Download "Chaos on the Earth": Subjective Truths versus Communal Unity in

"Chaos on the Earth":
Subjective Truths versus Communal Unity in
Islamic Law and the Rise of Militant Islam
INDIRA FALK GESINK
FOLLOWING THE EVENTS OF SEPTEMBER 11, journalists and political analysts scrambled to come up with an explanation of militant Islam that would render the attack
on the United States comprehensible. Often, they resorted to the theory that
Islamic culture was stagnant, bound to codes of belief and behavior that were suited
better to seventh-century Arabia than to modern life. The conflict between tradition
and modernity had thus produced a reactionary trend within the Islamic world:
those who rejected modern Western modes of globalized industrial capitalism
sought to return the world to simpler, purer ways of life that accorded better with
the religious tradition. One key part of this hypothesis of reactionism was the idea
that Islamic law had been unable to adapt to contemporary social conditions. For
example, a prominent New York Times columnist wrote that the "mullahs, imams,
and religious authorities" who ruled the realms of civil society in Arab Muslim
countries were all tied to "traditional Koranic interpretations that are not
embracing of modernity, pluralism or the equality of women," and that, for
centuries, Islam had essentially "stood still" while the rest of the world changed.l
This hypothesis that we have so enthusiastically adopted is based on an invented
tradition, issuing not as one might expect from European Orientalists but rather
from Muslim religious scholars of the nineteenth century. These scholars were
themselves utilizing a tradition that had been constructed by scholars and reformers
over centuries in order to promote their own agendas of reform, according to which
the methods and norms of the Islamic legal tradition (shari 'a) had gradually become
immutable, leading to legal and social stagnation. A significant change in the use of
this tradition occurred when conservative nineteenth-century scholars in Egypt who
were concerned about the divisive effects of Western ideas and imperialist
institutions began to insist that this invented stagnation was not only true but
beneficial, in that it had resulted in a more or less coherent body of law to which
This article is based on research conducted in Egypt with generous support from the National Security
Education Program (1995-1996) and the American Research Center in Egypt (1998); a previous
version was delivered at the Interdisciplinary Nineteenth-Century Studies annual conference in 2002.
I am indebted to conference participants and to the anonymous reviewers for their comments, and
especially to Engin Akarli of Brown University, Timothy Parsons of Washington University in St. Louis,
and Steven E. Siry of Baldwin-Wallace College. Any errors or omissions are solely mine.
1 Thomas L. Friedman, "Breaking the Circle," New York Times (November 16, 2001), http://
www.nytimes.com/2001/ll/16/opinion/ (November 17, 2001).
710
711
Chaos on the Earth
Muslims could adhere in order to strengthen their community. Reformers responded with their own use of the tradition, using it to justify significant "updates"
in that body of law through interpretation by individual educated believers. These
reformers dominated the emerging Arabic print journalism and contacts with
Western government officials and Orientalist scholars, and thus their version of
Islamic tradition crept into the Western canon of Islamic history. The reformers'
emphasis on individual interpretation of the sources of Islamic law had another
effect, however. It extracted the authority to issue legal opinions from the purview
of specially trained legal scholars and put that authority into the hands of untrained
lay believers. This encouraged radical flexibility in interpretation of legal sourcesrather than the purported inflexibility-as lay believers interpreted the sources in
light of their unique political circumstances. Thus the use of the invented tradition
of stagnation, and the subsequent spread of lay interpretation, was a significant
factor in the rise of twentieth-century militant groups.
Prior to the nineteenth century, Muslim religious scholars were in many Islamic
countries arguably the most influential figures of authority. Centuries of political
theory demanded that rulers consult with them; they served as arbiters of law and
religious truth for the public; they could control large public and private endowments; they often elected their own leaders; and, in Egypt in 1805, they played a
critical role in selecting the new Ottoman viceroy following the French occupation.
The rise of the centralized bureaucratic state, and, later, European imperialism,
challenged their authority. For example, in Egypt, subsequent Ottoman viceroys
centralized government control, and in the process they restricted the authority of
the religious scholars. In the 1860s, new legal codes based on Western models
limited the scholars to adjudicating matters of belief and family law, while civil and
criminal courts were increasingly staffed by Western-educated lawyers and judges. 2
In the 1870s, a constitutionalist movement swept the Egyptian literati, and many
adopted European ideologies of the state. In 1882, Britain occupied Egypt and
helped the Ottoman viceroy suppress the constitutionalist movement. This history
of state and Western encroachment was mirrored in many ways in other colonized
countries, such as India.
Muslim intellectuals had to grapple with the supremacy of European ideas and
might, and most concluded that the Europeans had been able to exploit some
internal weakness in the Islamic community. This general trend produced several
different schemes for reforming Islamic society, strengthening its communal unity,
and extracting it from the grasp of European imperialism. This article focuses on
schemes of resistance and reform as developed in Egypt, which form a more or less
coherent thread of intellectual thought connecting contemporary Islamic militancy
to these nineteenth-century debates. The debate among nineteenth-century Egyptbased scholars is especially worthy of scrutiny, because it not only offers examples
of these schemes of resistance and reform but also introduced key concepts that
heavily influenced trends in twentieth-century Islamic thought.
Much of this debate focused on schemes to unify an extremely diverse
community and to resist or guide state encroachment, which in itself is nothing new.
2 J. N.D. Anderson, "Law Reform in Egypt: 1850-1950," in Political and Social Change in Modem
Egypt, P. M. Holt, ed. (Oxford, 1968), 209-30.
AMERICAN HISTORICAL REVIEW
JUNE
2003
712
Indira Falk Gesink
Throughout Islamic history, Muslim scholars had sought a means of maintaining a
coherent interpretation of Islam that would provide some unity of belief and
practice and limit the coercive power of the state. The scholars' efforts were
expressed in the guidance they offered to believers, and in a framework of
interpretation used to derive that guidance from scriptural sources. Out of this the
shari'a (the Islamic legal tradition) emerged. The communities of scholars became
custodians of the shari'a, guardians of moral and legal authority. When their
authority was threatened by the state, or by sectarian or philosophical divisions,
individual scholars would respond by emphasizing the importance of adhering to
the shari'a. But the shari'a was not and is not one monolithic code: it is a legal
tradition that encompasses revelatory texts, methods of interpretation, and humanly derived texts of rulings, many of which are contradictory or fully comprehensible only within a particular political context. In the nineteenth century,
conservative .scholars in Egypt met the challenge of state encroachment and
European imperialism by insisting that lay believers follow a consistent body of
rulings within the variety offered by the shari'a, and they claimed that these bodies
of rulings had been unchanged throughout several previous centuries. This
assertion helped satisfy their desire for a consistent body of law in the face of
external challenges and internal divisions.
In response, another group, generally known today as the Islamic modernists,
declared that Islamic society had entered a period of moral and social decline, and
that this had produced the divisions in the community that weakened it. The
modernist reformers initiated a movement to reinvigorate religious institutions and
educational systems. In the process, they played up the invented history of an
immutable legal tradition and claimed that this was the cause of moral and social
stagnation. They used this argument to justify introducing an epistemological shift
in the foundations of law and education away from received knowledge (embodied
in a legal method called taqlid, which is similar to following juridical precedents)
and toward individual judgment (embodied in a legal method called ijtihad). The
modernists claimed that this shift toward individual judgment, once it became
widespread among Muslims through an appropriately reformed educational system,
would inspire an intellectual revival of Islamic society. Muslims would discover that
the "true" Islam accorded with the principles of science and naturallaw. 3
The historical record, however, shows that throughout the supposedly stagnant
period (the tenth through nineteenth centuries) legal practitioners had consistently
modified the law using degrees of ijtihad (independent reasoning used in deriving
judgments from sources of law), and that the law had remained flexible and
adaptable to change. But this practice had been limited since the fourteenth century
to jurists of the highest rank, in order to preserve the rule of law. 4 Indeed, the
modernists' proposal to extend the franchise of ijtihad horrified many nineteenthcentury legal scholars, who had for decades been fighting to preserve an increasingly fractured Muslim community against intellectual and legal divisions. They
3 Malcolm Kerr, Islamic Reform: The Political and Legal Theories of Muhammad 'Abduh and Rashid
Rida (Berkeley, Calif., 1966).
4 Muhammad Fadel, "The Social Logic of Taqlid and the Rise of the Mukhatasar," Islamic Law and
Society 3, no. 2 (June 1996): 193-233.
AMERICAN HISTORICAL REVIEW
JUNE
2003
Chaos on the Earth
713
raised concerns about the potential of widespread ijtihad to further undermine the
Islamic legal tradition and the unity of the Islamic community. However, they too
projected a tradition of legal inflexibility, to preserve their authority as interpreters
of the shari'a, as repositories of correct religious knowledge, and ultimately as
defenders of communal unity.
In the end, the modernists' vision of reform prevailed. While they addressed real
social ills and made great strides in adapting certain areas of law to changing social
circumstances-such as the area of women's education-there was a significant
tradeoff. Their epistemological shift in the understanding of legal methodologies
fundamentally changed the public's understanding of the meaning and ownership of
certain legal methods. Ijtihad, which had generally been understood as the province
of specially trained legal scholars, became something any educated Muslim could
do. This new understanding of ijtihad was disseminated worldwide by Egypt-based
reformers' domination of both an international market for the emerging Arabic
press and contacts with Orientalist scholars. What was initially an epistemological
shift became a shift in ownership of the law: legal interpretation became a lay
practice.
