By Mohammad Hashim Kamali

There are two sources of shari'a (Islamic law): revealed and non-revealed. The revealed sources of Islamic law are the Qur’an and hadith (traditions of the Prophet Muhammad and his companions), whereas the non-revealed sources consist of rationality and ijtihad. Since the revelation of the Qur’an and prophetic hadith both ended with the death of Muhammad (pbuh), ijtihad assumes a vital role in the interpretation of these sources so that Islamic law keeps pace with the changing needs of society. Due to a variety of factors, ijtihad has fallen short of playing this role effectively and there is now a need for certain adjustments in the definition and methodology of ijtihad.

Ijtihad means striving or exertion by a competent scholar who is capable of deducing a rule of law from the Qur’an and hadith in response to a new issue. This activity normally requires inquiry and research into the text, rationale and objectives of the Qur’an and hadith. In the event that there is no clear evidence in these sources concerning the new issue, ijtihad may be carried out, according to a specific methodology based on the general principles of Islamic law, in order to form a new opinion. The methodology of ijtihad is developed in the science of the sources, the usul al-fiqh, which articulates rules of interpretation and a number of rational formulae for ijtihad. These include analogical reasoning, considerations of public interest, and the accepted custom of society.

The one conducting ijtihad must be knowledgeable of the sources of Islamic law and also know Arabic in order to consult the Qur’an directly. He or she must be an upright person who is well-informed about the conditions of society, with the intellectual capacity to formulate independent opinion and judgement. Ijtihad has historically remained a concern of the private jurist and no procedure was designed to institutionalise it or to identify its function within the state. Identifying a jurist and the role ijtihad might play in the legislative processes of a modern government remain unresolved issues. The current practice whereby parliamentary legislation and statutory codes regulate government action was not envisaged in the classical theory of ijtihad, which was articulated long before the advent of the nation state.

Until about 1500 CE, Muslim scholars were able to use the aforementioned processes of ijtihad to continually adapt in the face of changing conditions and new advances in knowledge. Unfortunately, about four centuries ago, as Muslim civilisation began to weaken in the face of Western advances, Muslims adopted a more conservative stance and became defensive of prevailing values. Innovation and renewal were discouraged and ijtihad declined as a result.

Ijtihad in modern times occurs in three forms: through governmental legislation; in the form of fatwas (legal opinions) and judicial decisions by Islamic judges or fatwa committees; and through scholarly writings. Modern society often presents a more challenging prospect for ijtihad compared to its medieval counterpart when issues pertaining to marriage, divorce, property and inheritance, for example, were more predictable due to the slower pace of social change. The unprecedented diversity and scope of knowledge today make it impossible for any one person to acquire the mastery of all the disciplines relevant to ijtihad. Hence, it becomes necessary to turn ijtihad into a consultative process that utilises the skills not only of jurists of Islamic law but also of experts in other disciplines with vital importance to society, such as science, technology, economics and medicine.

In addition to addressing some of society’s needs, collective ijtihad may also build a greater spirit of unity and consensus among Muslims. Although ijtihad often served, in the past, to widen the scope of disagreement more than to bring about unity and consensus, there is a great need now for unity on issues that could be addressed more effectively through ‘collective’ ijtihad and legislation.

Issues that call for attention include leadership, methods of succession, democracy, accountable governance and a resolute rejection of dictatorship. Although the twentieth century witnessed the introduction of reformist legislation on family law and women’s rights, the degree of progress varied from country to country and there remains considerable scope for innovative ijtihad on many issues. Moreover, terrorism by individuals and states and the widespread abuse of jihad all call for fresh ijtihad-oriented and consensus-based solutions. Constitutional rights and liberties, particularly in relation to freedom of religion and freedom of expression, as well as the status of non-Muslims living in Muslim majority countries, also present new challenges that require imaginative ijtihad. A purely secular approach to these issues often fails to enlist public support in Muslim societies. Therein lays the continued relevance of ijtihad, particularly of ‘collective’ ijtihad, in providing solutions that are informed by the Islamic heritage and in encouraging consensus among the Muslim masses.

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* Mohammad Hashim Kamali is Professor of Law at the International Islamic University Malaysia