Ijtihad, the dynamic principal of Islamic Law, helps to keep law ever fresh and capable of facing the challenges of new places and times. Sometimes ijtihad requires looking afresh at Islam's primary sources, the Qur'an and Sunnah, and reinterpreting them according to new circumstances. It may, also, entail going beyond the sources and introducing new legislation under the general framework of the primary sources. The usuli scholars who deal with the methodology of Islamic law define ijtihad as: "It is the mujtahid's exertion of maximum effort in seeking knowledge of the ahkam (rules) of the Shari'ah through interpretation."
This definition implies four main principles: (1) It is the mujtahid's effort that counts; a non-mujtahid's effort is of no consequence. (2) Effort must be exerted to the ultimate limits of one's ability. (3) Effort should be directed towards the discovery of shar'i rules. (4) The method of discovery should be based in the interpretation of texts, assisted by other sources.
Ijtihad is not exclusively Islamic. Secular legislators, also, make ijtihad by striving to make laws that conform to the public policies of their societies and advance its objectives. These objectives are often enumerated in their constitutions or bills of rights. Similarly, judges make Ijtihad by interpreting the law. In doing so, they are guided by the wording of the law; the legislators' intentions found in reports and speeches; and interpretations given by other judges in similar circumstances.
The real difference between Islamic ijtihad and secular endeavors is not as much in the nature of the endeavor itself, but in its sources. A mujtahid or Muslim jurist uses revelations contained in the Qur'an and examples from the Sunnah as the main sources of guidance for lawmaking or rendering a decision. He expresses his views under the authority of the Lawgiver. Since the nature of law is religious, the mujtahid is supposed to be a person of piety (taqwa). They should, also, have a good knowledge of:
Arabic: Language, grammar, syntax and rhetoric.
Qur'an: Qur'anic principles and themes, the Makkan and Madani Surahs, asbab al-nuzul (occasions of revelation), nasikh wa mansukh (repealing and repealed rules), etc.
Sunnah: Prophet's traditions from authentic sources of Hadith, knowledge of isnad (chain of narration) and matn (content of text), and the critical method of authentication.
Ijma': Consensus of the sahabah and earlier scholars.
Basic objectives of the shari'ah (maqaasid): Protection of religion, life, property, mind and family.
Context: Situation of the time and place (wagi), and understanding of changing economic, political, and social conditions.
Customs and cultures of the people.
Aptitude to make ijtihad: Gifted with an analytical, legal mind and trained to do this type of work.
Islam is the total way of life. Muslims are obliged to live by Divine rules in every aspect of their lives. However, the actual Divine rules given in the Qur'an and the Sunnah are limited. The Qur'an has no more than 600 verses directly related to rules; there are approximately 2,000 ahadith that deal with laws. Muslims agree that the entire Qur'an is from God and is authentic. Ahadith, however, include statements that are definitely from the authority of Prophet Muhammad (salla Allahu 'alayhi wa sallam), as well as statements of questionable authenticity. Additionally, both the Qur'an and ahadith include statements that are of definite meaning and probable meanings. Thus, all statements can be divided into four categories:
Definite source, definite meaning
Definite source, probable meaning
Probable source, definite meaning
Probable source, probable meaning
The mujtahid's work is to ascertain the authenticity of the source/s and then:
Discover laws through interpretation of the sources.
Utilize analogy (qiyas) to extend laws to new cases that may be similar to cases mentioned in the sources, but where laws cannot be discovered through literal interpretation.
Consider istihsan or istislah (general interests of the community) and the general principles and objectives of shari'ah when extending laws to new cases not covered by the previous two methods.
Jurists go into great detail in explaining rules and limits of interpretation, analogy, istihsan and istislah. The mujtahid, whose basic purpose is to explain and articulate the rule of God (hukm shar'i) in a particular situation, takes on the very serious responsibility of explaining God's Will towards His creatures, as individuals and as communities. The mujtahid explains the hukm shar'i: "The communication from God, related to acts of subjects through a demand, option or through declaration." Here, a demand could be expressed in binding terms (as obligations or prohibitions) or in nonbinding terms that give a recommendation to do or not to do. An option could be expressed in terms of choice for commission or omission, when the act becomes permissible. Declaration indicates the cause (sabab), condition (shart) or impediment (mani) for an action.
Challenges Today. Ijtihad worked very well in the past because jurists had good knowledge of the sources and developed a thorough and comprehensive methodology of interpretation. They were also well aware of their contemporary situations. Their educational system was not bifurcated between religious and secular studies. They also enjoyed some legislative authority, where the states implemented the laws they made. The state system was not as pervasive as today; they were often free to make their own decisions and judgments.
