Iqbal & Ijtehad

[MZN99]

IJTIHAD and IQBAL


The Islamic tradition places great emphasis upon the centrality of

the Holy Law, or shari'a, in the good life. At the same time, it affirms

with equal emphasis that the Holy Law is not given to man ready-made,

to be passively received and applied; rather, it is to be actively

constructed on the basis of those sacred texts which are its acknowledged

sources. The Holy Law is the totality of rules which God has laid

down for the governing of Man's behavior; it is the aggregate of ahkam-i-

shariya. Though ordained by God, few of these rules have been precisely

spelled out for man's convenience; rather, man has the duty to

derive them from their sources. In the standard Islamic metaphor, the

rules themselves are "branches" (furu ') or "fruit" (thamara), which

grow out of "roots" (usul),that is, from the sources. Only the roots are
given; the branches, or fruit, are not-they must be made to appear; and
for this to happen human involvement-we may call it, in keeping with
the above metaphor, human husbandry-is required.

The distinction between law and its sources is carefully maintained
in Islamic jurisprudence. This distinction assumes that the Holy Law,
as the aggregate of divinely-ordained rules, is not entirely self-evident
from the sacred texts. If it were, the sacred texts would not be the
sources of the law, but rather the Law itself; they would constitute a
divinely given code of law. In fact, the sacred texts do not, as a rule,
"state" the Law in a strictly legal sense, in the sense that a code or
similar instrument states law. They do, however, contain the Law.
Because the Law is buried, as it were, within the (legally) imprecise and
sometimes ambiguous language of the sacred texts, it is said to be
extracted from the texts; and it is for this reason that the texts are to be
considered sources of the Law rather than the Law itself.

The process of extracting or deriving (istinbat, istithmar) legal
rules from the sources of the Law is termed, with reference to its character as a human activity,Ijtihad.

Ijtihad literally means "endeavor" or "self-exertion." In legal usage it refers
to the endeavor of a jurist to formulate a rule of law on the basis of evidence (daleel) found in the sources. Ijtihad is contrasted to taqleed, or "imitation," a term which refers to the acceptance of a rule, not on the basis of evidence drawn directly from the sources, but on the authority of other jurists. Essential to the meaning of the term ijtihad is the concept that the endeavor of the jurist involves a total expenditure of effort.

The Holy Quran also introduces the related principle of ijtehad, which is defined as the power to decide a public issue through reasoning and informed judgment. Ijtehad, which literally means "exertion" or "striving," "incorporates the use of rational, logical, and independent opinion." This exertion or striving is necessary due to the fact that all aspects of society are subject to change. This change in turn necessitates changes in social structure and institutions through law.


Ijtihad roughly corresponds to what in Western jurisprudence is
called "interpretation." The two terms are, of course, not exact equivalents,
because their lexical meanings are not the same and because
ijtihad includes an activity which is not normally subsumed under
interpretation. Nonetheless, there is a definite correspondence between
the two, for the greater part of the activities entailed in ijtihad are
indeed interpretive activities. To attempt to draw a rule from a recognized
source is tantamount to interpreting the source.

Strictly speaking, it is not the Law as such which is interpreted, but
rather the sources of law. The Law as a topically-organized finished
product consisting of precisely-worded rules is the result of juristic
interpretation; it stands at the end, not at the beginning, of the interpretive
process. Yet it would not be acceptable to speak of those who
interpret the sources as in any sense creating law. It is much more
appropriate to refer to the interpreter as one who discovers the law. The
theory of ijtihid presupposes that the process of producing rules is a
process of elucidating that which is present but yet is not self-evident.
In principle, the Muslim jurist never invents rules; he formulates, or
attempts to formulate, rules which God has already decreed and which
are concealed in the sources. These rules, which constitute the ideal
Law of God, exist objectively above and beyond all juristic endeavor.
The substantive sources from which all rules of law in Islam must
be derived are the Qur'an, the Sunna, or Tradition of the Prophet, and
the Consensus of the Muslim Community.
The Qur'an is the basic scripture of Islam, the verbum dei. The Sunna consists of the inspired sayings and deeds of the Prophet as recorded in a genre of literature known as hadith. Both of these sources are clearly textual in character and are accordingly designated nass (plural: nusus) in Arabic. The Consensus( Ijma') of the Muslim Community may also be regarded as an essentially textual source because it is expressed in the statements of learned
persons (ah1 al-hall wa'l- hqd).
These statements are characterized by a high degree of verbal fixity and must, no less than the Qur'an and Sunna, be subjected to interpretation. The
nusus definitely are sacred texts, because they are the product of divine
inspiration. The Consensus(Ijma'), too, may be regarded as sacred to the extent that it is the product of special divine guidance bestowed upon the
Community, safeguarding it against error. The process of deriving rules
from these sources is thus a process of interpreting texts.
Interpretation of Islamic law, therefore, is exclusively text-oriented.

