The Social Logic of Taqlīd and the Rise of the Mukhataṣar

In: Islamic Law and Society

Abstract

The study of the relationship between ijtihād and Taqlīd has been dominated by an approach that privileges ijtihād over Taqlīd on the assumption that the former is an intellectually superior mode of legal reasoning. By analyzing the role of Taqlīd in regulating the actions of muftīs and judges as discussed by post-6th/12th century jurists of the Mālikī school, I conclude that Taqlīd resulted from the desire to have uniform rules rather than as a result of intellectual stagnation. While ijtihād was individualistic and solipsistic, Taqlīd was the result of group interpretation that provided an objective basis upon which legal decisions and legal rulings could be described as being either substantively correct or incorrect. Viewed in this light, Taqlīd was originally a desire to limit the discretionary power of legal officials, especially those at the bottom of the legal hierarchy. The desire to possess uniform rules found its logical outcome in the legal genre of the mukhtaṣar as it emerged in the 7th/13th century. The mukhtaṣar functioned as the authoritative collection of a legal school's doctrine, and, for that reason, I argue that Islamic law in the age of mukhtaṣars is best understood as a codified Common Law.

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