The Concept of Ijtihad in Islam

THE CONCEPT OF IJTIHAD IN ISLAM

By Asghar Ali Engineer

Change is inevitable in human life and society. Dr Allama Iqbal, the noted poet, also says that “it is only revolution which is permanent” and everything else keeps on changing. In the event of constant change, can religion and religious law remain unchanged? Again the important question is what is permanent in religion? Is there any component which changes? Does divine mean something static? Then what is the meaning of the Qur’anic verse “...every day He manifests Himself in yet another (wondrous) way” (29:55).

Does this not mean that Allah and His creative powers manifest themselves in ever new and wondrous ways? Can then we reject change as blasphemous? Which change is blasphemous and which one legitimate? Does the holy Qur’an reject the concept of change altogether? Does it not invite the unbelievers repeatedly to abandon their ancestors’ ways, reflect over changes around them and respond to the Prophet’s call? These are very important questions which need to be answered with great deal of deep reflection.

It is true many orthodox souls are horrified by the very mention of ‘change’. They find great consolation in following what they have inherited. What is ‘given’ is a proud heritage for them and what is evolving and changing is not only unacceptable but ‘blasphemous’. In fact most of the ‘Ulama today set great store by ‘taqlid’ (unthinking imitation). In fact taqlid has been elevated to the status of principle today though no such principle exists in Islamic jurisprudence.

What is to be noted is that there is no concept of priesthood in Islam unlike Christianity or Hinduism. Every believer is obliged (mukallaf) to perform all the functions obligatory in Islam. There was no tribe of ‘Ulama during the life time of the holy Prophet (PBUH). The companions of the Prophet, whenever faced any problem, requested the Prophet to guide them. The Prophet, either waited for revelation and often he did so or guided the companions out of his prophetic wisdom.

COLLECTIVE WISDOM

After the death of the holy Prophet when new problems arose, the Caliph would hold assembly of the companions and place the problem before it and it would be resolved either in the light of the Qur’an and the Sunnah or in the absence of it through collective wisdom. The best example is of punishment for drinking. When nothing was found in the holy Qur’an and the Prophet’s Sunnah Hazrat Ali’s suggestion that eighty lashes be given as a punishment for drinking was accepted on the grounds that after drinking a person tends to make false accusation and the punishment for false accusation in the Qur’an was eighty lashes. Thus many other similar problems arose from time to time and the assembly of the Prophet’s companion would resolve them one way or the other. Thus the process of legislation continued even after the death of the Prophet.

The Prophet himself had encouraged the faculty of thinking and reasoning among his followers. He himself was acutely aware of the developing situations, possibility of problems arising in future and hence approved of Ma’adh bin Jabal, his companion whom he had appointed as ‘Amil (Governor) of the Yemen, exerting himself intellectually (this is what ijtihad means to strive, to make efforts to solve a problem) to find a solution of the problem he did not find either in the holy Qur’an or in Prophet’s Sunnah.

In fact the Muslims continued to face new problems many of which had not been mentioned in the two principal sources of Islam. New problems arose for variety of reasons mainly on account of geographical spread of Islam and the ‘adat (traditions and customary laws) of new people embracing Islam. The two principal sources were not enough to resolve these new problems. New concepts, therefore, had to be devised to meet the new eventualities.

Thus the institutions of qiyas and ijma’ (i.e. analogy and consensus) had to be used. Thus for Shari’ah these four sources i.e. Qur’an, Sunnah, qiyas and ijma’ became widely acceptable for the Islamic legislators. However, the additional two sources i.e. qiyas and ijma’ were not acceptable to the Shi’a Muslims. They were limited to Sunni Islam.

In Shi’a Islam the ahl al-bayt (the people of the Prophet’s family), particularly the Imams, are considered the absolute authority in not only interpreting the Qur’an but also in pronouncements over new problems. But even Shi’as faced problems after the last Imam (12th in the case of Ithna ‘Ashari Shi’as and 21st Imam in case of Isma’ili-Musta’lian Shi’as) went into seclusion. Their place was taken by mujtahids in case of Ithna ‘Asharis and by Da’is in case of Isma’ili-Musta’lians. And in case of Isma’ili-Nizaris the problem did not arise at all as one of their Imams suspended the application of the Shari’ah itself.

