Journal of Islamic Law and Judiciary

-Volume V, 2010 Pp. 8

Dynamic Approach of Islamic Jurisprudence: A Case Study of Ijtihad and its

Application in the Contemporary World
*Mohammed Belayet Hossain

Critics of shari'ah law often fail to evaluate the flexible approaches and
dynamism of Islamic jurisprudence. Consequently, their conclusion lacks
prudence and conclusiveness. While the Quran and Sunnah insist on use
of ijtihad and achieving excellence, the blind anti-shari'ah elite, unaware
of this dynamic Islamic approach voice their unsubstantiated fears about
the shariah and its implementation as introduction of centuries old law
and fiqh. On the other hand, it also happens that if a true Muslim comes
forward to articulate ideas to which people are unaccustomed or to
announce his eagerness to practice ijtihad he becomes a target of a group
of Muslims. Indeed despite nonvariability of the Qura'n and the Sunnah
there exists enormous room for legislation, even new legislation. Shari'ah
even does not have any problem with the adaptation of a law in
.agreement with its own philosophy
Judicial dynamism is an inextricable part of Islamic legal system. As we all
know Islamic laws were not codified in the past, some argue that it is
against the very nature of Islamic jurisprudence that the shari 'ah would
be codified since it is an artistic matter of interpretation and ruling. It is
such a legal thought where the jurist and the judges enjoy unfettered
freedom in explaining, sentencing and interpreting the principles. Mastery
of the relevant texts and methodology, a mastery that until recently was
largely the province of Islamic jurists. Joseph Schacht explains1 Islamic law
as representing 'an extreme case of a 'jurists' law' the term that has been
.borrowed from the Roman law
Once the schools of Islamic law had sufficiently set and their typical rules
had developed, the fiqh (jurisprudence) literature was generally treated as
the primary source of law. That is, it was typically juristic elaborations of
the meanings of the Qur'an and Sunnah that were consulted to resolve
legal questions, rather than the Qur'an and Sunnah. To help clarify legal
problems that were not resolving in a primary source, jurists could use
sources such as legal handbooks, fatwa collections, commentaries, and
super commentaries, meaning that aspects of the fiqh literature might be
utilised as secondary sources. But in appropriate case(s), decisions of the
predecessors may well be reversed. Thinking the predecessors as infallible
.is one of the major causes of taqlid
Source methodology of Islamic jurisprudence is of such kind that it can
cope with any circumstances, can meet the challenges of new phases.
Indeed it provides with the means that saves Islamic law from stagnation
.and backwardness

The Qi'yas and Ijtihad: dynamism in Islamic Law

One of the fundamental asl, or principles, of classical Islamic jurisprudence
is qiyas, or analogical deduction. Literally, qiyas means measuring or
comparing and is the method whereby the rule contained in a clear text
(nass) of the Qur'an or Sunnah or even a rule which has been sanctioned
by ijma' (from the Qur'an and sunnah), is extended to cases not explicitly
covered by the Qur'an and Sunnah on the grounds of material similarity in
the nature of the two cases or by investigating the 'illa (motive, ratio
 decidendi) of the provision in the Qur'an and Sunnah and identifying the
existence of the same 'illa in the new case and, thereafter, deciding it
:similarly.2 The basic meaning of Qi'yas"3 is
to compare, take after, or measure, and in jurisprudence it has hitherto
been defined as the ascertainment of a legal rule for a new case or
problem by deduction from a rule laid down in the Qur'an and Sunnah (or
even in an ijma' verdict), by means of establishing a common link, (illa),
between the original case and the new case sought to be covered by the
same hukm, or shari'ah value,4
What we understand from the above definition is that qi'yas is a way of
ascertaining a legal rule for a new problem by deduction. Although Imam
shafi’i was asked if ijtihad and the qiyas are different and he answered in
the affirmative. According to him, they are the two terms with the same
:(meaning. He said (about their common basis
on all matters touching the life of a Muslim there is either decision or an'
indication as to the right answer. If there is a decision, it should be
followed. If there is no indication as lo the right answer, it should be
sought by ijtihad, and ijtihad is qiyas (analogy)'.5
Although both ijtihad and qiyas seem to be similar there is a subtle
difference. Shafi'i has elaborately discussed (in Risalah) the very nature of
.qiyas and conditions for its usage
In response to a question6 regarding the application of it he replied: Qiyas
is of two kinds: the first, if the case in question is similar to the original
meaning of the precedent, no disagreement of this kind is permitted. The
second, if the case in question is similar to several precedents, qiyas must
be applied to the precedent nearest in resemblance and most appropriate.
.But those who apply qiyas are likely to disagree in their answers
Qiyas can be applied by the modern jurists in solving the problems that
arise in modern age. The jurists have laid down the conditions for applying
:the qiyas as follows
a) that the qiyas must be applied only when there is no solution to the
matter in the Quran or in the Hadith
b) that it must not go against the principles of Islam
c) that it must not go against the contents of the Quran neither must it be
in conflict with the traditions of the Prophet
d) that it must be strictly based on either the Quran, Hadith or the Ijma '.7
There are some jurists who oppose the use of qi'yas. The mu’tazilites like
Ibrahim b. Sayyar, and the scholars of Zahiri school including Ibn Hazm of
Andalusia, also opposed the use of qiyas but modern jurists use it for
reaching a decision regarding a new case never encountered in the past
by the Islamic scholars. The Shi'ites sects like the Ithna Ashariyyah, the
Usulis and the Ibadites (a Kharajite sect) employ the terms 'aql and ra'y
.for the same concept of qiyas