This shift facilitated the proliferation of militant Islamic groups in the twentieth
century. The Muslim community, already divided, became increasingly fragmented,
and the modernists' vision gave rise to the Muslim Brotherhood and other groups
that interpreted the law in light of oppressive political conditions. Arab Muslim
extremist groups of the twentieth century are thus not reactionaries bound to an
inflexible law; rather, they are in part the products of a flexible legal tradition that
became more so as a result of nineteenth-century Egyptian modernists' campaigns
to encourage individual understanding of legal sources. 5
This article thus makes three arguments: that the telling of Islamic history that
informs popular knowledge of Islamic law in the West and in the Middle East is
based on an invented tradition, that Egypt-based reformers who engaged in this
invention also reimagined key concepts used in legal derivation that have deeply
influenced contemporary popular understandings of Islamic law, and that many
militant Islamic groups of the twentieth century have roots in those nineteenthcentury reimaginings of Islamic legal methodology. The last argument is based on
evidence that has long been present in the works of other scholars, the implications
of which have been neglected. 6
AT THE HEART OF THE ISSUE ARE methods of deriving legal judgments from the
sources of Islamic laws. Traditionally, most Muslim jurists recognize four main
s This is not to ignore the importance of other factors in the rise of militant Islam: resentment of
Israel as manifesting European imperialism and of Israeli policies in the occupied territories, reaction
to an ever-more prominent commercialism associated with Western cultural and economic influence,
and the rise of unitary bureaucratic states and the attempt by some to promulgate state-sanctioned
versions of Islam to bolster their nationalist agendas (such as in Egypt and Pakistan) and the
subsequent repression of other varieties of politicized Islam.
6 See, for example, Richard P. Mitchell, The Society of the Muslim Brothers (1969; rpt. edn.,
London, 1993); Giles Kepel, Muslim Extremism in Egypt, Jon Rothschild, trans. (1984; rpt. edn.,
Berkeley, Calif., 1993).
AMERICAN HISTORICAL REVIEW
JUNE
2003
714
Indira Falk Gesink
sources from which legal judgments may be derived. The most authoritative source
is the Qur'an, which the majority of Muslims believe to be the word of God as
transmitted to the Prophet Muhammad through the angel Gabriel. Unambiguous
verses in the Qur'an are held to be absolutely binding on all Muslims, such as the
verses that instruct believers to worship one God, pray, offer charity, fast during the
month of Ramadan, and, if possibl~, undertake the pilgrimage to Mecca. Ambiguous verses may be interpreted in different ways and are therefore somewhat less
authoritative. These verses may be interpreted by reference to the hadith, a body of
reports on prophetic sayings and actions and the sayings and actions of the early
community of Muslims. Hadith were also classified according to their authoritative
status. Those that were reported by multiple, trustworthy transmitters and could be
traced back through an unbroken line of transmitters to the Prophet or his
Companions were considered "sound," or reliable, and had authoritative status as
sources of law. Those with single or unreliable transmitters were considered "weak"
and less authoritative. Some scholars rejected the use of weak hadith entirely.
If a new issue of law arose that neither of these first two sources addressed, a
jurist could derive a judgment based on an analogous situation described in either
source. Analogy, or qiyas, is an interpretive method, humanly derived, and so may
only reach authoritative legal status if it is accepted by the community of legal
scholars. However, if a community of scholars reached consensus (ijma') on the
admissibility of a particular ruling, that ruling was considered to have the
authoritative status of an unambiguous text in the Qur'an. This was based on a
Prophetic hadith in which Muhammad stated that his community could not agree in
error. Gradually, "community" came to be understood as the community of scholars
in a particular city or region. The idea of communal consensus eventually stabilized
into several transregional, internationally accepted schools of legal interpretation,
or madhhabs. There are four that remain prominent today in Sunni Islam: these are
the Hanbali, Maliki, Shafi'i, and Hanafi madhhabs, each one associated with the
methods and rulings of its eponymous founding scholar.
The sources and interpretive methods enumerated above are the foundation of
the Islamic jurisprudence, or fiqh, the result of which is the shari 'a, the Islamic legal
tradition. The shari'a has essentially two levels of application: there are jurisconsults called muftis, who interpret the sources for individual petitioners, and there
are judges, or qadis, who use the interpretations derived by muftis and apply them
to criminal and civil cases. A petitioner may, for example, request from a mufti a
ruling as to whether Muslims are permitted to engage in a particular kind of
commercial transaction. The mufti would then consult his sources and tell the
petitioner whether that type of transaction is required, recommended, permissible,
reprehensible, or forbidden. The mufti's response, or fatwa, contains merely a legal
opinion; the petitioner is not required to follow it. However, when a qadi applies a
mufti's ruling to a legal case, the qadi's judgment is binding.7
During the first few centuries of Islam's existence, many questions of law and
religious belief and practice arose that were not specifically addressed in the Qur'an
7 Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni usul al-fiqh
(Cambridge, 1997). The distinction between the work of muftis and qadis is not always this clear:
throughout history, qadis have performed their own jurisprudence as well as simply applying its results.
AMERICAN HISTORICAL REVIEW
JUNE
2003
Chaos on the Earth
715
or hadith. In this formative period of Islamic law, jurists had exerted themselves to
discover general principles that could be applied to these new questions, a process
called ijtihad (the root of the word is the same as that of jihad, which means "to
struggle," and here means to struggle to understand and offer the best-informed
guidance). Ijtihad, since it involved the use of human reasoning, was an inherently
subjective process. Its result was merely an opinion that was subject to change and
was not binding on other jurists or on petitioners. This meant that, unless the
opinion reached the status of a general rule by means of consensus (ijma '), there
was no way to ensure that the rulings of individual jurists agreed in any meaningful
way. Jurisconsults could not reach a confirmed consensus on which judges could
base binding judicial rulings within a reasonable degree of conformity. In other
words, there was no way to ensure "regular and predictable legal outcomes," no way
to reach the point of rule of law. 8 Thus it was possible to resolve a legal question
by using any number of legitimate but mutually contradictory arguments: the
unlimited practice of ijtihad threatened the integrity of authoritative law.
Muhammad Fadel's study of the Maliki legal school suggests that, by the process
of consensus, and by coalescing into madhhabs, the results of generations of legal
thought and analysis were whittled down until each madhhab had a more or less
cohesive body of authoritative rules from which to derive rulings. Fadel describes
this type of compilation, the mukhtasar, as "codified common law." 9 This reduced
the problem of legal indeterminacy. However, independent ijtihad continued within
each madhhab. Although this permitted accommodation of changing social conditions, it also remained a problem, because rulings of different muftis within a school
might still contradict one another, and a single mufti might change his mind on a
particular matter. Eventually, there accumulated a body of authoritative rulings on
which the influential jurists within the schools agreed, and gradually muftis began
to bind themselves and their juniors to these accepted rulings, limiting muftis' rights
to perform ijtihad. By the fourteenth century, some jurists had begun to argue that
only the most knowledgeable legal scholars should be allowed to perform ijtihad at
all, and some held that there were no more legal scholars with the great learning
and inspiration required to perform ijtihad beyond certain limits, as the founders of
the four main madhhabs had done. While certain modes of ijtihad continued to be
practiced, generally within the boundaries of school rules, acceptable rules gradually came to be associated with the consensus of the school rather than the opinion
of a mufti. 10 After the thirteenth century, with some exceptions, it came to be
expected that the majority of legal scholars as well as ordinary Muslims would
adhere to taqlid-that is, that they would base their legal advice, juridical
judgments, and personal behavior on the accepted rulings of their legal schools.
According to recent scholarship, high-ranking scholars and rebel reformers did
continue to perform limited ijtihad in order to adjudicate novel cases.l 1 Neverthes Fadel, "Social Logic," 196. Fadel deals more thoroughly with the social origins of taqlid in his
dissertation, "Adjudication in the Maliki Madhhab: A Study of Legal Process in Medieval Islamic Law"
(PhD dissertation, University of Chicago, 1995).
9 Fadel, "Social Logic," 196; "Adjudication," 274, 283-84.
IO Fadel, "Adjudication," vol. 1, chap. 3; Hallaq, History of Islamic Legal Theories, 153-56, 161.
11 Wael B. Hallaq, "Was the Gate of Ijtihad Closed?" International Journal of Middle East Studies
16 (1984): 3-41; Hallaq, "On the Origins of the Controversy about the Existence of Mujtahids and the
AMERICAN HISTORICAL REVIEW
JUNE
2003
716
Indira Falk Gesink
less, in some times and places, Sunni jurists would claim that the "gate of ijtihad"
was closed, that "independent ijtihad"-ijtihad independent of madhhab rules-was
no longer to be performed, and that the community of scholars had achieved
consensus on the matter. Several explanations for this claim of consensus have been
attempted. According to Fadel, as noted above, Maliki jurists in the fourteenth
century wished to solve the problem of legal indeterminacy. According to Frank
Vogel, Hanafi jurists under the 'Abbasid Empire were trying to ensure that their
interpretations and methods would survive and compete against contending
interpretations offered by 'Abbasid authorities.12 Sherman Jackson has shown that
jurists could restrict the power of the state by preserving the shari'a's authority over
the lives of believers who adhered to madhhab rules. 13 Lutz Wiederhold suggested
that some claims of ijtihad's cessation were due to differences of opinion as to what
ijtihad actually was. If ijtihad was understood as meaning the jurist's attempt to
solve a difficult legal question within the boundaries of madhhab consensus, it might
be allowed. On the other hand, if ijtihad was understood as "independent
reasoning," it might be condemned.1 4
Twentieth-century historians have come up with these contextual explanations
for the limitation of ijtihad only within the last decade or so. One may still find
assertions, even in scholarly literature, that ijtihad had ceased completely and that,
as a result, Islamic law is rigid and unadaptable to new circumstances. This
supposedly explains much of the "reactionism" in the Islamic world today. This
misinformation is largely a product of a nineteenth-century debate in which
conservative Muslim legal scholars and reformers asserted that the "gate of ijtihad"
was completely closed.
NINETEENTH-CENTURY EGYPTIAN LEGAL SCHOLARS went beyond restriction of ijtihad
to complete interdiction. The Orientalist scholar Snouck Hurgronje cited Shaykh
Ibrahim al-Bajuri (1847-1860), chief mufti of the Shafi'i madhhab in Egypt, as
Gate of Ijtihad," Studia lslamica 63 (1986): 134-41; Rudolph Peters, "Idjtihad and Taqlid in 18th and
19th Century Islam," Die Welt des /slams 20, nos. 3-4 (1980): 131-45; Judith Tucker, In the House of
the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley, Calif., 1998); on flexibility
of Mughal law, see Muhammad Qasim Zaman, The Ulama in Contemporary Islam: Custodians of
Change (Princeton, N.J., 2002), 20. Compare Baber Johansen, Contingency in a Sacred Law: Legal and
Ethical Norms in the Muslim Fiqh (Leiden, 1999), 446-47, which says that while early modern claims to
exercise ijtihad did exist, that does not mean that those mujtahid jurists had much effect on the
elaboration of new legal doctrines.