GRASPING AND DEVELOPING

In early Islam i.e. in the first two centuries after the demise of the holy Prophet (PBUH) many qualified people (i.e. those who had adequate knowledge of the Qur’an and Sunnah) among the Sunni Muslims continued to solve various problems apart from ones which had already been settled in all sincerity and according to their legislative acumen. They were known as fuqaha’ (i.e. those who developed deep understanding of religion and the principles of religion and their application). The Qur’an uses the word fiqh and its derivatives in many places like 78:4, 44:17, 122:9 etc. Thus the process of grasping and developing deep understanding is very central to the whole process of compilation of the Shari’ah.

Among the common Muslims there is general belief that the Shari’ah is divine and hence immutable. And it is on this basis that they oppose any re-thinking of issues in the Shari’ah. It is not the correct view of the Shari’ah nor this is what is maintained by the competent authorities i.e. the ‘Ulama. In fact what is known as the Shari’ah did not descend readymade. It evolved over a period of time and the jurists differed from each other on several issues.

That is why there are several schools (i.e. madhahib) of Shari’ah (five in the Sunni Islam if we include the Zahiri School also) and three in the Shi’a Islam i.e. Ithna ‘Ashari, Zaidi and Isma’ili). Thus it is very clear that the Shari’a is as much a result of human endeavour as of divine revelations. It is differences of human thinking and approach which is reflected in different schools of Shari’ah. In fact in early period of Islam there were more than 100 madhahib (schools) of which only few survived.

Needless to say, these were result of ijtihad. Many eminent and learned Muslims made an honest and sincere efforts to solve the problems confronted by them in their lifetime in the light of the Qur’an and the Sunnah even though they differed from each other. Even the Shi’as who mainly depend on the authority of Imams from the Prophet’s family for Shar’iah pronouncements, developed differences (even in matters of principles) as they differed on the question of who the properly appointed Imam was and these Imams also differed from each other on many issues pertaining to the Shari’ah.

Thus the Ithna ‘Ashari Imams and the Isma’ili Imams though all of them from the Prophet’s family differed from each other, for example, on the question of muta’ marriage (a time-bound temporary marriage). While the Ithna ‘Ashari Imams allowed it the Isma’ili Imams considered it, like the Sunni Fuqaha’, as strictly forbidden. Many more examples could be cited to illustrate the differences.

DIVINE AND HUMAN

It is also important to bear in mind the two aspects of religion, and it applied to all religions of the world, i.e. transcendental and transient. The transcendental is immutable whereas the transient as the word itself indicates is subject to change depending on the contingencies of the situation. What we understand by the Shari’ah is composed of both the elements i.e. transcendent and transient or, in other words, the divine and human. The Qur’an also incorporates both the elements. For example the institution of slavery is a transient one whereas the concepts of human dignity, equality and fraternity are all transcendental.

The Shari’ah had permitted slavery as a transient principle, a contingent institution that persisted all through medieval ages. However, it was abolished in our times without injuring any divine principle. Here it is important to understand that principles of the Shari’ah what is called usul al-fiqh are fundamental to the Shari’ah and hence are immutable whereas their application in the given human circumstances is contingent and subject to change. There have always been and will always be differences of opinion about the ways of applicability of a principle and hence different schools of thought.

Thus it will be seen that the concept of ijtihad is extremely important if the Shari’ah is to keep pace with developing society. In fact it was the result of human ijtihad that the Shari’ah was compiled as inherited by us. Even qiyas and ijma’ were human institutions devised to meet emerging situations not faced by Muslims in Madina during the Prophet’s lifetime. The doors of ijtihad remained open for a few centuries specially upto the fall of Baghdad in early 13th century.

In fact the decline of the Abbasid empire even earlier made the ‘Ulama and fuqaha’ quite apprehensive and they began to conserve what was inherited by them. It was Imam Ghazali who, by compiling his magnum opus Ihya al-‘Ulum (Revivification of Knowledge), led the process of closing the gates on fresh thinking. It was the period of decline and intense insecurity and what Imam Ghazali did was quite in the interest of Muslim society.

