Islamic Jurisprudence Ijtihadand Part 3 The scope of law-making in Islam

The scope of law-making in Islam

In Islam, the Holy Qur an and Sunna hold permanent, abiding,

unconditional and immutable position as a source of law.

Therefore whenever the process of law-making is undertaken

at any level at any time and in any age, it would surely be

subservient to the Holy Qur an and Sunna. Having settled this

basic principle, we will nowpresent an abridged outline of the

scope of legislation. There can be two types of legislation in

Islam:

1

.

Formulative Legislation

2

.

Interpretative Legislation

Ijtihad:‘meanings,‘application‘&‘scope

30

The whole process of legislation in an Islamic state is

based on the principle of ijma‘(consensus).

Formulative Legislation

1.

Formulation of constitution and statutes

Irrespective of the fact whether the constitution is written or

unwritten, the first step towards legislation in any state is the

formulation of constitution in the context of social, political

and economic conditions tailored to its local needs.

2.

Rules of implementation

This denotes the formulation of such laws that help in the

enforcement of Shariah commandments and are instrumental

for the development and promotion of Islamic values. They

are linked largely to the regulatory laws.

3.

Formulation of procedural laws

By %formulation of procedural laws

is meant settling petty

details and making sub-sections and sub-sub-sections of those

commandments of Shari%a, which are subjected to ijtihad‘in

accordance

with

the

demands

of

the

ever-changing

circumstances. They are related to penal, civil, transactional,

contractual, commercial and many other spheres of Islamic

legal science.

4.

Consensus andits abrogation

In an Islamic state, consensus of opinions can be obtained on

any legal or jurisprudential matter by way of legislation.

Likewise any such 'local consensus' can also be abrogated in

any

later

period

in

compliance

with

the

requisite

preconditions. The consensus of opinions of the Companions

of the Holy Prophet (PBUH) and the conclusive consensus of

Ijtihad:‘meanings,‘application‘&‘scope

31

the Umma are an exception to it. The above-mentioned four

conditions are thetypes with formulative legislation.

Interpretative legislation

1.

Legal preferences

1

.

Preferring one jurisprudential opinionto another.

2

.

Giving preference one to the other in the enforcement of

Shari%a laws.

2.

Legal adoptions from other schools of thought

Despite adhering to one jurisprudential school of thought, it is

to adopt the research and opinions of other jurisprudential

school of thought for the solution of some pressing problems

with certain conditions.

i. New legal interpretations

The interpretative  ijtihad‘refers to reinterpretation of the

Qur anic text and Sunna, which not only meets the demands

and requirements of modern life but also does not contravene

the basic teachings of the Holy Qur an and Sunna.

ii. Gradational change in the degree oflegal values

It relates to changing grades of certain commandments within

the confine of

dos and

don'ts and permissibility

and

impermissibility under the laws of the Shari%a. This can be

done with a corrective or conciliatory objective for example

declaring an undesirable act as temporarily forbidden or

commendable act as obligatory to fulfill the basic needs of a

society.

This

legislation

is

based

on

the

following

jurisprudential concepts:

1

.

Ijma‘ (consensus)

2

.

Ijtihad‘bayani (interpretative‘reasoning)

3

.

Ijtihad‘qayasi‘ (analogical‘reasoning)

Ijtihad:‘meanings,‘application‘&‘scope

32

4

.

Istihsan (appreciative‘reasoning)

5

.

Istislah‘(masalihmursalah)‘ (conciliatory‘reasoning)

6

.

Istidlal‘ (deductive‘reasoning)

7

.

Istishab (coalitional‘reasoning)

8

.

Zarurat‘Shar‘i‘ (legal‘necessity)

9

.

Urfwa‘‘adah (usage)

10

.

Naza‘i‘Shari‘a‘ (legal‘analogies)

11

.

Qaza‘i‘Hukkam (rulers‘judgments)

12

.

Aqwa‘al-fuqaha’‘ (saying‘of‘jurists)

13

.

Theprinciple of changing laws in changing times

14

.

Iztirar‘ (exigency)

Significance of Ijtihadin legislation

Ijtihad‘ holds‘basic‘and‘central‘position‘in‘the‘whole‘process

of Islamic legislation because there are normally two levels of

Islamic law.

1

.

Actual spirit or essential aspect

2

.

Structural form or existential aspect

The essential or actual aspect of Islamic laws guarantees

the dynamism and evolution of human life while the structural

aspect aims at giving it discipline and framework. With

change in the demands and forces of life, the human life also

undergoes

changes.

In

ever-changing

circumstances

it

becomes necessary to undertake structural review of Islamic

laws not only to keep its spirit and purpose alive but also to

keep its effectiveness intact so that the aspect of discipline of

law does not clash with the aspect of dynamism and evolution

of life. Their mutual conflict and clash has the potential of

rendering the dynamism and evolution of life into stagnant

and non-productive state and attaining to

control and

organization becomes far from possible. The accomplishment

of this obligation is carried out through ijtihad‘in the process

of law-making. This guarantees effective enforcement of

Islamic laws in the changing circumstances of every period;

Ijtihad:‘meanings,‘application‘&‘scope

33

makes themtruly result-oriented and ensures their universality

and perpetuity.

