This action might not be possible to undo. Are you sure you want to continue?
I first would like to express my gratitude to all those who were instrumental in convening this seminar; I would also like to thank all those, scholars and intellectuals, who are present here and paying attention to my lecture.
The topic is the Role of Ja'fari Ijtihad in the Islamic Jurisprudence the emphasis, however, is on the openness of the way of Ijtihad and its impact on the dynamism of Islamic Jurisprudence in the Ja'fari Shi'ite School. I will also refer to the fatwas of Imam Khomeini, the great r eviver jurist.
The lecture will cover the following topics .
1- the importance of ijtihad;
2- the concept of ijtihad;
3- the prerequisites of ijtihad;
4- the methodology of ijtihad;
5- the role of time in ijtihad;
6- the role of place in ijtihad;
7- the openness of the way of ijtihad;
8- the role of modern developments in ijtihad.
1- The importance of ijtihad
Ijtihad and its related issues have recently been thought and written about by great jurists as one new topic. After the Islamic Revolution of Iran and new industrial and technological developments in the world, this issue has proposed lots of challenging questions for both layman and scholar. As a matter of fact, Muslim jurists have not shown one similar approach towards ijtihad through their long history.
The importance, seemingly, of Ijtihad can be summarized into three phases:
First and the foremost, all Muslims are obliged to practice religious (Islamic) duties i. e. divine rulings which can only be known by means of ijtihad. Fiqh (jurisprudence) is thus one of the most sacred branches of knowledge that deals with these rulings. Don·t follow the cor rect method of ijtihad, we would be entrapped in 'Iftira (fabrication) disapproved by the verse of the Qur'an: ( )
Second, having various stands on all issues of the life of human being, ijtihad goes to cover the whole issue s life of Muslims. Ijtihad thus reveals Islam's different stands on
all dimensions of human life. Today Muslim society faces lots of juridical questions in economy, politics, and so on, which can only be resolved through collective Muslims' consultation and an authorized ijtihad.
Third, Muslim scholars did not have one identical approach towards ijtihad. Some of them some time regarded ijtihad as the Quias (analogy) and the deduction of personal opinion. Later on, the deduction of Shar'at rulings from the related resources in one way or another was embraced as ijtihad.
Not soon after, because ijtihad was being misused, they closed the way of ijtihad.
In the Ja'fari Shiite view, however, ijtihad was known to be open through history. More decisively today, we are in an acute need of ijtihad, because noble Islam is being attacked by its different enemies who try in one way or another to cast doubts on the sanctity and competence of Islam. They have gone too far to say that Islam is the religion of radicalism, animosity, terrorism, while Islam is free from such unfair accusations.
Today Muslims are expected to join hands, strengthen their force, and stand in one line against the attackers. They are to prove that the Islamic ideology is well-founded and based on justice, freedom, peaceful coexistence, and sympathy for all human beings who are equal and deserve no priority except for taqwa (piety).
O' my brother in Islam, and O' Muslim scholars, let's revive ijtihad and Islamic doctrines once more, to let Muslims through the cross -cultural exchanges move along modern technological and scientific developments; namely, modern developments that have taken all n ations into "one global village" which has challenged not only the social and cultural dimensions, but also the spiritual and ideological ones.
It is, therefore, necessary to study Ijtihad which requires ceaseless efforts and heavenly mind, and to determ ine its clear-cut concept and domain in order to prevent any kinds of going too far or shortcoming which both faults may affect the way of Allah.
for example. ijtihad was synonymous with Quias (analogy). asked Imam Sadiq (PBUH) that if somebody had fallen down and broken his nail putting some dressing on it. that even though the word "ijtihad" went current only after the 5th and 6th centuries A. however.2. Quias. the very process of ijtihad (deducing shari'at rulings from the Book and the Sunnat). It is noteworthy.) ijtihad meant otherwise they embraced it. H. Holy Imams (PBUT) taught their students how to deduce the rulings from the Qur'an. Somebody. but later on when ( about 5th and 6th centuries A. in the view of the Shiite Imams particularly Imam Sadiq (PBUH).the concept of Ijtihad In its etymology. affirmed by holy Imams Sadiq and Baqir and other Imams (PBUT) was being practiced by them since the very beginning of Islam." During the early centuries of Islam (from 1 st to 5th). Muslim jurists have proposed different meanings one of which is that: "a jurist makes all his efforts possible in order to deduce from the related resources the proof on the rulings of shari'at whether primary or secondary. how he could wipe his feet. ijtihad is derived from the root of "jahd" which means "to make one's effort in order to reach one's aim". Imam (PBUH) answered: "Issues like this can be known from the Qur'an. real or apparent. This was why the Shiite used to reject ijtihad which meant Quias. said ." " " "Wipe the dressing". In its technical meaning of jurisprudence. is rejected if it is not well -founded or not based on the categorical rationale behind the ruling. among Shiite jurists.H. A jurist may ascribe the ruling of one particular case (which is Asl another similar (which is Far'a ) only if the rationale behind the former case ( ) is ) to mentioned in the holy text or the jurist is absolutely certain about it.
ilm -o usul-e al-fiqh (methodology of jurisprudence). for example. Today. al-Muhkam wa al-Mutashabih (those verse having clear-cut meaning and those whose meaning becomes clear only on the basis of the former ones). 3.The prerequisites of ijtihad Having been taken as to mean to study and reflect carefully on the resources of the shari'ah in order to deduce the law. We ought to divide ijtihad into two categories: authorized and unauthorized. one is to master at least Ayat-o al-Ahkam (those verses of the Qur'an that deal with the shari'ah law). he however needs to know any case of event very perfectly in order to be able to ascribe the right ruling of Shari'at to the right case of event. As to be a qualified and an expert jurist. and to master recognizing accepted hadith from the rejected ones and to be able to resolve the inconsistency and conflict among hadiths. Having. In spite of the fact that a jurist is not to be an exp ert on the cases of event. A jurist. al -Nasikh wa alMansukh (those verses abrogating or abrogated). they also regard traditions narrated from their Imams (PBUT) as the continuation of the Sunnat of the holy Prophet. ilm-o al-rijal (biography of those coming in the chain of transmitters of hadith).Imam (PBUH). nonetheless. there was no other reasonable interest in it in the p ast. a jurist needs to know the cases of event particularly those of social relations in the world of today in all aspects in order to be able to apply the correct rulings of Shari'at on them. Now in the case of blood. Selling blood. is that somebody having mastered not the related branches of knowledge embarks on issuing fatwa (legal opinion). . the Shiite jurists concern themselves with the Qur'an and the Sunnat of the holy Prophet (PBUH). is to know that this prohibition was at the time when some people wanted to buy in order to drink it. however. regarded all the above as insufficient for a jurist. logic. These branches are: Arabic morphology and grammar. This is because one case of event can be an instance of different concepts each of which requires its due ruling. hadith studies. was forbidden before. ijtihad requires mastering many branches of knowledge that may help a jurist to succeed in his aim. and if not there from the imperative reasoning (certain Aql). Following their Imams. Imam Kh omeini holds. The former is that a jurist having all the above-mentioned prerequisites draws on all his efforts to draw the rulings concerning the is sues of the past and now from the Book and the Sunnat. history of the Islamic schools and the like. we can see how the concept has changed today from yesterday. literature. and not otherwise. and this is a reasonable interest. The latter. the scientists have the instruments to draw blood from somebody and preserve it in a fridge for a long time and inject it to another to save his life. Qur'anic studies and exegeses. all these require lots of effort and practice so much so that they will take the whole life time of the jurist. however. however.
the servant must intend the obedience of Allah's command when performing acts of worship. as human beings who are endowed with reason and common sense. We ought therefore while letting not the Qur'an be marginalized to let not any illiterate trifle with it. these unskilled amateurs have proposed the strange ideas and opinions not only unprecedented in Islam but also contrary to the established course of Islam and the Qur'an. however. Being able. The accuracy of the former section depends on the intension i. There are a very few cases. transactions are merely known to be confirmed by the divine legislator rather than to be founded by him. The method. This is becaus e when we perform acts of worship like this or like that we may not be expected to know what will happen in our life hereafter. for example. Shari'at law is divided into two sections: Ibadat (acts of worship) and Mu'amilat (transactions). Having been based on the conduct of the wise. With the former. Why do we. only in this way he may perform Alla's command in order to win Allah's pleasure. however. as a result. thus what a jurist requires is to master the holy texts of shari'at and sometimes resolve the inconsistencies and conflict among the traditions. . of ijtihad in acts of worship differs from that in transactions. all human rights private or social civil or penal. we do not need the divine legislator to describe the rulings of transactions in all details. prescribing otherwise. 4-The methodology of ijtihad In its general division. The concept of social is sues in transaction may change as the life of people varies day by day and more developments are made in industry and technology. political and economic relations. With the latter. and so on. perform mourning prayer in two rak'ats (units) rather than three or four? Why do we perform Hajj like this and only during hajj period rather than any other form? And so on.e. to know the reason and wisdom beyond the rulings of transactions. He accordingly and contrary to the former.As a matter of fact. We then are expected to exactly follow commands of Allah and perform acts of worship exactly as described in shari'at law in all their details. that he may proscribe the way of the wise. Impressed by t he foreign cultures. has confined himself to describe only the general rules. the case is different. Islam has through its long history suffered from many strokes by the amateurs who by learning only one or two branches of knowledge supposed themselves qualified to give opinions of Islam and to issue fatwas from the Qur'an. The concepts of acts of worship are fixed and may not change through history. The case however is different of transactions which in their broad meaning would cover all social. Acts of worship are known to be "tawqifi" which means we are not be expected to exactly know the wisdom and reason beyond Allah's command to perform acts of worship in this or that particular way. a jurist confines himself to the limits of fixed holy texts of shari'at.
One who possesses all modern equipments for agriculture may reclaim the largest possible area of barren land leaving the least area to many others which is unfair to them. The subject matter. The case is true with mines which were considered as sequent and dependent on the land. This would help a Shiite jurist to know that the Imam had said some contrary tradition by the intension only to go along with the majority Sunnis. of jurisprudence is to be defined accordingly. yet. by what intension Imam issued a tradition) There are other instances of intension of issuing a tradition in our time. Imam Khomeini and other clear-sighted jurists hold. 5. It is. He holds that a jurist who is perfectly not aware of the complicated social ties of his time is not qualified to issue a fatwa regarding modern human rights. thus. which yet may easily change if the situation for that changes. de cisive for understanding the texts of traditions of the holy twelve Imams to know the line of conduct of the Sunni schools at the time when the Imam said the tradition. This. It is then not peculiar to our time and has since long been practiced by Ja'fari school of jurisprudence that our jurists have been changing their views on the resources of shari'at law whenever they faced the requirements of the time or wherever they saw different costumes in different places. Knowing the world of today is necessary for understanding the concept of each subject matter involved in each case of event. of ijtihad in Jafari School of jurisprudence is not closed so that Shiite jurists have all the times the right to freely scrutinize the views of their preceding jurists. at the time of holy Prophet of Islam would give the right of ownership to the reclaimer.An issue. for today people are many but godgiven endowments are limited and few. and place may have a crucial role in ijtihad. he should be familiar with the requirements of his time and environment. aims to manage the whole life of human beings from their birth to their death. We have some traditions in our collection of hadith dealt with by the jurists as suggesting the primary real rulings which would not change until the end of time. which could be very simple having some simple ruling in the past may be very complicated having some different ruling in the multifaceted social and political ties of today. even some times they cast doubts on them. Now after getting familiar with some secondary political rulings issued by the jurist as the hea d and governor of Islamic territory. Reclaiming a piece of land. This is called "jahat -o al-sudor" (i. are some instances of such political secondary rulings. Did a jurist try to manage the life of man of today. in Imam Khomeini's view. the jurists have come to know that such rulings are not the primary real ones.e. politics. yet it was not his own real view. do se not mean that we leave out the bright rulings of Islam for the new developments of the time. That holy Prophet (PBUH) prohibited water owners from preventing additional water to other people. thus. Jurisprudence. Time. but today it c an hardly be so. accordingly. can not preserve the former law for the latter case. . or economics. or he prevented posture owners form having their additional postures. though. but merely political secondary rulings to run the Islamic administration and manage the regulations among Muslim people. The way. for example. We. for example.The role of time in ijtihad Not only ought a jurist to know the resources of shar'at law but also to master how to apply the law to the cases in practice. Today private ownership and freedom have been made restricted for public rights and collective interests by some governments.
