Islam: A Guide for Jews and Christians - Electric Scotland

GOD’ S WAY t 181
was nothing more or less than the lawyer’s using his own interpretative
powers (ijtihad, or “personal initiative,” from the same
polymorphous root as jihad) on a disputed or uncertain point of
law, should become more rigorous by being based solely on a text
of the Quran or a hadith—as opposed, say, to some local custom—and
that it follow a recognized procedure. That procedure
was generally some form of analogy: the present case resembles or
is identical to an explicit commandment or prohibition in the
Quran or the hadith and so may properly be judged as commanded
or prohibited.
Analogy was acceptable procedure to Shafii, as it was to most
subsequent jurists, but only if it was used to erect “hedges for the
Law,” to use the talmudic phrase, and not to extend exceptions
into general rules; that it start from the literal and not the allegorical
understanding of the text; and that, finally, it be regarded as the
fourth and weakest of the “roots of the Law” after the Quran, the
custom of the Prophet, and the consensus of the umma. Where
personal initiative became considerably more problematic—one
lawyer ungraciously described it as “carrion, to be eaten only
when no other food was available”—was when it was extended to
pronounce something licit or forbidden in the name of equity (istihsan)
or public interest (istislah) of the umma, whereby the letter
of the law was relaxed in the name of the common (i.e., community)
good.
The Closing of the Gate
After Shafii, and as a result of the debate over the validity of independent
reasoning, the freedom granted to earlier jurists to elicit
legal conclusions from even the most traditional material was severely
circumscribed, and by about 900 c.e. a new consensus was
developing that the “gate of ijtihad” had closed. Lawyers might
dispute matters common to the schools, but the Quran and the
hadith were henceforward off the table. Interpretative ijtihad was
replaced by taqlid, “imitation” or “adherence,” whereby the jurist