So I was reading along in Albert Hourani's excellent A History of the Arab Peoples yesterday, and out jumped this paragraph:
On matters of substance as well as on principles of interpretation there were some differences between the various madhhabs [schools of Islamic law], but most of them were of minor importance. Even within a particular madhhab there could be differences of opinion, for no code, no matter how detailed and precise, could cover all possible situations. A maxim often repeated declared that from the tenth century onwards there could be no further exercise of individual judgment: where consensus had been reached, 'the door of ijtihad [interpretation] is closed.' There seems to be no clear evidence, however, that this precept was ever formulated or generally accepted, and within each madhhab ijtihad was indeed carried on, not only by judges who had to make decisions, but by jurisconsults (muftis). A mufti was essentially a private scholar known for his learning and his ability to give rulings on disputed questions by means of the exercise of ijtihad. The opinions (fatwa) given by a famous mufti could be incorporated in authoritative books of fiqh [Islamic jurisprudence] after a time, but the activity of giving fatwas had to continue. From perhaps the thirteenth century onwards rulers appointed official muftis, who might receive salaries, but the private scholar, who was paid a fee by those who sought a ruling from him, and was under no obligation to the ruler, had a position of special respect in the community.
The notion that the "door of ijtihad" closed long ago in Sunni Islam (and stayed open in Shia Islam, constituting one of the more irreconcilable differences between the two branches) has been repeated uncritically in every book I've read so far that touches on the subject, regardless of its ideological orientation. I have in my turn repeated it uncritically here and in verbal discussions with people because, hey, I only know what I'm told. But in retrospect it should have been obvious that this wasn't true, what with Al Azhar having issued useful new opinions every other day to sanction government policies during the nationalist period, to pick only one example from those that tumble into consciousness now. (The Faridah should have been denounced as a heretical exercise on its face rather than answered on points if this type of argumentation itself really were forbidden in the Islamic world, to pick another). Yet I have no reason to believe that any of the Muslim authors I've been reading were lying on purpose in this regard; there would be more rather than less hope for Mernissi's agenda, for example, if ijtihad were regarded as an acceptable, living practice.
Instead this is perhaps one of those lies that civilizations tell themselves, and believe. If I had to lay odds, I'd think it probably dates from the late 18th Century, right around when Islamic civilization began to lose confidence in itself in the face of challenges from the West. I would speculate that the purpose of saying that interpretation ended in the 10th Century might have been to shore up contemporary beliefs and sources of authority by giving them an age-old pedigree, to pretend that what goes on now is authentic because it always has been thus, as well as to wall the existing order off from divergent intellectual influences (or at least to make it appear as if it had been). It may have been a defensive as well as an authoritarian move, in other words.
The actual answer is probably in this book Law and Power In the Islamic World by Sami Zubaida, but I don't know if I'll manage to get it read before I have to return it, since it has been recalled, dammit. But while I still have it on hand, I give you this Quote of the Day:
As we have seen, many Muslim and Western commentators see 'Muslim society' as being impervious to secularization, and view the recent Islamic resurgence as an indication that religion is the only ideology which can animate the masses. My argument is that the recently resurgent political Islam is directed precisely against the secularization and the secularizing reforms that have occurred extensively in the region for two centuries, and which are irreversible. In Egypt, Turkey, Iran and most other countries, we see this secularization in government and its institutions, in the law, in education, in the economy and, most important for our argument, in the cultural fields. Print media, radio, cinema, television and most recently the internet have all acted as secularizing media. Even when the media relay religious messages they contribute to its secularization, because religion in them features alongside news and music, films and soaps, and as such loses its aura of sanctity. It is 'banalized.' It is related that soon after the installation of the Islamic Republic in Iran and the Islamization of television, the most popular programme featured a senior cleric answering practical questions from viewers in terms of fiqh rulings. Viewers derived pleasure and amusement in getting the cleric to rule on obtuse questions of sexuality. Egyptian clerics currently broadcast homilies of morality and order, and warn of the torments of the grave, much like their Christian counterparts in the U.S. But these are not dedicated channels, and the sermons alternate with films and soaps.
Indeed, an examination of the last century or so proves Muslims in the Islamic world all too susceptible to foreign influences, often tragically so. I've been eavesdropping on a discussion in D.'s journal about whether Iraqis have the right "mentality" for democracy, with a German national who says no, and denies any parallel between the German and Iraqi occupations, since Germans were after all Europeans, and hence much more like their occupiers than the Iraqis are. (Assuming I am reading this correctly: I don't put that much faith in Babelfish, which is why I'm not arguing with him). He appears to be blissfully unaware of the tremendous and doleful impact a pair of Germans had on the largely failed theory and practice of Arab post-colonialism. The philosophies of Marx and Hitler ultimately failed the West too; perhaps we are all much closer than he thinks. I don't know what the polite way of discussing the legacy of Nazism in the Middle East with contemporary Germans might be, but I do wonder how any of us can go on regarding Islamic terrorists as at all alien when we keep learning things like, for example, the fact that the murderer of Daniel Pearl could recite entire pages of Mein Kempf from memory. That Islamism is fundamentally and authentically Eastern is a twin fallacy to the notion that democracy and the idea of human rights is exclusively Western. Amartya Sen recently published a nice summary debunking the latter (and could have gone on in much greater detail regarding the Arab world; as always, if you'd like to see it without registering, email me for a copy). If anybody has seen a good single source eviscerating the former, I'd appreciate a reference; I find the counter-argument for that one has a tendency to hide in the margins.
D. replied: I arrived at the same conclusions, so either (1) Babblefish is better than I though or (2) my m@|> gEr|\/|E|\ $k1LLz aren't as m@|> as I thought. His reply, btw, was basically, "I think the Iraqis should have democracy, but not democracy imposed from without." Even after all our discussion, I'm not sure whether this opinion stems more from Orientalist essentialism or extreme pacificism. I just can't get past the idea that leaving Iraq alone to develop at its own pace, no matter how many generations of suffering that entails, is morally superior to violently-enforced regime change. I simply don't have the appropriate spiritual orientation to accept that. If only I could believe there were an afterlife/rebirth in which the injustices of this bleeding world were rectified and that it wasn't up to us fallible humans to attempt it.