IJTIHAD AND ITS SIGNIFICANCE FOR ISLAMIC LEGAL INTERPRETATION

Nazeem MI Goolam* 2006 MICH. ST. L. REV. 1443 TABLE OF CONTENTS INTRODUCTION: THE MEANING AND FOUNDATIONS OF IJTIHAD (PERSONAL REASONING).......................................................................................1444 I. IJTIHAD THROUGH THE AGES ...............................................................1446 A. Ijtihad by the Companions of the Prophet .................................1446 B. The Ijtihad of Umar....................................................................1446 1. Suspension of Punishment for Theft in the Year of Famine..1447 2. Imposition of the Death Penalty for Conspiring in the Crime of Murder ................................................................................1447 C. The Ijtihad of Bakr .....................................................................1449 II. A BRIEF EXPOSITION OF THE THEORIES OF ISLAMIC LAW .................1449 A. Strict/Literal Interpretation.........................................................1450 B. Purposive/Contextual Interpretation...........................................1450 III. THE FOUR AIMMAH ...........................................................................1451 A. Imam Malik................................................................................1452 B. Imam Abu Hanifa.......................................................................1452 C. Imam Al-Shafii .........................................................................1453 D. Imam Ahmad Ibn Hanbal...........................................................1453 IV. SHATIBIS PHILOSOPHY OF ISLAMIC LAW .........................................1453 A. Shatibi on Maslahah ..................................................................1454 B. Shatibi on Ijtihad ........................................................................1455 V. IJTIHAD AND IFTA BY IBN RUSHD IN CORDOBA IN 516....................1456 VI. IJTIHAD IN THE EIGHTEENTH CENTURY ...........................................1458 VII. IJTIHAD IN THE NINETEENTH AND TWENTIETH CENTURIES ............1459 VIII. PUSHING THE LIMITS OF IJTIHAD: CALLS FOR CREATIVE INTERPRETATION IN THE TWENTY-FIRST CENTURY ...1464 CONCLUSION: THE IJTIHAD OF THE TWENTY-FIRST CENTURY SHOULD DRAW ON THE RICH HERITAGE OF PURPOSIVE ISLAMIC LAW ..........1466

* Associate Professor, Department of Jurisprudence University of South Africa. BA LLB (University of Cape Town), MCL (International Islamic University, Malaysia). This paper was presented at the symposium, The Future of Islamic Law Scholarship, at the Michigan State University College of Law in East Lansing, Michigan on April 13, 2006. The author thanks Professor Hisham Ramadan for the invitation to participate in the seminar.

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Ask the people who are learned if you do not know. Qur'an, Sura an-Nahl 16:431 INTRODUCTION: THE MEANING AND FOUNDATIONS OF IJTIHAD (PERSONAL REASONING) Mohammad Hashim Kamali states that after the Quran and the Sunnah,2 ijtihad is the most important source of Islamic law. The learned author writes:
The main difference between ijtihad and the revealed sources of the Shariah 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. In this sense, ijtihad continues to be the main instrument of interpreting the [D]ivine message and relating it to the changing conditions of the Muslim community in its aspirations to attain justice, salvation and truth.3

Kamali adds that because ijtihad derives its authority from Divine Revelation, its propriety is measured by its harmony with the Quran and the Sunnah. He argues that the essential unity of the Shariah lies in the degree of harmony that is achieved between [R]evelation and reason and that ijtihad is the principal instrument of maintaining this harmony.4 According to Kamali, the secondary sources of Islamic law such as consensus of opinion (ijma), analogy (qiyas), juristic preference (istihsan), and considerations of public interest (maslahah) all represent different forms of ijtihad.5 Linguistically speaking, the word ijtihad emanates from the root word al-juhd, meaning exertion, effort, trouble or pain. Al-juhd denotes exercising ones capacity, ability, power, or strength in a correct and righteous manner. Speaking to either its technical or legal nature, a number of scholars have provided definitions of the term ijtihad. These include Al-Ghazali, AlAmidi, and Al-Shirazi. Saif al-Din Al-Amidi defined ijtihad as the total expenditure of effort in the search for an opinion as to any legal rule in such a manner that the individual senses (within himself) an inability to expend further effort.6 By contrast, Abu Ishaq Al-Shirazi defined ijtihad as [i]n

1. 2. 3. (1991).

Quran, Sura an-Nahl 16:43. These are the primary sources of the Shariah. MOHAMMAD HASHIM KAMALI, PRINCIPLES OF ISLAMIC JURISPRUDENCE 366

4. Id. 5. Id. 6. Bernard Weiss, Interpretation in Islamic Law: The Theory of Ijtihad, 26 AM. J. COMP. L. 199, 207 (1978).

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the language of the jurists, . . . the exertion to the utmost and the full exercise of ones capacity in arriving at a legal value.7 The legal foundations of ijtihad are founded on the well-known hadith8 concerning Muad ibn Jabal. When the Prophet Muhammad (peace be upon him (pbuh)) asked him what he would do if a problem is presented to him, Muad ibn Jabal replied that he would judge by what is contained in the Quran.9 The Prophet (pbuh) then asked him what he would do if there was no authority in the Quran. Muad responded that he would make a judgment in accordance with the Sunnah of the Prophet (pbuh).10 When the Prophet (pbuh) asked him what he would do if he found no authority in the Sunnah, Muad ibn Jabal replied that he would exercise his opinion and spare no effort in so doing.11 At this the Prophet (pbuh) expressed his pleasure, thus indicating the position and status of the mujtahid in Islam.12 The Prophet (pbuh) 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. Nasim Mitha argues that the act of sending a scholar such as Muad ibn Jabal to Yemen indicated that the spread of Islam necessitated a mufti or mujtahid in different areas.13 A person would thus be able to apply the Shariah in a diverse geographical and cultural situation, and this would demonstrate the ability of the Shariah to be a living law.14 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 or her mind in the context of the various theories of, and approaches to, legal interpretation in Islam. As the cultural and legal contexts within which Islamic law is applied expand, this Article submits that authorities exercising itjihad should [a]sk the people who are learned if [they] do not know.15 To aid in this enterprise, this Article provides a brief exegesis of these theories and the application of ijtihad through

7. Mogamad Faaik Gamieldien, Ijtihad in the Time of the Khulafa Al-Rashidun: A Review of Selected Case Studies (1993) (unpublished M.C.L. thesis, International Islamic University of Malaysia) (on file with Main Library, International Islamic University Malasyia); see also NASIM MITHA, FATWA: ITS ROLE IN SHARIAH AND CONTEMPORARY SOCIETY WITH SOUTH AFRICAN CASE STUDIES (2000). 8. This hadith establishes the legal foundations for individual ijtihad, as opposed to communal or consensual ijtihad. Consensual ijtihad is based on the concept of shura (consultation). 9. See Gamieldien, supra note 7, at 30. 10. Id. 11. Id. 12. Id. 13. Id. 14. MITHA, supra note 7, at 70. 15. Quran, Sura an-Nahl 16:43.