Such cooperation depends on welcoming and friendly negotiation among Muslim jurists. Another instance is playing chess which could be allowed. They . those endowed with Allah's knowledge preserve His secrets and keep open the springs of the knowledge to the people." (Nahj-o al-Balagha Sermon 212). today live everywhere throughout the world which multiplies the burden of ijtihad for the jurists to know the situations dominant in different regions. as well as time. of "Nafr" "" which authenticates ijtihad enjoins different Muslim societies to send some qualified people from among them to learn shai'at law (which we call it ijtihad) in order to let their people know shari'at law when the y go back to them. that in all such cases what has changed is not the Divine Law but rather the concept of the issues involved in the cases of events. Lots of fatwas were being issued when there was no Islamic government. This reveals the vital role of time in ijtihad and how Jurisprudence is frequently developing day by day.The role of place in ijtihad Place. Before the Islamic revolution of Iran. after the revolution however he changed his fatwa. The prohibition. and so on. such as the prohibition of maintaining Friday Prayer or the prohibition of performing Hudud (the fixed punishment for some g rave sins such as robbery. This enjoinment . It is noteworthy. nevertheless.It is perhaps the reason why in the views of majority of Ja'fari Shiite jurists. for example here. Imam Khomeini cast some doubts on the legitimacy of Friday Prayer during Major Occultation. There are many new cases of events that the jurist of thousand or hundred years ago is not qualified to issue a fatwa about. worth mentioning. They have friendly relations with one another. The verse. This can be done through continuous communication among the jurists of different countries. A jurist not acquainted with or did not live in the West is not qualified to issue the proper fatwas for the westerners. meet one another warmly and sincerely. and all as a result go satisfying their quest for knowledge.) some of which are based on the traditions of our Imams. people are not allowed to follow the fatwas of a dead jurist. however best he was at his time. nonetheless. Great jurists such as Imam Khomeini have for long longed for the cooperation and communication of the best jurists from one continent to another. however were few in the past. The Shiites. of each region had their own jurist to follow. if it were not considered by the experts as the means of gambling any more. As a matter of fact. he says. 6. does not apply to the concept of "chess" but rather to the concept of "means of gambling". share their knowledge with one another. or the government is secular or even antireligious. the practice of shari'at law in the Shiite territories which are bound to the Shiite ideology is different from those in which the Shiites are in m inority. adultery. has a decisive role in deducing shari'at law. The fact that some jurists wrote Jurisprudence for the Westerners suggests the role of place in ijtihad. Holy Imam Ali says: "B ehold.
successors much like predecessors have under the eyes of Allah the right and duty to be jurists. We suppose one jurist today makes a research on the meaning of "touching a woman" in the Qur'an. for each society has its own peculiarities. for example. ijtihad is what we need today the most. Having referred to another verse i. . O.is because the jurist of his society is familiar with the literature of his people and environment. It is then suggested to launch some scientific cooperation and sympathy between the Ja'fari and Sunni schools of jurisprudence. Imam Shafi'i held that touching a woman would negate Wudu (minor ablution). they have cultivated such a tree that can bear fruit at any time. This jurist thus comes to refute the fatwa and understanding of Imam Shafi'i. for it has a mechanism and dynamism to make Islam eternal and grant it such a flexibility to be alive in all circumstances. for he supposedly knows that Shafi'i's understanding of the term is incorrect. my brothers.The openness of the way of ijtihad Taking ijtihad to mean the "deduction of shari'at law from the religious resources". Ja'fari jurisprudence receives its legitimacy from the very Qur'an and the Prophetic traditions through the Imams of Ahl-u al-Beit (PBUT) who are respected by all Muslim as the offspring of the holy Prophet (PBUH). O. It is thus suggested that Ja'fari jurisprudence be taught along with other schools in different juridical centers. It would accordingly be haram (forbidden) for him to follow Imam Shafi'i's fatwa. " " (which suggests if you divorce your wife before sexual intercourse it is OK). to the verse:" ". more particularly when they draw contrary fatwas based on different understandings. How can he then dare to follow such an ill -founded and unsound fatwa? Referring. my brothers in I slam and Muslim scholars. he says that "touching a woman" in the terminology of the Qur'an means "to go to bed with her" rather than touching her hand finger et cetera which is an apparent meaning. 7. This is because one jurist by his own process of ijtihad and fatwa regards the contrary fatwa of another as incorre ct and ill-founded. He is not allowed to follow the fatwas of another jurist. It has since old times been said "truth is the fruit of discussion". Bringing two minds together is like the positive and negative wires when brought together to produce light. Muslim jurists with no exception have made unbearable ceaseless efforts to promote Islamic jurisprudence.e. and to be able to answer all of our questions in different situati ons of time and place. Every qualified jurist may deduce divine rulings from the book and the Sunnat and then follow them.
This is the case with other branches of knowledge. however. To respect the predecessors admiring their works is one thing. Due however to what is said "the present can see what the absent can not". in the first sight. may be proposed: . nonetheless.The role of modern developments in ijtihad Jurisprudence can undoubtedly not be indifferent to the constantly increasing modern developments which not only influence human life and progress of science. they. having respected the scientific efforts of their preceding. The following. What creates. preceding jurist and scholars are undeniably alive. Following a living jurist is more concordant with human nature. 8. which however does not imply to close universities of medicine making ourselves satisfied of the previous ideas in medicine. but to close the gateway of the mind and thinking. Muslim jurists are all the light of guidance towards eternal salvation and happiness. Ja'fari school of jurisprudence has the necessary dynamism and mechanism to develop and make developed. Within itself. but also the process of ijtihad. an alive jurist can be mindful of the requirements of the time and place. later scientists embark on contributing their own ideas to the whole human knowledge. the fruit of such a tree would be bitter and not sweet. anxiety is that jurists pr actice ijtihad without any established methodology. As Imam Ali (PBUH) said: " " (the learned survive as long as years revive). We are. Closing the way of ijtihad means to cl ose the gateway of the mind and thinking exterminating thoughts. nevertheless. are alive through their valuable works. use of the valuable heritage of the past. starting every thing anew. It is then suggested to follow the most knowledgeable pious jurists alive to guide you to the best way " ". i. making no contribution is another.e. later jurists are expected to improve jurisprudence by their own contribution about which there is no anxiety. Having made. for example. in such a way that if the dead jurist were alive he would change his fatwa due to the present situations. Early physicians. to see what factor exactly of ijtihad modern developments may have an influe nce on. which nonetheless does not imply we make no contribution satisfying ourselves of their effort. The process of the absolute ijtihad does not entail the rejection of the previous ideas and ideologies. have a very high position with the Almighty Lord.Dear brothers. rather than the dead ones. dead or alive.
artificial insemination. 4. 3. he might unwillingly give up many issues. has changed from simple national into complicated international one creating the ever greatest networks of the world economy.The methods of ijtihad. organ transplantation.The principles and rules of jurisprudence. Having recognized the conventional method of understanding the holy texts as standard. Imam Khomeini says: "Time and place are the two decisive factors in the process of ijtihad." ( Wilayat-u al-Faqih P. the method practiced by the preceding great jurists such as Sheikh Hasan al-Najafi. in Imam Khomeini's view. and lots of other findings of human modern knowledge which have transformed the life of today necessitate the jurists to ." Business. which constitutes the majority of religious doctrines and revelation. either. is the so -called "ijtihad Jawahiri" i. In this regard. seemingly. from he above. What then is left for modern developments to influence is number 1. rather than the concept of matters in a case. What can. in the world of today. 115) Modern developments. If a jurist wanted to insert scientific scr utiny [in the process of ijtihad]. That is to say. al-Halal wa al-Haram (the forbidden and the allowed by Allah) is and will remain the same u ntil the end of the time. exchange.The concept of matters involved in each case of event. 5. the author of Jawahir-u al-Kalam (the most comprehensive encyclopedia of Ja'fari jurisprudence). for no shari'at law can be said to be abrogated. The method of ijtihad. One thing. rather than the scientific analysis. electronic banking.The very shari'at laws. one thing [in the past] which apparently remains the same may in the profound understanding of political social or economic [of today] transform into another thing that naturally requires another rul ing. Stock market. 2. had some particular ruling which is apparently known the same thing [today] may have another new ruling in political social or ec onomic relations in one [modern] regime. and we follow the common sense [in the process of understanding]. in the past. Imam Khomeini adds: "The yardstick of understanding the verses of the Qur'an and apparent meaning of the words is public customs and common sense. complex political and economic relations with different countries all over the world.The resources of jurisprudence. not be accepted to change is number 2. Neither is number 5.1. can not have an effect on number 4.e.
and so on. the obligation of maintenance of social security. all such questions can be resolved in the light of such dynamic ijtihad. secondary titles such as. the preference of what is more important to what is less important when in a dilemma. the principle of alMaysur (how far some shari'at law is achievable). spiritual ownership. My especial thanks go to the Cultural House of the Islamic Republic of Iran that provided me with the trip and the chance to pay a visit to the jurists. the organization of government. organ donation and transplantation. election. Rules such as. prayer and fasting in the north or south poles and when traveling to the space. nor between faith and science. and the like. cloning.double their efforts to correctly know them in order to issue the proper and correct fatwa in each case so that people suppose no sort of inconsistency or conflict between tradition and modernity . as demanded by the hadith of Thaqalayn. dissection. May the Peace and Grace of Almighty Lord be with you all. performance of the rites of Hajj when it is overcrowded. and new questions in acts of worship such as. the principle of al -'Usr wa al-Haraj (strait and pinch). and hence harmonize Islam with the requirements of the time. newfangled issues in politics such as. Sayed Hasan Vahdati Shobeiry . Having known the concept of matters in the cases. it has been left no deadlock or vacuity of law in practice. Dr. where the administration is an Islamic one. scholars. By the grace of Ahl-u alBeit's guardianship. the obligation of the prerequisites of what is obligatory. The author ities given to the Muslim governor. As a matter of fact. the jurists can play t heir role as the driver of the engine of Islamic jurisprudence. legislative assembly. artificial insemination. we in the rich Ja'fari school of jurisprudence feel no v acuity of law. emergency and none-damage. modern democracy. in the process of their ijtihad. and scientists here. It is. for example. is one of such mechanisms for practicing Islamic law in order to run the affairs of the society. and the like are the mechanisms of ijtihad that help the jurists to resolve the abovementioned questions. suggested that Sunni jurists refer. newfound juridical is sues such as. we can only have a ch oice of one. electronic banking and trading. New medical issues such as. to the traditions narrated from Ahl-u al-Beit accessible not only to the Shiite but also to the entire Muslim community so that they come across no deadlock or vacuity of law any more in their future. I would like to show my appreciation to the audience and all those who managed to hold this scientific seminar. In the end and once more.
This means revelation is its pivotal dimension. in order to remain relevant to the human reality and avoid stagnation. Beyond the linguistic and technical/scientific (as in the science of usul al-fiqh) of ijtihad. we can conclude that if not for revelation there would be no Islamic civilization. It was necessary for revelation. emanating from an extra-historical transcendental source of a dissimilar nature. had to say its say.. to be concretized in history specifically after the demise of the Prophet (sawa) in theory for Sunnis and the occulta tion of the twelfth imam for Shi·ites. ijtihad is that intellectual spiritual activity that denotes the ongoing intimate relationship between revelation ( al-wahy) and reason or more precisely intellect (al-¶aql). that nurtured the Islamic civilization.The Political Dimension of Ijtihad in Muslim History . and external as it were to the human being. In a world that Islam. . Rather it was the constant dialectical engagement of Muslims with their lived reality on the one hand. Islamic civilization in one word is a civilization of revealed text. and their submission to and engagement of revelation on the other. as al-shahid al-Sadr said. alone contributed to the genesis and growth of the Islamic civilization. Ijtihad is the necessary and natural activity of the post-Prophetic Muslim community to keep revelation fresh and relevant in the world. A critical answer that goes beyond a simplistic yes or no must approach the question . That however does not mean that revelation. A question asked for a long time is: is the door of ijtihad closed? Some say yes while others (the majority) argue that it has never been closed.. In this manner ijtihad ensures that revelation recorded in the Qur·an and the Prophetic tradition is read anew evolving in continuity with its original sense and given added depth and breadth of meaning and usage i n human presence in the world. This understanding is expressed in not a few Qur·anic verses such as verse 109 of surah al-tawbah (Qur·an 9: verse ).
. The best of you is my generation then those who follow them. (Al-Bukhari) The first part of the hadith declare religiously authoritative the results of the activity of these first three generations. they will make vows and not carry them out. at least not as an intellectual and/or spiritual development but a conscious political endeavour to establish for the first three generations specifically the Companions an elite religious status and immunity for their legacy that was characterized by contradictions and interminable conflicts over power. which is both intelligent and natural as with any generation of Muslims. theory of knowledge. From the legal-practical angle it is almost a truism that the door to ijtihad is not closed and was never closed. In order to understand the Islamic cultur al legacy one must begin by deconstructing its epistemology and find how it has hitherto been in the grip of politics and the political authority. It was not Messianism at play. and obesity will appear. One just has to look at the fi elds of finance (ABSA. However from the philosophical angle it is a different question. Interpretation must take place within an epistemological paradigm that is far removed from politics (Mabruk. they will betray and not be entrusted. to unfortunately delve into a ¶sectarian· discussion not with the aim to be sectarian but that we can gauge its impact on ijtihad as human ability to shape their world. 2002: 77). The issue is illustrated in the following hadith. which is constantly reproduced in history . ¶Imran b. HSBC) and health (example. To show what I mean here I have. This is fundamental for the effective interpretation of revelation. which sees history as progressively deteriorating in order for a Messiah to come. organ transplant for bourgeois Muslims) today and you know that ijtihad is alive.e. What this means is that history is a progressively deteriorating reality in order for the Messiah to come. Some have described the part from: "then falsehood will become r ampant«" as a hopelessness that gave rise to "narrow religious" Messianism.Husayn said: I do not know whether the Nabi said after this [initial] word twice or thrice ² then after them [will come] people testifying whilst not asked to testify. kicking and well.from two angles: the firs t legal-practical and the second philosophical specifically the epistemological angle i.
al-shaykh al-Tusi's saying regarding. he is neither Sunni nor Shi·i. Idris al-Shafi is fundamental. specifically political. To understand the historical development of ijtihad in its political dimension the personality and role of Muhammad b. but he articulated a discourse of ijtihad that was in many ways radically different to the hitherto dominant mode of ijtihad. Hence my focus on ijtihad is on its political dimension i. He did not challenge the political authority with the aim to rise up and bring it down through revolutionary or rebellious action. However. Opposed to that discourse is the discourse of the Mu·tazilah and the Shi·a.. With tashayy·u here I mean the politico-religious notion on the leadership of the .. alongside the State. History is a move away from the ideal. More importantly in order to understand and critique these discourses the political element (that is the role of politics and the ruling political authorities) must be appreciated. One anecdote qualifies Sh fi>¥·s stay in Yemen to joining a Sh¥>ite rebellion hence al-Nad¥m in his Fihrist labels Sh fi>¥ as "shad¥d f¥ al-tashayyu> or strongly Sh¥>ite. For example. . he has certainly not escaped the Shi·i bogey. This is reflected in how he saw the authority of the Prophet vis -à-vis that of the dominant pattern of ijtihad when local doctrines and the opinions of individuals were equivalent to the Sunnah of the Prophet.There are many other sayings that indicate such an understanding of history. albeit weaker. I want to emphasize here that Shafi transcends Sunni-Shi·i polemics. . This notion is in essence that of the ¶Ash·ari (Ahl al-Sunnah) political-historical religious discourse in terms of how it views the past and the future. This discourse would enable the ¶ulama to create a separate space to function as independent authorities. its political head. the indoctrination of teachings of al-imamayn al-Baqirayn.e. Ibn Mas·ud said that: . It is not the content of what is known as the Shafi madhhab per se. sentimental (poetry) and ideological. ¶Umar was not only an individual. the imam in occultation: alghaybah minna wa ¶l lutf minhu. he was the leader of the Muslim community. or perhaps a result of. a methodology that will indicate to what degree his discourse was influenced. unlike the methodological. to the ahl ¶l bayt is indeed an enigmatic one. The former though is the dominant discourse. It is his methodology that is of fundamental importance. However what he did was to articulate a discourse of power for the scholars as the i ntellectual authority independent. Al-Shafi was of course not the first mujtahid. from a political perspective. from that of the political authority. It is my view that al-Shafi·is bayan scheme was in essence a project to check the political authority. His relationship. It was reportedly said that with ¶Umar·s death nine tenths of knowledge "died" with him.
