Voices of Islam (34 page)

The definition thus proposed incorporates the conventional definition of
ijtihad
but adds emphasis on two points: creative thinking and the prevailing conditions of society.
Ijtihad
is designed to address new and unprecedented issues in the light of available guidelines in the sources. Creative intellectual exertion also means that existing ideas and teachings should not be taken at face value or imitated uncritically. Instead, they are to be scrutinized and their relevance to new issues independently ascertained. Our proposed defini- tion also departs from the view that made
ijtihad
the prerogative only of a classically trained Shari‘a scholar. Nowadays,
ijtihad
may be attempted col- lectively by scholars in Shari‘a and other disciplines of vital importance to the community, hence the proviso that
ijtihad
must be comprehensive and inclusive of other viewpoints. Our proposed definition also envisages
ijtihad
as a collective endeavor and thus departs from the individualist and subjective bias of the conventional definition.

Ijtihad
is the most important source of the Shari‘a next to the Qur’an and the Sunna. The main difference between
ijtihad
and the revealed sources is

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Voices of Tradition

that
ijtihad
connotes a continuous process of development, whereas the revelation of the Qur’an and the development of the Sunna discontinued with the death of the Prophet Muhammad, peace be on him.
Ijtihad
is thus the main instrument for relating the Qur’an and the Sunna to the changing conditions of society.

As a vehicle of renewal and reform,
ijtihad
has always been dominated by its dual concern for continuity and change.
Ijtihad
seeks to maintain the con- tinuity of the fundamentals of Islam while also keeping pace with the realities of social change. These two concerns for continuity and change thus charac- terize the history of
ijtihad
and the role it has played in the development of Islamic law.

One who undertakes
ijtihad
must be knowledgeable in the fundamentals of jurisprudence, of Hadith and narrators of traditions, of the hermeneutics of the Qur’an (
tafsir
), and of the customs and conditions of society. Knowl- edge of Arabic is also a requirement for
ijtihad,
and so is the intellectual capacity that enables one to formulate independent judgments. To this we may add knowledge of logic, philosophy, economics, and sociology. A
muj- tahid
should also be a person of moral integrity and piety. One who has attained this degree of competence can dissociate himself from the pressure of conformity to the views and wishes of others and be guided by a sense of conviction and dedication to truth.

The first recourse in the quest to find solutions to new issues should be to the Qur’an and then to the Sunna, failing which one should exercise one’s own judgment in accordance with one’s understanding of the basic principles of Shari‘a. This sound approach has received the blessing of the Prophet in the renowned hadith of Mu‘adh ibn Jabal. Upon his departure to the Yemen to take up a judicial post, the Prophet asked Mu‘adh about the sources on which he would rely in making decisions. In reply, Mu‘adh referred fi t to the Qur’an, then to the Sunna of the Prophet, and finally to his own
ijtihad.
3
Until about 1500
CE
, Muslim scholars were able to adapt in the face of

changing conditions and new advances in knowledge. Unfortunately, as Islamic civilization began to weaken politically and economically in the face of Western advances, Muslims began to adopt a more conservative attitude toward the law to preserve traditional values and institutions. As a result, many scholars became inclined to view innovation and adaptation to change negatively. The scholars (
ulama
) occupied themselves mainly with commen- taries, compendia, and marginal notes on the books already written by emi- nent jurists. They added little new to the knowledge of their ancestors and even served the negative purpose of giving an aura of sanctity to the earlier works.

This was different from what prevailed during the fi st three centuries of Islam, when open enquiry and direct recourse to the sources of the Shari‘a constituted the norm of scholarship. The four schools of Sunni law (sing.
madhhab
) that eventually formed were designed to curb excessive diversity

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Shari‘a:
Law as the Way of God
157

and confl ct in juridical opinions. Eventually, the scholars of these schools saw themselves as instruments of unquestioning imitation (
taqlid
). This view was prompted by the demand of conformity that the legal practitioners of the schools made of their followers.

