The Role of Ja'fari Ijtihad in the Modern World

I first would like to express my gratitude to all those who were instrumental
in convening this seminar; I would also like to thank all those, scholars and
intellectuals, who are present here and paying attention to my lecture.

The topic is the Role of Ja'fari Ijtihad in the Islamic Jurisprudence the
emphasis, however, is on the openness of the way of Ijtihad and its impact
on the dynamism of Islamic Jurisprudence in the Ja'fari Shi'ite School. I will
also refer to the fatwas of Imam Khomeini, the great reviver jurist.

The lecture will cover the following topics .

1- the importance of ijtihad;

2- the concept of ijtihad;

3- the prerequisites of ijtihad;

4- the methodology of ijtihad;

5- the role of time in ijtihad;

6- the role of place in ijtihad;

7- the openness of the way of ijtihad;

 8- the role of modern developments in ijtihad.

1- The importance of ijtihad

Ijtihad and its related issues have recently been thought and written about
by great jurists as one new topic. After the Islamic Revolution of Iran and
new industrial and technological developments in the world, this issue has
proposed lots of challenging questions for both layman and scholar. As a
matter of fact, Muslim jurists have not shown one similar approach towards
ijtihad through their long history.

The importance, seemingly, of Ijtihad can be summarized into three phases:

First and the foremost, all Muslims are obliged to practice religious (Islamic)
duties i. e. divine rulings which can only be known by means of ijtihad. Fiqh
(jurisprudence) is thus one of the most sacred branches of knowledge that
deals with these rulings. Don’t follow the correct method of ijtihad, we would
be entrapped in 'Iftira (fabrication) disapproved by the verse of the Qur'an:
(‫)تفترون هللا علی ام لکم اذن آهلل‬

Second, having various stands on all issues of the life of human being,
ijtihad goes to cover the whole issues life of Muslims. Ijtihad thus reveals
Islam's different stands on

all dimensions of human life. Today Muslim society faces lots of juridical
questions in economy, politics, and so on, which can only be resolved
through collective Muslims' consultation and an authorized ijtihad.

Third, Muslim scholars did not have one identical approach towards ijtihad.
Some of them some time regarded ijtihad as the Quias (analogy) and the
deduction of personal opinion. Later on, the deduction of Shar'at rulings
from the related resources in one way or another was embraced as ijtihad.
Not soon after, because ijtihad was being misused, they closed the way of
ijtihad.

In the Ja'fari Shiite view, however, ijtihad was known to be open through
history. More decisively today, we are in an acute need of ijtihad, because
noble Islam is being attacked by its different enemies who try in one way or
another to cast doubts on the sanctity and competence of Islam. They have
gone too far to say that Islam is the religion of radicalism, animosity,
terrorism, while Islam is free from such unfair accusations.

Today Muslims are expected to join hands, strengthen their force, and stand
in one line against the attackers. They are to prove that the Islamic ideology
is well-founded and based on justice, freedom, peaceful coexistence, and
sympathy for all human beings who are equal and deserve no priority except
for taqwa (piety).

O' my brother in Islam, and O' Muslim scholars, let's revive ijtihad and
Islamic doctrines once more, to let Muslims through the cross-cultural
exchanges move along modern technological and scientific developments;
namely, modern developments that have taken all nations into "one global
village" which has challenged not only the social and cultural dimensions,
but also the spiritual and ideological ones.

It is, therefore, necessary to study Ijtihad which requires ceaseless efforts

and heavenly mind, and to determine its clear-cut concept and domain in
order to prevent any kinds of going too far or shortcoming which both faults
may affect the way of Allah.
2- the concept of Ijtihad

In its etymology, ijtihad is derived from the root of "jahd" which

means "to make one's effort in order to reach one's aim". In its
technical meaning of jurisprudence, Muslim jurists have
proposed different meanings one of which is that: "a jurist
makes all his efforts possible in order to deduce from the related
resources the proof on the rulings of shari'at whether primary or
secondary, real or apparent."

During the early centuries of Islam (from 1st to 5th), ijtihad was
synonymous with Quias (analogy). Quias, in the view of the Shiite Imams particularly Imam
Sadiq (PBUH), is rejected if it is not well-founded or not based on the categorical rationale
behind the ruling. A jurist may ascribe the ruling of one particular case (which is Asl ‫ )اصل‬to
another similar (which is Far'a ‫ )فرع‬only if the rationale behind the former case (‫ )اصل‬is mentioned
in the holy text or the jurist is absolutely certain about it.

This was why the Shiite used to reject ijtihad which meant Quias, but later on when (about 5th
and 6th centuries A.H.) ijtihad meant otherwise they embraced it.

It is noteworthy, however, that even though the word "ijtihad" went current only after the 5th
and 6th centuries A. H. among Shiite jurists, the very process of ijtihad (deducing shari'at
rulings from the Book and the Sunnat), affirmed by holy Imams Sadiq and Baqir and other
Imams (PBUT) was being practiced by them since the very beginning of Islam. Holy Imams
(PBUT) taught their students how to deduce the rulings from the Qur'an.

Somebody, for example, asked Imam Sadiq (PBUH) that if somebody had fallen down and broken
his nail putting some dressing on it, how he could wipe his feet. Imam (PBUH) answered: "Issues
like this can be known from the Qur'an." "‫" "حرج من الدین فی علیکم جعل ما‬Wipe the dressing", said Imam
 (PBUH). Following their Imams, the Shiite jurists concern themselves with the Qur'an and the
Sunnat of the holy Prophet (PBUH); they also regard traditions narrated from their Imams
(PBUT) as the continuation of the Sunnat of the holy Prophet, and not otherwise.

3- The prerequisites of ijtihad

Having been taken as to mean to study and reflect carefully on the resources of the shari'ah in order to deduce the
law, ijtihad requires mastering many branches of knowledge that may help a jurist to succeed in his aim. These
branches are: Arabic morphology and grammar, literature, logic, Qur'anic studies and exegeses, hadith studies,
ilm-o al-rijal (biography of those coming in the chain of transmitters of hadith), ilm-o usul-e al-fiqh (methodology of
jurisprudence), history of the Islamic schools and the like. As to be a qualified and an expert jurist, one is to
master at least Ayat-o al-Ahkam (those verses of the Qur'an that deal with the shari'ah law), al-Nasikh wa al-
Mansukh (those verses abrogating or abrogated), al-Muhkam wa al-Mutashabih (those verse having clear-cut
meaning and those whose meaning becomes clear only on the basis of the former ones), and to master recognizing
accepted hadith from the rejected ones and to be able to resolve the inconsistency and conflict among hadiths; all
these require lots of effort and practice so much so that they will take the whole life time of the jurist.

Having, however, regarded all the above as insufficient for a jurist, Imam Khomeini holds, a jurist needs to know
the cases of event particularly those of social relations in the world of today in all aspects in order to be able to
apply the correct rulings of Shari'at on them. In spite of the fact that a jurist is not to be an expert on the cases of
event, he however needs to know any case of event very perfectly in order to be able to ascribe the right ruling of
Shari'at to the right case of event. This is because one case of event can be an instance of different concepts each
of which requires its due ruling.

Selling blood, for example, was forbidden before. A jurist, however, is to know that this prohibition was at the time
when some people wanted to buy in order to drink it; there was no other reasonable interest in it in the past.
Today, nonetheless, the scientists have the instruments to draw blood from somebody and preserve it in a fridge
for a long time and inject it to another to save his life, and this is a reasonable interest. Now in the case of blood,
we can see how the concept has changed today from yesterday.

We ought to divide ijtihad into two categories: authorized and unauthorized. The former is that a jurist having all
the above-mentioned prerequisites draws on all his efforts to draw the rulings concerning the issues of the past
and now from the Book and the Sunnat, and if not there from the imperative reasoning (certain Aql). The latter,
however, is that somebody having mastered not the related branches of knowledge embarks on issuing fatwa (legal
opinion).
As a matter of fact, Islam has through its long history suffered from many strokes by the amateurs who by
learning only one or two branches of knowledge supposed themselves qualified to give opinions of Islam and to
issue fatwas from the Qur'an. Impressed by the foreign cultures, these unskilled amateurs have proposed the
strange ideas and opinions not only unprecedented in Islam but also contrary to the established course of Islam
and the Qur'an. We ought therefore while letting not the Qur'an be marginalized to let not any illiterate trifle with
it.

4-The methodology of ijtihad

In its general division, Shari'at law is divided into two sections: Ibadat (acts of worship) and Mu'amilat
(transactions). The accuracy of the former section depends on the intension i.e. the servant must intend the
obedience of Allah's command when performing acts of worship; only in this way he may perform Alla's command
in order to win Allah's pleasure. Acts of worship are known to be "tawqifi" which means we are not be expected to
exactly know the wisdom and reason beyond Allah's command to perform acts of worship in this or that particular
way. Why do we, for example, perform mourning prayer in two rak'ats (units) rather than three or four? Why do we
perform Hajj like this and only during hajj period rather than any other form? And so on. This is because when we
perform acts of worship like this or like that we may not be expected to know what will happen in our life
hereafter. We then are expected to exactly follow commands of Allah and perform acts of worship exactly as
described in shari'at law in all their details.

The case however is different of transactions which in their broad meaning would cover all social, political and
economic relations, all human rights private or social civil or penal, and so on. Being able, as human beings who
are endowed with reason and common sense, to know the reason and wisdom beyond the rulings of transactions,
we do not need the divine legislator to describe the rulings of transactions in all details. He accordingly and
contrary to the former, has confined himself to describe only the general rules. There are a very few cases,
however, that he may proscribe the way of the wise, prescribing otherwise.

Having been based on the conduct of the wise, transactions are merely known to be confirmed by the divine
legislator rather than to be founded by him. The method, as a result, of ijtihad in acts of worship differs from that
in transactions.

With the former, a jurist confines himself to the limits of fixed holy texts of shari'at. The concepts of acts of
worship are fixed and may not change through history, thus what a jurist requires is to master the holy texts of
shari'at and sometimes resolve the inconsistencies and conflict among the traditions. With the latter, however, the
case is different. The concept of social issues in transaction may change as the life of people varies day by day and
more developments are made in industry and technology.
An issue, Imam Khomeini and other clear-sighted jurists hold, which could be very simple having some simple
ruling in the past may be very complicated having some different ruling in the multifaceted social and political ties
of today. Reclaiming a piece of land, for example, at the time of holy Prophet of Islam would give the right of
ownership to the reclaimer, but today it can hardly be so. One who possesses all modern equipments for
agriculture may reclaim the largest possible area of barren land leaving the least area to many others which is
unfair to them. We, thus, can not preserve the former law for the latter case; for today people are many but god-
given endowments are limited and few. The case is true with mines which were considered as sequent and
dependent on the land. Today private ownership and freedom have been made restricted for public rights and
collective interests by some governments.

Jurisprudence, in Imam Khomeini's view, aims to manage the whole life of human beings from their birth to their
death. The subject matter, thus, of jurisprudence is to be defined accordingly. Did a jurist try to manage the life of
man of today, he should be familiar with the requirements of his time and environment. He holds that a jurist who
is perfectly not aware of the complicated social ties of his time is not qualified to issue a fatwa regarding modern
human rights, politics, or economics.

5- The role of time in ijtihad

Not only ought a jurist to know the resources of shar'at law but also to master how to apply the law to the cases in
practice. Time, accordingly, and place may have a crucial role in ijtihad. This, yet, dose not mean that we leave out
the bright rulings of Islam for the new developments of the time. Knowing the world of today is necessary for
understanding the concept of each subject matter involved in each case of event. The way, though, of ijtihad in
Jafari School of jurisprudence is not closed so that Shiite jurists have all the times the right to freely scrutinize the
views of their preceding jurists, even some times they cast doubts on them. It is then not peculiar to our time and
has since long been practiced by Ja'fari school of jurisprudence that our jurists have been changing their views on
the resources of shari'at law whenever they faced the requirements of the time or wherever they saw different
costumes in different places. It is, for example, decisive for understanding the texts of traditions of the holy twelve
Imams to know the line of conduct of the Sunni schools at the time when the Imam said the tradition. This would
help a Shiite jurist to know that the Imam had said some contrary tradition by the intension only to go along with
the majority Sunnis, yet it was not his own real view. This is called "jahat-o al-sudor" (i.e. by what intension Imam
issued a tradition)

There are other instances of intension of issuing a tradition in our time. We have some traditions in our collection
of hadith dealt with by the jurists as suggesting the primary real rulings which would not change until the end of
time. Now after getting familiar with some secondary political rulings issued by the jurist as the head and governor
of Islamic territory, the jurists have come to know that such rulings are not the primary real ones, but merely
political secondary rulings to run the Islamic administration and manage the regulations among Muslim people,
which yet may easily change if the situation for that changes. That holy Prophet (PBUH) prohibited water owners
from preventing additional water to other people, or he prevented posture owners form having their additional
postures, are some instances of such political secondary rulings.
It is perhaps the reason why in the views of majority of Ja'fari Shiite jurists, people are not allowed to follow the
fatwas of a dead jurist. This reveals the vital role of time in ijtihad and how Jurisprudence is frequently developing
day by day. There are many new cases of events that the jurist of thousand or hundred years ago is not qualified to
issue a fatwa about, however best he was at his time.

6- The role of place in ijtihad

Place, as well as time, has a decisive role in deducing shari'at law. The fact that some jurists wrote Jurisprudence
for the Westerners suggests the role of place in ijtihad. A jurist not acquainted with or did not live in the West is
not qualified to issue the proper fatwas for the westerners.

