a critical analysis on the role of ijtihad

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					     A CRITICAL ANALYSIS OF THE ROLE OF
  IJTIHAD IN LEGAL REFORMS IN THE MUSLIM
                   WORLD

                                       Rachel Anne Codd*




This article is an exploration of the concept of Ijtihad as a means for achieving a
viable methodology for legal reforms in the Muslim world. The article aims to
show that the Islamic system is reformable and that it can sustain reforms to it.
The need is to find a religiously acceptable methodology of legal reform within the
Islamic framework. If a new series of rules is constructed from a combination of
the evolutionary approach postulated by Ustadh Mahmoud Mohammad Taha1
and a fresh reinterpretation of Ijtihad then Ijtihad may be able to claim a more
central role in bringing about sufficient and lasting legal reforms in the Muslim
world.


                                      INTRODUCTION

Islam has been described by scholars and jurists as a progressive, dynamic and
universal religion.2 The Quran has also been declared to be accessible to all
Muslims not just one or two privileged individuals, and as such it is the duty of all
Muslims to understand it and to derive assistance from it in matters relating to
their lives. Others, whilst admitting that Muslims may derive assistance by reading
the commentaries of learned jurists from the past also state that such commentaries
are not the last word on any subject in question.3 Judge Mohammad Shafi, stated
in Begum v. Din (Pakistan High Court) that: ``Reading and understanding the
Qur'an implies the interpretation of it and the interpretation in its turn includes
the application of it which must be in the light of the existing circumstance and the
changing needs of the world''.4 He then goes on to say that if the interpretation of


  * This article is based on a dissertation submitted in partial fulfilment of the requirements for the
degree of M.A. Area Studies Near and Middle East, at the School of Oriental and African Studies,
University of London, in September 1996.
  1
    Abdullahi Ahmed An-Naim, Toward an Islamic Reformation. Civil Liberties, Human Rights and
International Law, Syracuse, Syracuse University Press, 1990, Chapter 3, p. 52.
  2
    Rahman v. Begum and other, High Court Decision in Bangladesh Legal Decisions, 1995, 15, vol. XV,
p. 36.
  3
    Begum v. Din, High Court Decision in Pakistan Legal Decisions, Lahore, 1960, vol. XII, p. 1153.
  4
    Ibid.

Arab Law Quarterly, [1999] 112±131


                                                 112
                                THE ROLE OF IJTIHAD                                             113

the Holy Quran by the jurists in the early centuries after the death of the Prophet
Mohammad is to be considered as the final and binding word on subjects then
Islam would have no place in modern times and would cease to fulfil its role as a
universal religion, restricted to when and where it was revealed.
   However over the years, the prevailing view regarding Islamic law is one that
instead of demonstrating fluidity and flexibility has depicted Islamic law as a rigid
legal system incapable and resistant to change. Interpretation of the Quran and the
Sunna of the Prophet to extract a necessary rule or principle (Ijtihad) was used in
the early days after the death of Prophet Mohammad and indeed it was seen as the
right of the jurists to do this. However, scholars writing on the subject have
assumed that the right of Ijtihad fell into abeyance after about the fourth century of
the Hijra, approximately AD 900, and that the so±called ``Gate of Ijtihad'' was
closed soon afterwards resulting in the stagnation of Islamic law. Schacht 5 sees the
closure of the gate of Ijtihad as being responsible for the reduction of the human
element used for interpreting the sacred texts and sees the ``prohibition'' of the use
of Ijtihad as the obstacle that prevented Islamic law from evolving as a system of
positive law. Still others, such as Khadduri,6 without question, adopted Schacht's
view of Ijtihad, reasoning that because of the Muslims increasing intolerance
towards legal reasoning and to a difference of opinion amongst the jurists the door
of Ijtihad was closed and taqlid or imitation became de rigueur. These views do
indeed suggest that Islamic law is unable to sustain reforms and that legal
development within this system is practically impossible. However, these views are
based on misconceptions and a failure to really investigate whether Ijtihad was
abandoned in the manner suggested above. Hallaq7 shows us that the gate of
Ijtihad was neither closed in theory or in practice, and that Ijtihad provided and
still provides a legal mechanism which is indispensable to legal theory as a device
for discovering judicial judgments as set out in the Quran by Allah, and by this
token a means of effecting legal reforms in accordance with the times and customs
of society.
   That the traditional Shari`a is in need of reform is evident. An-Naim8 is of the
opinion that the application of the traditional Shari`a, especially in the area of
public law, would create severe difficulties and suggests that a modern concept or
modern version of the Shari`a derived from the same Islamic sources as the old is
much needed to amend the negative aspects of the traditional Shari`a, such as the
abuse of human rights among non±Muslim sections of the population. For such
reforms to take place however, they must have an underlying religious legitimacy if
they are to change thought and practice in Muslim countries.
   How, therefore, are such reforms to be achieved within an Islamic framework?

  5
    Joseph Schacht, An Introduction to Islamic Law, Oxford, Clarendon Press, 1964, Chapter 10, p. 69.
  6
    M. Khadduri, ``From Religious to National Law'', Modernisation of the Arab World, Thompson
and Reischaeur (eds.) 1966, p. 41.
  7
    Wael B. Hallaq, The Gate of Ijtihad: A Study in Islamic Legal History, University of Washington,
University Microfilms International, Ann Arbor, USA, 1983, p. 9.
  8
    Abdullahi Ahmed An-Naim, supra, n. 1, Chapter 1, p. 2.
114                             ARAB LAW QUARTERLY


