Although Hallaq has shown convincingly that, contrary to the common perception of many Western scholars, the gates of ijtihād were never closed as such in the medieval Sunni schools,1 the fact remains that the notion of closure remains entrenched amongst the Muslim ‘ulamā as well as the general populace. This constitutes one of the greatest impediments to any scholar outside the folds of the traditionalist religious cliques to proffer new hermeneutics or methodology or even a single opinion in substantive law.2 Whereas it is reasonable that an enterprise such as ijtihād be undertaken by one who possesses a reasonable degree of competence for it, there is no textual evidence to suggest that the ijtihād of a competent scholar (as Abū Hanīfah [81 - 150 / 700 - 767] or Mālik ibn Anas [94 - 179 / 716 - 795] or others) or even that of a whole school or of all the traditional schools is infallible.3 In Sunni jurisprudence, the notion that the ijmā‘ of the community and its scholars in matters pertaining to interpretation and ijtihād has epistemological certitude in religion, and thus, by implication, an authority equivalent to that of the Qur’ān and the sunnah is quite shaky.4 When this notion of consensus first gained religious character in the second/eighth century, the proponents of the idea, with an essentially deontological epistemology, had to look to the Qur’ān and hadīth for textual evidence that would accord ijmā‘ the epistemological value they claimed for it.5 As it happened, few of the verses adduced were relevant,6 nor was there any real consensus on the interpretation of these verses. For instance, Q.4:115, which, according to Hallaq, is one of the most relevant verses, is open to various interpretations.7 The idea of consensus here is based on an interpretation of the words wa yatabi‘ ghayr sabīl al-mu’minīn (and those who follow ways other than those of the believers). Apart from the fact that these words have been interpreted in different ways by the earliest exegetes, it is plain to see from the context that the words were originally used to refer to those opponents of the Prophet who, as the context implies, were bent upon maligning him, and who, despite the manifest truth of the Prophet’s religious authority, had chosen a course different from that of the Muslims.8 Having found that the Qur’ānic basis for their thesis weak, the proponents of ijmā‘ then turned to the sunnah for support, only to find that there was nothing sufficiently concurrent (mutawātir) to offer conclusive evidence there either.9 The next obvious step was to investigate the hadīth, most of which were in the form of isolated narrations (akhbār ahād). These akhbār ahād, according to Sunni principles of jurisprudence (usūl al-fiqh), were themselves probable (zannī) in varying degrees.10 Quite obviously, probability, regardless of its degree, could not form the epistemological foundation of certitude; therefore, the jurists came up with a novel concept around the fourth/tenth and fifth/centuries: that of concurrence of meaning (tawātur ma‘nawī), which they adduced as conclusive evidence based on inductive corroboration.11 ‘Āmidī (d.631/1233) gives an interesting example to explain this concept: we might construe a man’s glances at a woman as indicative of his love for her with only a slight degree of probability, but when there are other indicants, we might gain enough knowledge to say with a reasonable degree of certainty that the man is indeed in love with the woman.12 In the same manner, we can gain certain and immediate knowledge on the basis of a sufficient number of traditions, even if each of them may individually be false.13 There are, however, a number of problems with this kind of argumentation. Firstly, the basic problem in this epistemology is not the certainty with respect to what the words in certain narrations mean but whether the words themselves can be traced back to the Prophet (sws) with certitude.14 Since the words of the narrations in question cannot themselves be traced back to the Prophet (sws) with absolute certainty in Sunni epistemology, it would be logically inconsistent to assert that certitude of meaning derived from something that itself does not have epistemological certitude can lend certitude to an entirely new concept, that is ijmā‘. In other words, the meaning itself could only be traced back to the Prophet (sws) on the basis of tawātur if the meaning too had been reified by the Prophet (sws) himself in the form of words and had been passed on to the Muslim community by his immediate companions through their established tawātur of transmission.15 Therefore, in terms of logical consistency, the question is whether the most important basis of Sunni ijtihād and interpretation, that is ijmā‘ – despite having immense force of tradition – is essentially based on circular argument: a very ingeniously constructed case of petitio principii.16 Another argument is that tawātur itself actually depends on custom (‘ādah) and that the companions of the Prophet (sws) would not have accepted so many ahādīth pertaining to ijmā‘ if agreement on the tawātur of these ahādīth had not been there right from the beginning.17 Where did this tawātur vanish in history then? That, the argument holds, is not pertinent to the reasoning as the question is merely a historical one.18 There are three flaws in this argument. Firstly, even if the notion that the companions accepted the ahādīth with which the later jurists justified ijmā‘ is taken as fact, it does not negate the possibility that the companions accepted them for what they were: akhbār ahād. It does not necessarily prove that they granted them the status of mutawātirah in religion. Secondly, there is no evidence to suggest that the companions were unanimous in their understanding of the meanings of these akhbār in the same sense as has been given to these narrations by the jurists. Even if it could be proved that the companions were unanimous in their understanding, it does not prove that the same meaning was afforded to these narratives by the Prophet himself. For that, the Prophet (sws) would have used “words”, which then should have been transmitted by the tawātur of the companions. Thirdly, it is impossible to imagine that a mutāwatir source would just evaporate into thin air in the history of a continued tradition. Even if forced eradication of such a source had taken place (for example by some administrative decree), it would be inconceivable that an event of such import would itself not have been reported by tawātur.19