is not a political manifesto and correctly so. that they must perform prayers«He has forbidden wine drinking « (2) And among it what he has confirmed in His Book and then explained it on the tongue of His Prophet such as the number of prayers« (3) Among them too. their use of istihsan and abandoning of qiyas. Al-Shafi stood between two extreme intellectual currents influenced by the politics of the ruling class of the day: the so-called traditionalist and rationalist schools. imposed the obligation to obey His Messenger [the Sunnah]. His discourse is thus a philosophical one that delineates the primary role of revelation and of the human being.Ahl al-Bayt and not the ritualised tashayy·u of the Safawid Empire marked by its paraphernalia of nomenclature. Shafi recognized that the human capacity to reason plays a positive role. . i. The totality of what God has made clear to His creation in His Book«are several: (1) Among them are those things which God has expressed in an explicit text like his general obligations. H e censures the abstract use of the intellect. The first is that God bestowed humankind with intellects wherewith they could distinguish between disparate things. and to carry out His rulings « (4) And also among them «which God has imposed on His creation«to seek them out by means of legal interpretation [ijtihad]. in His Book. u. regarded him an advocate of some fundamental traditionalist doctrines. Al-Shafi·s discourse though. Emphasis mine (Shafi. then they hav e carried out what is incumbent on them (Shafi. in turn. that describes the jurist·s mental process in hard cases where there is no explicit text ruling (Lowry. that is. wilayah in the adhan etc. 1979: 501-503). The traditionalists thought him to be involved with the rationalists and accused him of Mu>tazilite tendencies. The rationalists. u. and what is reasonable (Lowry.describing his solutions as follows: the one which is most obvious intelligible and what he considered to most closely resemble the policy of God·s Book. Shafi refers to the intellect pejoratively when he uses the phrase ahl·l ¶uqul. God has. 1979: 21-22). popularised cursing. by means of istihsan but endorses istidlal. as outlined in his al-Risalah. By this he means those group of people (scholars) who refuse to tie legal i nterpretation to revelation.d: 417-423).d: 419 -420). in a world where the political authority is brutal it is best to speak in any but direct political agitation. things for which God·s Messenger has provided a Sunnah and in respect of which God has no explicit rule. In two instances. Two passages from the Risalah demonstrate the point. The second if scholars seek answers through ijtihad using their intellects after seeking assistance from God. It is clear that Sh fi>¥ is not against the intellect or rationalism per se.e. he identifies solutions to problems as reasonable ² not based on text . Rather he is against the unregulated and arbitrary usage of opinion in legal interpretation. to wit.
intellectual or of any other form. Ladin and like) to Afghanistan to oppose Soviet atheism. And therefore the Risalah deals with the critical question of obedience in order to establish to whom it is due. worse than that is his claim that G -d called him to mount Sinai to tell him to do so. Recently in Egypt the jam·ayyah shar·ayyah reasoned that if Hosni Mubarak appoints his son to succeed him as ruler of Egypt then someone better than him did likewise. namely Mu·awiyah when he appointed his son Yazid. Sadly the history of Islam reveals the opposite.e. albeit indirectly. obedience and legitimacy (al-Saghir. makes law i. a person in authority. how they are understood and employed especially by those in authority like rulers. who would lead the German people but a delinquent racist Adolf Hitler. tragedy of the Muslim world today: political despotism. Yes there can be no law without authority i. not only. where the individual means nothing. who advocated peace with the usurping Zionists sent soldiers (the young. the power of the political authority. It reminds one of a dictum coined by one of the political despots that ruled the Muslim world ² and by now a hadith ² that G-d restrains through the ruler what He does not (for some cannot or will not) restrain through the Qur·an. neither content nor even reasonableness can be said to provide the binding force behind law. Thus if law ² and law is indispensable to human society even as a necessary nuisance ² is to guarantee a happy and just human society and nature than we must properly demarcate the relationship between law and the authority. . Once obedience as an abstract notion has been delineated within the bayan matrix of the Qur·an and the Prophetic Sunnah it then fundamentally covered and qualified authority whether political.e. not the truth. the political power of the rulers that makes a law must be engaged and challenged. His crime was not only that he sold out to the Zionists.Shafi was anti-rational only in proportion to a living tradition that was fraught with contradictions and manipulated so easily by the political authority. Despotic rule. scholars.e. The same al-Sadat. comes to power through the sword has become the legitimate Caliph and is to be addressed as the Commander of the Faithful. Egypt and Libya are republic s and not monarchies! This is the main. This reality is not without its intellectual rather rational discourse. Shafi is unequivocal that it is due only to God and His Prophet. 1994: 157-183). good or corrupt. Hence he is at pains to elucidate concepts such as command. it is not the knowledge of the scholars but political authority i. This is al-Shafi·s bayan scheme. However it is law that g rants authority. stupidly devout and naive Usama B. Look at the example of Anwar al-Sadat so-called man of peace who called himself al-ra·is al-mu·min. fathers and men. In short he sought to curb. We know the disaster that Na zism brought the world: killing of six million Jews. It is this distorted notion of the relationship between law and the authority that led great German intellectuals such as Heidegger and Schmitt to declare that the will of the fuehrer Hitler was the will of the German volk! It was not the German intellectuals.e. Thomas Hobbs· dictum that authority. almost two million Gypsies (54 million people overall). We have gods not men ruling us. îanbal say that whoever. Law in Islam is contained in the Qur·an and the sunnah and it is only when the people in authority receive their authority from the law that they are legitimate and must be obeyed. has become the definitive reality of Muslim political exercise. Did not Aúmad b. A primary concern of Shafi was rectification of concepts i. all to prove the myth of a superior Arian people. Hafiz al-Asad of course already did so and we hear that alQadhdhafi is planning the same for his son. brilliant as they were. it matters not that Syria.
however he was only human and not ma·sum. despite my critique. made a great contribution to Islamic revival in the contemporary period cannot be doubted. Today when we speak of Islamic thought and the Islamic movement two names dominate: that of Abu ¶l ¶Ala al -Mawdudi and al-shahid Sayyid Qutb. of them. There is a dire need for a renewed reading of these two important Sunni and Shi·i scholars. that came at the expense of other. 1902) and Muhammad Husayn al-Na·ini (d. Imam was the embodiment of a tradition: of piety and intellectual exertion. Muslim thinkers such as al-Kawakibi and al-Na·ini. Suffice it to look at the order in which he arranged the topics in his arba·in ahadith to gauge this piety or connection to G-d and intellectual ability. This reality has been entrenched by both Muslims and Western scholars. Indeed the 20th century has not seen his like. Al -Na·ini. and academic-political such as al-Na·ini ² and of course earlier Shi·i scholars. In a more immediate sense there were personalities of the contemporary era that is the last two hundred years that left their mark on him in three distinct ways although he transcended them and indeed was greater in achievement. Written in 1971 as a evolution on his political theory outlined in his 1944 Kashf al-Asrar wherein he accepted the idea of a constitutional monarchy (as articulated by al-shaykh al-Ansari) provided the shari·ah and public welfare of the ummah were guaranteed in alHukumah he is a clear as he is emphatic: the state can only be administered by the fuqaha. It combined between theory and action or the Marxist concept of praxis. Their discourse was not always overtly political (as with al -Shafi) given the harsh reality for as one of them said ( ² intellectual taqiyah). Two names here stand out: that of ¶Abd al-Rahman al-Kawakibi (d. Guided by the Qur·anic principle arising from the verse: .The twentieth century has seen refreshing ijtihad by Muslim scholars on the question of the dignity and freedom that the Muslim ummah have been deprived by our homegrown despots and European imperialism. albeit in its negative formulation that is despotism and enslavement. obscured. However it was in the 20th century that we saw the fruition of hundreds of years of intellectual jihad and sacrifice in the victory of the Great Peoples Islamic revolution in Iran led b y the revolutionary mujtahid al-Imam Ruh-A«. That these two seminal figures. purely political such as Jamal ¶Abd al-Nasir of Egypt. alKhomeini. However. a careful reading reveals its political concerns and implications. democracy. The title says much: al -Na·ini was saying that Islam must be rid from political dictatorship and therefore the necessity to alert ( tanbih) the ummah.1936). between the search for the natures of despotism and the search between the liberation from enslavement. Here too we must have a careful re-reading of imam·s revolutionary al-Hukumah al-Islamiyyah. Al-Kawakibi wrote his Taba·i al-Istibdad wa Masar·i al -Isti·bad geared directly to the topic of freedom. However. at times severe. The impact (not necessarily the shaping of his ideas) of these personalities was either purely academic-intellectual such as al-shaykh Murtada al-Ansari. a champion of the Constitutional movement in Iran that culminated into the constitutional revolution in 1909 wrote Tanzih al-Millah wa Tanbih al-Ummah wherein the notions despotism and democracy were central themes.
However. My contention is not that these are correct. sincere and patriotic Marxists and Liberals. Of social-economic issues: gender concerns.) caught up & lost in their heads. I certainly believe in the State administered by the faqih with its mistakes and at times excesses as the best form of government. There are issues we can criti cally engage him. Christian. The history of the authority caused this intellect to be almost completely obedient to government authority in the absolute sense whilst the authority of history ² on this intellect ² has bequeathed it a semi-complete submission ² uncritically so .( ) we must transcend him too. hence the need for the jurist. The racist KKK use to quote the sages David Hume & Emmanuel Kant both racists to substantiate their nasty views on Black people. The impact of Greek thought is clear. they are unable to run their own affairs. political and social issues that need constant intellectual articulation. Ahadith such a woman being defective in her intellect and her din must be confronted. My point is not that we reject the authority of the faqih (Plato had long rejected democracy and certainly liberal democracy had not created the happy society it promised. Of the political issues the following: What is the role of Muslims in who their leader is? To what extent and how can the citizens over whom the jurist exercise authority express their opinion even where it differs from that of the jurist and can their opinion can become binding on him? What is the position and role of opposition especially those who differ from the faqih? Here I think of people such as ¶Abd al-Karim Sorush. unless we consider magic a primitive form of religion. In this regard there is a need to critically read our legacy on women. Hegel said Africa has no history and no religion. just look at South Africa today with its most liberal and most progressive constitution in the world). Some Muslim philosophers held the view that women were created as animals. 1998: 8). Others again believed the only difference between Black people and animals is that Bla ck people walk upright. etc. (Yasin. Jewish. however th ey can certainly not be dismissed simply because they do not subscribe to wilayah al-faqih. feminist groups and ¶ulama with their differing religious political and social discourses. For example imam equated the authority of the jurist (which the shar· invested him with) over the people to that of a qiyam over children in that people are like children (except from a quantitative angle). I wonder what they would have said had he seen penguins. Greek. There are many issues that the imam could not address or sufficiently so. if we do not engage it constantly and critically we run the risk of the ever lurking danger of despotism hovering over our heads. as well. . We must remember that as ¶Abd al-Jawad Yasin says: The political authority has influentially performed a great deal in history whilst history impacted on the intellect directly and indirectly which resulted in the perpetual subjection of the Muslim intellect to both the [political] authority (by virtue of its history) and history (through its authority). Rather I think engaging them. But this seems to be a problem with many philosophers and mystics (Muslim. women becoming judges and mujtahidat and other roles of public duty ² equality beyond the spiritual sphere and that of the soul to the social mundane sphere.to the past in its absolute signification. listening to them will only enrich the very theory and practice of wilayah al-faqih.
on the other hand. an ethically based sociopolitical order under G -d that is according to the principle that moral values cannot be made and unmade by man at his own whim and desires. evictions. However the classical fiqhi rulings on the matter are simply in need of fresh ijtihad. As Fazul Rahman contends the Prophet nurtured a deep God consciousness aimed at establishing essential human egalitarianism and the central concern of the Qur·an is the conduct of humankind on this earth. I am of course not saying that illicit sexual relationships are ok.Phenomena such as children born out of wedlock in light of Qur·an and Sunnah (not fiqh even fiqh become sunnah) on the one hand and disciplines such as history. IJTIHAD AND ITS SIGNIFICANCE FOR ISLAMIC LEGAL INTERPRETATION* . For example. Our philosophy today must be that of imkan. etc. we are moving closer towards the ideal. in the case of South Africa given the spiritual and social ravage of apartheid (the migrant labour system. sociology. Today·s generation is better (potentially so) than that of yesterday. etc.) a classical fatwa on the child born out of wedlock can simply not be issued. anthropology. poverty.
a glossary of words is here provided at the outset in order to facilitate understanding and ease of comprehension by the non-Muslim reader or the reader unfamiliar with these words or terms. Glossary The Arabic word is supplied first followed by a translation (and explanation if required).=1 Introduction There are both primary and secondary (or subsidiary) sources of Islamic law or Shari=ah . Since a number of Arabic words or terms are used during the course of this article.Nazeem MI Goolam** Associate Professor Department of Jurisprudence University of South Africa >Ask the people who are learned if you do not know. .
Allah God ahadith plural of hadith adl denotes justice and fairness. a synonym for qist a=immah leaders . pl of imam aql intellect ayah verse ayat (pl of ayah) verses AH After Hijra. that is after the migration of the Prophet from Makkah to Medina. The Islamic calendar begins with this event in 622 AD. essentials deen the religion of Islam. darurat necessities. the way of life of Islam dunya earth faqih jurist .
istihsan equity istishab presumption of continuity istislah public interest jihad Although the word >jihad= does not appear in the article it is important . Ijtihad forms the core of human reason). A synonym for qiyas.fuqaha (pl of faqih) jurists hadith a written account of a saying or teaching of the Prophet Muhammad (peace be upon him) hajat needs imam leader (of a community). Ijtihad should not be confused with >jihad=. pl is a=immah ijma consensus (of reputable jurists on a particular matter) ijtihad personal reasoning ( the sources of Islamic law are Divine Revelation and human reason.
mujtahideen pl of mujtahid . thus maqasid al-shari=ah refers to the objectives or purposes of Islamic law manfa=ah benefit mujtahid one who is capable of exertion and creativity in legal thinking. fairness. injury mal wealth maqasid objective/ purpose. one who engages in ijtihad.to distinguish it from ijtihad. The word >maaruf= is used on at least twelve occasions in the Qur=an in the context of the law of divorce madarrah harm. strive or exert oneself in the path of Allah. maaruf kindness. Jihad means to struggle. Warfare is know as the lesser jihad while the struggle to improve oneself is known as the greater jihad. goodness.
ra=y personal opinion Shari=ah Islamic law Sunnah the sayings. a synonym for adl qiyas reasoning by analogy. teachings and examples set by the Prophet during his lifetime tahsinat ease or facility taqlid imitation (of previous scholars). a synonym for ijtihad.nafs literally meaning >the self=. thus denotes lack of creativity urf custom . it refers to life nasl progeny qist justice. in the context of law.
the Sunnah may be applied in the following three w ays: (i) it may confirm and corroborate a ruling of the Qur=an. 3 The Sunnah refers to the body of the teachings.7 (b) Secondary sources . however.5 When the Prophet was alive he would respond to the queries of his followers. traditions and examples set by the Prophet Muhammad ( peace be upon him)4. The Qur=an is not in itself a legal text. while the secondary or subsidiary sources are ijma and qiyas. fairness and equity (maa=ruf ). as they were gradually collected and recorded.(a) Primary sources The two primary sources are the Qur=an and the Sunnah. by future generations. and (iii) it may comment or rule on a matter on which the Qur=an is silent. On the death of the Prophet the Sunnah was first transmitted orally and later through written accounts which were based on earlier narration. Sunnah means a manner of acting or a rule of conduct. sing ayah) are of a legal nature. the Qur=an declares: Give full measure when you measure And weigh with a balance that is straight. His words and deeds were remembered and observed not only during his time but also. These written accounts ( also known as the ahadith 6 ) have been compiled in six authentic collections. In fact. For example. As a source of law. Literally speaking.2 The true significance of the Qur=an. is its emphasis on an ethic of justice (adl). (ii) it may explain or clarify a verse of the Qur=an. as regards commercial integrity. sayings. only about 80 of the approximately 6000 verses ( ayat. adjudicate their disputes and pronounce rulings.
