Sharia and Fiqh: Understanding Ijtihad *

Sharia and Fiqh: Understanding Ijtihad

Abu Munir Winkel

Norbert Wiener remarks that: “Most of us are too close to the idea of progress to take cognizance either of the fact that this belief [in progress] belongs only to a small part of recorded history, or of the other fact, that it represents a sharp break with our own religious professions and traditions. (1)

Many Muslim intellectuals have called for a comprehensive ijtihad to “restore” an Islam which they believe is progressive, modern, scientific, and world domineering. Having witnessed the tremendous increase in centralized state power, massive build-ups of national military might, and the impressive and aggressive successes of an invasive and spectacular medical science, these intellectuals stand on the “outside” looking in. They believe their entrance ticket into this prestigious and powerful world is ijtihad.

What is Ijtihad? When discussing ijtihad, there are three ways of conceiving it which are helpful. One is what I call the ijtihad of fiqh (the Islamic legal discourse). Another is the ijtihad of hukm-identification (identifying the “property,” or hukm of a thing) and qada’ (settling an affair). Finally, there is the ijtihad of Ibn al-‘Arabi [1165-1240] which is based on his understanding of the relationship of rabb and marbub (Lord and lorded over), Allah and ‘abd, an understanding which requires the ‘abd to wait for his Lord to address him (khitab) and make him responsible (taklif) and therefore precludes the human initiative of analogy and reasoning. I have discussed Ibn al-’ Arabi’s ijtihad elsewhere.

Let us look at the first two kinds of ijtihad. Vogel describes three peculiar tenets of qada’, as follows. First tenet: “the qadi must be qualified to practice ijtihad.” Second tenet: “the qadi must be free to rule according to ‘that to which his ijtihad leads him.’” Third tenet: “No qadi has priority over any other in matters of truth. Once a case has been decided by ijtihad, it cannot be reversed by another authority.” His comment is that “If this conception of qada’—so idealizing, individualistic, multifarious, and unpredictable—were given full scope, Islamic legal systems would face great practical difficulty.” (2)

The beauty and dignity of the Islamic legal system is overwhelming, and yes, it is practically very difficult to achieve. But on this issue I would divide Muslim history into two camps: those scholars who sought to sustain the perennial and daily and detailed attention to truth focused by a great awareness of the Living approximating the excitement of the prophetic period, and those scholars who opted instead for state sponsored interpretations of Islam, and qada’, which could be centralized, standardized, mechanical, and tyrannical.

The ideal qada’ described above is premised on constant and close divine presence. Its world view is one where every created worshipper (the ‘ibad) constantly asks the divine for guidance, and He guides at every instance. This world view is found in “They ask Him, everything in the heavens and earth; each moment He is upon some task [55:29]. (3)
In such a situation, how could we preclude divine activity by resorting to mechanical, Greek Systems of logic and rationality? In such a situation, how could we depend on codified and reified, and fossilized, necessarily superficial and flat rules and regulations?

What the ideal conception of qada’ does is recognize that each situation is unique, and that each situation will therefore require a unique understanding and determination of its nature. “Determination” here is h.k.m., and the one who determines what something’s hukm is called a hakim. “Its nature” is a thing’s property (hukm). So everyone who needs to determine the reality and property of a thing is must seek and make an effort (j.h.d., ijtihad) to identify its hukm. Since the din has been completed and perfected, everything we need to know about has been given a property (so we need not transgress into the Hakim’s realm, and the realm of His envoy, sallallahu ‘alayhi wa sallam, by determining properties willy-nilly).

Ijtihad here, in the sense of identifying a situation’s constituent ahkam (plural of hukm) is continual, perennial, quotidian. Anyone on whom has come the moment for salah and a built mosque is unavailable has been required to do ijtihad to determine the qiblah. Anyone who has faced with a congregation in a mosque a direction which is not identical to the architectural qiblah has done ijtihad. Anyone who has had to identify whether he is “sick” or a “traveler” has done ijtihad.