It is true that the ‘Ulama, after the fall of Baghdad, felt acutely insecure and closed the gates of ijtihad but this may not fully explain the causes of abandoning the concept of ijtihad in Islam. Ijtihad, as pointed out above, has been very central to the very process of compilation of the Shari’ah rules. One may also point out that after the disappearance of the Abbasid empire and fall of Baghdad, other Muslims empires like the Turkish empire, Safavid empire in Iran and the Mughal empire in India came into existence and these empires were quite powerful ones. Why then the process of ijtihad did not revive.

Firstly, because all these empires did not have the legitimacy which the Abbasid empire had the Abbasid empire being conceived as the ‘core Islamic empire’ and the other later empires being thought as the outer peripheral empires.

UNIVERSAL EMPIRE OF ISLAM

Also, the Abbasid empire being the most powerful and the first one that was conceived as what the noted historian Arnold Toyenbee calls the ‘Universal empire’ of Islam. The most talented jurists some of them under direct patronage of the Abbasid caliphs engaged themselves responding to new juridical needs which arose in a place like Baghdad which was, at that time, a confluence of several cultures.

These jurists used their talents to interpret the Qur’an and the Sunnah in response to these needs and compiled the laws of the Shari’ah. Ijtihad became highly useful institution for these jurists who had to exercise their intellectual faculties to comprehend new situations and find solutions to them what the holy Prophet had advised Ma’adh bin Jabal to do.

However, once elaborate rules were evolved by the classical jurists those who succeeded them did not question these formulations. They acquired universal character and came to be widely accepted. Moreover, during the medieval ages situation remained more or less stagnant and the jurists belonging to the subsequent generations did not feel any need to question the classical Shari’ah formulations. The subsequent empires which came into existence in Turkey, Iran or India also were feudal empires wherein much social change was not occurring. What was formulated by the classical jurists could serve the needs of the people in these empires also. Thus the classical Shari’ah continued to be enforced.

However, a qualitative change took place in Islamic societies from the 19th century onwards. Though until then these societies were feudal in structure but an encounter with colonialism brought about certain basic changes which made people rethink many issues. Also, the Muslim jurists and intellectuals were faced with the criticism by Western scholars and orientalists and had to defend themselves.

Their own legal and juridical categories were found problematic in meeting with the Western criticism. Certain practices like slavery, concubinage, polygamy etc. came under attack. Some ‘Ulama withdrew into their shells and simply denounced orientalists and Western scholars as enemies of Islam and unworthy of being taken note of while others, specially modernists among Muslims, answered the orientalist criticisms with creative thinking.

Mohammad ‘Abduh of Egypt was disciple of al-Afghani and despite his orthodox training, he spent several years in France as a political exile. He was great ‘Alim and rose to be the Grand Mufti of al-Azhar, the premier institution of Islam. He was a great mujtahid and utilised his profound knowledge of Islam to rethink many issues confronting the society. He issued many fatwas, one among them was legitimising interest on postal savings. He also criticised the practice of polygamy which was rampant in Egypt in his time. He laid stress on dignity of womanhood and was in favour of according them higher status. He also emphasised the need for their education.

CREATIVE RESPONSE TO CRITICISM

In India, too, some Muslim intellectuals, though not the traditional ‘Ulama, responded to the new developing situation creatively and persuasively, not simply dismissing the Western colonial criticism as mere hostile propaganda. I must emphasise here that the orientalists were not motivated by best of intentions in mounting criticism of oriental societies they encountered and their attacks on Islam were often hostile.

But to dismiss their criticism as mere hostility towards Islam and keeping quiet about the issues raised by them or simply withdrawing into the shells would not have been the right response. It was necessary to take their criticism seriously and apply ones’ knowledge and intellectual faculties in creatively responding to the criticism.

Some intellectuals like Sir Syed Ahmed Khan, Syed Amir Ali, Maulvi Cheragh Ali and others rose to the occasion and responded to these orientalist attacks seriously and creatively. Sir Syed Ahmad Khan wrote a voluminous reply to Sir William Muir’s Life of Muhammad. He went to London, did his own researches and wrote a convincing reply. Justice Amir Ali wrote his classical book The Spirit of Islam. Similarly Maulavi Cheragh Ali wrote books on slavery, jihad, personal law etc. His book A Critical Exposition of the Popular Jihad is an important work in this genre. Later on Maulana Saeed Ahmad Akbarabadi, though a product of Darul ‘Uloom Deoband, was a critical thinker and approved of the need for ijtihad in our times.

