The Crisis in Fiqh and the Methodology of ljtihad

Abstract

The year 310 AH (922 AC), the year in which the last of the acknowledgedmujtahidun died, may be marked as the beginning of the crisis of fiqh thatcontinues even to this day. At that time Islamic fiqh took a very serious turnand, near the end of the fourth hijri century, its most negative effects beganto be apparent. It was then that the thmkmg of scholars was seriously influencedby the apprehension that certain rulers, through their citing permission obtainedas the result of the misuse of fiqh, were exploiting the things held dear bythe ummah.Thus it was out of fear that the idea of closing the door of ijtihad wasborn. This essentially defensive notion was accomplished by stipulations tothe effect that recourse might only be had to the ijtihad made by the scholarsof the earliest generations, that no changes could be made to the ijtihadperformed by them, and that any opinion that did not conform to their opinionsshould be rejected.In this way, the sun set on true ijtihad, and in its place there came meretaqlid, which allowed the state of legal and intellectual lassitude to becomewidespread. Moreover, the ties of the ummah to the two sources of legislation,the Qur'an and the Sunnah, and to the other sources weakened and then fellaway entirely. Finally, fiqhi studies were confined to a few specific textbooks,commentaries on those textbooks, commentaries on the commentaries, andannotations on the commentaries on the commentaries.Let us see how al Ghazzali (505 AH/1111 AC) described the situation,and how his explanation included mention ofthe most important developmentsto take place in Shari‘ah studies in general and in fiqh in particular. He wrote:You must know that the office of khliafah after the Prophet ofAllah, upon him be peace, was assumed by the al khulafa’ alrashidun, who were imams and Shari’ah scholars in their awn right.Moreover, they were active in giving futiiwii and making legaljudgments. Therefore, only rarely if ever did they need to seekthe opinions of the fuqaha’. The result of this was that the fuqaha’immersed themselves in knowledge of the next world and shunnedall else. Thus, they were known for their refusals to give fatawaand legal advice on issues of worldly import, perferring insteadto devote all of their deductive abilities to the worship of AllahMost High.But when, soon after the deaths of the al khulafa' al rashidun,the office of khalifah passed into the hands of those unqualifiedto lead the ummah and unlearned in matters of fiqh and fatwa,it became necessary to consult the fuqaha’ and to seek their advicein nearly everything. At that time, there still remained of thesuccessor generation (the Tabi’un) those who continued in the sameway as before, practicing Islam in complete purity, and followingthe example of the most learned and devout from their predecessors.Thus, if they were sought out (by those in power who would askthem questions), they would flee or otherwise evade them.The result of this attitude was that the rulers had to resort topressuring scholars to accept positions as qadis and government ...