The Shiites, however were few in the past, of each region had their own jurist to follow. They, nonetheless, today
live everywhere throughout the world which multiplies the burden of ijtihad for the jurists to know the situations
dominant in different regions. This can be done through continuous communication among the jurists of different
countries. Great jurists such as Imam Khomeini have for long longed for the cooperation and communication of
the best jurists from one continent to another. Such cooperation depends on welcoming and friendly negotiation
among Muslim jurists. Holy Imam Ali says: "Behold, those endowed with Allah's knowledge preserve His secrets
and keep open the springs of the knowledge to the people. They have friendly relations with one another, meet one
another warmly and sincerely, share their knowledge with one another, and all as a result go satisfying their quest
for knowledge." (Nahj-o al-Balagha Sermon 212).

As a matter of fact, the practice of shari'at law in the Shiite territories which are bound to the Shiite ideology is
different from those in which the Shiites are in minority, or the government is secular or even antireligious. Lots of
fatwas were being issued when there was no Islamic government, such as the prohibition of maintaining Friday
Prayer or the prohibition of performing Hudud (the fixed punishment for some grave sins such as robbery,
adultery, and so on.) some of which are based on the traditions of our Imams. Before the Islamic revolution of Iran,
Imam Khomeini cast some doubts on the legitimacy of Friday Prayer during Major Occultation; after the revolution
however he changed his fatwa. Another instance is playing chess which could be allowed, he says, if it were not
considered by the experts as the means of gambling any more. It is noteworthy, nevertheless, that in all such cases
what has changed is not the Divine Law but rather the concept of the issues involved in the cases of events. The
prohibition, for example here, does not apply to the concept of "chess" but rather to the concept of "means of
gambling".

The verse, worth mentioning, of "Nafr" ‫ ""الدین فی لیتفقهوا طائفه منهم فرقه کل من نفر فلوال‬which authenticates ijtihad enjoins
different Muslim societies to send some qualified people from among them to learn shai'at law (which we call it
ijtihad) in order to let their people know shari'at law when they go back to them. This enjoinment is because the
jurist of his society is familiar with the literature of his people and environment; for each society has its own
peculiarities.

7- The openness of the way of ijtihad

Taking ijtihad to mean the "deduction of shari'at law from the religious resources", successors
much like predecessors have under the eyes of Allah the right and duty to be jurists. Every
qualified jurist may deduce divine rulings from the book and the Sunnat and then follow them.
He is not allowed to follow the fatwas of another jurist, more particularly when they draw
contrary fatwas based on different understandings. This is because one jurist by his own
process of ijtihad and fatwa regards the contrary fatwa of another as incorrect and ill-founded.
How can he then dare to follow such an ill-founded and unsound fatwa?

Referring, for example, to the verse:"‫"النسا المستم او‬, Imam Shafi'i held that touching a woman would
negate Wudu (minor ablution). We suppose one jurist today makes a research on the meaning of
"touching a woman" in the Qur'an. Having referred to another verse i.e. "‫لم ما النسا طلقتم ان علیكم جناح ال‬
‫( "تمسوهن‬which suggests if you divorce your wife before sexual intercourse it is OK), he says that
"touching a woman" in the terminology of the Qur'an means "to go to bed with her" rather than
touching her hand finger et cetera which is an apparent meaning. This jurist thus comes to
refute the fatwa and understanding of Imam Shafi'i. It would accordingly be haram (forbidden)
for him to follow Imam Shafi'i's fatwa, for he supposedly knows that Shafi'i's understanding of
the term is incorrect.

O, my brothers in Islam and Muslim scholars, ijtihad is what we need today the most, for it has
a mechanism and dynamism to make Islam eternal and grant it such a flexibility to be alive in
all circumstances, and to be able to answer all of our questions in different situations of time
and place.

O, my brothers, Muslim jurists with no exception have made unbearable ceaseless efforts to
promote Islamic jurisprudence; they have cultivated such a tree that can bear fruit at any time.
It is then suggested to launch some scientific cooperation and sympathy between the Ja'fari and
Sunni schools of jurisprudence. It has since old times been said "truth is the fruit of
discussion". Bringing two minds together is like the positive and negative wires when brought
together to produce light. It is thus suggested that Ja'fari jurisprudence be taught along with
other schools in different juridical centers. Ja'fari jurisprudence receives its legitimacy from the
very Qur'an and the Prophetic traditions through the Imams of Ahl-u al-Beit (PBUT) who are
respected by all Muslim as the offspring of the holy Prophet (PBUH).
 Dear brothers, Muslim jurists are all the light of guidance towards eternal salvation and happiness; they,
dead or alive, have a very high position with the Almighty Lord. Due however to what is said "the present
can see what the absent can not", an alive jurist can be mindful of the requirements of the time and
place, in such a way that if the dead jurist were alive he would change his fatwa due to the present
situations. It is then suggested to follow the most knowledgeable pious jurists alive to guide you to the
best way "‫"المستقیم الصراط اهدنا‬, rather than the dead ones. Following a living jurist is more concordant with
human nature. Closing the way of ijtihad means to close the gateway of the mind and thinking
exterminating thoughts; the fruit of such a tree would be bitter and not sweet.

As Imam Ali (PBUH) said: "‫( "الدهر بقی ما باقون العلما‬the learned survive as long as years revive),
preceding jurist and scholars are undeniably alive, which nonetheless does not imply we make
no contribution satisfying ourselves of their effort. This is the case with other branches of
knowledge, i.e. having respected the scientific efforts of their preceding, later scientists embark
on contributing their own ideas to the whole human knowledge. Early physicians, for example,
are alive through their valuable works, which however does not imply to close universities of
medicine making ourselves satisfied of the previous ideas in medicine.

To respect the predecessors admiring their works is one thing, but to close the gateway of the
mind and thinking, making no contribution is another. The process of the absolute ijtihad does
not entail the rejection of the previous ideas and ideologies, starting every thing anew. Having
made, however, use of the valuable heritage of the past, later jurists are expected to improve
jurisprudence by their own contribution about which there is no anxiety. What creates,
nevertheless, anxiety is that jurists practice ijtihad without any established methodology.

8- The role of modern developments in ijtihad

Jurisprudence can undoubtedly not be indifferent to the constantly increasing modern developments which not
only influence human life and progress of science, but also the process of ijtihad. Within itself, Ja'fari school of
jurisprudence has the necessary dynamism and mechanism to develop and make developed.

We are, nonetheless, to see what factor exactly of ijtihad modern developments may have an influence on. The
following, in the first sight, may be proposed:
 1- The concept of matters involved in each case of event;

2- The very shari'at laws, rather than the concept of matters in a case;

3- The methods of ijtihad;

4- The principles and rules of jurisprudence;

5- The resources of jurisprudence.

What can, from he above, not be accepted to change is number 2, for no shari'at law can be said to be abrogated,
al-Halal wa al-Haram (the forbidden and the allowed by Allah) is and will remain the same until the end of the
time. Neither is number 5, which constitutes the majority of religious doctrines and revelation.

The method of ijtihad, in Imam Khomeini's view, is the so-called "ijtihad Jawahiri" i.e. the method practiced by the
preceding great jurists such as Sheikh Hasan al-Najafi, the author of Jawahir-u al-Kalam (the most comprehensive
encyclopedia of Ja'fari jurisprudence). Having recognized the conventional method of understanding the holy texts
as standard, Imam Khomeini adds: "The yardstick of understanding the verses of the Qur'an and apparent
meaning of the words is public customs and common sense, rather than the scientific analysis, and we follow the
common sense [in the process of understanding]. If a jurist wanted to insert scientific scrutiny [in the process of
ijtihad], he might unwillingly give up many issues." (Wilayat-u al-Faqih P. 115)

Modern developments, seemingly, can not have an effect on number 4, either. What then is left for modern
developments to influence is number 1. In this regard, Imam Khomeini says: "Time and place are the two decisive
factors in the process of ijtihad. One thing, in the past, had some particular ruling which is apparently known the
same thing [today] may have another new ruling in political social or economic relations in one [modern] regime.
That is to say, one thing [in the past] which apparently remains the same may in the profound understanding of
political social or economic [of today] transform into another thing that naturally requires another ruling."

Business, in the world of today, has changed from simple national into complicated international one creating the
ever greatest networks of the world economy. Stock market, exchange, electronic banking, artificial insemination,
organ transplantation, complex political and economic relations with different countries all over the world, and lots
of other findings of human modern knowledge which have transformed the life of today necessitate the jurists to
double their efforts to correctly know them in order to issue the proper and correct fatwa in each case so that
people suppose no sort of inconsistency or conflict between tradition and modernity , nor between faith and
science.

Having known the concept of matters in the cases, the jurists can play their role as the driver of the engine of
Islamic jurisprudence, and hence harmonize Islam with the requirements of the time. New medical issues such as,
organ donation and transplantation, dissection, artificial insemination, cloning, newfound juridical issues such as,
spiritual ownership, electronic banking and trading, and so on, newfangled issues in politics such as, modern
democracy, election, legislative assembly, the organization of government, and new questions in acts of worship
such as, prayer and fasting in the north or south poles and when traveling to the space, performance of the rites of
Hajj when it is overcrowded, and the like; all such questions can be resolved in the light of such dynamic ijtihad.

Rules such as, the obligation of maintenance of social security, the obligation of the prerequisites of what is
obligatory, secondary titles such as, emergency and none-damage, the preference of what is more important to
what is less important when in a dilemma, for example, we can only have a choice of one, the principle of al-
Maysur (how far some shari'at law is achievable), the principle of al-'Usr wa al-Haraj (strait and pinch), and the
like are the mechanisms of ijtihad that help the jurists to resolve the abovementioned questions. The authorities
given to the Muslim governor, where the administration is an Islamic one, is one of such mechanisms for
practicing Islamic law in order to run the affairs of the society.

As a matter of fact, we in the rich Ja'fari school of jurisprudence feel no vacuity of law. By the grace of Ahl-u al-
Beit's guardianship, it has been left no deadlock or vacuity of law in practice.

It is, as demanded by the hadith of Thaqalayn, suggested that Sunni jurists refer, in the process of their ijtihad, to
the traditions narrated from Ahl-u al-Beit accessible not only to the Shiite but also to the entire Muslim
community so that they come across no deadlock or vacuity of law any more in their future.

In the end and once more, I would like to show my appreciation to the audience and all those who managed to
hold this scientific seminar. My especial thanks go to the Cultural House of the Islamic Republic of Iran that
provided me with the trip and the chance to pay a visit to the jurists, scholars, and scientists here.

May the Peace and Grace of Almighty Lord be with you all.

Dr. Sayed Hasan Vahdati Shobeiry

 The Political Dimension of Ijtihad in Muslim History

‫التسلیم و الصالة و الحمدلة بعد‬

‫و العظیمة الشعبیة للجمهوریة مؤسسا و المباركة اإلسالمیة الشعبیة للثورة قائدا منتصرا رجع یومُ علیه السالم و إیران من أخرج یوم علیه السالم و ولد یوم الخمیني على السالم‬
‫حیا یبعث یومُ علیه السالم و مات یومُ علیه السالم‬. ‫ا أولیاء من ذالك‬...

Beyond the linguistic and technical/scientific (as in the science of usul al-fiqh) of ijtihad, ijtihad is that intellectual-
spiritual activity that denotes the ongoing intimate relationship between revelation (al-wahy) and reason or more
precisely intellect (al-‘aql). This understanding is expressed in not a few Qur’anic verses such as verse 109 of surah
al-tawbah (Qur’an 9: verse ).

Islamic civilization in one word is a civilization of revealed text. This means revelation is its pivotal dimension; we
can conclude that if not for revelation there would be no Islamic civilization. That however does not mean that
revelation, emanating from an extra-historical transcendental source of a dissimilar nature, and external as it were
to the human being, alone contributed to the genesis and growth of the Islamic civilization. Rather it was the
constant dialectical engagement of Muslims with their lived reality on the one hand, and their submission to and
engagement of revelation on the other, that nurtured the Islamic civilization. It was necessary for revelation, in
order to remain relevant to the human reality and avoid stagnation, to be concretized in history specifically after
the demise of the Prophet (sawa) in theory for Sunnis and the occultation of the twelfth imam for Shi’ites.

In this manner ijtihad ensures that revelation recorded in the Qur’an and the Prophetic tradition is read anew
evolving in continuity with its original sense and given added depth and breadth of meaning and usage in human
presence in the world. Ijtihad is the necessary and natural activity of the post-Prophetic Muslim community to
keep revelation fresh and relevant in the world. In a world that Islam, as al-shahid al-Sadr said, had to say its say.

A question asked for a long time is: is the door of ijtihad closed? Some say yes while others (the majority) argue
that it has never been closed. A critical answer that goes beyond a simplistic yes or no must approach the question
from two angles: the first legal-practical and the second philosophical specifically the epistemological angle i.e.
theory of knowledge. From the legal-practical angle it is almost a truism that the door to ijtihad is not closed and
was never closed. One just has to look at the fields of finance (ABSA, HSBC) and health (example, organ transplant
for bourgeois Muslims) today and you know that ijtihad is alive, kicking and well. However from the philosophical
angle it is a different question. In order to understand the Islamic cultural legacy one must begin by
deconstructing its epistemology and find how it has hitherto been in the grip of politics and the political authority.
This is fundamental for the effective interpretation of revelation, which is constantly reproduced in history.
Interpretation must take place within an epistemological paradigm that is far removed from politics (Mabruk,
2002: 77).

To show what I mean here I have, to unfortunately delve into a ‘sectarian’ discussion not with the aim to be
sectarian but that we can gauge its impact on ijtihad as human ability to shape their world. The issue is illustrated
in the following hadith.