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the ages, beginning with the manner in which the companions of the Prophet Muhammad (pbuh) practiced ijtihad. I. IJTIHAD THROUGH THE AGES A. Ijtihad by the Companions of the Prophet The Prophet Muhammad (pbuh), who was the last of Gods Messengers on earth, delivered the Divine Message and part of his mission was to ensure the stability and continuity of that message.16 In allowing his companions to practice ijtihad he was, in fact, testing their methodologies in the application of the principles of the Shariah and also testing their intellectual acumen in solving novel problems. The Prophet (pbuh) consistently endeavoured to make his companions self-sufficient in the legal tools necessary to solve problems that would confront them after his demise. It was the responsibility of the Prophet (pbuh) to ensure that he left behind a group of companions who were well-versed not only in the memorization of the Quran and the implementation of his Sunnah but also in the practical application of those laws. If the Prophet (pbuh) had failed to teach his companions the rules of ijithad, it would have resulted in a static legal system, devoid of freedom of thought and action. Only ijtihad could ensure the eternal universality of the Shariah. The general methodology of ijtihad employed by the companions was the approach adopted by Muad ibn Jabal.17 They would first consult the Quran and then the Sunnah. If they found no authority in either, they would employ their utmost intellectual powers in the formulation of a legal value (hukm) that would be in harmony with the Quran and the Sunnah; in other words, they exercised their own ijtihad.18 Beyond the general methodology of the ijtihad of the companions, they also developed their own individual methodology in the application of ijtihad.19 Because Umar made a particularly outstanding contribution to ijtihadespecially in the light of his emphasis on the spirit of the law rather than its letterit is important to examine a few of his decisions in this regard. B. The Ijtihad of Umar During the time of the Prophet (pbuh), Umars ijtihad led him to abstain from performing the burial (janazah) prayer on a hypocrite.20 When
16. 17. 18. 19. 20. Gamieldien, supra note 7, at 37-38. See supra notes 10-14 and accompanying text. See Gamieldien, supra note 7, at 70. Id. Id.

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the Prophet (pbuh) wanted to perform such prayer Umar said, Did Allah not prohibit from praying on these hypocrites? The Prophet (pbuh) replied that, in terms of the following Quranic verse, he was entitled to choose between two options, namely whether thou dost pray unto God that they be forgiven or dost not pray for them[it will be all the same; for even] if thou went to pray seventy times that they be forgiven, God will not forgive them . . . .21 After the Prophet (pbuh) performed the prayer, the following verse was revealed, endorsing the opinion of Umar: and never shalt thou pray over any of them that has died, and never shalt thou stand by his grave.22 As far as the ijtihad of Umar during his own reign is concerned, two instances are selected here: first, his suspension of the punishment for theft during the year of the famine, and second, the imposition of the death penalty for all who conspire in the crime of murder. 1. Suspension of Punishment for Theft in the Year of Famine The Quran states that the punishment for a thief is the cutting off of the hand and that this is a deterrent ordained by God.23 While the Prophet (pbuh) applied this law strictly, Umar suspended the punishment for theft during a year in which famine prevailed in Medina.24 He refused to amputate the hands of two men who had allegedly stolen meat during this period, on grounds of the famine as well as the hunger suffered by the men.25 In reaching his decision, Umar relied on the spirit and the general import of the Quranic teaching that necessity may serve as a justification ground for wrongdoing. In Umars view, to punish these men, who stole out of necessity, would amount to a violation of the spirit of the Quranic legislation.26 2. Imposition of the Death Penalty for Conspiring in the Crime of Murder The Quran declares:
And we ordained for them therein [Torah], a life for life, an eye for an eye, and a nose for a nose . . . .27

21. 22. 23. 24. 25. 26. 27.

Quran, Sura at-Tawba 9:80. Quran, Sura at-Tawba 9:84. Quran, Sura al-Maeda 5:38. See Gamieldien, supra note 7, at 100-10. Id. Id. Quran, Sura al-Maeda 5:45.

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Just retribution is thus expressly mentioned for the case of murder. The principle of just retribution means that the life of the murderer shall be taken as just recompense for the life of the victim. However, what happens where more than one person kills another? In this regard, Umar once commented on a murder that had occurred in Yemen. He argued that if all the inhabitants of Sana28 had participated in it he would have had them all put to death.29 Does this ruling of Umar violate the Quranic ruling of a life for a life? Umars approach was based on a basic principle underlying the Shariah, namely equality. In his view, all the accomplices had the intention to commit murder; they acted with a common purpose and therefore they should all be treated equally. If the verse calling for a life for a life30 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 perpetrators. Alternatively, 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. Umars decision was based on the underlying rationale of the verse and its legal and social objectives. 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-dharai).31 Sadd al-dharai implies preventing the means to an expected end which is likely to materialize if the means towards it is not also prevented.32 That said, sadd al-dharai is but one of the tools of interpretation and would be more often used by the Ahl al-Ray. It is not a theory of interpretation. These two instances of ijtihad on the part of Umar give us a basic insight into his approach to legal interpretation. Thus, where it is necessary, in the light of changing social conditions, to suspend or modify a ruling of the Quran, this should be done. Umar always bore in mind the underlying consideration of the welfare of the people. Fundamentally, he believed that the spirit of the law is more important than its letter. A further merit of Umars approach to ijtihad was his view that all ijtihad was practiced and applied within time and space and that no ones ijtihad was valid for all time. Umar realized fully that ijtihad would differ from age to age and from place to place. This remains the abiding strength of his ijtihad.
28. A city in Yemen. Today it is the capital of Yemen. 29. See infra Part IV (discussing a fascinating account by Wael Hallaq of a murder in Cordoba in 1122 involving more than one perpetrator). 30. Quran, Sura al-Maeda 5:45. 31. ABDUR RAHMAN I. DOI, SHARIAH: THE ISLAMIC LAW 84 (TaHa Publisher Ltd. 1997) (1984). 32. KAMALI, supra note 3, at 310; MITHA, supra note 7, at 67-69.

