Life is a dynamic process and forces of life keep changing under its influence.
The objective of law is that all demands of life are met in such an amicable
manner that its movement continues in the right direction without any let or
hindrance. All decrees of Islamic law have two layers of meaning in general:
- Actual spirit or Essential aspect
- Structural form or Existential aspect
The essential aspect guarantees dynamism and evolution of human life, whereas
the purpose of its structure or form is to give it discipline and balance. When
human life undergoes changes dictated by the forces of life, it becomes
necessary to review the structure of law to keep it intact, commensurate with
its objective. The idea is to disallow away clash between aspects of discipline
and evolution of life because their mutual conflict renders the movement of
human life into stagnant phenomenon, which in turn drifts the achievement of the
required purpose far from possible.
This situation is against the collective ideal of Islam. Collective objectives
of Islam cannot be attained without fulfillment of all the demands of life.
Keeping this objective in view, undertaking a structural review of law in
accordance with Islamic teachings on matters not discussed by the Holy Qur’an or
Sunna and exploring new sources of legal framework to maintain life as a
progressive and dynamic process is called ijtihad. This is through the
institution of ijtihad that attainment of aims of Islam is not only possible but
is also actualized.
There is no denying the fact that under the change in forces of life, previous
laws framed in accordance with objectives and priorities of its own time fail to
address the newly emerging problems of life. The old laws give way and render
the system into a sterile process, incapable to cope with the new realities.
Their violation instead of implementation proves productive which signifies
deriving a new legal framework. Its reconstruction becomes, therefore, urgent
and inevitable to keep life moving in the right direction. If such a course of
reforming law is not undertaken, rule of law loses its importance in life
resulting into violation, violence, disobedience and lawlessness.
We have been unable to give ijtihad its due importance that it naturally
occupies in the Islamic system of jurisprudence in spite of the vast changes in
the realms of society, politics and economy. As a result, demands of law and
life come into clash with each other. Life demands the fulfillment of its needs,
while law proposes punishment for any violation committed in the process of
fulfillment of needs. Both are poised at different levels. This concept can
further be explained with this analogy that life does not afford deadlock in the
struggle of economic advancement, whereas law insists on the absolute
forbiddance of interest-based economy. According to Islamic point of view, if a
religious mind insists on the total forbiddance of interest-based economy
without the provision of ultimate and absolute resources to break the deadlock
over the creative economic struggle, , it will certainly result into the
diversion from Islamic dos and don'ts. The legal responsibility of such a mind
will rest on the idea, which he does not want to ponder over, that the Holy
Qur’an had forbidden interest at a time when interest was practically replaced
with qarz hasana in accordance with
وَأَقْرِضُوا اللَّهَ قَرْضًا حَسَنً.
“And lend Allah a goodly loan.”
The difficulty in understanding this fact is that we think in terms of providing
for the poor, the disabled and the destitute rather than overcoming this
deadlock of creative struggle with regard to the Qur’anic concept:
لَن تَنَالُواْ الْبِرَّ حَتَّى تُنفِقُواْ مِمَّا
“You can never attain virtue unless you spend (in the cause of Allah) out of
that which you cherish the most.”
That is why the religious leadership has deprived itself of the mantle of
leadership of economic revolution because it neglected this reality that without
eliminating fear of poverty, people cannot be saved from religious or moral
destruction. Those mired in economic quagmires cannot be expected to understand
and care for moral intricacies. The Holy Prophet (SAW) described this reality in
the following words:
كَادَ الْفَقْرُ أن يَّكُونَ كُفْرًا.
“That perhaps poverty and destitution may lead to kufr (infidelity).”
The basic purpose of law in Islam is to provide the people with a life free from
fear and anxiety. This condition cannot be met without fulfilling all material
and spiritual demands of life. The Holy Qur’an has described the basic demands
of human life in this manner:
بَعْضُكُمْ لِبَعْضٍ عَدُوٌّ وَّلَكُمْ فِي الْأَرْضِ
مُسْتَقَرٌّ وَّمَتَاعٌ إِلَى حِينٍO
“You will remain enemies to each other, and now in the earth has been destined a
dwelling place and sustenance for you for a fixed time.”
