2017

Discuss the concept of Ijtihād in Islamic law and the juristic debate about the
closure of the gate of Ijtihād, explaining the relevance and application of
Ijtihād in modern times.

2020 / Q1
Discuss the debates about the “closing of the gate of Ijtihad” and whether or not there is a
compelling need for the continued application of Ijtihad in contemporary times.

2019 / Q2
“There is a strong opinion in classical Islamic law, which is contested in modern Islamic legal
scholarship, that by the 10th century all main principles of Islamic law had been completely
settled by the great scholars and therefore ‘the gate of Ijtihad’ had been closed.”
Discuss.

This question requires us to discuss concept of Ijtihad and juristic debate

regarding concept of closure of gate of Ijtihad and then understanding its
relevance in modern times. To answer this question we will first understand the
concept of Ijtihad and then will to juristic debate and then will try to analyze it. In
the last part of our essay we will discuss relevance of Ijtihad in modern era.
Concept of Ijtihad
Within the realm of usul al-fiqh but outside Shafi’i's hierarchy of the main sources
of law, falls another source known as “Ijtihad”. During the early
period, ijtihad referred to the exercise of one's discretionary opinion (ra'y) on the
basis of the knowledge of the precedent (‘ilm).[5] Jurists used ra'y to help reach
legal rulings, in cases where the Qur'an and Sunna did not provide clear direction
for certain decisions. It was the duty of the educated jurists to come to a ruling
that would be in the best interest of the Muslim community and promote the
public good.
As religious law continued to develop over time, ra'y became insufficient in
making sure that fair legal rulings were being derived in keeping with both
the Qur'an and Sunna. However, during this time, the meaning and process
of ijtihad became more clearly constructed. Ijtihad was “limited to a systematic
method of interpreting the law on the basis of authoritative texts, the Quran and
Sunna,” and the rulings could be “extended to a new problem as long as the
precedent and the new situation shared the same clause.”
As stated above that Ijtihad can be used whenever Quran and Sunnah do not
cover particular issue. However there is some restrictions in application and usage
of the Ijtihad. There is no ijtihad within an explicit rule in the texts (la ijtihaada
ma’ al-nass).It means Ijtihad can not be applied where a text is so clear and can
not be given two meaning. For instance, consider the phrase“cut off their hands”
(5:38). While “to cut off” has a simple meaning, the term “hand” (yad) is unclear
and incorporates the region from the elbow to the fingers, and is it the left hand
or right hand, and so on. There may be additional linked questions to this
command about the thief and about the value of the property stolen. These
questions are first answered on the basis of the texts themselves, that is, through
the Quran and Sunnah. If a meaning is given in these texts, it becomes the legal
meaning and is to be followed, irrespective of its conformity with the literal
meaning of the word. When no explanation is available, the jurist looks for literal
meanings and uses his own reasoning and judgment to arrive at the appropriate
answer.

Jurist debate over closure of gate of Ijtihad and relevance of Ijtihad in modern
times

The question whether or not ijtihad can still be performed now is controversial.
There is a strong opinion in classical Sunni Islamic law, which is contested in
modern Islamic legal scholarship, that by the 10th century all main principles of
Islamic law had been completely settled by the great scholars and therefore ‘the
gates of ijtihad’ had been closed  allowing for taqlid (the established legal
precedents and traditions) to take priority over ijtihād. This move away from the
practice of ijtihād was made by the Hanafī and Malikī law schools, and the
majority of Shafīʿis, but not by Hanbalīs or a number of prominent Shafīʿi jurists
who believed that "true consensus ijma apart from that of Muhammad's
Companions, did not exist" and that "the constant continuous existence
of mujtahids was a theological requirement."[13] After the 11th century, Sunni
legal theory developed systems for ranking jurists according to their qualifications
for ijtihad. One such ranking placed the founders of maddhabs, who were
credited with being "absolute mujtahids" (mujtahid muṭlaq) capable of
methodological innovation, at the top, and jurists capable only of taqlīd at the
bottom, with mujtahids and those who combined ijtihād and taqlīd given the
middle ranks.[Note 1] In the 11th century, jurists required a mufti (jurisconsult) to be
a mujtahid; by the middle of the 13th century, however, most scholars considered
a muqallid (practitioner of taqlīd) to be qualified for the role. During that era
some jurists began to ponder whether practitioners of ijtihad continued to exist
and the phrase "closing of the gate of ijtihād" appeared after the 16th century.