Apart from these major flaws in the foundational argument of the certitude granted to ijmā‘, there are many other inconsistencies in the whole Sunni construct as well as argumentation.20 Much the same approach is reflected in the argumentation related to tawātur and hadīth. Whereas tawātur in Sunni epistemology leads to absolute certitude (as in the case of certain readings of the Qur’ān in Sunni concepts,21 which tawātur is therefore termed as tawātur lafzī), the same could never be said of the words reported in akhbār ahād.22 Yet, the akhbār ahād are used at times to derive legal directives extraneous to the Qur’ān itself.23 To resolve this contradiction, the concept of ijmā‘ in interpretation and ijtihād was proffered, which, as we already shown, is essentially based on what it seeks to prove. Even though al-Asadabādī’s argument resolves the circularity to the extent of the argumentation,24 the issue of historical fallacy and other logical inconsistencies still remain in the whole construct.25 Therefore, though the construct did serve useful administrative function, the infallibility afforded to it by its proponents had shaky foundations.   

The reason for this discussion is, that in stark contradiction to Sunni theory (which does not allow ijtihād in usūl or matters already resolved by the ijmā‘ of Sunni schools), scholars, reformers, and revivalists as Fazlur Rahman, Ghāmidī and Mawdūdī -- to name only a few – have defied tradition in terms of new ijtihād both in usūl and in matters of substantive law already resolved through ijmā‘. The reason is quite simple: ijmā‘, as a form of human reasoning, never had the infallibility that the founding fathers of this concept gave it. Many anomalies have been created by laws and interpretations based on ijmā‘.26 Similarly, many required changes are impeded by it.27 Reformers in every age have shown great ingenuity and skill in finding their way out of the labyrinth created by these problems by still holding on to the concept of the authoritativeness of ijmā‘.28 In other instances, the solutions were downright subterfuges – intentional or unintentional.29 Mawdūdī himself found a way out by accepting only a certain kind of ijmā‘ as absolutely authoritative, which ijmā‘, by definition, is one that in most cases of interpretation and ijtihād can rarely be established historically.30 In many other cases, he relies on the principle of necessity (as we have seen in Chapter 2) to overcome the obstacles to the realization of his weltanschauung placed in his way by traditional interpretation. Ghāmidī, on the other hand, goes to the extent of denying outright the infallibility of ijmā‘ on any interpretation or any ijtihād, even if arrived at by the companions of the Prophet (sws).31 To him, the only infallible source of religion is the Prophet (sws), who disseminated it in the form of the Qur’ān and the sunnah.32 It is only the ijmā‘ or tawātur of the companions in the transmission of these sources that Ghāmidī considers as having an established (yaqīnī) basis in religion.33 In other words, since the Qur’ān and the sunnah were transmitted through tawātur, Ghāmidī accepts them as the assured “content” of religion that requires human interpretation.34 As far as interpretation of this content and ijtihād on its basis are concerned, they do not have the infallibility to be precluded from the scope of investigation, critique, or repudiation.35 This is a major epistemological break from the tradition, and its implications are manifold as well as deep. Simply put, it means that, in Ghāmidī’s opinion, there is nothing in the sharī’ah to prohibit any competent scholar from giving opinions on matters and principles in interpretation or ijtihād already resolved earlier through the mechanism of ‘ijmā‘.