The best of you is my generation then those who follow them. ‘Imran b.Husayn said: I
do not know whether the Nabi said after this [initial] word twice or thrice – then after
them [will come] people testifying whilst not asked to testify; they will betray and not be
entrusted; they will make vows and not carry them out; and obesity will appear.

(Al-Bukhari)

The first part of the hadith declare religiously authoritative the results of the activity of these first three
generations, which is both intelligent and natural as with any generation of Muslims. Some have described the
part from: "then falsehood will become rampant…" as a hopelessness that gave rise to "narrow religious"
Messianism, which sees history as progressively deteriorating in order for a Messiah to come. It was not
Messianism at play, at least not as an intellectual and/or spiritual development but a conscious political
endeavour to establish for the first three generations specifically the Companions an elite religious status and
immunity for their legacy that was characterized by contradictions and interminable conflicts over power. What
this means is that history is a progressively deteriorating reality in order for the Messiah to come.
There are many other sayings that indicate such an understanding of history. It was reportedly said that with
‘Umar’s death nine tenths of knowledge "died" with him. ‘Umar was not only an individual, he was the leader of the
Muslim community; its political head. Ibn Mas’ud said that:

‫قبله الذي من أسوأ هو و إال عام من ما‬, ‫أحدب‬, ‫ قحطا أكثر‬...

This notion is in essence that of the ‘Ash’ari (Ahl al-Sunnah) political-historical religious discourse in terms of how
it views the past and the future. History is a move away from the ideal. Opposed to that discourse is the discourse
of the Mu’tazilah and the Shi’a. For example, al-shaykh al-Tusi's saying regarding, the imam in occultation: al-
ghaybah minna wa ‘l lutf minhu. The former though is the dominant discourse. More importantly in order to
understand and critique these discourses the political element (that is the role of politics and the ruling political
authorities) must be appreciated. Hence my focus on ijtihad is on its political dimension i.e. from a political
perspective.

To understand the historical development of ijtihad in its political dimension the personality and role of
Muhammad b. Idris al-Shafi is fundamental. Al-Shafi was of course not the first mujtahid, but he articulated a
discourse of ijtihad that was in many ways radically different to the hitherto dominant mode of ijtihad. It is my view
that al-Shafi’is bayan scheme was in essence a project to check the political authority. He did not challenge the
political authority with the aim to rise up and bring it down through revolutionary or rebellious action. However
what he did was to articulate a discourse of power for the scholars as the intellectual authority independent, albeit
weaker, from that of the political authority. This discourse would enable the ‘ulama to create a separate space to
function as independent authorities, alongside the State.

I want to emphasize here that Shafi transcends Sunni-Shi’i polemics; he is neither Sunni nor Shi’i. It is his
methodology that is of fundamental importance; a methodology that will indicate to what degree his discourse was
influenced, or perhaps a result of, the indoctrination of teachings of al-imamayn al-Baqirayn. This is reflected in
how he saw the authority of the Prophet vis-à-vis that of the dominant pattern of ijtihad when local doctrines and
the opinions of individuals were equivalent to the Sunnah of the Prophet. It is not the content of what is known as
the Shafi madhhab per se.

His relationship, specifically political, unlike the methodological, sentimental (poetry) and ideological, to the ahl ‘l
bayt is indeed an enigmatic one. However, he has certainly not escaped the Shi’i bogey. One anecdote qualifies
ShŒfi>¥’s stay in Yemen to joining a Sh¥>ite rebellion hence al-Nad¥m in his Fihrist labels ShŒfi>¥ as "shad¥d
f¥ al-tashayyu> or strongly Sh¥>ite. With tashayy’u here I mean the politico-religious notion on the leadership of
the Ahl al-Bayt and not the ritualised tashayy’u of the Safawid Empire marked by its paraphernalia of
nomenclature, popularised cursing, wilayah in the adhan etc. Al-Shafi’s discourse though, as outlined in his al-
Risalah, is not a political manifesto and correctly so; in a world where the political authority is brutal it is best to
speak in any but direct political agitation. His discourse is thus a philosophical one that delineates the primary
role of revelation and of the human being.

The totality of what God has made clear to His creation in His Book…are several: (1) Among
them are those things which God has expressed in an explicit text like his general obligations, to
wit, that they must perform prayers…He has forbidden wine drinking… (2) And among it what
he has confirmed in His Book and then explained it on the tongue of His Prophet such as the
number of prayers… (3) Among them too, things for which God’s Messenger has provided a
Sunnah and in respect of which God has no explicit rule. God has, in His Book, imposed the
obligation to obey His Messenger [the Sunnah], and to carry out His rulings … (4) And also among
them …which God has imposed on His creation…to seek them out by means of legal
interpretation [ijtihad]. Emphasis mine (Shafi, 1979: 21-22).

Al-Shafi stood between two extreme intellectual currents influenced by the politics of the ruling class of the day:
the so-called traditionalist and rationalist schools. The traditionalists thought him to be involved with the
rationalists and accused him of Mu>tazilite tendencies. The rationalists, in turn, regarded him an advocate of
some fundamental traditionalist doctrines. Shafi recognized that the human capacity to reason plays a positive
role. Two passages from the Risalah demonstrate the point. The first is that God bestowed humankind with
intellects wherewith they could distinguish between disparate things. The second if scholars seek answers through
ijtihad using their intellects after seeking assistance from God, then they have carried out what is incumbent on
them (Shafi, 1979: 501-503). In two instances, he identifies solutions to problems as reasonable – not based on
text - describing his solutions as follows: the one which is most obvious intelligible and what he considered to most
closely resemble the policy of God’s Book, and what is reasonable (Lowry, u.d: 419-420).

Shafi refers to the intellect pejoratively when he uses the phrase ahl’l ‘uqul. By this he means those group of people
(scholars) who refuse to tie legal interpretation to revelation, that is, their use of istihsan and abandoning of qiyas.
It is clear that ShŒfi>¥ is not against the intellect or rationalism per se. Rather he is against the unregulated and
arbitrary usage of opinion in legal interpretation. He censures the abstract use of the intellect, i.e. by means of
istihsan but endorses istidlal, that describes the jurist’s mental process in hard cases where there is no explicit
text ruling (Lowry, u.d: 417-423).
Shafi was anti-rational only in proportion to a living tradition that was fraught with contradictions and
manipulated so easily by the political authority. In short he sought to curb, albeit indirectly, the power of the
political authority. And therefore the Risalah deals with the critical question of obedience in order to establish to
whom it is due. Shafi is unequivocal that it is due only to God and His Prophet. Once obedience as an abstract
notion has been delineated within the bayan matrix of the Qur’an and the Prophetic Sunnah it then fundamentally
covered and qualified authority whether political, intellectual or of any other form. A primary concern of Shafi was
rectification of concepts i.e. how they are understood and employed especially by those in authority like rulers,
scholars, fathers and men. Hence he is at pains to elucidate concepts such as command, obedience and legitimacy
(al-Saghir, 1994: 157-183).

Thus if law – and law is indispensable to human society even as a necessary nuisance – is to guarantee a happy
and just human society and nature than we must properly demarcate the relationship between law and the
authority. Thomas Hobbs’ dictum that authority, not the truth, makes law i.e. neither content nor even
reasonableness can be said to provide the binding force behind law; it is not the knowledge of the scholars but
political authority i.e. the political power of the rulers that makes a law must be engaged and challenged. It
reminds one of a dictum coined by one of the political despots that ruled the Muslim world – and by now a hadith –
that G-d restrains through the ruler what He does not (for some cannot or will not) restrain through the Qur’an. It
is this distorted notion of the relationship between law and the authority that led great German intellectuals such
as Heidegger and Schmitt to declare that the will of the fuehrer Hitler was the will of the German volk! It was not
the German intellectuals, brilliant as they were, who would lead the German people but a delinquent racist Adolf
Hitler. We know the disaster that Nazism brought the world: killing of six million Jews, almost two million Gypsies
(54 million people overall); all to prove the myth of a superior Arian people.

Yes there can be no law without authority i.e. a person in authority. However it is law that grants authority. This is
al-Shafi’s bayan scheme. Law in Islam is contained in the Qur’an and the sunnah and it is only when the people in
authority receive their authority from the law that they are legitimate and must be obeyed. Sadly the history of
Islam reveals the opposite. Despotic rule, where the individual means nothing, has become the definitive reality of
Muslim political exercise. This reality is not without its intellectual rather rational discourse. Did not Aúmad b.
îanbal say that whoever, good or corrupt, comes to power through the sword has become the legitimate Caliph and
is to be addressed as the Commander of the Faithful. Recently in Egypt the jam’ayyah shar’ayyah reasoned that if
Hosni Mubarak appoints his son to succeed him as ruler of Egypt then someone better than him did likewise,
namely Mu’awiyah when he appointed his son Yazid. Hafiz al-Asad of course already did so and we hear that al-
Qadhdhafi is planning the same for his son; it matters not that Syria, Egypt and Libya are republics and not
monarchies!

This is the main, not only, tragedy of the Muslim world today: political despotism. We have gods not men ruling us.
Look at the example of Anwar al-Sadat so-called man of peace who called himself al-ra’is al-mu’min. His crime was
not only that he sold out to the Zionists; worse than that is his claim that G-d called him to mount Sinai to tell
him to do so. The same al-Sadat, who advocated peace with the usurping Zionists sent soldiers (the young,
stupidly devout and naive Usama B. Ladin and like) to Afghanistan to oppose Soviet atheism.
The twentieth century has seen refreshing ijtihad by Muslim scholars on the question of the dignity and freedom
that the Muslim ummah have been deprived by our homegrown despots and European imperialism. Their
discourse was not always overtly political (as with al-Shafi) given the harsh reality for as one of them said (‫المضطر أنا‬
‫ – الزمان حسب لإلكتتام‬intellectual taqiyah). However, a careful reading reveals its political concerns and implications.
Two names here stand out: that of ‘Abd al-Rahman al-Kawakibi (d. 1902) and Muhammad Husayn al-Na’ini
(d.1936). Al-Kawakibi wrote his Taba’i al-Istibdad wa Masar’i al-Isti’bad geared directly to the topic of freedom,
democracy, albeit in its negative formulation that is despotism and enslavement. It combined between theory and
action or the Marxist concept of praxis; between the search for the natures of despotism and the search between
the liberation from enslavement. Al-Na’ini, a champion of the Constitutional movement in Iran that culminated
into the constitutional revolution in 1909 wrote Tanzih al-Millah wa Tanbih al-Ummah wherein the notions
despotism and democracy were central themes. The title says much: al-Na’ini was saying that Islam must be rid
from political dictatorship and therefore the necessity to alert (tanbih) the ummah.

There is a dire need for a renewed reading of these two important Sunni and Shi’i scholars. Today when we speak
of Islamic thought and the Islamic movement two names dominate: that of Abu ‘l ‘Ala al-Mawdudi and al-shahid
Sayyid Qutb. This reality has been entrenched by both Muslims and Western scholars. That these two seminal
figures, despite my critique, at times severe, of them, made a great contribution to Islamic revival in the
contemporary period cannot be doubted. However, that came at the expense of other, obscured, Muslim thinkers
such as al-Kawakibi and al-Na’ini.

However it was in the 20th century that we saw the fruition of hundreds of years of intellectual jihad and sacrifice
in the victory of the Great Peoples Islamic revolution in Iran led by the revolutionary mujtahid al-Imam Ruh-A….
al-Khomeini. Imam was the embodiment of a tradition: of piety and intellectual exertion. Suffice it to look at the
order in which he arranged the topics in his arba’in ahadith to gauge this piety or connection to G-d and
intellectual ability. In a more immediate sense there were personalities of the contemporary era that is the last two
hundred years that left their mark on him in three distinct ways although he transcended them and indeed was
greater in achievement. The impact (not necessarily the shaping of his ideas) of these personalities was either
purely academic-intellectual such as al-shaykh Murtada al-Ansari, purely political such as Jamal ‘Abd al-Nasir of
Egypt, and academic-political such as al-Na’ini – and of course earlier Shi’i scholars.

Indeed the 20th century has not seen his like, however he was only human and not ma’sum. Here too we must
have a careful re-reading of imam’s revolutionary al-Hukumah al-Islamiyyah. Written in 1971 as a evolution on his
political theory outlined in his 1944 Kashf al-Asrar wherein he accepted the idea of a constitutional monarchy (as
articulated by al-shaykh al-Ansari) provided the shari’ah and public welfare of the ummah were guaranteed in al-
Hukumah he is a clear as he is emphatic: the state can only be administered by the fuqaha. Guided by the
Qur’anic principle arising from the verse:
(‫ )الرسل قبله من خلت قد رسول إال محمد ما و‬we must transcend him too. There are issues we can critically engage him. For
example imam equated the authority of the jurist (which the shar’ invested him with) over the people to that of a
qiyam over children in that people are like children (except from a quantitative angle); they are unable to run their
own affairs, hence the need for the jurist. My point is not that we reject the authority of the faqih (Plato had long
rejected democracy and certainly liberal democracy had not created the happy society it promised; just look at
South Africa today with its most liberal and most progressive constitution in the world); I certainly believe in the
State administered by the faqih with its mistakes and at times excesses as the best form of government. However,
if we do not engage it constantly and critically we run the risk of the ever lurking danger of despotism hovering
over our heads. We must remember that as ‘Abd al-Jawad Yasin says:

The political authority has influentially performed a great deal in history whilst history impacted
on the intellect directly and indirectly which resulted in the perpetual subjection of the Muslim
intellect to both the [political] authority (by virtue of its history) and history (through its
authority). The history of the authority caused this intellect to be almost completely obedient to
government authority in the absolute sense whilst the authority of history – on this intellect –
has bequeathed it a semi-complete submission – uncritically so - to the past in its absolute
signification, as well. (Yasin, 1998: 8).

