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IJTIHAD AND ITS SIGNIFICANCE FOR ISLAMIC

LEGAL INTERPRETATION

Nazeem MI Goolam*

2006 MICH.ST.L.REV. 1443

TABLE OF CONTENTS

INTRODUCTION:THE MEANING AND FOUNDATIONS OFIJTIHAD(PERSONALREASONING).......................................................................................1444

I.IJTIHADTHROUGH THE AGES ...............................................................1446 A. Ijtihadby the Companions of the Prophet .................................1446B. TheIjtihadof Umar....................................................................1446

1. Suspension of Punishment for Theft in the Year of Famine..14472. Imposition of the Death Penalty for Conspiring in the Crime ofMurder ................................................................................1447

C. TheIjtihadof Bakr .....................................................................1449II. ABRIEF EXPOSITION OF THE THEORIES OF ISLAMIC LAW .................1449

A. Strict/Literal Interpretation.........................................................1450B. Purposive/Contextual Interpretation...........................................1450

III. THE FOURAIMMAH...........................................................................1451 A. Imam Malik................................................................................1452B. Imam Abu Hanifa.......................................................................1452C. Imam Al-Shafii .........................................................................1453D. Imam Ahmad Ibn Hanbal...........................................................1453

IV. SHATIBIS PHILOSOPHY OF ISLAMIC LAW.........................................1453 A. Shatibi onMaslahah ..................................................................1454 B. Shatibi on Ijtihad........................................................................1455

V. IJTIHAD ANDIFTA BY IBN RUSHD IN CORDOBA IN 516....................1456 VI. IJTIHAD IN THE EIGHTEENTH CENTURY ...........................................1458 VII. IJTIHAD IN THE NINETEENTH AND TWENTIETH CENTURIES ............1459VIII.PUSHING THE LIMITS OFIJTIHAD:CALLS FOR

CREATIVE INTERPRETATION IN THE TWENTY-FIRST CENTURY ...1464CONCLUSION: THE IJTIHAD OF THE TWENTY-FIRST CENTURY SHOULD

DRAW ON THE RICH HERITAGE OF PURPOSIVE ISLAMIC LAW ..........1466

* Associate Professor, Department of Jurisprudence University of South Africa.BA LLB (University of Cape Town), MCL (International Islamic University, Malaysia).

This paper was presented at the symposium, The Future of Islamic Law Scholarship, at theMichigan State University College of Law in East Lansing, Michigan on April 13, 2006.The author thanks Professor Hisham Ramadan for the invitation to participate in the seminar.


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1444 Michigan State Law Review [Vol. 2006:1443

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

Qur'an, Sura an-Nahl 16:43

1

INTRODUCTION:THE MEANING AND FOUNDATIONS OFIJTIHAD(PERSONAL

REASONING)

Mohammad Hashim Kamali states that after the Quran and the Sun-

nah,2ijtihadis the most important source of Islamic law. The learned au-

thor writes:

The main difference between ijtihadand the revealed sources of the Shariahlies

in the fact that ijtihadis a continuous process of development whereas [D]ivine[R]evelation and Prophetic legislation discontinued upon the demise of theProphet. In this sense, ijtihadcontinues to be the main instrument of interpretingthe [D]ivine message and relating it to the changing conditions of the Muslim

community in its aspirations to attain justice, salvation and truth.3

Kamali adds that because ijtihad derives its authority from Divine

Revelation, its propriety is measured by its harmony with the Quran and

the Sunnah. He argues that the essential unity of the Shariah lies in the

degree of harmony that is achieved between [R]evelation and reason and

that ijtihad is the principal instrument of maintaining this harmony.4 Ac-

cording to Kamali, the secondary sources of Islamic law such as consensus

of opinion (ijma), analogy (qiyas), juristic preference (istihsan), and consid-

erations of public interest (maslahah) all represent different forms of ijti-

had.5 Linguistically speaking, the word ijtihad emanates from the root

word al-juhd, meaning exertion, effort, trouble or pain. Al-juhddenotes

exercising ones capacity, ability, power, or strength in a correct and right-

eous manner.Speaking to either its technical or legal nature, a number of scholars

have provided definitions of the term ijtihad. These include Al-Ghazali, Al-

Amidi, and Al-Shirazi. Saif al-Din Al-Amidi defined ijtihadas the total

expenditure of effort in the search for an opinion as to any legal rule in such

a manner that the individual senses (within himself) an inability to expend

further effort.6 By contrast, Abu Ishaq Al-Shirazi defined ijtihadas [i]n

1. Quran, Sura an-Nahl 16:43.2. These are the primary sources of the Shariah.

3. MOHAMMAD HASHIM KAMALI, PRINCIPLES OF ISLAMIC JURISPRUDENCE 366(1991).4. Id.

5. Id.6. Bernard Weiss, Interpretation in Islamic Law: The Theory ofIjtihad, 26 AM.J.

COMP.L. 199, 207 (1978).


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Special] Ijtihad and its Significance 1445

the language of the jurists, . . . the exertion to the utmost and the full exer-

cise of ones capacity in arriving at a legal value.7

The legal foundations of ijtihad are founded on the well-known

hadith8concerning Muad ibn Jabal. When the Prophet Muhammad (peace

be upon him (pbuh)) asked him what he would do if a problem is pre-

sented to him, Muad ibn Jabal replied that he would judge by what is con-

tained in the Quran.9 The Prophet (pbuh) then asked him what he would do

if there was no authority in the Quran. Muad responded that he would

make a judgment in accordance with the Sunnah of the Prophet (pbuh).10

When the Prophet (pbuh) asked him what he would do if he found no au-

thority in the Sunnah, Muad ibn Jabal replied that he would exercise his

opinion and spare no effort in so doing.11 At this the Prophet (pbuh) ex-

pressed his pleasure, thus indicating the position and status of the mujtahid

in Islam.12

The Prophet (pbuh) exhorted people to exercise ijtihadwhen neces-

sary and, at the same time, exonerated the mujtahidfrom sin or wrong if he

erred in the process. Nasim Mitha argues that the act of sending a scholar

such as Muad ibn Jabal to Yemen indicated that the spread of Islam neces-

sitated a mufti or mujtahidin different areas.13 A person would thus be able

to apply the Shariah in a diverse geographical and cultural situation, and

this would demonstrate the ability of the Shariah to be a living law.14

Since ijtihadderives its authority from Divine Revelation, and since

its propriety is measured by its harmony with the Quran and the Sunnah,

the mujtahidmust apply his or her mind in the context of the various theo-

ries of, and approaches to, legal interpretation in Islam. As the cultural and

legal contexts within which Islamic law is applied expand, this Article sub-

mits that authorities exercising itjihad should [a]sk the people who are

learned if [they] do not know.15 To aid in this enterprise, this Article pro-

vides a brief exegesis of these theories and the application ofijtihadthrough

7. Mogamad Faaik Gamieldien, Ijtihad in the Time of the Khulafa Al-Rashidun: AReview of Selected Case Studies (1993) (unpublished M.C.L. thesis, International IslamicUniversity of Malaysia) (on file with Main Library, International Islamic UniversityMalasyia); see also NASIM MITHA, FATWA: ITS ROLE IN SHARIAH AND CONTEMPORARY

SOCIETY WITH SOUTH AFRICAN CASE STUDIES (2000).8. This hadith establishes the legal foundations for individual ijtihad, as opposed to

communal or consensual ijtihad. Consensual ijtihad is based on the concept of shura (con-sultation).

