Islamic Jouriceprudence LLb Ijtihadand’its’need

Life is a dynamic process and forces of life keep changing

under its influence. The objective of lawis that all demands of

life are met in such an amicable manner that its movement

continues in the right direction without any let or hindrance.

All decrees of Islamic law have two layers of meaning in

general:

1.

Actual spirit or Essential aspect

2.

Structural form or Existential aspect

The essential aspect guarantees dynamism and evolution

of human life, whereas the purpose of its structure or form is

to give it discipline and balance. When human life undergoes

changes dictated by the forces of life, it becomes necessary to

review the structure of law to keep it intact, commensurate

with its objective. The idea is to disallow away clash between

aspects of discipline and evolution of life because their

mutual conflict renders the movement of human life into

stagnant phenomenon, which in turn drifts the achievement of

the required purpose far from possible.

This situation is against the collective ideal of Islam.

Collective objectives of Islam cannot be attained without

fulfillment of all the demands of life. Keeping this objective

in view, undertaking a structural review of law in accordance

with Islamic teachings on matters not discussed by the Holy

Qur an

or

Sunna and

exploring

new sources

of

legal

framework to maintain life as a progressive and dynamic

process is called  ijtihad. This is through the institution of

ijtihad‘ that‘attainment‘of‘aims‘of‘Islam‘is‘not‘only‘possible

but is also actualized.

There is no denying the fact that under the change in

forces of life, previous laws framed in accordance with

objectives and priorities of its own time fail to address the

newly emerging problems of life. The old laws give way and

render the system into a sterile process, incapable to cope

with

the

new

realities.

Their

violation

instead

of

implementation proves productive which signifies deriving a

new legal framework. Its reconstruction becomes, therefore,

urgent and inevitable to keep life moving in the right

direction. If such a course of reforming law is not undertaken,

rule of lawloses its importance in life resulting into violation,

violence, disobedience and lawlessness.

We have been unable to give ijtihad‘its due importance

that

it

naturally

occupies

in

the

Islamic

system

of

jurisprudence in spite of the vast changes in the realms of

society, politics and economy. As a result, demands of law

and life come into clash with each other. Life demands the

fulfillment of its needs, while law proposes punishment for

any violation committed in the process of fulfillment of needs.

Both are poised at different levels. This concept can further be

explained with this analogy that life does not afford deadlock

in the struggle of economic advancement, whereas law insists

on the absolute forbiddance of

interest-based economy.

According to Islamic point of view, if a religious mind insists

on the total forbiddance of interest-based economy without

the provision of ultimate and absolute resources to break the

deadlock over the creative economic struggle, , it

will

certainly result into the diversion from Islamic dos and don'ts.

The legal responsibility of such a mind will rest on the idea,

which he does not want to ponder over, that the Holy Qur an

had forbidden interest at a time when interest was practically

replaced with qarzhasana‘in accordance with

“And’lend’Allah’a’goodly’loan.” 1 The difficulty in understanding this fact is that we think in terms of providing for the poor, the disabled and the destitute rather than overcoming this deadlock of creative struggle with regard to the Qur anic concept:                       “And’lend’Allah’a’goodly’loan.” 1 The difficulty in understanding this fact is that we think in terms of providing for the poor, the disabled and the destitute rather than overcoming this deadlock of creative struggle with regard to the Qur anic concept:     . “You’can’never’attain’virtue’unless’you’spend’(in’the cause of Allah) out of that which you cherish the most." 2 That is why the religious leadership has deprived itself of the mantle of leadership of economic revolution because it neglected this reality that without eliminating fear of poverty, people cannot be saved from religious or moral destruction. Those mired in economic quagmires cannot be expected to understand and care for moral intricacies. The Holy Prophet ( ) described this reality in the following words: “That’perhaps’poverty’and’destitution’may’lead’to’kufr (infidelity)." 3 The basic purpose of lawin Islam is to provide the people with a life free from fear and anxiety. This condition cannot be met without fulfilling all material and spiritual demands of life. The Holy Qur an has described the basic demands of human life in this manner: 1 . Qur an (al-Muzzammil), 73:20. 2 . Qur an (Al‘‘Imran), 3:92. 3 . Set forth by $Baihaqi in Shu‘ab‘al-iman, vol. 5, p. 267 # 6612. $Abu Nu%aim in Hilyat‘al-awliya’‘wa‘tabaqat‘al-asfiya’, vol. 3, pp. 53, 109 & vol. 8, p. 253.  “You’can’never’attain’virtue’unless’you’spend’(in’the cause of Allah) out of that which you cherish the most." 2 That is why the religious leadership has deprived itself of the mantle of leadership of economic revolution because it neglected this reality that without eliminating fear of poverty, people cannot be saved from religious or moral destruction. Those mired in economic quagmires cannot be expected to understand and care for moral intricacies. The Holy Prophet ( ) described this reality in the following words: “That’perhaps’poverty’and’destitution’may’lead’to’kufr (infidelity)." 3 The basic purpose of lawin Islam is to provide the people with a life free from fear and anxiety. This condition cannot be met without fulfilling all material and spiritual demands of life. The Holy Qur an has described the basic demands of human life in this manner: 1 . Qur an (al-Muzzammil), 73:20. 2 . Qur an (Al‘‘Imran), 3:92. 3 . Set forth by $Baihaqi in Shu‘ab‘al-iman, vol. 5, p. 267 # 6612. $Abu Nu%aim in Hilyat‘al-awliya’‘wa‘tabaqat‘al-asfiya’, vol. 3, pp. 53, 109 & vol. 8, p. 253.  “You’will’remain’enemies’to’each’other,’and’now’in the earth has been destined a dwelling place and sustenance for you for a fixed time." 1 Here human life has been said to be dependent on two things for its survival and continuity: 1 . Mata‘ (goods‘or‘utilities) 2 . Mustaqar (dwelling‘place) The term mata‘covers human economy and its resources whereas  mustaqar‘denotes all forms and resources of settlement and strength of human life. If we minutely analyze both these terms, it becomes clear that all economic, political and social demands of human life have been stated under these two subjects. According to the Holy Qur an, it is these interests, which become bone of contention among people causing to human societies pain and suffering and making life full of fear, grief and miseries. Nowwhat is the way out of the factors that cause all the anguish and anxiety? The Holy Qur an says: “Then’if’there’comes’to’you’Guidance’from’Me, whoever will follow My Guidance, neither shall any fear (obsess) them nor shall they grieve." 2 This stands established from this Qur anic injunction that Divine Revelation or law of Shari%a ensures a life free from

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