The concept of Ijtihad is particularly appealing in that it adheres to An-Naim's
rule of religious legitimacy, relying on fresh interpretation of the Quran and Sunna
which is also in line with the view taken in Begum v. Din, 1960. However, there are
problems with the application of Ijtihad. Is Ijtihad only applicable in the absence
of definite and clear injunctions in the Quran? Or is Ijtihad also allowed where
there are such injunctions? The link between the texts and a principle of the
Shari`a is established through reasoning and it is hard to see even in the presence
of clear and definite injunctions that the use of Ijtihad would not be used to
establish answers to problems. Classical evidence suggests that Ijtihad has actually
been used in the presence of clear injunctions in the Quran. The Caliph Umar
exercised Ijtihad in precisely these situations and his actions have been explained
in terms of his perception of the best needs of the Muslim community at that time.
It remains doubtful that Umar's behaviour was an isolated incidence when coupled
with the evidence from Hallaq9 that Ijtihad was very much exercised in the
centuries that followed the death of the Prophet. The fourth Caliph, Ali, also made
the statement that men and women speak for the Quran and so interpretation
(Ijtihad) of its dictates is an essential part of applying Quranic injunctions to the
lives of Muslims. However, there are still problems if reforms are to take place
within the Islamic framework using Ijtihad as the mechanism of reform. Ijtihad
must first of all be able to provide adequate interpretation of the sources and then
be able to apply such interpretations to actually solve the problems found in the
Muslim world today. Secondly, there are the apparent inconsistencies found in the
Quran. The verses revealed in Mecca advocate the peaceful transmission of the
word of Allah and non-compulsion in the acceptance of Islam, whereas the verses
revealed in Medina sanction the use of force against anyone not wishing to accept
Islam.
   The procedure of naskh (abrogation) of certain of the Quranic and Sunnaic texts
produced a comprehensive Shari`a which was consistent with the totality of the
Quran and the Sunna. Thus, compulsion in spreading the word of Islam was
justified by abrogating the Meccan verses forbidding force in conversion with the
Medinan verses sanctioning such force. However, if this was employed in the past
and seen as an Islamic model then this approach according to An-Naim10 may
certainly be reused in light of today's society to produce a genuine and modern
Islamic law. However, although this procedure may be used, and if one accepts this
view for reforming the Shari`a, does this necessarily imply that Ijtihad has already
been made redundant? I would suggest that although the procedure of naskh may
play a role in effecting reforms in Islamic law, without Ijtihad as a mechanism for
interpreting the remaining verses of the Quran and Sunna, there will always be the
risk of whatever interpretation is given to these remaining verses that these will
have a totalitarian nature, and thus will have a tendency to remain just as static as
the verses that have been used to justify use of compulsion. It is my opinion that
  9
     Wael B. Hallaq, ``Was the Gate of Ijtihad Closed?'', International Journal of Middle East Studies,
16, 1984, pp. 3±41, at p. 10.
  10
     Abdullahi Ahmed An-Naim, supra, n. 1, Chapter 3, p. 49.
                                 THE ROLE OF IJTIHAD                               115

without Ijtihad, the striving to interpret the Quran and Sunna in light of today's
societal needs will leave the Quran and the essential message of Islam in the past
with little or nothing to say to guide today's Muslims. Ustadh Mahmoud
Mohammad Taha11 provides an evolutionary approach which suggests that when a
particular verse has served its purpose and is irrelevant for the needs of society
(i.e., in the twentieth century) then it needs to be abrogated and the first verses (the
Meccan verses) are to be re-enacted. Ustadh Mahmoud suggests that in this way
the Meccan verses have their place in the twentieth century as the operative text
and the foundation of new legislation. This evolutionary approach gives credence
to the notion that it is indeed possible to exercise Ijtihad in the presence of clear
injunctions in the Quran and Sunna and the fact that Caliph Umar did such a thing
supports Ustadh Mahmoud's proposals.
   I believe that Ijtihad is important as a legal device in effecting legal reforms
within an Islamic framework. This article aims to investigate the true role of
Ijtihad in effecting modern legal reforms in the Muslim world. To do so I will first
analyse the concept of Ijtihad and discuss how Ijtihad has already been used to
bring about reforms. Finally I will attempt to discuss the exact role of Ijtihad in
bringing about such reforms and analyse whether its role is central or peripheral to
the reform process.


                                     WHAT IS IJTIHAD?

The fundamental aim of the Quran was to introduce certain standards of behaviour
for the Muslim community. The so±called ``legal matter'' of the Quran is made up
of broad propositions as to how the Muslim community should be guided, and as
such it does not clearly expound what the laws should be but only provides the
basic foundation from which Islamic laws and legal principles can be, and are,
derived. Because legal theory (usul al-fiqh) is based on divine authority, and
because of man's duty to praise God in accordance with the divine laws, Hallaq12
tells us that the process of extracting laws from the sacred texts (Ijtihad) became a
religious duty for all jurists whenever a new case arrived, and until Ijtihad was
performed by at least one mujtahid Muslims remained under the cloud of this
unfulfilled duty.
   Literally, Ijtihad means ``exertion'' or ``self-endeavour''. However, in legal
usage, Ijtihad refers to the striving of the jurist to a point of mental exhaustion to
derive principles and rules of law from evidence found in the sacred texts or
sources. Anything less than total exertion rules out the practice of Ijtihad. Of
course, only the jurist can himself verify whether or not he has expended his
utmost in trying to derive a legal principle. This makes the practice of Ijtihad
dependent on the individuals' conscience. In contrast, there is the concept of taqlid

 11
      Ibid., p. 52.
 12
      Wael B. Hallaq, supra, n. 7, p. 14.
116                            ARAB LAW QUARTERLY


or imitation of either the classical jurists or an Imam. However, there are certain
problems that are encountered when trying to find a legal principle from the sacred
texts. Weiss13 points out that the person deriving the law must first ascertain the
degree of reliability of the non±Quranic texts and then determine the boundaries of
the body of the texts he is consulting. Al-Amidi14 is very frank about the problems
that are encountered when engaging in Ijtihad. He applies extremely strict
measures to ascertain the authenticity of the Sunnaic texts and rejects simplistic
efforts to solve the problem. Although very few of the Sunnaic texts pass the
criteria set out by Al-Amidi, what results from this is a body of texts that have
probable authenticity and also a degree of uncertainty, which is in line with Al-
Amidi's jurisprudential thinking, who takes nothing short of the original intended
meaning of the texts as the foundation or springboard for the understanding of the
law, so that the co±functioning of word and context is extremely important. One of
the greatest problems therefore in this context is to decipher any ambiguity in the
texts. This approach is as Weiss, 199215 describes a holistic approach to the
interpretation of the texts so that the scholar must read every passage in light of a
whole body of texts. When seen in this light we can grasp the meaning of total self
exertion in formulating the law, and also the importance of Ijtihad in remaining
one of the most important mechanisms for legal reform. If the law is as Weiss
states formulated ``on the anvil of debate''16 then this supports the notion that the
Shari`a would be freed from charges of rigidity and inflexibility if Ijtihad was to be
employed for deriving law reforms suitable for the twentieth century.
   Who, then, has this right to derive laws that are acceptable to Allah? For a
system of positive law to be developed it is obviously necessary that not every
person to whom the resulting laws apply should wish to engage in Ijtihad
preferring to leave this endeavour to the few and to follow what they decide upon.
As Weiss17 notes it is in the interest of social stability that many choose not to
acquire the qualifications of mujtahid. The term ``mujtahid'' has been loosely
described by Al-Amidi as ``anyone characterised by Ijtihad''.18 However, he is
much more rigorous as to the qualifications that the scholar must meet in order to
be so characterised. In this manner, the term mujtahid is not just a defining
characteristic; it is also one of status.
   There are many differing opinions as to what the qualifications of mujtahids
must be. Abu Husayn al-Basri's19 (d.436/1044) requirements for Ijtihad entail
knowledge of the Quran, Sunna and the principles of inference and analogy, with
emphasis being placed on the use of analogy, as indispensable in performing

