The Role of Ja'fari Ijtihad in the Modern World

I first would like to express my gratitude to all those who were instrumental in convening this seminar; I would also like to thank all those, scholars and intellectuals, who are present here and paying attention to my lecture.

The topic is the Role of Ja'fari Ijtihad in the Islamic Jurisprudence the emphasis, however, is on the openness of the way of Ijtihad and its impact on the dynamism of Islamic Jurisprudence in the Ja'fari Shi'ite School. I will also refer to the fatwas of Imam Khomeini, the great reviver jurist.

The lecture will cover the following topics .

1- the importance of ijtihad;

2- the concept of ijtihad;

3- the prerequisites of ijtihad;

4- the methodology of ijtihad;

5- the role of time in ijtihad;

6- the role of place in ijtihad;

7- the openness of the way of ijtihad;

8- the role of modern developments in ijtihad.

1- The importance of ijtihad

Ijtihad and its related issues have recently been thought and written about by great jurists as one new topic. After the Islamic Revolution of Iran and new industrial and technological developments in the world, this issue has proposed lots of challenging questions for both layman and scholar. As a matter of fact, Muslim jurists have not shown one similar approach towards ijtihad through their long history.

The importance, seemingly, of Ijtihad can be summarized into three phases:

First and the foremost, all Muslims are obliged to practice religious (Islamic) duties i. e. divine rulings which can only be known by means of ijtihad. Fiqh (jurisprudence) is thus one of the most sacred branches of knowledge that deals with these rulings. Don’t follow the correct method of ijtihad, we would be entrapped in 'Iftira (fabrication) disapproved by the verse of the Qur'an: ( تفترون الله علی ام لکم اذن آلله )

Second, having various stands on all issues of the life of human being, ijtihad goes to cover the whole issues life of Muslims. Ijtihad thus reveals Islam's different stands on

all dimensions of human life. Today Muslim society faces lots of juridical questions in economy, politics, and so on, which can only be resolved through collective Muslims' consultation and an authorized ijtihad.

Third, Muslim scholars did not have one identical approach towards ijtihad. Some of them some time regarded ijtihad as the Quias (analogy)

and the deduction of personal opinion. Later on, the deduction of Shar'at rulings from the related resources in one way or another was embraced as ijtihad. Not soon after, because ijtihad was being misused, they closed the way of ijtihad.

In the Ja'fari Shiite view, however, ijtihad was known to be open through history. More decisively today, we are in an acute need of ijtihad, because noble Islam is being attacked by its different enemies who try in one way or another to cast doubts on the sanctity and competence of Islam. They have gone too far to say that Islam is the religion of radicalism, animosity, terrorism, while Islam is free from such unfair accusations.

Today Muslims are expected to join hands, strengthen their force, and stand in one line against the attackers. They are to prove that the Islamic ideology is well-founded and based on justice, freedom, peaceful coexistence, and sympathy for all human beings who are equal and deserve no priority except for taqwa (piety).

O' my brother in Islam, and O' Muslim scholars, let's revive ijtihad and Islamic doctrines once more, to let Muslims through the cross-cultural exchanges move along modern technological and scientific developments; namely, modern developments that have taken all nations into "one global village" which has challenged not only the social and cultural dimensions, but also the spiritual and ideological ones.

It is, therefore, necessary to study Ijtihad which requires ceaseless efforts and heavenly mind, and to determine its clear-cut concept and domain in order to prevent any kinds of going too far or shortcoming which both faults may affect the way of Allah.

 

 

 

 

 

2- the concept of Ijtihad

In its etymology, ijtihad is derived from the root of "jahd" which means "to make one's effort in order to reach one's aim". In its technical meaning of jurisprudence, Muslim jurists have proposed different meanings one of which is that: "a jurist makes all his efforts possible in order to deduce from the related resources the proof on the rulings of shari'at whether primary or secondary, real or apparent."

During the early centuries of Islam (from 1st to 5th), ijtihad was synonymous

with Quias (analogy). Quias, in the view of the Shiite Imams particularly Imam Sadiq (PBUH), is rejected if it

is not well-founded or not based on the categorical rationale behind the ruling. A jurist may ascribe the

ruling of one particular case (which is Asl اصل) to another similar (which is Far'a فرع) only if the rationale

behind the former case (اصل) is mentioned in the holy text or the jurist is absolutely certain about it.

This was why the Shiite used to reject ijtihad which meant Quias, but later on when (about 5th and 6th

centuries A.H.) ijtihad meant otherwise they embraced it.

It is noteworthy, however, that even though the word "ijtihad" went current only after the 5th and 6th

centuries A. H. among Shiite jurists, the very process of ijtihad (deducing shari'at rulings from the Book and

the Sunnat), affirmed by holy Imams Sadiq and Baqir and other Imams (PBUT) was being practiced by them

since the very beginning of Islam. Holy Imams (PBUT) taught their students how to deduce the rulings from

the Qur'an.

Somebody, for example, asked Imam Sadiq (PBUH) that if somebody had fallen down and broken his nail

putting some dressing on it, how he could wipe his feet. Imam (PBUH) answered: "Issues like this can be

known from the Qur'an." " حرج من الدین فی علیکم جعل ما " "Wipe the dressing", said Imam (PBUH). Following

their Imams, the Shiite jurists concern themselves with the Qur'an and the Sunnat of the holy Prophet

(PBUH); they also regard traditions narrated from their Imams (PBUT) as the continuation of the Sunnat of

the holy Prophet, and not otherwise.

3- The prerequisites of ijtihad

Having been taken as to mean to study and reflect carefully on the resources of the shari'ah in order to deduce the law, ijtihad

requires mastering many branches of knowledge that may help a jurist to succeed in his aim. These branches are: Arabic

morphology and grammar, literature, logic, Qur'anic studies and exegeses, hadith studies, ilm-o al-rijal (biography of those

coming in the chain of transmitters of hadith), ilm-o usul-e al-fiqh (methodology of jurisprudence), history of the Islamic schools

and the like. As to be a qualified and an expert jurist, one is to master at least Ayat-o al-Ahkam (those verses of the Qur'an that

deal with the shari'ah law), al-Nasikh wa al-Mansukh (those verses abrogating or abrogated), al-Muhkam wa al-Mutashabih

(those verse having clear-cut meaning and those whose meaning becomes clear only on the basis of the former ones), and to

master recognizing accepted hadith from the rejected ones and to be able to resolve the inconsistency and conflict among

hadiths; all these require lots of effort and practice so much so that they will take the whole life time of the jurist.

Having, however, regarded all the above as insufficient for a jurist, Imam Khomeini holds, a jurist needs to know the cases of

event particularly those of social relations in the world of today in all aspects in order to be able to apply the correct rulings of

Shari'at on them. In spite of the fact that a jurist is not to be an expert on the cases of event, he however needs to know any

case of event very perfectly in order to be able to ascribe the right ruling of Shari'at to the right case of event. This is because

one case of event can be an instance of different concepts each of which requires its due ruling.

Selling blood, for example, was forbidden before. A jurist, however, is to know that this prohibition was at the time when some

people wanted to buy in order to drink it; there was no other reasonable interest in it in the past. Today, nonetheless, the

scientists have the instruments to draw blood from somebody and preserve it in a fridge for a long time and inject it to another

to save his life, and this is a reasonable interest. Now in the case of blood, we can see how the concept has changed today from

yesterday.

We ought to divide ijtihad into two categories: authorized and unauthorized. The former is that a jurist having all the above-

mentioned prerequisites draws on all his efforts to draw the rulings concerning the issues of the past and now from the Book and

the Sunnat, and if not there from the imperative reasoning (certain Aql). The latter, however, is that somebody having mastered

not the related branches of knowledge embarks on issuing fatwa (legal opinion).

As a matter of fact, Islam has through its long history suffered from many strokes by the amateurs who by learning only one or

two branches of knowledge supposed themselves qualified to give opinions of Islam and to issue fatwas from the Qur'an.

Impressed by the foreign cultures, these unskilled amateurs have proposed the strange ideas and opinions not only

unprecedented in Islam but also contrary to the established course of Islam and the Qur'an. We ought therefore while letting not

the Qur'an be marginalized to let not any illiterate trifle with it.

4-The methodology of ijtihad

In its general division, Shari'at law is divided into two sections: Ibadat (acts of worship) and Mu'amilat (transactions). The

accuracy of the former section depends on the intension i.e. the servant must intend the obedience of Allah's command when

performing acts of worship; only in this way he may perform Alla's command in order to win Allah's pleasure. Acts of worship are

known to be "tawqifi" which means we are not be expected to exactly know the wisdom and reason beyond Allah's command to

perform acts of worship in this or that particular way. Why do we, for example, perform mourning prayer in two rak'ats (units)

rather than three or four? Why do we perform Hajj like this and only during hajj period rather than any other form? And so on.

This is because when we perform acts of worship like this or like that we may not be expected to know what will happen in our

life hereafter. We then are expected to exactly follow commands of Allah and perform acts of worship exactly as described in

shari'at law in all their details.

The case however is different of transactions which in their broad meaning would cover all social, political and economic

relations, all human rights private or social civil or penal, and so on. Being able, as human beings who are endowed with reason

and common sense, to know the reason and wisdom beyond the rulings of transactions, we do not need the divine legislator to

describe the rulings of transactions in all details. He accordingly and contrary to the former, has confined himself to describe

only the general rules. There are a very few cases, however, that he may proscribe the way of the wise, prescribing otherwise.

Having been based on the conduct of the wise, transactions are merely known to be confirmed by the divine legislator rather

than to be founded by him. The method, as a result, of ijtihad in acts of worship differs from that in transactions.

With the former, a jurist confines himself to the limits of fixed holy texts of shari'at. The concepts of acts of worship are fixed

and may not change through history, thus what a jurist requires is to master the holy texts of shari'at and sometimes resolve

the inconsistencies and conflict among the traditions. With the latter, however, the case is different. The concept of social issues

in transaction may change as the life of people varies day by day and more developments are made in industry and technology.

An issue, Imam Khomeini and other clear-sighted jurists hold, which could be very simple having some simple ruling in the past

may be very complicated having some different ruling in the multifaceted social and political ties of today. Reclaiming a piece of

land, for example, at the time of holy Prophet of Islam would give the right of ownership to the reclaimer, but today it can hardly

be so. One who possesses all modern equipments for agriculture may reclaim the largest possible area of barren land leaving

the least area to many others which is unfair to them. We, thus, can not preserve the former law for the latter case; for today

people are many but god-given endowments are limited and few. The case is true with mines which were considered as sequent

and dependent on the land. Today private ownership and freedom have been made restricted for public rights and collective

interests by some governments.

Jurisprudence, in Imam Khomeini's view, aims to manage the whole life of human beings from their birth to their death. The

subject matter, thus, of jurisprudence is to be defined accordingly. Did a jurist try to manage the life of man of today, he should

be familiar with the requirements of his time and environment. He holds that a jurist who is perfectly not aware of the

complicated social ties of his time is not qualified to issue a fatwa regarding modern human rights, politics, or economics.

5- The role of time in ijtihad

Not only ought a jurist to know the resources of shar'at law but also to master how to apply the law to the cases in practice.

Time, accordingly, and place may have a crucial role in ijtihad. This, yet, dose not mean that we leave out the bright rulings of

Islam for the new developments of the time. Knowing the world of today is necessary for understanding the concept of each

subject matter involved in each case of event. The way, though, of ijtihad in Jafari School of jurisprudence is not closed so that

Shiite jurists have all the times the right to freely scrutinize the views of their preceding jurists, even some times they cast

doubts on them. It is then not peculiar to our time and has since long been practiced by Ja'fari school of jurisprudence that our

jurists have been changing their views on the resources of shari'at law whenever they faced the requirements of the time or

wherever they saw different costumes in different places. It is, for example, decisive for understanding the texts of traditions of

the holy twelve Imams to know the line of conduct of the Sunni schools at the time when the Imam said the tradition. This would

help a Shiite jurist to know that the Imam had said some contrary tradition by the intension only to go along with the majority

Sunnis, yet it was not his own real view. This is called "jahat-o al-sudor" (i.e. by what intension Imam issued a tradition)

There are other instances of intension of issuing a tradition in our time. We have some traditions in our collection of hadith dealt

with by the jurists as suggesting the primary real rulings which would not change until the end of time. Now after getting

familiar with some secondary political rulings issued by the jurist as the head and governor of Islamic territory, the jurists have

come to know that such rulings are not the primary real ones, but merely political secondary rulings to run the Islamic

administration and manage the regulations among Muslim people, which yet may easily change if the situation for that changes.

That holy Prophet (PBUH) prohibited water owners from preventing additional water to other people, or he prevented posture

owners form having their additional postures, are some instances of such political secondary rulings.

It is perhaps the reason why in the views of majority of Ja'fari Shiite jurists, people are not allowed to follow the fatwas of a dead

jurist. This reveals the vital role of time in ijtihad and how Jurisprudence is frequently developing day by day. There are many

new cases of events that the jurist of thousand or hundred years ago is not qualified to issue a fatwa about, however best he

was at his time.

6- The role of place in ijtihad

Place, as well as time, has a decisive role in deducing shari'at law. The fact that some jurists wrote Jurisprudence for the

Westerners suggests the role of place in ijtihad. A jurist not acquainted with or did not live in the West is not qualified to issue

the proper fatwas for the westerners.

The Shiites, however were few in the past, of each region had their own jurist to follow. They, nonetheless, today live

everywhere throughout the world which multiplies the burden of ijtihad for the jurists to know the situations dominant in

different regions. This can be done through continuous communication among the jurists of different countries. Great jurists

such as Imam Khomeini have for long longed for the cooperation and communication of the best jurists from one continent to

another. Such cooperation depends on welcoming and friendly negotiation among Muslim jurists. Holy Imam Ali says: "Behold,

those endowed with Allah's knowledge preserve His secrets and keep open the springs of the knowledge to the people. They

have friendly relations with one another, meet one another warmly and sincerely, share their knowledge with one another, and

all as a result go satisfying their quest for knowledge." (Nahj-o al-Balagha Sermon 212).

As a matter of fact, the practice of shari'at law in the Shiite territories which are bound to the Shiite ideology is different from

those in which the Shiites are in minority, or the government is secular or even antireligious. Lots of fatwas were being issued

when there was no Islamic government, such as the prohibition of maintaining Friday Prayer or the prohibition of performing

Hudud (the fixed punishment for some grave sins such as robbery, adultery, and so on.) some of which are based on the

traditions of our Imams. Before the Islamic revolution of Iran, Imam Khomeini cast some doubts on the legitimacy of Friday

Prayer during Major Occultation; after the revolution however he changed his fatwa. Another instance is playing chess which

could be allowed, he says, if it were not considered by the experts as the means of gambling any more. It is noteworthy,

nevertheless, that in all such cases what has changed is not the Divine Law but rather the concept of the issues involved in the

cases of events. The prohibition, for example here, does not apply to the concept of "chess" but rather to the concept of "means

of gambling".

