IJTIHAD-A CLOSER LOOK FROM THE MODERN PERSPECTIVE

• PRESENTED BY : FARHAN RIYAZ KHAN

IJTIHADPRESENTATION INDEX

• MEANING

• HOW IJTIHAD IS PERFORMED

• THE GATE OF IJTIHAD WAS CLOSED-REALITY OR A MYTH?

• IJTIHAD IN MODERN TIMES-NEED OF THE HOUR

• CONCLUSION

IJTIHAD-MEANING• CLASSICAL

DEFINITION: IJTIHAD IS THE EXERTION OF MENTAL ENERGY IN THE SEARCH FOR A LEGAL OPINION TO THE EXTENT THAT THE FACULTIES OF THE JURIST BECOME INCAPABLE OF FURTHER EFFORT.

• IN OTHER WORDS…IT IS THE MAXIMUM EFFORT EXPENDED BY THE JURIST TO MASTER AND APPLY THE PRINCIPLES AND RULES OF USUL AL-FIQH(LEGAL THEORY) FOR THE PURPOSE OF DISCOVERING GOD’S LAW.

PERFORMING IJTIHAD• THE QURAN AND THE SUNNA OF PROPHET DO NOT AS A RULE SPECIFY THE LAW BUT

ONLY CONTAIN SOME RULINGS (AHKAM) AND INDICATIONS(DALALAT)THAT LEAD TO THE CAUSES(ILAL)OF THESE RULINGS

• ON THE BASIS OF THESE INDICATIONS AND CAUSES A MUJTAHID MAY ATTEMPTING THE PROCEDURE OF QIYAS(ANALOGY) DISCOVER THE JUDGEMENT OF THE UNPRECEDENTED CASE

• HE MUST FIRST SEARCH FOR THE JUDGEMENT IN THE WORKS OF RENOUNED JURISTS.IF HE FAILS TO FIND A PRECEDENT,THEN HE MAY LOOK FOR A SIMILAR CASE IN WHICH LEGAL ACTS ARE DIFFERENT BUT LEGAL FACTS ARE THE SAME.FAILING THIS HE MUST TURN TO THE QURAN OR THE SUNNA OR IJMA( CONSENSUS) FOR A PRECEDENT THAT HAS A SIMILAR CAUSE.WHEN THIS IS REACHED HE MUST APPLY THE PRINCIPLES OF QIYAS IN ODER TO REACH THE RULINGS OF THE CASE. THIS RULING MAY BE ONE OF THE FOLLOWING : THE OBLIGATORY( WAJIB), THE FORBIDDEN (MAHZUR),THE RECOMMENDED(MANDUB),THE PERMISSIBLE(MUBAH) OR THE DISAPPROVED (MAKRUH)

WAS THE GATE OF IJTIHAD CLOSED?

• THE ACTIVITY OF IJTIHAD IS ASSUMED BY MANY MODERN SCHOLARS TO HAVE BEEN CEASED ABOUT THE END OF THE END OF THE THIRD CENTURY/NINTH CENTURY,WITH THE CONSENT OF MUSLIM JURIST THEMSELVES.THIS PROCESS IS KNOWN AS ‘CLOSING THE GATES OF IJTIHAD’

• IN ARABIC : INSIDAD BAB AL- IJTIHAD

REASONS FOR THE GATES OF IJTIHAD TO BE CLOSED

• THE SCHOLARS OF ALL SCHOOLS FELT THAT THE ESSENTIAL QUESTIONS HAD BEEN THOROUGHLY DISCUSSED

• CONSENSUS GRADUALLY DEVELOPED THAT FROM THAT TIME ONWARDS NO ONE MIGHT BE DEEMED TO HAVE THE NECESSARY QUALIFICATIONS FOR INDEPENDENT REASONING IN LAW

• IN OTHER WORDS INTERPRETATION OF THE DOCTRINE HAD BEEN LAID DOWN ONCE AND FOR ALL AND AMOUNTED TO THE DEMAND FOR TAKLID

CLOSING THE GATES OF IJTIHAD-A MYTH OR A REALITY?• THERE HAVE BEEN VARIOUS ACCOUNTS ON THE SUBJECT WHICH

HAVE LED TO A LOT OF INACCURACIES.FOR EXAMPLE: THE TIMEFRAME IN ITSELF IS QUESTIONABLE AND SEEM TO BE BASELESS.