   13
      Bernard G. Weiss, The Search for God's Law: Islamic Jurisprudence in the Writings of Sayf al-Din
al-Amidi, University of Utah Press, Salt Lake City, USA, 1992, Chapter 16, p. 684.
   14
      Ibid.
   15
      Ibid., p. 686.
   16
      Ibid.
   17
      Bernard G. Weiss, ``Interpretation in Islamic Law: The Theory of Ijtihad'', The American Journal
of Comparative Law, 1978, vol. 26, p. 207.
   18
      Bernard G. Weiss, supra, n. 13, Chapter 16, p. 687.
   19
      Wael B. Hallaq, supra, n. 7, Chapter 2, p. 15.
                                 THE ROLE OF IJTIHAD                             117

Ijtihad. Knowledge of metaphors and abrogation as well as the Arabic language are
a must. Interestingly, Basri regards familiarity with urf or custom as another
qualification for Ijtihad. Of equal importance for Basri is the infallibility of the
Muslim community. However, Basri does not stipulate that the mujtahid should
be familiar with the positive rulings that have been subjected to ijma, nor does he
allow a jurist to reinvestigate a case to which a ruling has already been derived.
Thus the jurist must at least know the positive rulings of his school of law and does
not allow the jurist wishing to engage in Ijtihad to treat any cases that have been
treated before. Weiss20 states that the mujtahid must be able to identify
commandments and prohibitions and be able to define their exact nature, i.e.,
whether they prohibit, recommend, require, or allow, certain acts. The jurist will
also need to know the exact meaning intended in the passage and must be able to
choose accurately which of several expressions is the one intended. The jurist must
also decide on whether the passage is to be taken literally or metaphorically and
must have a thorough grasp of linguistic clues such as nuance, implication, and
allusion. Finally, according to Weiss, the jurist after formulating his opinion on a
given passage must determine if that passage has been abrogated, whereupon,
Weiss considers that the mujtahid may not derive a rule of law based on that
passage.
   Shirazi21 (d.467/1083) limits the requirements for a mujtahid by only requiring
that the mujtahid have knowledge of the provisions in the Quran and Sunna that
have direct relevance to the Shari`a. The jurist must also know the texts and be
able to extract rulings from them and possess the methods to do so. As more than
one ruling may be deduced for one case the jurist must know which of the rulings
should be advanced over the others. Rudiments of usul al-fiqh, such as knowledge
of Arabic language and reasoning by analogy, are also necessary for Shirazi.
   However, where Shirazi limits the knowledge needed to become a mujtahid, al-
Ghazali22 (d.505/1111) expands these limits by maintaining that the jurist must
know the 500 verses needed in law; he must know the relevant hadith literature,
and have in his possession a copy of Abu Dawd's or Bayhaqi's collections of
hadith. The jurist, so that he does not deviate from the established laws, must also
know the works of furu and all the points subject to ijma. Al-Ghazali goes on to say
that if the jurist cannot meet this last requirement then he must make sure that any
decision he comes to does not contradict any of the renowned jurists. The jurist
must then know the methods by which legal decisions are extracted from the texts,
as well as knowledge of the Arabic language (complete mastery of it is not
necessary), know the rules that govern naskh or abrogation sufficiently so that the
jurist knows which verses or hadith in question have not been repealed. Finally,
the jurist must be able to investigate the authenticity of the hadith although
mastery of the science of hadith criticism is not required. Al-Ghazali's
requirements are lengthy indeed but the above requirements are only needed for
 20
      Bernard G. Weiss, supra, n. 17, p. 210.
 21
      Wael B. Hallaq, supra, n. 7, Chapter 2, p. 16.
 22
      Ibid., p. 17.
118                           ARAB LAW QUARTERLY


those jurists who want to use Ijtihad in all areas of law, i.e., a mujtahid mutlaq.
Those that want to practice Ijtihad in only one area of law need only, according to
al-Ghazali, to know the methodology and the body of texts needed to solve the
problem in question.
   However, there are certain problems with the definition of the mujtahids as set
out above by different scholars for the following reasons. Firstly, the opinions of
the scholars mentioned above do not explicitly touch upon the rationality of the
process of interpretation. Judge Mohammad Shafi23 touches upon this notion and
states that interpretation should bear in mind the changing circumstances of
society. He continues by saying that whilst the principles laid down in the Quran
are eternal their application is not as ``the application has got to be to the facts and
for a purpose both of which go on varying and changing''.24 This to my mind cuts
into al-Ghazali's notion that jurists may not contradict the jurists of the past when
extracting legal principles from the sacred texts. If what al-Ghazali implies is true
then how would modern jurists be able to extract the relevant principle from the
sacred texts to formulate laws that are consistent with the changes in today's
society? The Quran then would cease to be the bedrock of the law, applicable to
today's society of Muslims and would then become defunct. This eventuality
defies the universal nature of the Quran which is a fact. Secondly, the idea that
Ijtihad may only be used in the absence of clear injunctions in the Quran and
Sunna is contradicted by the conduct of the Caliph Umar who used his Ijtihad to
refuse to pay material incentives to non±Muslim elements in the society who
formerly needed to be pacified. He explained his behaviour by saying that this
should only be carried out at times when the Muslim community was weak. As that
was no longer the case, Umar refused to pay out the incentives. However, the
injunction to do so is clearly stated in verse 9:60 of the Quran.25 Verses 59:6±10 of
the Quran26 stipulate that Muslim fighters are entitled to the spoils of war.
However, Umar also refused to distribute lands captured during the conquests of
Syria and Iraq as part of the category ``spoils of war'' arguing that to do so would
be to weaken the state and deprive it of valuable resources. This classical example
refutes the beliefs of the scholars mentioned above and cannot be explained as
simply an aberration or an isolated case. An-Naim27 suggests that it is the duty of
competent modern Muslims to exercise Ijtihad even where there are clear
injunctions in the Quran as long as that Ijtihad does not tamper with the essential
message of Islam.
   Again, the notion of repeal of certain Quranic passages and the prohibition of the
exercise of Ijtihad therein is denied by the writings of Ustadh Mahmoud
Mohammad Taha.28 Ustadh Mahmoud suggests that the Quran and Sunna reveal
two stages of the Islamic message. The first is the earlier Meccan stage and the
 23
      Begum v. Din, supra, n. 3, p. 1152.
 24
      Ibid.
 25
      Abdullahi Ahmed An-Naim, supra, n. 1, Chapter 2, p. 28.
 26
      Ibid.
 27
      Ibid., p. 29.
 28
      Ibid., pp. 52±57.
                                THE ROLE OF IJTIHAD                              119