12 Frank Vogel, "Closing of the Door of Ijtihad and the Application of the Law," American Journal
of Islamic Social Sciences 10, no. 3 (Fall 1993): 399. An older line of reasoning held that ijtihad was
given up out of opposition to rationalist methodologies (such as the Shi'i principle of 'aql; see Leonard
Binder, "Ideological Foundations of Egyptian-Arab Nationalism," in Ideology and Discontent, David
Apter, ed. [New York, 1964], 143-44).
13 Sherman Jackson, Islamic Law and the State: The Constitutional Jursiprudence of Shihab al-Din
al-Qarafi (Leiden, 1996).
14 Lutz Wiederhold, "Legal Doctrines in Conflict: The Relevance of Madhhab Boundaries
to Legal
Reasoning in the Light of an Unpublished Treatise on Taqlid and Ijtihad," Islamic Law and Society 3,
no. 2 (June 1996): 260; see also jurists' definitions of ijtihad in Hallaq, "Was the Gate of Ijtihad
Closed?" 24-25, 27.
AMERICAN HISTORICAL REVIEW
JUNE
2003
717
Chaos on the Earth
having stated that ijtihad ended by the third century after Muhammad's death.1 5
Hurgronje, whose study set the tone for further Western studies of Islamic law,
offered no explanation for the cessation; he assumed that the shaykh, who was also
the headmaster of al-Azhar, one of the most prominent schools of Sunni jurisprudence in the world, would know his stuff. 16 In the latter part of the twentieth
century, the dominant explanation for al-Bajuri's statement was that the community
of religious scholars had retreated into a defensive posture as a result of
government encroachment on "their" territory. It was true that, throughout the
1860s and 1870s, as the government of Egypt became more centralized, it imposed
Western-derived legal codes, and many of the duties once performed by religious
scholars, such as adjudication of criminal and commercial cases, were given over to
Western-trained lawyers who were familiar with the new codes. According to
historian Daniel Crecelius, this produced in the religious scholars an "attitude of
entrenchment," in which they clung to static ideals, represented in taqlid, that
preserved their own authority as repositories of specialized religious knowledge.
Their vast influence over the public allowed them to threaten the government with
massive popular opposition if it attempted further to encroach on the domain of the
shari'aP
However, Egyptian religious scholars were not only affected by issues within
their own country, they were connected to a larger world and were responding in
part to ideas emanating from other parts of that world. For example, in the latter
part of the eighteenth century, Islamic revivalists arose who claimed that the
Muslim community had entered a period of moral decay, largely internally rather
than externally caused, and that some variety of renewed ijtihad was necessary to
revive true Muslim belief. They founded powerful reform communities, including
that in North Africa founded by Muhammad 'Ali al-Sanusi, the Wahhabi movement
in Arabia founded by Muhammad ibn 'Abd al-Wahhab (which today dominates the
Saudi state), and the Deoband movement in India founded by followers of Shah
Wali Allah (progenitor of the Taliban).l 8 Egyptian scholars of the nineteenth
century claimed cessation of ijtihad in order to discredit these movements and
protect the Islamic community from internal divisions.
One of the most famous legal scholars in Egypt to do this was the chief Maliki
mufti, Shaykh Muhammad 'Ilish. Over the course of several decades in office, 'Ilish
issued hundreds of fatwas, which were published upon his death in 1882. A
significant number were framed as explicit criticisms of the "revival" of ijtihad.
See Wiederhold, "Legal Doctrines in Conflict," 235, n. 2.
See Johansen, Contingency, 43, for an evaluation of Snouck Hurgronje's influence on Western
studies of fiqh. Subsequent studies of the shari'a seemed to confirm that the era of ijtihad was over by
the beginning of the fourth Islamic century and that, although a few later scholars did claim to practice
ijtihad, they did not do so with any significant effect. See, for example, Joseph Schacht, "The 'Closing
of the Gate of Independent Reasoning' and the Further Development of Doctrine," in An Introduction
to Islamic Law (Oxford, 1964), 69-75. This opinion has been only recently revised.
17 Daniel Crecelius, "Nonideological Responses of the Egyptian Ulama to Modernization," in Nikki
Keddie, ed., Scholars, Saints and Sufis (Berkeley, Calif., 1972), 184-97.
18 Ahmad Dallal, "Origins and Objectives of Islamic Revivalist Thought, 1750-1850," Journal of the
American Oriental Society 113, no. 3 (1993): 341-59. These movements restricted ijtihad to their leaders
or those trained in their legal schools; this was not lay ijtihad. For example, the Deoband founder Shah
Wali Allah thought unguided speculation could lead the untrained into error. Barbara Daly Metcalf,
Islamic Revival in British India: Deoband, 1860-1900 (Princeton, N.J., 1982), 38.
15
16
AMERICAN HISTORICAL REVIEW
JUNE
2003
718
Indira Falk Gesink
Shaykh 'Ilish viewed taqlid as the mechanism by which the fabric of Sunni Islamic
society was held together. According to him, the very definition of "Sunni," ahl
al-sunnah wal-jama 'ah, implied that Sunnis followed the examplt:! of the Prophet
(sunnah) and agreed to general principles of law that bound them together.
Consensus on those principles defined the community. Anyone who did not
recognize the overall validity of those principles threatened its unity.l 9
Among 'Ilish's fatwas is a response to an inquiry about the Wahhabis (referred
to as the Muhammadiyyah sect). According to the petition, the Wahhabis' leader
(Muhammad ibn 'Abd al-Wahhab) believed that there were errors in the collections
of legal rulings that judges used in applying the law. Yet, said the petitioner, those
books had been elevated (by consensus) to the status of scripture. In order to return
to true principles of Islam, this leader had wanted to abandon the books of accepted
rulings and to adopt only those rulings that had been based on unambiguous
statements in the Qur'an and the sound hadith. He therefore claimed to be a
mujtahid, someone who is qualified to perform ijtihad. Some members of this group
had even claimed that this leader was the Mahdi or a prophet. The petitioner asked
for Shaykh 'Ilish's opinion.
'Ilish's response was unequivocal: "It is not permissible for a layman to abandon
taqlid ... and adopt rulings from the Qur'an and the hadith ... [T]he Sunnis have
unanimously agreed that taqlid is incumbent upon the one who does not possess the
qualifications for ijtihad." This, he said, was so well known that it had become "an
article of faith." 20 According to 'Ilish, the language of the Qur'an could be
misleading; the literal meaning apparent to one upon first glance could even be
blasphemous. Therefore, no one was capable of interpreting it correctly "but God
and those who were thoroughly versed in religion." Of those who were "thoroughly
versed," only the Prophet, his Companions from the early Islamic community, and
the founders of the four legal schools (Imams) had been able to interpret the
Qur'an without danger of falling into error. This was because, according to 'Ilish,
the Companions had had direct access to the opinion of the Prophet, and the Imams
had been saints inspired by the Prophet through mystical illumination. No one after
the founders had possessed both the level of knowledge and the mystical connection
to the Prophet to elevate their own interpretation of the Qur'an and other sources
of law over those of the founders themselves; thus no one after the founders could
legitimately claim the rank of independent ijtihad (al-ijtihad al-mutlaq). 21 Further19 'Ilish's fatwas on taqlid are a hodge-podge of quoted material from earlier scholars, but 'Ilish's
point throughout is that jurists must follow the consensus of a legal school whenever possible, and, if
contradictory rulings exist, they must follow that preferred by the majority of scholars. Muhammad
'Ilish, Fath at- 'ali al-malik fil-fatwa 'ala madhhab at-imam Malik, vol. 1 (1882; rpt. edn., Cairo, 1958),
60-111, esp. 86. According to Wael Hallaq, "No person could reject any of these constants [theories of
language used in determining the epistemological value of scriptural statements, consensus, principles
of reasoning] ... and still claim affiliation with Sunnism. Consensus and qiyas have become the defining
features of Sunnism no less than the Quran and the Sunna" (History of Islamic Legal Theories, 125-26).
20 'Ilish, Fath, 89-93.
2 1 'Ilish follows the opinion of 'Abd al-Wahhab al-Sha'rani that the four founders had confirmed
their interpretations of the law by speaking with the Prophet while in a state of mystical illumination.
'Ilish also held out the possibility that contemporary saints of his own Sufi order, the Shadhili order,
might also possess this kind of mystical connection, although he asserted that no one since the four
founders had legitimately performed independent ijtihad. All those who claimed to have done so had
really been performing ijtihad within the confines of their madhhab rules. 'Ilish, Fath, 90, 92, 93, 96;
AMERICAN HISTORICAL REVIEW
JUNE
2003
Chaos on the Earth
719
more, few scholars possessed the qualifications even for limited ijtihad, especially
"in this recent age, in which Islam has become foreign fgharib ]." 22
More important, the texts of Maliki jurisprudence contained rulings that had
been upheld throughout centuries of scholarly investigation and debate, and on
which the community of scholars within the Maliki school had achieved consensus.
In accordance with hadith reports that the Prophet had said his community could
not agree unanimously in error, juridical consensus on behalf of the community
rendered these rulings as epistemologically certain as an unambiguous statement in
the Our' an. 'Abd al-Wahhab's challenge to Maliki jurisprudence therefore negated
the validity of consensus-sanctioned rulings. This effectively rendered him a heretic,
someone who did not accept the fundamental assumptions that defined one as
Sunni. 23
'Ilish himself adhered strictly to taqlid; instead of constructing original arguments to back up his point, he cited the authorities whose works he had consulted.