There are many issues that the imam could not address or sufficiently so; political and social issues that need
constant intellectual articulation. Of the political issues the following: What is the role of Muslims in who their
leader is? To what extent and how can the citizens over whom the jurist exercise authority express their opinion
even where it differs from that of the jurist and can their opinion can become binding on him? What is the position
and role of opposition especially those who differ from the faqih? Here I think of people such as ‘Abd al-Karim
Sorush, sincere and patriotic Marxists and Liberals, feminist groups and ‘ulama with their differing religious
political and social discourses. My contention is not that these are correct; however they can certainly not be
dismissed simply because they do not subscribe to wilayah al-faqih. Rather I think engaging them, listening to
them will only enrich the very theory and practice of wilayah al-faqih.

Of social-economic issues: gender concerns; women becoming judges and mujtahidat and other roles of public duty
– equality beyond the spiritual sphere and that of the soul to the social mundane sphere. In this regard there is a
need to critically read our legacy on women. Ahadith such a woman being defective in her intellect and her din
must be confronted. Some Muslim philosophers held the view that women were created as animals. The impact of
Greek thought is clear. Others again believed the only difference between Black people and animals is that Black
people walk upright; I wonder what they would have said had he seen penguins. The racist KKK use to quote the
sages David Hume & Emmanuel Kant both racists to substantiate their nasty views on Black people. Hegel said
Africa has no history and no religion, unless we consider magic a primitive form of religion. But this seems to be a
problem with many philosophers and mystics (Muslim, Christian, Jewish, Greek, etc.) caught up & lost in their
heads;
Phenomena such as children born out of wedlock in light of Qur’an and Sunnah (not fiqh even fiqh become sunnah)
on the one hand and disciplines such as history, anthropology, sociology, etc. on the other hand. For example, in
the case of South Africa given the spiritual and social ravage of apartheid (the migrant labour system, evictions,
poverty, etc.) a classical fatwa on the child born out of wedlock can simply not be issued. I am of course not saying
that illicit sexual relationships are ok. However the classical fiqhi rulings on the matter are simply in need of fresh
ijtihad.

Our philosophy today must be that of imkan. Today’s generation is better (potentially so) than that of yesterday; we
are moving closer towards the ideal. As Fazul Rahman contends the Prophet nurtured a deep God consciousness
aimed at establishing essential human egalitarianism and the central concern of the Qur’an is the conduct of
humankind on this earth; an ethically based sociopolitical order under G-d that is according to the principle that
moral values cannot be made and unmade by man at his own whim and desires.

IJTIHAD AND ITS SIGNIFICANCE FOR ISLAMIC LEGAL INTERPRETATION*

Nazeem MI Goolam**

Associate Professor

Department of Jurisprudence

University of South Africa

>Ask the people who are learned if you do not know.=1

Introduction

There are both primary and secondary (or subsidiary) sources of Islamic law or Shari=ah . Since a number of
Arabic words or terms are used during the course of this article, a glossary of words is here provided at the outset
in order to facilitate understanding and ease of comprehension by the non-Muslim reader or the reader unfamiliar
with these words or terms.

Glossary

The Arabic word is supplied first followed by a translation (and explanation if required).
Allah God

ahadith plural of hadith

adl denotes justice and fairness; a synonym for qist

a=immah leaders ; pl of imam

aql intellect

ayah verse

ayat (pl of ayah) verses

AH After Hijra, that is after the migration of the Prophet from Makkah to

Medina. The Islamic calendar begins with this event in 622 AD.

darurat necessities; essentials

deen the religion of Islam, the way of life of Islam

dunya earth

faqih jurist
fuqaha (pl of faqih) jurists

hadith a written account of a saying or teaching of the Prophet Muhammad

(peace be upon him)

hajat needs

imam leader (of a community); pl is a=immah

ijma consensus (of reputable jurists on a particular matter)

ijtihad personal reasoning ( the sources of Islamic law are Divine Revelation and

human reason. Ijtihad forms the core of human reason). Ijtihad should not be confused with >jihad=. A synonym
for qiyas.

istihsan equity

istishab presumption of continuity

istislah public interest

jihad Although the word >jihad= does not appear in the article it is important
to distinguish it from ijtihad. Jihad means to struggle, strive or exert

oneself in the path of Allah. Warfare is know as the lesser jihad while the struggle to improve oneself is known as
the greater jihad.

maaruf kindness, goodness, fairness. The word >maaruf= is used on at least

twelve occasions in the Qur=an in the context of the law of divorce

madarrah harm; injury

mal wealth

maqasid objective/ purpose; thus maqasid al-shari=ah refers to the objectives or

purposes of Islamic law

manfa=ah benefit

mujtahid one who is capable of exertion and creativity in legal thinking; one who

engages in ijtihad.

mujtahideen pl of mujtahid
nafs literally meaning >the self=; in the context of law, it refers to life

nasl progeny

qist justice; a synonym for adl

qiyas reasoning by analogy; a synonym for ijtihad.

ra=y personal opinion

Shari=ah Islamic law

Sunnah the sayings, teachings and examples set by the Prophet during his lifetime

tahsinat ease or facility

taqlid imitation (of previous scholars); thus denotes lack of creativity

urf custom
(a) Primary sources

The two primary sources are the Qur=an and the Sunnah, while the secondary or subsidiary sources are ijma and
qiyas. The Qur=an is not in itself a legal text. In fact, only about 80 of the approximately 6000 verses (ayat, sing
ayah) are of a legal nature.2 The true significance of the Qur=an, however, is its emphasis on an ethic of justice
(adl), fairness and equity (maa=ruf ). For example, as regards commercial integrity, the Qur=an declares:

Give full measure when you measure

And weigh with a balance that is straight. 3

The Sunnah refers to the body of the teachings, sayings, traditions and examples set by the Prophet Muhammad (
peace be upon him)4. Literally speaking, Sunnah means a manner of acting or a rule of conduct. As a source of
law, the Sunnah may be applied in the following three ways:

(i) it may confirm and corroborate a ruling of the Qur=an;

(ii) it may explain or clarify a verse of the Qur=an, and

(iii) it may comment or rule on a matter on which the Qur=an is silent.5

When the Prophet was alive he would respond to the queries of his followers, adjudicate their disputes and
pronounce rulings. His words and deeds were remembered and observed not only during his time but also, as they
were gradually collected and recorded, by future generations. On the death of the Prophet the Sunnah was first
transmitted orally and later through written accounts which were based on earlier narration. These written
accounts ( also known as the ahadith 6 ) have been compiled in six authentic collections.7

(b) Secondary sources

With the passage of time, when it was found that neither the Qur=an or the Sunnah had ruled on a particular
matter, in particular new problems which had arisen, it became necessary to make rulings by human endeavour8
or the application of human reason. Thus the need for the development of secondary or subsidiary sources of law.
The two main secondary sources of the Shari=ah are ijma (consensus) and qiyas ( analogical reasoning ). In the
words of Moosa:

They are really instruments or subsidiary sources or legal techniques

for resolving specific legal issues. They were designed and introduced

by human endeavour to provide legislative guidance and solutions to

new problems which are not directly available from the Qur=an and

Sunna[h]. 9

Ijma literally means >getting together=. It signifies the unanimous convergence of the views of reputable jurists (
fuqaha10 ) of a given era on any point of law, hence consensus.11 Although one finds no Qur=anic text on the
authority of ijma, such authority is founded upon the distrust of individual opinion and the saying of the Prophet
that >my followers/community will not agree unanimously in error=.12 An obvious limitation on the authority of
ijma is that

it must not be in conflict with the rules, values and principles of the Qur=an and the Sunnah. Viewed from the
standpoint of justice and equity, ijma plays an important role in that it provides forthe development of the law to
meet the needs of changing conditions and circumstances.

Qiyas means reasoning by analogy.13 Since it involves personal reasoning it is, in essence, a form of ijtihad. Where
both the primary sources as well as ijma fail to provide a solution to a particular legal problem jurists must strive,
through reasoning and deep study, to derive an appropriate rule by analogy and logical inference. Such resort to
personal reasoning is called ijtihad and the jurist or scholar is referred to as a mujtahid . A mujtahid is thus a
person capable of exertion and creativity in legal thought. Ijtihad, like ijma, has provided and will continue to
provide Islamic law with a means of adapting to the changing needs and conditions of a developing world.
The primary sources of the Sharia=h, namely the Qur=an and the Sunnah, may be termed Divine Revelation.
Although the Sunnah or ahadith14 are not, strictly speaking, Revelation the Qur=an states that whatever the
Prophet said was Divinely Inspired. The Qur=an explains:

Nor does he say anything of his own desire

It is no less than Inspiration sent down to him

He was taught by One Mighty in Power.15

The secondary or subsidiary sources may be termed human reason. In essence, Islamic law is thus a combination
of Revelation and reason. Discussing the interplay of Revelation and reason, Kamali states that if the revealed law
is silent on a certain matter reason may determine, by reference to the general principles of Sharia=h and the best
interests of society, that a certain law exists concerning the matter, especially when jurists realise that the
Shari=ah cannot remain indifferent concerning the matter. Human reason thus becomes a proof and source of
Shari=ah and an important tool in the process of interpretation.

It is on the concept of ijtihad (personal reasoning), particularly its significance for Islamic legal interpretation,
which this article focuses upon. At the outset, however, it must be made abundantly manifest that one cannot
understand ijtihad without being aware of the various theories of legal interpretation in Islam and the approach to
legal interpretation by each of the four great schools of thought.16

A brief exposition of the theories of interpretation in Islamic law

The history of the theories of Islamic law is founded on the debate between the Ahl al-Ra=y and the Ahl al-Hadith.
While the latter relied on the ahadith or Sunnah of the Prophet (pbuh), the former engaged in personal opinion.17
The Arabic expression used by Mu=ad ibn Jabal when he told the Prophet that he would exercise his own opinion
was >ajtahidu ra=yi=. Both the terms ijtihad and ra=y were used by Mu=ad.18

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-Ra=y may be seen as contextual interpretation or
purposive interpretation. Viewed differently, the debate between the Ahl al-Ra=y and the Ahl al-Hadith may also be
regarded as a debate between, on the one hand, the literal- or strict interpretation of statutes ( or texts ) and, on
the other hand, creative- or purposive interpretation.19

(a) Strict/literal interpretation

Perhaps the most strict proponent of the literal theory of interpretation was Imam Al-Shafi=i. His primary
contribution in this respect was that the Sunnah governs the meaning of the Qur=an. This is couched in the
proposition: al-sunnah qadiyah >ala al-Qur=an, which means that the Sunnah is the decisive authority for
determining the meaning of the text of the Qur=an.20 Therefore, if the opinion of a companion of the Prophet
(pbuh) concerning a verse of the Qur=an differed from the explanation of that verse in the Sunnah, the latter would
be given preference. The companion=s opinion would be regarded as analogy (qiyas) and, as such, would be
regarded as a source weaker than the Sunnah.

It should be borne in mind that literalist tendencies in Islamic legal theory were based on a desire to discover the
true intention of the Lawgiver and to deviate as little as possible from the original text.

(b) Purposive/contextual interpretation

By the fifth century of the Islamic era Al-Shafi=i=s theory of strict interpretation began to be extended so as to
yield a more flexible approach to interpretation. Most prominent in this respect was Al-Ghazali. He initiated the
theory of purposive interpretation which was based on the maqasid al-shari=ah ( the objectives of the Shari=ah).
This theory was taken to full fruition by the great Maliki scholar from Andalusia, Al-Shatibi.21

Al-Ghazali=s theory of interpretation advocates reasoning based on the general principles of the Shari=ah. Such
general principles should be consistent with the purposes and the moral foundations of the Shari=ah. He divided
the purposes (maqasid) of the law into dini

( purposes of the Hereafter) and dunyawi ( purposes pertaining to the world). Each of these purposes may be
viewed as securing a benefit (manfa=ah) or repelling a harm (madarrah).
Thus, for Al-Ghazali, the maqasid should essentially either secure a benefit or repel harm, hardship or injury.
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.22

While the dini purpose is to secure the din or religion of Islam, Al-Ghazali divided worldly purposes into into four
typees:

(i) the preservation of nafs (life),

(ii) the preservation of nasl (progeny),

(iii) the preservation of aql (intellect) and

(iv) the preservation of mal (wealth).

Ultimately, the five primary and fundamental purposes of the Shari=ah are religion, life, intellect, progeny or
lineage and wealth or property. These five purposes are regarded as necessities or essentials (darurat). 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. One may well view necessities as equivalent to principle, needs to
policy and ease and facility to morality or moral norms.

If one looks at Al-Ghazali=s theory of purposive interpretation, a judge may have recourse to three interpretive
tools when deciding case. First, the darurat, secondly the hajat and finally, the tahsinat. This third level is the level
of the ethical and moral values of Islam.