9. See Gamieldien, supra note 7, at 30.

10. Id.11. Id.12. Id.

13. Id.14. MITHA, supra note 7, at 70.15. Quran, Sura an-Nahl 16:43.


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the ages, beginning with the manner in which the companions of the

Prophet Muhammad (pbuh) practiced ijtihad.

I.IJTIHADTHROUGH THE AGES

A. Ijtihadby the Companions of the Prophet

The Prophet Muhammad (pbuh), who was the last of Gods Messen-

gers on earth, delivered the Divine Message and part of his mission was to

ensure the stability and continuity of that message.16 In allowing his com-

panions to practice ijtihadhe was, in fact, testing their methodologies in the

application of the principles of the Shariah and also testing their intellec-

tual acumen in solving novel problems. The Prophet (pbuh) consistently

endeavoured to make his companions self-sufficient in the legal tools neces-

sary to solve problems that would confront them after his demise.

It was the responsibility of the Prophet (pbuh) to ensure that he leftbehinda group of companionswho were well-versed not only in the memo-

rization of the Quran and the implementation of his Sunnah but also in the

practical application of those laws. If the Prophet (pbuh) had failed to teach

his companions the rules of ijithad, it would have resulted in a static legal

system, devoid of freedom of thought and action. Only ijtihadcould ensure

the eternal universality of the Shariah.

The general methodologyofijtihademployed by the companionswas

the approach adopted by Muad ibn Jabal.17 They would first consult the

Quran and then the Sunnah. If they found no authority in either, they

would employ their utmost intellectual powers in the formulation of a legal

value (hukm) that would be in harmony with the Quran and the Sunnah; in

other words, they exercised their own ijtihad.18 Beyond the general meth-odology of the ijtihad of the companions, they also developed their own

individual methodology in the application ofijtihad.19 Because Umar made

a particularly outstanding contribution to ijtihadespecially in the light of

his emphasis on the spirit of the law rather than its letterit is important to

examine a few of hisdecisions in this regard.

B. TheIjtihadof Umar

During the time of the Prophet (pbuh), Umars ijtihadled him to ab-

stain from performing the burial (janazah) prayer on a hypocrite.20 When

16. Gamieldien, supra note 7, at 37-38.17. See supra notes 10-14 and accompanying text.

18. See Gamieldien, supra note 7, at 70.19. Id.20. Id.


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the Prophet (pbuh) wanted to perform such prayer Umar said, Did Allah

not prohibit from praying on these hypocrites? The Prophet (pbuh) replied

that, in terms of the following Quranic verse, he was entitled to choose

between two options, namely whether thou dost pray unto God that they be

forgiven or dost not pray for them[it will be all the same; for even] if thou

went to pray seventy times that they be forgiven, God will not forgive them

. . . .21

After the Prophet (pbuh) performed the prayer, the following verse

was revealed, endorsing the opinion of Umar: and never shalt thou pray

over any of them that has died, and never shalt thou stand by his grave.22

As far as the ijtihadof Umar during his own reign is concerned, two

instances are selected here: first, his suspension of the punishment for theft

during the year of the famine, and second, the imposition of the death pen-

alty for all who conspire in the crime of murder.

1. Suspension of Punishment for Theft in the Year of Famine

The Quran states that the punishment for a thief is the cutting off ofthe hand and that this is a deterrent ordained by God.23 While the Prophet

(pbuh) applied this law strictly, Umar suspended the punishment for theft

during a year in which famine prevailed in Medina.24 He refused to ampu-

tate the hands of two men who had allegedly stolen meat during this period,

on grounds of the famine as well as the hunger suffered by the men.25 Inreaching his decision, Umar relied on the spirit and the general import of the

Quranic teaching that necessity may serve as a justification ground for

wrongdoing. In Umars view, to punish these men, who stole out of neces-

sity, would amount to a violation of the spirit of the Quranic legislation.26

2. Imposition of the Death Penalty for Conspiring in the Crime of

Murder

The Quran declares:

And we ordained for them therein [Torah], a life for life, an eye for an eye, and anose for a nose . . . .27

21. Quran, Sura at-Tawba 9:80.

22. Quran, Sura at-Tawba 9:84.23. Quran, Sura al-Maeda 5:38.24. See Gamieldien, supra note 7, at 100-10.

25. Id.26. Id.27. Quran, Sura al-Maeda 5:45.


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Just retribution is thus expressly mentioned for the case of murder. The

principle of just retribution means that the life of the murderer shall be taken

as just recompense for the life of the victim. However, what happens where

more than one person kills another? In this regard, Umar once commented

on a murder that had occurred in Yemen. He argued that if all the inhabi-

tants of Sana28 had participated in it he would have had them all put to

death.29

Does this ruling of Umar violate the Quranic ruling of a life for a life?

Umars approach was based on a basic principle underlying the Shariah,

namely equality. In his view, all the accomplices had the intention to com-

mit murder; they acted with a common purpose and therefore they should

all be treated equally. If the verse calling for a life for a life30 was strictly

or literally interpreted then the punishment of only one member of the gang

would be sufficient to satisfy the requirement and this would amount to

unequal treatment of the perpetrators. Alternatively, upon a strict and literal

interpretation of the ruling the equal treatment of all the perpetrators could

well result in the entire group escaping liability.

Umars decision was based on the underlying rationale of the verse

and its legal and social objectives. His decision has been interpreted to be

in the interest of the community (maslahah) and the closing of a lacuna in

the law (sadd al-dharai).31 Sadd al-dharai implies preventing the means

to an expected end which is likely to materialize if the means towards it is

not also prevented.32 That said, sadd al-dharai is but one of the tools of

interpretation and would be more often used by the Ahl al-Ray. It is not a

theory of interpretation.

These two instances ofijtihadon the part of Umar give us a basic in-

sight into his approach to legal interpretation. Thus, where it is necessary,

in the light of changing social conditions, to suspend or modify a ruling of

the Quran, this should be done. Umar always bore in mind the underlying

consideration of the welfare of the people. Fundamentally, he believed that

the spirit of the law is more important than its letter.

A further merit of Umars approach to ijtihadwas his view that all

ijtihadwas practiced and applied within time and space and that no ones

ijtihadwas valid for all time. Umar realized fully that ijtihadwould differ

from age to age and from place to place. This remains the abiding strength

of his ijtihad.

28. A city in Yemen. Today it is the capital of Yemen.

29. Seeinfra Part IV (discussing a fascinating account by Wael Hallaq of a murderin Cordoba in 1122 involving more than one perpetrator).30. Quran, Sura al-Maeda 5:45.

