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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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1446 Michigan State Law Review [Vol. 2006:1443
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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1448 Michigan State Law Review [Vol. 2006:1443
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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1450 Michigan State Law Review [Vol. 2006:1443
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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1452 Michigan State Law Review [Vol. 2006:1443
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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1454 Michigan State Law Review [Vol. 2006:1443
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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1456 Michigan State Law Review [Vol. 2006:1443
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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1460 Michigan State Law Review [Vol. 2006:1443
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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1462 Michigan State Law Review [Vol. 2006:1443
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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1464 Michigan State Law Review [Vol. 2006:1443
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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1466 Michigan State Law Review [Vol. 2006:1443
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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Special] Ijtihad and its Significance 1467
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.