'Ilish's opinion emerges in his selection of authorities and brief comments of
approval or criticism, and in the implied analogy between the legal rulings of these
authorities and 'Ilish's own historical context. For example, 'Ilish argued that
untrained laymen who took up independent ijtihad threatened the integrity of the
law, for their rulings would conform to no standard and might contradict the rules
of the established legal schools. He cited 'Abd al-Wahhab al-Sha'rani, a sixteenthcentury Egyptian scholar associated with the Shadhili Sufi order ('Ilish's own
order), to the effect that people who were incapable of studying the sources for
themselves had to be restricted to a single legal school, so that they did not lead
themselves and others into error. When the unqualified took up ijtihad, their results
might conform to those of the "sound" legal schools, but sometimes they would
conform to "deviant" legal schools or violate the consensus of the community. 24
Muftis had to adhere to the established hermeneutic of legal theory, for an
alternative hermeneutic, such as one that challenged the authority of consensus,
would invalidate much of the corpus of accepted rulings. 25
One problem that 'Ilish had to deal with was that the verb qallada, from which
taqlid is derived, appears in the Qur'an in a negative context. God condemns those
who follow (qallada) their forefathers' ways rather than opening themselves to the
truth of Islam. 26 'Ilish therefore had to draw a clear distinction between the kind of
taqlid described in the Qur'an and that used by Maliki jurists. For example, 'Ilish
reported an opinion by the fourteenth-century Maliki jurist Abu Ishaq al-Shatibi
that clearly defined the Qur'anic taqlid as different from the taqlid of legal
methodology: "Abu Ishaq said that insistence upon following [ittiba '] customs has
Kahhala, Mu'iam al-mu'allifin, vols. 9-10 in 1 (Beirut, n.d.), 12; 'Ali Pasha Mubarak, Al-Khitat
al-tawfiqiyyah al-jadidah li-Misr al-qahirah (1887; rpt. edn., Cairo, 1983), 4: 42-43.
22 'Ilish, Fath, 89-93.
23 'Ilish, Fath, 90, 92. 'Ilish's argument could not accommodate examples in which consensus failed.
Communal unity was an absolute necessity; he may not have wanted to mention exceptions in which the
community was shown to be "in error" in a fatwa, which was after all a prescriptive form, the audience
of which consisted of laymen in a divided community.
24 'Ilish, Fath, 104.
zs Hallaq, History of Islamic Legal Theories, 207-09.
26 Qur'an 2: 170-71, 5: 104-05, 7: 70-72.
AMERICAN HISTORICAL REVIEW
JUNE
2003
720
Indira Falk Gesink
corrupted or contradicted the Truth. Following what one's forefathers and shaykhs
and so forth did, that is objectionable taqlid [al-taqlid al-madhmum ]." 27 In contrast,
the legal mechanism of taqlid prevented jurists from following "whims" and
"worldly objectives" in judging cases and issuingfatwas. Taqlid of one's mufti was
therefore a religious obligation.
The role of the mufti-'Ilish's own role-was thus extremely important. He was
responsible for the moral guidance of his petitioners. What if the mufti discovered
a case in which he believed the correct ruling was that of another legal school rather
than his own? Could he base his fatwa on a ruling established in a different legal
school, or on an opinion that contradicted the opinions accepted by his legal
school? Once again, 'llish marshaled the arguments of his predecessors. The
fourteenth-century jurist al-Shatibi addressed the dilemma of a mufti who, upon
investigating a client's question, found more than one possible answer. Was the
mufti required to present his client with both answers? Or should he make an
attempt to value one answer over the other so that he could present his client with
an unambiguous answer? Al-Shatibi replied: "When a commoner presents his case
to a mufti and says to him, 'Extract me from my whims and set me to following the
Truth,' it is not possible at this time to say to him, 'There are two reports on your
issue, so choose according to your desire either of them you wish.' The meaning of
that is legitimation of whim without law." The mufti who did this debased his
advice, and, by implication, he damaged the integrity of the law itself. 28 For
example, if a mufti were to report to a client that his question had more than one
possible answer, and then he were to cite the various arguments and precedents in
order to allow the client to make an informed choice, the client might not
understand. 'Ilish related a story in which one Shaykh al-Isfahani received a petition
from a female client whose husband refused to divorce her even though he did not
have relations with her. AI-lsfahani's fatwa explained to the woman that jurists had
a difference of opinion on that matter, and he referred her to their various opinions.
She did not understand the fatwa and returned to him sometime later with the same
question. The shaykh refused to further clarify the matter for her, saying that he had
already answered her question, and so she sought an opinion from another mufti. 29
Since the primary duty of the mufti was to provide legal advice to the public, that
advice must be readily comprehensible to them. Thus it was beneficial to society for
a mufti to simply practice taqlid of his madhhab and represent the law to his clients
as a coherent body of precedent..
'Ilish, Fath, 66.
'Ilish, Fath, 61. It is interesting that 'Ilish used ai-Shatibi's work in a manner that was consistent
with ai-Shatibi's own intent, while modern reformers misconstrued ai-Shatibi's arguments as an attempt
to introduce flexibility into the law. According to Hallaq, ai-Shatibi was trying to preserve madhhab
consistency and public authority of the law by "navigating a course" between two extremes of legal
practice existing at his time (Hallaq, History of Islamic Legal Theories, 161, 174, 202-04). At the time,
muftis performed ijtihad without adequate training, leading to illegitimate rulings (204 ), and jurists did
not adhere to their own rulings, which undermined the belief of the populace in the authority of the
law (205).
29 'Ilish, Fath, 70. See also Hallaq, History of Islamic Legal Theories, 181; and Baber Johansen,
"Legal Literature and the Problem of Change: The Case of the Land Rent," in Islam and Public Law,
Chibli Mallat, ed. (London, 1993), 32-36, in which an Ottoman mufti's choice to follow a particular
opinion constitutes an action that is legally binding on judges and thus is not merely relevant to the
petitioners but also a decisive element in the continual evolution of Hanafi doctrine.
27
28
AMERICAN HISTORICAL REVIEW
JUNE
2003
721
Chaos on the Earth
Another reason for muftis to restrict themselves to taqlid of a single school was
to protect themselves from the corruptions of power. Al-Shatibi reported that, in
his age, "many of the jurists who [used to] practice taqlid have begun to give fa twas
to this relative or that friend that he would not give to others ... following his
objective and desire, or the objective of this relative or that friend." Likewise,
Shihab al-Din al-Qarafi (d. 1285) had stated that muftis must follow the ruling
established by their legal schools, and, in cases where there was doubt as to what the
accepted ruling was, muftis were required to rule according to the opinion
preferred by their Imams. "As for the following of whims, it is forbidden
completely." Al-Qarafi argued that if muftis were allowed to exercise their own
judgment in evaluating the rulings of their legal schools, they would come under
increased pressure to give favorable weight to bribes or political advantage. 30 Such
preferential practices would undermine public perception of the law's neutrality.
Once again, the mufti's advice had to adhere to the valid opinions set forth in the
texts of the legal school.31
'llish held the Maliki position on the cessation of independent ijtihad and the
social importance of taqlid to be of paramount importance. The preponderance of
opinion among the Maliki scholars he cited fell on the side of preserving the
integrity of legal school rulings-for the sake of individual Muslims. The legal
school, or each mufti in relation to his petitioners, had to endeavor to provide clear
and consistent rulings on similar cases or questions. If not, the rule of law would
break down. Two criminals charged with similar crimes could get different
sentences, or two petitioners asking similar questions could receive contradictory
answers. 32 If the public perceived that the legal system could not provide consistency in trying legal cases, this would damage the legitimacy of the law itself, or of
the government providing legal personnel. According to prevailing notions of social
order, public faith in the ruler and in the law surrounding and protecting society was
a necessary part of a "circle of justice." If any one part of the circle was broken,
society would dissolve into injustice and disorder. The challenge to taqlid threatened to break that circle.
Furthermore, 'Ilish's defense was an attempt to preserve the authority of the
mufti. In a legal system based on taqlid, the muftis would remain crucial as
providers of legal and religious advice. A system based on widespread ijtihad (by
either state-trained legal officials or laymen) obviated the public's reliance on the
scholars. Yet clearly, 'Ilish was not motivated solely by concerns of power; the
authority of the mufti was a means to an end, the preservation of communal unity.
'Ilish appears to have been genuinely concerned about the relation of the legal
system to public welfare. Given the context, the assumption that the "real
motivations" for conservative defense of Sunni Islam were primarily materialist or
'Ilish, Fath, 68. See Jackson, Islamic Law and the State.
Hallaq's argument that taqlid was integral to the functioning of the legal system (History of Islamic
Legal Theories, 207-09) supports my contention that 'Ilish was primarily concerned with legal
determinacy, as does Fadel's general rule that the legitimacy of rulings on private matters (al-qada')
depended on public perceptions of the decisions' fairness and neutrality, so that each legal school had
an interest in ensuring that judges and muftis applied the same rules to similar cases. Fadel,
"Adjudication," 212, 234, 236, 266-67, 353-57.
32 'Ilish, Fath, 67, 77; Fadel, "Adjudication," vol. 2, passim.
3°
31
AMERICAN HISTORICAL REVIEW
JUNE
2003
722
Indira Falk Gesink
power-based appears to be a projection of late twentieth-century Western secularism onto an alien religious landscape, which has distorted the resulting view of the
actors populating that landscape. 3 3
Contextual information about 'Ilish seems to bear this out: 'Ilish's contemporaries attested to his concern for maintaining religious morality. For example, the
reformer 'Ali Pasha Mubarak, who was extremely critical of the religious scholars
in general and rejected taqlid as a cause of social stagnation, praised 'Ilish for his
uncompromising commitment to moral purity:
He has a majesty that terrifies the black-hearted one, and [his] lectures curdle the blood .. .
It is probable that he never, from his childhood to his old age, missed the Friday prayers .. .
Truly, he has overcome those loathsome things with which Paradise is encircled. Out of his
respect for God, upon entering a mosque, he puts his sandals into a bag, fearing that he
might defile the mosque ... he never drinks coffee and will not bear even the scent of smoke;
he never wears expensive clothing nor anything made of silk, and he avoids the tassel of the
tarboosh and stays away from kings, princes, and their ilk. 34
'Ilish's appointment to the office of chief Maliki mufti came during a series of
disturbances among Maliki students in Cairo's schools, and his severity and
insistence that others adhere to his high standards of moral behavior were likely
considered positive traits at the time. The appointment also placed 'Ilish on the
front line of the intellectual defense of Islam during the rapid westernization of the
Egyptian legal system under Khedive Isma'il, the imposition of French and British
financial controllers in the wake of Egypt's bankruptcy in 1876, and the quasinationalist 'Urabi Revolt in 1879-1882-in which 'Ilish was a key participant.