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Abu Bakr, too, placed great emphasis on the normative principles and the objectives of the Shariah. For him, any ruling which is supported by the normative principles of the Shariah and does not infringe a settled rule would be valid.33 For the companions, ijtihad was regarded as the method, par excellence, of arriving at the truth, developing the intellect, and broadening the understanding of the objectives of the Shariah.34 They regarded the Quran and the Sunnah as totally binding and did not deviate from the injunctions of these two sources.35 While making extensive use of qiyas,36 they always took into consideration the welfare of the people within the parameters of the objectives of the Shariah.37 The companions also made constant reference to the principle of sadd al-dharai.38 II. A BRIEF EXPOSITION OF THE THEORIES OF ISLAMIC LAW The history of the theories of Islamic law is founded on the debate between the Ahl al-Ray and the Ahl al-Hadith. While the latter relied on the ahadith or Sunnah of the Prophet (pbuh), the former engaged in personal opinion.39 The Arabic expression used by Muad ibn Jabal (in the wellknown hadith referred to earlier40) when he told the Prophet (pbuh) that he would exercise his own opinion was ajtahidu rayi. Muad used both the terms ijtihad and ray.41 In short, the approach of the Ahl al-Hadith may be regarded as the literal interpretation, textual interpretation, or strict interpretation approach, while the approach of the Ahl al-Ray may be seen as contextual interpretation or purposive interpretation.42 Viewed differently, the debate between
33. See Gamieldien, supra note 7, at 116. 34. Id. 35. Id. 36. Analogical reasoning, one of the secondary sources of the Shariah. 37. See Gamieldien, supra note 7, at 116. 38. Id. A well-known example of the application of this principle was the case of a husband divorcing his wife three times while on his deathbed. The divorce being perfectly legal, the only reason for it was to preclude the wife from inheriting. The companions considered this to be flagrantly unjust, inequitable, and legally intolerable. To permit such a divorce would be contrary to the spirit of the Shariah. See Gamieldien, supra note 7, at 6979. The great Andalusian Maliki jurist, Al-Shatibi, placed great emphasis on the principle of sadd al-dharai. See M.K. MASUD, SHATIBIS PHILOSOPHY OF ISLAMIC LAW 154 (Islamic Book Trust 2000) (1939). 39. Abu Hanifa, one of the four great Imams of Islamic (Sunni) legal thought, is regarded as a champion of ray (personal opinion). See MUHAMMAD ABU ZAHRA, THE FOUR IMAMS: THEIR LIVES, WORKS AND THEIR SCHOOLS OF THOUGHT 228-66 (2001). 40. See supra text accompanying note 8. 41. See MITHA, supra note 7, at 69. 42. See KAMALI, supra note 3 for a general overview of each approach.

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the Ahl al-Ray and the Ahl al-Hadith may also be regarded as a debate between the literal or strict interpretation of statutes (or texts) on one hand, and creativeor purposive interpretation, on the other hand.43 A. Strict/Literal Interpretation This literalist approach is based on a desire to discover the true intention of the Lawgiver and to deviate as little as possible from the original text.44 Perhaps the staunchest proponent of the literal theory of interpretation was Imam Al-Shafii.45 His primary contribution in this respect was the idea that the Sunnah governs the meaning of the Quran.46 This is couched in the proposition al-sunnah qadiyah ala al-Quran, which means that the Sunnah is the decisive authority for determining the meaning of the text of the Quran.47 Therefore, if the opinion of a companion of the Prophet (pbuh) concerning a verse of the Quran differed from the explanation of that verse in the Sunnah, the latter would be preferred.48 The companions opinion would be regarded as analogy (qiyas) and as such, would be regarded as a source weaker than the Sunnah.49 B. Purposive/Contextual Interpretation By the fifth century of the Islamic era, Al-Shafiis theory of strict interpretation began to expand so as to yield a more flexible approach to interpretation.50 The most prominent proponent of this approach was AlGhazali. He initiated the theory of purposive interpretation, which was based on the maqasid al-shariah (the objectives of the Shariah).51 This theory was taken to full fruition by the great Maliki scholar from Andalusia, Al-Shatibi.52 Al-Ghazalis theory of interpretation advocates reasoning based on the general principles of the Shariah.53 Such general principles should be consistent with the purposes and the moral foundations of the Shariah. He divides the maqasid (purposes of the law) into dini (purposes of the Hereafter) and dunyawi (purposes pertaining to the
43. See IMRAN AHSAN KHAN NYAZEE, THEORIES OF ISLAMIC LAW: THE METHODOLOGY OF IJTIHAD 177 (1994). 44. Id. at 177-78. 45. Id. at 178-79. 46. Id. at 179-80. 47. Id. at 179. 48. Id. 49. Id. 50. Id. at 189-90. 51. Id. 52. See infra Part III for a more complete analysis of Al-Shatibis methodology. 53. See NYAZEE, supra note 43, at 213.

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world).54 Each of these purposes may be viewed as securing a benefit (manfaah) or repelling a harm (madarrah).55 For Al-Ghazali, the maqasid should either secure a benefit or repel harm, hardship, or injury.56 Since securing or acquiring a benefit and repelling harm represent human goals, the ultimate aim is the welfare of human beings through the attainment of these goals.57 While the dini purpose is to secure the din or religion of Islam, AlGhazali divided worldly purposes into four types: (1) the preservation of nafs (life), (2) the preservation of nasl (progeny), (3) the preservation of aql (intellect), and (4) the preservation of mal (wealth).58 Ultimately, the five primary and fundamental purposes of the Shariah are religion, life, intellect, progeny or lineage, and wealth or property.59 These five purposes are regarded as necessities (darurat).60 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.61 One may well view necessities as equivalent to principle, needs equivalent to policy and ease, and facility equivalent to morality or moral norms.62 According to AlGhazalis theory of purposive interpretation, a judge has access to three interpretive tools when deciding a case: the darurat, the hajat, and the tahsinat.63 This third level is the level of the ethical and moral values of Islam. 64 The interpretive approaches of the four Imams show that Islamic law does not permit only one interpretation in any given matter or on any particular set of facts. But rather, depending on whether a scholar adopts a strict or literal approach to interpretation or a purposive or contextaul approach to interpretation in exercising ijtihad, different yet acceptable solutions to legal problems are quite possible. III. THE FOUR AIMMAH Having briefly examined the theories of legal interpretation in Islam and the ijtihad of the Companions of the Prophet (pbuh), in particular that of Umar, it is important to make brief reference to the approaches of the

54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64.

Id. Id. Id. Id. Id. at 214. Id. Id. Id. Id. Id. at 214-15. See id. at 214.