Here human life has been said to be dependent on two things for its survival and
- Mata‘ (goods or utilities)
- Mustaqar (dwelling place)
The term mata‘ covers human economy and its resources whereas mustaqar denotes
all forms and resources of settlement and strength of human life. If we minutely
analyze both these terms, it becomes clear that all economic, political and
social demands of human life have been stated under these two subjects.
According to the Holy Qur’an, it is these interests, which become bone of
contention among people causing to human societies pain and suffering and making
life full of fear, grief and miseries. Now what is the way out of the factors
that cause all the anguish and anxiety? The Holy Qur’an says:
فَإِمَّا يَأْتِيَنَّكُم مِّنِّيْ هُدًى فَمَنْ تَبِعَ
هُدَايَ فَلاَ خَوْفٌ عَلَيْهِمْ وَلاَ هُمْ يَحْزَنُونَO
“Then if there comes to you Guidance from Me, whoever will follow My Guidance,
neither shall any fear (obsess) them nor shall they grieve.”
This stands established from this Qur’anic injunction that Divine Revelation or
law of Shari‘a ensures a life free from pain and fear. Therefore utilization of
different ways, means and resources will be considered exactly in accordance
with Shari‘a in every age for this purpose. The details of law and demands of
social life consist in the fact that the need of law is felt in a civilized
society because it serves as an instrument for protection of moral and social
values. There are three preconditions for establishment, survival, solidarity
and evolution of such a society
- Growth of human personality
- Completion of social structure/order
- Environment control
There are several aspects of human personality of which biological aspect is one
with three demands namely food, clothes and shelter. If these demands are not
met, personality cannot develop biologically. The ambition, greed and
miserliness in a society are a stumbling block in the fulfillment of these
demands. Islam necessitates their removal to ensure the fulfillment of
biological needs of human personality. Another aspect of human personality is
the socio-biological aspect, which involves matrimony and procreation.
No healthy society can remain absolved of the fulfillment of these demands as
long as it does not lose sight of moral excellence of the concept of the
chastity. Another aspect known as the socio-cultural aspect demands that society
undertakes the responsibility of education of society and its economic
development. No civilized society can abstain itself from fulfilling this demand
nor can it be saved from the decline by such an abdication of responsibility.
Psychological aspect of human life emphasizes the proportional and harmonious
growth of emotion, determination and perception. The psychical aspect warrants
complete harmony among consciousness, sub-consciousness and unconsciousness.
Without this harmony, neither can mental balance of man be maintained nor can
his character be developed on the right lines. All psychopathology generates
from negligence of this aspect.
The demands of another aspect of human life known as transcendental aspect can
be met through a struggle waged for the establishment of an ideal society,
religion, art, morality and knowledge. What guarantees the growth of all aspects
of human life is the positive response to the sociological structure. The
establishment of societal institutions, their organization and disciplined
persistence depends upon a system of lawful injunctions and negative
imperatives, which serves as a shield for the protection of human values. This
serves the purpose of reconstruction, reformation and modernization of law.
The third precondition relates to environment control. Environment is of two
types i.e. natural and human. Science and technology are the means to conquer
the natural environment. Human environment has two sides namely hostile side and
favourable side. The favourable human environment is brought under control
through profitable policies and practices while hostile human environment is
conquered through profitability and benevolence after gaining its control by
coercive ventures. When these preconditions are met in a society, environment is
geared for a culture to develop and grow.
Culture has three patterns namely ideational culture, sensate culture and
idealistic culture. According to P. A. Sarvokin, “Islamic culture is the ideal
culture”. Every pattern of culture is three-layered.
Firstly the philosophical aspect deals with questions like what is knowledge and
how can it be acquired? What is the status of knowledge and what is its highest
ideal? The second aspect of culture is orientational aspect based upon mechanism
to achieve the ideal identified by the philosophical facet. It paves the way for
the establishment of the societal institutions, which are an instrument to
achieve the ideal. The completion of sociological structure is the precondition
to organize its action under which culture develops itself.
The code of conduct established to organize the action of societal institutions
can protect the societal benefits accruing from them as long as forces of life
do not register any change. Since life is a dynamic entity, therefore, the
forces are bound to undergo change. If changes occur, the code of conduct that
was put in place previously to organize and control functions of societal
institutions fails to protect the values of life. This necessitates that the
means and resources adopted to achieve the national ideal or orientational
aspect be reviewed to determine as to how much they can be effective in
obtaining the required results. This critical assessment is called evaluational
aspect and in the language of Islamic law, it is known as ijtihad, whose
precedents can be found from the times of the rightly guided Caliphs to later
periods of Muslim empire.