Islamic law has been called a "jurists' law." This description is apt
if it is used to express the idea that only the jurists are in a position to
discover the Law of God and, having discovered it, to state authoritatively
what that Law is. To the extent that the Law of God may be
found at all in the mundane realm, it is only found in the formulations
of jurists. It is primarily by virtue of the ijtihad of jurists that Islamic law
exists at all as a body of positive rules.It ,however, by no means imply that
these jurists (mujtahideen) have a carte blanche to act on thier whims. The
Sunni jurist declares the will of God as revealed in the sacred texts; he
does not proclaim the dictates of his own intuition.

It must be strongly emphasized that the authority of the Muslim
jurist is derivative in nature: it is derived entirely from the authority of
God. There is no authority vested in the jurist in the sense that his
declarations are automatically accepted as valid. Rather, the authority
of the jurist rests upon the intrinsic validity of what he declares. His
authority is dependent upon the methodology which he employs. What
the jurist declares is authoritative not because it is he who declares it,
but because what he declares has been validly derived from the textual
sources and is therefore an acceptable expression of the Law of God.
Thus, the authority of the jurist emanates from his ijtihad.

There is good reason to believe that the term fiqh, which is usually rendered as "jurisprudence," originally was used much in the same sense as ra'y.
There is no doubt that a great deal of the positive law of Islam stems
from this early ra'y. However, an essential characteristic of Islamic
jurisprudence is that it eventually set aside the relatively unrestricted,
discretionary ra'y in favor of a more constrained, text-oriented approach
to the exposition of law. The text-oriented approach is regarded
as the only true means by which Islamic law historically developed. The
classical Muslim jurist is guided, not by intuition, but by dalll, by
textual evidence. Fiqh, thus, becomes conceptual knowledge rather than intuitive perception.



The Islamic State upholds the Law and enforces
it, but has no right to make law. In the classical Sunni theory of the
caliphate, the ideal caliph was pictured as a qualified jurist; but as such
he was simply first among equals. He certainly had no exclusive right to
expound law or to delegate this function to others. Hierarchically,
jurists intervene between God and the State. The Law of God is empirically
available only in the formulations of jurists. It may not be found
in the enactments of the State nor in the decisions of courts qua decisions
of courts.