It is important to note that ijtihad is an accepted concept in Islam. No one, not even most orthodox ‘alim, can deny its legitimacy. Apart from the tradition pertaining to Ma’adh bin Jabal referred to above, there is also another hadith of the Prophet approving of ijtihad which says that if one does ijtihad and makes a mistake he will have one reward and if he does it correctly he will get double reward.

This tradition clearly brings out the significance of ijtihad in Islam. It must be borne in mind that Islam itself came into existence in a Meccan society which was undergoing basic socio-economic changes. The pre-Islamic or jahiliyah laws not only were becoming obsolete but downright obstacles for further moral, spiritual and material growth of society.

Islam and its laws thus were not the product of a stagnant society but a society which felt a need for transcendence. Islam catered to the spiritual, moral and material needs of this newly emerging society. It gave new principles and laws acutely needed by the people. The Islamic response to the changing needs of the Meccan society was not only material but also moral and spiritual. Since Islam came into existence in a changing society it emphasised the need for dynamism and the principle of ijtihad embodied its spirit of dynamism.

It was the later generation of ‘Ulama who while accepting the principle of ijtihad in theory de-emphasised it in practice. They evolved the concept of taqlid (unthinking imitation) in its place though they cannot quote any hadith from the Prophet in its favour. Taqlid, in a stagnant Islamic societies, thus became a widely accepted principle, as pointed out above. However, today all Islamic societies are experiencing fundamental social changes and rethinking on many issues has become very vital.

The conservative ‘Ulama point out that though ijtihad is an accepted principle in Islam there are no qualified people to indulge in it. They feel and rightly so that one intending to resort to ijtihad should have thorough knowledge of the Qur’an and the Sunnah and also of what is known as usul al-fiqh i.e. principles of jurisprudence. They feel no one, including themselves, have these qualifications. However, this is not true. There are many among the ‘Ulama, as well as the modern scholars of Islam, who are qualified to do ijtihad. It is rather fear of consequences or conservatism, rather than lack of qualification, which deters them from undertaking ijtihad.

Also, there are internal struggles for controlling institutions which becomes an impediment. If one ‘alim shows inclination to accept need for ijtihad, his rivals denounce him as ‘heretic’ and seize control of the institution from him. A member of the Muslim personal law board n India confessed privately that it is fear of rivals rather than lack of perception for certain badly needed changes in matters like triple divorce in one sitting which is the main impediment.

SOCIAL CLASS OF ‘ULAMA

Also, one has to bear in mind that at least in India and in several other Islamic countries too the people who choose career as ‘Ulama come from poorer and backward classes who have no other choice. The children from middle and upper classes go for professional education like engineering, medical or management courses. They can afford to do so.

However, the parents from poorer classes perforce send their children to religious institutions as not only education in those institutions is free but also they get free boarding and lodging.

These children grow up with backward outlook not knowing much about other developments in the world. Moreover, religion becomes a power in their hands with which they rule millions of backward, poor and illiterate masses and also, in many cases, believing educated people who do not care to study religion by themselves. These sociological aspects of religious community has to be borne in mind while trying to understand its belief-system.

In a fast changing world recourse to ijtihad is a must and Islam is among those religions which approves of healthy change and allows its believers to not only grapple with the changes taking place around them but also to strive to reapply Islamic principles of jurisprudence.

As far as ijtihad is concerned it should be made absolutely clear that no one can change principles and values. These are most fundamental to religious teachings. Ijtihad could be done only in reapplication of these values and principles in changed circumstances.

It would be in order to explain what I mean by reapplication of principles and values. For example, justice in the Qur’an is a most fundamental value. It is so fundamental that while permitting slavery in a given circumstances, it is required, in the Islamic Shari’ah, that the slaves should be fed what master feeds upon himself, and should be clothed in what master himself dresses in.