'Ilish's era saw individual morality and social stability threatened by customs and
laws imported from foreign, non-Muslim countries and by rebellions within Islam
itself. To him, taqlid became even more crucial as a mechanism of ensuring the
continuity and internal consistency of the Islamic legal tradition. Laymen who
practiced taqlid of a single established legal school and received unequivocal
direction from their muftis would not suffer uncertainty about their religious duties,
nor would they be led into error by self-styled mujtahids who were insufficiently
trained to interpret the law. They would continue to have confidence in the religious
law and believe in a coherent body of religious truths. And perhaps if the integrity
of the law and confidence in the mufti's office were maintained, Muslims would be
less inclined to accept the ways of the foreigners. Thus society's strength lay in the
coherence of the law and in the practice of taqlid.
Today, Muslim legal scholars echo 'Ilish's concerns, if not his defense of taqlid.
At present, individuals and organizations may style themselves muftis and issue
fatwas without regard to the rigorous methods used by muftis in the past. 35
33 See John 0. Voll, "Foreword," in Richard P. Mitchell, The Society of the Muslim Brothers
(London, 1993), xii. Michel Foucault helped rid us of one set of Orientalist blinders; did he slip us
another set in exchange?
34 Mubarak, Al-Khitat, 4: 43.
35 Khaled Abou El Fadl, "Text and Authority," and "The Fatwa," in The Authoritative and the
Authoritarian in Islamic Discourses: A Contemporary Case Study, 2d edn. (Austin, Tex., 1997), 33-45.
AMERICAN HISTORICAL REVIEW
JUNE
2003
723
Chaos on the Earth
'lusH's COMPLEX ARGUMENT about the legal and consensual basis for a stable, moral
society would be reduced to a straw man by his political opponents. Throughout the
nineteenth century, ijtihad-based reform movements gained adherents and influence in the Middle East and South Asia. These reformers were inspired chiefly by
the advance of Western imperialism, and they claimed that Europeans had been
able to take advantage of internal weaknesses in Muslim society. Whereas
conservative legal scholars such as 'Ilish had championed taqlid as the means to
strengthen Islamic society and claimed that independent ijtihad had ceased and
should not be revived, the reformers saw taqlid as the cause of weakness and
independent ijtihad as the means of reinvigoration. The Egypt-based reformers
took this a key step further: they stripped taqlid and ijtihad of their legal, technical
meanings and recast them as epistemological concepts with social meanings.
Sayyid Jamal al-Din "al-Afghani" was chief among those who redefined taqlid
and ijtihad. Al-Afghani was a Persian-born traveling scholar and political agitator
whose experiences in Qajar Persia and British colonial India convinced him that
imperialism and tyranny were threats to the strength and unity of the Muslim
community. In 1869 and 1871-1879, al-Afghani lived and taught in Egypt. He had
no formal teaching position but proved to be an incredibly charismatic teacher
nevertheless and attracted a significant following among the brightest minds in
Egypt. Students from al-Azhar madrasa (college of religion and legal tradition) and
civil colleges came regularly to his house in Cairo for extracurricular lectures on
science and political philosophy. There, the students imbibed al-Afghani's peculiar
philosophy of progress and his call to arms. 36
In al-Afghani's philosophy, Islamic revival was synonymous with scientific and
political revival. According to al-Afghani, the first step in fomenting an Islamic
revival was to persuade Muslims to understand their religion correctly and live
according to its teachings. Key among these teachings were the Qur'anic commandments to seek wisdom, to investigate, to seek evidence and proof for one's beliefs,
and to avoid accepting others' beliefs uncritically. Al-Afghani told his students that
Islam enjoined upon all Muslims a spirit of inquiry, which was necessary to promote
a personal understanding of the basic tenets of Islam and the acquisition of
learning. Once the population was imbued with the proper spirit of inquiry,
Muslims would progress naturally to the investigation of both spiritual and scientific
matters. Inquiry into spiritual matters would lead to a revitalization of personal
morality and communal strength. Then, because the inquiry into scientific knowledge could be directly applied to the military arts, the society would be strengthened militarily. Muslim society, having achieved moral, military, and material
strength, could then free itself from foreign tutelage and domination.
According to al-Afghani's European authorities, scientifically derived empirical
knowledge held the secrets of social progress. Al-Afghani held knowledge of the
world to be discoverable through observation of phenomena, via the scientific
method, and expressible as positive laws. He wrote that humanity would benefit by
3 6 For details of al-Mghani's biography and political activities outside Egypt, see Edward G.
Browne, Persian Revolution of 1905-1909 (New York, 1966); Nikki Keddie, Religion and Rebellion in
Iran: The Tobacco Protest of 1891-1892 (London, 1966); and Keddie, Sayyid Jamal ad-Din "at-Afghani":
A Political Biography (Berkeley, Calif., 1972); and Elie Kedourie, Afghani and 'Abduh: An Essay on
Religious Unbelief and Political Activism in Modem Islam (1966; rpt. edn., London, 1997).
AMERICAN HISTORICAL REVIEW
JUNE
2003
724
Indira Falk Gesink
extension of the scientific method to all fields of human endeavor. This he viewed
as completely compatible with an Islamic worldview. In fact, in his book Radd-inaichiriyyah (Reply to the Naturists), he cited European history texts to show that
scientific inquiry had been sparked in Europe by the Protestant Reformation and
had resulted there in progress:
We must acquaint ourselves with the words of the European, [Fran~ois] Guizot, the French
author of the history of civilization, that is, of the European civilization. He said that one of
the most significant causes influencing Europe in its path to civilization was the appearance
of a sect in this country that said: we have the right to investigate the sources of our beliefs,
and demand proof for them ... And when this sect gained power and its ideas spread, the
minds of the Europeans were freed from the malady of ignorance and stupidity, and they
were stimulated into an intellectual circuit and returned to [the study of] scientific subjects
and worked hard to acquire the elements of civilization. 37
According to al-Afghani, this model of advancement was appropriate, even natural,
for Islamic society, because the religion itself promoted individual investigation:
Islam is almost unique among religions in censuring belief without proof, rebuking those
who follow suppositions, reproaching those who act randomly in the darkness of ignorance,
and chiding them for their conduct. This religion demands that the pious seek proof [for
their beliefs] in the sources of their religion ... Its lessons articulate that happiness results
from reason and insight, and that wretchedness and error accompany ignorance, neglect of
reason, and the snuffing of insight's light. 38
Islam thus prom<;>ted the required spirit of rational inquiry, as well as the
assimilation of new ideas and the advancement of culture and civilization. The
problem, according to al-Afghani, was that the cultivation of this spirit of rational
inquiry and progress was entrusted to the religious scholars. The scholars, by
insisting that believers had to adhere to taqlid of a legal school, were preventing
them from "seeking proof for their beliefs" in the primary sources of their religion,
keeping the people in "the darkness of ignorance," and thereby holding in abeyance
the progress of Islamic countries. Although al-Afghani and Shaykh 'Ilish both
participated in the 'Urabi Revolt, resisted European encroachment, and desired
greater communal unity, al-Afghani and other reformers believed that scholars like
'Ilish, as conservators of the religious/legal tradition, preferred to risk perpetuating
errors inherent in taqlid, in following their forebears' judgments, to the possibility
of introducing new errors into the tradition via ijtihad. 'Ilish and those who held to
37 Jamal al-Din al-Afghani,
Radd-i-naichiriyyah [Reply to the Naturists], translated into Arabic by
Muhammad 'Abduh under the title al-Radd 'ala al-dahriyin [Refutation of the Materialists], in Al-A 'mal
al-kamilah li-Jamal al-Din al-Afghani, Muhammad 'Imarah, ed. (Cairo, n.d.), 176-77. The Naturists
were followers of the Indian thinker Sayyid Ahmad Khan, who proposed that the acts of God, in his
view laws of nature, were the same as the will of God ("Ahmad Khan," Encyclopedia of Islam, 2d edn.,
CD-ROM, 1: 287b). The Naturists were not opposed to science, but al-Afghani believed that their
British-influenced founder had imbibed too much of positivist prejudices against Islam, which included
the idea that Islam's central doctrines were contradictory to the principles of positive knowledge.
AI-Afghani's argument emphasized the importance of using ijtihad to reinforce religious faith.
38 AI-Afghani, Radd, 177.
AMERICAN HISTORICAL REVIEW
JUNE
2003
Chaos on the Earth
725
juridical taqlid were implicated in the stagnation of their country. Some reformers
went so far as to label them al-jamidun, the stagnant ones. 39
Al-Afghani's definitions of taqlid and ijtihad were subtly different from those
used by the legal scholar 'Ilish. Whereas 'Ilish defined taqlid strictly as a method for
providing legal guidance, in which someone who did not have the knowledge and
training to interpret religious sources followed the opinion of an authority on legal
matters, al-Afghani defined it as a violation of the Qur'anic injunction to seek out
proof for one's beliefs rather than doing as one's forefathers did. Al-Afghani's
interpretation of taqlid was based on verses of the Qur'an in which ignorant or
stubborn peoples refused to abandon the corrupt ways of their forefathers for the
religion of the prophets. For example:
When it is said to them: "Follow what God has revealed," they say "No, we shall follow the
ways of our fathers," even though their fathers were void of wisdom and guidance. The
parable of those who reject faith is as if one were to shout like a goatherd to things that listen
to nothing but calls and cries: Deaf, dumb, and blind, they are devoid of wisdom. 40
'Ilish had distinguished between legal and reprehensible taqlid, but at-Afghani
chose to confiate the two. Al-Afghani therefore stripped taqlid of its technical, legal
meaning and recast it as "blind imitation" of others' beliefs. This redefined taqlid
came to the forefront in at-Afghani's philosophy as the primary cause and constant
of social stagnation and decay:
the beliefs of the religion should be the first thing engraven on people's souls, built on solid
evidence and sound proofs, so that their beliefs do not rest upon the opinions of others. They
must disdain contentedness with following [taqlid] their forefathers on these matters. If a
tenet of faith is held in a person's imagination without proof and without evidence, he may
not be convinced, and will not be a believer. Also, the mind of one who accepts beliefs on
the basis of supposition becomes accustomed to following suppositions, and he who is
content to believe as did his forefathers suffers from the same harm [as did his forefathers]
from foolish notions and divergences of opinion. The minds of those who follow supposition
and are content with taqlid are prevented from moving beyond that to which their perception
is accustomed; they do not follow the schools of thought and they do not walk along the
paths of thoughtful speculation. If they continue like this, ignorance will gradually deceive
them. Stupidity ties their arms behind their backs so that their minds are prevented from
performing any rational function at all. They become incapable of distinguishing between
good and evil, and they are surrounded by wretchedness. 41
So whereas 'Ilish's scheme of communal unity had been threatened by the
independent ijtihad of the revivalists, at-Afghani's scheme to rouse Islamic society
from stagnation relied on renewed independent ijtihad. First, the jurists had to be
convinced that independent ijtihad would be beneficial for the Islamic community.