• BY ANALYSING THE LITERATURES ON THE SUBJECT IT WILL BE CLEAR THAT THE DOORS WERE NOT REALLY CLOSED AND THAT JURISTS WHO WERE CAPABLE OF IJTIHAD EXISTED AT NEARLY ALL TIMES WHO USED IJTIHAD IN FORMULATION OF POSITIVE LAW.

• ONE OF THE PRIMARY OBJECTIVES OF USUL AL-FIQH TO BE ESTABLISHED WAS TO LAY DOWN A COHERENT SYSTEM OF PRINCIPLES THROUGH WHICH A QUALIFIED JURIST COULD EXTRACT RULINGS FOR NOVEL CASES,THUS IF THE PRACTICE OF IJTIHAD WAS THE PRIMARY OBJECTIVE OF THE METHODOLOGY THE QUESTION ARISES IN WHAT WAY WAS THE GATE OF IJTIHAD THOUGHT TO HAVE BEEN CLOSED?

EVIDENCE AGAINST THE GATE OF IJTIHAD TO BE CLOSED

• ASSUMPTION FOR THE GATE OF IJTIHAD TO BE CLOSED:

IT HAS BEEN ASSUMED,AMONG OTHER THINGS THAT THE PRACTICE OF IJTIHADWAS ABANDONED BECAUSE THE QUALIFICATIONS REQUIRED FOR THEPRACTICE”WERE MADE SO IMMACULATE AND RIGOROUS AND WERE SET SOHIGH THAT THEY WERE HUMANLY IMPOSSIBLE FOR FULFILLMENT”.

REBUTTAL :THE EARLIEST COMPLETE PUBLISHED ACCOUNT OF USUL AL-FIQH IN WHICH THE QUALIFICATIONS OF MUJTAHIDS ARE STATED IS ABU HUSAYN AL-BASRI’SAL-MU TAMAD FI USUL AL FIQH. REQUIREMENTS OF A MUJTAHID: a. KNOWLEDGE OF THE QURAN,SUNNA OF THE PROPHETb. INVESTIGATION OF THE WAYS OF THE HADITH TRANSMISSIONc. IN THE PROCESS OF DEDUCING THE ILLA FROM THE ASL,THE TEXT,HAS TO BE

ANALYSEDd. FAMILIARITY WITH THE ARABIC LANGUAGEe. FAMILIARITY WITH THE CUSTOMARY LAW (URF)

• f. THE JURIST MUST ACQUAINT HIMSELF WITH GOD’S ATTRIBUTES

WHEN DISCUSSING THE REQUIREMENTS OF IJTIHAD GHAZALI (d. 505/1111) MAINTAINEDTHAT IN ORDER TO REACH THE RANK OF MUJTAHID THE JURIST MUST: a. KNOW THE 500 VERSES NEEDED IN LAW,COMMITTING THEM TO MEMORY IS

NOT A PRE-REQUISITE b. KNOW THE WAY OF RELEVANT HADITH LITERATURE,HE ONLY NEEDS TO

MAINTAIN A RELIABLE COPY OF ABU DAWUD’S OR BAYHAQI’S COLLECTIONS RATHER THAN MEMORIZE THEIR CONTENTS

c. KNOW THE SUBSTANCE OF FURU WORKS AND POINTS SUBJECT TO IJMA d. KNOW THE METHODS BY WHICH LEGAL EVIDENCE IS DERIVED FROM THE

TEXTS e. KNOW THE ARABIC LANGUAGE f. KNOW THE RULES GOVERNING THE DOCTRINE OF ABROGATION g. INVESTIGATE THE AUTHENTICITY OF HADITH

THESE QUALIFICATIONS,GHAZALI REMARKS ARE REQUIRED FROM THE JURISTS WHOINTENT TO EMBARK ON IJTIHAD ON ALL AREAS.THOSE WHO WANT TO PRACTICE IJTIHAD INONE AREA NEED NOT FULFILL ALL THE CONDITIONS