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four great Imams, or aimmah,65 to legal interpretation. This Part will show that the four Imams displayed a flexibility in their interpretation of the law, with Imam Shafii taking the most rigid stance. A. Imam Malik Imam Malik stated that istihsan (discretion) [is] nine-tenths of knowledge.66 It is thus not surprising that decisions based on istihsan, when having to weigh the values of different proofs, are numerous in the Maliki school.67 Malik refined the principle of istihsan in his treatment of masalih mursala (considerations of public interest).68 As regards masalih mursala Abu Zahrah writes:
Islamic fiqh in its entirety is based on the best interests of the community. That which contains benefit is desired . . . and that which is harmful is prohibited. . . . So the manifest principle governing the legality of customs and traditions in the eyes of the Shariah is whether or not they are beneficial . . . .69

Imam Malik often relied on the principle of sadd ad-dharai (blocking the means), which entails that the means to what is forbidden are also forbidden.70 In summing up Imam Maliks approach to legal interpretation, one may say that he based it on flexibility in the application of the principles. The purpose of such flexibility was the achievement of the greatest benefit to the people. The spirit of the Shariah was more important than its letter. B. Imam Abu Hanifa When Imam Abu Hanifa could not find a text of the [Quran], Sunnah or fatwas of the Companions, he exercised ijtihad.71 In this regard, he employed the tools of qiyas and istihsan often.72 He did not stop his investigations on the ruling of issues which had actually occurred, but often extended his reasoning to rulings with respect to future problems.73

65. 66. 67. 68. 69. 70. 71. 72. 73.

The plural of imam in Arabic is aimmah. ZAHRA, supra note 39, at 103. Id. at 104. Id. at 105-08. Id. at 105. Id. at 108. ZAHRA, supra note 39, at 250. Id. at 251-54. Id. at 251.

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Al-Shafii considered the Quran and the Sunnah to have equal status in the Shariah, after which came ijma (consensus) and analogy.74 He expressly invalidated istihsan and stated that any ijtihad in which the mujtahid does not rely on the Quran, the Sunnah, ijma, or qiyas is istihsan because the mujtahid takes what he prefers in it.75 Such ijtihad, without relying on a firm text and proper evidence is, for him, unacceptable and has no connection to the Shariah.76 Al-Shafii rejected the purposive approach to interpretation and viewed the letter of the law as more important than its spirit.77 D. Imam Ahmad Ibn Hanbal Like Imam Malik, Ibn Hanbals approach to legal interpretation was purposive. He utilized the principle of public interest to a large extent.78 He was of the view that the fatwas of the Companions were often based on public interest.79 He also frequently employed the tool of sadd al-dharai.80 Having briefly referred to the approaches of the four Imams to legal interpretation, this Article now examines the work of perhaps the greatest exponent of the idea of maslahah (public interest), Al-Shatibi. IV. SHATIBIS PHILOSOPHY OF ISLAMIC LAW The great Andalusian Maliki jurist, Abu Ishaq Al-Shatibi, spent most of his life in the city of Granada. His greatest work is undoubtedly AlMuwafaqat.81 The significance of this work in modern Islamic legal thinking may be gauged by two scholars of the twentieth century, Muhammad Abduh and Moulana Mawdudi. Abduh advised both scholars and students to study the work so as to understand the true philosophy of Islamic lawmaking, while Mawdudi stated that, through a study of Al-Muwafaqat, law experts would acquire a deeper insight into the spirit of the fiqh.82 In his Al-Muwafaqat, Shatibi expounded the objectives of the Quran and the Sunnah more clearly and extensively than any other earlier work.83 He explained in detail the indispensable human needs and secondary neces74. 75. 76. 77. 78. 79. 80. 81. 82. 83. Id. at 366-73. Id. at 373-79. Id. at 378. Id. at 380-81. ZAHRA, supra note 39, at 495-98. Id. Id. at 498-99. MASUD, supra note 38, at 110. Id. Fiqh means Islamic jurisprudence. MASUD, supra note 38, at 110-11.

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sities of life and also analyzed the interconnectedness between human needs and legal texts comprehensively.84 If there is one outstanding characteristic of Shatibis approach to Islamic legal interpretation, it is that the spirit of the law is greater than its letter. 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, it is legally prohibited and must be prevented.85 What, then, was Shatibis approach to maslahah and ijtihad, respectively? A. Shatibi on Maslahah According to Shatibi, the primary objective of the Lawgiver is the maslahah (welfare) of the people.86 The obligations inherent in the Shariah concern the protection of the maqasid (objectives) of the law, which in turn aims at protecting the maslahah of the people. Shatibi divides maqasid into daruriyyat (indispensable), hajiyyat (necessary), and tahsiniyyat (beneficial). The daruriyyat comprises the following five: (1) religion (din), (2) self or the right to life (nafs), (3) intellect or sound mind (aql), (4) family or lineage (nasl), and (5) property (mal).87 The hajiyyat are required in order to extend the operation of the maqasid and to remove the rigidity inherent in literal interpretation.88 Such rigidity may well lead to hardship which, in turn, could disrupt the maqasid of the Shariah.89 Finally, the tahsiniyyat refers to the adoption of the most commendable and beneficial customs, habits, ethics, and morality. In the words of Hallaq:
Without the first category . . . secular as well as religious existence can never be orderly, and at worst, it is impossible. The other two categories, on the other hand, make the implementation of the law possible by mitigating harsh requirements and reducing legal demands. The Sharia, Shatibi relentlessly asserts, rests squarely on these three principles, principles stipulated in the Quran and articulated in the Sunna.90

In light of his three-fold division of the maqasid, Shatibi extracts the following five rules: (A) darura is the foundation of all maslahah; (B) the disruption of a daruri necessitates the disruption of other objectives absolutely;

Id. at 153-54. Id. at 113. Id. at 118-19. See id. at 119-20. See id. Id. Wael B. Hallaq, The Primacy of the Quran in Shatibis Legal Theory, in LAW AND LEGAL THEORY IN CLASSICAL AND MEDIEVAL ISLAM 84 (1995) (citation omitted).

84. 85. 86. 87. 88. 89. 90.

