Kamali asserts that “The essential unity of Sharia’ah lies in the degree of harmony that is achieved between revelation and reason. Ijtihad is the principal instrument of maintaining this harmony”. Discuss how personal reasoning (Ijtihad) has helped to develop Islamic jurisprudence
God has distinctly stated in the Quran, Sura al-Nahl 16:43 that ‘and We have sent down unto thee the Message; that thou mayest explain clearly to men what is sent for them, and that they may give thought’ (cited by Ali A.Y, p.174). This indicates that personal reasoning and understanding are not only allowed but also appreciated in Islam, and considered essential for maintaining unity between divine and natural laws. Malaysian thinker Syed Mohammad Naquib al-Attas figured out that ilm (knowledge) is of two kinds. One that is ‘given by God to man’, and the other one ‘is acquired by man by his own efforts of rational inquiry’ (cited by Crow 2005, p.12). Ijtihad is the second type of Ilm, and an imperative source of Islamic jurisprudence..
The terms Ijtihad and mujtahid are correlated and should be understood properly before analyzing its role in legal matters. Ijtihad is derived from an Arabic word al-Juhd and in general, sense it can be understood as ‘independent thinking (An-Na’im, 2010). However, linguistically it means ‘exertion, effort, trouble, or pain’ (Crow, 2005, p.12). In its classic and jurisprudential sense it is perfectly defined by Vincent Cornell (2007, p.155) as
‘The total expenditure of effort by a mujtahid, in order to infer, with a high degree of probability, the rules of Shari’a from the detailed evidence that is found in the sources’.
Ijtihad depends upon revealed sources to formulate new legal rulings (Goolam, 2006). This definition entails that Ijtihad should be conducted by a Mujtahid, who Cornell further asserts that ‘should be a qualified jurist and scholar in Sharia’ah’, and ‘must exert himself to the best of his ability’ (2007, p.155). It is mandatory that mujtahid must use his cognitive abilities in a righteous manner and in full capacity to so that the laws are correctly interpreted. In this sense, the mujtahid has a very complex and responsible job to conduct. The essential requirement for Ijtihad is that the ruling must support the spirit of the revealed knowledge. The mujtahid must be an expert in Arabic language, and has profound knowledge about the primary sources of Sharia’ah and the ethics of Ijtihad. For extracting the actual meaning of complicated or unclear words and reasoning behind the divine laws, the mujtahid may access other techniques like Dalalat, and Qiyas etc. (Kamali, 2008). For Ijtihad, it is essential that inference and probability, I-e Instibat and Zann must support each other so that rightful meaning is extracted from a Clear Text (Kamali 2008). Consulting merely relevant literatures or depending upon other scholars without involving personal reasoning is against the spirit of Ijtihad from legal perspective.
Ijtihad completely centers around the practical issues and is not concerned with matters like creation of universe, and the Creator’s existence etc. In modern context, Cornell believes, ‘Ijtihad adds emphasis on two points; creative thinking and the prevailing conditions of society’ (2007, p.155). Renowned scholar Kamali described it as a ‘principal instrument of maintaining harmony…between revelation and reason’ (2008, p.315). It is important to acknowledge that Ijtihad is, nonetheless, a secondary source, and it derives its authority from ‘Divine Revelation’ (Kamali, 2008). There are various concepts in Islamic ideology to serve the similar purpose such as ‘consensus of opinion (ijma), analogy (qiyas), juristic preference (istihsan), and consideration of public interest (masalah)’ (Kamali, 2008, p.315). Even so, actually these are mere manifestations of Ijtihad, or it can be said that these are correlated sub-branches of Ijtihad, which ultimately stems from the primary sources Quran and Sunnah (Kamali, 2008). Ijtihad plays an important role in determining new laws or orders, but it is different from the primary sources because this process is continually developing, whereas the divine revelation and legislation discontinued after Prophet Mohammad’s demise. Ijtihad is a salient source for determining solutions of newer situations and problems, and human reasoning is subscribed to perform the duty of extracting new implications of Qura’nic laws. It serves as both a channel and a source of knowledge (Crow, 2005). Channel in the sense that it transmits or interprets the revealed laws, and source of knowledge because it formulates fresh information and legislation called “probable knowledge/Zinn” (Crow 2005). The concept of Ijtihad represented by Kamali implies that the human practice of reasoning functions as a legitimate instrument through which the essence of the divine laws remain unharmed yet are applied with modification. It is due to Ijtihad that Islamic law received two of its many distinctive features. First is that of adaptability and flexibility which makes its applicable in any era, society, and region throughout the world (Hallaq, 2009). Secondly, the consistency that it generates for the development of Islamic law (Hallaq 2009). In the Quran, God has ordered people to educate themselves on religious matters, acknowledge the essence of Divine rulings, and putting in effort to incorporate the knowledge in their lives, which is possible through Ijtihad.
