Reexamining the Doors of Ijtihad in Najaf
Two stories stick in my mind most about my latest Najaf trip, each told by a different one of the four Grand Ayatollahs, and both of which demonstrate that too much can be made about this "doors of ijithad" propaganda that Shi'ism continues to pronounce as an identitarian distinction with Sunnism and that reformist Sunnis have historically pronounced as the means to liberalization of Islam (though recently they have moved to the maqasid something I've criticized before and will again but not now).
By way of background, Shi'ism holds to the legend that it has always believed that the doors of ijtihad are open, meaning that rules may be derived directly from sacred sources, namely the Qur'an and the Sunna, while in Sunnism, the doors of ijtihad are closed, and all relevant derivations have been made. There is scholarship on the Sunni world that suggests that the doors never really closed, most notably from Wael Hallaq, and certainly on the Shi'i side this notion of extensive ijtihad does not accord with my own understandings of Akhbari Shi'ism which had it's heyday perhaps a couple of centuries ago, but history isn't the point at the moment. Let's assume the legend and start with the postulate that Shi'ism allows interpretation of text from sacred sources, and Sunnism does not and has not since the end of the first millenium. I still maintain it does not add up to much of importance.
The first story was told by Sheikh Bashir Al Najafi. Sheikh Bashir indicated that there was a key distinction between the Islamic regime and every other human regime on earth. Every human regime other than the Islamic is, to him, "reactive", meaning that it carries on, and then finds itself in some sort of predicament over something, and has to pass a law to fix that predicament, and then it carries on with that change. Over time, a set of laws that resembles a system comes to pass, having addressed however imperfectly problems that have arisen. The Islamic system, by contrast, has all necessary rules put in place 1400 years ago (or maybe 1200 with the disappearance of the Mahdi, to be honest I can't remember what number he gave), and all that is left is for humans to "discover" those rules from the primary sources left to us. Sayyid Ja'far al-Hakim, rising star in the Najaf Hawza, points to something similar to explain how "theoretical processes of elucidation in Najaf have become correlative with praxological processes of experimentation in countries of advanced development." That's a quote, I had tried to translate it simultaneously from Arabic and failed (sorry team!) but this is accurate from benefit of hindsight. The point was that Najaf had theorized from looking at the text what the developed world has come to realize by trial and error. We have the answers, you're finally getting to them imperfectly.
The second story is from Sayyid Muhammad Saeed Al Hakeem. His was of the giant Grand Ayatollah of his day, Sayyid Muhsen Al-Hakim, whose reputation only grows with time and memory. Sayyid Muhsen, he told us, once derived a rule from Islamic text and then lay down to sleep. he realized in terror that he had made a mistake in the derivation just as he turned out the light. He could have made the correction in the morning, but, said Sayyid Muhammad Saeed, what if Sayyid Muhsen passed in his sleep? Then an incorrect derivation would exist in his handwriting, people would rely on this error, and the mistake would only propagate. He could not sleep until he marked it as wrong.
The obvious conclusion is of course that these eminent figures are not anything approaching Realists. They are very formalist. The rules are out there, they exist, there is one proper derivation, the role of the scholar is to use the techniques to "discover" استنبط the rule from the sacred text. These scholars aren't stupid, in fact they are incredibly smart. Of course they know humans can err, of course they have biases and predispositions, of course that might lead them to make a mistake, but that does not detract from the fact that in Najaf, there is a right answer, and the cleric's objective is to derive it, much like a geometry proof.
But think for a minute about what this means for the supposed interpretive flexibility of Shi'ism on the basis of ijtihad. If you are going to actually get up and say there is one right answer, and it is derived like a geometry proof, then in order to decide something differently from the generations earlier, you pretty much have to declare everyone who looked at the question before you to be in error. If the question has been hotly contested before, then sure you can jump in on a side, Najaf likes nothing more than argument about a particular question of law. The Muslim Brotherhood notion that "there are no disputes in Islam" is not something the clerics of Najaf have much patience for, for them disputes in Islam are where they spend their lives. Like I said, there is nothing intellectually deficient about these scholars--quite the opposite in fact.
But it is one thing to take a position on a disputed matter, quite another to break with generations of previous scholars on something they agreed upon. It's hard to credibly claim every single person has gotten the geometry proof wrong, but you. If you allow for flexibility in interpretation, if you assume policy, and economics, and sociological realities, play a role in the law, if you, to use Sheikh Bashir's distinction at least for this purpose, see a legal regime as "reactive", then it's easy to break with past generations. They lived in a time different from our own, they saw it differently and they "reacted" differently. But if the law has been buried in the texts for 1200 years, and we've been engaged in a slow process of trying to uncover it, then that's a much harder thing to change. And it helps to explain why, notwithstanding the supposedly continued opening of the gates of ijtihad, Shi'ism isn't much more progressive than Sunnism when the doctrine is examined up close, at the level of substantive rules, rather than discussed in cursory glimpses of theory related to open and closed doors.