However, the moment the identification is made, the fiqh consequences are highly worked out. Once you qualify as a “traveler,” a host of consequences for sawm, salah, and sunan (sunnah practices) immediately come into play. Here is where I would say ijtihad is almost completely unnecessary; here is where the project of the ‘ulama’ over a thousand years has in effect mapped out an immense and tremendously complex terrain of fiqh consequences. At least a thousand pages have been written over the centuries on every single fiqh issue (such as how high wudu’ of the arm goes, or whether one should avoid facing the qiblah when defecating in the desert). Who is the person today who has explored every single one of the positions of the ‘ulama’-like Imam Nawawi did in his Majmu’—and can confidently say that there is scope for yet another position?

The only genuine calls for ijtihad which I have heard of tend to seek an understanding of Islam which is relevant, shorn of its harmful cultural accoutrements, and released from stifling inaction. To some extent I sympathize with these calls. But the traditional approach—which has been distorted or attacked by state sponsored interpretations of Islam—is to maintain sensitivity to divine guidance in determining and identifying ahkam, while at the same time making the consequences of identified ahkam exhaustively enumerated. What we need, then, is not ijtihad of fiqh consequences, but sensitivity to identifying situations with a knowledge-based approach.

The basis of such an approach is taqwa. The root is w.q.y. , and waqayah is a protection. The imperative qi is found in the prayer “Our Lord ... protect us from the chastisement of hell-fire” (rabbana ... wa qi-na ‘adhab an-nar). One verb form is ittaqa, and it means something like “Protect yourself vis-a-vis someone by doing exactly what he requires of you.” I am translating it below as “be wary of,” in the sense of being aware and wary of a Creator who has rightfully demanded certain things of us. Ibn al-‘Arabi summarizes his views of taqwa as the basis of identifying situations and their ahkam in the following passage.

He says Allah said “Be wary of [attaqu] Allah and Allah will give you knowledge” [2:282], and He said “If you are wary of [tattaqu] Allah, He will make for you a criterion” [8:29], and He said “Be wary of Allah and believe in His messenger and He will give you double His mercy and He will make for you a light with which you may walk and He will give you forgiveness” [57:28], like His word about His ‘abd Khidr - “We gave him mercy from Our side [min ‘ind] and We taught him—from Our presence [ladunni]—knowledge” [18:65]. So He gave His ‘abd a gift of knowledge from His mercy, and taqwa is a practice [‘amal] set down as Law for us, so inevitably the property of taqwa would be related to a proof of these proofs [Qur’an and sunnah]; and with each of them—for whatever issue, incumbent on us for it is taqwa of Allah.” 4)

Such an approach changes focus from a mechanical and potentially sophistic act of manipulating rules into a careful and wary refinement of one’s own receptivity to divine command. Too often the desire for change and ijtihad comes from inappropriate and unsanctioned places in the self: a devotion to taqwa and a stance of awaiting the Hakim seems to me far more courteous and sound. Finally, the ‘ulama’ have generally agreed on the universality of the verse fas’alu ahla al-dhikri in kuntum la ta’lamun (Ask the folk of dhikr if you do not know) [16:43]. Those folk are the ones who can help us identify by ijtihad properties for the issues which confront us.

Muslims in North America do not have a single, common cultural manifestation of Islam which we can have recourse to for identifying the ahkam (properties) of issues and for choosing the most secure fiqh consequences of those ahkam. We need scholars who can help us apply a traditional and sound approach to novel issues confronting the Muslims who are here in North America. If you would like to participate in this process, please contact The American Muslim. It may help this process for us to put forth our questions; and for scholars to put forth their understandings of these issues.

Notes: 1) Wiener, Norbert The Human Use of Human Beings: Cybernetics and Society (New York: Avon Books, 1954).
2) Vogel, Frank E. The Closing of the Door of ljtihad and the Application of the Law. American Journal of the Islamic Social Sciences, 1993.
3) yas’aluhu man fi al-samawa~i wa al-ardlkulla yawmin huwa fi sha’n.
4) Futuhat al-Makkiyyah 2: 162.

Originally published in the TAM print edition Spring 1994