Colonial domination of Muslim lands also lowered the self-image of Mus- lims and further encouraged imitation and conservative thinking.
Ijtihad
suf- fered yet another setback when Western-style statutory legislation became dominant and the
ulama
were left with little visible role to play. After the Second World War, an era of constitutionalism in newly independent Muslim countries marked, in effect, a renewed phase of imitation characterized by the wholesale importation of Western laws and doctrines, a trend that was encouraged both by local elites and their foreign mentors. This was the sce- nario that eventually gave rise to the Islamic revivalist movement of the post-1960s. Westernization and modernity had clearly not borne the same fruits in the Muslim world as they had in their original homelands in the West.

At the dawn of the twentieth century, Jamal al-Din al-Afghani (d. 1898) and his disciples Muhammad ‘Abduh (d. 1905) and Muhammad Rashid Rida (d. 1935) called for a return to original
ijtihad,
which was well received and won wide support in the succeeding decades.
Ijtihad
in modern times tends to differ from what it was in medieval times. Scholars in earlier times were preoccupied with issues such as marriage and divorce, property, inheritance, the Alms Tax, and usury. Society was not prone to rapid change and
ijtihad
could be attempted incrementally, with a high degree of predictability. This is no longer the case. The much accelerated pace of social change and its attendant complexities suggest the need for a multidisciplinary approach to
ijtihad.
It would seem difficult for a jurist now to address matters pertaining to new banking products and international financial transactions without knowledge of modern economics and finance. Technical issues in medicine and science, in labor relations, and so on also generate new demands on the skills of a modern
mujtahid.
4

In modern times,
ijtihad
has tended to occur in the following three forms: (1) through the modality of statutory legislation, (2) in the form of
fatwa
by scholars and judges, and (3) through scholarly writings. Exam- ples of legislative
ijtihad
can be found in the modern reforms of family law in many Muslim countries, particularly with reference to polygamy and divorce, which have been made contingent upon a court order and are no longer the unilateral privilege of the husband. The reformist legislation on these subjects is also based on novel interpretations of the relevant portions of the Qur’an. One also notes numerous instances of
ijtihad
in the views and legal opinions (
fatwas
) of prominent scholars and jurists, including Rashid Rida, Abu Zahra (d. 1974), Mahmud Shaltut (d. 1970), and the contemporary jurist of the
al-Jazeera
television network, Yusuf al- Qaradawi.

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Voices of Tradition

Whereas the conventional theory of
ijtihad
looks in the direction of legal doctrines such as analogy (
qiyas
), juristic preference (
istihsan
), presumption of continuity (
istishab
), and so forth, there is now the need to pay more attention to the goals and objectives of the Shari‘a (
maqasid al-Shari‘a
).
5
Muhammad ‘Abduh emphasized the importance of custom and actual societal conditions in the conduct of
ijtihad.
The general welfare of the people also demanded a greater role for considerations of public interest (
maslaha
) in contemporary
ijtihad.
6
‘Abduh’s disciple, Rashid Rida, emphasized the need to inform legislation and
ijtihad
of the spirit of the Shari‘a and its goals and purposes: ‘‘Many people know what is lawful and unlawful but they do not always know why a particular act was declared lawful and another unlawful. If a legal decision and the goal of the Shari‘a that it seeks to maintain go hand in hand, it will enhance the prospects of enforcement.’’
7

In light of these new developments, the theory of
ijtihad
needs to be revised and reformed along the following lines:

1. To recognize the validity of collective
   ijtihad
   side by side with that of
   ijtihad
   by individual scholars.
   

2. To allow experts in other fields such as science, economics, and medicine to carry out
   ijtihad
   in their respective fields if they are equipped with adequate knowledge of the source evidence of the Shari‘a. They may alternatively sit together with or seek advice from the scholars.
   

3. Ijtihad
   has often been used as an instrument of difference and disagreement. Although these must remain valid in principle, there is a greater need for unity and consensus. Scholars and learned bodies should not encourage excessive diversity and try to find ways to encourage unity.
   