The objectivity in Islamic jurisprudence

Shariah never lacks dynamism. Critics must not ignore the Istihsan or
Masalih (public interest) principle which is considered by the Islamic jurists
.in interpretation of legal norms and enactment of new laws
The shariah is predicated on the benefits of the individual and that of the
community. Interpretation of shariah norms requires a clear understanding
of the objectivity in the principles of shariah. This objectivity is termed as
maqasid al-shariah or the goals and objectives of Islamic law, which is a
very important concept but yet, according to some jurists, somewhat
.ignored theme of shariah
 The laws of shariah are designed so as to protect the benefits of the
individual and that of the community and to facilitate improvement and
perfection of the conditions of human life on earth Kamali observes as
:follows
Islamic legal thought, broadly speaking, pre-occupied with concerns over'
conformity to the letter of the divine text, the legal theory of usul al fiqh
'.has advanced that purpose to a large extent
Although nowhere in the Quran is there any specific terms to the effect
that the shariah has been enacted for the benefit (maslaha) of the people
but this is a definitive conclusion, which is drawn from the collective
reading of a variety of textual proclamations. By ‘maslaha’ Shatibi means
that which concerns the subsistence of human life, the completion of
man's livelihood, and the acquisition of what his emotional and intellectual
being require of him, in an absolute sense.9 Shatibi adds that the benefit
(masalih) is to be understood in their broadest sense, which is inclusive of
all benefits pertaining to this world and the hereafter.10 Therefore, the
doctrine of public benefit plays a great role in interpretation and ijtihad.
The jurists of our time can derive benefit from this doctrine while facing
.new problems
The jurists, through the instrument of ijtihad, reach the conclusion of their
judgment regarding a specific text and in the absence of any text they
apply their judicial understanding to analyse the nature of the issue in
framing a ruling. In the absence of a clear text (nas) here we find
numerous diversities among the scholars. Three types of ijtihad (in this
case) can be roughly identified11 such as Ijtihad qiyasi when it is done
through analogical reasoning which takes into account the illa or effective
cause (ratio tegis) of a ruling extracted from the sources; ijtihad zanni, in
the case of an impossible reference to a known effective cause; the latter
is often linked to ijtihad istislahi, based on maslaha (public interest) and
seeks to deduce the ruling in the light of the overall purpose of the
.shariah

The conditions for application of ijtihad

Islamic jurisprudence has imposed restrictions on the work of ijtihad by
.providing very tough conditions for it
Shatibi (one of the great scholars of Islamic jurisprudence) distinguishes
between the very nature of ijtihad and its instruments. His overall view, in
this sense, is a clarification, for he encapsulates all the conditions under
two main headings. Thus, according to him, "the degree of ijtihad has
:been attained when two qualities are present
.A deep understanding of the objective (maqasid) of the Shari'ah .1
A real mastery of the different methods of deduction and extraction .2
(istimbat) based on knowledge and understanding." 12
The "Five Essential Principles" (ad-daruriyyat al-khamsa), that has been
described under the heading -maqasid al sharia (the objectives of shariah)
(Religion, Life, intellect, lineage and property), along with the necessary
distinction that exists between essentials (daruri), complementary (haji)
and embellishments (tahsini), from the framework given by the Lawgiver
to direct the researches of the mujtahid, and, as such, they represent the
fundamental reference. The mujtahid must also know'13 which
instruments he can resort to among the general maxims of fiqh, qiyas,
.istihsan and so forth
Tariq has synthesised the works of the scholars of Islamic jurisprudence
:regarding the qualities of the mujtahids as follows
 :The mujtahid must attain14
A knowledge of Arabic to the extent that it enables him to correctly .1
understand the Qur'an and the Sunnah and, especially, the verses and
.(ahadith containing rulings (ayat and ahadith al-ahkam
A knowledge of Qur'anic and Hadith sciences in order to know how to .2
understand and identify the evidences within the text (adilla) and,
.moreover, to infer and extract rulings
A deep comprehension of the maqasid al-Shari'a (the very objectivity in .3
the laws), their classification and the priorities they subsequently bring to
.the fore
A knowledge of the questions on which there was ijma: this requires .4
.('knowledge of the works on secondary questions (furu
A knowledge of the principles of analogical reasoning (qiyas) along with .5
its methodology (the causes - 'illa or circumstances - asbab of a specific
(.ruling, conditions - shurut etc
A knowledge of his historical, social and political context. That is, the .6
situation of the people around him (ahwal an-nas) and the state of their
,affairs, their traditions, customs, and the like
.Recognition of his competency, honesty, reliability and uprightness .7