A mujtahid is thus a person capable of exertion and creativity in legal thought. In the words of Moosa: They are really instruments or subsidiary sources or legal techniques for resolving specific legal issues. such authority is founded upon the distrust of individual opinion and the saying of the Prophet that >my followers/community will not agree unanimously in error=. hence consensus.13 Since it involves personal reasoning it is. 9 Ijma literally means >getting together=.11 Although one finds no Qur=anic text on the authority of ijma. values and principles of the Qur=an and the Sunnah. to derive an appropriate rule by analogy and logical inference. like ijma. Thus the need for the development of secondary or subsidiary sources of law. The two main secondary sources of the Shari=ah are ijma (consensus) and qiyas ( analogical reasoning ). . a form of ijtihad. ijma plays an important role in that it provides forthe development of the law to meet the needs of changing conditions and circumstances.With the passage of time. in particular new problems which had arisen. Where both the primary sources as well as ijma fail to provide a solution to a particular legal problem jurists must strive. Qiyas means reasoning by analogy. through reasoning and deep study. in essence. They were designed and introduced by human endeavour to provide legislative guidance and solutions to new problems which are not directly available from the Qur=an and Sunna[h]. it became necessary to make rulings by human endeavour8 or the application of human reason.12 An obvious limitation on the authority of ijma is that it must not be in conflict with the rules. Such resort to personal reasoning is called ijtihad and the jurist or scholar is referred to as a mujtahid . Viewed from the standpoint of justice and equity. has provided and will continue to provide Islamic law with a means of adapting to the changing needs and conditions of a developing world. It signifies the unanimous convergence of the views of reputable jurists ( fuqaha10 ) of a given era on any point of law. Ijtihad. when it was found that neither the Qur=an or the Sunnah had ruled on a particular matter.
while the approach of the Ahl al-Ra=y may be seen as contextual interpretation or .15 The secondary or subsidiary sources may be termed human reason. Discussing the interplay of Revelation and reason. strictly speaking. Both the terms ijtihad and ra=y were used by Mu=ad. The Qur=an explains: Nor does he say anything of his own desire It is no less than Inspiration sent down to him He was taught by One Mighty in Power. the former engaged in personal opinion. the approach of the Ahl al-Hadith may be regarded as the literal interpretation. At the outset. Revelation the Qur=an states that whatever the Prophet said was Divinely Inspired. may be termed Divine Revelation. While the latter relied on the ahadith or Sunnah of the Prophet (pbuh). by reference to the general principles of Sharia=h and the best interests of society. namely the Qur=an and the Sunnah.The primary sources of the Sharia=h. Kamali states that if the revealed law is silent on a certain matter reason may determine.17 The Arabic expression used by Mu=ad ibn Jabal when he told the Prophet that he would exercise his own opinion was >ajtahidu ra=yi=. Although the Sunnah or ahadith14 are not. that a certain law exists concerning the matter. textual interpretation or strict interpretation approach. In essence.16 A brief exposition of the theories of interpretation in Islamic law The history of the theories of Islamic law is founded on the debate between the Ahl al-Ra=y and the Ahl al-Hadith. Islamic law is thus a combination of Revelation and reason. however. especially when ju rists realise that the Shari=ah cannot remain indifferent concerning the matter. particularly its significance for Islamic legal interpretation. it must be made abundantly manifest that one cannot understand ijtihad without being aware of the various theories of legal interpretation in Islam and the approach to legal interpretation by each of the four great schools of thought. which this article focuses upon. It is on the concept of ijtihad (personal reasoning). Human reason thus becomes a proof and source of Shari=ah and an important tool in the process of interpretation.18 In short.
This theory was taken to full fruition by the great Maliki scholar from Andalusia.20 Therefore. on the one hand. It should be borne in mind that literalist tendencies in Islamic legal theory were based on a desire to discover the true intention of the Lawgiver and to deviate as little as possible from the original text. He divided the purposes (maqasid) of the law into dini ( purposes of the Hereafter) and dunyawi ( purposes pertaining to the world). would be regarded as a source weaker than the Sunnah. . the debate between the Ahl al-Ra=y and the Ahl al-Hadith may also be regarded as a debate between. creative. as such. which means that the Sunnah is the decisive authority for determining the meaning of the text of the Qur=an.or strict interpretation of statutes ( or texts ) and.21 Al-Ghazali=s theory of interpretation advocates reasoning based on the general principles of the Shari=ah. The companion=s opinion would be regarded as analogy (qiyas) and. the latter would be given preference. the literal. if the opinion of a companion of the Prophet (pbuh) concerning a verse of the Qur=an differed from the explanation of that verse in the Sunnah. He initiated the theory of purposive interpretation which was based on the maqasid al-shari=ah ( the objectives of the Shari=ah). Each of these purposes may be viewed as securing a benefit (manfa=ah) or repelling a harm (madarrah). Viewed differently. His primary contribution in this respect was that the Sunnah governs the meaning of the Qur=an.or purposive interpretation. on the other hand.purposive interpretation. Al -Shatibi. Most prominent in this respect was Al -Ghazali. (b) Purposive/contextual interpretation By the fifth century of the Islamic era Al -Shafi=i=s theory of strict interpretation began to be extended so as to yield a more flexible approach to interpretation. Such general principles should be consistent with the purposes and the moral foundations of the Shari=ah.19 (a) Strict/literal interpretation Perhaps the most strict proponent of the literal theory of interpretation was Imam Al -Shafi=i. This is couched in the proposition: al-sunnah qadiyah >ala al-Qur=an.
hardship or injury. First. Since securing or acquiring a benefit and repelling harm represent human goals. It would be appropriate to begin by examining briefly the various theories of interpretation. progeny or lineage and wealth or property. Having briefly looked at the theories of legal interpretation in Islam23 and before beginning the examination of ijtihad it would be relevant to compare and contrast the approach to the interpretation of statutes in Western law in general and in South Africa in particular. Ultimately. . a judge may have recourse to three interpretive tools when deciding case. intellect. the maqasid should essentially either secure a benefit or repel harm. Additional purposes are termed needs (hajat) while the tool of ease and facility ( tahsinat or tawassu wa taysir) may also be employed in achieving the purpose of the law. needs to policy and ease and facility to morality or moral norms. the ultimate aim is the welfare of human beings through the attainment of these goals. These five purposes are regarded as necessities or essentials ( darurat). the five primary and fundamental purposes of the Shari=ah are religion. Al-Ghazali divided worldly purposes into into four typees: (i) the preservation of nafs (life). secondly the hajat and finally. One may well view necessities as equivalent to principle. life. the tahsinat. (ii) the preservation of nasl (progeny). (iii) the preservation of aql (intellect) and (iv) the preservation of mal (wealth).22 While the dini purpose is to secure the din or religion of Islam.Thus. This third level is the level of the ethical and moral values of Islam. If one looks at Al-Ghazali=s theory of purposive interpretation. the darurat. for Al-Ghazali.
unreasonable. inconsistent with other provisions of the statute or repugnant to the general object.Theories of interpretation in South African law Devenish lists. while ambiguity permits an examination of the historical motivation for the statute from which the purpose of the legislation can be inferred and the words read in the light of that purpose. (ii) subjective or intention theory.27 In essence.24 (i) literal theory In terms of this theory words should be given their or dinary and grammatical meaning or natural and ordinary meaning as the first step in the process of intepretation. (iv) teleological or value -coherent theory. the following theories of interpretation: (i) literal theory. In the words of Devenish: The essence of the literal theory is therefore that it is premised . inter alia. This primary rule may only be deviated from in exceptional and definitive circumstan ces. (iii) purposive theory. tenor or policy of the statute26. namely to avoid absurdity and to resolve ambiguity. Absurdity implies that the application of the literal theory would lead to a result which is unjust. this is nothing but a tempering of the literal theory by the purposive theory.25 This is regarded as the primary rule in interpretation.
Thus in all other cases where the language is clear.28 In a word one may thus say that. the text is of paramount importance. that >[t]he need for justice and equity is only met in instances where inaccurate or ambiguous language obscures the otherwise manifest intention of the legislature=.29 Some 80 years ago a South African court held that the governing rule of interpretation is to endeavour to ascert ain the intention of the lawmaker from a study of the provisions of the enactment in question and there is no doubt that the literal grammatical meaning of the word must give way to that rule. and ideas and thought. on the one hand. the courts have no choice or discretion. according to Du Plessis. This means. (ii) subjective or intention theory This theory is based on the distinction between lang uage. however harsh the result of literal interpretation may be. as far as the literal theory is concerned. on the other. Thus the concept of the >intention of the legislature= is central to this theory.30 (iii) purposive theory .on the autonomy of the written text.
Devenish states that the >mischief rule. the avoidance of absurdity and the resolution of ambiguity when applying the literal theory is nothing but a tempering of the literal theory by the purposive theory. applied as part of the literal methodology. Indeed. He writes: The literal theory of interpretation restricts the sources of interpretation to the text and only in the event of absurdity or ambiguity may internal and external sources be consulted. In a word one may thus say that. the context is of paramount importance.As explained above. the learned author adds that the overwhelming weight of authority in Roman-Dutch law favours the anti-literalist approach and a purposive methodology in the interpretation of statutes. The teleological approach allows certain jurisprudential and moral issues to be weighed up in the formulation and . is a manife station of a qualified purposive approach. since it can be applied only when there is ambiguity=. as far as the purposive theory is concerned.31 With reference to Cowen=s well -known article32 written in 1976. whereas the purposive approach permits an immediate examination of both internal and external sources. (iv) teleological or value-coherent theory Devenish explains this theory by comparing it to the literal theory and the purposive theory.
One of the leading proponents of this approach during the apartheid years was John Dugard.creation of the intention. the modification of language. The essence of extensive interpretation is that the spirit of the law is more important than its letter. . cessat et ipsa lex and eiusdem generis.. similarly. In such situations various techniques may be used to extend the meaning of words. Two well-known techniques used to interpret restrictively are cessante ratione legis. so too in all legal systems the relevance of the context in the process of legislative interpretation is of the utmost importance. so too the purposive theory is aimed at ascertaining the objective or purpose of the legislation in question. Often words taken at face value do not convey the complete and precise objective of the provision or statute in question or do not convey the intention of the legislature. These include interpretation by analogy36.of the legislature.34 He advocated a value-oriented method of interpretation and the adoption of a realist -cum-value oriented approach to the judicial process. The literal theory is no different to the literal or strict approach to Islamic le gal interpretation while the purposive theory is. General words in a statute may thus be modified and restricted through reasonable interpretation.35 The technique of restrictive interpretation may be justified so as to bring words into line with the purpose of a statute and to harm onise the meaning of a provision with the common law. Restrictive and extensive interpretation Just as in Islamic law..33 Teleological interpretation has an ethical dimension and is thus a wider and more encompassing approach than the purposive approach. interpretation by implication and. more generally. Just as the purposive approach in Islamic law is aimed at discovering the objectives or purpo ses of the Shari=ah or the maqasid al-shari=ah. The former means that if the reason for the law falls away the law itself falls away while the latter is a device that can be used to restrict the meaning of general words by reference to specific words used in the same provision or statute. The tools of restrictive and extensive interpretation thus play an important role in the overall process of interpretation. no different to the purposive or contextual approach to Islamic legal interpretation discussed above.
this tool of construction finds its place in the purposive and teleological or value -coherent theories of interpretation.Dutch authority Johannes Voet called for interpretation by analogy on grounds of equity and fairness. In this sense.37 There is.38 The meaning and foundations of ijtihad (personal reasoning) Kamali states that after the Qur=an and the Sunnah39. no fundamental difference between these two techniques. ijtihad continues to be the main instrument of interpreting the [D]ivine . in essence. fairness and equity. The learned author writes: The main difference between ijtihad and the revealed sources of the Shari=ah lies in the fact that ijtihad is a continuous process of development whereas [D]ivine [R]evelation and Prophetic legislation discontinued upon the demise of the Prophet. The implication should ordinarily flow from the other sections of the statute and it should be reasonable and necessary. In essence. while the Roman jurist Celsus stated that ius est ars boni et aequi ( law is the art of the good and the fair). ijtihad is the most important source of Islamic law. namely Roman law.The great Roman . At its most basic and fundamental level there is a very significant common thread in the philosophy of interpretation in the Shari=ah and the foundations of South African law. Where statutory provisions are not enacted in express words they may be implied. The purpose of the Shari=ah is the attainment of justice.