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(C) the partial disruption of a haji or tahsini does not necessitate the disruption of the daruri; (D) an absolute disruption of haji or tahsini disrupts the daruri; (E) the preservation of haji and tahsini is necessary for maintenance of the daruri.91 Shatibi adds that the purpose of the maqasid (objectives) of the Shariah is not only aimed at good in this world but good in the hereafter as well.92 B. Shatibi on Ijtihad On the basis of Shatibis approach to legal interpretation, Masud states that, in Shatibis legal philosophy, God provides knowledge of good and bad to man through Divine laws, natural instinct and social experience.93 Shatibi distinguishes between simple and specialized ijtihad. Simple ijtihad refers to universal principles commonly understood by both specialists and lay people.94 By comparison, specialized ijtihad is only valid when exercised by those who are qualified and have attained the two requisite skills.95 First, one must have a perfect understanding of the purpose[/s] of the law (maqasid al-shariah), and second, on the basis of this perfect understanding, a command in the skill of deduction on the basis of this understanding.96 Relying on Imam Malik, Shatibi spells out the following steps in the process of ijtihad, and thus applies the skills discussed above.97 First, examine the case in the light of the Shariah.98 If it is acceptable, then consider its consequences in the context of the condition of its time and its people.99 If it does not involve or result in any evil, submit it to reason.100 If one feel[s] that it will be accepted by reasonable people, then [they should] give [their] opinion in general terms if the case concerns a matter that is generally acceptable.101 If it cannot be generalized, one should give a specific opinion. If the case in question cannot be successfully resolved by this

91. 92. 93. 94. 95. 96. 97. 98. 99. 100. 101.

MASUD, supra note 38, at 154. Id. Id. at 233. Id. Id. Id. Id. at 235. Id. Id. Id. MASUD, supra note 38, at 235.

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means, it is advisable to keep silent since this would be more in conformity with the welfare of the people.102 In his analysis, 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. A mufti, he says, conveys the law to society as he received them from the Prophet (pbuh) or through the interpretation of the text. Shatibis philosophy of Islamic law, as contained in his Al-Muwafaqat, has been hailed as perhaps the greatest contribution to understanding the spirit of the Shariah.103 V. IJTIHAD AND IFTA BY IBN RUSHD IN CORDOBA IN 516 Before briefly discussing the place of the fatwa in ijtihad, it is indeed apt to reminisce about a case of ijtihad and ifta104 in Andalusia in 516. This will illustrate how the principles have interacted in the past as well as the historical continuity between past and present uses of ijtihad. One of Umars most well known instances of ijtihad was his imposition of the death penalty on all the perpetrators in the crime of murder.105 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. In 516 of the Islamic era106 a man was murdered in Cordoba. He had three children, the oldest of whom had reached the age of four at the time of his fathers death. The deceased also left behind a brother who had two sons, both of whom had reached majority at the time of the murder. In terms of a fatwa (legal opinion) issued by a group of Maliki jurists the murderer, upon admitting his guilt, was executed at the behest of the victims brother and his sons.107 Amongst those who were asked to express an opinion on the matter was one of the most eminent jurists of the time, Abu al-Walid Ibn Rushd.108 In his fatwa he dismissed the established Maliki doctrine and opined that only the children of the victim are entitled, upon reaching majority, to demand the murderers punishment, opt for blood-money, or, of course, pardon the murderer.109 Ibn Rushd then issued a second fatwa on the matter,
102. Id. 103. Id. 104. Note that the legal opinion is called a fatwa, the one who gives the opinion is called a mufti, and the process of reaching that opinion is called ifta. 105. Gamieldien, supra note 7, at 100-10. 106. This corresponds to 1122 A.D. in the Christian era. 107. See Wael B. Hallaq, Murder in Cordoba: Ijtihad, Ifta and the Evolution of Substantive Law in Medieval Islam, 55 ACTA ORIENTALIA 55, 56 (1994). 108. This was just a few years before his death in 520. 109. See Hallaq, supra note 107, at 58.

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claiming that some learned people had requested him to explain the opinion in his earlier fatwa. He argued that the childrens right to seek punishment, compensation, or to pardon overrides the right of the paternal uncle and his sons and maintains that, 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 on sound footing.110 In support of this, Ibn Rushd adduced the Quranic verse that states, [a]nd ask those who are learned if you do not know,111 as well as the famous hadith concerning Muad ibn Jabal.112 This hadith, Ibn Rushd argued, place[d] the highest importance upon independent thinking.113 On the grounds of these primary sources of the Shariah Ibn Rushd introduced a new fact, namely that the murderer was in a state of drunkenness, and thus not acting with full mental capacity when he committed the crime. He argued that ijma (consensus of opinion) dictated the mitigated punishment of an intoxicated murderer as well as that the children of the victim first attain majority, since they may well choose the pardoning option.114 Ibn Rushd then explained that the Quranic text governing the matter is, Whosoever is slain unjustly, We have given authority unto his heir, but let him [heir] not commit excess in slaying [the murderer].115 While there is no disagreement concerning the right of the heir to demand the punishment of the murderer, the disagreement lies in determining who the heir is. According to Ibn Rushd, assigning the uncle and his sons the right to seek punishment or compensation effectively nullifies the rights of the children of the victim.116 The learned jurist further argued that the Quranic verse stating that there is life for you in retaliation as well as a number of other verses attesting that pardoning should take preference over punishment points to the fact that the death penalty ought to act as a deterrent against murder.117 He also referred to a hadith of the Prophet (pbuh) which, he maintained, indicates unequivocally that pardoning is superior to punishment.118 The Prophet (pbuh) once asked the relative of a murder victim to accept blood-money, which he refused. The Prophet (pbuh) replied, Should the murderer be killed? If he is to be killed, what would make you a better man than him?119

110. 111. 112. 113. 114. 115. 116. 117. 118. 119.

Id. Quran, Sura an-Nahl 16:43. See supra notes 8-13 and accompanying text. See Hallaq, supra note 107, at 58. Id. Quran, Sura al-Isra 17:33. See Hallaq, supra note 107, at 63. See Quran, Sura ash-Shura 42:40. Hallaq, supra note 107, at 63. See id.

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It may well be asked what the importance of this fatwa is to the discussion at hand. The answer is that it elicits a number of significant features vis--vis legal interpretation in Islam. Four reasons may, in particular, be adduced: First, the fatwa suggests that, under certain circumstances, even the most highly regarded doctrines, enunciated by the most eminent jurists, may be questioned and set aside. Second, the fatwa exhibits the principles of basic Islamic legal theory in practice. For Ibn Rushd relies on the authority of the Quran, then goes to the Sunnah, followed by ijma. Third, the fatwa takes into account Islamic philosophy, morality and values. By relying on the Prophetic tradition which regards pardon as superior to punishment, Ibn Rushd is giving weight to the moral values of Islam. In the words of Hallaq:
That consideration of the 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. Such considerations also demonstrate that ideals of morality and of religious ethics, while indeed constituting part and parcel of legal doctrine, did not necessarily result in Islamic law being idealistic, this carrying the implication that it shied away from dealing with the actual problems arising in Muslim societies. Ibn Rushds fatwa provides a clear example of the manner in which purely religious values were intermeshed with worldly legal considerations.120

Fourth, this fatwa proves that ijtihad was practiced after the Third Islamic Century and that the gate of ijtihad had never been closed. 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. VI. IJTIHAD IN THE EIGHTEENTH CENTURY In the century, Shah Wali Allah of Delhiwho has been termed the Ghazali of Islam in the Indian subcontinent121initiated a new methodology in Islamic legal interpretation. He termed it tatbiq, meaning to bring into alignment or to make congruent.122 Tatbiq consists of looking beyond the surface features to the inner essence or the comprehensive principle underlying a particular issue. Shah Wali Allah argued that the requirements for the best interests (masalih) of the human race will vary from age to age and from nation to nation.123 These best interests, which for Islam are based on the ultimate
120. Id. at 65-66. 121. Marcia K. Hermansen, Shah Wali Allah of Delhis, Hujjat Allah Al-Baligha: Tension Between the Universal and the Particular in an Eighteenth-Century Islamic Theory of Religious Revelation, 63 STUDIA ISLAMICA 143, 143 (1986). 122. Id. at 144. 123. See id. at 152.