It dawns upon our consciousness in the light of the Holy Book and the Sunna that
the ideal which initiates and fosters growth of higher values of life in human
personality and societal structures is determined by the Holy Book and Sunna.
The Holy Qur’an and Sunna not only set the ideal but also work out strategy to
achieve it. As long as the sanction of power of enforcement backs the strategy,
worthwhile results are produced. But when law is deprived of the ruling power,
neither can the system of law fulfill the demands of life nor can it protect the
values of life.
This is the stage where reconstruction of law is required and need of ijtihad
becomes essential so that values of life can be protected again through the
employment of effective law and the function of societal institutions may be
controlled and organized. Because it is in this way that the evolutionary
dynamism could continue towards collective ideal of life. It should be kept in
view here that at the time of Ijtihad, the determination of ideal and its
strategy should be worked out in the light of teachings of the Holy Qur’an and
Sunna. As Allah Almighty says in the Holy Qur’an:
لِكُلٍّ جَعَلْنَا مِنكُمْ شِرْعَةً وَمِنْهَاجًا.
“We have designed for all of you a discrete law (ideal) and all-embracing way of
Reference to the Holy Qur’an and Sunna is imperative since due to change in the
forces of life and mantle of leadership of political and economic revolution
having abandoned Muslims, a demand may arise to conduct ijtihad to create
harmony with the changed circumstances. Such a viewpoint may frustrate the
collective objectives and interests of Islam but can not visualize any
betterment. We should not lose sight of the fact in this respect that revival
and reconstruction of later period of the Muslim Umma can be accomplished in the
same manner as it was perpetrated in the early days. I feel no hesitation in
saying that instead of letting ourselves be dictated by circumstances, we should
conduct ijtihad to make our ideal shape circumstances. This feat can not be
accomplished without a spiritualizing and revolutionary ideal.
At a time when the values of human life stand degraded and blessings are turned
into curses, no imposition of any legal order can reverse the circumstances
because the function of law is not to revive the dying values of life but to
protect the present set of living values.
So in order to protect the traditions and values, the precondition is their
antecedence in the society. So with a view to reviving the dying values and to
achieve the ultimate ideal, we will have to bring about a comprehensive
revolution in our social life through employment of ijtihad. It is after this
stage that the implementation of Islamic law could guarantee the protection of
these values and their growth. Guidance can be sought from the Holy Qur’an, the
Sunna, practices and customs of the holy companions and consensus of the Umma
This principle, which enjoys the consensus of jurists of the Umma,
comprehensively represents the need of ijtihad that “the change in the
circumstances and time warrants change in Jurisprudence”. To us, this principle
of Islamic jurisprudence is the basis of establishing the institution of ijtihad
and it is by invoking this precept that the leading pioneer jurists and their
successors have been doing legislation in view of the new problems and issues of
their respective eras. That is ijtihad, a vital legislative instrument of
Islamic laws that guarantees the revival of Islamic culture and civilization
till the end of time.
After having discussed the need and significance of ijtihad in the light of
present-day ground realities, we now move onto the more specific issues related
to ijtihad including its definition, structure, scope and see as to how ijtihad
can be done and what are the practical problems in its way.
The scope of law-making in Islam
In Islam, the Holy Qur’an and Sunna hold permanent, abiding, unconditional and
immutable position as a source of law. Therefore whenever the process of
law-making is undertaken at any level at any time and in any age, it would
surely be subservient to the Holy Qur’an and Sunna. Having settled this basic
principle, we will now present an abridged outline of the scope of legislation.
There can be two types of legislation in Islam:
- Formulative Legislation
- Interpretative Legislation
The whole process of legislation in an Islamic state is based on the principle
of ijma‘ (consensus).
1. Formulation of constitution and statutes
Irrespective of the fact whether the constitution is written or unwritten, the
first step towards legislation in any state is the formulation of constitution
in the context of social, political and economic conditions tailored to its
2. Rules of implementation
This denotes the formulation of such laws that help in the enforcement of
Shariah commandments and are instrumental for the development and promotion of
Islamic values. They are linked largely to the regulatory laws.
