by In 1984 a legal historian named Wael Hallaq published a study whose title was a question: “Was the Gate of Ijtihad Closed?” The question sounds technical, and the journal that carried it, the International Journal of Middle East Studies, is read by a few thousand specialists. What Hallaq did inside those pages deserves a wider audience than it has ever had, because he performed one of the cleanest demolitions in modern intellectual history, and the thing he demolished is a structure that keeps getting rebuilt in other neighborhoods, including our own.
The structure he examined was a piece of received wisdom about Islamic law. For most of the twentieth century, the great Western students of the subject, Joseph Schacht foremost among them, taught that around the year 900 something decisive happened to Sunni jurisprudence. The gate of ijtihad, the bab al-ijtihad, the metaphorical door through which a qualified jurist exercised independent reasoning to derive law directly from the sources, was said to have swung shut by the consensus of the legal schools. After the closing, the story ran, no jurist could reason freshly from the Quran and the example of the Prophet. The living were demoted to taqlid, the following of rulings the masters had already derived. A civilization of jurists became, on this telling, a civilization of clerks, and the demotion explained whatever a Western observer wished to find stagnant about the societies downstream. Students memorized the closing the way they memorized the fall of Rome. Encyclopedias printed it. It had the feel of a load-bearing fact.
Hallaq did the unglamorous thing. He read the jurists. Across the thousand years that followed the alleged closing, he found ijtihad being performed, claimed, taught, certified, and fought over, century upon century. He found scholars granted the rank of mujtahid, the independent reasoner, in eras when the rank was supposedly extinct. He went looking for the closing itself and found nothing to hold: no edict, no council, no year, no vote, no contemporary announcement of any kind. The earliest reports that the gate had shut arrive generations after the supposed shutting, always secondhand, always in the past tense, always from writers describing something that had happened to other people at some earlier time. Hallaq found a story standing where the fact was supposed to be: a tale of a shut door, told inside the tradition by some and about it by others, doing real work in the world for a thousand years while the door itself stood open on its hinges. Guards were posted at a doorway no one had ever shut.
Taqlid itself, the supposed vice of the era, dissolves under the same reading. In the crude telling it is blind imitation, the surrender of judgment. In the jurists’ own usage it named a division of labor: the layman defers to the qualified and the junior defers within a school’s method, while the question of who may reason afresh stays open at the top, argued about and periodically answered with a name. That arrangement resembles a working doctrine of precedent more than it resembles a coma, and the crude telling flourished where it was useful, in an era when a stagnant East made a tidy premise for the powers administering it. The diagnosis of a closed mind was itself a colonial instrument, which is one more reminder that stories about other people’s gates tend to be told by whoever profits from the toll booth.
The mechanics are the transferable part. How does a living tradition come to believe that its own thinking ended? The sequence, once you have seen it in one place, turns out to be legible in several. A founding generation reasons in the open, with all the risk that entails. Success consolidates the reasoning into schools. The schools generate commentary, the commentary generates hierarchy, the hierarchy generates ranks, and one day the holders of the second rank announce that the first rank has gone extinct. The announcement is retroactive. It names no perpetrator and no date, because there is none to name. It simply reports, in the safest of grammatical moods, that the age of reasoning lies behind us, regrettably, and that our task is faithful transmission of what the giants concluded.
The announcement always benefits its announcers. If reasoning ended with the greats, then the living expert sells transmission, and transmission has commercial properties that fresh judgment lacks. Fidelity can be examined, certified, and ranked against a fixed corpus. Original reasoning must be defended on its merits, in the open, before people empowered to say no, and it can fail in public. A guild that trades in fidelity has converted a dangerous craft into a safe credential, and safe credentials are what guilds exist to mint. There is a psychological purchase too, and it runs deeper than the economics. Heirs prefer a finished inheritance. A completed law is a lighter burden than a living one, because a living law requires the person applying it to be answerable for the application. Closure relocates responsibility into the grave, where no subpoena reaches.