The verse, worth mentioning, of "Nafr" الدین فی لیتفقهوا طائفه منهم فرقه کل من نفر فلوال "" which authenticates ijtihad enjoins different

Muslim societies to send some qualified people from among them to learn shai'at law (which we call it ijtihad) in order to let

their people know shari'at law when they go back to them. This enjoinment is because the jurist of his society is familiar with the

literature of his people and environment; for each society has its own peculiarities.

7- The openness of the way of ijtihad

Taking ijtihad to mean the "deduction of shari'at law from the religious resources", successors much like

predecessors have under the eyes of Allah the right and duty to be jurists. Every qualified jurist may deduce

divine rulings from the book and the Sunnat and then follow them. He is not allowed to follow the fatwas of

another jurist, more particularly when they draw contrary fatwas based on different understandings. This is

because one jurist by his own process of ijtihad and fatwa regards the contrary fatwa of another as incorrect

and ill-founded. How can he then dare to follow such an ill-founded and unsound fatwa?

Referring, for example, to the verse:" النسا المستم او ", Imam Shafi'i held that touching a woman would negate

Wudu (minor ablution). We suppose one jurist today makes a research on the meaning of "touching a

woman" in the Qur'an. Having referred to another verse i.e. " تمسوهن لم ما النسا طلقتم ان عليكم جناح ال " (which

suggests if you divorce your wife before sexual intercourse it is OK), he says that "touching a woman" in the

terminology of the Qur'an means "to go to bed with her" rather than touching her hand finger et cetera

which is an apparent meaning. This jurist thus comes to refute the fatwa and understanding of Imam Shafi'i.

It would accordingly be haram (forbidden) for him to follow Imam Shafi'i's fatwa, for he supposedly knows

that Shafi'i's understanding of the term is incorrect.

O, my brothers in Islam and Muslim scholars, ijtihad is what we need today the most, for it has a mechanism

and dynamism to make Islam eternal and grant it such a flexibility to be alive in all circumstances, and to

be able to answer all of our questions in different situations of time and place.

O, my brothers, Muslim jurists with no exception have made unbearable ceaseless efforts to promote

Islamic jurisprudence; they have cultivated such a tree that can bear fruit at any time. It is then suggested

to launch some scientific cooperation and sympathy between the Ja'fari and Sunni schools of jurisprudence.

It has since old times been said "truth is the fruit of discussion". Bringing two minds together is like the

positive and negative wires when brought together to produce light. It is thus suggested that Ja'fari

jurisprudence be taught along with other schools in different juridical centers. Ja'fari jurisprudence receives

its legitimacy from the very Qur'an and the Prophetic traditions through the Imams of Ahl-u al-Beit (PBUT)

who are respected by all Muslim as the offspring of the holy Prophet (PBUH).

Dear brothers, Muslim jurists are all the light of guidance towards eternal salvation and happiness; they, dead or alive,

have a very high position with the Almighty Lord. Due however to what is said "the present can see what the absent

can not", an alive jurist can be mindful of the requirements of the time and place, in such a way that if the dead jurist

were alive he would change his fatwa due to the present situations. It is then suggested to follow the most

knowledgeable pious jurists alive to guide you to the best way " المستقیم الصراط اهدنا ", rather than the dead ones.

Following a living jurist is more concordant with human nature. Closing the way of ijtihad means to close the gateway

of the mind and thinking exterminating thoughts; the fruit of such a tree would be bitter and not sweet.

As Imam Ali (PBUH) said: " الدهر بقی ما باقون العلما " (the learned survive as long as years revive), preceding

jurist and scholars are undeniably alive, which nonetheless does not imply we make no contribution

satisfying ourselves of their effort. This is the case with other branches of knowledge, i.e. having respected

the scientific efforts of their preceding, later scientists embark on contributing their own ideas to the whole

human knowledge. Early physicians, for example, are alive through their valuable works, which however

does not imply to close universities of medicine making ourselves satisfied of the previous ideas in

medicine.

To respect the predecessors admiring their works is one thing, but to close the gateway of the mind and

thinking, making no contribution is another. The process of the absolute ijtihad does not entail the rejection

of the previous ideas and ideologies, starting every thing anew. Having made, however, use of the valuable

heritage of the past, later jurists are expected to improve jurisprudence by their own contribution about

which there is no anxiety. What creates, nevertheless, anxiety is that jurists practice ijtihad without any

established methodology.

8- The role of modern developments in ijtihad

Jurisprudence can undoubtedly not be indifferent to the constantly increasing modern developments which not only influence

human life and progress of science, but also the process of ijtihad. Within itself, Ja'fari school of jurisprudence has the necessary

dynamism and mechanism to develop and make developed.

We are, nonetheless, to see what factor exactly of ijtihad modern developments may have an influence on. The following, in the

first sight, may be proposed:

1- The concept of matters involved in each case of event;

2- The very shari'at laws, rather than the concept of matters in a case;

3- The methods of ijtihad;

4- The principles and rules of jurisprudence;

5- The resources of jurisprudence.

What can, from he above, not be accepted to change is number 2, for no shari'at law can be said to be abrogated, al-Halal wa al-

Haram (the forbidden and the allowed by Allah) is and will remain the same until the end of the time. Neither is number 5, which

constitutes the majority of religious doctrines and revelation.

The method of ijtihad, in Imam Khomeini's view, is the so-called "ijtihad Jawahiri" i.e. the method practiced by the preceding

great jurists such as Sheikh Hasan al-Najafi, the author of Jawahir-u al-Kalam (the most comprehensive encyclopedia of Ja'fari

jurisprudence). Having recognized the conventional method of understanding the holy texts as standard, Imam Khomeini adds:

"The yardstick of understanding the verses of the Qur'an and apparent meaning of the words is public customs and common

sense, rather than the scientific analysis, and we follow the common sense [in the process of understanding]. If a jurist wanted

to insert scientific scrutiny [in the process of ijtihad], he might unwillingly give up many issues." (Wilayat-u al-Faqih P. 115)

Modern developments, seemingly, can not have an effect on number 4, either. What then is left for modern developments to

influence is number 1. In this regard, Imam Khomeini says: "Time and place are the two decisive factors in the process of ijtihad.

One thing, in the past, had some particular ruling which is apparently known the same thing [today] may have another new

ruling in political social or economic relations in one [modern] regime. That is to say, one thing [in the past] which apparently

remains the same may in the profound understanding of political social or economic [of today] transform into another thing that

naturally requires another ruling."

Business, in the world of today, has changed from simple national into complicated international one creating the ever greatest

networks of the world economy. Stock market, exchange, electronic banking, artificial insemination, organ transplantation,

complex political and economic relations with different countries all over the world, and lots of other findings of human modern

knowledge which have transformed the life of today necessitate the jurists to double their efforts to correctly know them in

order to issue the proper and correct fatwa in each case so that people suppose no sort of inconsistency or conflict between

tradition and modernity , nor between faith and science.

Having known the concept of matters in the cases, the jurists can play their role as the driver of the engine of Islamic

jurisprudence, and hence harmonize Islam with the requirements of the time. New medical issues such as, organ donation and

transplantation, dissection, artificial insemination, cloning, newfound juridical issues such as, spiritual ownership, electronic

banking and trading, and so on, newfangled issues in politics such as, modern democracy, election, legislative assembly, the

organization of government, and new questions in acts of worship such as, prayer and fasting in the north or south poles and

when traveling to the space, performance of the rites of Hajj when it is overcrowded, and the like; all such questions can be

resolved in the light of such dynamic ijtihad.

Rules such as, the obligation of maintenance of social security, the obligation of the prerequisites of what is obligatory,

secondary titles such as, emergency and none-damage, the preference of what is more important to what is less important

when in a dilemma, for example, we can only have a choice of one, the principle of al-Maysur (how far some shari'at law is

achievable), the principle of al-'Usr wa al-Haraj (strait and pinch), and the like are the mechanisms of ijtihad that help the jurists

to resolve the abovementioned questions. The authorities given to the Muslim governor, where the administration is an Islamic

one, is one of such mechanisms for practicing Islamic law in order to run the affairs of the society.

As a matter of fact, we in the rich Ja'fari school of jurisprudence feel no vacuity of law. By the grace of Ahl-u al-Beit's

guardianship, it has been left no deadlock or vacuity of law in practice.

It is, as demanded by the hadith of Thaqalayn, suggested that Sunni jurists refer, in the process of their ijtihad, to the traditions

narrated from Ahl-u al-Beit accessible not only to the Shiite but also to the entire Muslim community so that they come across

no deadlock or vacuity of law any more in their future.

In the end and once more, I would like to show my appreciation to the audience and all those who managed to hold this

scientific seminar. My especial thanks go to the Cultural House of the Islamic Republic of Iran that provided me with the trip and

the chance to pay a visit to the jurists, scholars, and scientists here.

May the Peace and Grace of Almighty Lord be with you all.

Dr. Sayed Hasan Vahdati Shobeiry

 

 

 

 

 

 

 

 

 

 

 

 

The Political Dimension of Ijtihad in Muslim History

التسليم و الصالة و الحمدلة بعد

للجمهورية مؤسسا و المباركة اإلسالمية الشعبية للثورة قائدا منتصرا رجع يوم� عليه السالم و إيران من أخرج يوم عليه السالم و ولد يوم الخميني على السالم

ا أولياء من ذالك. حيا يبعث يوم� عليه السالم و مات يوم� عليه السالم و العظيمة الشعبية ...

Beyond the linguistic and technical/scientific (as in the science of usul al-fiqh) of ijtihad, ijtihad is that intellectual-spiritual

activity that denotes the ongoing intimate relationship between revelation (al-wahy) and reason or more precisely intellect

(al-‘aql). This understanding is expressed in not a few Qur’anic verses such as verse 109 of surah al-tawbah (Qur’an 9: verse ).

Islamic civilization in one word is a civilization of revealed text. This means revelation is its pivotal dimension; we can conclude

that if not for revelation there would be no Islamic civilization. That however does not mean that revelation, emanating from an

extra-historical transcendental source of a dissimilar nature, and external as it were to the human being, alone contributed to

the genesis and growth of the Islamic civilization. Rather it was the constant dialectical engagement of Muslims with their lived

reality on the one hand, and their submission to and engagement of revelation on the other, that nurtured the Islamic

civilization. It was necessary for revelation, in order to remain relevant to the human reality and avoid stagnation, to be

concretized in history specifically after the demise of the Prophet (sawa) in theory for Sunnis and the occultation of the twelfth

imam for Shi’ites.

In this manner ijtihad ensures that revelation recorded in the Qur’an and the Prophetic tradition is read anew evolving in

continuity with its original sense and given added depth and breadth of meaning and usage in human presence in the world.

Ijtihad is the necessary and natural activity of the post-Prophetic Muslim community to keep revelation fresh and relevant in the

world. In a world that Islam, as al-shahid al-Sadr said, had to say its say.

A question asked for a long time is: is the door of ijtihad closed? Some say yes while others (the majority) argue that it has never

been closed. A critical answer that goes beyond a simplistic yes or no must approach the question from two angles: the first

legal-practical and the second philosophical specifically the epistemological angle i.e. theory of knowledge. From the legal-

practical angle it is almost a truism that the door to ijtihad is not closed and was never closed. One just has to look at the fields

of finance (ABSA, HSBC) and health (example, organ transplant for bourgeois Muslims) today and you know that ijtihad is alive,

kicking and well. However from the philosophical angle it is a different question. In order to understand the Islamic cultural

legacy one must begin by deconstructing its epistemology and find how it has hitherto been in the grip of politics and the

political authority. This is fundamental for the effective interpretation of revelation, which is constantly reproduced in history.

Interpretation must take place within an epistemological paradigm that is far removed from politics (Mabruk, 2002: 77).

To show what I mean here I have, to unfortunately delve into a ‘sectarian’ discussion not with the aim to be sectarian but that

we can gauge its impact on ijtihad as human ability to shape their world. The issue is illustrated in the following hadith.

The best of you is my generation then those who follow them. ‘Imran b.Husayn said: I do not

know whether the Nabi said after this [initial] word twice or thrice – then after them [will come]

people testifying whilst not asked to testify; they will betray and not be entrusted; they will make

vows and not carry them out; and obesity will appear.

(Al-Bukhari)

The first part of the hadith declare religiously authoritative the results of the activity of these first three generations, which is

both intelligent and natural as with any generation of Muslims. Some have described the part from: "then falsehood will become

rampant…" as a hopelessness that gave rise to "narrow religious" Messianism, which sees history as progressively deteriorating

in order for a Messiah to come. It was not Messianism at play, at least not as an intellectual and/or spiritual development but a

conscious political endeavour to establish for the first three generations specifically the Companions an elite religious status and

immunity for their legacy that was characterized by contradictions and interminable conflicts over power. What this means is

that history is a progressively deteriorating reality in order for the Messiah to come.

There are many other sayings that indicate such an understanding of history. It was reportedly said that with ‘Umar’s death nine

tenths of knowledge "died" with him. ‘Umar was not only an individual, he was the leader of the Muslim community; its political

head. Ibn Mas’ud said that:

قحطا أكثر, أحدب, قبله الذي من أسوأ هو و إال عام من ما ...

This notion is in essence that of the ‘Ash’ari (Ahl al-Sunnah) political-historical religious discourse in terms of how it views the

past and the future. History is a move away from the ideal. Opposed to that discourse is the discourse of the Mu’tazilah and the

Shi’a. For example, al-shaykh al-Tusi's saying regarding, the imam in occultation: al-ghaybah minna wa ‘l lutf minhu. The former

though is the dominant discourse. More importantly in order to understand and critique these discourses the political element

(that is the role of politics and the ruling political authorities) must be appreciated. Hence my focus on ijtihad is on its political

dimension i.e. from a political perspective.

To understand the historical development of ijtihad in its political dimension the personality and role of Muhammad b. Idris al-

Shafi is fundamental. Al-Shafi was of course not the first mujtahid, but he articulated a discourse of ijtihad that was in many

ways radically different to the hitherto dominant mode of ijtihad. It is my view that al-Shafi’is bayan scheme was in essence a

project to check the political authority. He did not challenge the political authority with the aim to rise up and bring it down

through revolutionary or rebellious action. However what he did was to articulate a discourse of power for the scholars as the

intellectual authority independent, albeit weaker, from that of the political authority. This discourse would enable the ‘ulama to

create a separate space to function as independent authorities, alongside the State.

I want to emphasize here that Shafi transcends Sunni-Shi’i polemics; he is neither Sunni nor Shi’i. It is his methodology that is of

fundamental importance; a methodology that will indicate to what degree his discourse was influenced, or perhaps a result of,

the indoctrination of teachings of al-imamayn al-Baqirayn. This is reflected in how he saw the authority of the Prophet vis-à-vis

that of the dominant pattern of ijtihad when local doctrines and the opinions of individuals were equivalent to the Sunnah of the

Prophet. It is not the content of what is known as the Shafi madhhab per se.