Then, ijtihad would be used to reevaluate the sources of religion and reinterpret
them in light of contemporary conditions, which would result in the gradual
adaptation of the legal tradition to the needs and concerns of contemporary
Muslims.
39 See, for example, Muhammad al-Ahmadi al-Zawahiri, Al- 'Ilm wal- 'ulama' wa al-nizam al-ta 'lim,
2d edn., Fakhr al-Din Zawahiri, intro. (1904; rpt. edn., n.p., 1955), 89.
4 0 Qur'an 2: 170-71.
41 Al-Mghani, Radd, 176.
AMERICAN HISTORICAL REVIEW
JUNE
2003
726
Indira Falk Gesink
However, it was not enough for ijtihad to be revived as a legal method; that was
simply a first step. Ordinary Muslims had to be taught to read and understand the
sources of their religion themselves, to develop critical acumen, and to form their
own opinions. Al-Afghani made the following comment during an informal
gathering: "What does it mean that the gate of ijtihad is closed? By what textual
authority was it closed? Which Imam said that no Muslim should do ijtihad for the
purposes of jurisprudence, or derive guidance from the Qur'an and the sound
hadith and struggle to renew and widen his understanding of them, or infer by
means of analogy things that accord with the contemporary sciences?" Al-Afghani
quoted the Qur'an to suggest that it had been sent down to be understood and
interpreted by humans using their own powers of reasoning. This did not mean that
all humans could interpret it but that anyone with a reasonable degree of religious
learning could. In order to derive rulings for oneself, one would still have to master
the Arabic language, be sane, and be familiar with the sound hadiths, the stories of
the Companions, the rulings approved by consensus, the rulings derived from
unambiguous verses of the Qur'an or from analogy. 42 This kind of knowledge was,
however, more widely available than it had been in the past, and so expanding the
franchise of ijtihad would result in a more informed, more committed, and
therefore stronger Muslim community.
Moreover, ideally, the principle of ijtihad should be applied to all kinds of
knowledge, not just to religious sources. Al-Afghani used the term ijtihad in his
writings not just to designate a legal methodology but also to intimate an attitude
toward knowledge itself, an attitude of critical curiosity and individual inquiry.
Therefore, the term ijtihad could be applied to any Muslim male's exercise of his
critical faculty and scholarship to arrive at an answer to a question, even a scientific
question. 43
Al-Afghani furthermore argued that, in order to widen the scope of ijtihad and
bring the methodology of ijtihad to bear on more avenues of knowledge, existing
educational systems would have to be changed. According to al-Afghani, the old
Islamic madrasa system was imbued with institutions that supported the practice of
taqlid; it encouraged excessive deference to the opinions of instructors, as if the
instructors were the ultimate arbiters of truth. Some teachers had fallen into the
practice of teaching commentaries (shuruh) on texts rather than the original texts
themselves. This was common because some original texts were densely written,
often in archaic language, regional dialects, or had tightly structured logical
arguments, and the commentaries were easier for students to comprehend.
However, the commentaries themselves often required explanation, and so some42 Muhammad al-Makhzumi, Khatirat
Sayyid Jamal al-Din al-Afghani al-Husayni (Beirut, 1931),
176-79. Al-Afghani claimed that had the Imams still been alive they would still have been performing
ijtihad and updating the law, and that contemporary interpretations might be "closer to the truth" than
ancient ones (176, 178-79). Contemporary scientific information would not have been revealed in the
Qur'an because the people who received it in the seventh century would have regarded it as a lie
(161-62).
43 According to Hallaq,
mid to late twentieth-century reformers exercised their own version of
ijtihad, "this in no way being akin ... to the traditional form of ijtihad." Hallaq traces the beginnings
of reformulation of legal theory to Muhammad 'Abduh (History of Islamic Legal Theories, 210-12, 220),
but 'Abduh's redefinition of ijtihad was absorbed from al-Afghani and other reformers such as Rifa'ah
al-Tahtawi.
AMERICAN HISTORICAL REVIEW
JUNE
2003
Chaos on the Earth
727
times super-commentaries were written in the margins of the commentaries, and
sometimes marginal glosses were written about other super-commentaries. When
scholars taught the commentaries rather than the original texts, students were no
longer exposed to the ideas of the original authors but only to others' interpretations, and the interpretations became the object of knowledge to be memorized and
reproduced. According to al-Afghani, this method of teaching, as well as the
attitude of taqlid-bound scholars like 'Ilish, encouraged students to believe that they
must accept the interpretations of the commentators or their instructors-if they
attempted to interpret the original texts, they might in their ignorance pervert the
author's meaning. Thus was the practice of taqlid entrenched in the minds of
students, and thus were their critical faculties weakened.
Al-Afghani attracted a large number of followers from among both madrasa
students and the students of civil schools. Al-Afghani also encouraged his followers
to take advantage of the emerging Arabic print media to enlighten the public. Some
of at-Afghani's followers, like al-Afghani himself, became Pan-Islamists, who
sought to strengthen and unify the worldwide Muslim community in order to enable
Muslims to throw off the yoke of European domination. Some of his followers were
Christians, Jews, and secular nationalists, who were less interested in Muslim unity
than in strengthening the Arab or Egyptian nations. 44 However, all carried with
them al-Afghani's campaign for a new type of ijtihad, an ijtihad to be practiced not
just by jurists but by any properly educated Muslim. Today, popular manifestos on
Islamic law and the duties of Muslims often promote the same agenda: ijtihad is
now not just the province of the legal specialist, it is a duty of all Muslims.
OVER THE DECADES OF THE TWENTIETH CENTURY, conservatives like 'Ilish WhO had
defended taqlid slipped into obscurity, their efforts at first ridiculed as reactionary,
then discarded as survivals of a stagnant past. 45 But many of al-Afghani's followers
took up his call for ijtihad-based reform; several became pioneers of Arabic
editorial journalism and dominated the early market for editorials. Arabic journals,
many based in Egypt, had international audiences. As a consequence, al-Afghani's
ideas came to dominate the international public discourse on reform, religious
interpretation, and law in Muslim countries. Seven of the eight most popular
newspapers and journals published in Egypt between 1870 and 1911 unabashedly
supported some version of al-Afghani's program and utilized at-Afghani's populist
concept of ijtihad. These included two official government periodicals, al-Waqa'i'
al-Misriyyah (Egyptian Events) and Rawdat al-madaris (Garden of Schools);
al- 'Urwah al-wuthqah (The Indissoluble Bond), a revolutionary journal published in
Paris by al-Afghani and his disciples in exile; al-Mu 'ayyad (The Confirmed), Egypt's
44 See Charles C. Adams, Islam and Modernism in Egypt: A Study of the Modem Reform Movement
Inaugurated by Muhammad 'Abduh (New York, 1933); Albert Hourani, Arabic Thought in the Liberal
Age (1962; rpt. edn., Cambridge, 1983); Mitchell, Society of the Muslim Brothers; Irene Gendzier,
Practical Visions of Ya'qub Sanu' (Cambridge, Mass., 1966).
45 Muhammad Rashid Rida, Tarikh al-ustadh al-imam al-shaykh Muhammad 'Abduh, 2 vols. (1908;
rpt. ed11., Cairo, 1931, 1947), 1: 133-35, 2: 425; Jurji Zaydan, Tarajim mashahir al-sharq fil-qam al-tasi'
'ashar, 2 vols., 2d rev. edn. (Cairo, 1910), 1: 305-06; Adams, Islam and Modernism, 30, 42-43, 97.
Adams described 'Ilish as a "violent reactionary."