31. ABDUR RAHMAN I. DOI,SHARIAH:THE ISLAMIC LAW 84 (TaHa Publisher Ltd.1997) (1984).

32. KAMALI, supra note 3, at 310; MITHA, supra note 7, at 67-69.


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C. TheIjtihadof Bakr

Abu Bakr, too, placed great emphasis on the normative principles and

the objectives of the Shariah. For him, any ruling which is supported by

the normative principles of the Shariah and does not infringe a settled rule

would be valid.33 For the companions, ijtihadwas regarded as the method,

par excellence, of arriving at the truth, developing the intellect, and broad-

ening the understanding of the objectives of the Shariah.34 They regarded

the Quran and the Sunnah as totally binding and did not deviate from the

injunctions of these two sources.35 While making extensive use ofqiyas,36

they always took into consideration the welfare of the people within the

parameters of the objectives of the Shariah.37 The companions also made

constant reference to the principle ofsadd al-dharai.38

II. ABRIEF EXPOSITION OF THE THEORIES OF ISLAMIC LAW

The history of the theories of Islamic law is founded on the debate be-

tween theAhl al-Ray and theAhl al-Hadith. While the latter relied on the

ahadith or Sunnah of the Prophet (pbuh), the former engaged in personal

opinion.39 The Arabic expression used by Muad ibn Jabal (in the well-

known hadith referred to earlier40) when he told the Prophet (pbuh) that he

would exercise his own opinion was ajtahidu rayi. Muad used both the

terms ijtihadand ray.41

In short, the approach of the Ahl al-Hadith may be regarded as the lit-

eral interpretation, textual interpretation, or strict interpretation approach,

while the approach of the Ahl al-Ray may be seen as contextual interpreta-

tion or purposive interpretation.42 Viewed differently, the debate between

33. See Gamieldien, supra note 7, at 116.34. Id.35. Id.36. Analogical reasoning, one of the secondary sources of the Shariah.

37. See Gamieldien, supra note 7, at 116.38. Id. A well-known example of the application of this principle was the case of a

husband divorcing his wife three times while on his deathbed. The divorce being perfectlylegal, the only reason for it was to preclude the wife from inheriting. The companions con-

sidered this to be flagrantly unjust, inequitable, and legally intolerable. To permit such adivorce would be contrary to the spirit of the Shariah. See Gamieldien, supra note 7, at 69-79. The great Andalusian Maliki jurist, Al-Shatibi, placed great emphasis on the principle of

sadd al-dharai. See M.K. MASUD, SHATIBIS PHILOSOPHY OF ISLAMIC LAW 154 (IslamicBook Trust 2000) (1939).

39. Abu Hanifa, one of the four great Imams of Islamic (Sunni) legal thought, isregarded as a champion ofray (personal opinion). See MUHAMMAD ABU ZAHRA,THE FOURIMAMS:THEIR LIVES,WORKS AND THEIR SCHOOLS OF THOUGHT 228-66 (2001).

40. Seesupra text accompanying note 8.41. See MITHA, supra note 7, at 69.42. SeeKAMALI, supra note 3 for a general overview of each approach.


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theAhl al-Ray and the Ahl al-Hadith may also be regarded as a debate be-

tween the literal or strict interpretation of statutes (or texts) on one hand,

and creativeor purposive interpretation, on the other hand.43

A. Strict/Literal Interpretation

This literalist approach is based on a desire to discover the true inten-

tion of the Lawgiver and to deviate as little as possible from the original

text.44 Perhaps the staunchest proponent of the literal theory of interpreta-

tion was Imam Al-Shafii.45 His primary contribution in this respect was the

idea that the Sunnah governs the meaning of the Quran.46 This is couched

in the proposition al-sunnah qadiyah ala al-Quran, which means that

the Sunnah is the decisive authority for determining the meaning of the text

of the Quran.47 Therefore, if the opinion of a companion of the Prophet

(pbuh) concerning a verse of the Quran differed from the explanation of

that verse in the Sunnah, the latter would be preferred.48 The companionsopinion would be regarded as analogy (qiyas) and as such, would be re-

garded as a source weaker than the Sunnah.49

B. Purposive/Contextual Interpretation

By the fifth century of the Islamic era, Al-Shafiis theory of strict in-

terpretation began to expand so as to yield a more flexible approach to in-

terpretation.50 The most prominent proponent of this approach was Al-

Ghazali. He initiated the theory of purposive interpretation, which was

based on the maqasid al-shariah (the objectives of the Shariah).51

This theory was taken to full fruition by the great Maliki scholar from

Andalusia, Al-Shatibi.52 Al-Ghazalis theory of interpretation advocatesreasoning based on the general principles of the Shariah.53 Such general

principles should be consistent with the purposes and the moral foundations

of the Shariah. He divides the maqasid (purposes of the law) into dini

(purposes of the Hereafter) and dunyawi (purposes pertaining to the

43. See IMRAN AHSAN KHAN NYAZEE, THEORIES OF ISLAMIC LAW: THE

METHODOLOGY OFIJTIHAD177 (1994).44. Id. at 177-78.45. Id. at 178-79.46. Id. at 179-80.47. Id. at 179.

48. Id.49. Id.50. Id. at 189-90.

51. Id.52. See infra Part III for a more complete analysis of Al-Shatibis methodology.53. See NYAZEE, supra note 43, at 213.


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world).54 Each of these purposes may be viewed as securing a benefit

(manfaah) or repelling a harm (madarrah).55 For Al-Ghazali, the maqasid

should either secure a benefit or repel harm, hardship, or injury.56 Since

securing or acquiring a benefit and repelling harm represent human goals,

the ultimate aim is the welfare of human beings through the attainment of

these goals.57

While the dini purpose is to secure the din or religion of Islam,Al-

Ghazali divided worldly purposes into four types: (1) the preservation of

nafs (life), (2) the preservation ofnasl (progeny), (3) the preservation ofaql

(intellect),and (4) the preservation of mal (wealth).58 Ultimately, the five

primary and fundamental purposes of the Shariah are religion, life, intel-

lect, progeny or lineage, and wealth or property.59 These five purposes are

regarded as necessities (darurat).60 Additional purposes are termed needs

(hajat), while the tool of ease and facility (tahsinator tawassu wa taysir)

may also be employed in achieving the purpose of the law.61 One may well

view necessities as equivalent to principle, needs equivalent to policy and

ease, and facility equivalent to morality or moral norms.62 According to Al-

Ghazalis theory of purposive interpretation, a judge has access to three

interpretive tools when deciding a case: the darurat, the hajat, and the tahsi-

nat.63 This third level is the level of the ethical and moral values of Islam. 64

The interpretive approaches of the four Imams show that Islamic law

does not permit only one interpretation in any given matter or on any par-

ticular set of facts. But rather, depending on whether a scholar adopts a

strict or literal approach to interpretation or a purposive or contextaul ap-

proach to interpretation in exercising ijtihad, different yet acceptable solu-

tions to legal problems are quite possible.

III. THE FOURAIMMAH

Having briefly examined the theories of legal interpretation in Islam

and the ijtihadof the Companions of the Prophet (pbuh), in particular that

of Umar, it is important to make brief reference to the approaches of the

54. Id.55. Id.56. Id.57. Id.58. Id. at 214.

59. Id.60. Id.61. Id.

62. Id.63. Id. at 214-15.64. See id. at 214.


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four great Imams, or aimmah,65 to legal interpretation. This Part will show

that the four Imams displayed a flexibility in their interpretation of the law,

with Imam Shafii taking the most rigid stance.

