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,  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.