His relationship, specifically political, unlike the methodological, sentimental (poetry) and ideological, to the ahl ‘l bayt is indeed

an enigmatic one. However, he has certainly not escaped the Shi’i bogey. One anecdote qualifies ShŒfi>¥’s stay in Yemen to

joining a Sh¥>ite rebellion hence al-Nad¥m in his Fihrist labels ShŒfi>¥ as "shad¥d f¥ al-tashayyu> or strongly Sh¥>ite. With

tashayy’u here I mean the politico-religious notion on the leadership of the Ahl al-Bayt and not the ritualised tashayy’u of the

Safawid Empire marked by its paraphernalia of nomenclature, popularised cursing, wilayah in the adhan etc. Al-Shafi’s discourse

though, as outlined in his al-Risalah, is not a political manifesto and correctly so; in a world where the political authority is brutal

it is best to speak in any but direct political agitation. His discourse is thus a philosophical one that delineates the primary role of

revelation and of the human being.

The totality of what God has made clear to His creation in His Book…are several: (1) Among them are those

things which God has expressed in an explicit text like his general obligations, to wit, that they must

perform prayers…He has forbidden wine drinking… (2) And among it what he has confirmed in His Book and

then explained it on the tongue of His Prophet such as the number of prayers… (3) Among them too, things

for which God’s Messenger has provided a Sunnah and in respect of which God has no explicit rule. God

has, in His Book, imposed the obligation to obey His Messenger [the Sunnah], and to carry out His rulings …

(4) And also among them …which God has imposed on His creation…to seek them out by means of legal

interpretation [ijtihad]. Emphasis mine (Shafi, 1979: 21-22).

Al-Shafi stood between two extreme intellectual currents influenced by the politics of the ruling class of the day: the so-called

traditionalist and rationalist schools. The traditionalists thought him to be involved with the rationalists and accused him of

Mu>tazilite tendencies. The rationalists, in turn, regarded him an advocate of some fundamental traditionalist doctrines. Shafi

recognized that the human capacity to reason plays a positive role. Two passages from the Risalah demonstrate the point. The

first is that God bestowed humankind with intellects wherewith they could distinguish between disparate things. The second if

scholars seek answers through ijtihad using their intellects after seeking assistance from God, then they have carried out what is

incumbent on them (Shafi, 1979: 501-503). In two instances, he identifies solutions to problems as reasonable – not based on

text - describing his solutions as follows: the one which is most obvious intelligible and what he considered to most closely

resemble the policy of God’s Book, and what is reasonable (Lowry, u.d: 419-420).

Shafi refers to the intellect pejoratively when he uses the phrase ahl’l ‘uqul. By this he means those group of people (scholars)

who refuse to tie legal interpretation to revelation, that is, their use of istihsan and abandoning of qiyas. It is clear that ShŒfi>¥

is not against the intellect or rationalism per se. Rather he is against the unregulated and arbitrary usage of opinion in legal

interpretation. He censures the abstract use of the intellect, i.e. by means of istihsan but endorses istidlal, that describes the

jurist’s mental process in hard cases where there is no explicit text ruling (Lowry, u.d: 417-423).

Shafi was anti-rational only in proportion to a living tradition that was fraught with contradictions and manipulated so easily by

the political authority. In short he sought to curb, albeit indirectly, the power of the political authority. And therefore the Risalah

deals with the critical question of obedience in order to establish to whom it is due. Shafi is unequivocal that it is due only to God

and His Prophet. Once obedience as an abstract notion has been delineated within the bayan matrix of the Qur’an and the

Prophetic Sunnah it then fundamentally covered and qualified authority whether political, intellectual or of any other form. A

primary concern of Shafi was rectification of concepts i.e. how they are understood and employed especially by those in

authority like rulers, scholars, fathers and men. Hence he is at pains to elucidate concepts such as command, obedience and

legitimacy (al-Saghir, 1994: 157-183).

Thus if law – and law is indispensable to human society even as a necessary nuisance – is to guarantee a happy and just human

society and nature than we must properly demarcate the relationship between law and the authority. Thomas Hobbs’ dictum

that authority, not the truth, makes law i.e. neither content nor even reasonableness can be said to provide the binding force

behind law; it is not the knowledge of the scholars but political authority i.e. the political power of the rulers that makes a law

must be engaged and challenged. It reminds one of a dictum coined by one of the political despots that ruled the Muslim world –

and by now a hadith – that G-d restrains through the ruler what He does not (for some cannot or will not) restrain through the

Qur’an. It is this distorted notion of the relationship between law and the authority that led great German intellectuals such as

Heidegger and Schmitt to declare that the will of the fuehrer Hitler was the will of the German volk! It was not the German

intellectuals, brilliant as they were, who would lead the German people but a delinquent racist Adolf Hitler. We know the disaster

that Nazism brought the world: killing of six million Jews, almost two million Gypsies (54 million people overall); all to prove the

myth of a superior Arian people.

Yes there can be no law without authority i.e. a person in authority. However it is law that grants authority. This is al-Shafi’s

bayan scheme. Law in Islam is contained in the Qur’an and the sunnah and it is only when the people in authority receive their

authority from the law that they are legitimate and must be obeyed. Sadly the history of Islam reveals the opposite. Despotic

rule, where the individual means nothing, has become the definitive reality of Muslim political exercise. This reality is not

without its intellectual rather rational discourse. Did not Aúmad b. îanbal say that whoever, good or corrupt, comes to power

through the sword has become the legitimate Caliph and is to be addressed as the Commander of the Faithful. Recently in Egypt

the jam’ayyah shar’ayyah reasoned that if Hosni Mubarak appoints his son to succeed him as ruler of Egypt then someone

better than him did likewise, namely Mu’awiyah when he appointed his son Yazid. Hafiz al-Asad of course already did so and we

hear that al-Qadhdhafi is planning the same for his son; it matters not that Syria, Egypt and Libya are republics and not

monarchies!

This is the main, not only, tragedy of the Muslim world today: political despotism. We have gods not men ruling us. Look at the

example of Anwar al-Sadat so-called man of peace who called himself al-ra’is al-mu’min. His crime was not only that he sold out

to the Zionists; worse than that is his claim that G-d called him to mount Sinai to tell him to do so. The same al-Sadat, who

advocated peace with the usurping Zionists sent soldiers (the young, stupidly devout and naive Usama B. Ladin and like) to

Afghanistan to oppose Soviet atheism.

The twentieth century has seen refreshing ijtihad by Muslim scholars on the question of the dignity and freedom that the Muslim

ummah have been deprived by our homegrown despots and European imperialism. Their discourse was not always overtly

political (as with al-Shafi) given the harsh reality for as one of them said ( الزمان حسب لإلكتتام المضطر أنا – intellectual taqiyah).

However, a careful reading reveals its political concerns and implications. Two names here stand out: that of ‘Abd al-Rahman al-

Kawakibi (d. 1902) and Muhammad Husayn al-Na’ini (d.1936). Al-Kawakibi wrote his Taba’i al-Istibdad wa Masar’i al-Isti’bad

geared directly to the topic of freedom, democracy, albeit in its negative formulation that is despotism and enslavement. It

combined between theory and action or the Marxist concept of praxis; between the search for the natures of despotism and the

search between the liberation from enslavement. Al-Na’ini, a champion of the Constitutional movement in Iran that culminated

into the constitutional revolution in 1909 wrote Tanzih al-Millah wa Tanbih al-Ummah wherein the notions despotism and

democracy were central themes. The title says much: al-Na’ini was saying that Islam must be rid from political dictatorship and

therefore the necessity to alert (tanbih) the ummah.

There is a dire need for a renewed reading of these two important Sunni and Shi’i scholars. Today when we speak of Islamic

thought and the Islamic movement two names dominate: that of Abu ‘l ‘Ala al-Mawdudi and al-shahid Sayyid Qutb. This reality

has been entrenched by both Muslims and Western scholars. That these two seminal figures, despite my critique, at times

severe, of them, made a great contribution to Islamic revival in the contemporary period cannot be doubted. However, that

came at the expense of other, obscured, Muslim thinkers such as al-Kawakibi and al-Na’ini.

However it was in the 20th century that we saw the fruition of hundreds of years of intellectual jihad and sacrifice in the victory

of the Great Peoples Islamic revolution in Iran led by the revolutionary mujtahid al-Imam Ruh-A…. al-Khomeini. Imam was the

embodiment of a tradition: of piety and intellectual exertion. Suffice it to look at the order in which he arranged the topics in his

arba’in ahadith to gauge this piety or connection to G-d and intellectual ability. In a more immediate sense there were

personalities of the contemporary era that is the last two hundred years that left their mark on him in three distinct ways

although he transcended them and indeed was greater in achievement. The impact (not necessarily the shaping of his ideas) of

these personalities was either purely academic-intellectual such as al-shaykh Murtada al-Ansari, purely political such as Jamal

‘Abd al-Nasir of Egypt, and academic-political such as al-Na’ini – and of course earlier Shi’i scholars.

Indeed the 20th century has not seen his like, however he was only human and not ma’sum. Here too we must have a careful

re-reading of imam’s revolutionary al-Hukumah al-Islamiyyah. Written in 1971 as a evolution on his political theory outlined in

his 1944 Kashf al-Asrar wherein he accepted the idea of a constitutional monarchy (as articulated by al-shaykh al-Ansari)

provided the shari’ah and public welfare of the ummah were guaranteed in al-Hukumah he is a clear as he is emphatic: the state

can only be administered by the fuqaha. Guided by the Qur’anic principle arising from the verse:

( الرسل قبله من خلت قد رسول إال محمد ما و ) we must transcend him too. There are issues we can critically engage him. For example

imam equated the authority of the jurist (which the shar’ invested him with) over the people to that of a qiyam over children in

that people are like children (except from a quantitative angle); they are unable to run their own affairs, hence the need for the

jurist. My point is not that we reject the authority of the faqih (Plato had long rejected democracy and certainly liberal

democracy had not created the happy society it promised; just look at South Africa today with its most liberal and most

progressive constitution in the world); I certainly believe in the State administered by the faqih with its mistakes and at times

excesses as the best form of government. However, if we do not engage it constantly and critically we run the risk of the ever

lurking danger of despotism hovering over our heads. We must remember that as ‘Abd al-Jawad Yasin says:

The political authority has influentially performed a great deal in history whilst history impacted on the

intellect directly and indirectly which resulted in the perpetual subjection of the Muslim intellect to both the

[political] authority (by virtue of its history) and history (through its authority). The history of the authority

caused this intellect to be almost completely obedient to government authority in the absolute sense whilst

the authority of history – on this intellect – has bequeathed it a semi-complete submission – uncritically so -

to the past in its absolute signification, as well. (Yasin, 1998: 8).

There are many issues that the imam could not address or sufficiently so; political and social issues that need constant

intellectual articulation. Of the political issues the following: What is the role of Muslims in who their leader is? To what extent

and how can the citizens over whom the jurist exercise authority express their opinion even where it differs from that of the

jurist and can their opinion can become binding on him? What is the position and role of opposition especially those who differ

from the faqih? Here I think of people such as ‘Abd al-Karim Sorush, sincere and patriotic Marxists and Liberals, feminist groups

and ‘ulama with their differing religious political and social discourses. My contention is not that these are correct; however they

can certainly not be dismissed simply because they do not subscribe to wilayah al-faqih. Rather I think engaging them, listening

to them will only enrich the very theory and practice of wilayah al-faqih.

Of social-economic issues: gender concerns; women becoming judges and mujtahidat and other roles of public duty – equality

beyond the spiritual sphere and that of the soul to the social mundane sphere. In this regard there is a need to critically read our

legacy on women. Ahadith such a woman being defective in her intellect and her din must be confronted. Some Muslim

philosophers held the view that women were created as animals. The impact of Greek thought is clear. Others again believed

the only difference between Black people and animals is that Black people walk upright; I wonder what they would have said had

he seen penguins. The racist KKK use to quote the sages David Hume & Emmanuel Kant both racists to substantiate their nasty

views on Black people. Hegel said Africa has no history and no religion, unless we consider magic a primitive form of religion.

But this seems to be a problem with many philosophers and mystics (Muslim, Christian, Jewish, Greek, etc.) caught up & lost in

their heads;

 

Phenomena such as children born out of wedlock in light of Qur’an and Sunnah (not fiqh even fiqh become sunnah) on the one

hand and disciplines such as history, anthropology, sociology, etc. on the other hand. For example, in the case of South Africa

given the spiritual and social ravage of apartheid (the migrant labour system, evictions, poverty, etc.) a classical fatwa on the

child born out of wedlock can simply not be issued. I am of course not saying that illicit sexual relationships are ok. However the

classical fiqhi rulings on the matter are simply in need of fresh ijtihad.

Our philosophy today must be that of imkan. Today’s generation is better (potentially so) than that of yesterday; we are moving

closer towards the ideal. As Fazul Rahman contends the Prophet nurtured a deep God consciousness aimed at establishing

essential human egalitarianism and the central concern of the Qur’an is the conduct of humankind on this earth; an ethically

based sociopolitical order under G-d that is according to the principle that moral values cannot be made and unmade by man at

his own whim and desires.

 

 

 

 

IJTIHAD AND ITS SIGNIFICANCE FOR ISLAMIC LEGAL INTERPRETATION*

 

Nazeem MI Goolam**

Associate Professor

Department of Jurisprudence

University of South Africa

 

>Ask the people who are learned if you do not know.=1

 

Introduction

There are both primary and secondary (or subsidiary) sources of Islamic law or Shari=ah . Since a number of Arabic words or

terms are used during the course of this article, a glossary of words is here provided at the outset in order to facilitate

understanding and ease of comprehension by the non-Muslim reader or the reader unfamiliar with these words or terms.

Glossary

The Arabic word is supplied first followed by a translation (and explanation if required).