So much for reexamining old rules, but what about developing new ones? That's the selling point in any event, not that Shi'ism is good at revisiting its old rules, but rather that it is adept at "discovering" them over time, whereas Sunnism stopped digging and so much remains under the dust for them. Again, closer examination might call this into some question. Let me use as an example a question posited by Richard Norton of Boston University to a couple of the Grand Ayatollahs, that of the permissibility of artificial insemination. (He was using it to understand the role of reason as a source of law, they pretty much said all the rules existed in the texts independent of reason, but that's a separate point). Now if we assume you to be Shi'i, you say the gates of ijtihad are open, so you go straight back to the Holy Books to find the answer. If you are Sunni, you have to go to the medieval texts. But either way, you are going to try to find an answer by digging for something.
That is, Sunni scholars don't say "look, the medievals didn't deal with it, so go away" to questions of moral imperative asked by believers to them. Assuming the Sunni scholars in question don't believe in ijtihad, they're still going to do digging, it's just they don't use the original sources, they use the medieval juristic compendia. There's quite a bit to search for still. Sanhuri's Civil Code shows how much can be "discovered" (as a Realist I'd say "invented" but let's leave that aside for now) from reviews of medieval sources rather than sacred text. There's nothing "frozen" about Sanhuri's codes.
To be clear, I think there is a clear distinction between Shi'ism and Sunnism but it isn't really about ijtihad but rather the people doing it. Shi'ism continues to have an authority that pronounces the rules, where Sunnism does not. Perhaps the continuing existence of that authority helps to explain why Shi'ism is willing to leave the gates of ijtihad open, where traditionalist Sunnism is more concerned that if everyone can run off and reread the Holy Books, meaningful interpretive control is lost.
Or maybe not, that part is speculation. The point really is that there's too much emphasis, both in Najaf and in our legal academies, on ijtihad and taqlid, sacred sources and medieval texts, as if any of that matters. It isn't the books that are important however, it's the people with the power to tell you what they mean who count. Najaf has such people, vested with such authority. The Azhar in Sunni Egypt does not, or at least they aren't accorded nearly the same level of authority. And therein lies all the difference.
HAH
By way of background, Shi'ism holds to the legend that it has always believed that the doors of ijtihad are open, meaning that rules may be derived directly from sacred sources, namely the Qur'an and the Sunna, while in Sunnism, the doors of ijtihad are closed, and all relevant derivations have been made. There is scholarship on the Sunni world that suggests that the doors never really closed, most notably from Wael Hallaq, and certainly on the Shi'i side this notion of extensive ijtihad does not accord with my own understandings of Akhbari Shi'ism which had it's heyday perhaps a couple of centuries ago, but history isn't the point at the moment. Let's assume the legend and start with the postulate that Shi'ism allows interpretation of text from sacred sources, and Sunnism does not and has not since the end of the first millenium. I still maintain it does not add up to much of importance.
The first story was told by Sheikh Bashir Al Najafi. Sheikh Bashir indicated that there was a key distinction between the Islamic regime and every other human regime on earth. Every human regime other than the Islamic is, to him, "reactive", meaning that it carries on, and then finds itself in some sort of predicament over something, and has to pass a law to fix that predicament, and then it carries on with that change. Over time, a set of laws that resembles a system comes to pass, having addressed however imperfectly problems that have arisen. The Islamic system, by contrast, has all necessary rules put in place 1400 years ago (or maybe 1200 with the disappearance of the Mahdi, to be honest I can't remember what number he gave), and all that is left is for humans to "discover" those rules from the primary sources left to us. Sayyid Ja'far al-Hakim, rising star in the Najaf Hawza, points to something similar to explain how "theoretical processes of elucidation in Najaf have become correlative with praxological processes of experimentation in countries of advanced development." That's a quote, I had tried to translate it simultaneously from Arabic and failed (sorry team!) but this is accurate from benefit of hindsight. The point was that Najaf had theorized from looking at the text what the developed world has come to realize by trial and error. We have the answers, you're finally getting to them imperfectly.