second is the later Medinan stage. According to Ustadh Mahmoud, the Meccan
stage contains the fundamental message of Islam. This emphasises the dignity of
humans, regardless of race, gender and belief. The fundamental message is also
characterised by the equality between men and women and the complete freedom
of choice in religious matters. Ustadh Mahmoud then goes on to say that when this
message was rejected, the Medina stage was implemented, which was more
appropriate for the conditions prevailing in the seventh century. The crucial point
of this argument is that when the Medina stage was revealed it did not repeal the
earlier Meccan stage. The Meccan stage was not lost as a source of the law but was
suspended until the conditions of the time were appropriate for its implementa-
tion. Ustadh Mahmoud insists that he is right on this point and it would appear
that he is, otherwise the fundamental message of Islam would have been lost
forever after the implementation of the Medinan period. Therefore, the repeal or
abrogation of subsequent texts of the Quran and Sunna revealed in Mecca is not a
permanent fact. It is only suspended until such a time as they can be fully
implemented. This shifting from one text to another is what Ustadh Mahmoud
terms his ``evolutionary approach'' and this shows that the basis of the present day
Shari`a may be suspended and replaced with that of the Meccan period which is
more in line with the needs of today.
   What will be needed, therefore, for this type of approach to be implemented is
for the Muslims in the twentieth century to free themselves from the constriction
of old ideas from the past so that reforms of the type stated above may take place
without the traditional idea that the Shari`a as it stands today is immutable never
to be revised or changed. This is in line with the views of Maulavi Saiyid Amir
Ali29 who also states that ``the elasticity of laws is the greatest test of their
beneficence and usefulness'', and that the ``blight of the Muslim nation is due to
the parasitic doctrine that has prohibited the exercise of individual judgment''. He
urges that freedom from old ideas must be achieved.
   Up until now the discussion has centered on the Sunni tradition. It is worth
comparing and contrasting the Twelver Imami or Shite Tradition (the formal
religion of the Islamic Republic of Iran) as regards legal interpretation. Both
traditions agree that the sources used in deriving legal principles are the Quran and
Sunna. Both communities believe in an infallible source of truth after the death of
the Prophet although they differ as to what this is. The Sunni tradition believes
that the infallible source of truth is the consensus of the community of Muslims
which as Weiss30 points out is made up of the earlier generations of Muslims
especially the Prophet's companions. However, for the Shite Muslims the
continuing source of truth is to be found in the Twelve infallible Imams,
descended in direct line from the Prophet. The paramount role of the Imam in the
Shia theory is really the fundamental difference between them and the Sunnis.
The importance of this role then obscures the concepts of ijma and Ijtihad because

 29
      Amir Ali Maulavi Saiyid, The Spirit of Islam, London, 1922, pp. 230±231.
 30
      Bernard G. Weiss, supra, n. 17, p. 210.
120                             ARAB LAW QUARTERLY


to allow an individual jurist the authority to derive principles from the Quran
would be to undermine the Imam's position as the spiritual link between
humankind and God and his position as the executor of the law. The Imam's
pronouncements are always correct regardless of whether they are included in the
consensus or not and so the importance of consensus is not as important to the
Shite tradition as it is to the Sunni community. The next difference between the
traditions is their stance taken on the use of human intuition as an independent
source of law. Sunnis do not recognise intuition regarding the human intellect
without divine revelation as capable of distinguishing right from wrong. However,
the Shia believe that divine revelation and command are compatible with human
intuition, although human intuition is not held to be totally capable of formulating
the requirements of the divine law especially in the area of worship. The third
difference is the placing of greater emphasis by the Shia on knowledge than do the
Sunnis. This is because of the fact that intuition is recognised as a source of law so
the Shia regard legal knowledge as more within the reach of man. This is not the
case in the Sunni tradition. Weiss31 shows us that the Shia has a functional bond
between the sacred texts and rational intuition which helps to safeguard against
uncertainty. Unlike the Sunni tradition the emphasis of the role of the Imam in the
Shia tradition also opens up another source of truth in that the word of the Imam is
verifiable and written down rather like the Sunna of the Prophet Mohammad and
indeed is written into a more comprehensive Sunna than that of the Prophet. This
is in contrast to the Sunni notion of consensus which is by its definition vague and
totally separate from the Sunna of the Prophet. Therefore, the Shia tradition
actually recognises more sources of the law than do the Sunnis and they also allow
a greater capacity for the human intellect to formulate legal knowledge. However,
although the Shia may attach a greater importance to human intellect than do the
Sunni, the idea of the one legal school is rigorously upheld and a plurality of legal
schools is not found as it is in Sunni Islam. Finally, the Shia reject the notion of
interpretation by analogy not allowing the jurists' opinion to go beyond the actual
meaning found within the texts.
   It is worth mentioning at this stage the controversy surrounding the usage of
Ijtihad. Scholars have assumed that the ``gate of Ijtihad'' was closed somewhere in
the fourth century of the Hijra or AD 900 and therefore cannot be used as such to
bring about modern legal reforms in today's world. However, this assumption
cannot be true as scholars such as Hallaq32 have demonstrated that Ijtihad was
neither abandoned in theory or in practice. The fact that Ijtihad can and has been
used to effect modern legal reforms within the Muslim world also refutes this
assumption that Ijtihad is now defunct and will be discussed later.
   Schacht33 describes the process of the demise of independent reasoning by
saying that at the time of the fourth century, the scholars of the schools felt that all
essential questions had been adequately discussed, answered and settled. He then
 31
      Ibid., p. 211.
 32
      Wael B. Hallaq, supra, n.7.
 33
      Joseph Schacht, supra, n. 5, Chapter 10, pp. 70±71.
                               THE ROLE OF IJTIHAD                                            121

goes on to say that a consensus resulted whereby from that time onwards no one
would have the necessary qualifications to practice Ijtihad. Thus all future legal
endeavour would be restricted to the interpretation of the doctrine as it had already
been laid down. Schacht, goes on to say that the practice of taqlid or blind
adherence to the doctrines of the established schools was now practised. Still other
scholars have blindly accepted this point of view and have assumed that the
practice of Ijtihad became largely defunct by the end of the fourth century Hijra.
However, the opponents of this view challenge the notion of such a closure of the
gate of Ijtihad, saying either that the gate was not closed tightly (e.g., Leon
Ostrorog34 and H.A.R. Gibb35) or that the gate was in fact never closed at all
(Hallaq36). Hallaq37 gives a comprehensive account for the existence of Ijtihad
through the centuries saying that Ijtihad was an indispensable tool for legal theory
through which the jurists could determine the conduct acceptable to Allah. He
explains that the qualifications specified for a jurist to practice Ijtihad were easier
to meet than other scholars have previously thought. He also describes how the
practice of Ijtihad was seen as a religious duty and how individuals who opposed
the use of Ijtihad were finally excluded from Sunni Islam.
   It is clear from Hallaq's description of the true state of Ijtihad that it can be used
to bring about modern legal reform in the Muslim world. Many countries under
the pressure of human rights organisations, the international community and
leaders, concerned about their grip on power in their own countries, have brought
about reform. Whilst recognising that reforms must take place they have sought to
make them palatable to as many people as possible taking special care not to
alienate the religious sector of their communities.
   The next part of this article demonstrates how Ijtihad has been used to bring
about lasting reforms in a variety of countries, such as Sudan, Egypt, Iraq, Syria
and Tunisia, as well as reforms in the Personal Status law of the non±Sunnite sects
in the region. Two cases from the Indian subcontinent will also be discussed as the
judges' ruling in both cases demonstrate Ijtihad and underline its importance for
reform in the legal system.