Definition of ijtihad

Ijtihad‘ is‘an

expert

reasoning endeavour

conducted in

accordance

with

inferential

and

deductive

method

to

formulate, reconstruct, elaborate, expand and enforce Islamic

laws in the light of the Holy Qur an, Sunna and  ijma

(consensus).

Reinterpretation of commandments of the Qur an

andSunna is also  ijtihad

Apart

from

analogical

and

inferential

reasoning,

the

reinterpretation of the injunctions of the Holy Qur an and

Sunna not based on other Qur anic texts will also be called

ijtihad‘ because‘as‘a‘matter‘of‘fact‘reinterpretation‘denotes

determining the meaning of an injunction. It is also called

'exegesis'. If determination and identification of a Qur anic

injunction is found in the Holy Book itself, it will also be

considered as the Qur anic text, and not Ijtihad. That is the

style adopted while interpreting the Qur an through other

texts ofthe Qur an orthetexts of Sunna.

But if interpretation of any injunction of the Holy Qur an

and Sunna is not available in the Holy Book and Sunna itself,

the effort at reinterpretation by the jurists in accordance with

the spirit of Islamic laws based on ground realities and its

application is ijtihad. There are three kinds of ijtihad.

1

.

Ijtihad‘qayasi‘ (analogical‘reasoning‘known

as legal

analogies)

2

.

Ijtihad‘istislahi‘ (conciliatory‘reasoning‘based‘on‘peace-

making acts such as appreciation and reconciliation)

3

.

Ijtihad‘bayani (interpretative‘reasoning)

An interpretation of Islamic law undertaken in accordance

with the rules as described in Islamic laws in order to meet the

Ijtihad:‘meanings,‘application‘&‘scope

34

modern scientific and intellectual needs is called  ijtihad

bayani‘ or‘interpretative‘reasoning.

The

reality

is

that

treating

or

not

treating

the

reinterpretation of the Holy Qur an and Sunna as  ijtihad‘as

some jurists and learned scholars have disagreed upon it, is

merely a verbal contradiction because all of them favour the

need and justification of interpretation ofthe Holy Qur an and

Sunna. Whether or not this act is called  ijtihad‘but its spirit

and effectiveness somehow stays intact and this is the true

objective of ijtihad.

Mutual relationship between the Holy Qur an and

Sunna as source of law

As the Holy Prophet (

)

enjoys the position of being a law-

making and law-interpreting authority, his Sunna also holds

both these positions. On the basis of both these positions,

Sunna is associated with the Holy Qur an as a source of law.

The Law-making andlaw-interpreting aspects

1

.

From the point of view of law-making, the matters where

the Holy Qur an does not decree explicitly, the Sunna of the

Holy Prophet (

)

provides basic law-making for example

atonement for not fasting.

2

.

From the point of view of interpretation, the nature of

relationship of Sunna with the Holy Book falls in the

following categories:

i.

Specification ofthe general

For example, specified meaning of the adulterer and the

adulteress as

described in

the verse on

whipping,

the

specification of 1/3 portion of wealth on the Qur anic

command of writing a will.

Ijtihad:‘meanings,‘application‘&‘scope

35

ii. Qualification of the absolute

The determination of

minimum

amount/quantity

for

fixationof hadd‘on stealing or theft.

iii. Explanation of the implicit

The meaning

of

prayers,

number

of  %cycles

and

determinationof itstimings, etc.

iv. Exemption

Exemption of fish in the order dealing with forbiddance of

the dead sea animals; exemption of locust; exemption of

wiping over he stockings in the command to wash feet.

v.

Addition

The addition of one year in imprisonment or exile along

with the hadd‘on adultery.

Some scholars accept the principle of abrogation of the

Qur anic verse with the Prophetic traditions and consider it

within the purview of interpretative reach of the Sunna. But

we do not subscribe to this concept and hold that the Qur anic

verse can only be cancelled by the Qur anic verse and not by

the Sunna.

The issue of disagreement with the ijtihad’of four

Imams

We agree with the opinions of Shah Wali Allah and other

eminent scholars that no such ijtihad‘should be undertaken

against the opinionof the four Imams, which may promotethe

possibility of emergence of a new jurisprudential school of

thought. The reason being that, such a new ijtihad‘will pave

the way for more intellectual rifts, chaos and dissension

within the Muslim Umma. Therefore what guarantees the

safety and security of the Muslims in the field of knowledge,

thought and productive reasoning is the followership of

Ijtihad:‘meanings,‘application‘&‘scope

36

ijtihad‘ accomplished‘by‘any‘one‘of‘the‘four‘Imams‘and

adherence to any one of the four religions. This will make the

legal  ijtihad‘and jurisprudential research of a scholar of

modern times stick to one well-set jurisprudential discipline

instead

of

becoming  !arbitrary

opinion-making".

This

demonstration of moderation can only bear the fruitfulness

and guarantee the continuity and longevity of thoughts of the

jurists in the way of modern reconstructive research. This is

what we call taqlid‘or conformation. Following the principles

worked out by the four Imams, taqlid‘does not shut the doors

for new ijtihad(jurisprudential reasoning) in consonance with

demands

of

times.