Interpretation of the shari'ah in the changed circumstances

Yusuf al-Qardawi, a renowned living authority, has tried to set some of the
rules, which are necessary for the application of adequate ijtihad today.
He has written extensively on this matter and more distinctively in his
book, “Contemporary Ijtihad, between Regulation and Disintegration”15.
In his book, he reminds us of the principal conditions of ijihad, both
fundamentally and in light of our contemporary situation. He specifies
:three aspects, which, according to him, characterise ijtihad today

Selective ijtihad based on preference .1

Says al-Qardawi, "What do we mean by 'selective ijtihad'? It is the choice
of one of the inherited legal opinions from our wide Islamic juridical legacy
in order to stipulate rulings on it or to judge through it. This legal opinion
is chosen as a preference from amongst other opinions and statements.
We do not agree with those who say we could equally choose among any
inherited legal opinion truly stipulated by the later mujtahidin without
looking for evidence (dalil), especially if (this opinion) is linked with one of
the followed schools of law. In fact, this kind of attitude is but pure
.imitation (Taqlid) and has nothing to do with the ijtihad we are calling for
This means that (as opined by Tariq)16 the 'ulama' of today has to
reconsider all the opinions of the previous mujtahidin in the course of
history so that they can assess their contributions and so choose the most
appropriate one according to its authenticity and contemporary context.
Thus, our inherited Islamic rulings are not all of the same value even if
they were considered as qualified by Muslims at a certain moment in
.history

New rulings based on original analyses .2

Al-Qardawi says: "What do we mean by original ijtihad (ijtihad insha'i)?: it
is the inference and extraction of a new ruling regarding a specific legal
question that has never been stipulated by previous 'ulama'; so was the
legal question an old or new one? The legal question subject to ijtihad and
about which there were divergences between previous fuqaha presents at
least two opinions and it is possible that a third opinion appears
 afterwards; if it is possible to have a divergence between three then it is
possible to have it between four, and so on... Yet, the majority of legal
questions that the original ijtihad has to deal with are of a new nature,
unknown to our predecessors. The question had maybe not materialised
during the era or in a less accurate aspect and this did not push the faqih
to look for a solution through a new ijtihad."17

(The necessity for collective ijtihad (ijtihad jama'i .3

Al-Qaradawi opines that depending on the subject, contemporary ijtihad
has to mix selection and original analyses and that the fuqaha (jurists) of
today should master a wide range of religious knowledge which is, per se,
very demanding. At the same time, the legal questions become more and
more complex for they require specific competences and specialisation in
.science, technology, medicine and economics, etc

:Al-Qardawi appropriately states as follows

It is necessary, as regards new, important problems, not to rely on“
individual ijtihad only but to move from individual to collective ijtihad in
which there is consultation between scholars about one determined
problem and (this should be done) especially for questions which are of
general interest. Collective opinion is nearer to the truth than individual
opinion, no matter how wide the knowledge of the latter is." He adds that
there is "the grace of consultation" (shura) whose outcomes can be
guaranteed if, and only if, "absolute freedom is assured" to pursue the
researches in an appropriate atmosphere."18
According to Al-Qaradawi Selection, new Islamic rulings and collective
decisions are the three essential aspects of present-day ijtihad. Many
'ulama' have been of the same opinion for the last 50 years, especially
when it appeared that the Islamic countries must refine their religious and
intellectual vigor if they are to face the implausible changes the world is
witnessing in the social, economics and technological sphere of
influence.19 The science of Islamic law is well disciplined and able to meet
the challenges of every age. The jurists of modern time should exercise
their utmost deduction and exposition to explain certain shariah rulings
and fatwa (given by the early jurists) in the changed circumstances. But it
should be borne in mind that the judicial exposition or dealings with the
new situations is a job of extraordinary jurists and not a matter of secular
legislation. Failure of realisation of this might lead to unacceptability of the
interpretation or neo-legislations. The jurists of our time have to act upon
Al-Ghazzali's view20 -the combination of 'aql (reasoning) and received
.(evidence (sama
We should realise that it is impossible at this time for one person to be a
mujtahid mutlaq. or absolute legal authority in his own right (on the
interpretation of the sources), capable of passing judgment on all manner
of issues, as long as this is so, academic councils are the best
alternative.21 Muslim jurists are aware of both the occurrence of and the
need for change in the law, and they formulated this awareness through
such maxims as 'the fatwa changes with changing times' (taghayyur al-
fatwa bi taghayyur al-azman) or through overt notion that the law is
subject to modification according to 'the changing of the times or to the
'.changing conditions of society