HOW CAN IJTIHAD BE USED TO BRING ABOUT MODERN LEGAL
                     REFORMS IN THE MUSLIM WORLD?


In 1898 Mohammad Abduh38 advocated the need for fresh reinterpretation of the
principles found in the divine revelation as the basis for legal reforms. Abduh also
argued that Ijtihad was not only the right of modern day jurists but the only way

   34
      Count Leon Ostrorog, 1927, ``The Angora Reforms'', in Sumbul Ali-Karamali and Fiona Dunne,
``The Ijtihad Controversy'', Unpublished, SOAS, 1993, p. 5.
   35
      H.A.R. Gibb, 1932, ``Whither Islam?'', London, p. 67 in Sumbul Ali-Karamali and Fiona Dunne,
``The Ijtihad Controversy'', Unpublished, SOAS, 1993, p. 6.
   36
      Wael B. Hallaq, supra, n. 7, Chapter 1, p. 10.
   37
      Ibid.
   38
      N.J. Coulson, A History of Islamic Law, Edinburgh University Press, 1964, Chapter 14, p. 202.
122                       ARAB LAW QUARTERLY


by which Islam could adapt itself to the needs of today's society. Abduh's ideas
represented a break with the traditional idea of the immutability of the Shari`a as it
stood and naturally the advocates of the old legal tradition opposed these
revolutionary ideas. However, the issue at stake then and today is that of the clash
between conservative and progressive opinion. The traditional ideas hold a great
deal of sway and because of this reforms have been few and far between. In the
l950s modernist views were actually formulated into practice, the result of which
was that the interpretations of the classical jurists were ignored and the injunctions
of the Quran and Sunna were construed afresh in the light of the demands of the
society. Because of the implications of and the resistance to recognising Ijtihad as a
basis of legal reform, a number of methods have been employed that represent a
sort of halfway house between Ijtihad and Taqlid.
  The 1946 Egyptian Law of Testamentary Dispositions represents what
Coulson39 terms quasi-Ijtihad. The traditional law of inheritance made no
provision for orphaned grandchildren if there was a surviving son of the deceased.
The reformers in Egypt considered this to be a defect in the inheritance law as it
stood so they set out to reform the rule of obligatory bequests. The 1946 Law
provided that orphaned grandchildren of the deceased, regardless of whether there
was a surviving son of the deceased, were entitled to the share that their parent
would have had had they been alive, provided that the grandchildren in question
had not received such an amount as a gift or a bequest from the propositus. The
share in question where necessary was cut down to one third of the estate which is
the recognised limit for testamentary dispositions. This system was also
introduced in Syria, 1953, Tunisia, 1957 and Morocco, 1958. However, in the
Syrian and Moroccan Codes this rule is confined only to the issue of the deceased
son and not to the issue of the deceased daughter, and so are limited in their scope
for reform. How did the reformers in Egypt bring such a reform about?
  First, individual jurists had disagreed with the majority opinion that the Quranic
injunction making bequests to near relatives was abrogated by the rules of intestate
succession which were later formulated. Ash-Shafei was of the opinion that it was
morally correct to make bequests to those that were not legal heirs but were close
relatives, and Zahiri Ibn Hazm considered this obligatory. The reformers then
combined their own interpretation of the Quran with that of the traditional
authorities specifying who those near relatives were to be. This reform represents a
quasi-Ijtihad in that the reformers whilst reforming the law of intestate succession
by interpreting the spirit of the Quran anew did not break completely with past
authorities. However, it is interesting to note that as time went by and there was no
evidence from the traditional authorities to support the new rules, the reformers
began to assert that their ideas were based on a new interpretation of the original
sources of the Shari`a law not from the traditional authorities. This is an
interesting point that Coulson40 makes here. If two of the original sources of the

 39
      Ibid., p. 203.
 40
      Ibid., p. 206.
                              THE ROLE OF IJTIHAD                                        123

Shari`a law are to be the Quran and the Sunna as indeed they must, then in my
opinion it is clear that even as early as 1947 the idea that fresh interpretation of the
Quran and Sunna, without reliance on the traditional jurists of the classical period
or the traditional Shari`a, could be postulated, albeit in a very cloaked manner, and
this is very much in line with the thesis of An-Naim41 that in order for an Islamic
reformation to come about and to be a viable alternative for the governance of the
Muslim world, the Shari`a, as it stands today, must be reformulated from the
original texts from whence it came to make a ``new Shari`a'' suitable for the
demands of life in the twentieth century.
   The second area of reform that drew the reformer's attention was the area of
polygamy and the right of the husband to unilaterally repudiate his wife. The
Syrian Law of Personal Status, 195342 was the first country to remedy the situation
by using Ijtihad. The Quran stipulates that a husband, if he feels he cannot deal
fairly with more than one wife or is not financially capable of maintaining more
than one wife, should only take one. This excerpt from the Quran had always been
seen as a moral injunction rather than as a legal one. However, the Syrian
reformers maintained that the Quranic stipulation should be seen as a legal
condition and should be enforced by the courts to make sure that abuses would not
be allowed to continue. Article l7 of the Syrian Law stipulates that the qadi may
withhold his permission for a man to marry a second time if he is not in a position
to support both wives. However, Article 17 was rendered less powerful by the
subsequent provision that a second marriage in contravention to the above article
was not invalid. However, the parties who did such a thing were liable for penalties
and the court would not recognise the marriage in the case of judicial relief unless
children had been born or if the wife was clearly pregnant.
   In the area of unilateral repudiation or talaq, the Syrian Law introduced a bold
step. The Syrian Law provided that in the case of a repudiation without just cause,
the wife might be awarded compensation from the husband to the effect of one
years maintenance. This reform was brought about by the verses in the Quran that
enjoined husbands, firstly, to make fair provision for wives who had been
repudiated, and secondly, to keep them in kindness or release them with
consideration. Although the Syrian reforms of 1953 were not as great as desired
and do not absolutely forbid a husband marrying a second time even if he did so in
contravention of Article 17, the reforms in Syria of 1953 demonstrate for the first
time a change in the juristic basis on which these reforms were founded. For the
first time fresh interpretation of the relevant Quranic verses marked a significant
point in departure from the legal tradition considered acceptable and followed up
to this point.
   Following the Syrian example, the Tunisian Law of Personal Status, 195743
went somewhat further in their use of Ijtihad to bring about legal reforms. The

  41
     Abdullahi Ahmed An-Naim, supra, n. 1, Chapter 1, p. 10.
  42
     J.N.D. Anderson, ``The Modernisation of Islamic Law in the Sudan'', Sudan Law Journal and
Reports, 1960, p. 306.
  43
     N.J. Coulson, supra, n. 38, Chapter 14, p. 210.
124                              ARAB LAW QUARTERLY