Al-Ghazali. salvation and truth. effort. According to Kamali. a number of scholars have provided definitions of the term ijtihad. Al-Amidi and Al-Shirazi. trouble or pain. meaning exertion. its propriety is measured by its harmony with the Qur=an and the Sunnah.total expenditure of effort in the search for an opinion as to any legal rule in such a manner that the individual experiences an inability to expend further effort. juristic preference (istihsan) and considerations of public interest (maslahah). all represent different forms of ijtihad.message and relating it to the changing conditions of the Muslim community in its aspirations to attain justice. power or strength in a correct and righteous manner. Al-juhd denotes exercising one=s capacity. the secondary sources of Islamic law.43 . namely consensus of opinion (ijma) . ijtihad is the exertion to the utmost and the full exercise of one=s capacity in arriving at a legal value. the word >ijtihad= emanates from the root word al-juhd.42 While Abu Ishaq Al-Shirazi defined ijtihad as follows: In the language of the jurists.40 Kamali adds that because ijtihad derives its authority from Divine Revelation. He argues that the >essential unity of the Shari=ah lies in the degree of harmony that is achieved between [R]evelation and reason=41 and that ijtihad is the principal instrument of maintaining this harmony. These include.. inter alia. analogy (qiyas). ability.. Saif al-Din Al-Amidi defined ijtihad as the: . Linguistically speaking. Technically or legally speaking.
In allowing his companions to practise ijtihad he was.The legal foundations of ijtihad are founded on the well-known hadith44 concerning Mu=ad ibn Jabal. IJTIHAD THROUGH THE AGES Ijtihad by the Companions of the Prophet The Prophet Muhammad (pbuh). Before looking at these theories of legal interpr etation and the manner in which these theories were applied in the four great schools of thought. The Prophet exhorted people to exercise ijtihad when necessary and at the same time exonerated the mujtahid from sin or wrong if he erred in the process. but also in the practical application of those laws. At this the Prophet expressed his pleasure. The Prophet c onsistently endeavoured to make the companions self-sufficient in the legal tools necessary to sole problems that would confront them after his demise. The Prophet then asked him what he would do if there was no authority in the Qur=an. It was the responsiblity of the Prophet to ensure that he left behind a group of companions who were well-versed. Such person would be able to apply the Shari=ah in a diverse geographical and cultural situation and this would demonstrate the ability of the Shari=ah to be a living law. who was the last of God=s Messengers on earth. Mitha argues that the act of sending a scholar such as Mu=ad ibn Jabal to Yemen indicates that the spread of Islam necessitated a mufti or mujtahid i n different areas. delivered the Divine Message and part and parcel of his mission was to ensure the stability and continuity of that message. Mu=ad responded by saying that he would make a judgment in accordance with the Sunnah of the Prophet (pbuh). not only in the memorisation of the Qur=an and the implementation of his Sunnah. When the Prophet Muhammad (peace be upon him45) asked him what he would do if a problem is presented to him. it is appropriate to begin by examining ijtihad through the ages.46 Since ijtihad derives its authority from Divine Revelation and since its propriety is measured by its harmony with the Quran and the Sunnah. the mujtahid must apply his/her mind in the context of the various theories of and approaches to legal interpretation in Islam. in fact. If the Prophet had failed to teach his companions the rules of ijithad it would have . When the Prophet asked him what he would do if he found no authority in the sunnah Mu=ad ibn Jabal replied that he would exercise his opinion and spare no effort in so doing. testing their methodologies in the application of the principles of the Shari=ah and also testing their intellectual acumen in solving novel problems. Mu=ad ibn Jabal replied that he would judge by what is contained in the Qur=an. thus indicating the position and status of the mujtahid in Islam. beginning with the manner in which the companions of the Prophet Muhammad (pbuh) practised ijtihad .
endorsing the opinion of Umar : . in terms of the following Qur=anic verse. God will not forgive them.it is important to examine a few of his decisions in this regard. for even] if thou wert to pray seventy times that they be forgiven. Because Umar made a particularly outstanding contribution to ijtihad .Whether thou dost pray unto God that they be forgiven or dost not pray for them . The ijtihad of Umar During the time of the Prophet.resulted in a static legal system. Umar=s ijtihad led him to abstain from performing the burial (janazah) prayer on a hypocrite.48 After the Prophet performed the prayer the following verse was revealed. Thus. Only ijtihad could ensure the eternal universality of the Shari=ah... If they found no authority in either they would employ their utmost intellectual powers in the formulation of a legal value ( hukm) which would be in harmony with the Qur=an and the Sunnah.. he was entitled to choose between two options: . devoid of freedom of thought and action. The Prophet replied that.[ it will be all the same. they would first consult the Qur=an and thereafter they would refer to the Sunnah. they also developed their own individual methodology in the application of ijtihad. When the Prophet wanted to peform such prayer Umar said >Did Allah not prohibit from praying on these hypocrites=. The general methodology of ijtihad of the companions was the approach adopted by Mu=ad ibn Jabal.particularly in the light of his emphasis on the spirit of the law rather than its letter . in other words they exercised their own ijtihad.. 47 Over and above the general methodology of the ijtihad of the companions.
. Umar suspended the punishment for theft during a year in which famine prevailed in Madina. to punish these men. and (ii) secondly. his suspension of the punishment for theft during the year of the famine.. In Umar=s view. who had allegedly stolen meat during this period. and never shalt thou stand by his grave. who stole out of necessity. He refused to amputate the hands of two men. would amount to a violation of the spirit of the .. on grounds of the famine as well the hunger suffered by the men.49 As far as the ijtihad of Umar during his own reign is concerned two instances are selected here: (i) first.50 While the Prophet (pbuh) applied this law strictly.And never shalt thou pray over any of them that has died. the imposition of the death penalty for all who conspire in the crime of murder. (i) The Qur=an states that the punishment for a thief is the cutting off of the hand and that this is a deterrent ordained by God. In reaching his decision Umar relied on the spirit and the general import of the Qur=anic teaching that necessity may serve as a justification ground for wrongdoing.
51 Just retribution is thus expressly mentioned for the case of murder. a nose for a nose. a tooth for a tooth and a wound for a wound. He argued that if all the inhabitants of San=a52 had participated in it he would have had them all put to death. an ear for an ear. . they acted with a common purpose and therefore they should all b e treated equally. Umar once commented on a murder that had occurred in Yemen. (ii) The Qur=an declares: And we ordained for them therein [Torah] A life for life.Qur=anic legislation. namely equality. and eye for an eye. However. The principle of just retribution means that the life of the murderer shall be taken as just recompense for the life of the victim. If the verse calling for >a life for a life= was strictly or literally interpreted then the punishment of only one member of the gang would be sufficient to satisfy the requirement and this would amount to unequal treatment of the perpet rators. what happens where more than one person kills another? In this regard. In his view. But if anyone remits the retaliation by way of charity.. it is an act of atonement for himself. Alternatively.53 Does this ruling of Umar violate the Qur=anic ruling of a life for a life? Umar=s approach was based on a basic principle underlying the Shari=ah. all the accomplices had the intention to commit murder..
His decision has been interpreted to be in the interest of the community ( maslahah) and the closing of a lacuna in the law ( sadd al-dhara=i). in the light of changing social conditions. of arriving at the truth. this should be done. par excellence. Umar realised fully that ijtihad would differ from age to age and from place to place. They regarded the Qur=an and the Sunnah as totally binding and did not deviate from the injunctions of these two sources. where it is necessary.upon a strict and literal interpretation of the ruling the equal treatment of all the perpetrators could well result in the entire group escaping liability. developing the intellect and broadening the understanding of the objectives of the Shari=ah. Thus .54 These two instances of ijtihad on the part of Umar give us a basic insight into his approach to legal interpretation. they always took into consideration the welfare of the people within the parameters of the objectives of the Shari=ah. Fundamentally. The companions also made constant reference to the principle of sadd al-dhara=i.56 The four schools of thought in Islam (1) Imam Malik . Sadd al-dhara=i implies preventing the means to an expected end which is likely to materialise if the means towards it is not also prevented. Umar always bore in mind the underlying consideration of the welfare of the people. ijtihad was regarded as the method. Umar=s decision was based on the underlying rationale of the verse and its legal and social objectives. This remains the abiding strength of his ijtihad . he believed that the spirit of the law is more important than its letter. While making extensive use of qiyas55. to suspend or modify a ruling of the Qur=an. For the companions. A further merit of Umar=s approach to ijtihad was his view that all ijtihad was practised and applied within t ime and space and that no one=s ijtihad was valid for all time.
He is regarded as the first re corder of the science of hadith and his great work Al-Muwatta was the first scientific collection of hadith.Imam Malik was born in Madina around 93 AH and lived his entire life there. Malik was not unduly disturbed by the variance in opinions and decisions in different places. which entails that the means to what is forbidden is also forbidden.60 Imam Malik often relied on the principle of sadd ad-dhara=i (blocking the means). Rather he regarded such divergence as inevitable and believed that opinions or judgments should be in harmony with the customs of every area as long as they did not contravene an explicit text of the Qur=an or the Sunnah..tenths of knowledge. then from the Sunnah and then from the statements and judgments of the companions and those who followed them. So the manifest principle governing the legality of customs and traditions in the eyes of the Shari=ah is whether or not they are beneficial.. He died in 179 AH.. As regards masalih mursala Abu Zahra writes: Islamic fiqh in its entirety is based on the best interests of the community. It is thus not surprising that decisions based on istihsan when having to weigh up different proofs are numerous in the Maliki school.58 Imam Malik stated that istihsan (discretion) is nine.. and that which is harmful is prohibited.59 Malik refined the principle of istihsan in his treatment of masalih mursala (considerations of public interest).57 He always atempted to derive his opinions first from the Qur=an. Since reliance on oral transmission had been the norm until then. the Al-Muwatta was the first book written on hadith and fiqh.. That which contains benefit is desired. . Imam Malik was one of the great hadith transmitters.
the spirit of the Shari=ah was more important than its letter. In this regard. Abu Zahra adds: Abu Hanifa=s ijtihad and his method in understanding the hadiths. He lived there most of his life as a student.that is. he would select from among the differing views. The purpose of such flexibility was the achievement of the greatest benefit to the people. If there were differing opinions among the Companions. (2) Imam Abu Hanifa Imam Abu Hanifa was born of Persian descent in Kufa in 80 AH.In summing up Imam Malik=s approach to legal interpretation. Abu Hanifa tended towards deeper study of issues at hand and this inevitably led him ot hypothesise situations which might occur but had not yet occurred. Sunnah or fatwa of the Companions was available. coupled with the environment in which he lived. When Imam Abu Hanifa could not find a text of the Qur=an or the Sunnah he would rely on a an opinion or fatwa of the Companions. Abu Hanifa did not stop at investigating the rulings of problems which had actually occurred but would extend his reasoning to rulings in respect of problems . the best interests of the people and lack of harm in the deen. In a word. debater and teacher and died in 150 AH. he exercised ijtihad. one may say that he based it on flexibility in the application of the principles. made him use a lot of analogy and ramify secondary rulings accordingly.61 Where no text of the Qur=an. because in his ijtihad. he was sometimes guided by analogy ( qiyas ) and on other occasions by istihsan .
(iv) The opinion of a jurist in case of variant opinions of the Companions. the year in which Imam Abu Hanifa died .62 (3) Imam Al-Shafi=i Imam Shafi=i was born in Palestine in 150 AH. Al-Shafi=i.which had not occurred. believing that the jurists before him had exercised ijtihad without having defined limits to the way in which they deduced their rulings. (ii) Consensus ( of the fuqaha on what is contained in the first source). (iii) Opinions of the Companions of the Prophet. (v) Analogy. He ranked the sources of the Shari=ah as follows: (i) Qur=an and the Sunnah. decided to clearly set out the principles of fiqh based on logic. . He would theorise in order to be prepared for circumstances before they occurred so as to be ready to deal with them. He died in 204 AH.
Like Imam Al-Shafi=i before him. He also believed that the Qur=an cannot be contradicted by the Sunnah.63 Imam Al-Shafi=i expressly invalidates istihsan and states that any ijtihad in which the mujtahid does not rely on the Qur=an. He died in 241 AH. ijma or qiyas is istihsan because the mujtahid takes what he prefers in it. (iii) Fatwas of the Companions. without relying on a firm text and proper evidence is. . or on the basis of consensus or by following the unopposed view of one of the Companions. Thereafter came ijma (consensus). (ii) Consensus. an analogy should be made on the basis of an issue which has a ruling in the Qur=an or Sunnah.Since the Sunnah expounds the Qur=an in many cases. Al-Shafi=i considered the Qur=an and the Sunnah to have equal status in the Shari=ah. His ranking was as follows: (i) Qur=an and the Sunnah. for him. for him. At the time Baghdad was the capital of the Muslim world. As far as analogy (qiyas) is concerned. (iv) Analogy. Consensus means the agreement of the jurists on w hat is contained in the first source of the Shari=ah. (4) Imam Ahmad Ibn Hanbal Imam Ahmad Ibn Hanbal was born in Baghdad in 164 AH. the Sunnah. the letter of the law was more important than its spirit. he ranked the sources of the Shari=ah. Such ijtihad. unacceptable and has no connection to the Sharia=h.64 Al-Shafi=i rejected the purposive approach to interpretation and.
namely that of Al-Shatibi. Istishab or presumption of continuity means that the basic postition established in the past remains in the present and the future. He utilised the principle of public interest to a large extent and was of the view that the fatwas of the Companions were often based on public interest. a mising person is pesumed to be alive unless there is clear evidence to the contrary. (ii) continuity of original attributes. Ibn Hanbal=s approach to legal interpretation was purposive. For example. (iii) continuity of consensus on general rules and principles of the law.(v) Istishab ( presumption of continuity) . Shatibi=s philosophy of Islamic law . Having briefly referred to the approaches of the four Imams to legal interpretation. He also employed the tool of sadd al-dhara=i frequently.65 Like Imam Malik. For example. I sh all now examine the work of perhaps the greatest exponent of the idea of maslahah (public interest). marriage is presumed to exist unless there is evidence of divorce. as long as there is no reason to change it or unless there is clear evidence to the contrary. The following are some of the forms of istishab listed by Ibn Hanbal. (i) continuity of what a contract or the law affirms. (vi) Maslahah mursalah .
in turn. make the implementation of the law possible by mitigating harsh . Shatibi divides maqasid into daruriyyat (indispensable). If there is one outstanding characteristic of Shatibi=s approach to Islamic legal interpretation it is that the spirit of the law is greater than its letter. Finally. it is impossible. His greatest work is undoubtedly Al-Muwafaqat . For Shatibi maintained that if an act which is perfectly legal is committed with the sole intent of causing harm or inflicting injury on others. hajiyyat (necessary) and tahsiniyyat (beneficial). the primary objective of the Lawgiver is the maslahah (welfare) of the people. the tahsiniyyat refers to the adoption of the most commendable and beneficial customs. law experts would acquire a deeper insight into the spirit of the fiqh.66 In his Al-Muwafaqat. self or the right to life ( nafs). through a study of Al-Muwafaqat. could disrupt the maqasid of the Shari=ah.. The obligations inherent in the Shari=ah concern the protection of the maqasid (objectives) of the law. family or lineage (nasl) and property (mal). Shatibi expounded the objectives of the Qur=an and the Sunnah more clearly and extensively than any other earlier work. Such rigidity may well lead to hardship which. The daruriyyat comprises the following five: religion ( din).The great Andalusian Maliki jurist. which in turn aims at protecting the maslahah of the people. Muhammad Abduh and Moulana Mawdudi.secular as well as religious existence can never be orderly. He explained in detail the indispensable human needs and secondary necessities of life and also analysed the interconnectedness between human needs and legal texts comprehensively. ethics and morality. The hajiyyat are required in order to extend the operation of the maqasid and to remove the rigidity inherent in literal interpretation. on the other hand. Abu Ishaq Al-Shatibi. habits. What. then. and at worst.. was Shatibi=s approach to maslahah and ijtihad respectively? (i) Shatibi on maslahah According to Shatibi. In the words of Hallaq: Without the first category. spent most of his life in the ci ty of Granada. it is legally prohibited and must be prevented. The other two categories. The significance of this work in modern Islamic legal thinking may be guaged by two scholars of the 20th century. intellect or sound mind (aql). Abduh advised both scholars and students to study the work so as to understand the true philosophy of Islamic law-making while Mawdudi stated that.