One more feature gives the game away in every case where the game is played. A gate that had genuinely been locked would need no guards. Traditions that believe reasoning to be impossible do not spend centuries penalizing it and examining candidates for it, for the same reason that no legislature bothers to outlaw levitation. The enforcement is the confession. Wherever you find the machinery of prohibition still humming, you are looking at a door the authorities know can be opened, by anyone, at any time, which is the fact the machinery exists to obscure. And there is the tell of tense. Closure is always announced in the past. Nobody ever closes the gate on a Tuesday, in public, with a name signed to the order, because an enacted closing could be examined, dated, attributed, and repealed. A closing that already happened, long ago, to someone else, cannot be appealed to anybody.
The pattern has other habitats, and two of them repay a visit. Imperial China built the most elaborate closed gate ever administered. The canon at the center of the civil service examinations, the Four Books, reached the examination hall as assembled and interpreted by a single man, the Song dynasty philosopher Zhu Xi, who lived from 1130 to 1200, more than fifteen hundred years after Confucius. By Ming statute his commentary became the examinable truth, and for roughly five centuries the finest minds of the largest bureaucratic state on earth trained themselves to compose in the rigid form called the eight-legged essay, the baguwen, its parts fixed in order, its stance fixed as well: the candidate wrote in the voice of the sage, transmitting, never proposing. Original reasoning was a rubric violation before it was a heresy, and a rubric enforced across an empire needs no theology to do a theology’s work. The gate in China was closed by grading criteria. The toll came due in the nineteenth century, when fleets arrived from countries that had spent those same centuries grading differently, and the examination system itself was abolished by decree in 1905, one working lifetime before the empire it had staffed followed it down.
Anatomy kept a closed gate of the body. For thirteen centuries the corpus of Galen stood over European medicine the way Zhu Xi stood over the examination cell, and the medieval dissection theater staged the arrangement honestly: the professor sat in the high chair reading the authorized text aloud, a demonstrator pointed, and a barber did the cutting down below, so that the man with the knowledge never touched the body and the man touching the body had no standing to report what he felt. When the corpse contradicted the book, the corpse lost. The losses were specific. Galen had cut animals, apes and pigs mostly, since Rome denied him human subjects, so the anatomy Europe memorized carried an ape’s details into man: a five-lobed human liver that no human liver has, a marvelous net of vessels at the base of the brain that exists in oxen and never in us. When the table failed to produce the five lobes, the deficiency was charged to the specimen, and thirteen centuries of dissectors stood over the evidence of their own senses and apologized to a book. Andreas Vesalius ended the arrangement by the simple, radical act of climbing down, taking the knife into his own educated hand, and publishing what his eyes found, in the Fabrica of 1543. The response measured how open the gate had been all along. The fiercest attack came from Jacobus Sylvius of Paris, Vesalius’s own teacher and the most eminent Galenist in Europe, who preferred arguing that human bodies must have degenerated since antiquity to admitting that the master had erred. A man defending a locked door does not usually claim the room behind it has been rearranged. Sylvius argued rearrangement because he knew, better than anyone, that the door was open and his student had walked through it holding a knife.