Allah God

ahadith plural of hadith

adl denotes justice and fairness; a synonym for qist

a=immah leaders ; pl of imam

aql intellect

ayah verse

ayat (pl of ayah) verses

AH After Hijra, that is after the migration of the Prophet from Makkah to

Medina. The Islamic calendar begins with this event in 622 AD.

darurat necessities; essentials

deen the religion of Islam, the way of life of Islam

dunya earth

faqih jurist

fuqaha (pl of faqih) jurists

hadith a written account of a saying or teaching of the Prophet Muhammad

(peace be upon him)

hajat needs

imam leader (of a community); pl is a=immah

ijma consensus (of reputable jurists on a particular matter)

ijtihad personal reasoning ( the sources of Islamic law are Divine Revelation and

human reason. Ijtihad forms the core of human reason). Ijtihad should not be confused with >jihad=. A synonym for qiyas.

istihsan equity

istishab presumption of continuity

istislah public interest

jihad Although the word >jihad= does not appear in the article it is important

to distinguish it from ijtihad. Jihad means to struggle, strive or exert

oneself in the path of Allah. Warfare is know as the lesser jihad while the struggle to improve oneself is known as the greater

jihad.

maaruf kindness, goodness, fairness. The word >maaruf= is used on at least

twelve occasions in the Qur=an in the context of the law of divorce

madarrah harm; injury

mal wealth

maqasid objective/ purpose; thus maqasid al-shari=ah refers to the objectives or

purposes of Islamic law

manfa=ah benefit

mujtahid one who is capable of exertion and creativity in legal thinking; one who

engages in ijtihad.

mujtahideen pl of mujtahid

nafs literally meaning >the self=; in the context of law, it refers to life

nasl progeny

qist justice; a synonym for adl

qiyas reasoning by analogy; a synonym for ijtihad.

ra=y personal opinion

Shari=ah Islamic law

Sunnah the sayings, teachings and examples set by the Prophet during his lifetime

tahsinat ease or facility

taqlid imitation (of previous scholars); thus denotes lack of creativity

urf custom

 

 

(a) Primary sources

The two primary sources are the Qur=an and the Sunnah, while the secondary or subsidiary sources are ijma and qiyas. The

Qur=an is not in itself a legal text. In fact, only about 80 of the approximately 6000 verses (ayat, sing ayah) are of a legal

nature.2 The true significance of the Qur=an, however, is its emphasis on an ethic of justice (adl), fairness and equity

(maa=ruf ). For example, as regards commercial integrity, the Qur=an declares:

Give full measure when you measure

And weigh with a balance that is straight. 3

The Sunnah refers to the body of the teachings, sayings, traditions and examples set by the Prophet Muhammad ( peace be

upon him)4. Literally speaking, Sunnah means a manner of acting or a rule of conduct. As a source of law, the Sunnah may be

applied in the following three ways:

(i) it may confirm and corroborate a ruling of the Qur=an;

(ii) it may explain or clarify a verse of the Qur=an, and

(iii) it may comment or rule on a matter on which the Qur=an is silent.5

When the Prophet was alive he would respond to the queries of his followers, adjudicate their disputes and pronounce rulings.

His words and deeds were remembered and observed not only during his time but also, as they were gradually collected and

recorded, by future generations. On the death of the Prophet the Sunnah was first transmitted orally and later through written

accounts which were based on earlier narration. These written accounts ( also known as the ahadith 6 ) have been compiled in

six authentic collections.7

(b) Secondary sources

With the passage of time, when it was found that neither the Qur=an or the Sunnah had ruled on a particular matter, in

particular new problems which had arisen, it became necessary to make rulings by human endeavour8 or the application of

human reason. Thus the need for the development of secondary or subsidiary sources of law. The two main secondary sources

of the Shari=ah are ijma (consensus) and qiyas ( analogical reasoning ). In the words of Moosa:

They are really instruments or subsidiary sources or legal techniques

for resolving specific legal issues. They were designed and introduced

by human endeavour to provide legislative guidance and solutions to

new problems which are not directly available from the Qur=an and

Sunna[h]. 9

Ijma literally means >getting together=. It signifies the unanimous convergence of the views of reputable jurists ( fuqaha10 ) of

a given era on any point of law, hence consensus.11 Although one finds no Qur=anic text on the authority of ijma, such

authority is founded upon the distrust of individual opinion and the saying of the Prophet that >my followers/community will not

agree unanimously in error=.12 An obvious limitation on the authority of ijma is that

it must not be in conflict with the rules, values and principles of the Qur=an and the Sunnah. Viewed from the standpoint of

justice and equity, ijma plays an important role in that it provides forthe development of the law to meet the needs of changing

conditions and circumstances.

Qiyas means reasoning by analogy.13 Since it involves personal reasoning it is, in essence, a form of ijtihad. Where both the

primary sources as well as ijma fail to provide a solution to a particular legal problem jurists must strive, through reasoning and

deep study, to derive an appropriate rule by analogy and logical inference. Such resort to personal reasoning is called ijtihad and

the jurist or scholar is referred to as a mujtahid . A mujtahid is thus a person capable of exertion and creativity in legal thought.

Ijtihad, like ijma, has provided and will continue to provide Islamic law with a means of adapting to the changing needs and

conditions of a developing world.

The primary sources of the Sharia=h, namely the Qur=an and the Sunnah, may be termed Divine Revelation. Although the

Sunnah or ahadith14 are not, strictly speaking, Revelation the Qur=an states that whatever the Prophet said was Divinely

Inspired. The Qur=an explains:

Nor does he say anything of his own desire

It is no less than Inspiration sent down to him

He was taught by One Mighty in Power.15

The secondary or subsidiary sources may be termed human reason. In essence, Islamic law is thus a combination of Revelation

and reason. Discussing the interplay of Revelation and reason, Kamali states that if the revealed law is silent on a certain matter

reason may determine, by reference to the general principles of Sharia=h and the best interests of society, that a certain law

exists concerning the matter, especially when jurists realise that the Shari=ah cannot remain indifferent concerning the matter.

Human reason thus becomes a proof and source of Shari=ah and an important tool in the process of interpretation.

It is on the concept of ijtihad (personal reasoning), particularly its significance for Islamic legal interpretation, which this article

focuses upon. At the outset, however, it must be made abundantly manifest that one cannot understand ijtihad without being

aware of the various theories of legal interpretation in Islam and the approach to legal interpretation by each of the four great

schools of thought.16

A brief exposition of the theories of interpretation in Islamic law

The history of the theories of Islamic law is founded on the debate between the Ahl al-Ra=y and the Ahl al-Hadith. While the

latter relied on the ahadith or Sunnah of the Prophet (pbuh), the former engaged in personal opinion.17 The Arabic expression

used by Mu=ad ibn Jabal when he told the Prophet that he would exercise his own opinion was >ajtahidu ra=yi=. Both the terms

ijtihad and ra=y were used by Mu=ad.18

In short, the approach of the Ahl al-Hadith may be regarded as the literal interpretation, textual interpretation or strict

interpretation approach, while the approach of the Ahl al-Ra=y may be seen as contextual interpretation or purposive

interpretation. Viewed differently, the debate between the Ahl al-Ra=y and the Ahl al-Hadith may also be regarded as a debate

between, on the one hand, the literal- or strict interpretation of statutes ( or texts ) and, on the other hand, creative- or

purposive interpretation.19

(a) Strict/literal interpretation

Perhaps the most strict proponent of the literal theory of interpretation was Imam Al-Shafi=i. His primary contribution in this

respect was that the Sunnah governs the meaning of the Qur=an. This is couched in the proposition: al-sunnah qadiyah >ala al-

Qur=an, which means that the Sunnah is the decisive authority for determining the meaning of the text of the Qur=an.20

Therefore, if the opinion of a companion of the Prophet (pbuh) concerning a verse of the Qur=an differed from the explanation of

that verse in the Sunnah, the latter would be given preference. The companion=s opinion would be regarded as analogy (qiyas)

and, as such, would be regarded as a source weaker than the Sunnah.

It should be borne in mind that literalist tendencies in Islamic legal theory were based on a desire to discover the true intention

of the Lawgiver and to deviate as little as possible from the original text.

(b) Purposive/contextual interpretation

By the fifth century of the Islamic era Al-Shafi=i=s theory of strict interpretation began to be extended so as to yield a more

flexible approach to interpretation. Most prominent in this respect was Al-Ghazali. He initiated the theory of purposive

interpretation which was based on the maqasid al-shari=ah ( the objectives of the Shari=ah). This theory was taken to full

fruition by the great Maliki scholar from Andalusia, Al-Shatibi.21

Al-Ghazali=s theory of interpretation advocates reasoning based on the general principles of the Shari=ah. Such general

principles should be consistent with the purposes and the moral foundations of the Shari=ah. He divided the purposes (maqasid)

of the law into dini

( purposes of the Hereafter) and dunyawi ( purposes pertaining to the world). Each of these purposes may be viewed as securing

a benefit (manfa=ah) or repelling a harm (madarrah).

Thus, for Al-Ghazali, the maqasid should essentially either secure a benefit or repel harm, hardship or injury. Since securing or

acquiring a benefit and repelling harm represent human goals, the ultimate aim is the welfare of human beings through the

attainment of these goals.22

While the dini purpose is to secure the din or religion of Islam, Al-Ghazali divided worldly purposes into into four typees:

(i) the preservation of nafs (life),

(ii) the preservation of nasl (progeny),

(iii) the preservation of aql (intellect) and

(iv) the preservation of mal (wealth).

Ultimately, the five primary and fundamental purposes of the Shari=ah are religion, life, intellect, progeny or lineage and wealth

or property. These five purposes are regarded as necessities or essentials (darurat). Additional purposes are termed needs

(hajat) while the tool of ease and facility (tahsinat or tawassu wa taysir) may also be employed in achieving the purpose of the

law. One may well view necessities as equivalent to principle, needs to policy and ease and facility to morality or moral norms.

If one looks at Al-Ghazali=s theory of purposive interpretation, a judge may have recourse to three interpretive tools when

deciding case. First, the darurat, secondly the hajat and finally, the tahsinat. This third level is the level of the ethical and moral

values of Islam.

Having briefly looked at the theories of legal interpretation in Islam23 and before beginning the examination of ijtihad it would

be relevant to compare and contrast the approach to the interpretation of statutes in Western law in general and in South Africa

in particular. It would be appropriate to begin by examining briefly the various theories of interpretation.

Theories of interpretation in South African law

Devenish lists, inter alia, the following theories of interpretation:

(i) literal theory;

(ii) subjective or intention theory;

(iii) purposive theory;

(iv) teleological or value-coherent theory.24

(i) literal theory

In terms of this theory words should be given their ordinary and grammatical meaning or natural and ordinary meaning as the

first step in the process of intepretation.25 This is regarded as the primary rule in interpretation. This primary rule may only be

deviated from in exceptional and definitive circumstances, namely to avoid absurdity and to resolve ambiguity. Absurdity

implies that the application of the literal theory would lead to a result which is unjust, unreasonable, inconsistent with other

provisions of the statute or repugnant to the general object, tenor or policy of the statute26, while ambiguity permits an

examination of the historical motivation for the statute from which the purpose of the legislation can be inferred and the words

read in the light of that purpose.27 In essence, this is nothing but a tempering of the literal theory by the purposive theory.

In the words of Devenish:

The essence of the literal theory is therefore that it is premised

on the autonomy of the written text. This means, according to

Du Plessis, that >[t]he need for justice and equity is only met in

instances where inaccurate or ambiguous language obscures the

otherwise manifest intention of the legislature=. Thus in all

other cases where the language is clear, however harsh the

result of literal interpretation may be, the courts have no

choice or discretion.28

In a word one may thus say that, as far as the literal theory is concerned, the text is of paramount importance.

(ii) subjective or intention theory

This theory is based on the distinction between language, on the one hand, and ideas and thought, on the other. Thus the

concept of the >intention of the legislature= is central to this theory.29 Some 80 years ago a South African court held that the

governing rule of interpretation is to endeavour to ascertain the intention of the law-maker from a study of the provisions of the

enactment in question and there is no doubt that the literal grammatical meaning of the word must give way to that rule.30

(iii) purposive theory

As explained above, the avoidance of absurdity and the resolution of ambiguity when applying the literal theory is nothing but a

tempering of the literal theory by the purposive theory. Indeed, Devenish states that the >mischief rule, applied as part of the

literal methodology, is a manifestation of a qualified purposive approach, since it can be applied only when there is

ambiguity=.31 With reference to Cowen=s well-known article32 written in 1976, the learned author adds that the overwhelming

weight of authority in Roman-Dutch law favours the anti-literalist approach and a purposive methodology in the interpretation of

statutes.

In a word one may thus say that, as far as the purposive theory is concerned, the context is of paramount importance.

(iv) teleological or value-coherent theory

Devenish explains this theory by comparing it to the literal theory and the purposive theory. He writes:

The literal theory of interpretation restricts the sources of

interpretation to the text and only in the event of absurdity

or ambiguity may internal and external sources be consulted,

whereas the purposive approach permits an immediate

examination of both internal and external sources. The

teleological approach allows certain jurisprudential and

moral issues to be weighed up in the formulation and

creation of the intention...of the legislature.33

Teleological interpretation has an ethical dimension and is thus a wider and more encompassing approach than the purposive

approach. One of the leading proponents of this approach during the apartheid years was John Dugard.34 He advocated a value-

oriented method of interpretation and the adoption of a realist-cum-value oriented approach to the judicial process.

 

The literal theory is no different to the literal or strict approach to Islamic legal interpretation while the purposive theory is,

similarly, no different to the purposive or contextual approach to Islamic legal interpretation discussed above. Just as the

purposive approach in Islamic law is aimed at discovering the objectives or purposes of the Shari=ah or the maqasid al-

shari=ah, so too the purposive theory is aimed at ascertaining the objective or purpose of the legislation in question.

Restrictive and extensive interpretation

Just as in Islamic law, so too in all legal systems the relevance of the context in the process of legislative interpretation is of the

utmost importance. The tools of restrictive and extensive interpretation thus play an important role in the overall process of

interpretation. General words in a statute may thus be modified and restricted through reasonable interpretation.35 The

technique of restrictive interpretation may be justified so as to bring words into line with the purpose of a statute and to

harmonise the meaning of a provision with the common law.

Two well-known techniques used to interpret restrictively are cessante ratione legis, cessat et ipsa lex and eiusdem generis. The

former means that if the reason for the law falls away the law itself falls away while the latter is a device that can be used to

restrict the meaning of general words by reference to specific words used in the same provision or statute.

The essence of extensive interpretation is that the spirit of the law is more important than its letter. Often words taken at face

value do not convey the complete and precise objective of the provision or statute in question or do not convey the intention of

the legislature. In such situations various techniques may be used to extend the meaning of words. These include interpretation

by analogy36, interpretation by implication and, more generally, the modification of language.

The great Roman - Dutch authority Johannes Voet called for interpretation by analogy on grounds of equity and fairness. In

essence, this tool of construction finds its place in the purposive and teleological or value-coherent theories of interpretation.

Where statutory provisions are not enacted in express words they may be implied. The implication should ordinarily flow from

the other sections of the statute and it should be reasonable and necessary.37 There is, in essence, no fundamental difference

between these two techniques.

At its most basic and fundamental level there is a very significant common thread in the philosophy of interpretation in the

Shari=ah and the foundations of South African law, namely Roman law. The purpose of the Shari=ah is the attainment of justice,

fairness and equity, while the Roman jurist Celsus stated that ius est ars boni et aequi ( law is the art of the good and the

fair).38

 

The meaning and foundations of ijtihad (personal reasoning)

Kamali states that after the Qur=an and the Sunnah39, ijtihad is the most important source of Islamic law. The learned author

writes:

The main difference between ijtihad and the revealed sources of the

Shari=ah lies in the fact that ijtihad is a continuous process of

development whereas [D]ivine [R]evelation and Prophetic legislation

discontinued upon the demise of the Prophet. In this sense, ijtihad

continues to be the main instrument of interpreting the [D]ivine

message and relating it to the changing conditions of the Muslim

community in its aspirations to attain justice, salvation and truth.40

Kamali adds that because ijtihad derives its authority from Divine Revelation, its propriety is measured by its harmony with the

Qur=an and the Sunnah. He argues that the >essential unity of the Shari=ah lies in the degree of harmony that is achieved

between [R]evelation and reason=41 and that ijtihad is the principal instrument of maintaining this harmony. According to

Kamali, the secondary sources of Islamic law, namely consensus of opinion (ijma) , analogy (qiyas), juristic preference (istihsan)

and considerations of public interest (maslahah), all represent different forms of ijtihad.