The second story is from Sayyid Muhammad Saeed Al Hakeem. His was of the giant Grand Ayatollah of his day, Sayyid Muhsen Al-Hakim, whose reputation only grows with time and memory. Sayyid Muhsen, he told us, once derived a rule from Islamic text and then lay down to sleep. he realized in terror that he had made a mistake in the derivation just as he turned out the light. He could have made the correction in the morning, but, said Sayyid Muhammad Saeed, what if Sayyid Muhsen passed in his sleep? Then an incorrect derivation would exist in his handwriting, people would rely on this error, and the mistake would only propagate. He could not sleep until he marked it as wrong.
The obvious conclusion is of course that these eminent figures are not anything approaching Realists. They are very formalist. The rules are out there, they exist, there is one proper derivation, the role of the scholar is to use the techniques to "discover" استنبط the rule from the sacred text. These scholars aren't stupid, in fact they are incredibly smart. Of course they know humans can err, of course they have biases and predispositions, of course that might lead them to make a mistake, but that does not detract from the fact that in Najaf, there is a right answer, and the cleric's objective is to derive it, much like a geometry proof.
But think for a minute about what this means for the supposed interpretive flexibility of Shi'ism on the basis of ijtihad. If you are going to actually get up and say there is one right answer, and it is derived like a geometry proof, then in order to decide something differently from the generations earlier, you pretty much have to declare everyone who looked at the question before you to be in error. If the question has been hotly contested before, then sure you can jump in on a side, Najaf likes nothing more than argument about a particular question of law. The Muslim Brotherhood notion that "there are no disputes in Islam" is not something the clerics of Najaf have much patience for, for them disputes in Islam are where they spend their lives. Like I said, there is nothing intellectually deficient about these scholars--quite the opposite in fact.
But it is one thing to take a position on a disputed matter, quite another to break with generations of previous scholars on something they agreed upon. It's hard to credibly claim every single person has gotten the geometry proof wrong, but you. If you allow for flexibility in interpretation, if you assume policy, and economics, and sociological realities, play a role in the law, if you, to use Sheikh Bashir's distinction at least for this purpose, see a legal regime as "reactive", then it's easy to break with past generations. They lived in a time different from our own, they saw it differently and they "reacted" differently. But if the law has been buried in the texts for 1200 years, and we've been engaged in a slow process of trying to uncover it, then that's a much harder thing to change. And it helps to explain why, notwithstanding the supposedly continued opening of the gates of ijtihad, Shi'ism isn't much more progressive than Sunnism when the doctrine is examined up close, at the level of substantive rules, rather than discussed in cursory glimpses of theory related to open and closed doors.
So much for reexamining old rules, but what about developing new ones? That's the selling point in any event, not that Shi'ism is good at revisiting its old rules, but rather that it is adept at "discovering" them over time, whereas Sunnism stopped digging and so much remains under the dust for them. Again, closer examination might call this into some question. Let me use as an example a question posited by Richard Norton of Boston University to a couple of the Grand Ayatollahs, that of the permissibility of artificial insemination. (He was using it to understand the role of reason as a source of law, they pretty much said all the rules existed in the texts independent of reason, but that's a separate point). Now if we assume you to be Shi'i, you say the gates of ijtihad are open, so you go straight back to the Holy Books to find the answer. If you are Sunni, you have to go to the medieval texts. But either way, you are going to try to find an answer by digging for something.
That is, Sunni scholars don't say "look, the medievals didn't deal with it, so go away" to questions of moral imperative asked by believers to them. Assuming the Sunni scholars in question don't believe in ijtihad, they're still going to do digging, it's just they don't use the original sources, they use the medieval juristic compendia. There's quite a bit to search for still. Sanhuri's Civil Code shows how much can be "discovered" (as a Realist I'd say "invented" but let's leave that aside for now) from reviews of medieval sources rather than sacred text. There's nothing "frozen" about Sanhuri's codes.
To be clear, I think there is a clear distinction between Shi'ism and Sunnism but it isn't really about ijtihad but rather the people doing it. Shi'ism continues to have an authority that pronounces the rules, where Sunnism does not. Perhaps the continuing existence of that authority helps to explain why Shi'ism is willing to leave the gates of ijtihad open, where traditionalist Sunnism is more concerned that if everyone can run off and reread the Holy Books, meaningful interpretive control is lost.
Or maybe not, that part is speculation. The point really is that there's too much emphasis, both in Najaf and in our legal academies, on ijtihad and taqlid, sacred sources and medieval texts, as if any of that matters. It isn't the books that are important however, it's the people with the power to tell you what they mean who count. Najaf has such people, vested with such authority. The Azhar in Sunni Egypt does not, or at least they aren't accorded nearly the same level of authority. And therein lies all the difference.
HAH
Comments