A. Imam Malik

Imam Malik stated that istihsan (discretion) [is] nine-tenths of

knowledge.66 It is thus not surprising that decisions based on istihsan,

when having to weigh the values of different proofs, are numerous in the

Maliki school.67 Malik refined the principle of istihsan in his treatment of

masalih mursala (considerations of public interest).68 As regards masalih

mursala Abu Zahrah writes:

Islamicfiqh in its entirety is based on the best interests of the community. Thatwhich contains benefit is desired . . . and that which is harmful is prohibited. . . . Sothe manifest principle governing the legality of customs and traditions in the eyes

of the Shariah is whether or not they are beneficial . . . .69

Imam Malik often relied on the principle of sadd ad-dharai (blocking the

means), which entails that the means to what is forbidden are also forbid-

den.70

In summing up Imam Maliks approach to legal interpretation, one

may say that he based it on flexibility in the application of the principles.

The purpose of such flexibility was the achievement of the greatest benefit

to the people. The spirit of the Shariah was more important than its letter.

B. Imam Abu Hanifa

When Imam Abu Hanifa could not find a text of the [Quran],Sun-

nahor fatwas of the Companions, he exercised ijtihad.71 In this regard, he

employed the tools ofqiyas and istihsan often.72 He did not stop his inves-

tigations on the ruling of issues which had actually occurred, but often ex-

tended his reasoning to rulings with respect to future problems.73

65. The plural ofimam in Arabic is aimmah.66. ZAHRA, supra note 39, at 103.67. Id. at 104.

68. Id. at 105-08.69. Id. at 105.70. Id. at 108.

71. ZAHRA, supra note 39, at 250.72. Id. at 251-54.73. Id. at 251.


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C. Imam Al-Shafii

Al-Shafii considered the Quran and the Sunnah to have equal status

in the Shariah, after which came ijma (consensus) and analogy.74 He ex-

pressly invalidated istihsan and stated that any ijtihadin which the mujtahid

does not rely on the Quran, the Sunnah, ijma,or qiyas is istihsan because

the mujtahidtakes what he prefers in it.75 Such ijtihad, without relying on a

firm text and proper evidence is, for him, unacceptable and has no connec-

tion to the Shariah.76 Al-Shafii rejected the purposive approach to inter-

pretation and viewed the letter of the law as more important than its spirit.77

D. Imam Ahmad Ibn Hanbal

Like Imam Malik, Ibn Hanbals approach to legal interpretation was

purposive. He utilized the principle of public interest to a large extent.78 He

was of the view that thefatwas of the Companions were often based on pub-lic interest.79 He also frequently employed the tool ofsadd al-dharai.80

Having briefly referred to the approaches of the four Imams to legal

interpretation, this Article now examines the work of perhaps the greatest

exponent of the idea ofmaslahah (public interest), Al-Shatibi.

IV. SHATIBIS PHILOSOPHY OF ISLAMIC LAW

The great Andalusian Maliki jurist, Abu Ishaq Al-Shatibi, spent most

of his life in the city of Granada. His greatest work is undoubtedly Al-

Muwafaqat.81 The significance of this work in modern Islamic legal think-

ing may be gauged by two scholars of the twentieth century, Muhammad

Abduh and Moulana Mawdudi. Abduh advised both scholars and studentsto study the work so as to understand the true philosophy of Islamic law-

making, while Mawdudi stated that, through a study ofAl-Muwafaqat, law

experts would acquire a deeper insight into the spirit of thefiqh.82

In his Al-Muwafaqat, Shatibi expounded the objectives of the Quran

and the Sunnah more clearly and extensively than any other earlier work. 83

He explained in detail the indispensable human needs and secondary neces-

74. Id. at 366-73.75. Id. at 373-79.76. Id. at 378.77. Id. at 380-81.

78. ZAHRA, supra note 39, at 495-98.79. Id.80. Id. at 498-99.

81. MASUD,supra note 38, at 110.82. Id. Fiqh means Islamic jurisprudence.83. MASUD,supra note 38, at 110-11.


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sities of life and also analyzed the interconnectedness between human needs

and legal texts comprehensively.84

If there is one outstanding characteristic of Shatibis approach to Is-

lamic 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 com-

mitted with the sole intent of causing harm or inflicting injury on others, it

is legally prohibited and must be prevented.85 What, then, was Shatibis

approach to maslahah and ijtihad, respectively?

A. Shatibi onMaslahah

According to Shatibi, the primary objective of the Lawgiver is the

maslahah (welfare)of the people.86 The obligations inherent in the Shariah

concern the protection of the maqasid(objectives) of the law, which in turn

aims at protecting the maslahah of the people. Shatibi divides maqasidinto

daruriyyat (indispensable), hajiyyat (necessary), and tahsiniyyat (benefi-cial). The daruriyyatcomprises the following five: (1) religion (din), (2)

self or the right to life (nafs), (3) intellect or sound mind (aql), (4) family orlineage (nasl), and (5) property (mal).87 The hajiyyatare required in order

to extend the operation of the maqasidand to remove the rigidity inherent in

literal interpretation.88 Such rigidity may well lead to hardship which, in

turn, could disrupt the maqasidof the Shariah.89 Finally, the tahsiniyyat

refers to the adoption of the most commendable and beneficial customs,habits, ethics, and morality. In the words of Hallaq:

Without the first category . . . secular as well as religious existence can never be

orderly, and at worst, it is impossible. The other two categories, on the other hand,make the implementation of the law possible by mitigating harsh requirements and

reducing legal demands. The Sharia, Shatibi relentlessly asserts, rests squarely onthese three principles, principles stipulated in the Quran and articulated in theSunna.90

In light of his three-fold division of the maqasid, Shatibi extracts the

following five rules:

(A) darura is the foundation of all maslahah;

(B) the disruption of a daruri necessitates the disruption of other ob-

jectives absolutely;

84. Id. at 153-54.85. Id. at 113.

86. Id. at 118-19.87. See id. at 119-20.88. See id.

89. Id.90. Wael B. Hallaq, The Primacy of the Quran in Shatibis Legal Theory, in LAW

AND LEGAL THEORY IN CLASSICAL AND MEDIEVAL ISLAM 84 (1995) (citation omitted).


