Ijtihad to develop Islamic Jurisprudence Assignment help
Ijtihad To Develop Islamic Jurisprudence:
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 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)