AMERICAN HISTORICAL REVIEW
JUNE 2003
728
Indira Falk Gesink
most popular daily newspaper, run by Azhar-trained Shaykh 'Ali Yusuf; Misbah
al-sharq (Lantern of the East), a weekly run by Ibrahim al-Muwaylhi, personal
secretary to the exiled khedive (hereditary viceroy); al-Hayat (Life), a daily run by
a second-generation disciple, Muhammad Farid Wagdy; and the intrepid modernist
mouthpiece, Muhammad Rashid Rida's monthly journal al-Manar (The Lighthouse).46 Six of these were owned or controlled by al-Afghani himself, the
pro-ijtihad reformer Rifa'ah al-Tahtawi, or at-Afghani's disciples. The views of the
latter two journals have had an enormous impact on the twentieth century, not least
because of their considerable influence on the ideas of Hasan al-Banna', founder of
the Muslim Brotherhood.47
More than being simply pro-ijtihad, however, these periodicals promulgated the
idea that the religious scholars were stagnating, that they had to be convinced that
contemporary scientific discoveries and foreign political events were relevant to the
lives of ordinary Egyptians, and that they were primarily responsible for preventing
Muslims from reclaiming their lost glories. For example, one of the editors of
Rawdat al-madaris, 'Ali Pasha Mubarak, accused the scholars of al-Azhar of
teaching "books ... not knowledge." 48 Al-Mu'ayyad's Azhar-trained owner even
criticized his former teachers: "our scholars work today writing treatises in answer
to [ancient philosophical controversies]; it is necessary that they work on things that
are relevant to the current state of things and answer those who today are against
lslam." 49 Likewise, al-Manar's stated main objectives were to reform education,
rewrite textbooks, and eradicate imitation of obsolete traditions: "until that which
is broken is made whole and the blind imitation [al-taqlid al-a 'rna] of all who went
before us is made into knowledge and certainty." 50 Journals did exist in which those
who opposed the revival of ijtihad published articles, but they never achieved
international prominence. Over the course of the twentieth century, they languished in dusty archives, virtually untouched by historians, until even their names
were forgotten.s1
Moreover, it was the reformers who were likely to know European languages
and travel in international circles, it was the reformers who were tapped by
members of the Egyptian and, later, the British government to lead various
government efforts at reform, and it was the reformers who met and instructed
Orientalist scholars and laid their journals in Western hands. 52 At-Afghani's
46 Al-Waqa'i' al-Misriyyah (Cairo, 1828-1942), Dawriyyat nos. 71, 545, Dar ai-Kutub (hereafter,
DK), Cairo; Rawdat al-madaris al-Misriyyah (Cairo, 1870-77), Dawriyyat nos. 506-09, DK, Cairo;
al-Mu'ayyad (Cairo, 1889-1915), Dawriyyat no. 60, DK, Cairo; Misbah al-sharq (Cairo, 1898-1903),
Dawriyyat no. 1194, DK, Cairo; al-Manar (Cairo, 1897-1935), Arabic periodicals, American University
in Cairo. See also Sami 'Abd al-'Aziz ai-Kumi, Al-Sihafah al-islamiyyah fi Misr fil-qam al-tasi' 'ashar
(Mansurah, Egypt, 1992).
47 Mitchell, Society of the Muslim Brothers, 5, 322.
48 Ahmad Amin, "'Ali Pasha Mubarak," Zu'ama' al-islah fil-'asr al-hadith (Beirut, 1979), 195.
49 'Ali Yusuf, "Ta'mim al-ta'lim," al-Adab 3, no. 96 (November 22, 1889): 485.
50 Muhammad Rashid Rida, al-Manar 1 (March 15, 1898); al-Kumi, Al-Sihafah al-islamiyyah, 92.
51 Biographers of the influential reformer Muhammad 'Abduh mentioned that he had once sued
several newspapers for libel, but the names of the offending papers were misquoted in the single source
that mentioned them. Ahmad Shafiq Pasha, Mudhakkirati fi nisf qam, vol. 2, book 2 (Cairo, 1934-36),
40; Indira F. Gesink, "Beyond Modernisms" (PhD dissertation, Washington University in St. Louis,
2000).
52 The most oft-quoted source on Islamic modernism is Charles C. Adams's work Islam and
Modernism in Egypt and its Arabic translation. Adams used modernist sources almost exclusively, most
AMERICAN HISTORICAL REVIEW
JUNE
2003
Chaos on the Earth
729
followers became the intellectual and political elite of the early twentieth century,
including Sa'd Zaghlul, chief architect of the Egyptian independence movement,
and Muhammad 'Abduh, chief mufti of Egypt from 1898-1905 and initiator of
modernist philosophies that traveled the globe. 'Abduh's ideas in particular
inspired Islamic nationalist movements in the Ottoman Empire, the creation of the
Muslim Brotherhood in 1928, and Palestinianjihadist organizations in the 1930s.s3
'Abduh and his follower Muhammad Rashid Rida were largely responsible for
spreading the idea that ijtihad was an essential duty required of all Muslims. 'Abduh
spent his life trying to eliminate the vestiges of taqlid from the legal and educational
systems of Egypt. Rida wrote in al-Manar that taqlid had lulled the Muslim
community into intellectual laziness, which undermined their faith and weakened
their commitment to Islam. In order to "cure" this weakness, taqlid of the founding
Imams would have to be replaced by a kind of ijtihad based on the Qur'an and the
practice of the early community (salaf), which could be performed by all who were
educated in Arabic; this would help strengthen their beliefs and unify the
community. 54 For the insufficiently educated, 'Abduh and Rida did permit ittiba',
which meant following someone else's ruling with knowledge of the sources and
reasoning used.ss
Opponents of the new definition of ijtihad reacted with horror. One pointed out
that what al-Afghani's followers "imagined to be religious reform" would lead to
"religious anarchy" by "destroying trust in the religious law." He exclaimed, "My
heart constricts from hearing your argument for abandoning taqlid . . . for I
anticipate chaos in religion for the common Muslims." Revival of unbridled ijtihad
would only result in further. divisions in the religious community: "what I think of
this hell-spawned reform is that there will be afitnah [chaos or civil warfare] on the
earth and a great corruption." Another complained that he feared "the proliferation of madhhabs from the proliferation of opinions." 56 These were the same
concerns raised by 'Ilish in 1882: abrogating taqlid and extending the franchise for
ijtihad would undermine the rule of law and threaten the stability of beliefs that
underlay the social order and imposed some unity on the Sunni Muslim community.
Division and uncertainty would result. Even 'Abduh, as one of the most prominent
advocates of revived ijtihad, said that a layman's ijtihad should be applied only to
notably Muhammad Rashid Rida's journal al-Manar and his Tarikh al-ustadh at-imam, and Jurji
Zaydan's Tarajim mashahir al-sharq fil-qam al-tasi' 'ashar [Biographies of the celebrities of the East in
the nineteenth century].
53 See, for example, William L. Cleveland, Islam against the West: Shakib Arslan and the Campaign
for Islamic Nationalism (Austin, Tex., 1985); Mitchell, Society of the Muslim Brothers, 5, 14, 23, 237,321,
325; Abdullah Schleifer, "Izz al-Din al-Qassam: Preacher and Mujahid," in Struggle and Survival in the
Modem Middle East, Edmund Burke III, ed. (Berkeley, Calif., 1993), 166-67.
54 "Al-Muhawirat bayna al-musallih wal-muqallid: Al-muhawirah al-thaniyyah," al-Manar 3, no. 29
(December 23, 1900): 677; "Al-Muhawirat bayna al-musallih wal-muqallid: Al-muhawirah al-rabi'ah,"
al-Manar 3, no. 32 (February 6, 1901): 895, 897, 903; "Al-Muhawirah al-khamisah ... al-jafr
wal-zayirjah," al-Manar 4 (March 7, 1901): 53, 54; "Al-Muhawirah al-sadisah ... al-ijtihad wal-taqlid,"
al-Manar 4, no. 5 (May 5, 1901): 165-69; "Al-Muhawirah al-sabi'ah ... al-ijtihad wal-wihdah
al-islamiyyah," al-Manar 4 (May 19, 1901): 206, 208, 215-16; "Al-Muhawirah al-tasi'ah ... al-taqlid
wal-talfiq wal-ijma'," al-Manar 4, no. 10 (July 17, 1901): 362.
55 Daniel Brown, Re-thinking Tradition in Modem Islamic Thought (Cambridge, 1996), 31.
5 6 "Al-Muhawirah al-sadisah," 169; and "Al-Muhawirah al-sabi'ah," 212; Muhammad Rashid Rida,
"Irad 'ala tark al-taqlid," al-Manar 8 (June 19, 1905): 294.
AMERICAN HISTORICAL REVIEW
JUNE
2003
730
Indira Falk Gesink
matters of personal belief and not to matters of law. 57 But the Egyptian public,
increasingly socialized into late nineteenth-century Western notions of progress,
and encouraged by modernist historians' portrayals of their history, glossed over the
warnings and rejected conservatives' objections as stale and reactionary. And
through the international market for reprints of Egyptian modernist journals
("from Fez to Peking") and the graduates of schools influenced by modernist
reforms, lay ijtihad was accepted by an international audience. 58
The interpretation of taqlid as a cause of social stagnation, and the redefinition
of ijtihad as the cure, came to dominate both paradigms of "modern" Islam and
Western Orientalist descriptions of Islamic law. By the early twentieth century,
Orientalists had picked up the rhetoric about the closure of the gate of ijtihad and
were instructing the next generation of Western scholars in the centuries of legal
stagnation under Islamic law. By the end of the twentieth century, modernist
prejudices toward the intellectual superiority of the redefined ijtihad had become so
rooted in intellectual Islamic thought that many considered taqlid a perversion of
Truth, a reification of a text that is open to multiple interpretations. 59 Ijtihad had
become the hallmark of modern attitudes, taqlid a vestige of an embarrassing past.
IN THE TWENTIETH CENTURY, the redefined ijtihad was accepted as the intellectually
preferred mode of legal interpretation, among not only revivalist and militant
groups but also many "orthodox" Sunnis. While Islamic components of the judicial
systems in countries such as Egypt and Pakistan still cling to the legal stability
inherent in taqlid, they are increasingly challenged by governments and intellectuals
who seek legal change via renewed ijtihad. 60 Likewise, assertions that the "gate of
ijtihad" had been closed, and that taqlid was responsible for Islam's political
subordination, are common. The historical reality in which ijtihad continued to be
used to bring rulings into conformity with contemporary practices has only been
uncovered in the last decade, and the rationale behind taqlid still remains buried
under a century of polemical fallout. The redefinition of ijtihad and taqlid has had
a transformative effect on the political landscape of the Islamic world. The
reformers' extension of the right of ijtihad to lay believers contributed to the rise of
many divergent sects, from secularists to relativists to militant groups. The
emergence of twentieth-century sects from Egypt-based modernist movements and
these sects' adoption of lay ijtihad has already been well established by other
scholars. For example, the founder of the Muslim Brotherhood, Hasan al-Banna',
the Brotherhood's chief theorist of the 1960s, Sayyid Qutb, and members of the
Brotherhood's more militant splinter groups all trace their philosophies to Jamal
al-Din al-Afghani and the early Islamic modernists' popularization of ijtihad. Most
Rida, "Irad 'ala tark al-taqlid," 295.
International circulation figures and influence from Ami Ayalon, The Press in the Arab Middle
East: A History (London, 1995), 50, 53, 54, 55, 57, 59.