Linguistically speaking, the word >ijtihad= emanates from the root word al-juhd, meaning exertion, effort, trouble or pain. Al-

juhd denotes exercising one=s capacity, ability, power or strength in a correct and righteous manner.

Technically or legally speaking, a number of scholars have provided definitions of the term ijtihad. These include, inter alia, Al-

Ghazali, Al-Amidi and Al-Shirazi. Saif al-Din Al-Amidi defined ijtihad as the:

...total expenditure of effort in the search for an opinion

as to any legal rule in such a manner that the individual

experiences an inability to expend further effort.42

While Abu Ishaq Al-Shirazi defined ijtihad as follows:

In the language of the jurists, ijtihad is the exertion to the utmost

and the full exercise of one=s capacity in arriving at a legal value.43

The legal foundations of ijtihad are founded on the well-known hadith44 concerning Mu=ad ibn Jabal. When the Prophet

Muhammad (peace be upon him45) asked him what he would do if a problem is presented to him, Mu=ad ibn Jabal replied that

he would judge by what is contained in the Qur=an. The Prophet then asked him what he would do if there was no authority in

the Qur=an. Mu=ad responded by saying that he would make a judgment in accordance with the Sunnah of the Prophet (pbuh).

When the Prophet asked him what he would do if he found no authority in the sunnah Mu=ad ibn Jabal replied that he would

exercise his opinion and spare no effort in so doing. At this the Prophet expressed his pleasure, thus indicating the position and

status of the mujtahid in Islam.

The Prophet exhorted people to exercise ijtihad when necessary and at the same time exonerated the mujtahid from sin or

wrong if he erred in the process. Mitha argues that the act of sending a scholar such as Mu=ad ibn Jabal to Yemen indicates that

the spread of Islam necessitated a mufti or mujtahid in different areas. Such person would be able to apply the Shari=ah in a

diverse geographical and cultural situation and this would demonstrate the ability of the Shari=ah to be a living law.46

Since ijtihad derives its authority from Divine Revelation and since its propriety is measured by its harmony with the Quran and

the Sunnah, the mujtahid must apply his/her mind in the context of the various theories of and approaches to legal

interpretation in Islam. Before looking at these theories of legal interpretation and the manner in which these theories were

applied in the four great schools of thought, it is appropriate to begin by examining ijtihad through the ages, beginning with the

manner in which the companions of the Prophet Muhammad (pbuh) practised ijtihad .

IJTIHAD THROUGH THE AGES

Ijtihad by the Companions of the Prophet

The Prophet Muhammad (pbuh), who was the last of God=s Messengers on earth, delivered the Divine Message and part and

parcel of his mission was to ensure the stability and continuity of that message. In allowing his companions to practise ijtihad he

was, in fact, testing their methodologies in the application of the principles of the Shari=ah and also testing their intellectual

acumen in solving novel problems. The Prophet consistently endeavoured to make the companions self-sufficient in the legal

tools necessary to sole problems that would confront them after his demise.

It was the responsiblity of the Prophet to ensure that he left behind a group of companions who were well-versed, not only in the

memorisation of the Qur=an and the implementation of his Sunnah, but also in the practical application of those laws. If the

Prophet had failed to teach his companions the rules of ijithad it would have resulted in a static legal system, devoid of freedom

of thought and action. Only ijtihad could ensure the eternal universality of the Shari=ah.

The general methodology of ijtihad of the companions was the approach adopted by Mu=ad ibn Jabal. Thus, they would first

consult the Qur=an and thereafter they would refer to the Sunnah. If they found no authority in either they would employ their

utmost intellectual powers in the formulation of a legal value (hukm) which would be in harmony with the Qur=an and the

Sunnah, in other words they exercised their own ijtihad. 47 Over and above the general methodology of the ijtihad of the

companions, they also developed their own individual methodology in the application of ijtihad. Because Umar made a

particularly outstanding contribution to ijtihad - particularly in the light of his emphasis on the spirit of the law rather than its

letter- it is important to examine a few of his decisions in this regard.

The ijtihad of Umar

During the time of the Prophet, Umar=s ijtihad led him to abstain from performing the burial

(janazah) prayer on a hypocrite. When the Prophet wanted to peform such prayer Umar said >Did Allah not prohibit from

praying on these hypocrites=. The Prophet replied that, in terms of the following Qur=anic verse, he was entitled to choose

between two options:

...Whether thou dost pray unto God that they be forgiven or

dost not pray for them - [ it will be all the same; for even] if thou

wert to pray seventy times that they be forgiven, God will

not forgive them...48

After the Prophet performed the prayer the following verse was revealed, endorsing the opinion of Umar :

...And never shalt thou pray over any of them that has died,

and never shalt thou stand by his grave.49

As far as the ijtihad of Umar during his own reign is concerned two instances are selected here:

(i) first, his suspension of the punishment for theft during the year of the famine, and

(ii) secondly, the imposition of the death penalty for all who conspire in the crime of murder.

(i) The Qur=an states that the punishment for a thief is the cutting off of the hand and that this

is a deterrent ordained by God.50 While the Prophet (pbuh) applied this law strictly, Umar

suspended the punishment for theft during a year in which famine prevailed in Madina. He refused to amputate the hands of two

men, who had allegedly stolen meat during this

period, on grounds of the famine as well the hunger suffered by the men. In reaching his

decision Umar relied on the spirit and the general import of the Qur=anic teaching that

necessity may serve as a justification ground for wrongdoing. In Umar=s view, to punish

these men, who stole out of necessity, would amount to a violation of the spirit of the

Qur=anic legislation.

(ii) The Qur=an declares:

And we ordained for them therein [Torah]

A life for life, and eye for an eye, a nose

for a nose, an ear for an ear, a tooth for a

tooth and a wound for a wound.

But if anyone remits the retaliation by

way of charity, it is an act of atonement

for himself...51

Just retribution is thus expressly mentioned for the case of murder. The principle of just retribution means that the life of the

murderer shall be taken as just recompense for the life of the victim. However, what happens where more than one person kills

another? In this regard, Umar once commented on a murder that had occurred in Yemen. He argued that if all the inhabitants of

San=a52 had participated in it he would have had them all put to death.53

Does this ruling of Umar violate the Qur=anic ruling of a life for a life? Umar=s approach was based on a basic principle

underlying the Shari=ah, namely equality. In his view, all the accomplices had the intention to commit murder, they acted with a

common purpose and therefore they should all be treated equally. If the verse calling for >a life for a life= was strictly or

literally interpreted then the punishment of only one member of the gang would be sufficient to satisfy the requirement and this

would amount to unequal treatment of the perpetrators. Alternatively, upon a strict and literal interpretation of the ruling the

equal treatment of all the perpetrators could well result in the entire group escaping liability.

Umar=s decision was based on the underlying rationale of the verse and its legal and social objectives. His decision has been

interpreted to be in the interest of the community (maslahah) and the closing of a lacuna in the law ( sadd al-dhara=i). Sadd al-

dhara=i implies preventing the means to an expected end which is likely to materialise if the means towards it is not also

prevented.54

These two instances of ijtihad on the part of Umar give us a basic insight into his approach to legal interpretation. Thus , where

it is necessary, in the light of changing social conditions, to suspend or modify a ruling of the Qur=an, this should be done. Umar

always bore in mind the underlying consideration of the welfare of the people. Fundamentally, he believed that the spirit of the

law is more important than its letter.

A further merit of Umar=s approach to ijtihad was his view that all ijtihad was practised and applied within time and space and

that no one=s ijtihad was valid for all time. Umar realised fully that ijtihad would differ from age to age and from place to place.

This remains the abiding strength of his ijtihad .

For the companions, ijtihad was regarded as the method, par excellence, of arriving at the truth, developing the intellect and

broadening the understanding of the objectives of the Shari=ah. They regarded the Qur=an and the Sunnah as totally binding

and did not deviate from the injunctions of these two sources. While making extensive use of qiyas55, they always took into

consideration the welfare of the people within the parameters of the objectives of the Shari=ah. The companions also made

constant reference to the principle of sadd al-dhara=i.56

 

 

The four schools of thought in Islam

(1) Imam Malik

Imam Malik was born in Madina around 93 AH and lived his entire life there. He died in 179 AH.

Imam Malik was one of the great hadith transmitters. He is regarded as the first recorder of the science of hadith and his great

work Al-Muwatta was the first scientific collection of hadith.57 He always atempted to derive his opinions first from the Qur=an,

then from the Sunnah and then from the statements and judgments of the companions and those who followed them. Since

reliance on oral transmission had been the norm until then, the Al-Muwatta was the first book written on hadith and fiqh. Malik

was not unduly disturbed by the variance in opinions and decisions in different places. Rather he regarded such divergence as

inevitable and believed that opinions or judgments should be in harmony with the customs of every area as long as they did not

contravene an explicit text of the Qur=an or the Sunnah.58

Imam Malik stated that istihsan (discretion) is nine- tenths of knowledge. It is thus not surprising that decisions based on istihsan

when having to weigh up different proofs are numerous in the Maliki school.59 Malik refined the principle of istihsan in his

treatment of masalih mursala (considerations of public interest). As regards masalih mursala Abu Zahra writes:

Islamic fiqh in its entirety is based on the best interests of the

community. That which contains benefit is desired... and that

which is harmful is prohibited.. So the manifest principle governing

the legality of customs and traditions in the eyes of the Shari=ah is

whether or not they are beneficial...60

Imam Malik often relied on the principle of sadd ad-dhara=i (blocking the means), which entails that the means to what is

forbidden is also forbidden.

In summing up Imam Malik=s approach to legal interpretation, one may say that he based it on flexibility in the application of

the principles. The purpose of such flexibility was the achievement of the greatest benefit to the people. In a word, the spirit of

the Shari=ah was more important than its letter.

(2) Imam Abu Hanifa

Imam Abu Hanifa was born of Persian descent in Kufa in 80 AH. He lived there most of his life as a student, debater and teacher

and died in 150 AH.

Abu Hanifa tended towards deeper study of issues at hand and this inevitably led him ot hypothesise situations which might

occur but had not yet occurred. When Imam Abu Hanifa could not find a text of the Qur=an or the Sunnah he would rely on a an

opinion or fatwa of the Companions. If there were differing opinions among the Companions, he would select from among the

differing views.61

Where no text of the Qur=an, Sunnah or fatwa of the Companions was available, he exercised ijtihad. In this regard, he was

sometimes guided by analogy ( qiyas ) and on other occasions by istihsan - that is, the best interests of the people and lack of

harm in the deen. Abu Zahra adds:

Abu Hanifa=s ijtihad and his method in understanding the

hadiths, coupled with the environment in which he lived,

made him use a lot of analogy and ramify secondary rulings

accordingly, because in his ijtihad, Abu Hanifa did not stop at

investigating the rulings of problems which had actually occurred

but would extend his reasoning to rulings in respect of problems

which had not occurred. He would theorise in order to be prepared

for circumstances before they occurred so as to be ready to deal

with them.62

(3) Imam Al-Shafi=i

Imam Shafi=i was born in Palestine in 150 AH, the year in which Imam Abu Hanifa died . He died in 204 AH.

Al-Shafi=i, believing that the jurists before him had exercised ijtihad without having defined limits to the way in which they

deduced their rulings, decided to clearly set out the principles of fiqh based on logic. He ranked the sources of the Shari=ah as

follows:

(i) Qur=an and the Sunnah;

(ii) Consensus ( of the fuqaha on what is contained in the first source);

(iii) Opinions of the Companions of the Prophet;

(iv) The opinion of a jurist in case of variant opinions of the Companions;

(v) Analogy.

Since the Sunnah expounds the Qur=an in many cases, Al-Shafi=i considered the Qur=an and the Sunnah to have equal status

in the Shari=ah. He also believed that the Qur=an cannot be contradicted by the Sunnah. Thereafter came ijma (consensus).

Consensus means the agreement of the jurists on what is contained in the first source of the Shari=ah. As far as analogy (qiyas)

is concerned, an analogy should be made on the basis of an issue which has a ruling in the Qur=an or Sunnah, or on the basis of

consensus or by following the unopposed view of one of the Companions.63

Imam Al-Shafi=i expressly invalidates istihsan and states that any ijtihad in which the mujtahid does not rely on the Qur=an, the

Sunnah, ijma or qiyas is istihsan because the mujtahid takes what he prefers in it. Such ijtihad, without relying on a firm text and

proper evidence is, for him, unacceptable and has no connection to the Sharia=h.64

Al-Shafi=i rejected the purposive approach to interpretation and, for him, the letter of the law was more important than its spirit.

(4) Imam Ahmad Ibn Hanbal

Imam Ahmad Ibn Hanbal was born in Baghdad in 164 AH. At the time Baghdad was the capital of the Muslim world. He died in

241 AH.

Like Imam Al-Shafi=i before him, he ranked the sources of the Shari=ah. His ranking was as follows:

(i) Qur=an and the Sunnah;

(ii) Consensus;

(iii) Fatwas of the Companions;

(iv) Analogy;

(v) Istishab ( presumption of continuity) ;

(vi) Maslahah mursalah .

Istishab or presumption of continuity means that the basic postition established in the past remains in the present and the

future, as long as there is no reason to change it or unless there is clear evidence to the contrary. The following are some of the

forms of istishab listed by Ibn Hanbal;

(i) continuity of what a contract or the law affirms. For example, marriage is presumed to

exist unless there is evidence of divorce;

(ii) continuity of original attributes. For example, a mising person is pesumed to be alive

unless there is clear evidence to the contrary;

(iii) continuity of consensus on general rules and principles of the law.65

Like Imam Malik, Ibn Hanbal=s approach to legal interpretation was purposive. He utilised the principle of public interest to a

large extent and was of the view that the fatwas of the Companions were often based on public interest. He also employed the

tool of sadd al-dhara=i frequently.

Having briefly referred to the approaches of the four Imams to legal interpretation, I shall now examine the work of perhaps the

greatest exponent of the idea of maslahah (public interest), namely that of Al-Shatibi.