This

is

intellectual

stagnation

and

deadlock, which can resultantly cause intellectual paralysis of

the Muslim Umma. The following explanatory points should

be kept in viewin this regard:

The Ijtihad undertaken by the four Imams is of two

types.

i.

Basic or fundamental ijtihad

ii.

Secondary or auxiliary ijtihad

i.

Basic ijtihad‘signifies that ijtihad, which mapped out the

basic format for jurisprudential research for example

determination of origin and sources of Islamic law, their

order and the principles of preference of one to the other;

their definitions and details; principles and style of

jurisprudential exposition of the Qur anic verses; the

standard procedures accepting and rejecting the traditions

and narrations; the conditions and rules that govern

change of commands so on and so forth. All basic ijtihads

by which every jurisprudential school of thought came

into being, are identified as fundamental type.

ii.

An auxiliary ijtihad‘relates to the detailed application and

implementation of the laws devised through fundamental

ijtihad &‘the‘laws‘that‘relateto‘interpretation,‘revival‘and

Ijtihad:‘meanings,‘application‘&‘scope

37

research of the responsibility and their details and they

correspond to the same given circumstances and demands

of time. It is more practical than theoretical and is more

concerned with deriving consequences of an act rather

than with formulating principles that govern the evolution

of an act. Besides, the area of an application of this form

of ijtihad‘is more limited as it springs from the rather

circumscribed priorities and interests of a particular

historical period and is bound by the pressures that

characterize the period or it only interprets and infers.

Since this form of ijtihad‘is not necessarily related to the

formulation of fundamental matters and projects only

incremental issues, it is called secondary or auxiliary

ijtihad .‘Thus‘there‘is‘a‘convergence‘of‘opinion‘on‘the

fundamental  ijtihad‘which does not affect the essential

structure of the fundamentals.

2

.

In the light of the above-mentioned meaning, while

following the basic ijtihad‘of the four Imams if some sort of

difference occurs in the secondary or auxiliary ijtihad‘in the

process, there is no harm in maintainingthis difference.

3

.

In accordance with needs of the present times, the

difference with certain types of ijtihadundertaken by the four

Imams, which were based upon demands, objectives and

priorities of their age, is in fact not any matter of deviation or

difference at all. If new ijtihadis accomplished by complying

with the manner and style of  ijtihad‘followed by the four

Imams, which may apparently look different but in actuality

will not be against or opposed to them. It will rather be

considered as the extension of the same basic ijtihad‘and will

not be regarded as contrary to the spirit of taqlid.

4

.

There are issues, which were not present during the times

of four Imams or were not perceived for various reasons. For

example many political, economic, social, constitutional and

international matters are the product of the complexities of

Ijtihad:‘meanings,‘application‘&‘scope

38

modern times. Therefore they were not brought within the

ambit of ijtihadas they were not present at that time. If at all

some kind of ijtihadwas undertaken on similar issues it could

not definitely resemble the present one. Therefore reasoning

out these issues for juristic purposes is not forbidden at all nor

can it be considered as being opposed to the four Imams.

5

.

If jurisprudential guidance from

any Imam,

one is

adherent to, is not found on any particular matter, the

interpretation of other Imam may also be consulted as needed.

The

application

of

this

principle

in

the

present-day

jurisprudential life may pave the way for the enforcement of

Islamic law and promotion of unity in the collective life.

Many such examples can be found in the research work by

many leading jurists and thinkers.This vastness of vision lies

in the very concept of taqlid' and should not be considered as

being opposed to the ijtihad‘of the jurisprudential school of

thought. Ibn %Abidin Shami and Shah %Abd-ul-%Aziz Dihlawi

have explained this phenomenon in great detail. Following on

the heels of the basic ijtihad‘of the four Imams, as far as the

arguments

behind

justification

of

reinterpretation

in

accordance with needs are concerned, there could be many but

we will contend only with presentation of one argument here.

All leading authorities and jurists have accepted the

justification and need of reinterpretation with consensus on

matters not discussed by the Holy Qur an and traditions of the

Holy Prophet (

)

.

This acceptance is based on those orders

of the Holy Prophet (

)

, which he passed onto %Abdullah

ibn Mas%ud (

)

and Muadh ibn Jabal (

)

.

Moreover the

conduct

of

the Holy

Prophet

(

)

, that

of

his holy

companions and their successors establishes this pattern of

knowledge as accepted fact and the learned authorities of the

jurisprudence have done ijtihad‘in the light of this principle.

Therefore, it is also incumbent upon the jurists of every age

that they keep this tradition of  ijtihad‘alive by following

Ijtihad:‘meanings,‘application‘&‘scope

39

which  ijtihad‘should be able to establish jurisprudential

injunction

and

not

absolute

or

authoritarian

opinion.

Moreover, the four Imams particularly Imam al-A%zam Abu

Hanifah have not prohibited fresh reinterpretation or new

ijtihad .‘They‘have‘rather‘declared‘it‘as‘their‘own‘scientific

way.