Conclusion
 The source methodology of Islamic jurisprudence is exhaustive, coherent
and is able to deal with new situations. Rigidity in deen is prohibited, our
deen is a deen of wasatiyyah (balanced), it is a deen of moderation. Jurists
of our time have to take this notion into consideration seriously so that
they do not interpret the shariah principles on their whims. Extremism
must be avoided in interpreting and applying the shariah since it causes to
lose rational component, in which case one fails to weigh things rationally.
Muslim community needs more scholars having expertise in the nusus (the
texts) as well as the waqaa'(context) to meet the challenges of our time
and those of the coming phases. I like to conclude with the words of Taha
Jabir22 : 'Unless the call to ijtihad becomes a widespread intellectual
trend, there is little hope that the Ummah will make any useful
contribution to world civilization or correct its direction, build its own
culture or reform its society. To liberate the Muslim mind, the Ummah
.'needs ijtihad in every aspect of its life

References
Bernard G Weiss, 'The Spirit of Islamic Law', The University of .1
Georgia Press, Athens and London, at p-113
This definition abridged by Kemal A. Faruki in his famous book .2
'Islamic Jurisprudence"(at p-63,ibid)gives a clear picture of the term -Qiyas
Imam Shafi'i explained 'opinion' as meaning 'ijtihad' and 'ijtihad'as .3
meaning 'qiyas'.Hc said they are the two names for the same thing.(al-
(Risala,Cairo,476
Faruki,at p-140 .4
ibid,at p-73 .5
He was asked: if" (legal) knowledge is derived through qiyas .6
provided it is rightly applied-should (the scholars) who apply analogy
agree on most (of the decisions), although we may find them disagreeing
?on some
This has been summarised by A.Rahman Dr, in 'Shari'ah:The Islamic .7
Law', A.S.Noordeen publication, Kuala Lumpur 2002.at p-77
M.Hashim Kamali, 'Maqasid al Shariah:The objectives of Islamic .8
Law'p-3
Muhammad Khalid Masud. 'Shatibi's Philosophy of Islamic Law', .9
.Islamic Book Trust, Kuala Lumpur,1995, at p 151
Kamali, 'The objectives of Islamic law',p-9 .10
Dr. Tariq Ramadan, 'To Be a European Muslim', The Islamic .11
.Foundation UK, 1999 at p85
Ash-Shatibi, al-Muwafaqat fi Usul al-Shari’a (Dar al-Ma'rifat, .12
Lebanon, new edition, 1996) Vol.4, the Chapter on 'Conditions of Ijtihad',
p,477. Translated and cited by Tariq. at p-86-87
As Tariq mentiones. at p-87 .13
Tariq. at p-87 .14
Yusuf al-Qardawi, al-ljtihad al-Mu'asir, Bayn al-Indibat wal-Infirat .15
p.20, translated in English and quoted by Tariq Ramadan, ibid, at p-94-97
ibid,at p-96 .16
Al -Qaradawi, at p-34,translated and quoted by Tariq at p-97 .17
Al-Qardawi gives some examples of this kind of ijtihad in economics
(zakat, heritage and the like) and within scientific and technological
progress (photography, abortion and the like) thus demonstrating that
Muslims need specific answers to new problems, which the previous
.'ulama' did not face
 Al-Qaradawi, at 97-99 .18
This view has been supported by Taha Jabir Al-Alwani. in "Usul AI- .19
Fiqh Al-Islami'. English Translation published by International Institute of
.Islamic Thought, USA. 3rd ed. 1999
He writes, “The noblest sciences are those in which reason (aql) and .20
received evidence (sama') are married, and in which conclusions based on
reason accompany those based on revealation.The science of fiqh is one
of these sciences. It draws equally from the purity of revelation and the
best of reason, yet. it does not rely purely on reason in way that would be
unacceptable to revealed law, nor is it based simply on the kind of blind
acceptance that would not be supported by reason.” Quoted by Taha Jabir,
ibid, at p78
The view of "collective ijtihad' of AI-Qaradawi has been echoed in .21
the opinion of Taha Jabir. at p-81
Taha Jabir, 'Issues in Contemporary Islamic Thought', The IIIT, .22
London, Washington, 2005, p67