Having briefly looked at the theories of legal interpretation in Islam23 and before beginning the examination of
ijtihad it would be relevant to compare and contrast the approach to the interpretation of statutes in Western law
in general and in South Africa in particular. It would be appropriate to begin by examining briefly the various
theories of interpretation.
Theories of interpretation in South African law

Devenish lists, inter alia, the following theories of interpretation:

(i) literal theory;

(ii) subjective or intention theory;

(iii) purposive theory;

(iv) teleological or value-coherent theory.24

(i) literal theory

In terms of this theory words should be given their ordinary and grammatical meaning or natural and ordinary
meaning as the first step in the process of intepretation.25 This is regarded as the primary rule in interpretation.
This primary rule may only be deviated from in exceptional and definitive circumstances, namely to avoid
absurdity and to resolve ambiguity. Absurdity implies that the application of the literal theory would lead to a
result which is unjust, unreasonable, inconsistent with other provisions of the statute or repugnant to the general
object, tenor or policy of the statute26, while ambiguity permits an examination of the historical motivation for the
statute from which the purpose of the legislation can be inferred and the words read in the light of that purpose.27
In essence, this is nothing but a tempering of the literal theory by the purposive theory.

In the words of Devenish:

The essence of the literal theory is therefore that it is premised

on the autonomy of the written text. This means, according to

Du Plessis, that >[t]he need for justice and equity is only met in

instances where inaccurate or ambiguous language obscures the

otherwise manifest intention of the legislature=. Thus in all

other cases where the language is clear, however harsh the

result of literal interpretation may be, the courts have no

choice or discretion.28

In a word one may thus say that, as far as the literal theory is concerned, the text is of paramount importance.

(ii) subjective or intention theory

This theory is based on the distinction between language, on the one hand, and ideas and thought, on the other.
Thus the concept of the >intention of the legislature= is central to this theory.29 Some 80 years ago a South
African court held that the governing rule of interpretation is to endeavour to ascertain the intention of the law-
maker from a study of the provisions of the enactment in question and there is no doubt that the literal
grammatical meaning of the word must give way to that rule.30

(iii) purposive theory

As explained above, the avoidance of absurdity and the resolution of ambiguity when applying the literal theory is
nothing but a tempering of the literal theory by the purposive theory. Indeed, Devenish states that the >mischief
rule, applied as part of the literal methodology, is a manifestation of a qualified purposive approach, since it can be
applied only when there is ambiguity=.31 With reference to Cowen=s well-known article32 written in 1976, the
learned author adds that the overwhelming weight of authority in Roman-Dutch law favours the anti-literalist
approach and a purposive methodology in the interpretation of statutes.

In a word one may thus say that, as far as the purposive theory is concerned, the context is of paramount
importance.

(iv) teleological or value-coherent theory

Devenish explains this theory by comparing it to the literal theory and the purposive theory. He writes:

The literal theory of interpretation restricts the sources of

interpretation to the text and only in the event of absurdity

or ambiguity may internal and external sources be consulted,

whereas the purposive approach permits an immediate

examination of both internal and external sources. The

teleological approach allows certain jurisprudential and

moral issues to be weighed up in the formulation and

creation of the intention...of the legislature.33

Teleological interpretation has an ethical dimension and is thus a wider and more encompassing approach than
the purposive approach. One of the leading proponents of this approach during the apartheid years was John
Dugard.34 He advocated a value-oriented method of interpretation and the adoption of a realist-cum-value
oriented approach to the judicial process.

The literal theory is no different to the literal or strict approach to Islamic legal interpretation while the purposive
theory is, similarly, no different to the purposive or contextual approach to Islamic legal interpretation discussed
above. Just as the purposive approach in Islamic law is aimed at discovering the objectives or purposes of the
Shari=ah or the maqasid al-shari=ah, so too the purposive theory is aimed at ascertaining the objective or purpose
of the legislation in question.

Restrictive and extensive interpretation

Just as in Islamic law, so too in all legal systems the relevance of the context in the process of legislative
interpretation is of the utmost importance. The tools of restrictive and extensive interpretation thus play an
important role in the overall process of interpretation. General words in a statute may thus be modified and
restricted through reasonable interpretation.35 The technique of restrictive interpretation may be justified so as to
bring words into line with the purpose of a statute and to harmonise the meaning of a provision with the common
law.

Two well-known techniques used to interpret restrictively are cessante ratione legis, cessat et ipsa lex and eiusdem
generis. The former means that if the reason for the law falls away the law itself falls away while the latter is a
device that can be used to restrict the meaning of general words by reference to specific words used in the same
provision or statute.

The essence of extensive interpretation is that the spirit of the law is more important than its letter. Often words
taken at face value do not convey the complete and precise objective of the provision or statute in question or do
not convey the intention of the legislature. In such situations various techniques may be used to extend the
meaning of words. These include interpretation by analogy36, interpretation by implication and, more generally,
the modification of language.
The great Roman - Dutch authority Johannes Voet called for interpretation by analogy on grounds of equity and
fairness. In essence, this tool of construction finds its place in the purposive and teleological or value-coherent
theories of interpretation. Where statutory provisions are not enacted in express words they may be implied. The
implication should ordinarily flow from the other sections of the statute and it should be reasonable and
necessary.37 There is, in essence, no fundamental difference between these two techniques.

At its most basic and fundamental level there is a very significant common thread in the philosophy of
interpretation in the Shari=ah and the foundations of South African law, namely Roman law. The purpose of the
Shari=ah is the attainment of justice, fairness and equity, while the Roman jurist Celsus stated that ius est ars
boni et aequi ( law is the art of the good and the fair).38

The meaning and foundations of ijtihad (personal reasoning)

Kamali states that after the Qur=an and the Sunnah39, ijtihad is the most important source of Islamic law. The
learned author writes:

The main difference between ijtihad and the revealed sources of the

Shari=ah lies in the fact that ijtihad is a continuous process of

development whereas [D]ivine [R]evelation and Prophetic legislation

discontinued upon the demise of the Prophet. 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.40

Kamali adds that because ijtihad derives its authority from Divine Revelation, its propriety is measured by its
harmony with the Qur=an and the Sunnah. He argues that the >essential unity of the Shari=ah lies in the degree of
harmony that is achieved between [R]evelation and reason=41 and that ijtihad is the principal instrument of
maintaining this harmony. According to Kamali, the secondary sources of Islamic law, namely consensus of
opinion (ijma) , analogy (qiyas), juristic preference (istihsan) and considerations of public interest (maslahah), all
represent different forms of ijtihad.

Linguistically speaking, the word >ijtihad= emanates from the root word al-juhd, meaning exertion, effort, trouble
or pain. Al-juhd denotes exercising one=s capacity, ability, power or strength in a correct and righteous manner.

Technically or legally speaking, a number of scholars have provided definitions of the term ijtihad. These include,
inter alia, Al-Ghazali, Al-Amidi 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

experiences an inability to expend further effort.42

While Abu Ishaq Al-Shirazi defined ijtihad as follows:

In the language of the jurists, ijtihad is the exertion to the utmost

and the full exercise of one=s capacity in arriving at a legal value.43

The legal foundations of ijtihad are founded on the well-known hadith44 concerning Mu=ad ibn Jabal. When the
Prophet Muhammad (peace be upon him45) asked him what he would do if a problem is presented to him, Mu=ad
ibn Jabal replied that he would judge by what is contained in the Qur=an. The Prophet then asked him what he
would do if there was no authority in the Qur=an. Mu=ad responded by saying that he would make a judgment in
accordance with the Sunnah of the Prophet (pbuh). When the Prophet asked him what he would do if he found no
authority in the sunnah Mu=ad ibn Jabal replied that he would exercise his opinion and spare no effort in so
doing. At this the Prophet expressed his pleasure, thus indicating the position and status of the mujtahid in Islam.

The Prophet exhorted people to exercise ijtihad when necessary and at the same time exonerated the mujtahid from
sin or wrong if he erred in the process. Mitha argues that the act of sending a scholar such as Mu=ad ibn Jabal to
Yemen indicates that the spread of Islam necessitated a mufti or mujtahid in different areas. Such person would
be able to apply the Shari=ah in a diverse geographical and cultural situation and this would demonstrate the
ability of the Shari=ah to be a living law.46

Since ijtihad derives its authority from Divine Revelation and since its propriety is measured by its harmony with
the Quran and the Sunnah, the mujtahid must apply his/her mind in the context of the various theories of and
approaches to legal interpretation in Islam. Before looking at these theories of legal interpretation and the manner
in which these theories were applied in the four great schools of thought, it is appropriate to begin by examining
ijtihad through the ages, beginning with the manner in which the companions of the Prophet Muhammad (pbuh)
practised ijtihad .

IJTIHAD THROUGH THE AGES

Ijtihad by the Companions of the Prophet

The Prophet Muhammad (pbuh), who was the last of God=s Messengers on earth, delivered the Divine Message
and part and parcel of his mission was to ensure the stability and continuity of that message. In allowing his
companions to practise ijtihad he was, in fact, testing their methodologies in the application of the principles of the
Shari=ah and also testing their intellectual acumen in solving novel problems. The Prophet consistently
endeavoured to make the companions self-sufficient in the legal tools necessary to sole problems that would
confront them after his demise.

It was the responsiblity of the Prophet to ensure that he left behind a group of companions who were well-versed,
not only in the memorisation of the Qur=an and the implementation of his Sunnah, but also in the practical
application of those laws. If the Prophet 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 Shari=ah.

The general methodology of ijtihad of the companions was the approach adopted by Mu=ad ibn Jabal. Thus, they
would first consult the Qur=an and thereafter they would refer to the Sunnah. If they found no authority in either
they would employ their utmost intellectual powers in the formulation of a legal value (hukm) which would be in
harmony with the Qur=an and the Sunnah, in other words they exercised their own ijtihad. 47 Over and above the
general methodology of the ijtihad of the companions, they also developed their own individual methodology in the
application of ijtihad. Because Umar made a particularly outstanding contribution to ijtihad - particularly in the
light of his emphasis on the spirit of the law rather than its letter- it is important to examine a few of his decisions
in this regard.

The ijtihad of Umar

During the time of the Prophet, Umar=s ijtihad led him to abstain from performing the burial

(janazah) prayer on a hypocrite. When the Prophet wanted to peform such prayer Umar said >Did Allah not
prohibit from praying on these hypocrites=. The Prophet replied that, in terms of the following Qur=anic verse, he
was entitled to choose between two options:

...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

wert to pray seventy times that they be forgiven, God will

not forgive them...48

After the Prophet 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.49

As far as the ijtihad of Umar during his own reign is concerned two instances are selected here:

(i) first, his suspension of the punishment for theft during the year of the famine, and

(ii) secondly, the imposition of the death penalty for all who conspire in the crime of murder.

(i) The Qur=an states that the punishment for a thief is the cutting off of the hand and that this

is a deterrent ordained by God.50 While the Prophet (pbuh) applied this law strictly, Umar

suspended the punishment for theft during a year in which famine prevailed in Madina. He refused to amputate
the hands of two men, who had allegedly stolen meat during this

period, on grounds of the famine as well the hunger suffered by the men. In reaching his

decision Umar relied on the spirit and the general import of the Qur=anic teaching that

necessity may serve as a justification ground for wrongdoing. In Umar=s view, to punish

these men, who stole out of necessity, would amount to a violation of the spirit of the
Qur=anic legislation.

(ii) The Qur=an declares:

And we ordained for them therein [Torah]

A life for life, and eye for an eye, a nose

for a nose, an ear for an ear, a tooth for a

tooth and a wound for a wound.

But if anyone remits the retaliation by

way of charity, it is an act of atonement

for himself...51

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 San=a52 had participated in it he would have had them all put to
death.53

Does this ruling of Umar violate the Qur=anic ruling of a life for a life? Umar=s approach was based on a basic
principle underlying the Shari=ah, 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 life= was strictly or literally interpreted then the punishment of only one member of the gang would be
sufficient to satisfy the requirement and this would amount to unequal treatment of the 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.

Umar=s 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-dhara=i). Sadd al-dhara=i implies preventing the means to an expected end which is likely to materialise if
the means towards it is not also prevented.54

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
Qur=an, 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 Umar=s approach to ijtihad was his view that all ijtihad was practised and applied within time
and space and that no one=s ijtihad was valid for all time. Umar realised fully that ijtihad would differ from age to
age and from place to place. This remains the abiding strength of his ijtihad .

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 Shari=ah. They regarded the Qur=an and the
Sunnah as totally binding and did not deviate from the injunctions of these two sources. While making extensive
use of qiyas55, they always took into consideration the welfare of the people within the parameters of the
objectives of the Shari=ah. The companions also made constant reference to the principle of sadd al-dhara=i.56

The four schools of thought in Islam

(1) Imam Malik

Imam Malik was born in Madina around 93 AH and lived his entire life there. He died in 179 AH.

Imam Malik was one of the great hadith transmitters. He is regarded as the first recorder of the science of hadith
and his great work Al-Muwatta was the first scientific collection of hadith.57 He always atempted to derive his
opinions first from the Qur=an, then from the Sunnah and then from the statements and judgments of the
companions and those who followed them. Since reliance on oral transmission had been the norm until then, the
Al-Muwatta was the first book written on hadith and fiqh. Malik was not unduly disturbed by the variance in
opinions and decisions in different places. Rather he regarded such divergence as inevitable and believed that
opinions or judgments should be in harmony with the customs of every area as long as they did not contravene an
explicit text of the Qur=an or the Sunnah.58

Imam Malik stated that istihsan (discretion) is nine- tenths of knowledge. It is thus not surprising that decisions
based on istihsan when having to weigh up different proofs are numerous in the Maliki school.59 Malik refined the
principle of istihsan in his treatment of masalih mursala (considerations of public interest). As regards masalih
mursala Abu Zahra 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 Shari=ah is

whether or not they are beneficial...60

Imam Malik often relied on the principle of sadd ad-dhara=i (blocking the means), which entails that the means to
what is forbidden is also forbidden.
In summing up Imam Malik=s 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. In a word, the spirit of the Shari=ah was more important than its letter.