Ijtihad has played a definite role in developing new laws and renewing existing ones in Islamic jurisprudence. Quran has slated strict rulings to be followed about punishments of crimes, and it was due to Ijtihad or personal reasoning ability that the rules were later adjusted according to the needs and conditions of society. For instance, the punishment for theft that is ordained by God in Surah al-Maidah verse 5:38 that ‘As to the thief, Male or Female, cut off his or her hands’ (cited by Ali 1934, p.71). During Caliph Umar’s reign, this law was suspended for a year because of the prevailing famine in Medina. There was a case of two men who allegedly had stolen meat but were pardoned because they were starving. Nazim Goolam analyzed the reasoning behind Caliph Umar’s decision that ‘Umar relied on the spirit and the general import of the Qur’anic teaching that necessity may serve as a justification ground for wrongdoing’ (2006, p.1447).
Quran declares in Surah al-Maidah 5:45 that ‘And we ordained for them therein [Torah], a life for life, an eye for an eye, and a nose for a nose.’ (cited by Ali 1934). This is the ruling justified by God for the crime of murder and is known as ‘Just Retribution’. It implies that the murderer must be given the same punishment as endured by the victim. However, when practically applied, it gave birth to arguments and opacities. For example, what if many people are involved in a person’s murder. Sentencing death penalty to just one among the group will violate the basic Islamic principle of Equality. So, Caliph Umar comprehended this ruling in its real sense while dealing with a similar situation in Yemen, and clarified that ‘if all the inhabitants of San’a had participated in it; he would have had them all put to death…’ (Goolam, 2006, p.1448)
Through his verdict, Umar did not violate the divine law, but actually interpreted the term “a life for a life” as it must be understood in such a situation. It is allowed in Islam to suspend or modify any law according to the situation’s demand so that the central message or crux of the law prevails. It is a fact that divine laws are absolute, but it is also true that the primary sources are limited and has ceased to evolve, which is not the case with the society and human nature. That is why it is an intellectual obligation to consult the revealed law and retrieve newer variations.
In Sharia’ah matters, there are four categories of evidence out of which the need for Ijtihad arises in three situations (Kamali 2008, p.316). First evidence implies that the text or evidence is authentic but wordings are speculative (Kamali, 2008, p.316). For instance, in Surah al-Baqarah verse 2:2.28, God says, “The divorced women must observe three courses (quru’) upon themselves” (Kamali, 2008, p.317). In this verse, the text has a clear ruling, but the term Quru has speculation attached. It could be “menstruation,” or the “clean periods between menstruations” (Kamali p.317). It is the task of a mujtahid to adopt any of the two meaning that suits the situation. The second category entails that the meaning is clear and decisive but the text is not authentic. Solitary Hadiths are mostly affiliated with such evidences. For example, the hadith ‘a goat is to be levied on every five camels’ has a clear meaning that Zakah is only applicable on five or more camels (Kamali, 2008, p.317). However, the authenticity status of this hadith is doubtful. So, it becomes the duty of a mujtahid to research, investigate and validate the ruling of this hadith. Third category involves such evidence that contains dubious links and speculative material, which also can only be applied on a hadith. For example, the hadith ‘There is no salah without the recitation of Sura al-Fatihah’ is not only doubted for its authenticity, but the rulings can also be interpreted in two different ways (Kamali, 2008, p.317). It can be claimed that Salah is incomplete without Sura al-Fatihah, or it may be invalid.
Thus, it can be understood that Ijtihad upholds and propagates the true spirit of the Divine rules, and not circulates only the literal meaning of the text. It requires the mujtahid to apply a practical approach to the revealed laws so that the rulings are adjusted according to the changing social conditions, and for the benefit and welfare of people. It annuls the false notion that Islamic laws are rigid and reclusive. In fact, it is a unique feature of Islam’s legal system that unlike the modern statutory legistaltion bodies, it not only allows legal pluralism, but also seriously acknowledges local customs and requirements. This is indeed necessary to keep the laws and rulings in accordance with the concurrent time, age and social circumstances.
Ali, A, H, 1934, The meaning of the glorious Quran, Islamic Books.
An-Na’im, A, 2010 Muslims and Global Justice, University of Pennsylvania Press, America. pp. 318.
Cornell, V, J, 2007, Voices of Islam: Voices of tradition, Greenwood Publishing Group, United Sates.
Crow, K, D, 2005, Facing One Qiblah: Legal and Doctrinal Aspects of Sunni and Shi’ah Muslims, Pustaka Nasional Pte Ltd, Singapore.
Goolam, N, M, I, 2006 ‘Ijtihad and its significance for Islamic legal interpretation’, Michigan State Law Review, vol. 2006, no. 1443, pp. 1444-1448.
Hallaq, W, B, 2009, An Introduction to Islamic Law, Cambridge University Press, England, pp. 27-30.
Kamali, M, H, 2008, Principles of Islamic Jurisprudence, 3rd ed The Islamic Texts Society.