• SUCCESSORS OF GHAZALI AND AMIDI,SUCH AS BAYDAWI (685/1286) SUBKI( 771/1370) ISNAWI ( 772/1370) IBN AL-HUMAM (861/1456) ANSARI (1119/1707) DID NOT DEPART SIGNIFICANTLY FROM THE ESTABLISHED SUNNI LEGAL DOCTRINE PROPOUNDED BY GHAZALI.IMPORTANTLY THE DIVISIBILITY OF IJTIHAD WAS RECOGNISED TO BE LAWFUL IN SUNNI LAW AND THUS A LIMITED KNOWLEDGE OF USUL WAS SUFFICIENT TO ALLOW A JURIST TO PRACTICE IJTIHAD IN AN INDIVIDUAL CASE.

• IT WOULD THEREFORE BE IMPLAUSIBLE TO MAINTAIN THAT THE QUALIFICATIONS FOR IJTIHAD AS SET FORTH IN MUSLIM LEGAL WRITING MADE IT IMPOSSIBLE FOR JURISTS TO PRACTICE IJTIHAD.

• THE PRACTICE OF IJTIHAD WAS FURTHER FACILITATED BY REMOVING THE CHARGE OF SIN FROM THE MUJTAHID WHO COMMITS AN ERROR AND EVEN MADE HIM ENTITLE TO ONE REWARD IN HEAVEN.IN THE CASE THE MUJTAHID WHOSE IJTIHAD WAS SOUND IT WAS DETERMINED THAT HE BE DOUBLY REWARDED.

• TO CONCLUDE THE FIRST ASSUMPTION IT CAN BE SAID THAT THE QUALIFICATIONS REQUIRED FOR THE PRACTICE OF IJTIHAD CAN HARDLY BE HELD RESPONSIBLE FOR NARROWING THE SCOPE OF IJTIHAD’S ACTIVITY MUCH LESS CLOSE THE GATES.

ANTI-IJTIHAD TRENDS AND THEIR EXCLUSION FROM SUNNISM-FURTHER EVIDENCE

• DAWUD AL-ZAHIRI

EVEN REJECTED THE STRICT PROCEDUREOF QIYAS EVEN WHEN SOLELY BASED ON SCRIPTURE. BECAUSE OF HIS INIMICAL ATTITUDE TOWARDS IJTIHAD,HE FOUND NOPLACE INSIDE THE PALE OF SUNNISM. IMMEDIATELY AFTER HIS DEATH A WAVE OF WRITING IN FAVOUR OF QIYAS WAS GENERATED IN RESPONSE TO DAWUD’S TREATISE WHICH HAD ATTACKED THIS ANALOGICAL METHOD.

• HASHWIS

THEIR CHIEF INTEREST WAS THEOLOGY (USUL AL-DIN) RATHER THAN LAW. THEY THOUCHED UPON LEGAL MATTERS ONLY WHEN THEY HAD IMMEDIATE RELEVANCE TO THEOLOGY.SUNNI SOURCES DO NOT ASSOCIATE THE HASHWIYYA WITH ANY SCHOOL OF LAW. HANBALI IBN AQIL PRACTICALLY EXCLUDED THEM FROM SUNNISM WHEN THEY DECLARED THAT ONE OF THEIR TENET WAS THE REJECTIONOF HUMAN REASON.

THE IJTIHAD OF JUWAYNI AND GHAZALI• JUWAYNI

• JUWAYNI’S EDUCATION UNDER THE GUIDANCE OF HIS FATHER AND OTHER EMINET SCHOLARS SEEMS TO HAVE GIVEN HIM THE COURAGE TO EXPRESS RADICAL VIEWS IN SHAFI LAW TO WHICH HE ADHERED.IN HIS USUL WORK HE SEEMS TO HAVE DEVIATED FROM SHAFI USUL DOCTRINE AND INCORPORATED NEW IDEAS THAT STIRRED OPPOSITION IN LATER CENTURIES. SUBKI EVELATES JUWAYNI TO THE RANK OF MUJTAHID FI AL-MADHHAB. SUBKI POINTS OUT THE SPECIAL DIFFICULTY OF AL-BURHAN AND ITS UNIQUENESS AS A BOOK THE THEORY OF WHICH UNLIKE OTHERS IN THE FIELD WAS NOT DICTATED BY THE WORKS OF DOCTRINE OF PREVIOUS AUTHORITIES. INFACT HE WAS A REMAKABLY CREATIVE JURIST AND A MUJTAHID OF THE HIGHEST CALIBER