(ii) the disruption of a daruri necessitates the disruption of other objectives absolutely. Shatibi extracts the following five rules: (i) darura is the foundation of all maslahah. (iv) an absolute disruption of haji or tahsini disrupts the daruri. The Shari=a. the purpose of the maqasid (objectives) of the Shari=ah is not only aimed at good in this world but good in the hereafter as well. rests squarely on these three principles. Shatibi relentlessly asserts. (v) the preservation of haji and tahsini is necessary for maintenance of the daruri.requirments and reducing legal demands. (ii) Shatibi on ijtihad .67 In the light of his three-fold division of the maqasid. principles stipulated in the Qur=an and articulated in the Sunna. (iii) the partial d isruption of a haji or tahsini does not necessitate the disruption of the daruri.68 Shatibi adds that.
has been hailed as perhaps the greatest contribution to understanding the spirit of the Shari=ah.On the basis of Shatibi=s approach to legal interpretation. Masud states that in Shatibi=s legal philosophy God provides knowledge of good and bad to man through Divine laws. The two basic requirements for a qualified mujtahid are : (i) a perfect understanding of the purpose/s of the law (maqasid al-shari=ah). Shatibi spells out the following steps in the process of ijtihad. and (ii) on the basis of the above understanding. then consider its consequences in the context of the condition of its time and its people. Simple ijtihad refers to universal principles commonly understood by both specialists and lay people. Before briefly discussing the place of the fatwa in ijtihad. If you feel that it will be accepted by reasonable people. Shatibi distinguishes between simple and specialised ijtihad. A mufti. he says. If the case in question cannot be successfully resolved by this means then it is advisable to keep silent since this would be more in conformity with the welfare of the people. If it does not involve or result in any evil then submit it to reason.70 In his analysis. First. conveys the law to society as he received them from the Prophet or through the interpretation of the text. Shatibi=s philosophy of Islamic law. it is indeed apt to reminisce about a case of ijtihad and ifta71 in Andalusia in 516. Shatibi also discusses the fatwa as a form of ijtihad and argues that the mufti succeeds the Prophet Muhammad (pbuh) in his capacity as a legislator and a transmitter of law. If it is acceptable. a command in the skill of deduction. natural instinct and social experience. Ijtihad and ifta by Ibn Rushd in Cordoba in 516 . then give your opinion in general terms if the case concerns a matter that is generally acceptable. If it cannot be generalised then give a specific opinion. as contained in his Al-Muwafaqat. While specialised ijtihad is only valid when exercised by those who are qualified and have attained the requisite skills therefore69. examine the case in the light of the Shari=ah. Relying on Imam Malik.
In support of this. compensation or to pardon overrides the right of the paternal uncle and his sons and maintains that.76 On the grounds of these primary sources of the Shari=ah Ibn Rushd introduces a new fact.One of Umar=s most well known instances of ijtihad was his imposition of the death penalty on all the perpetrators in the crime of murder. when he committed the crime. He had three children. Ibn Rushd then issued a second fatwa on the matter.74 In his fatwa he dismissed the established Maliki doctrine and opined that only the children of the victim are entitl ed. was executed at the behest of the victim=s brother and his sons. In 516 of the Islamic era 72 a man was murdered in Cordoba. He argued that ijma ( consensus of opinion ) dictates the mitigated punishment of an intoxicated murderer as well as that the children of the victim first at tain majority. The deceased also left behind a brother who had two sons.73 Amongst those who were asked to express an opinion on the matter was one of the most eminent jurists of the time. of course. upon admitting his guilt. in terms of a consensus of opinion amongst jurists ( ijma) a mufti may choose not to follow an earlier ruling or doctrine if he believes that it no longer rests no sound footing. claiming that some learned people had requested him to explain the opinion in his earlier fatwa. Abu al-Walid Ibn Rushd. to pardon the murderer. He argued that the children=s right to seek punishment. but let him[heir] not commit excess . since they may well choose the pardoning option. to either demand the murderer=s punishment or opt for blood-money of. the oldest of whom had reached the age of four at the time of his fathe r=s death. Ibn Rushd then goes on to explain that the Qur=anic text governing the matter is: Whosoever is slain unjustly. upon reaching majority. In terms of a fatwa (legal opinion) issued by group of Maliki jurists the murderer. Ibn Rushd adduces the Qur=anic verse which states : >And ask those who are learned if you do not know=75 as well as the famous hadith concerning Mua=d ibn Jabal. Ibn Rushd argued. So strikingly similar was the ijtihad exercised by Ibn Rushd some 500 years later in the Andalusian city of Cordoba that it is relevant to refer to it here in some detail. This hadith. both of whom had reached majority at the time of the murder. namely the fact that the murderer was in a state of drunkenness. placed the >highest importance upon independent thinking=. We have given authority unto his heir . and thus not acting with full mental capacity.
in particular. he maintains. then goes to the Sunnah. The answer is that it elicits a number of significant features vis-a-vis legal interpretation in Islam. For Ibn Rushd relies on the authority of the Qur=an. even the most highly regarded doctrines.in slaying [the murderer]. The Prophet replied : >Should the murderer be killed? If he is to be killed. Hallaq argues that the fact that consideration of the . morality and values. be adduced: 1) The fatwa suggests that. 3) The fatwa takes into account Islamic philosophy. followed by ijma. indicates unequivocally that pardoning is superior to punishment. assigning the uncle and his sons the right to seek punishment or compensation amounts to nullifying the rights of the children of the victim. what would make you a better man than him?=79 It may well be asked what the importance of this fatwa is to the discussion at hand. The Prophet once asked the relative of a murder victim to accept blood-money. which he refused.77 While there is no disagreement concerning the right of the heir to demand the punishment of the murderer. under certain circumstances. Four reasons may. may be questioned and set aside. 2) The fatwa exhibits the principles of basic Islamic legal theory in practice. the disagreement lies in determining who the heir is. According to Ibn Rushd. He also refers to a hadith of the Prophet (pbuh) which. The learned jurist further argues that a number of Qur=anic verses78 attesting that pardoning should take preference over punishment points to the fact that the death penalty ought to act as a deterrent against murder. enunciated by the most eminent jurists. By relying on the Prophetic tradition which regards pardon as superior to punishment Ibn Rushd is giving weight to the moral values of Islam.
who has been termed the >Ghazali= of Islam in the Indian subcontinent .81 Tatbiq consists of looking beyond the surface features to the inner essence or the comprehensive principle underlying a particular issue. These best interests. Shah Wali Allah argued that the requirements for the best interests ( masalih ) of the human race will vary from age to age a nd from nation to nation. the Qur=an declares on a number of occasions that Islam is the natural way. . meaning to bring into alignment or to make congruent.initiated a new methodology in Islamic legal inter pretation. all rulings based on ijtihad and/or tatbiq ought to be founded on the concept of fitra.82 For Shah Wali Allah.rewards in the hereafter should enter into deliberations about an actual case of homicide undescores the religious nature of Islamic law and points to the interconnectedness of religious morality and law as an instrument of social control. Of course. the state of fitra. He termed it tatbiq.80 4) Finally. At the least it proves that ijtihad was practised via the fatwa and as such it contributed to the evolution and development of substantive law in medieval Islam. this fatwa serves as proof that ijtihad was practised after the third Islamic century and that the gate of ijtihad had never been closed. should be in accordance with nature or the natural state of the human being. Ijtihad in the 18th century In the 18th century Shah Wali Allah of Delhi . which for Islam are based on the ultimate purpose of the human race on earth.
taqlid.83 As regards ijtihad. What he envisaged to this end was no less than a radical reconstruction of Muslim .The famous 18th century Yemeni jurist. did not subscribe to any of the four madhahib. Shawkani argued that >it provided a solution to the evils of sectarianism and fanatacism a s well as a means of reforming misguided social practices=. He called for independent and objective Muslim thought as opposed to the the imitation. Muhammad al-Shawkani.85 who called for the restoration of the original Qur=anic norms to the modern era . and that this use is to be cultivated and defended on Islamic premises so that it would bear fruit with time. He regarded the practice of taqlid as a reprehensible innovation which had been developed by the followers of the various schools of law. Abduh=s vision was one of creative legal thinking. His approach to usul-ul-fiqh was based on the absolute necessity of applying ijtihad as a means of combating the sectarian and antagonistic tendencies amongst different schools of law.86 Arabi states: Abduh=s version of ijtihad embodies his awareness that only the scientifically disciplined use of reason would enable Muslims to cope with the present and prepare for the future.84 Ijtihad in the 19th and 20th century Perhaps the leading figure in this era was the Egyptian scholar Muhammad Abduh. of authoritative tradition.
in accordance with human interests . and 3) the determination of a category of changing rulings. namely: 1) the restitution to the sacred texts of their original and universal import ( usul al-shari=a wa kulliyyatiha). and therefore not subject to interpretation or alteration. Arabi s tates that three key elements form the operational guidelines for the implementation of Abduh=s approach to Islamic law. a break with the dominant Sunni conception of the relationship between reason and Revelation. reason should take priority (taqdim al-aql ala al-shar).87 Abduh=s call for the restoration of the original Qur=anic norms is founded upon his two principles of Islam. In the light of Abduh=s two principles of Islam.personality. irrespective of the provincial and more particular applications that accrued to it in history. 2) the delimitation of a category of textual rulings that follow from a conclusive evidence (dalil qat=i). whereby rational thought is to have an equal say in determining the rules governing human relations and social order. The first principle is that rational thought ( al-nazar al-aqli) is the means for the attainment of true faith ( wasilat aliman al-sahih). The second principle is that where Revelation and reason are in conflict.
one must be very wary of the efforts of the dominating powers to align Islamic law with their legal systems and values. Sayyid Tantawi.88 Abduh applied these three elements to question of polygamy in his day and age. as Muhammad Iqbal couched. Studies in Modern Islamic Law and Jurisprudence.the interests of the community . the study by European scholars of the dominated peoples= beliefs. customs and laws belongs more to the internal exigencies of domination and the ideological debates of self-justification of . As regards divorce law. Although much heated debate followed upon this provision the Grand Sheikh of Al-Azhar. the principle of movement in Islam. the Egyptian Law No. Arabi states that one of the most formidable tasks faced by the Muslims in the wake of the conquest of the larger part of Mu slim lands by European colonisers and imperialists is the preservation of the dignity and identity of Islam and Muslims. announced that the new law was in conformity with the Shari=ah and that it was approved by a majority vote in the forty -member Islamic Research Academy.89 He concluded that maslahah .91 The last chapter of Oussama Arabi=s book.and conditions.1 of 2000 (Women May Divorce at Will) serves as but one example of Abduh=s influence on the reconstruction of the Shari=ah or.renders the practice detrimental in the present day. the only condition being the restitution of the dower to her husband and the relinquishing of her right to maintenance. is entitled >The Place of Islamic Law in the Modern World and the Reconstruction of Shari=a=.90 The most striking feature of this new piece of legislation was the provision tha t a woman may obtain a judicial separation from her husband if she wishes. In this regard Arabi reminds us of the warning sounded by Edward Said regarding orientalist discourse: As Edward Said=s analyses of Orientalist discourse have shown. in the light of the well -known Qur=anic verse which states that men may marry more than one woman unless injustice or inequity may result. At the same time.
who produced a modern Algerian code of family law based on classical fiqh. than to any authentic effort at understanding the true nature and value of these institutions in the lives of the subject population.96 Although Morand was committed to the values of the French colonial enterprise in Algeria. Arabi argues.coupled with an end to the long -established traditions and doctrines of the madhab system.97 . no definite or specific ruling is forthcoming. For Morand. he nevertheless effected a radical departure from the perspective of classical Islamic legal interpretation by creating a synthesis which transcended the four madhahib and thus was at the forefront of legal reform and reconstruction in Muslim countries in the twentieth century. no ijtihad is permissible. contain a definitive ruling. namely the Qur=an and the Sunnah.the colonial powers.94 In a 1994 decision the Egyptian High Constitutional Court stated that where the primary sources o f Islamic law. Arabi states that through th e universal value of ijtihad . The Court stated that ijtihad consists in applying reason to a sacred text.the process of integration of the Shari=ah into the modern state=s political structure without abandoning the ethical and religious spirit of Islamic law . evaluating it or replacing it by another rule. However. brief reference is made here to his approach in his Draft Code of Muslim Algerian Law. universal legal logic took precedence over narrow and dogmatic prejudice. ijtihad is permissible in order to reflect the changing needs and circumstances of human communities.95 Since Marcel Morand is regarded by Arabi as an exception to the general European or Western approach during colonisation of applying and modernising the law of the conquered. The practice of ijtihad does not confer any sacredness (qudsiyya) on the opinion of some or other jurist with regard to the legal matter under consideration and there is no impediment to revising it. f airness and justice towards his subjects. consolidate the positivisation of Islamic law. both retrospectively and for the twentieth century and beyond.93 This positivisation would be based on ijtihad or what he termed creative legal thought. as it does.92 Arabi is quick to note that there have been exceptions to this general statement. where. Abduh=s approach to Islamic legal interpretation meant a positivisation of the Shari=ah . as an extension of the rules that is neccesitated by God=s clemency.involving. And such ijtihad should always aim at realising the five maqasid (objectives ) of the Shari=ah. for example the Frenchman Marcel Morand.>Abduh forged the logical and conceptual tools that would. a great degree of flexibility .
since the age for both sexes was fixed at 18 for the Malikis and at 15 for the Hanafis. combining and going beyond the four madhahib when necessary and. for the woman... The question of going . often combining the views of different schools or going beyond them and finding fresh solutions. for the man. Morand found new solutions to legal problems. u pholding the public interest. underlying it all. upholding the spirit of the Shari=ah. completed.100 Taking into account Abduh=s approach to ijtihad and talfiq (syncretism or combining) .. Morand=s approach in his Draft Code of Muslim Algerian Law was one of flexibility. maslaha. and 15 years. Morand attempted to develop and evolve the Shari=ah on the basis of fair and equitable rulings.Of course. Arabi writes: The very methodological principles of Islamic jurisprudence prompt benefic[ial] change and adaptability to new social conditions. For example. more understanding and more tolerant. The prejudice which equates its sacred character with ossification is both doctrinally and historically unfounded.. Article 4 of his draft Code provides that >the age of puberty is 18 years.99 Morand thus departed from Maliki law and adopted provisions of the Hanafi school where the latter was found to be more humane. it will be remembered that Malik stated that istihsan is nine-tenths of the law. Morand invokes the well-known Maliki tradition of treating public utility.98 While the French colonial government in Algeria had opted to maintain the corpus of the Maliki law. as a fundamental source of legislation. This flexible and pragmatic approach is reminiscent of Imam Malik=s approach to interpretation. legal realism. rather than stick to perhaps outdated textual fiqh rulings. This Article is a hybrid of Hanafi and Maliki rulings. His main focus was the maintenance of the spirit of the Shari=ah. Morand=s creative legal thought and his brand of legal realism took place in the > colonial matrix=. completed.
