is the most important and operative element in the process. If,
however, one accepts the idea that it is essentially not substance but authority that validates legal
interpretations, one could more easily entertain the possibility that it was essentially the search for
established sources of authority that spawned the whole movement of looking back in the first place’
(emphasis in original). This same view was repeated in Islamic Law and the State.
42 Jackson, Islamic Law and the State, 80.
43 Hallaq, ‘Review of Jackson’, 129.
4 4 Jackson, Islamic Law and the State, 80–81.
45 This was actually on two levels. First, as taqlı̄d trafficked in authority not substance, it did not, in
and of itself, pre-empt the production of substantive innovations, even if it did complicate the pro-
cess of validating these. Second, al-Qarafi draws a clear distinction between law and fact and argues
that taqlı̄d is valid only on questions of law. On questions of fact, therefore, one could only rely on
independent reasoning. On this point, see Islamic Law and the State, 127ff.
46 Jackson, Islamic Law and the State, 101.
47 Hallaq, ’Review of Jackson’, 129.
48 Ibid., 130.
49 Hallaq, ‘Introduction’, 131. Hallaq notes here that he dealt more directly with taqlı̄d in a separate
article, ‘“Ifta” and Ijtihad in Sunni Legal Theory: A Developmental Account’, Islamic Legal Inter-
pretation, ed. M. K. Masud, B. Messick and D. S. Powers (Cambridge, MA: Harvard University
Press, 1996), 33–43. While this article addresses the question of mujtahids sitting as muftı̄s, it does
not actually deal with the substantive definition, nature and function of taqlı̄d. On p. 34, he does
make a passing reference to taqlı̄d as ‘following the authority and doctrines of others’ in the context
of discussing the position of Abu al-Husayn al-Basri (d. 436/1044) who, like Hallaq at the time,
apparently sees taqlı̄d as negative. At any rate, this connection between taqlı̄d and authority plays no
role whatever in Hallaq’s analysis until, as we shall see, it appears abruptly, inexplicably and entirely
as his singular discovery in 2001.
50 W. B. Hallaq, Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University
Press, 2001), ix.

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51 Ibid., ix.
52 Ibid., 103.
53 Ibid., 88.
54 Ibid., 103.
55 Ibid., 119.
56 Ibid., 120.
57 Ibid., 119.
58 Ibid., 103.
59 Ibid., 103.
60 Ibid., 109.
61 Hallaq, ‘Review of Jackson’, 130.
62 Hallaq, Authority, 43–54.
63 Jackson is mentioned in a footnote on page 83, where Hallaq registers his disagreement with him
on the meaning of a passage from Ibn Abı̄ al-Damm: ‘It will be noted that on the interpretation of
this passage, I disagree with Sherman Jackson’. Otherwise, there is no attempt in Authority, Conti-
nuity and Change to reconcile his new view with such earlier statements as, ‘By building on Qarāfı̄’s
idiosyncratic approach, Jackson has formed a distorted view of a central problem in Islamic legal
history, namely, ijtihād and taqlı̄d’. ‘Review of Jackson’, 129.
64 Later, however, one gets the impression that ijtihād has re-acquired its centrality in Hallaq’s per-
ception of Islamic law. For example, he writes in The Impossible State: Islam, Politics and Modernity’s
Moral Predicament (New York: Columbia University Press, 2013), 58: ‘In the majority, therefore, the
laws, rules and regulations of the Sharı̄ʿa are largely the result of ijtihād, a domain of interpretation
that rests on probability. Every accomplished jurist could exercise ijtihād, and two or more could
arrive at different conclusions on the same problem with no one knowing but God which mujtahid
(i.e. jurist conducting ijtihād) had arrived at the truth.’
65 Hallaq, Authority, ix. This perspective has continued into Hallaq’s more recent scholarship. See,
e.g., Sharı̄ʿa: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 67,
70 and passim. Indeed, his endorsement of the notion of Muslim jurists’ being possessed of ‘epis-
temic authority’ seems to have inspired a younger generation of scholars and students to invoke the
construct without pause or question.
66 Hallaq, Authority, 88.
67 Ibid., 103, 113.
68 Ibid., 111.
69 On the centrality of principles to taqlı̄d, see ibid., 90, 92, 94, 95, 96, 98, 99 and passim.
70 Ibid., 98.
71 In keeping with his commitment to circumspection, Hallaq does note: ‘True, the majority of the
jurists did not occupy themselves with the matter in which these principles were derived, although
it remains true that many of those evolved with time and cannot be traced to a direct source or a
conscious act of ijtihād. But the great majority of them, as is attested in the pages of hundreds of
treatises written on the subject, understood the significance of the principles and knew how to
apply them. For they were muqallids, and this is precisely what taqlı̄d meant’. Ibid., 98–9. We will
return to this point shortly.
72 E. D. Watt, Authority (New York: St Martin’s Press, 1982), 27. We should note the distinction
between the Latin auctoritas (from which our modern ‘authority’ derives) and potestas. Whereas the
holder of potestas is obeyed, the holder of auctoritas is simply deferred to. Obviously, Muslim jurists
qua jurists are only assumed to have auctoritas. See Watt, Authority, 11–18.
73 Ibid., 39.
74 Ibid., 47.
75 Al-Suyuti, Al-Radd ʿalā man akhlada ilā-l-ard ․ wa-jahila anna al-ijtihād fi kull ʿAs․rin fard․ (Cairo: Mak-
tabat al-Thaqāfa al-Diniyya, n.d.), 40. Hallaq cites an identical claim by the Shafiʿi jurist Abu Is-
haq al-Isfaraʾini (d. 418/1027). See Hallaq, Authority, 9. Al-Suyūt․ı̄, meanwhile, cites several other
scholars from other schools who express the same idea. See also Hallaq, ‘Gatae’, 10–11, where he
describes the practice of jurists subsuming their ‘highly original views’ under pre-existing author-
ities. At that time, however, Hallaq did not appear to see this as constituting taqlı̄d. Instead, he
writes, ‘the standard doctrine of Sunni Islam’ was that ‘taqlid is to be used only by the commoner
(ʿāmmiyy) and by those for whom the exercise of ijtihad is impossible’. Hallaq, ‘Gate’, 12.
76 E. D. Watt points out, for example, that there is a mutually beneficial dialectical relationship be-
tween the authority figure and those who adopt him or her as an authority. As those who adopt the