• GHAZALI • HE IS THE FIRST SCHOLAR WHO

CLAIMED THAT HE WAS CHOSEN BY GOD TO REVIVE THE RELIGION OF ISLAM.JURISTS OF THE SHAFI SCHOOL AS WELL AS OTHERS LOOKED UPON HIS AS THE RENOVATOR( MUJADDID) OF THE 6TH/ 12TH CENTURY AND OFCOURSE A RENOVATOR HAD TO BE A QUALIFIED MUJTAHID. AL-NAJJAR MAINTAINED THAT A UNIVERSAL CONSENSUS HAD TAKEN PLACE CONCERNING THE FACT THAT GHAZALI WAS THE MUJTAHID OF HIS TIME. TO GHAZALI ONLY TWO KINDS OF MUJTAHIDS WERE KNOWN,THE INDEPENDENT ( MUTLAQ) AND THE LIMITED (MUQAYYAD). GHAZALI RECOGNISED THE EXISTENCE OF MUJTAHIDS FI AL-MADHHAB,SPECIALLY THAT HE HIMSELF WAS A MUJTAHID IN THE SHAFI SCHOOL.

THE CONTROVERSY ABOUT THE EXISTENCE OF MUJTAHIDS

• ONE OF THE MOST IMPORTANT ELEMENTS THAT LARGELY CONTRIBUTED TO THE DEEPENING OF THIS CONTROVERSY IS THE MISUSE OR THE MISUNDERSTANDING OF TECHNICAL TERMS. THIS WAS DUE TO THE ABSENCE OF A COMMON TECHNICAL DICTIONARY TO WHICH THE JURISTS WOULD CONFORM.

• IN THE COURSE OF TIME THE DEGREE OF CONFUSION INCREASED STEADILY IN LEGAL LITERATURE. THE DEFINITION OF THE TERM ‘MUJTAHID MUTLAQ’ ( ABSOLUTE MUJTAHID) IN GHAZALI’S TIME, FOR INSTANCE DIFFERED FROM THAT GIVEN TO IT LATER. FOR GHAZALI A MUJTAHID MUTLAQ IS A JURIST WHO IS CAPABLE OF INTERPRETING ALL BRANCHES OF LAW WITHIN A GIVEN SCHOOL BUT THIS MUJTAHID CANNOT BE THE FOUNDER OF THE SCHOOL. FOR MAJD AL-DIN IBN TAYMIYYA AND IBN AL-SALAH THE TERMS MUTLAQ AND MUSTAQILL( INDEPENDENT) ARE ALMOST SYNONYMOUS. BUT UNLIKE GHAZALI ,THEY ARE GIVEN THE TITTLE ‘MUJTAHID MUTLAQ’ OR ‘ MUSTAQILL’ TO THE EPONYMS OF THE SCHOOLS RATHER THAN THE LESS QUALIFIED MUJTAHIDS. WHAT GHAZALI CALLS ‘MUTLAQ’ THEY CALL MUNTASIB ( AFFILIATED).

IJTIHAD IN MODERN TIMES-NEED OF THE HOUR

• IJTIHAD is an accepted concept in Islam and one can not deny its legitimacy. In a fast changing world, recourse to ijtihad is a must. However, there is no need for Ijtihad as far as basic beliefs and Ibadats (Prayers) are concerned, but in other matters of changed life styles Ijtihad is a great necessity. It is particularly important in relation to the status of women, relations between different Muslim Sects, relations between Muslims and non-Muslims, the role of Muslims in non-Muslim societies, and Islamic economic theories.