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purpose of the human race on earth, should be in accordance with nature or the natural state of the human being, the state of fitra. Of course, the Quran declares on a number of occasions that Islam is the natural way.124 For Shah Wali Allah, all rulings based on ijtihad or tatbiq ought to be founded on fitra. The famous eighteenth century Yemeni jurist, Muhammad alShawkani, did not subscribe to any of the four madhahib. Haykel summarises Shawkanis approach to usul-ul-fiqh as follows:
In all of Shawkanis works a constant refrain is sounded: the absolute necessity of applying ijtihad as a means of combating the sectarian and antagonistic tendencies amongst different schools of law. . . . The practice of taqlid was a reprehensible innovation which had been developed by the followers of the various schools of law, many of whom argued that ijtihad was no longer possible for later generations of Muslims. . . . Because of his reformist message, Shawkani has been slotted in many contemporary writings into the Muslim modernist and even nationalist traditions which equate ijtihad with liberating thought, and attributes to it an instrumental role in Arab and Muslim renaissance.125

As regards ijtihad, Shawkani argued that it provided a solution to the evils of sectarianism and fanaticism as well as a means of reforming misguided social practices.126 The question of flexibility in interpreting the law has been touched upon earlier in the article. By not subscribing to any of the four madhahib, Shawkani may perhaps be regarded as adopting the most flexible interpretation of all in that he could take what was, in his opinion, the most favorable solutions from all four schools of thought. VII. IJTIHAD IN THE NINETEENTH AND TWENTIETH CENTURIES Perhaps the leading figure in this era was the Egyptian scholar Muhammad Abduh,127 who called for the restoration of the original Quranic norms to the modern era. Of Abduhs vision of ijtihad, Oussama Arabi writes:
The construction of a new sharia that would be receptive to the objective human and social reality, and would not be bound by the shackles of the past, is the means to realize an efficient and uniform Islamic judicial and political structure. Creative legal thinking, or ijtihad, is Abduhs cause at the close of the nineteenth century; it is that of independent and objective Muslim thought against the imitation, taqlid, of authoritative tradition. The renaissance of Islamic civilization is construed as a total process of political, legal and scientific renovation of Muslim societies, in

124. Quran, Sura at-Tawba 9:36; see also Quran, Sura ar-Rum 30:30 & 30:43. 125. Bernard Haykel, Reforming Islam by Dissolving the Madhahib: Shawkani and His Zaydi Detractors in Yemen, in STUDIES IN ISLAMIC LEGAL THEORY 337, 340-41 (Bernard G. Weiss ed., 2002). 126. Id. at 348. 127. Muhammad Abduh lived from 1849 to 1905.

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which religion and spirituality must become natural allies of modern scientific and critical thinking.128

Abduhs 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 and that this use is to be cultivated and defended on Islamic premises so that it would bear fruit with time. What he envisaged to this end was no less than a radical reconstruction of Muslim personality, a break with the dominant Sunni conception of the relationship between reason and Revelation, whereby rational thought is to have an equal say in determining the rules governing human relations and social order.129 Abduhs call for the restoration of the original Quranic norms is founded upon his two principles of Islam. The first principle is that rational thought (al-nazar al-aqli) is the means for the attainment of true faith (wasilat al-iman al-sahih).130 The second principle is that where Revelation and reason are in conflict, reason should take priority (taqdim al-aql ala alshar).131 In the light of Abduhs two principles of Islam, Arabi states that three key elements form the operational guidelines for the implementation of Abduhs approach to Islamic law, namely:
(A) the restitution to the sacred texts of their original and universal import (usul alsharia wa kulliyyatiha), irrespective of the provincial and more particular applications that accrued to it in history; (B) the delimitation of a category of textual rulings that follow from a conclusive evidence (dalil qati), and therefore not subject to interpretation or alteration; and, (C) the determination of a category of changing rulings, in accordance with human interests and conditions.132

Abduh applied these three elements to the question of polygamy in his day, in the light of the well-known Quranic verse which states that men may marry more than one woman unless injustice or inequity may result.133 He concluded that maslahahthe interests of the communityrender the practice detrimental in the present day.134 Arabi concludes:
Abduhs operational legal principles are intended by him to be programmatic formulas for nothing less than the wholesale reconstruction of a new Islamic law, a new version of sharia, that while being in accord with the definitive rulings of the sacred texts, would venture into unknown territory, that of the present and the fu128. (2001). 129. 130. 131. 132. 133. 134. OUSSAMA ARABI, STUDIES
IN

MODERN ISLAMIC LAW

AND

JURISPRUDENCE 24

Id. at 25. Id. at 33. Id. at 35. Id. Quran, Sura an-Nisa 4:3. See ARABI, supra note 128, at 36.

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ture. In his own legal reasoningabout marriage, divorce, interest charging Abduh provided living proof that sharia could produce new rulings, rulings that go beyond anything present in the extant fiqh manuals.135

As regards divorce law, the Egyptian Law No.1 of 2000 (Women May Divorce at Will) serves as but one example of Abduhs influence on the reconstruction of the Shariah or, as Muhammad Iqbal couched, the principle of movement in Islam.136 The most striking feature of this new legislation was the provision that a woman may obtain a judicial separation from her husband if she wishes, the only condition being the restitution of the dower to her husband and the relinquishing of her right to maintenance.137 Although much heated debate followed upon this provision, the Grand Sheikh of Al-Azhar, Sayyid Tantawi, announced that the new law was in conformity with the Shariah and that it was approved by a majority vote in the forty-member Islamic Research Academy.138 The last chapter of Oussama Arabis book, Studies in Modern Islamic Law and Jurisprudence, is entitled The Place of Islamic Law in the Modern World and the Reconstruction of Sharia.139 Arabi states that one of the most formidable tasks faced by the Muslims in the wake of the conquest of the larger part of Muslim lands by European colonizers and imperialists is the preservation of the dignity and identity of Islam and Muslims.140 At the same time, one must be very wary of the efforts of the dominating powers to align Islamic law with their legal systems and values. In this regard, Arabi reminds us of the warning sounded by Edward Said regarding Orientalist discourse:
As Edward Saids analyses of Orientalist discourse have shown, 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 selfjustification of the colonial powers, than to any authentic effort at understanding the true nature and value of these institutions in the lives of the subject population.141

