In this essay, the writer will pursue an alternative strategy towards reconstructing the history of taqlid within the early Shafi’i school.
The concept of taqlid in Islamic law has long received a bad press. Juxtaposed with the creative vigor of ijtihad–direct and independent engagement with the sacred sources–taqlid, or legal conformism, has been dismissed as “servile imitation of other jurisconsults” (1) or “slavish obedience to one or other of the four recognized legal schools.” (2) By approaching the concept from the perspective of legal studies, Norman Calder. Mohammad Fadel, Wael Hallaq, and Sherman Jackson have provided important correctives to this disparaging view. (3) Drawing primarily on analyses of post-formative legal texts, they have demonstrated that, instead of representing the mere empty shell of ijtihad, taqlid in fact embodies a more developed form of law, since it can accommodate precedent and communal legal reasoning in contrast to the unrealistically solipsistic process of ijtihad. The consequent development of a body of binding precedent was the crucial ingredient that enabled the establishment and survival of the schools of Islamic law (madhahib).
Methodologically, what these studies of taqlid have in common is that they employ the term as an objective description of practice among Muslim jurists, unaffected by the self-understanding of the jurists themselves. The rationale for such externalism lies in the perceived existence of a gulf between the reality of juridical practice and the indigenous discourse on legal hermeneutics (usul al-fiqh), which long maintained a strident rejection of taqlid. Only in the post-formative period are Muslim jurists seen to begin the reconciliation between theory and practice by explicitly acknowledging the practice of taqlid by the majority of their predecessors. (4) Given that the theorization of taqlid in early legal theory appears to have little relevance to the actual modus operandi of early jurists, modern scholars have been left to define taqlid for themselves and then to apply their definitions to the works of the jurists whom they study. This has given rise to competing classifications: while someone like Muhammad b. Idris al-Shafi’i (d. 204/820) clearly did not see himself as a follower, or muqallid, the modern scholar–based on his own definition–“unmasks” him as actually practicing taqlid. (5)
In this essay, I will pursue an alternative strategy towards reconstructing the history of taqlid within the early Shafi’i school. First, by tracing the meaning and function of the concept in the intellectual context within which it emerged–namely, the scholarship of al-Shafi’i and of those scholars who inspired and were inspired by him–I demonstrate that the Shafi’i principled rejection of taqlid in works of legal hermeneutics was intimately connected to the very raison d’etre of the discipline of usul as conceived by al-Shafi’i. Second, I argue that beyond the ideal theory of usul, a conscious debate regarding the actual practice of taqlid can be discovered at the unlikely site of positive law (fiqh). This debate reveals that classical Muslim scholars were keenly aware of the tension between the taqlid taboo instituted by al-Shafi’i and the practical advantages of acknowledging and following prior legal positions. They sought to resolve this tension by developing an implicit theory of precedent, which paralleled but remained separate from the discourse on ijtihad and taqlid within legal hermeneutics. These dual discourses created a structure of authority within the Shafi’i school that simultaneously guaranteed the integrity of a closed canon of sacred sources and made possible the communal cohesion and predictability generated by precedent.
Title: Rethinking Taqlid in the Early Shafi’i School
Author: Ahmed El Shamsy
Published in: Journal of the American Oriental Society, Vol. 128, No. 1
Length: 23 pages