• It has to be understood that freedom of expression is essential to the practice of ijtihad through which reconciliation of Islam and modernity as well as reform of educational system can be successfully accomplished. We are in dire need of Ijtihad; if there were no Ijtihad, the number of Muslims who would behave according to their personal opinion or according to non religious norms would multiply in every generation. Many scholars from different disciplines have expressed the opinion that the loss of ijtihad has been a central reason for the intellectual conservatism and stagnation in Muslim societies and, therefore, ijtihad is a prerequisite for the survival of Islamic Civilization in a modern world.

COMMENTS ON THE NEED OF IJTIHAD IN MODERN TIMES Shah Waliullah

an outstanding scholar-reformer and a thinker par excellence, of eighteenth century, emphasized the need for Ijtihad in order to provide economic and social justice to Muslims at large He highly decried closing its gates and criticized the contemporary Ulema for approving it.

Allama Iqbal (1897 -1938-India), noted Islamic Scholar-Philosopher, considered Al-Ijtihad as "the principle of movement in the structure of Islam". He desired to reconstruct Islamic law or Shariah according to the needs and requirements of modern times. Only religious obligations or ibaadat, he argued, were beyond the law of change since they constituted the rights of God. But mundane or worldly matters (muamalaat) relate to the rights of the people and are subject to change and modification.

Maulana Waris Mazhari (Islamic Scholar, India)-The tradition of ijtihad has been largely lost and Islamic thought has fallen prey to stagnation and rigid taqlid or blind conformity to past precedent.

King Hussein (Jordan), "When Ijtihad-the possibility of reconciling faith and present-day life-stopped a long time ago, that was the beginning of a very sad deterioration that has continued over the years and has opened the way to all sorts of fringe movements and splits. We need to do whatever we can to repair that mistake."

Muqtedar Khan (Islamic Scholar, U.S.).- Today, the Islamic Ummah is in disarray. It has not only lost its past glory, but has also lost the capacity to comprehend the virtues and the causes of its past glory. It is in decline and unable to defend or take care of itself. After nearly 100 years of Islamic revivalism the best we have to show is the Taliban. I believe the singular reason for this state of affairs is the transformation of a people from processors of ideas to recyclers of ideas. On the moral and spiritual front we are trying to recycle the ideas of our forefathers and on the material front we are just consumers of Western ideas. The sooner we realize the absence of ideas and encourage, freedom of thought, creativity, and intellectual self-determination, the sooner will we recover some semblance of our past glory and fulfill our God given mandate of universal moral leadership.

Tahir Mahmood

(Legal authority-India) .. ancient juristic wisdom has to be changed through Ijtihad to meet the contemporary demands.

Amin Madani (Islamic Scholar, Saudi Arabia)-"giving every novelty a negative and static response is not an impediment to it; on the contrary it encourages its dissemination because everyone is filled with a desire for evolution. If the novelty is not examined in a practical, wise and flexible approach, the masses will avert negativity and adopt the novelty with all its implications on the premise that it is one of the requirements of evolution."

Dr. Ibrahim B. Syed President, Islamic Research Foundation, USA, "Only by the exchange of Ideas through Ijtihad, it will be possible to safeguard the Muslim world from deterioration and empty westernization".

CONCLUSION

• Islam as a religion is based on reason and the Islamic Shariah is founded on the basis of Ijtihad. Without Ijtihad, it is difficult to claim that Islam is an eternal religion. Therefore, if any person stands in the way of Ijtihad or tries to prevent it, he is really undermining the basis of Islam and its Shariah and destroying its distinctiveness from other religions.

• Hadith “GOD DOES NOT REMOVE KNOWLEDGE SUDDENLY FROM MANKIND BUT REMOVES IT WHEN SCHOLARS PASS AWAY.AND WHEN ALL SCHOLARS PERISH THERE WILL ONLY REMAIN IGNORANT LEADERS,WHO WHEN ASKED TO DECIDE CASES,WILL GIVE JUDGEMENTS WITHOUT HAVING KNOWLEDGE,THEREBY FALLING IN ERROR AND LEADING OTHERS ASHTRAY”

• Hadith …………. Every hundred years, the people renew their faith…God sends to this nation at the start of every one hundred years to renew its religion” -Narrated by Abu Dawood

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