Arabi is quick to note that there have been exceptions to this general statement, for example, the Frenchman Marcel Morand, who produced a modern Algerian code of family law based on classical fiqh.142 For Morand,

135. Id. at 37. 136. See Allama Iqbal, The Reconstruction of Religious Thought in Islam 146 (1994) (see, in particular, Chapter VI entitled The Principle of Movement in the Structure of Islam). 137. See ARABI, supra note 128, at 169-72. 138. Id.; see EDWARD W. SAID, CULTURE AND IMPERIALISM (1994). 139. ARABI, supra note 128, at 189-212. 140. Id. at 189. 141. Id. at 190. 142. Id.

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Arabi argues, universal legal logic took precedence over narrow and dogmatic prejudice.143 Abduhs approach to Islamic legal interpretation meant a positivization of the Shariahthe process of integration of the Shariah into the modern states political structure without abandoning the ethical and religious spirit of Islamic lawcoupled with an end to the long-established traditions and doctrines of the madhab system.144 This positivization would be based on ijtihad or what he termed creative legal thought.145 Arabi states that through the universal value of ijtihadinvolving, as it does, a great degree of flexibilityAbduh forged the logical and conceptual tools that would, both retrospectively and for the twentieth century and beyond, consolidate the positivisation of Islamic law.146 In a 1994 decision, the Egyptian High Constitutional Court stated that where the primary sources of Islamic law, namely the Quran and the Sunnah, contain a definitive ruling, no ijtihad is permissible.147 However, where no definite or specific ruling is forthcoming, ijtihad is permissible in order to reflect the changing needs and circumstances of human communities. And such ijtihad should always aim at realizing the five maqasid (objectives) of the Shariah. The Court stated:
Ijtihad consists in applying the rule of reason in what is not an object of a (sacred) text, as an extension of the edifice of transactional rules that is necessitated by Gods clemency and justice towards his subjects. The advantage thereof is to cushion the Islamic sharia as the latter is not cloistered unto itself. This practice (ijtihad) does not confer any sacredness (qudsiyya) on the opinion of some jurist or another with regard to the legal matter under consideration, and there is no impediment to revising it, evaluating it or replacing it by another rule. Interpretive opinions, by themselves, do not possess a binding force on those who do not have the same opinion; one should not, therefore, consider these opinions as a Law of sharia that is absolute and incontestable and cannot be contradicted.148

Since Marcel Morand is regarded by Arabi as an exception to the general European or Western approach during colonization of applying and modernizing the law of the conquered, brief reference is made here to his approach in his Draft Code of Muslim Algerian Law.149 Although Morand was committed to the values of the French colonial enterprise in Algeria, he never143. ARABI, supra note 128, at 190. 144. Id. at 192. 145. Id. 146. Id. at 193. 147. Id. at 200-05. 148. Id. at 205. 149. The Morands Draft Code of Muslim Algerian Law came to be known as the Code Morand (completed in 1914). See Oussama Arabi, Orienting the Gaze: Marcel Morand and the Codification of Le Droit Musulman Algerien, 11 J. ISLAMIC STUD. 43 (2000). Morand was Dean of the Law Faculty of Algiers University for some time. Id.

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theless radically departed 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.150 Of course, Morands creative legal thought and his brand of legal realism took place in the colonial matrix.151 While the French colonial government in Algeria opted to maintain the corpus of the Maliki law, Morand attempted to develop and evolve the Shariah on the basis of fair and equitable rulings, rather than stick to perhaps outdated textual fiqh rulings. His main focus was the maintenance of the spirit of the Shariah.152 Morand thus departed from Maliki law and adopted provisions of the Hanafi school where the latter was found to be more humane, more understanding and more tolerant.153 Taking into account Abduhs approach to ijtihad and talfiq (syncretism or combining), Morand found new solutions to legal problems, often combining the views of different schools or going beyond them and finding fresh solutions. For example, Article 4 of his Draft Code provides that [t]he age of puberty is 18 years, completed, for the man; and 15 years, completed, for the woman.154 This Article is a hybrid of Hanafi and Maliki rulings, since the age for both sexes was fixed at 18 for the Malikis and at 15 for the Hanafis.155 Morands approach in his Draft Code of Muslim Algerian Law was one of flexibility, legal realism, upholding the public interest, combining and going beyond the four madhahib when necessary, and, underlying it all, upholding the spirit of the Shariah. This flexible and pragmatic approach is reminiscent of Imam Maliks approach to interpretation; it should be remembered that Malik stated that istihsan is nine-tenths of the law. The question of going beyond the madhahib has already been briefly alluded to earlier in this Article in respect of the thinking of Shawkani.

150. See Arabi, supra note 149, at 46 (also appearing as Chapter 6 in ARABI, supra note 128). 151. Arabi writes, [t]he very methodological principles of Islamic jurisprudence prompt benefic[ial] change and adaptability to new social conditions. The prejudice which equates its sacred character with ossification is both doctrinally and historically unfounded . . . . Morand invokes the well-known Maliki tradition of treating public utility, maslaha, as a fundamental source of legislation . . . . Id. at 58. 152. Id. at 58. 153. Id. at 59. 154. Id. at 62. 155. Id. at 63.