This was rightly thought to be a just behaviour in those circumstances. Now, in the changed circumstances, the principle of justice i.e. its reapplication requires that slavery be abolished. If slavery is continued in today’s circumstances it would be grave violation of principle of justice.

NO PLACE FOR SLAVERY

Also, the transcendental aspect of religion has no place for slavery, it was permitted only as a transient measure. It is regrettable that our ‘Ulama never issued any fatwa for abolition of slavery before the West did it on grounds of human rights. In fact the Muslim ‘Ulama should have done it, much before the West abolished it, had they understood the real spirit of Islamic justice.

Similarly, today when women’s rights are being universally accepted and the concept of sexual equality has come to stay, our ‘Ulama refuse to rethink women’s issues in Islam. They still continue to insist on those Shari’ah measures which were evolved by the classical jurists in radically different circumstances. They fail to appreciate that it is Qur’anic principles which are immutable and not their application by the jurists (fuqaha’) in their own circumstances.

Again, like slavery, polygamy was a transient measure approved by the Qur’an in the then given circumstances. Also, polygamy, it should be borne in mind, was not at all indicative of subservience of women to men nor was it divine intention to reduce them to the status of second sex. This thinking came to be prevalent in view of patriarchal structure of society.

The holy Qur’an, if studied carefully and impartially, made several statements according equal status to men and women (see, for example, verses 2:228 and 33:35). However, during medieval ages, when women were thought to be secondary to men, these verses were ignored and verses like 4:34 were repeatedly quoted to prove man’s superiority over woman though the above verse was not value-based like the two other verses (i.e. 2:228 and 33:35) which were value-based.

Today there is a great need that the value-based verses according equality to both sexes be highlighted and all women related issues thoroughly re-thought in the light of these two verses, and other verses which tend to give a slight edge to man over woman be de-emphasised as transient, valid only in certain circumstances. In the same spirit polygamy should be strictly regulated, at the most bigamy being permitted in certain exceptional circumstances by the court. In no case it should be decision of an individual.

PROBLEM WITH POLYGAMY

In fact the Qur’an had permitted polygamy only after the battle of Uhud wherein large number of Muslim men were killed, to take care of widows and orphans. And equal justice with all wives was strictly stipulated. Today such circumstances do not exist and hence polygamy should be nearly abolished (allowing bigamy, as pointed out, in exceptional circumstances). Muhammad Abduhu rightly maintained that it would be unjust to take another wife in presence of one and hence he recommended its abolition.

Triple divorce in one sitting is highly obnoxious and is based, not on Qur’anic injunction but on an hadith of Rukana which is quite controversial in which Prophet permitted triple divorce. On the other hand we have hadith widely accepted in which Prophet condemned triple divorce and he described it as ‘playing with the divine law in his (Prophet’s ) own lifetime’ and he ordered the person to take back his wife. This hadith has been reported by Ibn Dawood. It is also accepted that triple divorce was not practiced during the Prophet’s time and during the time of the first Caliph.

The second Caliph allowed it under some circumstances to check its abuse. The Qur’an does not mention this form of triple divorce in one sitting at all. It requires that both man and woman appoint their arbitrators who will finally decide whether divorce should take place or not (see 4:35). The Qur’an also requires two witnesses for divorce (see 65:2). But we ignore all these injunctions of the Qur’an and base the practice of divorce on a hadith which is, at best, quite controversial. Thus there is a strong case for abolition of triple divorce which is highly unjust to women and violative of fundamental principle of Islam which is justice.

Similarly we should not treat a woman as half witness. It amounts to grossly misunderstanding the real spirit of the Qur’anic verse 2:228. It is far from the Qur’anic intention to reduce women to half witnesses. The second woman was required to remind if the first woman forgets and not to treat the first woman as half witness. Moreover, this was stipulated only in financial matters wherein women, in those days, were rather inexperienced. In all other matters she was treated as full witness including in cases of murder (in the case of the assassination of the third Caliph Uthman, his wife Na’ila was the sole witness and no one questioned her testimony).