Shi’ah jurisprudence did not accept the concept of the ‘closing of the gates of
ijtihad’. For the Shi’ah, the hidden Imam (the 12th Imam of the Shi’ah, who was
subsumed in the mosque of Samara near Baghdad) has always been a source of
reinterpretation of existing concepts and even of fundamental changes. But, as a
matter of fact, Shi’ah jurisprudence, like that of the Sunni, entered into a period
of stagnation around the 10th century. Therefore Some authors are of the opinion
that gates of Ijtihad have closed, while others state that they never closed.

Yet there are others who fall in between the spectrum The first group argues that
there was an ijma by which the gates to ijtihad were closed to prevent every
other person from exercising ijtihad and to follow their own personalized version
of Islam. Ostrorog belongs to this group but mentions how this closure caused the
suppression of the development of Islamic law. The process of closure has been in
an orderly manner with initially ijtihad being permissible in minor matters which,
when settled, the gates were sealed (Gibbs). This resulted in the outcome that
what has been established in the four schools i.e. Hanafi, Maliki, Shafi’i and
Hanbali, is the final word and there can be no change or ruling that falls outside
these four schools. As Brown explains, Islam became fossilized.

However, the second group which includes academics like Hallaq. reject both the
notions of closure or narrowing of the gates of ijtihad. Hallaq argues that ijtihad,
being an integral part of Islamic legal theory was of principal importance in
determining judicial judgments. In fact, he goes on to state that jurists who
opposed exercise of ijtihad were ostracized from Sunni sect. He bases his
argument on the Zahiree school of jurisprudence (now extinct) which rejected
qiyas as well as ijtihad. As a result, this school was excluded from the
jurisprudential limits defining Sunnism. Hallaq also regards ijtihad as a religious
duty and maintains that it can only end when jurists qualified to perform ijtihad
either refuse to perform it or there do not exist any mujtahids.

The third group which falls within these two extremes have a different outlook on
the matter. Faruki writes an account whereby mufti Mohammad Shafi elaborated
when ijtihad can be used in modern times. These, according to him are
contemporary issues on which ijma has not yet reached. This seems to be in line
with the Islamic jurist Shawkani who states that there was never an agreement
with the Hanbalis arguing that the gates of ijtihad can never be closed.Scholars
like Allama Iqbal had argued that the exercise of ijtihad was not only the right, but
also the duty, of present generations if Islam was to adapt itself successfully to
the modern world (Coulson).

By relying on the belief of modern scholars many countries have carried out law
reforms to meet modern legal challenges. The first such kind of reliance on Ijtihad
was seen in the Egyptian Law of Testamentary Dispositions of 1946. This
interpreted (Verse 180 of Surah 2 of the Quran) which compels a muslim that he
should declare his nearest kinsmen as heir of the property. However Sunni jurists
believes that this verse was abrogated when latter verse was revealed in same
surah which had set certain share for certain heirs. However some Jurists believe
that abrogation only applies to those heirs who are particularly mentioned in the
Quran. The Egyptian reformers adopted this view and then exercised ijtihad to
designate orphaned grandchildren as the only heirs entitled to such an obligatory
bequest.

Another example of application of Ijtihad to reform the law was given by the
Tunisian reformers when prohibiting polygyny. The memorandum accompanying
the Tunisian Law of Personal Status of 1956 states that the juristic basis for the
reform was the Qur’an itself. Surah 4 verse 3 of the Qur’an provides that a man
may marry polygynously only where he is able to deal equally with several wives.
Verse 129 of the same surah, however, states that however “hard a man tries he
will never be able to treat several wives equally”. Interpretation of these
apparently contradictory verses in traditional jurisprudence was that, as long as
the man dealt equally with his wives in practical matters such as maintenance,
housing and spending time equally between them, he had fulfilled all the
obligations imposed upon him. The traditional jurisprudence interpretation of this
verse was that as long as the man would deal with his wives equally in practical
matters such as housing or spending equal time with them, he will fulfill his
obligations .The Tunisian lawmakers rejected this interpretation and adopted the
interpretation advanced by the 19th century Egyptian jurist, Muhammad Abduh,
that the two verses read together amounted to a prohibition of polygyny because
practically a man would never be able to give equal treatment to all his wives and
that is why the banned polygyny. Another interesting use of judicial ijtihad was
the judgment of Mr Justice Rabbani in Md Hefzur Rahman v Shamsun Nahar
Begum. In this judgment, the learned judge re-interpreted the Qur’anic verses to
mean that a woman was entitled to receive maintenance as long as she remained
a divorcee (i.e. until she re-married). The traditional interpretation is that
following divorce a woman will receive maintenance only while she is observing
the iddah. In KHURSHID BIBI V MUHAMMED AMIN, the Supreme Court of
Pakistan gave a new interpretation of the verse on khul’ which effectively gave
the court the right to grant a judicial khul’.