The situation has drastically changed today. Our jurists have good knowledge of the classical sources, but their methodologies of interpretation have not been updated with new knowledge of language, logic, semantics, et cetera. Additionally, Muslim societies, by and large, lack the required freedom that scholars need in order to find resources, read, assemble, and freely debate issues of concern. Often control over freedom is not only exercised by political authorities, but also by religious establishments. The Islamic educational system has not developed. There is a large gap between religious and secular knowledge. Religious scholars are often not well aware of the socioeconomic and political conditions of their time; politicians, courts and other secular academics are not well versed in religious knowledge.
The sources and principles of Shari'ah, while enjoying the allegiance of the vast majority in Muslim societies, are not taught or applied in a cohesive, consistent or comprehensive manner. This has resulted in the existence of simultaneously running, parallel disciplines - secular and religious-that are often conflicting, rather than complimentary.
Shari'ah is not taught today as an integral part of legal learning, and it is not applied by a unified court system. Consequently, it is becoming less and less practical and dynamic; it is losing its vitality and ability to affect the lives of people and their societies. It is becoming unable to fulfill its role as a source of guidance meant to remove conflicts and improve the conditions of people.
Furthermore, Shari'ah today functions more in fatwa pronouncements than decisions of judges. Unlike judges' decisions, fatawa, given by scholars who do not have to worry about the gravity of their impact on society, tend to be idealistic and less practical. Sometimes, they even ignore the changing circumstances of the societies. Such problems will continue unless Shari'ah is incorporated into the overall legal system.
Reopening Ijtihad. Some Muslims say that the door of ijtihad was closed in the fourth century of hijrah; others disagree. Whatever position one may take, the fact is that there is a great need for the renewal of ijtihad today; ijtihad is essential for the revival of Muslim states and societies. However, the basic condition for ijtihad is freedom of expression. There cannot be true ijtihad unless scholars are free to express their opinions, and other scholars are free to critique. Freedom of expression is ingrained in the precepts and practices of ijtihad. This means that the democratization of Muslim societies and basic freedom for scholars are essential for ijtihad.
Change in the Muslim educational system is also overdue and necessary. The curricula of religious schools and seminaries should be improved. Instead of studying only one madhhab (Sunni madhahib in Sunni schools and Shi'i madhahib in Shi'i schools), all known madhahib of Sunnah and Shi'ah should be taught. Instead of teaching rulings and interpretations of the schools, the evidences and methods of interpretations should be taught. Comparative religion, modern logic, philosophy, psychology, history, economic and political theories should also be studied. Greater emphasis should be placed on the objectives of the shari'ah (maqaasid al-shari`ah). The scope of the objectives should be further elaborated and refined with the help of our ever growing knowledge and experiences, as well as the work of past scholars. Islamic schools and seminaries should pay more attention to the valuable body of Islamic literature on this subject, including the works of scholars such as Abu Mansur al-Samarqandi al-Maturidi (d. 944 CE); Abu Bakr al-Qaffal al-Shashi alShafi'i (d. 975 CE); al-Qadi Abu Bakr ibn al-Baqillani al-Basri al-Baghdadi (d. 1013 CE); Abu] Ma'ali Abdul Malik ibn Abdullah alJuwayni (d.1085 CE); Abu Hamid Muhammad al-Ghazzali (450-505 H/1058-1111 CE); Abu Bakr Muhammad b. Zakariyya al-Razi (Rhazes) (ca. 250/854-313/925 or 323/935);Abd Allah ibn Umar al Baidawi (d 1286 CE); Jamal al-Din 'Abd al-Rahim ibn al-Hasan alIsnawi (d.1370 CE); al-'Izz ibn 'Abd alSalam al-Sulami (d. 1261 CE); Ahmad b. Idnis b. 'Abd al Rahman al Sanhaji, al Bahnasi, al Qarafi (d. 684H/1268 CE); Najmuldeen Al-Tufi (d. 893); Ibn Taymiyah (1263-1328 H); Ibn al-Qayyim alJawziyya (691-751H/1292-1350 CE); Taj al-Din al-Subki (d. 1369 CE); Abu Ishaq al-Shatibi al-Maliki (d. 790H/1388 CE); Wali Allah al-Dahlawi (d. 1763 CE); Muhammad al-Shawkani (d. 1834 CE); Muhammad 'Abduh (1849-1905 CE) ; Muhammad Rashid Rida (1865-1935 CE); Muhammad Tahir ibn 'Ashur; Yusuf Ibn Muhammad Ibn Yusuf Al-Fasi (born 1530/31); Muhammad Abu Zahrah.