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(C) the partial disruption of a haji or tahsini does not necessitate the

disruption of the daruri;

(D) an absolute disruption ofhaji or tahsini disrupts the daruri;

(E) the preservation ofhaji and tahsini is necessary for maintenance

of the daruri.91

Shatibi adds that the purpose of the maqasid(objectives) of the Shariah is

not only aimed at good in this world but good in the hereafter as well.92

B. Shatibi on Ijtihad

On the basis of Shatibis approach to legal interpretation, Masud states

that, in Shatibis legal philosophy, God provides knowledge of good and

bad to man through Divine laws, natural instinct and social experience.93

Shatibi distinguishes between simple and specialized ijtihad. Simple ijtihad

refers to universal principles commonly understood by both specialists and

lay people.94By comparison, specialized ijtihad is only valid when exercised by

those who are qualified and have attained the two requisite skills.95 First,one must have a perfect understanding of the purpose[/s] of the law

(maqasid al-shariah), and second, on the basis of this perfect understand-

ing, a command in the skill of deduction on the basis of this understand-

ing.96

Relying on Imam Malik, Shatibi spells out the following steps in theprocess ofijtihad, and thus applies the skills discussed above.97 First, ex-

amine the case in the light of the Shariah.98 If it is acceptable, then con-

sider its consequences in the context of the condition of its time and its peo-

ple.99 If it does not involve or result in any evil, submit it to reason.100 If

one feel[s] that it will be accepted by reasonable people, then [they should]give [their] opinion in general terms if the case concerns a matter that is

generally acceptable.101 If it cannot be generalized, one should give a spe-

cific opinion. If the case in question cannot be successfully resolved by this

91. MASUD, supra note 38, at 154.92. Id.93. Id. at 233.94. Id.95. Id.

96. Id.97. Id. at 235.98. Id.

99. Id.100. Id.101. MASUD, supra note 38, at 235.


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means, it is advisable to keep silent since this would be more in conformity

with the welfare of the people.102

In his analysis, Shatibi also discusses the fatwa as a form of ijtihad

and argues that the mufti succeeds the Prophet Muhammad (pbuh) in his

capacity as a legislator and a transmitter of law. A mufti, he says, conveys

the law to society as he received them from the Prophet (pbuh) or through

the interpretation of the text. Shatibis philosophy of Islamic law, as con-

tained in his Al-Muwafaqat, has been hailed as perhaps the greatest contri-

bution to understanding the spirit of the Shariah.103

V.IJTIHAD ANDIFTA BY IBN RUSHD IN CORDOBA IN 516

Before briefly discussing the place of thefatwa in ijtihad, it is indeed

apt to reminisce about a case ofijtihadand ifta104 in Andalusia in 516. This

will illustrate how the principles have interacted in the past as well as the

historical continuity between past and present uses of ijtihad. One ofUmars most well known instances of ijtihad was his imposition of the

death penalty on all the perpetrators in the crime of murder.105 So strikinglysimilar was the ijtihadexercised by Ibn Rushd some 500 years later in the

Andalusian city of Cordoba that it is relevant to refer to it here in some de-

tail.

In 516 of the Islamic era106 a man was murdered in Cordoba. He had

three children, the oldest of whom had reached the age of four at the time ofhis fathers death. The deceased also left behind a brother who had two

sons, both of whom had reached majority at the time of the murder. In

terms of afatwa (legal opinion) issued by a group of Maliki jurists the mur-

derer, upon admitting his guilt, was executed at the behest of the victims

brother and his sons.107Amongst those who were asked to express an opinion on the matter

was one of the most eminent jurists of the time, Abu al-Walid Ibn Rushd.108

In his fatwa he dismissed the established Maliki doctrine and opined that

only the children of the victim are entitled, upon reaching majority, to de-

mand the murderers punishment, opt for blood-money, or, of course, par-

don the murderer.109 Ibn Rushd then issued a second fatwa on the matter,

102. Id.103. Id.104. Note that the legal opinion is called a fatwa, the one who gives the opinion is

called a mufti, and the process of reaching that opinion is called ifta.

105. Gamieldien, supra note 7, at 100-10.106. This corresponds to 1122 A.D. in the Christian era.107. See Wael B. Hallaq,Murder in Cordoba: Ijtihad, Ifta and the Evolution of Sub-

stantive Law in Medieval Islam, 55 ACTA ORIENTALIA 55, 56 (1994).108. This was just a few years before his death in 520.109. See Hallaq, supra note 107, at 58.


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claiming that some learned people had requested him to explain the opinion

in his earlier fatwa. He argued that the childrens right to seek punishment,

compensation, or to pardon overrides the right of the paternal uncle and his

sons and maintains that, in terms of a consensus of opinion amongst jurists

(ijma), a mufti may choose not to follow an earlier ruling or doctrine if he

believes that it no longer rests on sound footing.110

In support of this, Ibn Rushd adduced the Quranic verse that states,

[a]nd ask those who are learned if you do not know,111 as well as the fa-

mous hadith concerning Muad ibn Jabal.112 This hadith, Ibn Rushd argued,

place[d] the highest importance upon independent thinking.113

On the grounds of these primary sources of the Shariah Ibn Rushd in-

troduced a new fact, namely that the murderer was in a state of drunkenness,

and thus not acting with full mental capacity when he committed the crime.

He argued that ijma (consensus of opinion) dictated the mitigated punish-

ment of an intoxicated murderer as well as that the children of the victim

first attain majority, since they may well choose the pardoning option.114

Ibn Rushd then explained that the Quranic text governing the matter

is, Whosoever is slain unjustly, We have given authority unto his heir, but

let him [heir] not commit excess in slaying [the murderer].115 While there

is no disagreement concerning the right of the heir to demand the punish-

ment of the murderer, the disagreement lies in determining who the heir is.

According to Ibn Rushd, assigning the uncle and his sons the right to seek

punishment or compensation effectively nullifies the rights of the children

of the victim.116 The learned jurist further argued that the Quranic verse

stating that there is life for you in retaliation as well as a number of other

verses attesting that pardoning should take preference over punishment

points to the fact that the death penalty ought to act as a deterrent against

murder.117 He also referred to a hadith of the Prophet (pbuh) which, he

maintained, indicates unequivocally that pardoning is superior to punish-

ment.118 The Prophet (pbuh) once asked the relative of a murder victim to

accept blood-money, which he refused. The Prophet (pbuh) replied,

Should the murderer be killed? If he is to be killed, what would make you

a better man than him?119

110. Id.111. Quran, Sura an-Nahl 16:43.112. Seesupra notes 8-13 and accompanying text.113. See Hallaq, supra note 107, at 58.

114. Id.115. Quran, Sura al-Isra17:33.116. See Hallaq, supra note 107, at 63.

117. See Quran, Sura ash-Shura 42:40.118. Hallaq, supra note 107, at 63.119. See id.


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It may well be asked what the importance of this fatwa is to the dis-

cussion at hand. The answer is that it elicits a number of significant features

vis--vis legal interpretation in Islam. Four reasons may, in particular, be

adduced: First, the fatwa suggests that, under certain circumstances, even

the most highly regarded doctrines, enunciated by the most eminent jurists,

may be questioned and set aside. Second, thefatwa exhibits the principles

of basic Islamic legal theory in practice. For Ibn Rushd relies on the author-

ity of the Quran, then goes to the Sunnah, followed by ijma.

Third, the fatwa takes into account Islamic philosophy, morality and

values. By relying on the Prophetic tradition which regards pardon as supe-

rior to punishment, Ibn Rushd is giving weight to the moral values of Islam.

In the words of Hallaq:

That consideration of the rewards in the hereafter should enter into deliberationsabout an actual case of homicide undescores the religious nature of Islamic law andpoints to the interconnectedness of religious morality and law as an instrument of

social control. Such considerations also demonstrate that ideals of morality and ofreligious ethics, while indeed constituting part and parcel of legal doctrine, did notnecessarily result in Islamic law being idealistic, this carrying the implicationthat it shied away from dealing with the actual problems arising in Muslim socie-

ties. Ibn Rushdsfatwa provides a clear example of the manner in which purely re-ligious values were intermeshed with worldly legal considerations.120

Fourth, this fatwa proves that ijtihadwas practiced after the Third Is-

lamic Century and that the gate of ijtihadhad never been closed. At the

least it proves that ijtihadwas practised via the fatwa, and as such, it con-

tributed to the evolution and development of substantive law in medieval

Islam.