3. Formulation of procedural laws
By ‘formulation of procedural laws’ is meant settling petty details and making
sub-sections and sub-sub-sections of those commandments of Shari‘a, which are
subjected to ijtihad in accordance with the demands of the ever-changing
circumstances. They are related to penal, civil, transactional, contractual,
commercial and many other spheres of Islamic legal science.
4. Consensus and its abrogation
In an Islamic state, consensus of opinions can be obtained on any legal or
jurisprudential matter by way of legislation. Likewise any such 'local
consensus' can also be abrogated in any later period in compliance with the
requisite preconditions. The consensus of opinions of the Companions of the Holy
Prophet (PBUH) and the conclusive consensus of the Umma are an exception to it.
The above-mentioned four conditions are the types with formulative legislation.
1. Legal preferences
- Preferring one jurisprudential opinion to another.
- Giving preference one to the other in the enforcement of Shari‘a laws.
2. Legal adoptions from other schools of thought
Despite adhering to one jurisprudential school of thought, it is to adopt the
research and opinions of other jurisprudential school of thought for the
solution of some pressing problems with certain conditions.
i. New legal interpretations
The interpretative ijtihad refers to reinterpretation of the Qur’anic text and
Sunna, which not only meets the demands and requirements of modern life but also
does not contravene the basic teachings of the Holy Qur’an and Sunna.
ii. Gradational change in the degree of legal values
It relates to changing grades of certain commandments within the confine of dos
and don'ts and permissibility and impermissibility under the laws of the
Shari‘a. This can be done with a corrective or conciliatory objective for
example declaring an undesirable act as temporarily forbidden or commendable act
as obligatory to fulfill the basic needs of a society. This legislation is based
on the following jurisprudential concepts:
- Ijma‘ (consensus)
- Ijtihad bayani (interpretative reasoning)
- Ijtihad qayasi (analogical reasoning)
- Istihsan (appreciative reasoning)
- Istislah (masalih mursalah) (conciliatory reasoning)
- Istidlal (deductive reasoning)
- Istishab (coalitional reasoning)
- Zarurat Shar‘i (legal necessity)
- Urf wa ‘adah (usage)
- Naza‘i Shari‘a (legal analogies)
- Qaza‘i Hukkam (rulers’ judgments)
- Aqwa al-fuqaha’ (saying of jurists)
- The principle of changing laws in changing times
- Iztirar (exigency)
Significance of Ijtihad in legislation
Ijtihad holds basic and central position in the whole process of Islamic
legislation because there are normally two levels of Islamic law.
- Actual spirit or essential aspect
- Structural form or existential aspect
The essential or actual aspect of Islamic laws guarantees the dynamism and
evolution of human life while the structural aspect aims at giving it discipline
and framework. With change in the demands and forces of life, the human life
also undergoes changes. In ever-changing circumstances it becomes necessary to
undertake structural review of Islamic laws not only to keep its spirit and
purpose alive but also to keep its effectiveness intact so that the aspect of
discipline of law does not clash with the aspect of dynamism and evolution of
life. Their mutual conflict and clash has the potential of rendering the
dynamism and evolution of life into stagnant and non-productive state and
attaining to control and organization becomes far from possible. The
accomplishment of this obligation is carried out through ijtihad in the process
of law-making. This guarantees effective enforcement of Islamic laws in the
changing circumstances of every period; makes them truly result-oriented and
ensures their universality and perpetuity.
Definition of ijtihad
Ijtihad is an expert reasoning endeavour conducted in accordance with
inferential and deductive method to formulate, reconstruct, elaborate, expand
and enforce Islamic laws in the light of the Holy Qur’an, Sunna and ijma‘
Reinterpretation of commandments of the Qur’an and Sunna is also ijtihad
Apart from analogical and inferential reasoning, the reinterpretation of the
injunctions of the Holy Qur’an and Sunna not based on other Qur’anic texts will
also be called ijtihad because as a matter of fact reinterpretation denotes
determining the meaning of an injunction. It is also called 'exegesis'. If
determination and identification of a Qur’anic injunction is found in the Holy
Book itself, it will also be considered as the Qur’anic text, and not Ijtihad.
That is the style adopted while interpreting the Qur’an through other texts of
the Qur’an or the texts of Sunna.
