Citation: Alicia Daniel, Review of Sherman A. Jackson, Taqlīd, Legal Scaffolding and the Scope of Legal Injunctions in Post-Formative Theory Muṭlaq and ʿĀmm in the Jurisprudence of Shihāb al-Dīn al-Qarāfī, [Islamic Law and Society 3, no. 2 (1996): 165–92], Islamic Law Blog (Mar. 2017)
Summary
Scholars currently disagree about the origins and utility of the different approaches to interpretation in Islamic Law. However, it is clear that the most common form of interpretation or legal reasoning is a type of legal scaffolding known as taqlīd, in which scholars use the writings of past jurists as interpretive tools instead of reasoning from the texts of scripture directly (that is, through a process called ijtihād). While many consider taqlīd less important than ijtihād, taqlīd is actually the hallmark of an advanced legal system. Like stare decisis in Western legal thought, taqlīd keeps scholars from having to reinvent the wheel in every piece of writing, allowing them to perform innovative legal analysis. This post provides a “plain English” review of the article: Sherman A. Jackson, Legal Scaffolding and the Scope of Legal Injunctions in Post-Formative Theory: Muṭlaq and ʿĀmm in the Jurisprudence of Shihāb al-Dīn al-Qarāfī, Islamic Law and Society 3, no. 2 (1996): 165–92.
The Taqlīd Debate
There is a lively debate among scholars of Islamic law regarding the system’s two main types of legal reasoning. When Islamic law was in its infancy, scholars relied solely on a method called ijtihād, which involved “the direct interpretation of scripture.” Throughout the history of Islamic law, each jurist has sought, as a primary goal, “to establish himself as an authority (i.e., one who possesses the ability to enlist compliance on the belief that it is right to follow him).”
During the founding period of Islamic law, part of the definition of ijtihād for each scholar was “the clear and open advocacy of views as having resulted from such a process.” Following the establishment and mutual recognition of four Sunnī schools of law, which occurred around the latter half of the fifth/eleventh century, the methods of legal reasoning began to change even as the goals remained the same. Scholars of Islamic legal studies disagree over whether ijtihād died out completely, but it is clear that another type of legal reasoning, taqlīd, became dominant and remains so today.
Taqlīd involves using previous legal scholarship to interpret scripture and give weight to one’s own legal opinions. As the schools of law became more established and respected, it became necessary for each scholar to work against the backdrop of his school’s existing doctrine, leading to the rise of taqlīd as the primary method of legal interpretation in Islamic law.
A New Perspective
In disagreeing about whether ijtihād is still a viable method of legal reasoning, both sides of the debate have shown a distaste for taqlīd. Because taqlīd involves intermediate authorities, scholars commonly see it as a lesser form of legal reasoning, one that blindly follows prior doctrine. This is inaccurate.
Rather, taqlīd shows the maturity of the Islamic legal system and the continuing ingenuity of scholars of Islamic law. Upon close examination, one can see that scholars primarily use taqlīd as a method of gaining credibility. Far from meekly accepting the conclusions of existing doctrine, scholars often use it as a way to borrow authority from previous authors for the purpose of promoting new opinions. By starting with the work of another scholar, modern jurists can build upon and challenge existing assumptions, expounding novel views and advocating for doctrinal change. Because taqlīd lends the weight of old authority to new work, it can be a powerful way of getting the legal community to consider fresh perspectives.
One example of a jurist who used taqlīd this way was Shihāb al-Dīn Qarāfī, one of the great jurists operating in the “post-formative” period or Islamic law, or after the founding period. In addressing one of the major controversies in Islamic law at the time, how to determine the scope of certain legal rules, Qarāfī set out an innovative way of interpreting key terms and paradigms in Islamic law. He did this through taqlīd, using existing authority as both a source of legitimacy and a starting point. However, rather than being boxed in by prior views, “his doctrine . . . was designed to add to the repertoire of post-formative mechanisms relied upon for legal scaffolding.” By using taqlīd, Qarāfī “provided additional mechanisms for effecting needed adjustments to existing law as opposed to a return to unmediated ijtihad.” Qarāfī’s work provides a compelling example of how taqlīd, far from being a stifling regression from ijtihād, represents an important sign of progress in the evolution of Islamic law.