VI.IJTIHAD IN THE EIGHTEENTH CENTURY

In the century, Shah Wali Allah of Delhiwho has been termed the

Ghazali ofIslam in the Indian subcontinent121initiated a new methodol-

ogyin Islamic legal interpretation. He termed it tatbiq, meaning to bring

into alignment or to make congruent.122 Tatbiq consists of looking beyond

the surface features to the inner essence or the comprehensive principle un-

derlying a particular issue.

Shah Wali Allah argued that the requirements for the best interests

(masalih) of the human race will vary from age to age and from nation to

nation.123 These best interests, which for Islam are based on the ultimate

120. Id. at 65-66.121. Marcia K. Hermansen, Shah Wali Allah of Delhis, Hujjat Allah Al-Baligha:

Tension Between the Universal and the Particular in an Eighteenth-Century Islamic Theory

of Religious Revelation,63 STUDIA ISLAMICA 143, 143 (1986).122. Id. at 144.123. See id. at 152.


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purpose of the human race on earth, should be in accordance with nature or

the natural state of the human being, the state of fitra. Of course, the

Quran declares on a number of occasions that Islam is the natural way. 124

For Shah Wali Allah, all rulings based on ijtihad or tatbiq ought to be

founded onfitra.

The famous eighteenth century Yemeni jurist, Muhammad al-

Shawkani, did not subscribe to any of the four madhahib. Haykel summa-

rises Shawkanis approach to usul-ul-fiqh as follows:

In all of Shawkanis works a constant refrain is sounded: the absolute necessity ofapplying ijtihadas a means of combating the sectarian and antagonistic tendenciesamongst different schools of law. . . . The practice of taqlidwas a reprehensible in-novation which had been developed by the followers of the various schools of law,

many of whom argued that ijtihadwas no longer possible for later generations ofMuslims. . . . Because of his reformist message, Shawkani has been slotted inmany contemporary writings into the Muslim modernist and even nationalist tradi-tions which equate ijtihadwith liberating thought, and attributes to it an instrumen-

tal role in Arab and Muslim renaissance.125

As regards ijtihad, Shawkani argued that it provided a solution to the evils

of sectarianism and fanaticism as well as a means of reforming misguided

social practices.126 The question of flexibility in interpreting the law has

been touched upon earlier in the article. By not subscribing to any of the

four madhahib, Shawkani may perhaps be regarded as adopting the most

flexible interpretation of all in that he could take what was, in his opinion,

the most favorable solutions from all four schools of thought.

VII.IJTIHAD IN THE NINETEENTH AND TWENTIETH CENTURIES

Perhaps the leading figure in this era was the Egyptian scholar Mu-hammad Abduh,127whocalled for the restoration of the original Quranic

norms to the modern era. Of Abduhs vision of ijtihad, Oussama Arabi

writes:

The construction of a new sharia that would be receptive to the objective humanand social reality, and would not be bound by the shackles of the past, is the meansto realize an efficient and uniform Islamic judicial and political structure. Creative

legal thinking, or ijtihad, is Abduhs cause at the close of the nineteenth century; itis that of independent and objective Muslim thought against the imitation, taqlid,of authoritative tradition. The renaissance of Islamic civilization is construed as a

total process of political, legal and scientific renovation of Muslim societies, in

124. Quran, Sura at-Tawba 9:36; see also Quran, Sura ar-Rum 30:30 & 30:43.125. Bernard Haykel, Reforming Islam by Dissolving the Madhahib: Shawkani and

His Zaydi Detractors in Yemen, in STUDIES IN ISLAMIC LEGAL THEORY 337, 340-41 (Bernard

G. Weiss ed., 2002).126. Id. at 348.127. Muhammad Abduh lived from 1849 to 1905.


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

Abduhs version of ijtihadembodies his awareness that only the scientifi-cally disciplined use of reason would enable Muslims to cope with the pre-

sent and prepare for the future and that this use is to be cultivated and de-

fended on Islamic premises so that it would bear fruit with time. What he

envisaged to this end was no less than a radical reconstruction of Muslim

personality, a break with the dominant Sunni conception of the relationship

between reason and Revelation, whereby rational thought is to have an

equal say in determining the rules governing human relations and social

order.129

Abduhs call for the restoration of the original Quranic norms is

founded upon his two principles of Islam. The first principle is that rational

thought (al-nazar al-aqli) is the means for the attainment of true faith (wasi-

lat al-iman al-sahih).130 The second principle is that where Revelation and

reason are in conflict, reason should take priority (taqdim al-aql ala al-

shar).131 In the light of Abduhs two principles of Islam, Arabi states that

three key elements form the operational guidelines for the implementation

of Abduhs approach to Islamic law, namely:

(A) the restitution to the sacred texts of their original and universal import ( usul al-sharia wa kulliyyatiha), irrespective of the provincial and more particular applica-tions that accrued to it in history;

(B) the delimitation of a category of textual rulings that follow from a conclusiveevidence (dalil qati), and therefore not subject to interpretation or alteration; and,

(C) the determination of a category of changing rulings, in accordance with humaninterests and conditions.132

Abduh applied these three elements to the question of polygamy in his day,in the light of the well-known Quranic verse which states that men may

marry more than one woman unless injustice or inequity may result.133 He

concluded that maslahahthe interests of the communityrender the prac-

tice detrimental in the present day.134 Arabi concludes:

Abduhs operational legal principles are intended by him to be programmatic for-mulas for nothing less than the wholesale reconstruction of a new Islamic law, a

new version ofsharia, that while being in accord with the definitive rulings of thesacred texts, would venture into unknown territory, that of the present and the fu-

128. OUSSAMA ARABI, STUDIES IN MODERN ISLAMIC LAW AND JURISPRUDENCE 24(2001).

129. Id. at 25.130. Id. at 33.131. Id. at 35.

132. Id.133. Quran, Sura an-Nisa 4:3.134. See ARABI, supra note 128, at 36.


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ture. In his own legal reasoningabout marriage, divorce, interest chargingAbduh provided living proof that sharia could produce new rulings, rulings thatgo beyond anything present in the extantfiqh manuals.135

As regards divorce law, the Egyptian Law No.1 of 2000 (Women May

Divorce at Will) serves as but one example of Abduhs influence on the

reconstruction of the Shariah or, as Muhammad Iqbal couched, the princi-

ple of movement in Islam.136 The most striking feature of this new legisla-

tion was the provision that a woman may obtain a judicial separation from

her husband if she wishes, the only condition being the restitution of the

dower to her husband and the relinquishing of her right to maintenance. 137

Although much heated debate followed upon this provision, the Grand

Sheikh of Al-Azhar, Sayyid Tantawi, announced that the new law was in

conformity with the Shariah and that it was approved by a majority vote in

the forty-member Islamic Research Academy.138

The last chapter of Oussama Arabis book, Studies in Modern Islamic

Law andJurisprudence, is entitled The Place of Islamic Law in the ModernWorld and the Reconstruction of Sharia.139 Arabi states that one of the

most formidable tasks faced by the Muslims in the wake of the conquest of

the larger part of Muslim lands by European colonizers and imperialists is

the preservation of the dignity and identity of Islam and Muslims.140 At the

same time, one must be very wary of the efforts of the dominating powers to

align Islamic law with their legal systems and values. In this regard, Arabi

reminds us of the warning sounded by Edward Said regarding Orientalist

discourse:

As Edward Saids analyses of Orientalist discourse have shown, the study by Euro-pean scholars of the dominated peoples beliefs, customs and laws belongs more tothe internal exigencies of domination and the ideological debates of self-

justification of the colonial powers, than to any authentic effort at understandingthe true nature and value of these institutions in the lives of the subject popula-tion.141

Arabi is quick to note that there have been exceptions to this general

statement, for example, the Frenchman Marcel Morand, who produced a

modern Algerian code of family law based on classicalfiqh.142 For Morand,

135. Id. at 37.136. See Allama Iqbal, The Reconstruction of Religious Thought in Islam 146 (1994)

(see, in particular, Chapter VI entitled The Principle of Movement in the Structure of Islam).

137. See ARABI, supra note 128, at 169-72.138. Id.; see EDWARD W.SAID,CULTURE AND IMPERIALISM (1994).139. ARABI, supra note 128, at 189-212.

140. Id. at 189.141. Id. at 190.142. Id.


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Arabi argues, universal legal logic took precedence over narrow and dog-

matic prejudice.143

Abduhs approach to Islamic legal interpretation meant a positiviza-

tion of the Shariahthe process of integration of the Shariah into the

modern states political structure without abandoning the ethical and reli-

gious spirit of Islamic lawcoupled with an end to the long-established

traditions and doctrines of the madhab system.144 This positivization would

be based on ijtihador what he termed creative legal thought.145 Arabi states

that through the universal value of ijtihadinvolving, as it does, a great

degree of flexibilityAbduh forged the logical and conceptual tools that

would, both retrospectively and for the twentieth century and beyond, con-

solidate the positivisation of Islamic law.146

In a 1994 decision, the Egyptian High Constitutional Court stated that

where the primary sources of Islamic law, namely the Quran and the Sun-

nah, contain a definitive ruling, no ijtihadis permissible.147 However, where

no definite or specific ruling is forthcoming, ijtihadis permissible in order

to reflect the changing needs and circumstances of human communities.

And such ijtihadshould always aim at realizing the five maqasid(objec-

tives) of the Shariah.

The Court stated:

Ijtihadconsists in applying the rule of reason in what is not an object of a (sacred)text, as an extension of the edifice of transactional rules that is necessitated by

Gods clemency and justice towards his subjects. The advantage thereof is to cush-ion the Islamic sharia as the latter is not cloistered unto itself. This practice (ijti-

had) does not confer any sacredness (qudsiyya) on the opinion of some jurist oranother with regard to the legal matter under consideration, and there is no im-pediment to revising it, evaluating it or replacing it by another rule. Interpretiveopinions, by themselves, do not possess a binding force on those who do not have

the same opinion; one should not, therefore, consider these opinions as a Law ofsharia that is absolute and incontestable and cannot be contradicted.148

Since Marcel Morand is regarded by Arabi as an exception to the general

European or Western approach during colonization of applying and modern-

izing the law of the conquered, brief reference is made here to his approach

in his Draft Code of Muslim Algerian Law.149 Although Morand was com-

mitted to the values of the French colonial enterprise in Algeria, he never-

143. ARABI, supra note 128, at 190.144. Id. at 192.145. Id.146. Id. at 193.

147. Id. at 200-05.148. Id. at 205.149. The Morands Draft Code of Muslim Algerian Law came to be known as the

Code Morand (completed in 1914). See Oussama Arabi, Orienting the Gaze: MarcelMorand and the Codification of Le Droit Musulman Algerien, 11 J.ISLAMIC STUD. 43 (2000).Morand was Dean of the Law Faculty of Algiers University for some time. Id.


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theless radically departed from the perspective of classical Islamic legal

interpretation by creating a synthesis which transcended the four madhahib

and, thus, was at the forefront of legal reform and reconstruction in Muslim

countries in the twentieth century.150

Of course, Morands creative legal thought and his brand of legal real-

ism took place in the colonial matrix.151 While the French colonial gov-

ernment in Algeria opted to maintain the corpus of theMaliki law, Morand

attempted to develop and evolve the Shariah on the basis of fair and equi-

table rulings, rather than stick to perhaps outdated textualfiqh rulings. His

main focus was the maintenance of the spirit of the Shariah.152

Morand thus departed from Maliki law and adopted provisions of the

Hanafi school where the latter was found to be more humane, more under-

standing and more tolerant.153 Taking into account Abduhs approach to

ijtihadand talfiq (syncretism or combining), Morand found new solutions to

legal problems, often combining the views of different schools or going

beyond them and finding fresh solutions. For example, Article 4 of his

Draft Code provides that [t]he age of puberty is 18 years, completed, for

the man; and 15 years, completed, for the woman.154 This Article is a hy-

brid of Hanafi and Maliki rulings, since the age for both sexes was fixed at

18 for the Malikis and at 15 for the Hanafis.155

Morands approach in his Draft Code of Muslim Algerian Law was

one of flexibility, legal realism, upholding the public interest, combining

and going beyond the four madhahib when necessary, and, underlying it all,

upholding the spirit of the Shariah. This flexible and pragmatic approach

is reminiscent of Imam Maliks approach to interpretation; it should be re-

membered that Malik stated that istihsan is nine-tenths of the law. The

question of going beyond the madhahib has already been briefly alluded to

earlier in this Article in respect of the thinking of Shawkani.

150. See Arabi, supra note 149, at 46 (also appearing as Chapter 6 in ARABI,supranote 128).

151. Arabi writes, [t]he very methodological principles of Islamic jurisprudenceprompt benefic[ial] change and adaptability to new social conditions. The prejudice whichequates its sacred character with ossification is both doctrinally and historically unfounded

. . . . Morand invokes the well-knownMaliki tradition of treating public utility, maslaha, as afundamental source of legislation . . . . Id. at 58.152. Id. at 58.

153. Id. at 59.154. Id. at 62.155. Id. at 63.


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VIII. PUSHING THE LIMITS OFIJTIHAD:CALLS FOR CREATIVE

INTERPRETATION IN THE TWENTY-FIRST CENTURY

In an article published in theAr-Rabitah156 magazine in 2002, Dr. Mu-

hammad Ammarah discusses ijtihadin the contemporary world.157 He ar-

gues that because the world we live in has progressed without adherence to

the essence of the Shariahmainly due to the influence of Western impe-

rialism and civilizationit is not possible for one thinker or jurist alone to

rearrange the realities of the world.158 Furthermore, he argues, due to in-

creasing specializationin the sciences and all spheres of human activity

ijtihad needs to steer a new course in order to respond to contemporary

needs. The translation of the original Arabic text by Rafudeen continues as

follows:

Such a new course cannot be restricted to extraordinary persons among the ulamaof the Shariah only. Rather the Ahl ul dhikr, ulul al amr and ashab ul hall waaqd159 must include experts in secular fields as well. There is a necessity to form

intellectual establishments that [combine] both religious and secular experts in or-der that ijtihadcan be cast in a new manner.