But if interpretation of any injunction of the Holy Qur’an and Sunna is not
available in the Holy Book and Sunna itself, the effort at reinterpretation by
the jurists in accordance with the spirit of Islamic laws based on ground
realities and its application is ijtihad. There are three kinds of ijtihad.
- Ijtihad qayasi (analogical reasoning known as legal analogies)
- Ijtihad istislahi (conciliatory reasoning based on peace-making acts such as
appreciation and reconciliation)
- Ijtihad bayani (interpretative reasoning)
An interpretation of Islamic law undertaken in accordance with the rules as
described in Islamic laws in order to meet the modern scientific and
intellectual needs is called ijtihad bayani or interpretative reasoning.
The reality is that treating or not treating the reinterpretation of the Holy
Qur’an and Sunna as ijtihad as some jurists and learned scholars have disagreed
upon it, is merely a verbal contradiction because all of them favour the need
and justification of interpretation of the Holy Qur’an and Sunna. Whether or not
this act is called ijtihad but its spirit and effectiveness somehow stays intact
and this is the true objective of ijtihad.
Mutual relationship between the Holy Qur’an and Sunna as source of law
As the Holy Prophet (SAW) enjoys the position of being a law-making and
law-interpreting authority, his Sunna also holds both these positions. On the
basis of both these positions, Sunna is associated with the Holy Qur’an as a
source of law.
The Law-making and law-interpreting aspects
1. From the point of view of law-making, the matters where the Holy Qur’an does
not decree explicitly, the Sunna of the Holy Prophet (SAW) provides basic
law-making for example atonement for not fasting.
2. From the point of view of interpretation, the nature of relationship of Sunna
with the Holy Book falls in the following categories:
i. Specification of the general
For example, specified meaning of the adulterer and the adulteress as described
in the verse on whipping, the specification of 1/3 portion of wealth on the
Qur’anic command of writing a will.
ii. Qualification of the absolute
The determination of minimum amount/quantity for fixation of hadd on stealing or
iii. Explanation of the implicit
The meaning of prayers, number of ‘cycles’ and determination of its timings,
Exemption of fish in the order dealing with forbiddance of the dead sea animals;
exemption of locust; exemption of wiping over he stockings in the command to
The addition of one year in imprisonment or exile along with the hadd on
Some scholars accept the principle of abrogation of the Qur’anic verse with the
Prophetic traditions and consider it within the purview of interpretative reach
of the Sunna. But we do not subscribe to this concept and hold that the Qur’anic
verse can only be cancelled by the Qur’anic verse and not by the Sunna.
The issue of disagreement with the ijtihad of four Imams
We agree with the opinions of Shah Wali Allah and other eminent scholars that no
such ijtihad should be undertaken against the opinion of the four Imams, which
may promote the possibility of emergence of a new jurisprudential school of
thought. The reason being that, such a new ijtihad will pave the way for more
intellectual rifts, chaos and dissension within the Muslim Umma. Therefore what
guarantees the safety and security of the Muslims in the field of knowledge,
thought and productive reasoning is the followership of ijtihad accomplished by
any one of the four Imams and adherence to any one of the four religions. This
will make the legal ijtihad and jurisprudential research of a scholar of modern
times stick to one well-set jurisprudential discipline instead of becoming
“arbitrary opinion-making”. This demonstration of moderation can only bear the
fruitfulness and guarantee the continuity and longevity of thoughts of the
jurists in the way of modern reconstructive research. This is what we call
taqlid or conformation. Following the principles worked out by the four Imams,
taqlid does not shut the doors for new ijtihad (jurisprudential reasoning) in
consonance with demands of times. This is intellectual stagnation and deadlock,
which can resultantly cause intellectual paralysis of the Muslim Umma. The
following explanatory points should be kept in view in this regard:
The Ijtihad undertaken by the four Imams is of two types.