The translation of the original Arabic text by Rafudeen continues as follows: Such a new course cannot be restricted to extraordinary persons among the ulama of the Shari=ah only.in the sciences and all spheres of human activity . Ijtihad in the 21st century In an article published in the Ar-Rabitah101 magazine in 2002 Dr Muhammad Ammarah discusses ijtihad in the contemporary world.beyond the madhahib has already been briefly alluded to earlier in this article in respect of the thinking of Shawkani.ijtihad needs to steer a new course in order to respond to contemporary needs.102 He argues that because the world we live in has progressed without adherence to the essence of the Shari=ah .it is not possible for one thinker or jurist alone to rearrange the relaities of the world. due to increasing specialisation . Rather the Ahl ul dhikr. ulul al amr and ashab ul hall wa aqd 103 must include experts in secular fields as well. Ijtihad is a combination of the essence and objectives of the . There is a necessity to form intellectual establishments that [combine] both religious and and secular experts in order that ijtihad can be cast in a new manner. Furthermore.mainly due to the influence of western imperialism and civilisation .
such creativity will remain unrestrained. He rejects secularism because it entails the separation of Islam from the material world and. more importantly. it will result in the loss of the civilisational independence of Islam. Another point made very strongly and clearly by him is that. This is done without moving away from the essence and objectives of the Shari=ah. Ammarah ends his short article by saying t hat: It is also necessary that we distinguish between the Law - ..require experts in the contemporary sciences and their application in all that it involves as it is impossible for even an encyclopaedic scholar to be well-versed in all fields like in the days of old.which he regards as a Western disease . Rather..Shari=ah with the requirements of progress and contemporary exigencies with the aim of effecting the welfare of the whole Ummah. underlying all contemporary ijtihad.and the need to find European/Western solutions to all problems faced in the i nterpretation of Islamic law.104 Ammarah argues that the creation of intellectual establishments105 should not imply that individual creativity will be impeded. should be the rejection of secularism . Such intellectual establishments .
The Law is a way of life given by Allah and is permanent whereas the applications of the forbear[er]s and the ijtihad of the ancients are not a creed. are the issues of apostasy and inheritance law in Islam. the choice of any other religion would amount to a major retrogressive step? Just as Islam places limitations on the right to freedom of expression. so too there are limitations on freedom of r eligion.109 This would imply that the Afghani Abdul Rahman is free to choose the religion of his choice. As regards >creative imagination=.107 Amongst the latter are Muneer Fareed. Islam permits freedom of religion but not the conversion of a Muslim to any other religion. In respect of apostasy. They are not fixed systems binding on on one who lives in a different context from the world they lived in.106 More recently. this >impulse=. How far can one go in the process of reinterpretation? How far can one take one=s creative imagination while remaining within the bounds of the Shari=ah? Two pertinent examples. But. logoc. in terms of Islamic criminal law. apostasy is crime.from its application by the forbear[er]s (salaf) and the ijtihad of the ancients. perhaps quite simplistically.which is a method and has objectives . rather. can one argue that apostasy should no longer be regarded as a crime in Islamic law? Does not Allah imply that. who suggests that ijtihad can be viewed in three different ways: as a legal tool. . and there are many more of course. more emphasis should be placed on the natural law tradition in Islam. it was agreed that although most scholars would limit the practice of ijtihad to specialists who have not only knowledge of the Qur=an and the Sunnah but also a broad familiarity with scholarship in Arabic grammar. in a Special Report of the United States Institute of Peace entitled Ijtihad Reintepreting Islamic Principles for the Twenty -first Century. philosophy. as a form of legal reasoning and as a creative impulse and imagination. the fundamental question would be the extent of this >ima gination=. on fitra108. on the innate God-given sense of right and wrong. then again. economics and sociology. As I understand it. once a human being has found or come to the ultimate truth. although one possesses freedom of belie f. While Ingrid Mattson argues that reason is not the only complement to Revelation. In the context of the basic human right to freedom of religion. other scholars assert that interpretation of the texts should not be confined to legal scholars but should be open to those with >creative imagination=. the Qur=an does declare that >there is no compulsion in religion=.
In this regard. In the 18th century Shah Wali Allah argued that the maslahah. In this I am in full agreement with the views of Ammarah. the approach and views of Muhammad Abduh have been alluded to earlier.with creative legal thought . bearing in mind the limits and bounds set by t he Shari=ah.112 .should this verse be reinterpreted in the 21st century or should its rationale be properly explained and understood. as regards inheritance by one=s children. which is based on the human being=s existence on earth. of course. since the dignity of Islam and its followers is founded upon its moral and ethical values. I believe that ijtihad today should be founded on the best that the fourteen centuries of Islam has taught us.in the 21st century. In essence. should be in accordance with nature or the natural state of the human being. Shatibi laid great stress on the five maqasid (objectives) of the Shari=ah. Finally.gender equality specifically . I conclude with the verse of the Qur=an quoted at the very beginning of this paper. as regards the past 100 years. istihsan and adopted a purposive approach to legal interpretation. the ijtihad of today should be founded on creative legal thought. the Qur=an commands that. pragmatism and flexibility (both in the application of the rulings of the four madhahib as well as in maintaining the spirit of the Shari=ah). the state of fitra.111 Is not the empirical equity inherent in the distribution of wealth more important than the mathematical inequality? These are but two examples of the caution which must be coupled with ijtihad . The ethical and moral precepts underlying the spirit of the Shari=ah should never be overlooked. I believe that ijtihad in the 21st century should not serve to merely bring Islamic law in line with Western human rights standards and values. while Shawkani stressed flexibility in adopting the opinions of the four madhahib.110 In the context of the basic human right to equality . Always. the male is entitled to a portion equal to that of two females.In respect of the law of inheritance in Islam. With the exception of the literal approach to legal interpretation adopted by Imam Shafi. Allah says: Ask the people who are learned if you do not know. The khalifa (caliph) Umar taught us that the spirit of the Shari=ah should always be paramount. the other three great Imams underlined the importance of the public interest (maslahah).
Introduction ." The vast majority of Muslims who reside bo th within and outside the geographical confines of the Muslim world are well aware of the challenges that Bioethics poses vis -à-vis their world view. USA) School of Religion and Theology.THE ROLE OF IJTIHAD IN BIOETHICS Abul Fadl Mohsin Ebrahim.D. Ph. University of KwaZulu-Natal. this paper precisely addresses the vital role that ijtihad can actually play in resolving their bioethical dilemma. Durban ABSTRACT Ijtihad is defined as "the capacity to make deductions in matters of law in cases to which no express text from the Noble Qur·an and Sunnah is available. (Temple University. The scope of Bioethics is all -encompassing and since Muslims are keen to implement their religious values in almost all facets of their lives.
). whether they will be spiritually rewarded or punished (for their actions). Bahrain. the Hanafi. The Hanbali School is the official school in Saudi Arabia and Qatar. The birthplace of the Maliki School was Madinah and thus adherents of this school are found in certain parts of the Kingdom of Saudi Arabia and it continues to be the dominant school among the people of Morocco. There are basically five major Schools of Islamic Jurisprudence. the Caucasus. Its followers are also found in Upper Egyp t. Today. Fiqh is the science which facilitates the application of the Shar`ah (Divine Law). Jordan. Pakistan. Lebanon. Jordan. Afghanistan. Malaysia. Palestine. the Central Asian republics. and Libya.E. Indonesia. Lebanon. the Balkans. Syria. Shafi`I. India. it continues to be the dominant school for Muslim personal law matters and religious observances in Egypt.Abbasid Caliphate (750-1258 C.E. Iraq. Kuwaitand South Africa. its adherents are found in Syria.Imam Abu Hanifah (d.. In essence.e. The term Fiqh in legal parlance denotes making use of the intellect ( al-`aql) in deciding a point of law. i. Algeria.769 C. Spain. Syria and Iraq.) and the Ottoman Empire (1290-1924 C. It also has adherents in Palestine. Egypt. Hanb ali and Ja`fari Schools. Maliki." Thus fiqh (Islamic Jurisprudence) implies a science that concerns itself with the consequences of human actions. Palestine. Iraq. but within the parameters of the broad teachings of the Divine revelation ( the Noble Qur·an) and the sayings and practice of Prophet Muhammad r (Sunnah). The Hanafi School is the most widespread school in the Muslim world and was the dominant school during the . Tunisia.E. . the Emirates.) defines fiqh as "the understanding of a person·s rights and obligations (which are directly related to his actions). Indonesia. Insofar as the Shafi`i School is concerned. Sudan. in some rural areas of Egypt and in South Afri ca. China and South Africa. namely.
The Ja`fari School came to be included as the fifth school of Islamic Jurisprudence after Shaykh Mahmud Shaltut. Egypt.The Ja`fari School is the major Shi`i legal school. the former al-Imam al-Akbar (Rector) of al-Azhar University in Cairo. It takes its name from Imam Abu Ja`far Muhammad al-Baqir and Imam Ja`far al-Sadiq. the fifth and sixth Shi`i Imams. Scope of Bioethics The scope of Bioethics covers an array of issues such as: § Doctor-patient relationship § Medical confidentiality § Medical negligence § The management of infertility and childlessness § The control of fertility § Abortion § Prenatal screening . accredited it along with the other four Sunni Schools.
These two sources are the embodiment of what is known as the Shari`ah (Divine Law). It embodies the Divine Commandments which encompass all facets of human life. 6:57) .§ Health resources and dilemmas in treatment § The diagnosis of death § The donation of organs and transplantation § Euthanasia Sources of Islamic Jurisprudence The Noble Qur·an and the Sunnah are the primary sources of Islamic Jurisprudence." (Al-An`am. This is evident from the following verse: "The hukm (jurisdiction) rests with none but Allah . Muslims are required to uphold and implement these Divine Injunctions. The Noble Qur·an The Noble Qur·an is the Sacred Scripture of Muslims which is regarded to be the verbatim Word of Allah I revealed to Sayyiduna Muhammad r over a period of approximately 23 years.
verily they are the wrongdoers. eH The Noble Qur·an is described as "a healing and mercy to those who believe " (Ha Mim. In this regard. 5:44) "«.Those who do not judge in accordance with what Allah has sent down.) holds the view that the objectives of me dicine are threefold. the Noble Qur·an complements these objectives as discussed hereunder: Healthy living depends upon having a balanced diet comprising of wholesome food and drink and avoiding the intake of anything that may prove injurious to one·s body. it is evident that within the Islamic system. Allah I is regarded to be the only Law Giver (al-Shari`) and that in Him I alone rests the supreme legislative power." (Al-Ma·idah. 41:44). verily they are the deniers of the Truth. 5:45) From the above Qur·anic verses. 2:168) .E. 1350 C. Imam Ibn Qayyim alJawziyyah (d.Those who do not judge in accordance with what Allah has sent down.It is further stated: "«. protection of health." (Al-Ma·idah. getting rid of harmful things and safeguarding against harm and interestingly. namely. the Noble Qur·an stipulates: "O humankind! Eat of what is lawful and wholesome on earth " (Al-Baqarah.
This is evident from the fact that although Muslims are required to fast during the holy month of Ramadan. 13:28). . This is evident from the following citation: "But if any one is ill or on a journey. 2: 185) The Sunnah Sunnah is regarded as wahyun khafi (minor revelation) and includes all that has been reported on the authority of Sayyiduna Muhammad r and as such incorporates his r authentic sayings (sunnah qawliyyah). Eschew such (abomination) that you may prosper«. In order to circumvent that.and "O you who believe! Khamr (Intoxicants)« are an abomination of Satan·s handiwork. the Noble Qur·an exhorts humankind to seek refuge in their Creator: "«for verily in the remembrance of Allah hearts do find rest " (Al-Ra`d. those who are ill are allowed not to fast and to make up the fasts missed lat er on when they would have recovered from their particular illnesses. thus safeguarding them from endangering their lives. Feelings of insecurity and helplessness may lead to mental depression which could result in suicide. his r tacit approval and explicit disapproval (sunnah taqririyah). his r actions and personal habits (sunnah fi`liyyah). 5:93-94). The Noble Qur·an even goes to the extent of relaxing certain rules as concessions for the sick. and finally.." (Al-Baqarah. the missed period (should be made up) later ." (Al-Ma·idah.