(2) Imam Abu Hanifa

Imam Abu Hanifa was born of Persian descent in Kufa in 80 AH. He lived there most of his life as a student,
debater and teacher and died in 150 AH.

Abu Hanifa tended towards deeper study of issues at hand and this inevitably led him ot hypothesise situations
which might occur but had not yet occurred. When Imam Abu Hanifa could not find a text of the Qur=an or the
Sunnah he would rely on a an opinion or fatwa of the Companions. If there were differing opinions among the
Companions, he would select from among the differing views.61

Where no text of the Qur=an, Sunnah or fatwa of the Companions was available, he exercised ijtihad. In this
regard, he was sometimes guided by analogy ( qiyas ) and on other occasions by istihsan - that is, the best
interests of the people and lack of harm in the deen. Abu Zahra adds:

Abu Hanifa=s ijtihad and his method in understanding the

hadiths, coupled with the environment in which he lived,

made him use a lot of analogy and ramify secondary rulings

accordingly, because in his ijtihad, Abu Hanifa did not stop at

investigating the rulings of problems which had actually occurred

but would extend his reasoning to rulings in respect of problems

which had not occurred. He would theorise in order to be prepared

for circumstances before they occurred so as to be ready to deal

with them.62

(3) Imam Al-Shafi=i

Imam Shafi=i was born in Palestine in 150 AH, the year in which Imam Abu Hanifa died . He died in 204 AH.

Al-Shafi=i, believing that the jurists before him had exercised ijtihad without having defined limits to the way in
which they deduced their rulings, decided to clearly set out the principles of fiqh based on logic. He ranked the
sources of the Shari=ah as follows:

(i) Qur=an and the Sunnah;

(ii) Consensus ( of the fuqaha on what is contained in the first source);

(iii) Opinions of the Companions of the Prophet;

(iv) The opinion of a jurist in case of variant opinions of the Companions;

(v) Analogy.
Since the Sunnah expounds the Qur=an in many cases, Al-Shafi=i considered the Qur=an and the Sunnah to have
equal status in the Shari=ah. He also believed that the Qur=an cannot be contradicted by the Sunnah. Thereafter
came ijma (consensus). Consensus means the agreement of the jurists on what is contained in the first source of
the Shari=ah. As far as analogy (qiyas) is concerned, an analogy should be made on the basis of an issue which
has a ruling in the Qur=an or Sunnah, or on the basis of consensus or by following the unopposed view of one of
the Companions.63

Imam Al-Shafi=i expressly invalidates istihsan and states that any ijtihad in which the mujtahid does not rely on
the Qur=an, the Sunnah, ijma or qiyas is istihsan because the mujtahid takes what he prefers in it. Such ijtihad,
without relying on a firm text and proper evidence is, for him, unacceptable and has no connection to the
Sharia=h.64

Al-Shafi=i rejected the purposive approach to interpretation and, for him, the letter of the law was more important
than its spirit.

(4) Imam Ahmad Ibn Hanbal

Imam Ahmad Ibn Hanbal was born in Baghdad in 164 AH. At the time Baghdad was the capital of the Muslim
world. He died in 241 AH.

Like Imam Al-Shafi=i before him, he ranked the sources of the Shari=ah. His ranking was as follows:

(i) Qur=an and the Sunnah;

(ii) Consensus;

(iii) Fatwas of the Companions;

(iv) Analogy;
(v) Istishab ( presumption of continuity) ;

(vi) Maslahah mursalah .

Istishab or presumption of continuity means that the basic postition established in the past remains in the present
and the future, as long as there is no reason to change it or unless there is clear evidence to the contrary. The
following are some of the forms of istishab listed by Ibn Hanbal;

(i) continuity of what a contract or the law affirms. For example, marriage is presumed to

exist unless there is evidence of divorce;

(ii) continuity of original attributes. For example, a mising person is pesumed to be alive

unless there is clear evidence to the contrary;

(iii) continuity of consensus on general rules and principles of the law.65

Like Imam Malik, Ibn Hanbal=s approach to legal interpretation was purposive. He utilised the principle of public
interest to a large extent and was of the view that the fatwas of the Companions were often based on public
interest. He also employed the tool of sadd al-dhara=i frequently.

Having briefly referred to the approaches of the four Imams to legal interpretation, I shall now examine the work of
perhaps the greatest exponent of the idea of maslahah (public interest), namely that of Al-Shatibi.

Shatibi=s 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 Al-Muwafaqat . The significance of this work in modern Islamic legal thinking may be guaged
by two scholars of the 20th 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 law-making while Mawdudi stated
that, through a study of Al-Muwafaqat, law experts would acquire a deeper insight into the spirit of the fiqh.66

In his Al-Muwafaqat, Shatibi expounded the objectives of the Qur=an and the Sunnah more clearly and extensively
than any other earlier work. He explained in detail the indispensable human needs and secondary necessities of
life and also analysed the interconnectedness between human needs and legal texts comprehensively.

If there is one outstanding characteristic of Shatibi=s approach to Islamic legal interpretation it is that the spirit of
the law is greater than its letter. 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. What,
then, was Shatibi=s approach to maslahah and ijtihad respectively?

(i) Shatibi on maslahah

According to Shatibi, the primary objective of the Lawgiver is the maslahah (welfare) of the people. The obligations
inherent in the Shari=ah 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: religion (din), self or the right to life (nafs),
intellect or sound mind (aql), family or lineage (nasl) and property (mal). The hajiyyat are required in order to
extend the operation of the maqasid and to remove the rigidity inherent in literal interpretation. Such rigidity may
well lead to hardship which, in turn, could disrupt the maqasid of the Shari=ah. 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

requirments and reducing legal demands. The Shari=a,

Shatibi relentlessly asserts, rests squarely on these three

principles, principles stipulated in the Qur=an and

articulated in the Sunna.67

In the light of his three-fold division of the maqasid, Shatibi extracts the following five rules:

(i) darura is the foundation of all maslahah;

(ii) the disruption of a daruri necessitates the disruption of other objectives absolutely;

(iii) the partial disruption of a haji or tahsini does not necessitate the disruption of the daruri;

(iv) an absolute disruption of haji or tahsini disrupts the daruri;

(v) the preservation of haji and tahsini is necessary for maintenance of the daruri.68

Shatibi adds that, the purpose of the maqasid (objectives) of the Shari=ah is not only aimed at good in this world
but good in the hereafter as well.

(ii) Shatibi on ijtihad

On the basis of Shatibi=s approach to legal interpretation, Masud states that in Shatibi=s legal philosophy God
provides knowledge of good and bad to man through Divine laws, natural instinct and social experience. Shatibi
distinguishes between simple and specialised ijtihad. Simple ijtihad refers to universal principles commonly
understood by both specialists and lay people. While specialised ijtihad is only valid when exercised by those who
are qualified and have attained the requisite skills therefore69. The two basic requirements for a qualified mujtahid
are :

(i) a perfect understanding of the purpose/s of the law (maqasid al-shari=ah), and

(ii) on the basis of the above understanding, a command in the skill of deduction.

Relying on Imam Malik, Shatibi spells out the following steps in the process of ijtihad. First, examine the case in
the light of the Shari=ah. If it is acceptable, then consider its consequences in the context of the condition of its
time and its people. If it does not involve or result in any evil then submit it to reason. If you feel that it will be
accepted by reasonable people, then give your opinion in general terms if the case concerns a matter that is
generally acceptable. If it cannot be generalised then give a specific opinion. If the case in question cannot be
successfully resolved by this means then it is advisable to keep silent since this would be more in conformity with
the welfare of the people.70

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 or through the interpretation of the text. Shatibi=s philosophy
of Islamic law, as contained in his Al-Muwafaqat, has been hailed as perhaps the greatest contribution to
understanding the spirit of the Shari=ah.

Before briefly discussing the place of the fatwa in ijtihad, it is indeed apt to reminisce about a case of ijtihad and
ifta71 in Andalusia in 516.

Ijtihad and ifta by Ibn Rushd in Cordoba in 516

One of Umar=s most well known instances of ijtihad was his imposition of the death penalty on all the perpetrators
in the crime of murder. 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 era 72 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 father=s 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
group of Maliki jurists the murderer, upon admitting his guilt, was executed at the behest of the victim=s brother
and his sons.73

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.74 In his fatwa he dismissed the established Maliki doctrine and opined that only
the children of the victim are entitled, upon reaching majority, to either demand the murderer=s punishment or
opt for blood-money of, of course, to pardon the murderer. Ibn Rushd then issued a second fatwa on the matter,
claiming that some learned people had requested him to explain the opinion in his earlier fatwa. He argued that
the children=s 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 no sound footing.

In support of this, Ibn Rushd adduces the Qur=anic verse which states : >And ask those who are learned if you do
not know=75 as well as the famous hadith concerning Mua=d ibn Jabal. This hadith, Ibn Rushd argued, placed the
>highest importance upon independent thinking=.76

On the grounds of these primary sources of the Shari=ah Ibn Rushd introduces a new fact, namely the fact 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 ) dictates 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.

Ibn Rushd then goes on to explain that the Qur=anic 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].77

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 amounts to nullifying the rights of the children of the victim. The
learned jurist further argues that a number of Qur=anic verses78 attesting that pardoning should take preference
over punishment points to the fact that the death penalty ought to act as a deterrent against murder. He also
refers to a hadith of the Prophet (pbuh) which, he maintains, indicates unequivocally that pardoning is superior to
punishment. The Prophet once asked the relative of a murder victim to accept blood-money, which he refused. The
Prophet replied : >Should the murderer be killed? If he is to be killed, what would make you a better man than
him?=79

It may well be asked what the importance of this fatwa is to the discussion at hand. The answer is that it elicits a
number of significant features vis-a-vis legal interpretation in Islam. Four reasons may, in particular, be adduced:

1) 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.

2) The fatwa exhibits the principles of basic Islamic legal theory in practice. For Ibn Rushd

relies on the authority of the Qur=an, then goes to the Sunnah, followed by ijma.

3) 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. Hallaq argues that the fact 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.80

4) Finally, this fatwa serves as proof that ijtihad was practised 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.

Ijtihad in the 18th century

In the 18th century Shah Wali Allah of Delhi - who has been termed the >Ghazali= of Islam in the Indian
subcontinent - initiated a new methodology in Islamic legal interpretation. He termed it tatbiq, meaning to bring
into alignment or to make congruent.81 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. These best
interests, which for Islam are based on the ultimate 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 Qur=an declares on a number
of occasions that Islam is the natural way.82 For Shah Wali Allah, all rulings based on ijtihad and/or tatbiq ought
to be founded on the concept of fitra.
The famous 18th century Yemeni jurist, Muhammad al-Shawkani, did not subscribe to any of the four madhahib.
His approach to usul-ul-fiqh was based on the absolute necessity of applying ijtihad as a means of combating the
sectarian and antagonistic tendencies amongst different schools of law. He regarded the practice of taqlid as a
reprehensible innovation which had been developed by the followers of the various schools of law.83 As regards
ijtihad, Shawkani argued that >it provided a solution to the evils of sectarianism and fanatacism as well as a
means of reforming misguided social practices=.84

Ijtihad in the 19th and 20th century

Perhaps the leading figure in this era was the Egyptian scholar Muhammad Abduh,85 who called for the
restoration of the original Qur=anic norms to the modern era . Abduh=s vision was one of creative legal thinking.
He called for independent and objective Muslim thought

as opposed to the the imitation, taqlid, of authoritative tradition.86 Arabi states:

Abduh=s version of ijtihad embodies his awareness that only the

scientifically disciplined use of reason would enable Muslims to

cope with the present and prepare for the future, 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.87

Abduh=s call for the restoration of the original Qur=anic 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). The second principle is that where Revelation and reason are in conflict, reason should take
priority (taqdim al-aql ala al-shar). In the light of Abduh=s two principles of Islam, Arabi states that three key
elements form the operational guidelines for the implementation of Abduh=s approach to Islamic law, namely:

1) the restitution to the sacred texts of their original and universal import (usul al-shari=a wa

kulliyyatiha), irrespective of the provincial and more particular applications that accrued

to it in history;

2) the delimitation of a category of textual rulings that follow from a conclusive evidence

(dalil qat=i), and therefore not subject to interpretation or alteration, and

3) the determination of a category of changing rulings, in accordance with human interests

and conditions.88

Abduh applied these three elements to question of polygamy in his day and age, in the light of the well-known
Qur=anic verse which states that men may marry more than one woman unless injustice or inequity may result.89
He concluded that maslahah - the interests of the community - renders the practice detrimental in the present
day.

As regards divorce law, the Egyptian Law No.1 of 2000 (Women May Divorce at Will) serves as but one example of
Abduh=s influence on the reconstruction of the Shari=ah or, as Muhammad Iqbal couched, the principle of
movement in Islam.90 The most striking feature of this new piece of 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. 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 Shari=ah and that it was approved by a majority vote in the forty-member Islamic Research Academy.91

The last chapter of Oussama Arabi=s book, Studies in Modern Islamic Law and Jurisprudence, is entitled >The
Place of Islamic Law in the Modern World and the Reconstruction of Shari=a=. 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
colonisers and imperialists is the preservation of the dignity and identity of Islam and Muslims. 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 Said=s 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 self-justification 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.92

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. For Morand, Arabi
argues, universal legal logic took precedence over narrow and dogmatic prejudice.