- Basic or fundamental ijtihad
- Secondary or auxiliary ijtihad
- Basic ijtihad signifies that ijtihad, which mapped out the basic format for
jurisprudential research for example determination of origin and sources of
Islamic law, their order and the principles of preference of one to the other;
their definitions and details; principles and style of jurisprudential
exposition of the Qur’anic verses; the standard procedures accepting and
rejecting the traditions and narrations; the conditions and rules that govern
change of commands so on and so forth. All basic ijtihads by which every
jurisprudential school of thought came into being, are identified as fundamental
- An auxiliary ijtihad relates to the detailed application and implementation
of the laws devised through fundamental ijtihad — the laws that relate to
interpretation, revival and research of the responsibility and their details and
they correspond to the same given circumstances and demands of time. It is more
practical than theoretical and is more concerned with deriving consequences of
an act rather than with formulating principles that govern the evolution of an
act. Besides, the area of an application of this form of ijtihad is more limited
as it springs from the rather circumscribed priorities and interests of a
particular historical period and is bound by the pressures that characterize the
period or it only interprets and infers. Since this form of ijtihad is not
necessarily related to the formulation of fundamental matters and projects only
incremental issues, it is called secondary or auxiliary ijtihad. Thus there is a
convergence of opinion on the fundamental ijtihad which does not affect the
essential structure of the fundamentals.
2. In the light of the above-mentioned meaning, while following the basic
ijtihad of the four Imams if some sort of difference occurs in the secondary or
auxiliary ijtihad in the process, there is no harm in maintaining this
3. In accordance with needs of the present times, the difference with certain
types of ijtihad undertaken by the four Imams, which were based upon demands,
objectives and priorities of their age, is in fact not any matter of deviation
or difference at all. If new ijtihad is accomplished by complying with the
manner and style of ijtihad followed by the four Imams, which may apparently
look different but in actuality will not be against or opposed to them. It will
rather be considered as the extension of the same basic ijtihad and will not be
regarded as contrary to the spirit of taqlid.
4. There are issues, which were not present during the times of four Imams or
were not perceived for various reasons. For example many political, economic,
social, constitutional and international matters are the product of the
complexities of modern times. Therefore they were not brought within the ambit
of ijtihad as they were not present at that time. If at all some kind of ijtihad
was undertaken on similar issues it could not definitely resemble the present
one. Therefore reasoning out these issues for juristic purposes is not forbidden
at all nor can it be considered as being opposed to the four Imams.
5. If jurisprudential guidance from any Imam, one is adherent to, is not found
on any particular matter, the interpretation of other Imam may also be consulted
as needed. The application of this principle in the present-day jurisprudential
life may pave the way for the enforcement of Islamic law and promotion of unity
in the collective life. Many such examples can be found in the research work by
many leading jurists and thinkers. This vastness of vision lies in the very
concept of taqlid' and should not be considered as being opposed to the ijtihad
of the jurisprudential school of thought. Ibn ‘Abidin Shami and Shah
‘Abd-ul-‘Aziz Dihlawi have explained this phenomenon in great detail. Following
on the heels of the basic ijtihad of the four Imams, as far as the arguments
behind justification of reinterpretation in accordance with needs are concerned,
there could be many but we will contend only with presentation of one argument
All leading authorities and jurists have accepted the justification and need of
reinterpretation with consensus on matters not discussed by the Holy Qur’an and
traditions of the Holy Prophet (SAW). This acceptance is based on those orders of
the Holy Prophet (SAW), which he passed onto ‘Abdullah ibn Mas‘ud (RA) and Muadh
ibn Jabal (RA). Moreover the conduct of the Holy Prophet (SAW), that of his holy
companions and their successors establishes this pattern of knowledge as
accepted fact and the learned authorities of the jurisprudence have done ijtihad
in the light of this principle. Therefore, it is also incumbent upon the jurists
of every age that they keep this tradition of ijtihad alive by following which
ijtihad should be able to establish jurisprudential injunction and not absolute
or authoritarian opinion. Moreover, the four Imams particularly Imam al-A‘zam
Abu Hanifah have not prohibited fresh reinterpretation or new ijtihad. They have
rather declared it as their own scientific way.
Causes of stagnation characterizing Islamic law
In our view, three reasons explain the phenomenon of stagnation that has
engulfed Islamic law since long time.