59 Representative of this perspective are works of Islamic modernists such as Muhammad Arkoun,
"Postivism and Tradition in an Islamic Perspective," Diogenes, no. 127 (Fall 1984): esp. 86 and 89; and
Taha J. 'Aiwani, "Taqlid and the Stagnation of the Muslim Mind," American Journal of Islamic Social
Sciences 8, no. 3 (Fall 1991): 513-24.
60 John Esposito, Women in Muslim Family Law (Syracuse, N.Y., 1982), 105.
57
58
AMERICAN HISTORICAL REVIEW
JUNE
2003
731
Chaos on the Earth
follow elaborations of al-Afghani's philosophies by Muhammad 'Abduh's and
Muhammad Rashid Rida, both of whom tended to assume that ijtihad would lead
believers to the essence of a "true" Islam. 61 According to Shukri Mustafa, executed
leader of the militant splinter group Jama'at al-Muslimin (al-Takfir wa al-Hijra),
"Islam has been in decline ever since men have ceased to draw their lessons directly
from the Koran and the Sunna, and have instead followed the tradition of other
men, those who call themselves imams." Shukri Mustafa's own interpretation of
Qur'anic verses 2: 216 and 2: 232 indicated to him that God possesses knowledge
and we do not, and that therefore everything outside of the Qur'an and hadith is
based on uncertain knowledge-including the rulings and methods generated by
centuries of jurisprudence. In his opinion, the Qur'an is clear Arabic and
understandable by anyone who has a good dictionary, and so there is no need to be
bound by texts of antique interpretations. 62
This, however, leaves the leaders of groups such as the Muslim Brotherhood
with a paradox: they want believers to engage in ijtihad to strengthen their faith, to
understand the sources of their religion and "inscribe their beliefs on their souls"
in the manner al-Afghani described, and yet they want believers to reach the same
conclusions about the principles of their faith as their leaders do-especially
regarding the types of action necessary to achieve the group's social and political
goals. They have therefore tended to restrict members' ijtihad to results they
approve. Like al-Afghani's follower Muhammad 'Abduh, twentieth-century groups
did this by distinguishing between taqlid, which they defined as ignorant imitation,
and ittiba ', which means following a ruling with full knowledge of its sources and
method of reasoning. However, ittiba' does not serve legal consistency in the same
way taqlid once did. Ittiba' only ensures consistency if everyone uses the same
sources and reaches the same conclusions as the author of the ruling in question.
Hence it is still an imperfect solution, and disagreements over interpretation still
produce disgruntled radicals and more splinter groups.63 Thus the groups that
embrace individual ijtihad cannot prevent their own dissolution without modifying
the principles that gave rise to them in the first place.
Governments also have to deal with the ijtihad paradox. The proliferation of
individual ijtihad prevents any significant degree of uniformity in legal interpretation: thus it is difficult to establish definitively recognized rules on the status of
women, or on the admissibility of violence against other Muslims, or on criminal or
even commercial regulations-unless the government imposes a hegemonic legal
code. Such an imposition can have negative consequences, such as for example
when Gamal 'Abd al-Nasir, president of Egypt (1954-1970), began in the 1960s to
promote a state-sanctioned articulation of Islam. That action alienated the Muslim
Brotherhood and contributed to the formation of various militant splinter groups,
including Hamas (which employed ijtihad to respond to political circumstances in
Israel's occupied territories), al-Takfir wa al-Hijra (responsible for the assassination
of Anwar al-Sadat), and al-Gama'a al-Islamiyya (the "Islamic Group" responsible
Mitchell, Society of the Muslim Brothers, 5, 14, 23, 186, 237-39, 321; Kepel, Muslim Extremism, 79.
Quoted in Kepel, Muslim Extremism, 79. See also Gregory Starrett, Putting Islam to Work:
Education, Politics, and Religious Transformation in Egypt (Berkeley, Calif., 1998), 231.
63 Mitchell, Society of the Muslim Brothers, 326, 327.
61
62
AMERICAN HISTORICAL REVIEW
JUNE
2003
732
Indira Falk Gesink
for the 1997 attack on tourists at Luxor and for producing key personnel in
al-Qaida, such as Ayman al-Zawahiri), among others. Egypt's state interpretation
of Islam was also ridiculed by Muslims from the secularist end of the spectrum, one
of whom claimed that an organ of state Islam was a "fake" engineered to undermine
Islamist popularity. 64 The proliferation of independent ijtihad gives any faction
within society a readily available weapon with which to challenge the government's
religious legitimacy-much as taqlid was wielded by the scholars in previous
centuries, but with less stabilizing effects.
The paradox persists even if a government declares that it will establish legal
norms based on the shari'a, as for example in Saudi Arabia. The Saudi government
still faces criticism from religious scholars who embrace different sets of interpretations, and from laymen who wish to discredit the Saudi family, both of whom
claim that the government is not truly Islamic. When the Saudi regime imprisoned
the scholars Salman al-Awdah and Safar al-Hawali for speaking out against the
regime, one of their lay followers, Osama bin Ladin, called up his contacts from the
Afghan war for a campaign against the government and their American supporters.
Bin Ladin said:
the Saudi regime imposed on the people a life that does not appeal to the free believer. They
wanted the people to eat and drink and celebrate the praise of God, but if the people wanted
to encourage what is right and forbid what is wrong [a duty enjoined upon them by the
Qur'an], they can't. Rather, the regime dismisses them from their jobs and ... they are
detained in prisons. I have rejected to live this submissive life ... I found myself forced ...
to carry out a small part of my duty. 65
Bin Ladin, whose formal education consists of college degrees in business and
engineering, has carried out his "duty" in part by issuing fatwas, or legal advice,
previously the prerogative of the specially trained legal scholars, the muftis. Indeed,
the issuing of "lay fatwas" has proliferated to such an extent that almost any
authority figure can claim that privilege and be accepted, despite the fact that such
fatwas are often reached using simplistic methods of legal derivation that ignore
contrary evidence and effectively replace an authoritative text with an authoritarian
interpreter. 66 In countries where trained muftis generally serve a state-sanctioned
version of Islam, such as Egypt, muftis insist that lay fatwas are invalid. But the
mufti's fatwa has never been more than an opinion anyway, and petitioners may prefer
the politics of lay muftis. Indeed, widespread acceptance of lay ijtihad justifies
differences of opinion on the sectarian, political, or individual level and can delegitimize governments' attempts to establish legal norms within their own countries.
The ijtihad paradox also clouds the possibility for greater political unity among
Islamic countries, an ideal that political analysts often assume to be the goal of
militant organizations such as al-Qaida. Islamic law in Saudi Arabia may be quite
different from Islamic law as practiced by the Sudanese or the Taliban. In fact,
64 Kepel, Muslim Extremism, 37-67, 70-102; Emmanuel Sivan, Radical Islam (1985; rpt. edn., New
Haven, Conn., 1990), 50-56; Starrett, Putting Islam to Work, 245.
65 Osama bin Ladin, interviewed by Peter Arnett, CNN (March 1997), available at www.anusha.com/osamaint.htm (May 11, 2003).
66 Abou El Fadl, "Text and Authority," and "Construction of the Authoritarian," in Authoritative
and the Authoritarian, 33-38, 89-99.
AMERICAN HISTORICAL REVIEW
JUNE
2003
Chaos on the Earth
733
some scholars now say that there is no such thing as "Islamic law" per se, since there
are as many possibilities for variant interpretations of some issues as there are
interpreters. As one famous contemporary Muslim scientist, speaking of the
Qur'an, said: "the text is mute," and only its interpreters give it voice. 67 This renders
the theoretical "ideal" of a great Islamic empire, unified by adherence to the shari'a,
problematic to say the least.
The redefinition of ijtihad as a lay rather than restricted practice has facilitated
radical transformations in the ways Muslims define Islam's unifying ethical ideals.
Communities of Muslims became bound by the search for a "true" Islam, and a set
of hermeneutical tools for that search, but the hermeneutics of "true" Islam only
produce multiple truths and multiple communities. I do not argue that this
independence of thought and religious diversity is inherently dangerous, or that law
must be as rigid as the nineteenth-century conservatives claimed it was in order to
preserve social order. Indeed, the search for religious truth is part of human
existence, and legal systems must be able to adapt to changing social circumstances.
Although those who sought to preserve the unity of their community by restricting
ijtihad predicted the contemporary upheaval in public belief, this "chaos on the
earth," a return to taqlid would probably not provide the flexibility needed to
maintain a legitimate legal system today. Some sort of synthesis of traditional
sources and methodologies that restricts ijtihad and provision of fatwas to specialists, to encourage some measure of social consensus on the definition of the
community, and its legal basis, is needed. Attempts so far to create such a synthesis
have been given little popular attention. 68
Journalistic attempts to explain Islamic militancy as reactionary adherence to an
outdated and inflexible legal system are informed by an invented history. Islamic
extremism is partly a result of the radical flexibility of twentieth-century Islam, not
its purported rigidity. The Islamic legal tradition was in past practice adaptable to
contemporary social conditions, and attempts to claim that it was not were largely
political in nature and rhetorical in effect. However, a debate in the nineteenth
century over its very flexibility fostered both an invented tradition of legal
inflexibility, which continues to influence Western and Muslim views, and a
subsequent dramatic move toward lay interpretation. Widespread lay interpretation
has allowed individuals to read their own purposes into legal sources and
manipulate them to serve various political agendas-producing the "chaos on the
earth" that nineteenth-century "reactionaries" had tried to prevent.
67 Abdolkarim Soroosh, "Islam, Pluralism and Democracy," paper delivered at the
annual meeting
of the Middle East Studies Association, Saturday, December 5, 1998.
68 For examples of and suggestions for new syntheses, see Wael Hallaq, "Crises of Modernity," in
History of Islamic Legal Theories, 207-54; and Abou El Fad!, Authoritative and the Authoritarian.
Indira Falk Gesink is an assistant professor of Middle Eastern history at
Baldwin-Wallace College in Berea, Ohio, where she has been teaching since
receiving her doctorate from Washington University in St. Louis in 2000. This
article generated itself from her current project, a book on nineteenth-century
debates between conservative and reformist scholars on reform of Islamic law
and education at the Azhar madrasa in Cairo.
AMERICAN HISTORICAL REVIEW
JUNE
2003