Thus it was not at all the Qur’anic intention to treat woman as half witness, and now women are experts in all fields as they head many financial institutions. Thus even in financial matters she should be treated as full witness in her own right. Moreover the divine pronouncement in the verse 2:282 is not a value-pronouncement but a recommendatory one. After all, it is not obligatory on Muslims to reduce all financial transactions to writing. Many deals take place on mutual trust. Thus one must distinguish between recommendatory and value-pronouncements while evolving a rule or a law.

A MATTER OF INTEREST

Another important but controversial matter is pertaining to bank interest. Does bank interest amount to riba’ strongly condemned in the Qur’anic verses 2:275-278 and 3:130? Most of the ‘Ulama treat the bank interest also as riba’ and several books have been written on this subject. However, there are others modern Islamic scholars who have studied in depth both Qur’anic injunctions and modern economy and feel that banking interest should not be treated as riba’ and that interest-free financial institutions should be established to help weaker sections of society for housing and consumption loans but commercial banking could be based on interest. If banking interest is treated as prohibited what about paper currency?

Paper currency also amounts to deferred payment (a promised payment by the Reserve Bank) and could be included in the deferred payment category (nasia’) which ‘Ulama treat as strictly prohibited. Also, stock exchange operations amount to speculation and should be treated as haram (prohibited) but one does not see these operations condemned by the ‘Ulama as they condemn banking operations. The Qur’an has condemned riba’ as highly exploitative and unjust and hence its strong condemnation. But the ‘ulama treat interest as prohibited on non-risk factor which is not mentioned in the Qur’an.

If banking interest is condemned only on absence of risk what about practice of renting? It also does not involve any risk and will stand condemned. Thus it is highly necessary to rethink on banking interest keeping in view the Qur’anic spirit and values. In fact the Qur’an is strongly opposed to exploitation of one human person by another. Thus what needs to be decided is whether banking interest amounts to such exploitation? One should not introduce extraneous elements like risk etc. in arriving at proper conclusion.

PUNISHMENT OR REFORM

It is also necessary to evolve proper approach as regards the punishments for crimes like theft, adultery etc. It is true, the Qur’an mentions cutting off hands of thieves (see 5:38) but the fundamental question is what is intended: prevention of theft or punishment. Obviously prevention of theft. Can it not be prevented by other means. Punishments are instruments of prevention of crime and not goal by themselves.

Also, punishments are often specific to society and the Holy Qur’an also prescribed, as an effective measure what was specific to that society but also added in the following verse that “But whoever repents after his wrongdoing and reforms, Allah will turn to him (mercifully). Surely Allah is Forgiving, Merciful” (5:39).

Thus this verse makes it quite clear that real intention is to reform, and emphasis is laid on Allah’s forgiveness and mercifulness. In usual cases reformatory measures should be adopted and the maximum punishment could be given only in case of hardened criminals. It would not be in the real spirit of the Qur’an to cut off hands for any and every theft as is being done by some Islamic countries.

Similarly the Qur’an nowhere mentions punishment for adultery as stoning to death. It prescribes only 100 lashes in verse 24:2. Stoning to death was in fact a Jewish practice which found way in the Islamic law later. There is no proof that the Prophet inflicted stoning to death on any adulterous Muslim after revelation of this verse. In fact, half the punishment for slave girl for adultery in verse 4:25 also makes it clear that the Qur’an nowhere intends to prescribe stoning to death as punishment for adultery (how can one otherwise halve the punishment of stoning to death?).

There are several other new issues like transplantation of organs, cloning, euthanasia etc. which have come up in our times. The Fiqh Academy in India has been doing good work in this direction. It has approved of transplantation of organs to save human life provided it is not of pig. Cloning of course has not been accepted even by medical profession. It has been condemned widely as unethical practice and pregnant with dangerous possibilities. Cloning has been restricted so far to animals only.

However, it is unfortunate that some Muslim jurists are still opposing eye donation. There should not be any objection if a dying or a dead person’s eye is used to give sight to a living blind person. There is no mention of such a problem in the Qur’an or hadith literature as such a problem never arose then. The Prophet has been described in the Qur’an as “Mercy of the worlds” and can one imagine that such a compassionate person would have prohibited human beings from restoring sight to a blind person through donation of one’s eyes?

End

Visit Prof. Engineer’s website at http://www.csss-isla.com/ where you will find many excellent articles.


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