Shatibi=s philosophy of Islamic law

The great Andalusian Maliki jurist, Abu Ishaq Al-Shatibi, spent most of his life in the city of Granada. His greatest work is

undoubtedly Al-Muwafaqat . The significance of this work in modern Islamic legal thinking may be guaged by two scholars of the

20th century, Muhammad Abduh and Moulana Mawdudi. Abduh advised both scholars and students to study the work so as to

understand the true philosophy of Islamic law-making while Mawdudi stated that, through a study of Al-Muwafaqat, law experts

would acquire a deeper insight into the spirit of the fiqh.66

In his Al-Muwafaqat, Shatibi expounded the objectives of the Qur=an and the Sunnah more clearly and extensively than any

other earlier work. He explained in detail the indispensable human needs and secondary necessities of life and also analysed the

interconnectedness between human needs and legal texts comprehensively.

If there is one outstanding characteristic of Shatibi=s approach to Islamic legal interpretation it is that the spirit of the law is

greater than its letter. For Shatibi maintained that if an act which is perfectly legal is committed with the sole intent of causing

harm or inflicting injury on others, it is legally prohibited and must be prevented. What, then, was Shatibi=s approach to

maslahah and ijtihad respectively?

(i) Shatibi on maslahah

According to Shatibi, the primary objective of the Lawgiver is the maslahah (welfare) of the people. The obligations inherent in

the Shari=ah concern the protection of the maqasid (objectives) of the law, which in turn aims at protecting the maslahah of the

people. Shatibi divides maqasid into daruriyyat (indispensable), hajiyyat (necessary) and tahsiniyyat (beneficial). The daruriyyat

comprises the following five: religion (din), self or the right to life (nafs), intellect or sound mind (aql), family or lineage (nasl)

and property (mal). The hajiyyat are required in order to extend the operation of the maqasid and to remove the rigidity

inherent in literal interpretation. Such rigidity may well lead to hardship which, in turn, could disrupt the maqasid of the

Shari=ah. Finally, the tahsiniyyat refers to the adoption of the most commendable and beneficial customs, habits, ethics and

morality. In the words of Hallaq:

Without the first category...secular as well as religious

existence can never be orderly, and at worst, it is impossible.

The other two categories, on the other hand, make the

implementation of the law possible by mitigating harsh

requirments and reducing legal demands. The Shari=a,

Shatibi relentlessly asserts, rests squarely on these three

principles, principles stipulated in the Qur=an and

articulated in the Sunna.67

In the light of his three-fold division of the maqasid, Shatibi extracts the following five rules:

(i) darura is the foundation of all maslahah;

(ii) the disruption of a daruri necessitates the disruption of other objectives absolutely;

(iii) the partial disruption of a haji or tahsini does not necessitate the disruption of the daruri;

(iv) an absolute disruption of haji or tahsini disrupts the daruri;

(v) the preservation of haji and tahsini is necessary for maintenance of the daruri.68

Shatibi adds that, the purpose of the maqasid (objectives) of the Shari=ah is not only aimed at good in this world but good in the

hereafter as well.

(ii) Shatibi on ijtihad

On the basis of Shatibi=s approach to legal interpretation, Masud states that in Shatibi=s legal philosophy God provides

knowledge of good and bad to man through Divine laws, natural instinct and social experience. Shatibi distinguishes between

simple and specialised ijtihad. Simple ijtihad refers to universal principles commonly understood by both specialists and lay

people. While specialised ijtihad is only valid when exercised by those who are qualified and have attained the requisite skills

therefore69. The two basic requirements for a qualified mujtahid are :

(i) a perfect understanding of the purpose/s of the law (maqasid al-shari=ah), and

(ii) on the basis of the above understanding, a command in the skill of deduction.

Relying on Imam Malik, Shatibi spells out the following steps in the process of ijtihad. First, examine the case in the light of the

Shari=ah. If it is acceptable, then consider its consequences in the context of the condition of its time and its people. If it does

not involve or result in any evil then submit it to reason. If you feel that it will be accepted by reasonable people, then give your

opinion in general terms if the case concerns a matter that is generally acceptable. If it cannot be generalised then give a

specific opinion. If the case in question cannot be successfully resolved by this means then it is advisable to keep silent since

this would be more in conformity with the welfare of the people.70

In his analysis, Shatibi also discusses the fatwa as a form of ijtihad and argues that the mufti succeeds the Prophet Muhammad

(pbuh) in his capacity as a legislator and a transmitter of law. A mufti, he says, conveys the law to society as he received them

from the Prophet or through the interpretation of the text. Shatibi=s philosophy of Islamic law, as contained in his Al-Muwafaqat,

has been hailed as perhaps the greatest contribution to understanding the spirit of the Shari=ah.

Before briefly discussing the place of the fatwa in ijtihad, it is indeed apt to reminisce about a case of ijtihad and ifta71 in

Andalusia in 516.

 

Ijtihad and ifta by Ibn Rushd in Cordoba in 516

One of Umar=s most well known instances of ijtihad was his imposition of the death penalty on all the perpetrators in the crime

of murder. So strikingly similar was the ijtihad exercised by Ibn Rushd some 500 years later in the Andalusian city of Cordoba

that it is relevant to refer to it here in some detail.

In 516 of the Islamic era 72 a man was murdered in Cordoba. He had three children, the oldest of whom had reached the age of

four at the time of his father=s death. The deceased also left behind a brother who had two sons, both of whom had reached

majority at the time of the murder. In terms of a fatwa (legal opinion) issued by group of Maliki jurists the murderer, upon

admitting his guilt, was executed at the behest of the victim=s brother and his sons.73

Amongst those who were asked to express an opinion on the matter was one of the most eminent jurists of the time, Abu al-

Walid Ibn Rushd.74 In his fatwa he dismissed the established Maliki doctrine and opined that only the children of the victim are

entitled, upon reaching majority, to either demand the murderer=s punishment or opt for blood-money of, of course, to pardon

the murderer. Ibn Rushd then issued a second fatwa on the matter, claiming that some learned people had requested him to

explain the opinion in his earlier fatwa. He argued that the children=s right to seek punishment, compensation or to pardon

overrides the right of the paternal uncle and his sons and maintains that, in terms of a consensus of opinion amongst jurists

(ijma) a mufti may choose not to follow an earlier ruling or doctrine if he believes that it no longer rests no sound footing.

In support of this, Ibn Rushd adduces the Qur=anic verse which states : >And ask those who are learned if you do not know=75

as well as the famous hadith concerning Mua=d ibn Jabal. This hadith, Ibn Rushd argued, placed the >highest importance upon

independent thinking=.76

On the grounds of these primary sources of the Shari=ah Ibn Rushd introduces a new fact, namely the fact that the murderer

was in a state of drunkenness, and thus not acting with full mental capacity, when he committed the crime. He argued that ijma

( consensus of opinion ) dictates the mitigated punishment of an intoxicated murderer as well as that the children of the victim

first attain majority, since they may well choose the pardoning option.

Ibn Rushd then goes on to explain that the Qur=anic text governing the matter is:

Whosoever is slain unjustly, We have given authority

unto his heir , but let him[heir] not commit excess

in slaying [the murderer].77

While there is no disagreement concerning the right of the heir to demand the punishment of the murderer, the disagreement

lies in determining who the heir is. According to Ibn Rushd, assigning the uncle and his sons the right to seek punishment or

compensation amounts to nullifying the rights of the children of the victim. The learned jurist further argues that a number of

Qur=anic verses78 attesting that pardoning should take preference over punishment points to the fact that the death penalty

ought to act as a deterrent against murder. He also refers to a hadith of the Prophet (pbuh) which, he maintains, indicates

unequivocally that pardoning is superior to punishment. The Prophet once asked the relative of a murder victim to accept blood-

money, which he refused. The Prophet replied : >Should the murderer be killed? If he is to be killed, what would make you a

better man than him?=79

It may well be asked what the importance of this fatwa is to the discussion at hand. The answer is that it elicits a number of

significant features vis-a-vis legal interpretation in Islam. Four reasons may, in particular, be adduced:

1) The fatwa suggests that, under certain circumstances, even the most highly regarded

doctrines, enunciated by the most eminent jurists, may be questioned and set aside.

2) The fatwa exhibits the principles of basic Islamic legal theory in practice. For Ibn Rushd

relies on the authority of the Qur=an, then goes to the Sunnah, followed by ijma.

3) The fatwa takes into account Islamic philosophy, morality and values. By relying on the

Prophetic tradition which regards pardon as superior to punishment Ibn Rushd is giving

weight to the moral values of Islam. Hallaq argues that the fact that consideration of the

rewards in the hereafter should enter into deliberations about an actual case of homicide

undescores the religious nature of Islamic law and points to the interconnectedness of

religious morality and law as an instrument of social control.80

4) Finally, this fatwa serves as proof that ijtihad was practised after the third Islamic century

and that the gate of ijtihad had never been closed. At the least it proves that ijtihad was

practised via the fatwa and as such it contributed to the evolution and development of

substantive law in medieval Islam.

 

Ijtihad in the 18th century

In the 18th century Shah Wali Allah of Delhi - who has been termed the >Ghazali= of Islam in the Indian subcontinent - initiated

a new methodology in Islamic legal interpretation. He termed it tatbiq, meaning to bring into alignment or to make congruent.81

Tatbiq consists of looking beyond the surface features to the inner essence or the comprehensive principle underlying a

particular issue. Shah Wali Allah argued that the requirements for the best interests ( masalih ) of the human race will vary from

age to age and from nation to nation. These best interests, which for Islam are based on the ultimate purpose of the human race

on earth, should be in accordance with nature or the natural state of the human being, the state of fitra. Of course, the Qur=an

declares on a number of occasions that Islam is the natural way.82 For Shah Wali Allah, all rulings based on ijtihad and/or tatbiq

ought to be founded on the concept of fitra.

The famous 18th century Yemeni jurist, Muhammad al-Shawkani, did not subscribe to any of the four madhahib. His approach to

usul-ul-fiqh was based on the absolute necessity of applying ijtihad as a means of combating the sectarian and antagonistic

tendencies amongst different schools of law. He regarded the practice of taqlid as a reprehensible innovation which had been

developed by the followers of the various schools of law.83 As regards ijtihad, Shawkani argued that >it provided a solution to

the evils of sectarianism and fanatacism as well as a means of reforming misguided social practices=.84

 

Ijtihad in the 19th and 20th century

Perhaps the leading figure in this era was the Egyptian scholar Muhammad Abduh,85 who called for the restoration of the

original Qur=anic norms to the modern era . Abduh=s vision was one of creative legal thinking. He called for independent and

objective Muslim thought

as opposed to the the imitation, taqlid, of authoritative tradition.86 Arabi states:

Abduh=s version of ijtihad embodies his awareness that only the

scientifically disciplined use of reason would enable Muslims to

cope with the present and prepare for the future, and that this

use is to be cultivated and defended on Islamic premises so

that it would bear fruit with time. What he envisaged to this

end was no less than a radical reconstruction of Muslim

personality, a break with the dominant Sunni conception of

the relationship between reason and Revelation, whereby

rational thought is to have an equal say in determining the

rules governing human relations and social order.87

Abduh=s call for the restoration of the original Qur=anic norms is founded upon his two principles of Islam. The first principle is

that rational thought ( al-nazar al-aqli) is the means for the attainment of true faith (wasilat al-iman al-sahih). The second

principle is that where Revelation and reason are in conflict, reason should take priority (taqdim al-aql ala al-shar). In the light of

Abduh=s two principles of Islam, Arabi states that three key elements form the operational guidelines for the implementation of

Abduh=s approach to Islamic law, namely:

1) the restitution to the sacred texts of their original and universal import (usul al-shari=a wa

kulliyyatiha), irrespective of the provincial and more particular applications that accrued

to it in history;

2) the delimitation of a category of textual rulings that follow from a conclusive evidence

(dalil qat=i), and therefore not subject to interpretation or alteration, and

3) the determination of a category of changing rulings, in accordance with human interests

and conditions.88

Abduh applied these three elements to question of polygamy in his day and age, in the light of the well-known Qur=anic verse

which states that men may marry more than one woman unless injustice or inequity may result.89 He concluded that maslahah

- the interests of the community - renders the practice detrimental in the present day.

 

As regards divorce law, the Egyptian Law No.1 of 2000 (Women May Divorce at Will) serves as but one example of Abduh=s

influence on the reconstruction of the Shari=ah or, as Muhammad Iqbal couched, the principle of movement in Islam.90 The

most striking feature of this new piece of legislation was the provision that a woman may obtain a judicial separation from her

husband if she wishes, the only condition being the restitution of the dower to her husband and the relinquishing of her right to

maintenance. Although much heated debate followed upon this provision the Grand Sheikh of Al-Azhar, Sayyid Tantawi,

announced that the new law was in conformity with the Shari=ah and that it was approved by a majority vote in the forty-

member Islamic Research Academy.91

The last chapter of Oussama Arabi=s book, Studies in Modern Islamic Law and Jurisprudence, is entitled >The Place of Islamic

Law in the Modern World and the Reconstruction of Shari=a=. Arabi states that one of the most formidable tasks faced by the

Muslims in the wake of the conquest of the larger part of Muslim lands by European colonisers and imperialists is the

preservation of the dignity and identity of Islam and Muslims. At the same time, one must be very wary of the efforts of the

dominating powers to align Islamic law with their legal systems and values. In this regard Arabi reminds us of the warning

sounded by Edward Said regarding orientalist discourse:

As Edward Said=s analyses of Orientalist discourse have shown,

the study by European scholars of the dominated peoples= beliefs,

customs and laws belongs more to the internal exigencies of

domination and the ideological debates of self-justification of

the colonial powers, than to any authentic effort at understanding

the true nature and value of these institutions in the lives of the

subject population.92

Arabi is quick to note that there have been exceptions to this general statement, for example the Frenchman Marcel Morand,

who produced a modern Algerian code of family law based on classical fiqh. For Morand, Arabi argues, universal legal logic took

precedence over narrow and dogmatic prejudice.

Abduh=s approach to Islamic legal interpretation meant a positivisation of the Shari=ah - the process of integration of the

Shari=ah into the modern state=s political structure without abandoning the ethical and religious spirit of Islamic law - coupled

with an end to the long-established traditions and doctrines of the madhab system.93 This positivisation would be based on

ijtihad or what he termed creative legal thought. Arabi states that through the universal value of ijtihad - involving, as it does, a

great degree of flexibility - >Abduh forged

the logical and conceptual tools that would, both retrospectively and for the twentieth century and beyond, consolidate the

positivisation of Islamic law.94

In a 1994 decision the Egyptian High Constitutional Court stated that where the primary sources of Islamic law, namely the

Qur=an and the Sunnah, contain a definitive ruling, no ijtihad is permissible. However, where, no definite or specific ruling is

forthcoming, ijtihad is permissible in order to reflect the changing needs and circumstances of human communities. And such

ijtihad should always aim at realising the five maqasid (objectives ) of the Shari=ah. The Court stated that ijtihad consists in

applying reason to a sacred text, as an extension of the rules that is neccesitated by God=s clemency, fairness and justice

towards his subjects. The practice of ijtihad does not confer any sacredness (qudsiyya) on the opinion of some or other jurist

with regard to the legal matter under consideration and there is no impediment to revising it, evaluating it or replacing it by

another rule.95

Since Marcel Morand is regarded by Arabi as an exception to the general European or Western approach during colonisation of

applying and modernising the law of the conquered, brief reference is made here to his approach in his Draft Code of Muslim

Algerian Law.96 Although Morand was committed to the values of the French colonial enterprise in Algeria, he nevertheless

effected a radical departure from the perspective of classical Islamic legal interpretation by creating a synthesis which

transcended the four madhahib and thus was at the forefront of legal reform and reconstruction in Muslim countries in the

twentieth century.97

Of course, Morand=s creative legal thought and his brand of legal realism took place in the >colonial matrix=.98 While the

French colonial government in Algeria had opted to maintain the corpus of the Maliki law, Morand attempted to develop and

evolve the Shari=ah on the basis of fair and equitable rulings, rather than stick to perhaps outdated textual fiqh rulings. His

main focus was the maintenance of the spirit of the Shari=ah. Arabi writes:

The very methodological principles of Islamic jurisprudence

prompt benefic[ial] change and adaptability to new social conditions.