Tunisian reformers, following the arguments put forward by Mohammad Abduh
previously, pointed out that in addition to the stipulation that the husband must be
financially able to support many wives, they also pointed to the Quranic verse that
says that the husband must treat all his wives equally and with complete
impartiality. The reformers said that these two injunctions were not just moral
injunctions but were legally binding and so no husband could marry polygamously
unless there was evidence that he could deal impartially with all his wives. The
reformers underlined that in the present social and economic conditions, to
maintain and to treat impartially many wives was no longer possible, the
presumption being that the essential conditions for allowing polygamy were
incapable of fulfilment. So, polygamy was abolished altogether. The Tunisian's
also used Ijtihad to reform the area of unilateral repudiation. In the case of discord
between two spouses, the Quran orders that arbiters be appointed for the parties in
question to try to reconcile the couple. The Maliki school had been the only ones
to implement this in their school of law by providing that the wife had recourse to
bring charges of cruelty against the husband. The reformers argued that a source
of cruelty and discord between two parties would be the pronouncement of
repudiation. They then argued that the arbitration should take place in a court of
law with lawyers as the arbiters stipulated in the Quran. The result of this Ijtihad
was that the right of the husband to unilaterally repudiate his wife extra judicially
was abolished. This is embodied in Section 30 of the Law of Personal Status, 1957.
The striking thing about this Law is that the court is unlimited in its power to
grant compensation to the wife for any damage she has endured due to the divorce,
and secondly, that both parties are treated equally, for example, if the wife wants a
divorce but does not state her reasons then the court is able to award compensation
to the husband. However radical the juristic basis for legal reform in Syria and
Tunisia were, most countries in the Muslim world prefer to practice taqlid using
Ijtihad only when the practice of taqlid cannot bring about the desired reforms.
For example, the Moroccan Code of 195844 prohibits polygamy where there is
unequal treatment but can only give relief by dissolving the marriage retro-
spectively. In this way the Moroccan Code does not really go outside orthodox
Maliki practice. Again, in Iraq, the Personal Status Law, 195945 provides that the
qadi will not give permission for a man to marry polygamously if he is not satisfied
that the husband has the means to do so and if there is no real lawful gain to be had
by marrying in such a way. However, the 1959 Iraqi Law falls short in making any
significant reforms in this area because although a husband should go to court to
repudiate his wife, the 1959 Law still recognises any unilateral repudiations that
occur out of court as valid and binding.
   Whilst recognising unilateral talaq as a legitimate process for divorce, Pakistan,
under the Muslim Family Laws Ordinance, 1961, stipulates, under Article 7 of the
said Act that after repudiation the husband must inform the Union Council of the

 44
      Ibid., p. 212.
 45
      Y. Linant de Bellefonds, ``Statut Personnel Irakien, 1959'', Studica Islamica, 1960, vol. 13, p. 87.
                              THE ROLE OF IJTIHAD                                         125

repudiation, whereupon arbiters are appointed to try to reconcile the couple. In the
event of a failure to reconcile the parties, the couple must wait a further 90 days
before the divorce is effective. If the husband fails to comply with Article 7 he
could suffer a fine, imprisonment or both. Under this Act the divorce is only
effective if the husband reports it and the wife must also be given notice of the
divorce. This procedure was to be applied to any divorce however it was pronounced
and so nullified the various types of repudiation known under the traditional Shari`a
law. However, although this reform in Pakistan represented an advance, the 1961
Ordinance still left the husband's right of unilateral repudiation relatively intact. The
mechanisms by which the above reform was effected were different to those reforms
previously discussed in the Arab world. Instead of a conscious reinterpretation of the
original sources of the law as practised in the Arab world the Pakistani reforms base
the need to reform polygamy on social desirability rather than on the Quranic verses
of financial capacity and impartial treatment between wives.
   With regard to legal reforms in Sudan, Anderson46 states that the best example
of Ijtihad in the legal reform of that country is the limitation of the period of
gestation to one solar year maximum. However, Anderson mentions that this point
has been enforced by the mechanism of denying judicial relief to other claims
rather than making any attempts to amend the substantive law as it stands. In fact,
in Sudan it is clear that many of the law reforms in the country preferred to derive
their authority for reforms from dicta in the past rather than from contemporary
deduction of the sources of law.
   For the non±Sunnite sects in Islam, there is theoretically less of a problem for
reforming various laws as they have never accepted the concept of taqlid. The
sharpest contrast to the dilemma that the Sunni schools find themselves in when
embarking on reform are the reforms effected for the Ismaili communities living
outside India. Any changes for this community rest on the supreme authority of
the Aga Khan and as such require no juristic base other than that of his will to
bring about reforms. In this fashion the prohibition of marriages of persons below
the age of 18 for boys and 16 for girls was introduced.
   Perhaps one of the most striking examples of Ijtihad in the modern Sunnite
world comes from Bangladesh. In Rahman v. Begum and other47 the High Court
Judge opined that the obligation on a Muslim husband to maintain his divorced
wife does not stop at the end of Iddah period, as is traditional, but that he is
obliged to maintain her beyond this period indefinitely or until she remarries. This
case is an excellent example of modern day Ijtihad. The Judge concluded that the
civil court had the jurisdiction to follow the law as set out in the Quran
disregarding any subsequent law even if it emanated from the early jurists and had
been followed for a great period of time. The Judge then considered the Quranic
verse No. 241 of Sura al-Baqarah48 and found that divorced women are allowed to

  46
     J.N.D. Anderson, supra, n. 42, p. 305.
  47
     Rahman v. Begum and other, supra, n. 2, pp. 34±37.
  48
     Abdullah Yusef Ali, The Meaning of the Holy Quran, Quranic Verse No. 241, Sura al-Baqarah,
1937, pp. 98±99.
126                            ARAB LAW QUARTERLY


