The Crisis in Fiqh and the Methodology of ljtihad

Abstract

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