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authority figure benefit by placing the latter’s authority behind their cause, the authority figure’s
authority is also increased and solidified with each act of being invoked as an authority, which in
turn increases his or her utility to those who take or follow him or her as an authority. See Watt,
Authority, 11–12.
77 Ibid., 57.
78 His excesses aside, one is reminded in this regard of the early American political thinker, John Dickin-
son: ‘Experience must be our only guide. Reason may mislead us. It was not Reason that discovered
the singular and admirable mechanism of the British Constitution. It was not Reason that discovered
or even could have discovered the odd and in the eyes of those who are governed by reason, the ab-
surd mode of trial by jury. Accidents probably produced these discoveries, and experience has given
sanction to them. This then was our guide’. See M. E. Bradford, A Better Guide than Reason (New
Brunswick, NJ: Transaction Publishers, 2014), 93. I should note that I  would put much distance
between the Islamic legal tradition and some of the conservative views expressed in this book.
79 See A. El Shamsy, ‘Rethinking Taqlı̄d in the Early Shafiʿi School’, Journal of the American Oriental
Society 128:1 (2008): 4. Of course, a supporter of Malik could argue that it was actually al-Shafiʿi
who demanded ‘blind’ following of these reports with no criterion other than their formal va-
lidity as arbiter. Whereas al-Shafiʿi proposed a ‘scriptural empiricism’ of sorts, Malik recognized
­extra-scriptural sources and criteria to which one could appeal one’s case.
80 Ibid., 7.
81 Ibid., 16.
82 Ibid., 8. Hallaq observes, however, that al-Shāfiʿı̄ often performed taqlı̄d of earlier jurists on ques-
tions of substance and not merely the authority of presumptive sources. See Watt, Authority, 38.
83 This oscillation between the identity of the source-canon and the identity of a proper interpre-
tation thereof seems to be reflected in some of the jurists’ statements on ijtihād and taqlı̄d cited by
al-Suyūt․ı̄ in al-Radd. One also wonders how much the consistently negative animus towards taqlı̄d
in the rhetoric of mainstream Sunnis owes to confrontations in the formative period with Shiites
and the unassailable authority they attribute to the Imām. See, e.g., al-Ghazālı̄, Al-Mustasfā min
ʿIlm al-Usul, 2 vols (Bulāq: Mat․baʿa al-Amiriyya, 1322/1904), 2: 387, where, in rejecting taqlı̄d, he
mentions that, ‘the ․h ashwı̄yah (a catch-all for fidiestic traditionalists) and the taʿlı̄mı̄yah (a reference
to Ismāʿı̄ lı̄ Shiites) believe taqlı̄d to be the way to knowledge of the truth’.
84 El Shamsy, ‘Rethinking’, 13–14.
85 In his later work, Professor Hallaq expresses what appears, prima facie, to be an identical con-
clusion: ‘[I]f ijtihād has a positive image, it is ultimately because of the fact that it is backed up by
taqlı̄d. To put it more precisely, except for the category (or type) of the imam, ijtihād would be an
undesirable practice if it were not for taqlı̄d’. See Hallaq, Authority, 21. My argument, however,
is not that ijtihād would be undesirable but that it would be ineffective without taqlı̄d. Moreover,
I question Professor Hallaq’s tendency to downplay the connection between authority and mimesis
by tying juristic authority so tightly to juristic reasoning. For example, speaking of al-Shāfiʿı̄ he
writes, ‘In order to become the final authority in his school, Shafiʿi was required to shed the image
of a muqallid’. Auth․ority, 39. On al-Shāfiʿı̄’s display of juristic reasoning, Hallaq recognizes him as
a fully-fledged jurist. Malik, by contrast, is deemed to be merely ‘a jurist of a sort’. Authority, 40.
But Mālik (like Ibn Hanbal) was certainly no less a juristic authority than was al-Shāfiʿı̄; and it was
precisely his ‘taqlı̄dic’ (read mimetic) connection to the normativeness presumed to inhere in the
early community that bolstered his status in this regard. None of this is to deny a perduring tension
between ijtihād and taqlı̄d over the centuries. For example, as El Shamsy notes, ‘Whereas Shāfiʿı̄
scholars before him had accepted the existence of two parallel but incommensurate discourses – the
prohibition of taqlı̄d in usul and the authority of precedent in fiqh– Ibn S․alāh [d. 642/1244] com-
mitted himself to the binary and exclusive opposition of ijtihād and taqlı̄d’. See ‘Rethinking’, 21.
86 Jalāl al-Dı̄n al-Suyūt․i, Al-Hāwı̄ li-l-Fatāwı̄ fı̄ al-Fiqh wa-ʿUlūm al-Tafsı̄r wa-l-H
․ adı̄th wa-l-Nah․w wa-l-
Iʿrab wa-Saʾir al-Funun, 2 vols (Beirut: Dar al-Kutub al-ʿIlmiyya, 1408/1988), 1:11.
87 Al-Suyuti, Al-Hawi li-l-Fatawi fi al-Fiqh wa-ʿUlum al-Tafsir wa-l-Hadith wa-l-Nahw wa-l-Iʿrab wa-Saʾir
al-Funun, (Beirut: Dar al-Kutub al-ʿIlmiyya, 1408/1988), 1: 11–12.
88 Ibid., 1: 23.
89 C. Mouffe, The Return of the Political (New York: Verso, 1993), 13–14.
90 Mouffe, Return, 14.
91 This mimetic spirit (in general and not with specific reference to Islamic law) is described and noted
for its significance by J. Fueck in his classic article, ‘The Role of Traditionalism in Islam’, in Studies
on Islam, trans. and ed. M. L. Swartz (New York: Oxford University Press, 1981), 99–122.