have ``household stuff, utensils, goods and chattels'', and that she must also be
provided for ``on a reasonable scale''. He then went on to state that the Arabic
word, ``Maaroof'' may mean ``recognised'' instead of ``reasonable'', reasoning that
this meaning was to be considered with regard to the amount of maintenance not to
the actual time period of maintenance. The Judge concluded, therefore, that the
husband in question had to maintain his wife indefinitely or until she lost her
status as a divorced woman by remarrying, and that he had to maintain his son
until he attained the age of majority.
   Begum v. Din49 in Pakistan supports the views of the judge in the above case.
Judge Mohammad Shafei, was of the opinion that: ``Reading and understanding
the Quran implies the interpretation of it and the interpretation in its turn includes
the application of it which must be in the light of the existing circumstances and
the changing needs of the world''.50 The judge clearly recognises that Ijtihad must
play a vital role in giving to Islamic law a vitality necessary for the Islamic message
to remain applicable as society changes through the ages. He is totally against
restricting interpretation of the sacred texts to the time of the early jurists as he
states that this will cause the religion to stagnate and become a religion restricted to
where and whence it was revealed. The judge calls for Muslims to ``awake out of
their slumber''51 and in order for the general principles of the Quran to be applied
he calls for the intelligent interpretation of the Quranic text so that it may be
applied in such a way that is best suited for the people, the country and the times in
which they live. His final statement: ``All Muslims then have to listen, learn and
interpret the Quran''52 is a radical departure from the doctrine of taqlid and the
traditional practice of it by Muslims. Both cases above represent what can be
achieved in order to safeguard the rights of women against abuses rife in the
traditional Shari`a if Ijtihad is applied.
   As has been demonstrated above Ijtihad has been used as a legal vehicle for
lasting reform within the Muslim world. However, it is clear that whilst reforms
have been effected, many countries still wish to obscure the fact that the juristic
basis of the reform in question has been altered away from traditional reliance on
the jurists, for example in Sudan. Other countries, for example, Morocco, whilst
wishing to adopt reforms, have hardly deviated from the traditional doctrine of the
school followed in that country. The Tunisian example is the most radical and
lasting of the reforms using Ijtihad in the modern world today. However, this
reform was not brought about by a bottom up demand, rather it was brought about
by a top down process imposed by the President of the time. That the President
was careful to provide religious legitimacy for the proposed reforms demonstrates
a keen knowledge of the religio-political events of the time.
   That the reforms stayed as legislation shows the nature of the political regimes
                                                                                 Â
that introduced them. Ijtihad therefore has moved away, certainly in the Tunisian

 49
      Begum v. Din, supra, n. 3, pp. 1142±1178.
 50
      Ibid., p. 1153.
 51
      Ibid.
 52
      Ibid., p. 1154.
                                THE ROLE OF IJTIHAD                               127

example, from being the right of the Mujtahids to derive legal principles from the
sacred texts where no analogous ruling had been determined before, to a simple
device which modifies clear injunctions in the Quran and Sunna to bring about
reform in turn fitting the political aspirations of the countries' leaders. The
striving and intense self exertion of the real nature of Ijtihad and the willingness to
actually claim Ijtihad is somewhat lacking in these examples. At the theoretical
level this form of Ijtihad engaged in by reformers is opposed by strict theorists on
the grounds that this type of Ijtihad is not an objective endeavour as it should be.
This type of Ijtihad is therefore only used as a legitimising agent for such reforms,
the results and limits of which fit a preconceived standard which usually coincides
with the aspirations of the political community in power. However, to counter this
argument we must consider that even in the classical law the law was formulated
from the sacred texts in the light of the prevailing social conditions of the time, and
the view taken in Begum v. Din53 in Pakistan and in Rahman v. Begum and other54
in Bangladesh reflects modernist thinking. Modernist reforms using Ijtihad which
elevate Quranic injunctions, previously held only as moral injunctions, to a legal
status are acknowledging and emphasising the importance of Quranic precepts to
bring about reforms that are in harmony with the identity of Muslim people, the
identity of whom is not reflected in the traditional texts or in embracing
secularism.
   That Ijtihad can and has been used to enact legislation and to derive novel
rulings for contemporary cases is clear from the above examples. However, what is
the real nature of the role that Ijtihad can play, and is the application of Ijtihad on
its own sufficient to bring about modern reforms in today's context? The final part
of this article deals with these questions and also asks if a combination of Ijtihad
and naskh may better succeed where perhaps Ijtihad by itself might fail.


                                       CONCLUSION

Ijtihad has been used to effect legal reforms in many countries in the Muslim
world. However, what is also clear is that Ijtihad has been used as a legitimising
factor for reforms and has been used as such by the reformers ever conscious of the
need to appease the religious sectors of their communities. The 1946 Egyptian
Law of Testamentary Dispositions used Ijtihad to reform the area of intestate
succession. However, the Law has actually used a feature of the Shia law of
succession called succession per stirpes which allows orphaned grandchildren to
inherit the share that their own parent (had they been alive) would have inherited.
The Egyptians did make a veiled reference to the Ithna Asharite view but they did
not explicitly state it because the adoption of legal principles from a heterodox sect
is not considered an acceptable basis for legal reform for Sunni jurists. The Iraqi

 53
      Ibid.
 54
      Rahman v. Begum and other, supra, n. 2, pp. 34±37.
128                             ARAB LAW QUARTERLY


Personal Status Code of 1959, also totally reformed the law of succession through
the adoption of Shia principles although they did not explicitly state that they had
done so. Iraq has a large population of Shia Muslims, thus making it somewhat
easier to adopt such principles. However, in the rest of the Muslim world this way
of bringing about reform is not acceptable to the traditional Sunni authorities. The
radical reform in Tunisian law of the law of succession provides that ``any lineal
descendant of the deceased, male or female, excludes the deceased's collateral
relatives from intestate succession; for under the agnatic system of traditional
Sunnite law the brothers of the deceased, in the absence of any surviving male
ascendant or descendant, are the primary residuary heirs''.55 Coulson56 points out
that it can be forcefully argued that this provision implements the spirit of the
Quran as the Prophet Mohammad introduced reforms that looked to replace the
tribal system with the individuals' family. However, in contrast to their use of
Ijtihad to bring about reforms in the areas of polygamy and unilateral talaq, the
Tunisians, in this case, made no attempt to use Ijtihad, simply stating that the
reform was needed by society. As seen above this is what happened in Pakistan in
the Muslim Family Laws Ordinance, 1961. Both the Tunisian reform of the law of
succession and the Pakistan reform of the Personal Status Law stand in direct
opposition to the 1946 Egyptian Law of Testamentary Dispositions which did find
a way to reform based on traditional authorities and the use of quasi±Ijtihad.
   However, what is evident is that although the reforms regarding polygamy and
unilateral talaq reformed the existing system from the reformers interpretations of
specific Quranic verses, the methodology of reform for the law of succession is
based on a very different concept of Ijtihad. The reformers approach in this case
seems to be more of a piecemeal answer to existing problems in the Shari`a rather
than as a step towards creating a legal structure capable of handling areas such as
the law of succession. The reformers have lacked any consistency in the way they
have brought about reforms and have failed to provide a legal structure which is
capable of coping with the legal demands placed on it by contemporary society.
   It is clear from what has preceded that Ijtihad shows promise in its ability to
effect legal reforms although it does so at a largely peripheral level. What is really
needed to address the problem is an overhaul of the whole legal structure, i.e., a
changing of the foundations of the traditional Shari`a. There are however, certain
problems to be overcome in that Muslims are reluctant to use Ijtihad to reinterpret
the Quran and the Sunna as it was practised in the early days after the death of the
Prophet Mohammad. In theory therefore, Ijtihad as a mechanism for legal reform
seems to have the appropriate qualifications but in practice it is limited by
Muslims present inability to break free of the idea that the Shari`a as it stands is
immutable and may not be tampered with. The ``peripheral role'' of Ijtihad in
today's practice is furthered by the way that Ijtihad is applied to effect desired
reforms, as opposed to how in strict theory it should be applied. Furthermore,