Ijtihadis a combination of the essence and objectives of the Shariah with the re-quirements of progress and contemporary exigencies with the aim of effecting thewelfare of the whole Ummah. This is done without moving away from the essenceand objectives of the Shariah. Such intellectual establishments . . . require expertsin the contemporary sciences and their application in all that it involves as it is im-

possible for even an encyclopaedic scholar to be well-versed in all fields like in thedays of old.160

Ammarah argues that the creation of intellectual establishments161 should

not imply that individual creativity will be impeded. Rather, such creativity

will remain unrestrained.

He also strongly argues that, underlying all contemporary ijtihad,

should be the rejection of secularismwhich he regards as a Western dis-

easeand the need to find European/Western solutions to all problems

faced in the interpretation of Islamic law.162 He rejects secularism because it

entails the separation of Islam from the material world and, more impor-

tantly, it will result in the loss of the independence of Islam as a civilization.

156. This is a publication of the Muslim World League (Al-Rabitah al-Islami), whichis based in Saudi Arabia.

157. Translated into English in Auwais Rafudeen,Islamised Perspectives in Contem-

porary Arab Intellectual Culture: Three Discussions, 4 IPSA J. OF ISLAMIC STUD. 67 (2005)(Ipsa is the acronym for the newly established International Peace University of South Af-

rica.).158. Id.159. Classical terms for people of knowledge.

160. See Rafudeen, supra note 157, at 77-78.161. Implying the idea of consensual ijtihad.162. See Rafudeen, supra note 157, at 77-78.


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He distinguishes his proposed approach from secularization by characteriz-

ing Law as a way of life given by Allah [that] is permanent, and salafand

ijthadas the Laws application, which is not . . . binding on one who lives

in a different context . . . .163

More recently, in a Special Report of the United States Institute of

Peace entitledIjtihad:Reintepreting Islamic Principles for the Twenty-First

Century, it was agreed that although most scholars would limit the practice

ofijtihadto specialists who not only have knowledge of the Quranand the

Sunnah but also a broad familiarity with scholarship in Arabic grammar,

logic, philosophy, economics, and sociology, other scholars may assert that

interpretation of the texts should not be confined to legal scholars but

should be open to those with creative imagination.164 Among the latter are

Muneer Fareed, who suggests that ijtihadcan be viewed in three different

ways: as a legal tool, as a form of legal reasoning, and as a creative impulse

and imagination.165 Similarly. Ingrid Mattson argues that reason is not the

only complement to Revelation, rather, more emphasis should be placed on

the natural law tradition in Islam, on fitra,166 on the innate God-given sense

of right and wrong.167

As regards creative imagination, the fundamental question would be

the extent of this imagination, this impulse. How far can one go in the

process of reinterpretation? How far can one take ones creative imagina-

tion while remaining within the bounds of the Shariah? Two pertinent

examplesand there are manyare the issues of apostasy and inheritance

law in Islam. In respect of apostasy, the Quran does declare that there is

no compulsion in religion.168 This would imply that the Afghani Abdul

Rahman is free to choose the religion of his choice. But then again, in terms

of Islamic criminal law, apostasy is crime.169 In the context of the basic

human right to freedom of religion, can one argue that apostasy should no

longer be regarded as a crime in Islamic law? Does not Allah imply that,

although one possesses freedom of belief, once a human being has found or

come to the ultimate truth, the choice of any other religion would amount to

a major retrogressive step? Just as Islam places limitations on the right to

163. Id.at 79.

164. See David Smock, United States Institute of Peace, Special Report, Ijihad: Rein-terpreting Islamic Principles for the Twenty-First Century 1 (2004),http://www.usip.org/pubs/specialreports/sr125.pdf.

165. See id. at 4.166. See Quran, Sura ar-Rum 30:30.

167. Mattson is also referred to in the United States Institute of Peace Special Report.See Smock, supra note 164, at 4.168. Quran, Sura al-Baqara 2:256.

169. See DOI, supra note 31, at 265-67; see also MUHAMMAD AFA ALSID SIDAHMAD,THE HUDUD: THE HUDUD ARE THE SEVEN CRIMES IN ISLAMIC CRIMINAL LAW AND THEIRMANDATORY PUNISHMENTS 361-64 (1995).


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freedom of expression, so too does it limit freedom of religion. Perhaps

quite simplistically, Islam permits freedom of religion but not the conver-

sion of a Muslim to any other religion.

In respect of the law of inheritance in Islam, the Quran commands

that, as regards inheritance by ones children, the male is entitled to a por-

tion equal to that of two females.170 In the context of the basic human right

to equalitygender equality, specificallyshould this verse be reinter-

preted in the twenty-first century or should its rationale be properly ex-

plained and understood?171 Is not the empirical equity inherent in the distri-

bution of wealth more important than the mathematical inequality? These

are but two examples of the caution which must be coupled with ijtihad

with creative legal thoughtin the twenty first century.

CONCLUSION:THEIJTIHAD OF THE TWENTY-FIRST CENTURY SHOULD

DRAW ON THE RICH HERITAGE OF PURPOSIVE ISLAMIC LAW

This Article illustrates how deeply rooted the purposive approach is in

Islam. The Prophet (pbuh) and his companions allowed the practice ofisti-

han. The khalifa (caliph) Umar taught us that the spirit of the Shariah

should always be paramount. With the exception of the literal approach to

legal interpretation adopted by Imam Shafi, the other three great Imams

underlined the importance of the public interest (maslahah), istihsan, and

adopted a purposive approach to legal interpretation. Shatibi laid greatstress on the five maqasid(objectives) of the Shariah. In the eighteenth

century Shah Wali Allah argued that the maslahah, which is based on the

human beings existence on earth, should be in accordance with nature or

the natural state of the human being, the state offitra, 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.

Ijtihadtoday should be founded on the best that the fourteen centuries

of Islam has taught us. In essence, the ijtihadof today should be founded

on creative legal thought, pragmatism, and flexibility (both in the applica-

tion of the rulings of the four madhahib as well as in maintaining the spirit

of the Shariah). Always, bearing in mind the limits and bounds set by the

Shariah. The ethical and moral precepts underlying the spirit of the

Shariah should never be overlooked, since the dignity of Islam and its fol-

170. Quran, Sura an-Nisa 4:11.171. I have attempted to do this elsewhere. See Nazeem Goolam, Gender Equality in

Islamic Family Law: Dispelling Common Misconceptions and Misunderstandings, 2

STELLENBOSCH L.REV. 199-214 (2001); Nazeem Goolam, The Position of Women in Islamic(Sunni) Law of Inheritance, (1994) (unpublished M.C.L. thesis, International Islamic Univer-sity Malaysia) (on file with author).


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lowers is founded upon its moral and ethical values. In this regard, the

twenty-first century ijtihadshould not merely bring Islamic law in line with

Western human rights standards and values. In this I am in full agreement

with the views of Ammarah.

I conclude with the verse of the Quran quoted at the very beginning

of this paper. Allah says, [a]sk the people who are learned if you do not

know.172

172. Quran, Sura an-Nahl 16:43.

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