The prejudice which equates its sacred character with ossification

is both doctrinally and historically unfounded... Morand invokes

the well-known Maliki tradition of treating public utility, maslaha,

as a fundamental source of legislation...99

Morand thus departed from Maliki law and adopted provisions of the Hanafi school where the latter was found to be more

humane, more understanding and more tolerant.100 Taking into account Abduh=s approach to ijtihad and talfiq (syncretism or

combining) , Morand found new solutions to legal problems, often combining the views of different schools or going beyond

them and finding fresh solutions. For example, Article 4 of his draft Code provides that >the age of puberty is 18 years,

completed, for the man; and 15 years, completed, for the woman. This Article is a hybrid of Hanafi and Maliki rulings, since the

age for both sexes was fixed at 18 for the Malikis and at 15 for the Hanafis.

Morand=s approach in his Draft Code of Muslim Algerian Law was one of flexibility, legal realism, upholding the public interest,

combining and going beyond the four madhahib when necessary and, underlying it all, upholding the spirit of the Shari=ah. This

flexible and pragmatic approach is reminiscent of Imam Malik=s approach to interpretation; it will be remembered that Malik

stated that istihsan is nine-tenths of the law. The question of going beyond the madhahib has already been briefly alluded to

earlier in this article in respect of the thinking of Shawkani.

Ijtihad in the 21st century

In an article published in the Ar-Rabitah101 magazine in 2002 Dr Muhammad Ammarah discusses ijtihad in the contemporary

world.102 He argues that because the world we live in has progressed without adherence to the essence of the Shari=ah -

mainly due to the influence of western imperialism and civilisation - it is not possible for one thinker or jurist alone to rearrange

the relaities of the world. Furthermore, due to increasing specialisation - in the sciences and all spheres of human activity -

ijtihad needs to steer a new course in order to respond to contemporary needs.

The translation of the original Arabic text by Rafudeen continues as follows:

Such a new course cannot be restricted to extraordinary persons

among the ulama of the Shari=ah only. Rather the Ahl ul dhikr,

ulul al amr and ashab ul hall wa aqd 103 must include experts in

secular fields as well. There is a necessity to form intellectual

establishments that [combine] both religious and and secular

experts in order that ijtihad can be cast in a new manner.

Ijtihad is a combination of the essence and objectives of the

Shari=ah with the requirements of progress and contemporary

exigencies with the aim of effecting the welfare of the whole

Ummah. This is done without moving away from the essence

and objectives of the Shari=ah. Such intellectual establishments

...require experts in the contemporary sciences and their

application in all that it involves as it is impossible for even

an encyclopaedic scholar to be well-versed in all fields like

in the days of old.104

Ammarah argues that the creation of intellectual establishments105 should not imply that individual creativity will be impeded.

Rather, such creativity will remain unrestrained.

Another point made very strongly and clearly by him is that, underlying all contemporary ijtihad, should be the rejection of

secularism - which he regards as a Western disease - and the need to find European/Western solutions to all problems faced in

the interpretation of Islamic law. He rejects secularism because it entails the separation of Islam from the material world and,

more importantly, it will result in the loss of the civilisational independence of Islam. Ammarah ends his short article by saying

that:

It is also necessary that we distinguish between the Law -

which is a method and has objectives - from its application

by the forbear[er]s (salaf) and the ijtihad of the ancients. The

Law is a way of life given by Allah and is permanent whereas

the applications of the forbear[er]s and the ijtihad of the ancients

are not a creed. They are not fixed systems binding on on one

who lives in a different context from the world they lived in.106

More recently, in a Special Report of the United States Institute of Peace entitled Ijtihad Reintepreting Islamic Principles for the

Twenty-first Century, it was agreed that although most scholars would limit the practice of ijtihad to specialists who have not

only knowledge of the Qur=an and the Sunnah but also a broad familiarity with scholarship in Arabic grammar, logoc,

philosophy, economics and sociology, other scholars assert that interpretation of the texts should not be confined to legal

scholars but should be open to those with >creative imagination=.107 Amongst the latter are Muneer Fareed, who suggests

that ijtihad can be viewed in three different ways: as a legal tool, as a form of legal reasoning and as a creative impulse and

imagination. While Ingrid Mattson argues that reason is not the only complement to Revelation; rather, more emphasis should

be placed on the natural law tradition in Islam, on fitra108, on the innate God-given sense of right and wrong.

As regards >creative imagination=, the fundamental question would be the extent of this >imagination=, this >impulse=. How

far can one go in the process of reinterpretation? How far can one take one=s creative imagination while remaining within the

bounds of the Shari=ah? Two pertinent examples, and there are many more of course, are the issues of apostasy and

inheritance law in Islam. In respect of apostasy, the Qur=an does declare that >there is no compulsion in religion=.109 This

would imply that the Afghani Abdul Rahman is free to choose the religion of his choice. But, then again, in terms of Islamic

criminal law, apostasy is crime. In the context of the basic human right to freedom of religion, can one argue that apostasy

should no longer be regarded as a crime in Islamic law? Does not Allah imply that, although one possesses freedom of belief,

once a human being has found or come to the ultimate truth, the choice of any other religion would amount to a major

retrogressive step? Just as Islam places limitations on the right to freedom of expression, so too there are limitations on freedom

of religion. As I understand it, perhaps quite simplistically, Islam permits freedom of religion but not the conversion of a Muslim

to any other religion.

In respect of the law of inheritance in Islam, the Qur=an commands that, as regards inheritance by one=s children, the male is

entitled to a portion equal to that of two females.110 In the context of the basic human right to equality - gender equality

specifically - should this verse be reinterpreted in the 21st century or should its rationale be properly explained and

understood.111 Is not the empirical equity inherent in the distribution of wealth more important than the mathematical

inequality?

These are but two examples of the caution which must be coupled with ijtihad - with creative legal thought - in the 21st century.

I believe that ijtihad today should be founded on the best that the fourteen centuries of Islam has taught us. The khalifa (caliph)

Umar taught us that the spirit of the Shari=ah should always be paramount. With the exception of the literal approach to legal

interpretation adopted by Imam Shafi, the other three great Imams underlined the importance of the public interest (maslahah),

istihsan and adopted a purposive approach to legal interpretation. Shatibi laid great stress on the five maqasid (objectives) of

the Shari=ah. In the 18th century Shah Wali Allah argued that the maslahah, which is based on the human being=s existence on

earth, should be in accordance with nature or the natural state of the human being, the state of fitra, while Shawkani stressed

flexibility in adopting the opinions of the four madhahib. Finally, as regards the past 100 years, the approach and views of

Muhammad Abduh have been alluded to earlier.

In essence, the ijtihad of today should be founded on creative legal thought, pragmatism and flexibility (both in the application

of the rulings of the four madhahib as well as in maintaining the spirit of the Shari=ah). Always, of course, bearing in mind the

limits and bounds set by the Shari=ah. The ethical and moral precepts underlying the spirit of the Shari=ah should never be

overlooked, since the dignity of Islam and its followers is founded upon its moral and ethical values. In this regard, I believe that

ijtihad in the 21st century should not serve to merely bring Islamic law in line with Western human rights standards and values.

In this I am in full agreement with the views of Ammarah.

I conclude with the verse of the Qur=an quoted at the very beginning of this paper. Allah says:

Ask the people who are learned if you do not know.112

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THE ROLE OF IJTIHAD IN BIOETHICS

Abul Fadl Mohsin Ebrahim, Ph.D. (Temple University, USA)

School of Religion and Theology, University of KwaZulu-Natal, Durban

ABSTRACT

Ijtihad is defined as "the capacity to make deductions in matters of law in cases to which no express text from the Noble Qur’an

and Sunnah is available." The vast majority of Muslims who reside both within and outside the geographical confines of the

Muslim world are well aware of the challenges that Bioethics poses vis-à-vis their world view. The scope of Bioethics is all-

encompassing and since Muslims are keen to implement their religious values in almost all facets of their lives, this paper

precisely addresses the vital role that ijtihad can actually play in resolving their bioethical dilemma.

Introduction

Imam Abu Hanifah (d.769 C.E.) defines fiqh as "the understanding of a person’s rights and obligations (which are directly related

to his actions)." Thus fiqh (Islamic Jurisprudence) implies a science that concerns itself with the consequences of human actions,

i.e., whether they will be spiritually rewarded or punished (for their actions).

The term Fiqh in legal parlance denotes making use of the intellect (al-`aql) in deciding a point of law, but within the parameters

of the broad teachings of the Divine revelation (the Noble Qur’an) and the sayings and practice of Prophet Muhammad r

(Sunnah). In essence, Fiqh is the science which facilitates the application of the Shar`ah (Divine Law).

There are basically five major Schools of Islamic Jurisprudence, namely, the Hanafi, Maliki, Shafi`I, Hanbali and Ja`fari Schools.

The Hanafi School is the most widespread school in the Muslim world and was the dominant school during the .Abbasid

Caliphate (750-1258 C.E.) and the Ottoman Empire (1290-1924 C.E.). Today, it continues to be the dominant school for Muslim

personal law matters and religious observances in Egypt, Syria, Lebanon, Iraq, Jordan, Palestine, the Balkans, the Caucasus,

Afghanistan, Pakistan, India, the Central Asian republics, China and South Africa.

The birthplace of the Maliki School was Madinah and thus adherents of this school are found in certain parts of the Kingdom of

Saudi Arabia and it continues to be the dominant school among the people of Morocco, Spain, Algeria, Tunisia, and Libya. Its

followers are also found in Upper Egypt, Sudan, Bahrain, the Emirates, Kuwaitand South Africa.

Insofar as the Shafi`i School is concerned, its adherents are found in Syria, Lebanon, Iraq, Jordan, Palestine, Egypt, Indonesia,

Malaysia, Indonesia, in some rural areas of Egypt and in South Africa.

The Hanbali School is the official school in Saudi Arabia and Qatar. It also has adherents in Palestine, Syria and Iraq.

The Ja`fari School is the major Shi`i legal school. It takes its name from Imam Abu Ja`far Muhammad al-Baqir and Imam Ja`far al-

Sadiq, the fifth and sixth Shi`i Imams. The Ja`fari School came to be included as the fifth school of Islamic Jurisprudence after

Shaykh Mahmud Shaltut, the former al-Imam al-Akbar (Rector) of al-Azhar University in Cairo, Egypt, accredited it along with the

other four Sunni Schools.

Scope of Bioethics

The scope of Bioethics covers an array of issues such as:

§ Doctor-patient relationship

§ Medical confidentiality

§ Medical negligence

§ The management of infertility and childlessness

§ The control of fertility

§ Abortion

§ Prenatal screening

§ Health resources and dilemmas in treatment

§ The diagnosis of death

§ The donation of organs and transplantation

§ Euthanasia

Sources of Islamic Jurisprudence

The Noble Qur’an and the Sunnah are the primary sources of Islamic Jurisprudence. These two sources are the embodiment of

what is known as the Shari`ah (Divine Law).

The Noble Qur’an

The Noble Qur’an is the Sacred Scripture of Muslims which is regarded to be the verbatim Word of Allah I revealed to Sayyiduna

Muhammad r over a period of approximately 23 years. It embodies the Divine Commandments which encompass all facets of

human life. Muslims are required to uphold and implement these Divine Injunctions. This is evident from the following verse:

"The hukm (jurisdiction) rests with none but Allah." (Al-An`am, 6:57)

It is further stated:

"….Those who do not judge in accordance with what Allah has sent down, verily they are the

deniers of the Truth." (Al-Ma’idah, 5:44)

"….Those who do not judge in accordance with what Allah has sent down, verily they are the

wrongdoers." (Al-Ma’idah, 5:45)

From the above Qur’anic verses, it is evident that within the Islamic system, Allah I is regarded to be the only Law-Giver (al-

Shari`) and that in Him I alone rests the supreme legislative power.

e H

The Noble Qur’an is described as "a healing and mercy to those who believe" (Ha Mim, 41:44). Imam Ibn Qayyim al-Jawziyyah

(d. 1350 C.E.) holds the view that the objectives of medicine are threefold, namely, protection of health, getting rid of harmful

things and safeguarding against harm and interestingly, the Noble Qur’an complements these objectives as discussed

hereunder:

Healthy living depends upon having a balanced diet comprising of wholesome food and drink and avoiding the intake of

anything that may prove injurious to one’s body. In this regard, the Noble Qur’an stipulates:

"O humankind! Eat of what is lawful and wholesome on earth" (Al-Baqarah, 2:168)

and

"O you who believe! Khamr (Intoxicants)… are an abomination of Satan’s handiwork. Eschew such

(abomination) that you may prosper….." (Al-Ma’idah, 5:93-94).

Feelings of insecurity and helplessness may lead to mental depression which could result in suicide. In order to circumvent that,

the Noble Qur’an exhorts humankind to seek refuge in their Creator: "…for verily in the remembrance of Allah hearts do find

rest" (Al-Ra`d, 13:28).

The Noble Qur’an even goes to the extent of relaxing certain rules as concessions for the sick, thus safeguarding them from

endangering their lives. This is evident from the fact that although Muslims are required to fast during the holy month of

Ramadan, those who are ill are allowed not to fast and to make up the fasts missed later on when they would have recovered

from their particular illnesses. This is evident from the following citation:

"But if any one is ill or on a journey, the missed period (should be made up) later." (Al-Baqarah, 2: 185)

 

The Sunnah

Sunnah is regarded as wahyun khafi (minor revelation) and includes all that has been reported on the authority of Sayyiduna

Muhammad r and as such incorporates his r authentic sayings (sunnah qawliyyah), his r actions and personal habits (sunnah

fi`liyyah), and finally, his r tacit approval and explicit disapproval (sunnah taqririyah).

