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THE CONCEPT OF IJTIHAD IN ISLAM
Part-I
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.
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THE CONCEPT OF IJTIHAD IN ISLAM
Part-II
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