New Methodology. In order to make ijtihad consistent and free from personal whims, fads or pressures of the time, new usul (methodology/methodologies) of ijtihad should be developed and added to our existing heritage. While fully benefiting from the great work of our past scholars, we must also try to improve on their foundations, utilizing new knowledge and epistemology. In addition to learning from the work of the great scholars of usul, we should also pay attention to two issues in our new methodology of ijtihad.
First, ijtihad should not be used to isolate Muslims or to make them lose their identity. It should be used to promote healthy and positive interaction with the world. It should pay attention to the objectives (maqaasid) and priorities (awlawiyat) of the shari'ah. The mujtahid's objective should not be to make things too rigid, or loose, or watered down; rather, modern ijtihad should attempt to establish and promote the balanced, middle path (wasatiyah).
Second, ijtihad should be collective as much as possible. Today, several national and international fiqh councils are working in different parts of the world. They should coordinate their efforts; become better organized; and include both male and female shari'ah experts. These councils should also include as consultants, experts from the fields of medicine, astronomy, economics, social and political sciences, and law. If needed, even sympathetic and objective non-Muslim scholars and experts should be invited for consultation. The councils should not only publish their rulings, but also the evidences and methodologies for their rulings. They must strive to build consensus (ijma') as much as possible.
Ijtihad Issues. The issues that need ijtihad are many. Some of the top priorities include:
Role of Women: There is indeed a great need to review the role of women in Islam by carefully examining the original texts (nusus) and by freeing them from some cultural interpretations.
Sunnis and Shi'is: The gap between various Islamic madhahib (schools and sectarian positions) should be closed. Modern ijtihad should try to merge or bring closer various schools of fiqh of both Sunnis and Shi'is.
Spirit of Globalization: Modern ijtihad should go beyond the division of the world between Darul Islam and Darul Harb or Darul Kufr. Emphasis should be placed on one world and responsible citizenship in our global village. Ijtihad should also try to foster better relations between people of diverse faiths and cultures; it should promote dialogue of cultures and civilizations, not clash of cultures and civilizations.
Economics: There is certainly a need for radical thinking and review of Islamic economics, taking advantage of modern economic thought. Why is the Muslim world in poverty, and how can we change this trend? What ways of cooperation and collaboration with world economic bodies and forums are possible for Muslims without compromising the true and authentic Islamic values and principles?
Unity among Muslim States: Islamic political thinking and statecraft should be reviewed. How can we bring the various Muslim states together, and what new structures are needed to establish and promote political unity among Muslim states? Ethical and moral standards of the Islamic state, as well as the freedom of individuals and especially other religious minorities and their role and participation in the state should be carefully examined under the changing circumstances and times.
Muslims in Non-Muslim Countries: Ijtihad is also needed to guide almost one-third of the ummah that lives as minorities in majority non-Muslim countries. What Islamic rules and guidelines must they follow to be good citizens of their native or adopted lands, and how can they become active participants in the life and culture of these countries while not neglecting their Islamic ethical and moral values and standards?
Ijtihad in America. Muslims of America are in a unique position to contribute to ijtihad in our modern times. Our position is unique because this is the first historic situation where a very large number of Muslims from diverse ethnic, racial and religious (madhhab) backgrounds have come together and are living together. The Muslim community is a prosperous community and does not lack material resources. Despite the challenges of Islamophobia created in the aftermath of the 9/11 tragedy, the truth is that this is still the best country in which to do work and research in any field, including Islamic studies. There are those who want to keep us busy in apologetics, but we have to come out and help ourselves, help the ummah and the world at large. With our enormous resources and opportunities, we should be able to make a great difference. We need to develop institutions of learning, full time and first class Islamic seminaries, and engage our youth in mastering the Islamic disciplines, the Qur'an, sunnah, fiqh, kalam, et cetera, and help them take full advantage of their nation's world-class educational institutions. We can also engage the best minds of the Muslim world in our modern ijtihad and help develop our new methodology without being censored by political or religious establishments of the present day Muslim world.
Dr. Muzammil H. Siddiqi, vice chair of the Fiqh Council of North America and member of ISNA Shura Council, is director of The Islamic Society of Orange County, Garden Grove, CA. He is an adjunct professor of Islamic Studies and Comparative Religion at California State, Fullerton and Chapman universities.
Source: Islamic Horizons
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