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VIII. PUSHING THE LIMITS OF IJTIHAD: CALLS FOR CREATIVE INTERPRETATION IN THE TWENTY-FIRST CENTURY In an article published in the Ar-Rabitah156 magazine in 2002, Dr. Muhammad Ammarah discusses ijtihad in the contemporary world.157 He argues that because the world we live in has progressed without adherence to the essence of the Shariahmainly due to the influence of Western imperialism and civilizationit is not possible for one thinker or jurist alone to rearrange the realities of the world.158 Furthermore, he argues, due to increasing specializationin the sciences and all spheres of human activity ijtihad needs to steer a new course in order to respond to contemporary needs. 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 Shariah only. Rather the Ahl ul dhikr, ulul al amr and ashab ul hall wa aqd159 must include experts in secular fields as well. There is a necessity to form intellectual establishments that [combine] both religious and secular experts in order that ijtihad can be cast in a new manner. Ijtihad is a combination of the essence and objectives of the Shariah with the requirements of progress and contemporary exigencies with the aim of effecting the welfare of the whole Ummah. This is done without moving away from the essence and objectives of the Shariah. Such intellectual establishments . . . 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.160

Ammarah argues that the creation of intellectual establishments161 should not imply that individual creativity will be impeded. Rather, such creativity will remain unrestrained. He also strongly argues that, underlying all contemporary ijtihad, should be the rejection of secularismwhich he regards as a Western diseaseand the need to find European/Western solutions to all problems faced in the interpretation of Islamic law.162 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 independence of Islam as a civilization.
156. This is a publication of the Muslim World League (Al-Rabitah al-Islami), which is based in Saudi Arabia. 157. Translated into English in Auwais Rafudeen, Islamised Perspectives in Contemporary Arab Intellectual Culture: Three Discussions, 4 IPSA J. OF ISLAMIC STUD. 67 (2005) (Ipsa is the acronym for the newly established International Peace University of South Africa.). 158. Id. 159. Classical terms for people of knowledge. 160. See Rafudeen, supra note 157, at 77-78. 161. Implying the idea of consensual ijtihad. 162. See Rafudeen, supra note 157, at 77-78.

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He distinguishes his proposed approach from secularization by characterizing Law as a way of life given by Allah [that] is permanent, and salaf and ijthad as the Laws application, which is not . . . binding on one who lives in a different context . . . .163 More recently, in a Special Report of the United States Institute of Peace entitled Ijtihad: Reintepreting Islamic Principles for the Twenty-First Century, it was agreed that although most scholars would limit the practice of ijtihad to specialists who not only have knowledge of the Quran and the Sunnah but also a broad familiarity with scholarship in Arabic grammar, logic, philosophy, economics, and sociology, other scholars may assert that interpretation of the texts should not be confined to legal scholars but should be open to those with creative imagination.164 Among the latter are Muneer Fareed, who suggests that ijtihad can be viewed in three different ways: as a legal tool, as a form of legal reasoning, and as a creative impulse and imagination.165 Similarly. Ingrid Mattson argues that reason is not the only complement to Revelation, rather, more emphasis should be placed on the natural law tradition in Islam, on fitra,166 on the innate God-given sense of right and wrong.167 As regards creative imagination, the fundamental question would be the extent of this imagination, this impulse. How far can one go in the process of reinterpretation? How far can one take ones creative imagination while remaining within the bounds of the Shariah? Two pertinent examplesand there are manyare the issues of apostasy and inheritance law in Islam. In respect of apostasy, the Quran does declare that there is no compulsion in religion.168 This would imply that the Afghani Abdul Rahman is free to choose the religion of his choice. But then again, in terms of Islamic criminal law, apostasy is crime.169 In the context of the basic human right to freedom of religion, can one argue that apostasy should no longer be regarded as a crime in Islamic law? Does not Allah imply that, although one possesses freedom of belief, once a human being has found or come to the ultimate truth, the choice of any other religion would amount to a major retrogressive step? Just as Islam places limitations on the right to
163. Id. at 79. 164. See David Smock, United States Institute of Peace, Special Report, Ijihad: Reinterpreting Islamic Principles for the Twenty-First Century 1 (2004), http://www.usip.org/pubs/specialreports/sr125.pdf. 165. See id. at 4. 166. See Quran, Sura ar-Rum 30:30. 167. Mattson is also referred to in the United States Institute of Peace Special Report. See Smock, supra note 164, at 4. 168. Quran, Sura al-Baqara 2:256. 169. See DOI, supra note 31, at 265-67; see also MUHAMMAD AFA ALSID SIDAHMAD, THE HUDUD: THE HUDUD ARE THE SEVEN CRIMES IN ISLAMIC CRIMINAL LAW AND THEIR MANDATORY PUNISHMENTS 361-64 (1995).

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freedom of expression, so too does it limit freedom of religion. Perhaps quite simplistically, Islam permits freedom of religion but not the conversion of a Muslim to any other religion. In respect of the law of inheritance in Islam, the Quran commands that, as regards inheritance by ones children, the male is entitled to a portion equal to that of two females.170 In the context of the basic human right to equalitygender equality, specificallyshould this verse be reinterpreted in the twenty-first century or should its rationale be properly explained and understood?171 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 with creative legal thoughtin the twenty first century. CONCLUSION: THE IJTIHAD OF THE TWENTY-FIRST CENTURY SHOULD DRAW ON THE RICH HERITAGE OF PURPOSIVE ISLAMIC LAW This Article illustrates how deeply rooted the purposive approach is in Islam. The Prophet (pbuh) and his companions allowed the practice of istihan. The khalifa (caliph) Umar taught us that the spirit of the Shariah should always be paramount. With the exception of the literal approach to legal interpretation adopted by Imam Shafi, the other three great Imams underlined the importance of the public interest (maslahah), istihsan, and adopted a purposive approach to legal interpretation. Shatibi laid great stress on the five maqasid (objectives) of the Shariah. In the eighteenth century Shah Wali Allah argued that the maslahah, which is based on the human beings existence on earth, should be in accordance with nature or the natural state of the human being, the state of fitra, while Shawkani stressed flexibility in adopting the opinions of the four madhahib. Finally, as regards the past 100 years, the approach and views of Muhammad Abduh have been alluded to earlier. Ijtihad today should be founded on the best that the fourteen centuries of Islam has taught us. In essence, the ijtihad of today should be founded on creative legal thought, pragmatism, and flexibility (both in the application of the rulings of the four madhahib as well as in maintaining the spirit of the Shariah). Always, bearing in mind the limits and bounds set by the Shariah. The ethical and moral precepts underlying the spirit of the Shariah should never be overlooked, since the dignity of Islam and its fol170. Quran, Sura an-Nisa 4:11. 171. I have attempted to do this elsewhere. See Nazeem Goolam, Gender Equality in Islamic Family Law: Dispelling Common Misconceptions and Misunderstandings, 2 STELLENBOSCH L. REV. 199-214 (2001); Nazeem Goolam, The Position of Women in Islamic (Sunni) Law of Inheritance, (1994) (unpublished M.C.L. thesis, International Islamic University Malaysia) (on file with author).

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lowers is founded upon its moral and ethical values. In this regard, the twenty-first century ijtihad should not merely bring Islamic law in line with Western human rights standards and values. In this I am in full agreement with the views of Ammarah. I conclude with the verse of the Quran quoted at the very beginning of this paper. Allah says, [a]sk the people who are learned if you do not know.172

172.

Quran, Sura an-Nahl 16:43.