By virtue of the fact that Allah I chose to reveal the Noble Qur’an to Sayyiduna Muhammad r, it, therefore, becomes binding

upon Muslims to follow his r explanations and interpretations of the Divine Commandments. In other words, Sayyiduna

Muhammad r explained, interpreted and demonstrated how the Divine Law ought to be applied. The Noble Qur’an substantiates

this as follows:

"And We have sent down the Reminder (Message) to you (O Muhammad) so that you can make clear to

humankind what has been sent down to them so that hopefully they will reflect." (Al-Nahl, 16:44)

The Six Authentic Collections of Ahadith (Al-Sihah al-Sittah) which guide the life of Sunni Muslims are:

1. Al-Jami` al-Sahih compiled by Imam Muhammad ibn Isma[il al-Bukhari (d. 870 C.E.).

2. Al-Jami` al-Sahih compiled by Imam Muslim ibn al-Hajjaj Naysaburi (d. 875 C.E).

3. Jami[ al-Tirmidhi compiled by Imam Abu `Isa Muhammad ibn `Isa bin Sawrah (d. 892 C.E.).

4. Sunan al-Nasa’i compiled by Imam Abu `Abd al-Rahman Ahmad ibn Shu`ayb (d. 915 C.E.)

5. Sunan Ibn Majah compiled by Imam Abu `Abd Allah Muhammad ibn Yazid (d. 887 C.E.)

6. Sunan Abi Dawud compiled by Imam Abu Dawud Sulayman ibn al-As`ab (d. 888 C.E.).

The four major compilations which contain the transmitted material from Prophet Muhammad r and the Shi`i Imams serve to

guide the socio-political and religious life of the Shi`is are:

1. Kitab al-Kafi of Shaykh Muhammad ibn Ya`qub al-Kulayni (d. 940 C.E.).

2. Man la yahduruhu al-Faqih of Shaykh Muhammad ibn `Ali ibn Babawayh (d. 991 C.E.).

3. Tahdhib al-Ahkam of Shaykh Muhammad ibn Hasan al-Tusi (d. 1067 C.E.).

4. Al-Istibsar of Shaykh Muhammad ibn Hasan al-Tusi (d. 1067 C.E.).

The Sunnah serves to complement the Noble Qur’an in the absence of a categorical Qur’anic statement on a particular issue in

question. For example, the Noble Qur’an is silent on the issue of the permissibility or non-permissibility for Muslims to take

certain precautionary measures for the purpose of frustrating pregnancy. On the other hand, there are a number of Hadith

reports which allude to the fact that during the time of Sayyiduna Muhammad r, some of his r Sahabah y (Companions) resorted

to `azl (coitus interruptus) which involves withdrawing the penis from the vagina prior to the emission of sperm to prevent

insemination of the ovum. What is important to note here is that the Allah I did not reveal any injunction to censure this practice

as is evident from the report of Sayyiduna Jabir t: "We used to practice `azl during Sayyiduna Muhammad’s r lifetime while the

Noble Qur’an was being revealed." This then serves as justification for Muslims to make use of modern contraceptive devices.

Secondary Sources

The secondary sources are:

Ijtihad

 

Ijma[ Qiyas

 

Ijtihad (Intellectual Deliberation)

The justification for including Ijtihad as a secondary source is based upon the fact that when Prophet Muhammad r ordered

Sayyiduna Mu`adh ibn Jabal t to proceed to Yemen, he r put the following question to him: "According to what will you judge?"

"According to the Book of Allah," replied Mu`adh t. "And if you find nothing therein?" "According to the Sunnah of the Prophet of

Allah." "And if you find nothing therein?" "Then I will exert myself (exercise ijtihad) to form my own judgment." Sayyiduna

Muhammad r was pleased with this reply and said: "Praise be to Allah Who has guided the messenger of the Prophet to that

which pleases the Prophet."

Al-Ijtihad is derived from the root verb jahada, which means to endeavour, strive, etc. Its technical legal connotation implies the

exertion of the jurist’s intellect to determine the proper application of the teachings of the Noble Qur’an and Sunnah to a

particular situation with the aim of finding a solution for a case of law. In other words, the ruling of the mujtahid (i.e. the scholar

who engages in ijtihad) would be inferential and thus probable (zanni). Thus, all bioethical issues which are not addressed by the

primary sources, namely the Noble Qur’an and Sunnah, would be resolved on the basis of ijtihad.

The two branches of Ijithad are Ijma` and Qiyas.

(a) Ijma` (consensus of juristic opinion)

Ijma` is derived from the root verb jama`a which means to collect or bring together. As a legal term, it is defined as agreement

of the jurists among the followers of Sayyiduna Muhammad r in a particular age on a question of law. In practice, Muslim jurists

congregate and deliberate upon any particular problematic issue which affect Muslims and try to resolve it by agreeing and

uniting in opinion. Once consensus has been reached, the ijtihad of Muslim jurists shift from the realm of probability to that of

certainty and becomes the basis for new cases to be solved. In other words, when ijma` is obtained on a case of ijtihad, the

issue in question does not remain at the level of opinion (zann), but gets elevated to the position of a hujjah (a decisive verdict),

thereby making it unlawful for Muslims to disregard it.

(b) Qiyas (analogical deduction)

Qiyas is derived from the root verb qayasa, which means to measure. As a juridical term, it is defined as a process of deduction

by which the law of a text is applied to such cases which, though not covered by the language of the text are covered by the

reason of the text on the basis of the `illah (effective cause). For example, the Noble Qur’an (Bani Isra’il, 17:33) censures

murder or killing of human beings. In the past, killing was carried out in the form of poisoning someone or stabbing a person to

death, etc. The modality varied, but the `illah (effective cause) was similar, i.e. it ended in death. Thus, today, if an attending

physician deliberately chooses to administer a lethal injection to the terminally ill, it would in effect cause death and the

physician would be liable for the crime of murder on the basis of the common `illah.

FACILITATING TOOLS FOR IJTIHAD

Al-Qawa’id al-Fiqhiyyah (legal maxims) are theoretical abstracts, usually in the form of short statements, that are expressive,

often in a few words, of the goals and objectives of the Shari`ah. The actual wordings of the maxims are occasionally taken from

the Noble Qur’an or Hadith, but are more often the work of leading mujtahids (jurists).

It is to be noted that some of the maxims are basically a reiteration of some of the broad principles that are found either in the

Noble Qur’an or Hadith compilations. For example, the maxim "hardship begets facility" is a rephrasing if the Qur’anic verse:

"Allah intends for you ease and He does not intend to put you in hardship" (Al-Baqarah, 2:185). Muslim jurists have used this

particular maxim as evidence in support of the many concessions that are granted to the disabled and the sick in the sphere of

religious duties. The rules are relaxed to allow them to perform the salah (obligatory five times daily prayer) in a sitting or

reclining posture. This very maxim can also be used in the context of justifying the non-implementation of extraordinary means

in the treatment of the terminally ill if such means would in effect place a burden on others.

The maxim "harm must be eliminated, but not by means of another harm" (al-dararu yuzalu wa lakin la bi al-darar) is a

rewording of the Hadith "harm may neither be inflicted nor reciprocated in Islam" (la darar wa la dirara fi al-Islam). A practical

manifestation of this maxim is the validation not to opt for over zealous treatment and to allow death to take its natural course.

However, the aim should never be to hasten death, and all necessary steps ought to be taken to ascertain that basic needs

which are necessary to sustain the life of the patient should also not be discontinued.

Mention is made in a Hadith that "breaking the bone of a dead person is equal in sinfulness and aggression to breaking it while

the person is alive." In other words, it would be an act of aggression, tantamount to mutilation of the human corpse, to remove

any of its organs for the purpose of transplantation. However, in this particular context, the maxim "necessity makes the

unlawful lawful" (al-daruratu tubihu al-mahzurah) can be used as justification for the removal of the cornea from the dead for

the purpose of transplanting it into another person whose vision could be restored through corneal transplant.

The maxim "lesser of the two evils" (akhaffu al-dararayn) serves to sanction the carrying out of a Caesarian section on a

pregnant mother who has passed away in order to try to save her baby. In other words, this maxim would justify "desecrating"

the dead mother’s body to save the life of her baby on the grounds that it would be better to save one life than to risk losing

two.

The famous Hadith, namely, "Actions are valued in accordance with their underlying intention" (innama al-a`malu bi al-niyyah) is

the rewording of the maxim "actions are judged by the intention behind them". This maxim reinforces the fact that the

element of intent does play a crucial role in differentiating between the deliberate withholding of treatment due to poor

prognosis and allowing nature to take its course.

A dilemma doctors often face is whether they are obliged to consult the guardians and/or relatives of their patients or whether

they ought to do what they think is best for their patients without consulting their patients’ kith and kin. This dilemma may be

resolved on the basis of the maxim "private authority is stronger than public authority" (al-wilayah al-khassah aqwa min

al-wilayat al-`ammah) which implies that consent of the spouses, parents and/or guardians of the patients is paramount and

cannot be overlooked by the attending physicians.

Fatwa as the formal legal opinion of the Mujtahid/Mufti

Fatwa is derived from the root verb fatiya, which means to be youthful, to furnish with information and to expound. Its evolution

as a legal term emanate from two citations in the Noble Qur’an, where the word is used in its 10th and 4th verbal forms:

"They seek your fatwa (yastaftunaka) regarding women. Say Allah does instruct you (yuftikum) concerning

them….." (Al-Nisa’, 4:127)

"They ask you for a (fatwa) legal decision (yastaftunak). Say: Allah directs (thus) (yuftikum) about those

who leave no descendants or ascendants……" (Al-Nisa’, 4:176)

Fatwa is defined as a formal legal opinion given by an expert in Islamic Law. An expert in Islamic Law is known as a

mujtahid/mufti, an inquirer (i.e. one who seeks the legal opinion of a mufti) is known as a mustafti, and the act of issuing fatwa

is known as ifta’.

Mujtahids/Muftis are usually consulted by members of the Muslim community to give their legal opinions on the new

developments in the fields of economics, politics, science, technology and even on bioethical matters pertaining to family

planning, abortion, cloning, euthanasia, organ transplantation, etc. It is to be noted, however, that the fatwa of a particular

mujtahid/mufti is not binding and hence one has the option to approach another mujtahid/mufti for a second opinion. Moreover,

one ought to realize that there are a number of conflicting fatawa (sing. fatwa), for example, on organ transplantation and other

bioethical matters and thus, in light of this, Muslims thus have the liberty to uphold such legal opinions which best appeal to

their conscience without any qualm. After all, whatever legal verdicts they finally choose to follow would in essence be the

ijtihad of the mujtahid/mufti.

Enforcement of the legal verdicts of the

Mujtahids/Muftis

One ought to recall here that Islamic Jurisprudence, as was mentioned earlier, is the extension of the Shari`ah (Divine Law).

Insofar as the Islamic world view is concerned, the Shari`ah embodies the Will of Allah I Who is regarded to be The Sovereign

and Source of law and this is evident from the following Qur’anic verse:

"To Allah belongs the dominion of the Heavens and the Earth and Allah has power over all things. (Al

`Imran, 3:189)

From the above verse, it is evident that the Shari`ah does not recognize the liberty of legislation, for that would be incompatible

with the ethical control of human actions and, ultimately, of society. Law, therefore, does not grow out of, and is not moulded by

society as is the case with the Western system. According to Islamic teachings, human thought alone cannot discern the true

values and standards of conduct - such knowledge is complemented by Divine Revelation. Likewise, human actions are

considered to be either good or evil depending on what has also been made known to humankind through Divine Revelation.

Moreover, fear of punishment in the life hereafter, depending on the strength of one’s faith, serve as a deterrent for one not to

indulge in such actions that are deemed prohibited by the Shari`ah.

The Shari`ah has laid down the penal code for perpetrators of crime. For example, the proviso for paying the diyyah (blood

money) for the unintentional killing of a human being is on the basis of the following Qur’anic imperative:

"Never should a believer kill a believer, but (if it so happens) by mistake (compensation is due): If one so

kills a believer, it is ordained that he should free a believing slave and pay compensation (diyyah) to the

deceased’s family…." (Al-Nisa’, 4:92)

At this juncture, it is important to note that in light of Islamic Jurisprudence, ensoulment of the foetus occurs after the fourth

month of pregnancy on the basis of the following Hadith:

"Each of you is constituted in your mother’s womb for forty days as a nutfah (drop of semen), then it

becomes an `alaqah (something that clings) for an equal period, then a mudgah (chewed-like lump) for

another equal period, then the angel is sent, and he breathes the soul into it."

Hence, any act of aggression against the foetus after the fourth month which results in the termination of its life would be

tantamount to the killing of an actual person. Thus the aggressor would be liable to pay the diyyah (blood money) in

compensation.

In Muslim countries where the Shari`ah is implemented, for example, in the Kingdom of Saudi Arabia and Iran, the Qadi (judge)

of the Shari`ah Court would be responsible to effect the appropriate punishments for the different crimes. But the primary aim of

the Shari`ah is not restricted to the implementation of punitive measures, but rather to impress upon Muslims the fact that Allah

I is watching their every action and hence they should have an element of fear for Him I at all times and not to shun His I

commandments. This is evident from the following imperatives of the Noble Qur’an, bearing in mind that the Noble Qur’an is in

essence the foremost source of the Shari`ah:

"O ye who believe! Fear Allah as He should be feared." (Al `Imran, 3:102)

"….And fear Allah that you may prosper." (Al `Imran, 3:200)

From the above Qur’anic verses, it may plausibly be inferred that prosperity of society depends not so much upon the rigours of

the law, but rather upon righteousness inspired by the fear of Allah I, i.e. taqwa. Thus while the Shari`ah is the code of moral

conduct, taqwa is the standard by which human actions will be judged as is evident from the following Qur’anic verse:

"O humankind! surely, We have created you from a single (pair) of a male and female, and made you into

nations and tribes that you may know each other. Surely the noblest of you in the sight of Allah is the one

who has taqwa (fears Allah most)." (Al-Hujurat, 49:13)

Secular laws in the modern world depend to a large extent upon public opinion and can thus be altered according to changes

that take place in society. But the rulings of Islamic Jurisprudence being offshoots of the Shari`ah (Divine Law) are upheld by

Muslims worldwide, depending on the level of their Allah-consciousness, even though there is no one to enforce them.

CONCLUSION

Ijtihad has undoubtedly a vital role to play in resolving the many challenges that Bioethics poses vis-à-vis the Muslim world view.

It is one of the sources of Islamic Jurisprudence which facilitates the extension of the Shari`ah. In other words, the mujtahids

(jurists) deliberate upon such biotechnological manipulations which directly impact the lives of Muslims in order to reach a

solution or a rule (hukm) by declaring them to be wajib or fard (required or obligatory), mandub (recommended), mubah

(permitted, but morally indifferent), makruh (discouraged or abominable) and/or haram (forbidden or prohibited). However, it is

also necessary to point out that while the deliberations of the mujtahids are restricted to the realm of probability, a diversity of

views on bioethical matters are bound to exist. This diversity is influenced by the Muslim jurists’ deliberations within the

parameters of the teachings of their particular schools of Jurisprudence.