E). 2. .). 892 C. Sunan Abi Dawud compiled by Imam Abu Dawud Sulayman ibn al-As`ab (d.E.) 5.E." (Al-Nahl. Sayyiduna Muhammad r explained.E. Sunan al-Nasa·i compiled by Imam Abu `Abd al-Rahman Ahmad ibn Shu`ayb (d. 870 C. Jami[ al-Tirmidhi compiled by Imam Abu `Isa Muhammad ibn `Isa bin Sawrah (d.E. interpreted and demonstrated how the Divine Law ought to be applied.). becomes binding upon Muslims to follow his r explanations and interpretations of the Divine Commandments. Sunan Ibn Majah compiled by Imam Abu `Abd Allah Muhammad ibn Yazid (d. In other words.E. 16:44) The Six Authentic Collections of Ahadith (Al-Sihah al-Sittah) which guide the life of Sunni Muslims are: 1.).) 6. 887 C. 875 C. it. therefore. Al-Jami` al-Sahih compiled by Imam Muhammad ibn Isma[il al-Bukhari (d. 3.By virtue of the fact that Allah I chose to reveal the Noble Qur·an to Sayyiduna Muhammad r. 915 C. 888 C. The Noble Qur·an substantiates this as follows: "And We have sent down the Reminder (Message) to you (O Muhammad) so that you can make clear to humankind what has been sent down to them so that hopefully they will reflect . 4. Al-Jami` al-Sahih compiled by Imam Muslim ibn al-Hajjaj Naysaburi (d.
" This then serves as justification for Muslims to make use of modern contraceptive devices. Man la yahduruhu al-Faqih of Shaykh Muhammad ibn `Ali ibn Babawayh (d.E.E. What is important to note here is that the Allah I did not reveal any injunction to censure this practice as is e vident from the report of Sayyiduna Jabir t: "We used to practice ` azl during Sayyiduna Muhammad·s r lifetime while the Noble Qur·an was being revealed.The four major compilations which contain the transmitted material from Prophet Muhammad r and the Shi`i Imams serve to guide the socio-political and religious life of the Shi`is are: 1. 940 C. On the other hand.). 3. 4. Al-Istibsar of Shaykh Muhammad ibn Hasan al-Tusi (d. there are a number of Hadith reports which allude to the fact that during the time of Sayyiduna Muhammad r. The Sunnah serves to complement the Noble Qur·an in the absence of a categorical Qur·anic statement on a particular issue in question. Kitab al-Kafi of Shaykh Muhammad ibn Ya`qub al-Kulayni (d. 1067 C.).). 991 C. some of his r Sahabah y (Companions) resorted to `azl (coitus interruptus) which involves withdrawing the penis from the vagina prior to the emission of sperm to prevent insemination of the ovum. 2. Tahdhib al-Ahkam of Shaykh Muhammad ibn Hasan al-Tusi (d. 1067 C.E. Secondary Sources The secondary sources are: . the Noble Qur·an is silent on the issue of the permissibility or non permissibility for Muslims to take certain precau tionary measures for the purpose of frustrating pregnancy. For example.).E.
" replied Mu`adh t. he r put the following question to him: "According to what will you judge?" "According to the Book of Allah. the ruling of the mujtahid (i. all bioethical issues which ar e not addressed by the primary sources. Thus. The two branches of Ijithad are Ijma` and Qiyas. would be resolved on the basis of ijtihad. . "And if you find nothing therein?" "According to the Sunnah of the Prophet of Allah. namely the Noble Qur·an and Sunnah. the scholar who engages in ijtihad) would be inferential and thus probable (zanni). Its technical legal connotation implies the exertion of the jurist·s intellect to determine the proper application of the teachings of the Noble Qur·an and Sunnah to a particular situation with the aim of finding a solution for a case of law." Sayyiduna Muhammad r was pleased with this reply and said: "Praise be to Allah Who has guided the messenger of the Prophet to that which pleases the Pr ophet.e. which means to endeavour. etc. strive." Al-Ijtihad is derived from the root verb jahada. In other words." "And if you find nothing therein?" "Then I will exert myself (exercise ijtihad) to form my own judgment.Ijtihad Ijma[ Qiyas Ijtihad (Intellectual Deliberation) The justification for including Ijtihad as a secondary source is based upon the fact that when Prophet Muhammad r ordered Sayyiduna Mu`adh ibn Jabal t to proceed to Yemen.
(a) Ijma` (consensus of juristic opinion)
Ijma` is derived from the root verb jama`a which means to collect or bring together. As a legal term, it is defined as agreement of the jurists among the followers of Sayyiduna Muhammad r in a particular age on a question of law. In practice, Muslim jurists congregate and deliberate upon any particular problematic issue which affect Muslims and try to resolve it by agreeing and uniting in opinion. Once consensus has been reached, the ijtihad of Muslim jurists shift from the realm of probability to that of certainty and becomes the basis for n ew cases to be solved. In other words, when ijma` is obtained on a case of ijtihad, the issue in question does not remain at the level of opinion (zann), but gets elevated to the position of a hujjah (a decisive verdict), thereby making it unlawful for Muslims to disregard it.
(b) Qiyas (analogical deduction)
Qiyas is derived from the root verb qayasa, which means to measure. As a juridical term, it is defined as a process of deduction by which the law of a text is applied to such cases which, though not covered by the language of the text are covered by the reason of the text on the basis of the ` illah (effective cause). For example, the Noble Qur·an (Bani Isra·il, 17:33) censures murder or killing of human beings. In the past, killing was carried out in the form of poisoning someone or stabbing a person to death, etc. The modality varied, but the ` illah (effective cause) was similar, i.e. it ended in death. Thus, today, if an attending physician deliberately chooses to administer a lethal injection to the terminally ill, it would in effect cause death and the physician would be liable for the crime of murder on the basis of the common `illah.
FACILITATING TOOLS FOR IJTIHAD
Al-Qawa·id al-Fiqhiyyah (legal maxims) are theoretical abstracts, usually in the form of short statements, that are expressive, often in a few words, of the goals and objectives of the Shari`ah. The actual wordings of the maxims are occasionally taken from the Noble Qur·an or Hadith, but are more often the work of leading mujtahids (jurists).
It is to be noted that some of the maxims are basically a reiteration of some of the broad principles that are found either in the Noble Qur·an or Hadith compilations. For example, the maxim "hardship begets facility" is a rephrasing if the Qur·anic verse: "Allah intends for you ease and He does not intend to put you in hardship " (Al-
Baqarah, 2:185). Muslim jurists have used this particular maxim as evidence in support of the many concessio ns that are granted to the disabled and the sick in the sphere of religious duties. The rules are relaxed to allow them to perform the salah (obligatory five times daily prayer) in a sitting or reclining posture. This very maxim can also be used in the context of justifying the non-implementation of extraordinary means in the treatment of the terminally ill if such means would in effect place a burden on others.
The maxim "harm must be eliminated, but not by means of another harm" (al-dararu yuzalu wa lakin la bi al darar) is a rewording of the Hadith "harm may neither be inflicted nor reciprocated in Islam" ( la darar wa la dirara fi al-Islam). A practical manifestation of this maxim is the validation not to opt for over zealous treatment and to allow death to take its natural course. However, the aim should never be to hasten death, and all necessary steps ought to be taken to ascertain that basic needs which are necessary to sustain the life of the patient should also not be discontinued.
Mention is made in a Hadith that "breaking the bone of a dead person is equal in sinfulness and aggression to breaking it while the person is alive." In o ther words, it would be an act of aggression, tantamount to mutilation of the human corpse, to remove any of its organs for the purpose of transplantation. However, in this particular context, the maxim "necessity makes the unlawful lawful" (al-daruratu tubihu al-mahzurah) can be used as justification for the removal of the cornea from the dead for the purpose of transplanting it into another person whose vision could be restored through corneal transplant.
The maxim "lesser of the two evils" (akhaffu al-dararayn) serves to sanction the carrying out of a Caesarian section on a pregnant mother who has passed away in order to try to save her baby. In other words, this maxim would justify "desecrating" the dead mother·s body to save the life of her baby on t he grounds that it would be better to save one life than to risk losing two.
The famous Hadith, namely, "Actions are valued in accordance with their underlying intention" ( innama al-a`malu bi al-niyyah) is the rewording of the maxim " actions are judged by the intention behind them". This maxim reinforces the fact that the element of intent does play a crucial role in differentiating between the deliberate withholding of treatment due to poor prognosis and allowing nature to take its course.
A dilemma doctors often face is whether they are obliged to consult the guardians and/or relatives of their patients or whether they ought to do what they think is best for their patients without consulting their patients· kith and kin. This dilemma may be resolved on the basis of the maxim "private authority is stronger than public
authority" (al-wilayah al-khassah aqwa min al-wilayat al-`ammah) which implies that consent of the spouses, parents and/or guardians of the patients is paramount and cannot be overlooked by the attending physicians.
Fatwa as the formal legal opinion of the Mujtahid/Mufti
Fatwa is derived from the root verb fatiya, which means to be youthful, to furnish with information and to expound. Its evolution as a legal term emanate from two citations in the Noble Qur·an, where the word is used in its 10th and 4th verbal forms:
"They seek your fatwa (yastaftunaka) regarding women. Say Allah does instruct you (yuftikum) concerning them«.." (Al-Nisa·, 4:127)
"They ask you for a (fatwa) legal decision (yastaftunak). Say: Allah directs (thus) (yuftikum) about those who leave no descendants or ascendants««" (Al-Nisa·, 4:176)
Fatwa is defined as a formal legal opinion given by an expert in Islamic Law. An expert in Islamic Law is known as a mujtahid/mufti, an inquirer (i.e. one who seeks the legal opinion of a mufti) is known as a mustafti, and the act of issuing fatwa is known as ifta·.
Mujtahids/Muftis are usually consulted by members of the Muslim community to give their legal opinions on the new developments in the fields of economics, politics, science, technology and even on bioethical matters pertaining to family planning, abortion, cloning, euthanasia, organ transplantation, etc. It is to be noted, however, that the fatwa of a particular mujtahid/mufti is not binding and hence one has the option to approach another mujtahid/mufti for a second opinion. Moreover, one ought to realize that there are a number of conflicting fatawa (sing. fatwa), for example, on organ transplantation and other bioethical matters and thus, in light of this, Muslims thus have the liberty to uphold such legal opinions which best appeal to their conscience without any qualm. After all, whatever legal verdicts they finally choose to follow would in essence be the ijtihad of the mujtahid/mufti.
Enforcement of the legal verdicts of the Mujtahids/Muftis One ought to recall here that Islamic Jurisprudence. but (if it so happens) by mistake (compensation is due): If one so kills a believer. 4:92) . of society. Moreover. (Al `Imran. the Shari`ah embodies the Will of Allah I Who is regarded to be The Sovereign and Source of law and this is evident from the following Qur·anic verse: "To Allah belongs the dominion of the Heavens and the Earth and Allah has power over all things . ultimately. for that would be incompatible with the ethical control of human actions and. it is ordained that he should free a believing slave and pay compensation (diyyah) to the deceased·s family «. The Shari`ah has laid down the penal code for perpetrators of crime. the proviso for paying the diyyah (blood money) for the unintentional killing of a human being is on the basis of the following Qur·anic imperative: "Never should a believer kill a believer. According to Islamic teachings. therefore. human thought alone cannot discern the true values and standards of conduct . fear of punishment in the life hereafter. is the extension of the Shari`ah (Divine Law). and is not moulded by society as is the case with the Western system. Likewise. it is evident that the Shari`ah does not recognize the liberty of legislation. as was mentioned earlier. Insofar as the Islamic world view is concerned. human actions are considered to be either good or evil depending on what has also been made known to humankind through Divine Revelation." (Al-Nisa·. depending on the strength of one·s faith.such knowledge is complemented by Divine Revelation. For example. serve as a deterrent for one not to indulge in such actions that are deemed prohibited by the Shari`ah. does not grow out of. Law. 3:189) From the above verse.
" (Al `Imran.At this juncture.And fear Allah that you may prosper. but rather to impress upon Muslims the fact that Allah I is watching their every action and hence they should have an element of fear for Him I at all times and not to shun His I commandments. This is evident from the following imperatives of the Noble Qur·an. then the angel is sent. in the Kingdom of Saudi Arabia and Iran. for example. it is importa nt to note that in light of Islamic Jurisprudence. 3:200) . and he breathes the soul into it. In Muslim countries where the Shari`ah is implemented. bearing in mind that the Noble Qur·an is in essence the foremost source of the Shari`ah: "O ye who believe! Fear Allah as He should be feared." (Al `Imran. Thus the aggressor would be liable to pay the diyyah (blood money) in compensation. then it becomes an `alaqah (something that clings) for an equal period. ensoulment of the foetus occurs after the fourth month of pregnancy on the basis of the following Hadith: "Each of you is constituted in your mother·s womb for forty days as a nutfah (drop of semen). 3:102) "«. But the primary aim of the Shari`ah is not restricted to the implementation of punitiv e measures. the Qadi (judge) of the Shari`ah Court would be responsible to effect the appropriate punishments for the different crimes. any act of aggression against the foetus after the fourth month which results in the termination of its life would be tantamount to the killing of an actual person. then a mudgah (chewedlike lump) for another equal period." Hence.
but morally indifferent). This diversity is influenced by the Muslim jurists· deliberations within the parameters of the teachings of their particular schools of Jurisprudence. the mujtahids (jurists) deliberate upon such biotechnological manipulations which directly impact the lives of Muslims in order to reach a solution or a rule ( hukm) by declaring them to be wajib or fard (required or obligatory). it is also necessary to point out that while the deliberations of the mujtahids are restricted to the realm of probability. mubah (permitted. depending on the level of their Allah -consciousness. Thus while the Shari`ah is the code of moral conduct. it may plausibly be inferred that prosperity of society depends not so much upon the rigours of the law. taqwa. makruh (discouraged or abominable) and/or haram (forbidden or prohibited). mandub (recommended). We have created you from a single (pair) of a male and female. CONCLUSION Ijtihad has undoubtedly a vital role to play in resolving the many challenges that Bioethics poses vis-à-vis the Muslim world view. In other words. even though there is no one to enforce them. However. It is one of the sources of Islamic Jurisprudence which facilitates the extension of the Shari`ah. but rather upon righteousness inspired by the fear of Allah I.From the above Qur·anic verses. i. a diversity of vie ws on bioethical matters are bound to exist. . taqwa is the standard by which human actions will be judged as is evident from the following Qur·anic verse: "O humankind! surely. 49:13) Secular laws in the modern world depend to a large extent upon public opinion and can thus be altered according to changes that take place in society.e. But the rulings of Islamic Jurisprudence being offshoots of the Shari`ah (Divine Law) are upheld by Muslims worldwide. and made you into nations and tribes that you may know e ach other." (Al-Hujurat. Surely the noblest of you in the sight of Allah is the one who has taqwa (fears Allah most).