Which brings the pattern home. The United States has a founding generation that reasoned in the open, at risk, in public argument, and ratified its work through conventions that argued back. The document those men produced carries, in its own fifth article, standing machinery for its revision, an open gate written into the text itself. Two centuries later, a school of interpretation announced that constitutional meaning had closed at ratification: the words mean what the founding generation understood them to mean, and nothing since, and the task of the living judge is retrieval. The school comes in variants, intent for some, original public meaning for the dominant rest, and the variants argue with one another in the reviews, but every variant reports the same past-tense closing, and the closing carries the same evidentiary embarrassment. Ratifiers ratified a public text. The convention that drafted it sat behind locked doors, kept its journal sealed for decades, and let its fullest record, Madison’s notes, wait in a drawer until the last delegate was dead, surfacing half a century downstream of the ratifications whose understanding it now gets mined to reconstruct. A method that reads the sealed room into the public meaning has reversed the founders’ own order of publication, and it did so without their permission. Set that announcement beside the others and the mapping runs point for point. A founder rank elevated and declared extinct. The living demoted to transmission of what the extinct rank concluded. A certification market in fidelity, where the archive plays the role of the Four Books and skill at historical retrieval becomes the examinable credential. Dissent from the method recast as infidelity rather than argument. And the same tell of tense: the closing is reported, never enacted. No ratifying convention voted that interpretation would end with it. Several of the principals wrote the opposite in their own hands, and the amendment article sits in the document like a gate propped open by the men the doctrine claims as its lockmakers. Where the jurists’ myth accreted slowly out of reverence across centuries, this closure was adopted recently, on purpose, by people who had the other examples available to study, which makes it less an inheritance than a choice wearing an inheritance’s clothes. A republic can be taught to treat its beginning as its ceiling. Nothing in the beginning requires it.
Why does closure keep finding customers? Because obedience is lighter than judgment, and the dead make an unimpeachable supervisor. The judge who rules in his own name must answer for the ruling; the judge who reports what the departed decided has relocated the decision beyond cross-examination, and the relocation is the product. Because a finished inheritance flatters the heir, who gets to be the trustee of a finished thing rather than the co-author of an exposed one. Because institutions under pressure crave the appearance of necessity for their preferences, and nothing wears necessity like antiquity. The story finds a second clientele outside the walls. Rivals and critics of a tradition adopt its closure myth gladly, since a shut gate condemns the whole house: Schacht’s generation needed a jurisprudence that had stopped thinking, and plenty of originalism’s opponents accept the closed Constitution as described and merely fight over who holds the key. Both camps leave the myth itself standing. The guards collect from believers, and the demolition crews collect from the same story told with a different inflection, which is how a tale with no event behind it gets endowed from both directions at once. The customers are real, the comfort is real, and the price is the one China paid and the one Washington’s physicians collected at his bedside: a system that cannot correct itself in time answers to reality on reality’s schedule instead.
Reopenings, when they come, are almost embarrassingly quiet. Hallaq’s revolution was forty pages in a quarterly. Vesalius’s smelled of the dissection room and sold as a picture book for surgeons. The Chinese examinations died by administrative memorandum. In every case the walls around the gate turned out to bear no load, and the traffic simply resumed, and within a generation it took a historian to establish that anyone had ever believed in the closing at all. No lock ever existed, only a story about one, and the story had guards, and the guards had salaries, and the salaries had heirs.
At the edge of a pasture I know, an iron stock gate has rusted in the open position. Grass grows up through the hinge side in a thick pleat, the latch is seized into a knuckle of orange scale, and the fence it once interrupted has fallen away on both flanks, so the gate stands in a gap it no longer governs, looking like a rule. Out West the ranchers have refined the discovery. Where a steel cattle guard would go, road crews sometimes paint one instead, bright stripes across bare asphalt, no pit and no bars, and the cattle pull up at the paint and stand in the heat, stopped by geometry. The animal supplies the lock. Every closed gate in this essay was painted, and the paint held for centuries, and it held for one reason. Somebody kept re-striping it.
If this idea will not let go of you, I have written a book that follows it all the way down. Barbarous Ancestors: A Natural History of Rule by the Dead, from the Cadaver Synod to the Séance Court traces the closed gate and its cousins through medicine, music, scripture, forgery, spiritualism, and the current Supreme Court, and its seventh chapter, called The Gate That Never Closed, carries the story told here to its verdict: “A tradition injured by a false story about its past is injured only until it learns the truth, and the truth of every such tradition is that the gate its heirs believe was closed to them was standing open all along.” The book is available now at BolesBooks.com and wherever books are sold, in Kindle, paperback, and a free PDF download for any reader who wants to walk through.
Leave a Reply