Abduh=s approach to Islamic legal interpretation meant a positivisation of the Shari=ah - the process of integration
of the Shari=ah into the modern state=s political structure without abandoning the ethical and religious spirit of
Islamic law - coupled with an end to the long-established traditions and doctrines of the madhab system.93 This
positivisation would be based on ijtihad or what he termed creative legal thought. Arabi states that through the
universal value of ijtihad - involving, as it does, a great degree of flexibility - >Abduh forged

the logical and conceptual tools that would, both retrospectively and for the twentieth century and beyond,
consolidate the positivisation of Islamic law.94

In a 1994 decision the Egyptian High Constitutional Court stated that where the primary sources of Islamic law,
namely the Qur=an and the Sunnah, contain a definitive ruling, no ijtihad is permissible. 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 realising the five maqasid (objectives
) of the Shari=ah. The Court stated that ijtihad consists in applying reason to a sacred text, as an extension of the
rules that is neccesitated by God=s clemency, fairness and justice towards his subjects. The practice of ijtihad does
not confer any sacredness (qudsiyya) on the opinion of some or other jurist with regard to the legal matter under
consideration and there is no impediment to revising it, evaluating it or replacing it by another rule.95

Since Marcel Morand is regarded by Arabi as an exception to the general European or Western approach during
colonisation of applying and modernising the law of the conquered, brief reference is made here to his approach in
his Draft Code of Muslim Algerian Law.96 Although Morand was committed to the values of the French colonial
enterprise in Algeria, he nevertheless effected a radical departure from the perspective of classical Islamic legal
interpretation by creating a synthesis which transcended the four madhahib and thus was at the forefront of legal
reform and reconstruction in Muslim countries in the twentieth century.97
Of course, Morand=s creative legal thought and his brand of legal realism took place in the >colonial matrix=.98
While the French colonial government in Algeria had opted to maintain the corpus of the Maliki law, Morand
attempted to develop and evolve the Shari=ah 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 Shari=ah. Arabi
writes:

The 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...99

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.100 Taking into account Abduh=s 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 >the age of puberty is 18 years, completed, for the man; and 15 years, completed, for the woman.
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.

Morand=s 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 Shari=ah. This flexible and pragmatic approach is reminiscent of Imam Malik=s approach to
interpretation; it will 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.

Ijtihad in the 21st century

In an article published in the Ar-Rabitah101 magazine in 2002 Dr Muhammad Ammarah discusses ijtihad in the
contemporary world.102 He argues that because the world we live in has progressed without adherence to the
essence of the Shari=ah - mainly due to the influence of western imperialism and civilisation - it is not possible for
one thinker or jurist alone to rearrange the relaities of the world. Furthermore, due to increasing specialisation - in
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 Shari=ah only. Rather the Ahl ul dhikr,

ulul al amr and ashab ul hall wa aqd 103 must include experts in

secular fields as well. There is a necessity to form intellectual

establishments that [combine] both religious and and secular

experts in order that ijtihad can be cast in a new manner.

Ijtihad is a combination of the essence and objectives of the

Shari=ah 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 Shari=ah. 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.104

Ammarah argues that the creation of intellectual establishments105 should not imply that individual creativity will
be impeded. Rather, such creativity will remain unrestrained.

Another point made very strongly and clearly by him is that, underlying all contemporary ijtihad, should be the
rejection of secularism - which he regards as a Western disease - and the need to find European/Western
solutions to all problems faced in the interpretation of Islamic law. He rejects secularism because it entails the
separation of Islam from the material world and, more importantly, it will result in the loss of the civilisational
independence of Islam. Ammarah ends his short article by saying that:

It is also necessary that we distinguish between the Law -

which is a method and has objectives - from its application

by the forbear[er]s (salaf) and the ijtihad of the ancients. The

Law is a way of life given by Allah and is permanent whereas

the applications of the forbear[er]s and the ijtihad of the ancients

are not a creed. They are not fixed systems binding on on one

who lives in a different context from the world they lived in.106

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 have not only knowledge of the Qur=an and the Sunnah but also a broad familiarity with
scholarship in Arabic grammar, logoc, philosophy, economics and sociology, other scholars assert that
interpretation of the texts should not be confined to legal scholars but should be open to those with >creative
imagination=.107 Amongst 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. While 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 fitra108, on the innate God-given sense of right and wrong.

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 one=s creative imagination
while remaining within the bounds of the Shari=ah? Two pertinent examples, and there are many more of course,
are the issues of apostasy and inheritance law in Islam. In respect of apostasy, the Qur=an does declare that
>there is no compulsion in religion=.109 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. 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 freedom of expression, so too there are limitations on freedom of religion.
As I understand it, 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 Qur=an commands that, as regards inheritance by one=s children,
the male is entitled to a portion equal to that of two females.110 In the context of the basic human right to equality
- gender equality specifically - should this verse be reinterpreted in the 21st century or should its rationale be
properly explained and understood.111 Is not the empirical equity inherent in the distribution of wealth more
important than the mathematical inequality?

These are but two examples of the caution which must be coupled with ijtihad - with creative legal thought - in the
21st century.

I believe that ijtihad today should be founded on the best that the fourteen centuries of Islam has taught us. The
khalifa (caliph) Umar taught us that the spirit of the Shari=ah 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 Shari=ah. In the 18th century Shah Wali Allah
argued that the maslahah, which is based on the human being=s 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.

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 Shari=ah). Always, of
course, bearing in mind the limits and bounds set by the Shari=ah. The ethical and moral precepts underlying the
spirit of the Shari=ah should never be overlooked, since the dignity of Islam and its followers is founded upon its
moral and ethical values. In this regard, I believe that ijtihad in the 21st century should not serve to merely bring
Islamic law in line with Western human rights standards and values. In this I am in full agreement with the views
of Ammarah.

I conclude with the verse of the Qur=an quoted at the very beginning of this paper. Allah says:

Ask the people who are learned if you do not know.112

 THE ROLE OF IJTIHAD IN BIOETHICS

Abul Fadl Mohsin Ebrahim, Ph.D. (Temple University, USA)

School of Religion and Theology, University of KwaZulu-Natal, Durban

ABSTRACT

Ijtihad is defined as "the capacity to make deductions in matters of law in cases to which no express text from the
Noble Qur’an and Sunnah is available." The vast majority of Muslims who reside both within and outside the
geographical confines of the Muslim world are well aware of the challenges that Bioethics poses vis-à-vis their world
view. The scope of Bioethics is all-encompassing and since Muslims are keen to implement their religious values in
almost all facets of their lives, this paper precisely addresses the vital role that ijtihad can actually play in resolving
their bioethical dilemma.

Introduction
Imam Abu Hanifah (d.769 C.E.) defines fiqh as "the understanding of a person’s rights and obligations (which are
directly related to his actions)." Thus fiqh (Islamic Jurisprudence) implies a science that concerns itself with the
consequences of human actions, i.e., whether they will be spiritually rewarded or punished (for their actions).

The term Fiqh in legal parlance denotes making use of the intellect (al-`aql) in deciding a point of law, but within
the parameters of the broad teachings of the Divine revelation (the Noble Qur’an) and the sayings and practice of
Prophet Muhammad r (Sunnah). In essence, Fiqh is the science which facilitates the application of the Shar`ah
(Divine Law).

There are basically five major Schools of Islamic Jurisprudence, namely, the Hanafi, Maliki, Shafi`I, Hanbali and
Ja`fari Schools.

The Hanafi School is the most widespread school in the Muslim world and was the dominant school during the
.Abbasid Caliphate (750-1258 C.E.) and the Ottoman Empire (1290-1924 C.E.). Today, it continues to be the
dominant school for Muslim personal law matters and religious observances in Egypt, Syria, Lebanon, Iraq,
Jordan, Palestine, the Balkans, the Caucasus, Afghanistan, Pakistan, India, the Central Asian republics, China
and South Africa.

The birthplace of the Maliki School was Madinah and thus adherents of this school are found in certain parts of
the Kingdom of Saudi Arabia and it continues to be the dominant school among the people of Morocco, Spain,
Algeria, Tunisia, and Libya. Its followers are also found in Upper Egypt, Sudan, Bahrain, the Emirates, Kuwaitand
South Africa.

Insofar as the Shafi`i School is concerned, its adherents are found in Syria, Lebanon, Iraq, Jordan, Palestine,
Egypt, Indonesia, Malaysia, Indonesia, in some rural areas of Egypt and in South Africa.

The Hanbali School is the official school in Saudi Arabia and Qatar. It also has adherents in Palestine, Syria and
Iraq.
The Ja`fari School is the major Shi`i legal school. It takes its name from Imam Abu Ja`far Muhammad al-Baqir and
Imam Ja`far al-Sadiq, the fifth and sixth Shi`i Imams. The Ja`fari School came to be included as the fifth school of
Islamic Jurisprudence after Shaykh Mahmud Shaltut, the former al-Imam al-Akbar (Rector) of al-Azhar University
in Cairo, Egypt, accredited it along with the other four Sunni Schools.

Scope of Bioethics

The scope of Bioethics covers an array of issues such as:

§ Doctor-patient relationship

§ Medical confidentiality

§ Medical negligence

§ The management of infertility and childlessness

§ The control of fertility

§ Abortion

§ Prenatal screening
 § Health resources and dilemmas in treatment

§ The diagnosis of death

§ The donation of organs and transplantation

§ Euthanasia

Sources of Islamic Jurisprudence

The Noble Qur’an and the Sunnah are the primary sources of Islamic Jurisprudence. These two sources are the
embodiment of what is known as the Shari`ah (Divine Law).

The Noble Qur’an

The Noble Qur’an is the Sacred Scripture of Muslims which is regarded to be the verbatim Word of Allah I revealed
to Sayyiduna Muhammad r over a period of approximately 23 years. It embodies the Divine Commandments which
encompass all facets of human life. Muslims are required to uphold and implement these Divine Injunctions. This
is evident from the following verse:

"The hukm (jurisdiction) rests with none but Allah." (Al-An`am, 6:57)
It is further stated:

"….Those who do not judge in accordance with what Allah has sent down, verily they are
the deniers of the Truth." (Al-Ma’idah, 5:44)

"….Those who do not judge in accordance with what Allah has sent down, verily they are
the wrongdoers." (Al-Ma’idah, 5:45)

From the above Qur’anic verses, it is evident that within the Islamic system, Allah I is regarded to be the only Law-
Giver (al-Shari`) and that in Him I alone rests the supreme legislative power.

eH

The Noble Qur’an is described as "a healing and mercy to those who believe" (Ha Mim, 41:44). Imam Ibn Qayyim al-
Jawziyyah (d. 1350 C.E.) holds the view that the objectives of medicine are threefold, namely, protection of health,
getting rid of harmful things and safeguarding against harm and interestingly, the Noble Qur’an complements
these objectives as discussed hereunder:

Healthy living depends upon having a balanced diet comprising of wholesome food and drink and avoiding the
intake of anything that may prove injurious to one’s body. In this regard, the Noble Qur’an stipulates:

"O humankind! Eat of what is lawful and wholesome on earth" (Al-Baqarah, 2:168)
and

"O you who believe! Khamr (Intoxicants)… are an abomination of Satan’s handiwork. Eschew such
(abomination) that you may prosper….." (Al-Ma’idah, 5:93-94).

Feelings of insecurity and helplessness may lead to mental depression which could result in suicide. In order to
circumvent that, the Noble Qur’an exhorts humankind to seek refuge in their Creator: "…for verily in the
remembrance of Allah hearts do find rest" (Al-Ra`d, 13:28).

The Noble Qur’an even goes to the extent of relaxing certain rules as concessions for the sick, thus safeguarding
them from endangering their lives. This is evident from the fact that although Muslims are required to fast during
the holy month of Ramadan, those who are ill are allowed not to fast and to make up the fasts missed later on
when they would have recovered from their particular illnesses. This is evident from the following citation:

"But if any one is ill or on a journey, the missed period (should be made up) later." (Al-Baqarah, 2:
185)

The Sunnah

Sunnah is regarded as wahyun khafi (minor revelation) and includes all that has been reported on the authority of
Sayyiduna Muhammad r and as such incorporates his r authentic sayings (sunnah qawliyyah), his r actions and
personal habits (sunnah fi`liyyah), and finally, his r tacit approval and explicit disapproval (sunnah taqririyah).
By virtue of the fact that Allah I chose to reveal the Noble Qur’an to Sayyiduna Muhammad r, it, therefore,
becomes binding upon Muslims to follow his r explanations and interpretations of the Divine Commandments. In
other words, Sayyiduna Muhammad r explained, interpreted and demonstrated how the Divine Law ought to be
applied. The Noble Qur’an substantiates this as follows:

"And We have sent down the Reminder (Message) to you (O Muhammad) so that you can make
clear to humankind what has been sent down to them so that hopefully they will reflect." (Al-Nahl,
16:44)

The Six Authentic Collections of Ahadith (Al-Sihah al-Sittah) which guide the life of Sunni Muslims are:

1. Al-Jami` al-Sahih compiled by Imam Muhammad ibn Isma[il al-Bukhari (d. 870 C.E.).

2. Al-Jami` al-Sahih compiled by Imam Muslim ibn al-Hajjaj Naysaburi (d. 875 C.E).

3. Jami[ al-Tirmidhi compiled by Imam Abu `Isa Muhammad ibn `Isa bin Sawrah (d. 892 C.E.).

4. Sunan al-Nasa’i compiled by Imam Abu `Abd al-Rahman Ahmad ibn Shu`ayb (d. 915 C.E.)

5. Sunan Ibn Majah compiled by Imam Abu `Abd Allah Muhammad ibn Yazid (d. 887 C.E.)

6. Sunan Abi Dawud compiled by Imam Abu Dawud Sulayman ibn al-As`ab (d. 888 C.E.).
The four major compilations which contain the transmitted material from Prophet Muhammad r and the Shi`i
Imams serve to guide the socio-political and religious life of the Shi`is are:

1. Kitab al-Kafi of Shaykh Muhammad ibn Ya`qub al-Kulayni (d. 940 C.E.).

2. Man la yahduruhu al-Faqih of Shaykh Muhammad ibn `Ali ibn Babawayh (d. 991 C.E.).

3. Tahdhib al-Ahkam of Shaykh Muhammad ibn Hasan al-Tusi (d. 1067 C.E.).

4. Al-Istibsar of Shaykh Muhammad ibn Hasan al-Tusi (d. 1067 C.E.).

The Sunnah serves to complement the Noble Qur’an in the absence of a categorical Qur’anic statement on a
particular issue in question. For example, the Noble Qur’an is silent on the issue of the permissibility or non-
permissibility for Muslims to take certain precautionary measures for the purpose of frustrating pregnancy. On the
other hand, there are a number of Hadith reports which allude to the fact that during the time of Sayyiduna
Muhammad r, some of his r Sahabah y (Companions) resorted to `azl (coitus interruptus) which involves
withdrawing the penis from the vagina prior to the emission of sperm to prevent insemination of the ovum. What is
important to note here is that the Allah I did not reveal any injunction to censure this practice as is evident from
the report of Sayyiduna Jabir t: "We used to practice `azl during Sayyiduna Muhammad’s r lifetime while the Noble
Qur’an was being revealed." This then serves as justification for Muslims to make use of modern contraceptive
devices.