- Conservative religious mind
- Ultra-modernistic mind
- So-called Muslim governments
1. Conservative religious mind
Our conservative religious mind has rendered the concept of taqlid into
intellectual deadlock and has reduced ijtihad to a forbidden thing. It is in
this way that the jurisprudential work, done a hundred years ago under the
demands of its own time, is considered sufficient to cater to the needs of the
modern times with all its major and minor details. A general religious mindset
considers it as final and absolute as the Holy Qur’an and Sunna forbidding even
minor difference with it or even its reinterpretation. It has totally neglected
the difference between the Holy Qur’an and Sunna on the one hand and
jurisprudential opinions or reinterpretations on the other. That is why the book
of jurisprudence has come to be considered as alternative to the Divine
revelation and any reinterpretative effort has been branded as conspiracy
against Islam in the presence of the above.
Such thoughts have led the religious scholars to be indifferent to the
realization of getting modern education. They think that it is a worldly act
considered contrary to piety to equip oneself with modern art and education.
Their understanding of getting Islamic education is deeply rooted in the ancient
or primitive seminaries the syllabi of which were designed years back to address
the demand of those times. Having been equipped with such knowledge today, they
cannot develop the critical faculty to comprehend the modern multi-faceted
realities and their importance. As a result, their scholarly capabilities
practically lose their significance and usefulness in the face of solutions to
the contemporary complexities. On this basis, Islamic thought cannot move
towards the goal of evolution. Today the aggregate result is that Islamic laws
and other branches of knowledge have fallen victim to stagnation.
2. Ultra-modernistic mindset
As a way of reaction to the above-mentioned behaviour of the religious scholars,
our modernist mind wants to do ijtihad on the contemporary issues. But
importance of this ijtihad is not more than ‘an independent opinion-making’.
Neither does it comply with the practical and scholarly preconditions of ijtihad
nor does it admit the need to fulfill them. This mindset wants to superimpose
its personal opinion over ijtihad while being indifferent to the need of
studying Islamic law and Shari‘a sciences as a comprehensive discipline in terms
of language, research and religious subject etc. Such efforts can not produce
any thing productive but intellectual ambiguity and ideological confusion
because such kind of so-called ijtihad done by modernists of narrow-vision is
not acceptable to the Muslims. Thus this clash between the modern and
conservative perspectives is making the Islamic law stagnant.
As the orthodox religious community does not generally realize the importance of
modern education, likewise, the modern 'educated' community also looks down upon
the need to get education of religious sciences. This mutual clash of and
alienation between both communities has placed the Muslim Umma in a difficult
situation. This fact explains the prevalence of stagnation in the area of
jurisprudential research and creativity in the Islamic world.
3. So-called Muslim governments
The third reason pertains to the so-called Islamic governments and their
functionaries who do not take any effective revolutionary steps in the realm of
education to bridge this gap between orthodox religious elements and modern
community owing to their vested interests. If at all any revolutionary and
reinterpretative effort is undertaken to break this intellectual morass, they
create hurdles in the implementation and success of such efforts. If society is
plagued by such deadlock and stagnation at any level, it is the sincere and
statesman-like revolutionary efforts of the rulers, which have the potential of
breaking this intellectual and ideological logjam. The personal efforts of the
ruled have little chances of succeeding. Therefore it is also the responsibility
of the rulers to keep this process of ijtihad alive.
The issue of ‘modification’ in the principle of ijtihad of four Imams
After the foundation of different jurisprudential schools of thought, the
consensus of Muslim Umma in the form of act and word, on the principle of
ijtihad of four Imams has already taken place. Any change and alteration in it
will practically be a step opposed to the consensus of the Umma and will create
the possibilities of emergence of new jurisprudential schools of thought, which
will no doubt create more intellectual rifts and clashes within the Umma.
On this basis, such modification does not serve the purpose of religious
objectives and priorities. But if at some time, the Muslim Umma is faced with
such intellectual and jurisprudential issues which can be solved in consonance
with the principle of ijtihad of four Imams in any way and the scholars and
mujtahids (those who conduct ijtihad) propose modification in any of the
principles with consensus of the Umma, there will be no harm in doing so from
the point of view of Islamic law. The reason is that according to Islamic law,
except the consensus of the Holy Companions, any consensus can be cancelled with
the consensus of the later period provided it fulfills all the conditions
described for the cancellation of consensus.
But in our view, neither can such a ‘powerful and complete consensus of the
Umma’ be achieved to cancel the consensus reached on principle of ijtihad of the
four Imams nor is there any such need because their principles of ijtihad are so
vast, comprehensive, inclusive and universal that they do not need any
amendment. When there is a lot of room for difference in ijtihad according to
their principles, no justification is left to amend the principle of ijtihad.
