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The Social Logic of Taqlid and the Rise of Mukhatasar

The study of the relationship between ijtihamp;ād and Taqlamp;īd has been dominated by an approach that privileges ijtihamp;ād over Taqlamp;īd on the assumption that the former is an intellectually superior mode of legal reasoning. By analyzing the role of Taqlamp;īd in regulating the actions of muftamp;īs and judges as discussed by post-6th/12th century jurists of the Mamp;ālikamp;ī school, I conclude that Taqlamp;īd resulted from the desire to have uniform rules rather than as a result of intellectual stagnation. While ijtihamp;ād was individualistic and solipsistic, Taqlamp;īd 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, Taqlamp;īd 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 mukhtaamp;ṣar as it emerged in the 7th/13th century. The mukhtaamp;ṣar functioned as the authoritative collection of a legal school's doctrine, and, for that reason, I argue that Islamic law in the age of mukhtaamp;ṣars is best understood as a codified Common Law.

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