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1. Hallaq, “Was the Gate of ijtihād Closed?” 3-41; reprinted in Wael B. Hallaq, Law and Legal Theory in Classical and Medieval Islam, (Hampshire: Variorum, 1994), V. For views contrary to Hallaq’s in Western scholarship, see Schacht, Introduction to the Islamic law, 69-75. Cf. Coulson, A History of Islamic Law, 202-203.

2. In this regard, for a representative example of the tradionalist view in Pakistan, see Muhammad Taqī Uthmānī, Taqlīd kī Shara‘ī Hathiyyat (The Position and Value of Taqlīd in the Sharī‘ah) (Karachi: Maktabah Dar al-‘Ulūm, 1992).

3. See Hallaq, “Was the Gate of ijtihād Closed?” 5-7 for the rather lax and flexible conditions for a mujtahid in the early medieval period of Muslim history (see, especially, the conditions laid down by Ghazālī. Marcia K. Hermansen has shown that even Shah Walī Allāh (whose importance as a mujtahid – mujtahid muntasib in Hermansen’s estimation -- in the Indian/Pakistani context cannot be doubted) accepted the possibility of going outside the four schools on specific cases, though generally his emphasis was on following them. See the Preface in Shah Walī Allāh, The Conclusive Argument from God: Shāh Walī Allāh of Delhi’s Hujjat Allāh al-Bālighah, trans.  Marcia K. Hermansen (Leiden: E.J. Brill, 1996), xxxii. However, the conditions he sets forth for the loftiest ijtihād in hadīth disciplines are also worth noting as they include ‘ilm ladunī (inspired knowledge from God) and asrār wahbī (bestowed secrets), apart from excellence in virtually all other fields of religious learning.  He then goes on to suggest that all these abilities are present in his person. Ibid., 6-10. Although many exegetes suggest, on the basis of the interpretation of some ahādīth, that the person (usually called Khidr) whom the Qur’ān  refers to as the recipient of ‘ilm ladunī (Q. 18:65) was not a nabī, yet it is interesting to note the arguments given by Islāhī, who claims that this person must have been a nabī as it would not have made any sense for the Prophet Moses to go to a non-nabī for religious guidance. Amīn Ahsan Islāhī, Tadabbur-i Qur’ān, 3rd ed., vol. 4 (Lahore: Farān Foundation, 1988), 606. Mawdūdī suggests that this person was one of the angels of God as the tasks he performed included taking the life of an innocent boy, which task could only have been assigned to an angel or some other similar being. Abū al-A‘lā Mawdūdī, Tafhīm al-Qur’ān, vol.2 (reprint Lahore: Maktaba-i Ta‘mīr-i Insānīyat, 1972), 40-42. Ghāmidī also holds the same opinion. Jāvēd Ahmad Ghāmidī, personal interview, 15 October 2003. Shāh Walī Allāh’s reference to ‘ilm ladunī as a trait of those worthy of hadīth scrutiny is ironic in that, in the context of the given verse, the person referred to appears to have been more knowledgeable and aware of God's intent than the Prophet Moses.

4. See Wael B. Hallaq, “On the Authoritativeness of Sunni Consensus,” International Journal of Middle East Studies 18. (New York, 1986): 427; reprinted in Wael B. Hallaq, Law and Legal Theory in Classical and Medieval Islam. (Hampshire: Variorum, 1994), VIII. Here, we are referring to ijmā‘ in matter relating to interpretation and ijtihād. Transmission of the “content” of religion (as in the foundation text – the Qur’an or religious custom – the sunnah) through ijmā‘ and tawātur (concurrent transmission) of the whole community is a separate matter altogether. Even some contemporary scholars fully endorse the idea of certitude for the “content” in this case. (See, for example, Jāvēd Ahmad  Ghāmidī, Mīzān (Lahore: al-Mawrid, 2009), 13-15.

4. See ibid., 428.