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Selected bibliography and further reading

Asad, Talal. Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford University
Press, 2003).
Coulson, Noel J. A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964).
Fueck J. ‘The Role of Traditionalism in Islam’. In Studies on Islam, trans. and ed. M. L. Swartz (New
York: Oxford University Press, 1981).
Hallaq, Wael B. ‘Was the Gate of Ijtihad Closed?’. International Journal of Middle East Studies, 16:1 (1984):
3–41.
Hallaq, Wael B. Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University
Press, 2001).
Jackson, Sherman. ‘In Defense of Two-Tiered Orthodoxy: A Study of Shihāb al-Dı̄n al-Qarāfı̄’s Kitāb
al-Ih․ kām fı̄ Tamyı̄z al-Fatāwā ʿan al-Ah․ kām wa Tas․arrufāt al-Qād․ ı̄ wa al-Imām’ (PhD disserta-
tion, University of Pennsylvania, 1991).
Jackson, Sherman. Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dı̄n al-Qarāfı̄
(Leiden: Brill, 1996).
Jackson, Sherman. Islam and the Problem of Black Suffering (New York: Oxford University Press, 2012).
Lambton, Ann K. State and Government in Medieval Islam (Oxford: Oxford University Press, 1981).
Makdisi, George. The Rise of Colleges: Institutions of Learning in Islam and the West (Edinburgh: E­ dinburgh
University Press, 1981).
Masud, M. K., B. Messick and D. S. Powers. Islamic Legal Interpretation (Cambridge, MA: Harvard
University Press, 1996).
Shamsy, Ahmed el. ‘Rethinking Taqlı̄d in the Early Shafiʿi School’. Journal of the American Oriental
Society 128:1 (2008).
Shamsy, Ahmed el-. The Canonization of Islamic Law: A Social and Intellectual History (Cambridge:
­Cambridge University Press, 2013).
Suyuti, Jalal al-Din al-. Al-Hawi li-l-Fatawi fi al-Fiqh wa-ʿUlum al-Tafsir wa-l-Hadith wa-l-Nahw wa-l-Iʿrab
wa-Saʾir al-Funun, 2 vols (Beirut: Dar al-Kutub al-ʿIlmiyya, 1408/1988).
Suyuti, Jalal al-Din al-. Al-Radd ʿala man Akhlada ila al-Ard wa-Jahila anna al-Ijtihād fi Kull ʿAsrin Fard
(Cairo: Maktabat al-Thaqafa al-Diniyya, n.d.).

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