 55
      N.J. Coulson, supra, n. 38, pp. 219±220.
 56
      Ibid., p.220.
                               THE ROLE OF IJTIHAD                                129

there is the problem of when Ijtihad may be used. The discussion has so far
determined that although the traditional authorities forbade Ijtihad where there
were clear injunctions in the Quran and Sunna, classical examples have shown
otherwise (e.g., Caliphs Umar and Ali). It is suggested in this article therefore, that
Caliphs Umar and Ali's examples provide initial support for the practice of Ijtihad
even in the presence of clear Quranic and Sunnaic injunctions.
   As I have stated above Ijtihad at the present time is used in a largely peripheral
manner and cannot be used in any other way, and unless there is a complete
overhaul of the legal system and its present juristic basis, Ijtihad will always be
relegated to a peripheral role.
   However, if Ijtihad is to be reused properly even within a new Islamic
framework to effect modern legal reforms then as An-Naim 57 suggests, Ijtihad
will have to be modified and the traditional Shari`a disbanded. He argues that
proponents of the view that Ijtihad is sufficient to bring about reforms under the
present Shari`a are engaging in wishful thinking as Ijtihad in its traditional
conception is restricted only to the interpretation of the sacred texts where there
are no clear injunctions in the Quran and Sunna, which obviously confines the
practice of Ijtihad within the bounds of the traditional Shari`a. An-Naim calls for
the disbanding of the traditional Shari`a and a new one to be implemented and
that Ijtihad needs to be freed from the limitations imposed on it previously. The
suggestion which allows Ijtihad to be used in the presence of clear Quranic
injunctions as well as in the absence goes some way in providing for an
appropriate reformulation of Islamic law in keeping with the arguments put
forward here.
   If Ijtihad is to be reformulated to allow for the reinterpretation of the sacred
texts regardless of the presence or absence of clear injunctions, then the question
remains is this enough to bring about the necessary reforms? Will Ijtihad be given
a central role as a reform mechanism? Are Muslims ready for such a radical break
with past tradition? Will the reformers be allowed to apply it to effect legal reform,
and, finally, which verses of the Quran are to be applied to the demands of today?
   A break with tradition is always traumatic and the reluctance of many Muslims
to perceive anything other than heresy in rejecting taqlid and the Shari`a as it
stands today can lead some to the persecution of those like Mahmoud Taha who
gave his life for his pacifist ideas for the evolution of Islamic law. However, to the
exclusion of any new ideas radical sections such as the Muslim Brotherhood in
Egypt and in Sudan, who call for the complete implementation of the historical
Shari`a in their respective countries, have shown only that imposition of the
traditional Shari`a to the exclusion of any new ideas often results in violence,
persecution, intolerance and bloodshed. The recent experiments in Sudan,
Pakistan and Iran are testimony to this. The thesis of Hassan al-Turabi, the
leader of the Islamic National Front in Sudan is a good example of how the
proponents of the return to the historical Shari`a do not address the specific

 57
      Abdullah Ahmed An-Naim, supra, n. 1, Chapter 2, p. 28.
130                        ARAB LAW QUARTERLY


problems facing the Muslim world today. An-Naim58 points out that on such
issues al-Turabi's thesis fails to specify what type of reforms are needed and how
they are to be achieved. His thesis rests on no actual authority found in the Quran
or Sunna for his assertions. On the question of how non±Muslims would be treated
if the Shari`a was implemented, al-Turabi's comments are misleading. He gives
the sense that non±Muslims would have a choice, for example, in the public law
imposed on them when in fact the traditional Shari`a allows no such thing. His
ideas on the treatment of women under the Shari`a are at best vague and his
assertions amount to an evasion of the issue. With the very real danger of such
people coming to power in Muslim countries and the dim consequences that this
will have on many people, it is extremely important to find a way to provide a
humanitarian form of governance that is acceptable for Muslims.
   From an analysis of the role of Ijtihad and the call for Islamic reformation, it
seems that although Ijtihad must be allowed to play a role in deriving laws
acceptable to Allah for the daily lives of Muslims, Ijtihad as it is conceived today
must undergo a reformulation and modification and be used to build up, from the
Quranic Verses, a new body of laws suitable for the demands of today's society. A
combination of the procedure of Naskh (abrogation) and Ijtihad to reinterpret
previously abrogated verses, namely from the Meccan period, goes some way to
building from the same sources of the law a new legal structure which has
something to say about life in the twentieth century but which remains within the
Islamic framework.
   The most suitable method in my opinion is the combination of the approach of
Ustadh Mahmoud Mohammad Taha59 with the reinterpretation of the revived
verses. Ustadh Mahmoud's evolutionary approach advocates shifting the juristic
basis of Islamic law from their current foundations on a particular set of texts to
another class of texts to provide a new Quranic base, for the restructuring of the
law within an Islamic framework that is as advanced as the level of human
development at this time. Ustadh Mahmoud proposed to revive the earlier texts of
the Meccan period which had been abrogated by those preceding them to build
from them a modern basis of Islamic law. In this manner the explicit texts
constraining the rights of women and minority groups as well as compulsion in
Islam are set aside leaving the essential equalitarian message of Islam which
advocates equality for all human beings regardless of race, gender or religion as the
basis for a new departure for Islamic law. If this evolutionary approach is put into
practice then Ijtihad may then be used to interpret the revived verses restoring it
through some modification to a central role in the formulation of Islamic law. This
reformulation represents a new departure for the Islamic message as it matures and
advances away from the somewhat primitive framework that was suitable in the
early centuries of Islam to a framework that is compatible with concepts such as

 58
    Ibid., pp. 38±42.
 59
    Mahmoud Mohammad Taha, The Second Message of Islam, Syracuse University Press, 1987,
Chapter 7, pp. 165±172.
                           THE ROLE OF IJTIHAD                                    131

equality between all humans, constitutionalism, and democratic forms of
governance.
   We have seen, in this article how Ijtihad was employed in the first centuries of
Islam to build up a body of laws suitable to govern the early community of
Muslims. We have also seen how Ijtihad has again been employed in this century
to bring about reforms for the present community of Muslims. However, Ijtihad
by itself within the traditional Shari`a framework is not sufficient to bring about
the lasting reforms or to solve all the problems facing Muslim countries today. In
conclusion, therefore, I believe that if Ijtihad continues to be used as a legitimising
agent as opposed to a central mechanism of reform it will never attain its position
as one of the central foundations of juristic reform. However, Ijtihad may regain its
core position if the evolutionary approach postulated by Ustadh Mahmoud
Mohammed Taha is adopted. If the classical examples of the Caliphs Umar and
Ali on using Ijtihad in the presence of clear injunctions in the Quran and Sunna are
also accepted then the evolutionary approach combined with the modified version
of Ijtihad may be used to interpret the ``new'' texts together constituting the
foundations for a new and modern Islamic law.

				
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