Secondary Sources

The secondary sources are:

Ijtihad

Ijma[ Qiyas

Ijtihad (Intellectual Deliberation)

The justification for including Ijtihad as a secondary source is based upon the fact that when Prophet Muhammad
r ordered Sayyiduna Mu`adh ibn Jabal t to proceed to Yemen, he r put the following question to him: "According to
what will you judge?" "According to the Book of Allah," replied Mu`adh t. "And if you find nothing therein?"
"According to the Sunnah of the Prophet of Allah." "And if you find nothing therein?" "Then I will exert myself
(exercise ijtihad) to form my own judgment." Sayyiduna Muhammad r was pleased with this reply and said: "Praise
be to Allah Who has guided the messenger of the Prophet to that which pleases the Prophet."

Al-Ijtihad is derived from the root verb jahada, which means to endeavour, strive, etc. Its technical legal
connotation implies the exertion of the jurist’s intellect to determine the proper application of the teachings of the
Noble Qur’an and Sunnah to a particular situation with the aim of finding a solution for a case of law. In other
words, the ruling of the mujtahid (i.e. the scholar who engages in ijtihad) would be inferential and thus probable
(zanni). Thus, all bioethical issues which are not addressed by the primary sources, namely the Noble Qur’an and
Sunnah, would be resolved on the basis of ijtihad.

The two branches of Ijithad are Ijma` and Qiyas.

(a) Ijma` (consensus of juristic opinion)

Ijma` is derived from the root verb jama`a which means to collect or bring together. As a legal term, it is defined as
agreement of the jurists among the followers of Sayyiduna Muhammad r in a particular age on a question of law.
In practice, Muslim jurists congregate and deliberate upon any particular problematic issue which affect Muslims
and try to resolve it by agreeing and uniting in opinion. Once consensus has been reached, the ijtihad of Muslim
jurists shift from the realm of probability to that of certainty and becomes the basis for new cases to be solved. In
other words, when ijma` is obtained on a case of ijtihad, the issue in question does not remain at the level of
opinion (zann), but gets elevated to the position of a hujjah (a decisive verdict), thereby making it unlawful for
Muslims to disregard it.

(b) Qiyas (analogical deduction)

Qiyas is derived from the root verb qayasa, which means to measure. As a juridical term, it is defined as a process
of deduction by which the law of a text is applied to such cases which, though not covered by the language of the
text are covered by the reason of the text on the basis of the `illah (effective cause). For example, the Noble Qur’an
(Bani Isra’il, 17:33) censures murder or killing of human beings. In the past, killing was carried out in the form of
poisoning someone or stabbing a person to death, etc. The modality varied, but the `illah (effective cause) was
similar, i.e. it ended in death. Thus, today, if an attending physician deliberately chooses to administer a lethal
injection to the terminally ill, it would in effect cause death and the physician would be liable for the crime of
murder on the basis of the common `illah.

FACILITATING TOOLS FOR IJTIHAD

Al-Qawa’id al-Fiqhiyyah (legal maxims) are theoretical abstracts, usually in the form of short statements, that are
expressive, often in a few words, of the goals and objectives of the Shari`ah. The actual wordings of the maxims are
occasionally taken from the Noble Qur’an or Hadith, but are more often the work of leading mujtahids (jurists).

It is to be noted that some of the maxims are basically a reiteration of some of the broad principles that are found
either in the Noble Qur’an or Hadith compilations. For example, the maxim "hardship begets facility" is a
rephrasing if the Qur’anic verse: "Allah intends for you ease and He does not intend to put you in hardship" (Al-
Baqarah, 2:185). Muslim jurists have used this particular maxim as evidence in support of the many concessions
that are granted to the disabled and the sick in the sphere of religious duties. The rules are relaxed to allow them
to perform the salah (obligatory five times daily prayer) in a sitting or reclining posture. This very maxim can also
be used in the context of justifying the non-implementation of extraordinary means in the treatment of the
terminally ill if such means would in effect place a burden on others.

The maxim "harm must be eliminated, but not by means of another harm" (al-dararu yuzalu wa lakin la bi al-
darar) is a rewording of the Hadith "harm may neither be inflicted nor reciprocated in Islam" (la darar wa la dirara
fi al-Islam). A practical manifestation of this maxim is the validation not to opt for over zealous treatment and to
allow death to take its natural course. However, the aim should never be to hasten death, and all necessary steps
ought to be taken to ascertain that basic needs which are necessary to sustain the life of the patient should also
not be discontinued.

Mention is made in a Hadith that "breaking the bone of a dead person is equal in sinfulness and aggression to
breaking it while the person is alive." In other words, it would be an act of aggression, tantamount to mutilation of
the human corpse, to remove any of its organs for the purpose of transplantation. However, in this particular
context, the maxim "necessity makes the unlawful lawful" (al-daruratu tubihu al-mahzurah) can be used as
justification for the removal of the cornea from the dead for the purpose of transplanting it into another person
whose vision could be restored through corneal transplant.

The maxim "lesser of the two evils" (akhaffu al-dararayn) serves to sanction the carrying out of a Caesarian
section on a pregnant mother who has passed away in order to try to save her baby. In other words, this maxim
would justify "desecrating" the dead mother’s body to save the life of her baby on the grounds that it would be
better to save one life than to risk losing two.

The famous Hadith, namely, "Actions are valued in accordance with their underlying intention" (innama al-a`malu
bi al-niyyah) is the rewording of the maxim "actions are judged by the intention behind them". This maxim
reinforces the fact that the element of intent does play a crucial role in differentiating between the deliberate
withholding of treatment due to poor prognosis and allowing nature to take its course.

A dilemma doctors often face is whether they are obliged to consult the guardians and/or relatives of their patients
or whether they ought to do what they think is best for their patients without consulting their patients’ kith and
kin. This dilemma may be resolved on the basis of the maxim "private authority is stronger than public
authority" (al-wilayah al-khassah aqwa min al-wilayat al-`ammah) which implies that consent of the spouses,
parents and/or guardians of the patients is paramount and cannot be overlooked by the attending physicians.

Fatwa as the formal legal opinion of the Mujtahid/Mufti

Fatwa is derived from the root verb fatiya, which means to be youthful, to furnish with information and to
expound. Its evolution as a legal term emanate from two citations in the Noble Qur’an, where the word is used in
its 10th and 4th verbal forms:

"They seek your fatwa (yastaftunaka) regarding women. Say Allah does instruct you (yuftikum)
concerning them….." (Al-Nisa’, 4:127)

"They ask you for a (fatwa) legal decision (yastaftunak). Say: Allah directs (thus) (yuftikum) about
those who leave no descendants or ascendants……" (Al-Nisa’, 4:176)

Fatwa is defined as a formal legal opinion given by an expert in Islamic Law. An expert in Islamic Law is known as
a mujtahid/mufti, an inquirer (i.e. one who seeks the legal opinion of a mufti) is known as a mustafti, and the act of
issuing fatwa is known as ifta’.

Mujtahids/Muftis are usually consulted by members of the Muslim community to give their legal opinions on the
new developments in the fields of economics, politics, science, technology and even on bioethical matters
pertaining to family planning, abortion, cloning, euthanasia, organ transplantation, etc. It is to be noted, however,
that the fatwa of a particular mujtahid/mufti is not binding and hence one has the option to approach another
mujtahid/mufti for a second opinion. Moreover, one ought to realize that there are a number of conflicting fatawa
(sing. fatwa), for example, on organ transplantation and other bioethical matters and thus, in light of this,
Muslims thus have the liberty to uphold such legal opinions which best appeal to their conscience without any
qualm. After all, whatever legal verdicts they finally choose to follow would in essence be the ijtihad of the
mujtahid/mufti.
Enforcement of the legal verdicts of the

Mujtahids/Muftis

One ought to recall here that Islamic Jurisprudence, as was mentioned earlier, is the extension of the Shari`ah
(Divine Law). Insofar as the Islamic world view is concerned, the Shari`ah embodies the Will of Allah I Who is
regarded to be The Sovereign and Source of law and this is evident from the following Qur’anic verse:

"To Allah belongs the dominion of the Heavens and the Earth and Allah has power over all things.
(Al `Imran, 3:189)

From the above verse, it is evident that the Shari`ah does not recognize the liberty of legislation, for that would be
incompatible with the ethical control of human actions and, ultimately, of society. Law, therefore, does not grow
out of, and is not moulded by society as is the case with the Western system. According to Islamic teachings,
human thought alone cannot discern the true values and standards of conduct - such knowledge is complemented
by Divine Revelation. Likewise, human actions are considered to be either good or evil depending on what has also
been made known to humankind through Divine Revelation. Moreover, fear of punishment in the life hereafter,
depending on the strength of one’s faith, serve as a deterrent for one not to indulge in such actions that are
deemed prohibited by the Shari`ah.

The Shari`ah has laid down the penal code for perpetrators of crime. For example, the proviso for paying the
diyyah (blood money) for the unintentional killing of a human being is on the basis of the following Qur’anic
imperative:
 "Never should a believer kill a believer, but (if it so happens) by mistake (compensation is due): If
one so kills a believer, it is ordained that he should free a believing slave and pay compensation
(diyyah) to the deceased’s family…." (Al-Nisa’, 4:92)

At this juncture, it is important to note that in light of Islamic Jurisprudence, ensoulment of the foetus occurs
after the fourth month of pregnancy on the basis of the following Hadith:

"Each of you is constituted in your mother’s womb for forty days as a nutfah (drop of semen),
then it becomes an `alaqah (something that clings) for an equal period, then a mudgah (chewed-
like lump) for another equal period, then the angel is sent, and he breathes the soul into it."

Hence, any act of aggression against the foetus after the fourth month which results in the termination of its life
would be tantamount to the killing of an actual person. Thus the aggressor would be liable to pay the diyyah
(blood money) in compensation.

In Muslim countries where the Shari`ah is implemented, for example, in the Kingdom of Saudi Arabia and Iran, the
Qadi (judge) of the Shari`ah Court would be responsible to effect the appropriate punishments for the different
crimes. But the primary aim of the Shari`ah is not restricted to the implementation of punitive measures, but
rather to impress upon Muslims the fact that Allah I is watching their every action and hence they should have an
element of fear for Him I at all times and not to shun His I commandments. This is evident from the following
imperatives of the Noble Qur’an, bearing in mind that the Noble Qur’an is in essence the foremost source of the
Shari`ah:

"O ye who believe! Fear Allah as He should be feared." (Al `Imran, 3:102)

"….And fear Allah that you may prosper." (Al `Imran, 3:200)
From the above Qur’anic verses, it may plausibly be inferred that prosperity of society depends not so much upon
the rigours of the law, but rather upon righteousness inspired by the fear of Allah I, i.e. taqwa. Thus while the
Shari`ah is the code of moral conduct, taqwa is the standard by which human actions will be judged as is evident
from the following Qur’anic verse:

"O humankind! surely, We have created you from a single (pair) of a male and female, and made
you into nations and tribes that you may know each other. Surely the noblest of you in the sight of
Allah is the one who has taqwa (fears Allah most)." (Al-Hujurat, 49:13)

Secular laws in the modern world depend to a large extent upon public opinion and can thus be altered according
to changes that take place in society. But the rulings of Islamic Jurisprudence being offshoots of the Shari`ah
(Divine Law) are upheld by Muslims worldwide, depending on the level of their Allah-consciousness, even though
there is no one to enforce them.

CONCLUSION

Ijtihad has undoubtedly a vital role to play in resolving the many challenges that Bioethics poses vis-à-vis the
Muslim world view. It is one of the sources of Islamic Jurisprudence which facilitates the extension of the Shari`ah.
In other words, the mujtahids (jurists) deliberate upon such biotechnological manipulations which directly impact
the lives of Muslims in order to reach a solution or a rule (hukm) by declaring them to be wajib or fard (required or
obligatory), mandub (recommended), mubah (permitted, but morally indifferent), makruh (discouraged or
abominable) and/or haram (forbidden or prohibited). However, it is also necessary to point out that while the
deliberations of the mujtahids are restricted to the realm of probability, a diversity of views on bioethical matters
are bound to exist. This diversity is influenced by the Muslim jurists’ deliberations within the parameters of the
teachings of their particular schools of Jurisprudence.