Essential attributes of a mujtahid (One who does ijtihad)
A mujtahid should possess the following qualities:
- Faithful and firm in belief and action
- Justice, piety and God wariness
- Knowledge of the Holy Qur’an and other necessary matters connected with it.
- Knowledge of Hadith, principles of Hadith and other related issues
- Knowledge of Jurisprudence, principles of jurisprudence and other relevant
- Complete grasp of Arabic language and literature
- Deep understanding of the Islamic laws, commandments, their secrets and
- Inference of commandments, interpretation of texts of the holy Qur’an and
Sunna, perfect rules of gnosis of analogical and interpretative reasoning
- Perfect understanding of modern problems and their complications
- Complete familiarity with the contemporary developments and reasonable
appraisal of modern exigencies
Appropriate method of Ijtihad
Ijtihad is basically of three types:
- Ijtihad bayani (interpretative reasoning)
- Ijtihad qayasi (analogical reasoning()
- Ijtihad istislahi (concilatory reasoning)
Each of these types of ijtihad should be undertaken in accordance with certain
rules designed for each category. For example:
1. The Interpretative ijtihad is related to interpretation of the texts
containing definite meanings. The method employed to conduct this ijtihad while
interpreting commandments need to be considered: particular and general,
infinite and finite, realistic and figurative, overt and covert, elaborate and
abridged and definite and indefinite etc. Consideration should also be given for
inference of commands to the expression, implication, direction and necessity
contained in the text. The interpretative ijtihad should this way be conducted
keeping in view other technical methods of exegesis and interpretation of the
Qur’an and Sunna.
2. The Analogical ijtihad is derived from legal analogies. Here the origin or
root, sub-section or branch, command and its cause require to be determined.
Proper method of interpretation, review and research of the legal responsibility
needs to be employed to determine the cause and application of command.
Moreover, to identify effectiveness of command and nature of reasoning,
discrimination is required between the appropriate, unusual, derived and
transmitted reasons. And in case of oneness of the cause and command, oneness in
kind and sex needs also to be kept in view while perpetuating juristic reasoning
3. The Conciliatory ijtihad is derived from necessity and expedience. To
accomplish this kind of ijtihad, the established jurisprudential principles and
rules are required to be kept in view including the principles of appreciative,
conciliatory, coalitional and deductive reasoning in addition to usage, law of
necessity, exigency and changing times. The ijtihad done in accordance with
these principles, conditions and rules will be considered appropriate otherwise
it will remain an individual opinion.
How will ijtihad get status of law in an Islamic society?
After deep meditation and thorough reflection over the matter, my conclusion is
that only the collective ijtihad should be acceptable as law for Islamic state
in the modern times. Because of the existing divisive sectarian, class-based and
ethnic rifts in the body politic of the Muslim Umma, ‘individual ijtihad’ cannot
play its effective role at the state level. The variety and complexities of the
problems in the collective life also represent the fact that this ijtihad should
have 'state consensus'. Its method should be such that each Islamic state adopts
the 'collective way' of ijtihad separately in keeping with its peculiar
Every state should establish such a national institution which has two houses:
- General House or the House of Commons
- Special House or the House of the Privileged
The Special House should comprise eminent religious scholars, leading jurists,
specialized authors and experts of the contemporary modern sciences etc. Such a
selection can be quota- and population-based, whereas the General House should
consist of the elected representatives of the whole country. Minimum standard of
education and morality should be laid down for these representatives so that
they are able to fulfill demands of justice in the society and discriminate
between the fair and the foul.
Both of these Houses should do ijtihad for framing laws and constitution of the
state. Their ‘collective ijtihad’ should be:
- subservient to the Holy Qur’an and Sunna and should follow the traditions of
previously held consensus.
- in accordance with the basic structure of the mainstream jurisprudential
school of thought but should also have room for accommodation of other schools
of thought when needed.
- If two-house parliament feels, they should be in position to get advice
from the Islamic Ideology Council composed of experts and technocrats on related
On the pattern mentioned above, whatever ‘collective ijtihad’ will emerge from
this process will have the status of law in an Islamic state and this advisory
body will be called parliament or national assembly or senate of Islamic state.
This mode of collective ijtihad was the most prevalent during the Orthodox