4. In the past,
   ijtihad
   was conceived mainly as a legal concept and methodology. Our contemporary understanding of the source evidence does not specify such a framework for
   ijtihad.
   Rather, we should think of the original conception of
   ijtihad
   as a problem-solving formula of wider concern for Muslims. This would confirm our view to broaden the scope of
   ijtihad
   to other disciplines beyond the framework of
   fiqh.
   

5. According to a maxim of Islamic jurisprudence, there is no need for
   ijtihad
   in the presence of a clear text of the Qur’an or Hadith. This maxim should also be revised because of the possibility that the text in question may be given a fresh interpretation in a different context. This by itself may involve
   ijtihad.
   Hence,
   ijtihad
   should not be precluded if it can advance a fresh understanding of the text in question.
   

SCHOOLS OF LAW AND MAJOR CONTRIBUTORS

A large number of schools and methodologies of Islamic jurisprudence emerged within the first three centuries of Islamic history, but only five have

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Shari‘a:
Law as the Way of God
159

survived: these are the Hanafi, Maliki, Shafi‘i, and Hanbali schools of Sunni Islam, to which may be added the Shiite schools of Islamic jurisprudence.

The Hanafi school of Islamic jurisprudence was named after the jurist and teacher Abu Hanifa Nu‘man ibn Thabit (d. 767
CE
). This school of jurispru- dence has the largest following of all the surviving schools, owing partly to its official adoption by the Ottoman Empire in the early sixteenth century. It is currently followed in Afghanistan, Iraq, Jordan, Turkey, Pakistan, India, Bangladesh, Tajikistan, Kirghizstan, Turkmenistan, and in parts of Yemen, Egypt, and Iran.

Hanafi jurisprudence is distinguished by its rationalistic tendency and to some extent by its theoretical leanings in that it deals not only with actual issues but also with problems that are based on supposition. Abu Hanifa emphasized personal liberty and maintained that neither the community nor the government is entitled to interfere with the liberty of the individual so long as the latter has not violated the law. The Hanafi school thus entitles an adult woman to conclude her own marriage contract even without the consent of her guardian, whereas the other schools require the consent of the guardian to validate her marriage. Abu Hanifa also refused to validate the incarceration of the mentally handicapped or the insolvent debtor on the premise that restricting their freedom is a greater harm than the loss or disadvantage that might otherwise occur. He also held that no one, including a judge, should impose restrictions on an owner’s right to the use of personal property, even if it inflicted harm on another person, provided that the harm is not exorbitant.

One of the famous statements of Abu Hanifa, and which represents a major principle of his school, is the following: ‘‘When the authenticity of a hadith is established, this establishes my procedure (
madhhab
).’’ Abu Hanifa also said, ‘‘When you are faced with evidence, then speak for it and apply it.’’ Consequently, after Abu Hanifa’s death, when his students differed with some of his rulings because of new evidence, they argued that Abu Hanifa himself would have come to the same conclusion, had he known of the new evidence. A ruling of a student of Abu Hanifa that differs from the ruling of the Imam is thus still regarded as a ruling of the Hanafi school. Another important statement of Abu Hanifa is as follows: ‘‘No one may issue a verdict on the basis of what we have said unless he establishes the logic of our state- ment.’’ Although these guidelines were eminently practical, Hanafi scholars of subsequent generations changed them. The early Hanafi interest in origi- nal reasoning gave way to a deeply rooted traditionalism. The Hanafi jurist Ibn ‘Abidin (d. 1820) stated the new position of the school as follows: ‘‘A jurist of a later period may not abandon the rulings of the leading imams and scholars of the school, even if he is able to carry out
ijtihad,
and even if he thinks that he has found stronger evidence. For it would appear that the predecessors have considered [all of] the relevant evidence and have declared their preference.’’
8
The only exception made was for situations of necessity,