Islamic Concept of Ijtehad


Islam has two fundamental principles, jihad and ijtehad. In strict Quranic terminology, Jihad means physical struggle or endeavor against suppression and aggression. It is a defensive war. It is not aggression. Ijtehad means intellectual endeavor to seek the solutions of day to day matters. Ijtehad has been much emphasized in Islam. It is a rational and analytical approach, based on the Quran and on the teachings of the Sunnah, for interpreting religious matters. Time and again the Quran says that its verses are for thinkers. It stresses the exercise of the rational mind. In Sura The Heifer the Quran says: “Do not treat Allah’s signs as a jest, but solemnly rehearse Allah’s favors to you, and the fact that He sent down to you the Book and wisdom, for your instruction.” (2:231). This verse shows that Book and wisdom are prerequisites to keep society on track and a progressive and right path. God has put our brain in our skull not in our ankle. The place of the brain at the top of the human body signifies the value and importance of the mind. The Book has laid down the foundations, but we have to be wise in taking steps to build our lives upon it through the course of time.
The Quran has given us fundamentals but we must interpret these fundamentals wisely in accordance with the spirit of the time in which we live. Suppose a man asks a Muslim Jurist, “can a lady drive a car or fly an airplane”? If the Jurist is retrogressive he will say: No- because in the time of prophet of Islam ladies did not drive a car or fly an airplane. But if the jurist is modern and progressive he will respond: Yes – a lady can do both of these because at the time of prophet these means of transportation were not invented. It is narrated that when the telephone was invented the great jurist of Saudi Arabia said: “we should not use it because it is the voice of Satan.” Here one thing must be mentioned that “Ijtehad” or rational enquiry is not permissible in the clear injunctions. It is only permissible in their relative interpretation. For instance, the five daily prayer times are obligatory in Islam. This means that even all the Muslim clerics and then entire Umma decided through consensus to say prayers only twice a day, this would be regarded as blasphemy. However, itejihad could be used to discuss the method of offering these prayers in differing situations as well as the method of performing other rituals. This is the reason the Quuran lays much stress on the need for rational analysis.
In Sura Al-Imran the Quran says: “And Allah will teach him the Book and wisdom, the Law and the Gospel.” (3:48) This verse is about Jesus Christ. It also shows that not only the Quran but the Bible is also the book of wisdom. Hence wisdom is the foundation stone of the divine building. The Quran in Suras the Women, the Table Spread, Yunus, Yusuf, the Bee, the Israelites, Maryam, the Narration, the Confederates, Saad, the Believer, Gold Adornments, the Iron and the Friday Prayers mentions about the importance of wisdom. Besides the Quran there are so many sayings of the Holy Prophet (PBUH) which stress the need for wisdom and Ijtehad. Once the Holy Prophet (PBUH) said: “The first thing that God created is Intellect.” Once he said that the man who does research in religious matters will be rewarded, but if he reaches the wrong conclusion, he will only have half the reward. When asked by the companions how a man with wrong conclusion can be rewarded, the Prophet responded, he will be rewarded for the effort he made in reaching a conclusion through analytical pursuits. At another occasion, when Harzat Maaz bin Jabal was assigned the duty to go to Yemen to preach Islam, he was instructed to use his mind to resolve the matters after consulting the Quran and the Sunnah. Dr. Allama Iqbal, in his book entitled “The Reconstruction of Religious Thought in Islam,” stresses the need for rational analysis through Ijtehad as well as the need for those called upon to do this analysis to be men of piety, knowledge and truth.
It is very tragic that the doors of Ijtehad have been closed for centuries. Among the Shiites we have Mujtahids (The Jurists) and in the Sunnites we have Muftid (The Jurists) but mostly they are traditionalists who avoid considering modern or new interpretations. On the other hand, some Westernized Muslim scholars having little knowledge of Islam, are totally misinterpreting or misrepresenting Islam in the name of liberalism or modernism. Such unfounded innovation (Bidah) is a serious danger to the purity and integrity of Islam. Islam as a whole is never stale, static or stagnant. It needs neither retrogressive nor so called progressive interpretation. It needs original, real and wise interpretation. There is a saying of the Holy Prophet (PBUH): “All innovation in matters of religion leads to straying, and all straying leads to hell fire.” Here we must bear in mind that derivation and innovation are totally contrary even to any rational or scientific discoveries or deductions. Fundamental Divine principles simply cannot be altered. For instance, the sanctity of the covenant of marriage is what protects the unit of the family and thus the entire fabric of society. This cannot be altered. We can discuss different forms or conditions relating to this sacred covenant can be discussed, but we cannot abandon or dilute this foundational spiritual truth. In America I see so many writers who, in the name of modernity are creating confusion about basic laws and norms of Islam. But some writers are doing service to Islam by raising radical questions and inviting Ijtehad.
Dr. Saleem Ahmed of Honolulu, Hawaii, USA has written a book entitled: “Beyond Veil and Holy War”. In this book he has raised many questions and has answered some of them. He has given a clarion call for Ijtehad. The book deals with the basic Islamic concepts and throws light on practical and rational aspects of Islam. It is a remarkable and marvelous scholarly effort. The man is basically a Geologist but his study of religion places him in the company of researchers. On page 17 of the book he writes: “Being troubled by the actions of some Muslims which I feel may run contrary to the spirit of Islam, I have, in many places, called for Ijtehad, or objective soul-searching by Muslims, to help us differentiate between behaviors that Islam preaches and the practices some Muslims follow. In all such cases, a plea is made for us to “go back to the drawing board” and rethink these practices vis-à-vis the blueprint provided by God Almighty in the Quran.”
Dr. Saleem Ahmed writes that the Quran and Sunnah are the basic sources of Islam. In chapter 3 entitled “Hadeeth – Strengths and Shortcomings” he states that as some of the Hadeeth do not tally with Quran or the practice of the Prophet, they should not be accepted. He does not refute Hadith, rather he points out that although we can find light and guidance in Hadith, we have fragmented into sects who fight each other over our differences in interpretation. It is not the Quran that divides us, but interpretations of Hadith. In this regard, on page 55 he writes: “while the Quran was revealed to Muhammad through Divine inspiration, written during his life, and confirmed by him, Hadeeth are human compilations of Muhammad’s reported sayings and actions, complied some eight to ten generations after he had died and was no longer available to confirm them.”
In Pakistan a rationalist, Ghulam Ahmed Pervaiz, has also written a book discussing the controversies in Hadeeth. Dr. Saleem Ahmed only rejects controversial Hadeeth which cause discords and divisions. Hence he writes: “Thus all kinds of inaccuracies, accidental or intentional, could have occurred.” He rejects the theory of Professor Huntington and writes: “My intent is not to hurt anyone’s feelings but for all of us to move forward collectively as we grope for ways to turn around the foreboding of clash of civilizations in to a congruence of civilizations.” Dr. Saleem Ahmed preaches peace and moderation, and rejects extremism and terrorism. He lays much stress on human rights. In social and matrimonial matters he has given his opinion and has asked the Muslim Jurists to resolve these issues from the Quranic perspective. Besides pure religious matters Dr. Saleem Ahmed discusses International issues such as the politics of Israel and Palestine in a rational way. In my opinion, we need analytical and rational modes and methods to seek and search the real truth of Islam. Both the traditionalist and modernist must be abandoned. We need rationalists and realists for Ijtehad.

According to some Islamic jurists, the authority of ijtehad in the modern Islamic State should lie with the legislative and judiciary bodies of government. One of the founding fathers of the Pakistan Movement, Sir Muhammad Iqbal, advocated this point:
The growth of republican spirit, and the gradual formation of legislative assemblies in Muslim lands constitutes a great step in advance. The transfer of the power of Ijtehad from individual representatives of schools to a Muslim legislative assembly which, in view of the growth of opposing sects, is the only possible form Ijma can take in modern times, will secure contributions to legal discussion from laymen who happen to possess a keen insight into affairs. In this way alone can we stir into activity the dormant spirit of life in our legal system . . .
Modern scholars since Iqbal have utilized the concept of ijtehad to argue that "Muslims are not obligated to find one correct legal interpretation of the Shari'a." Instead, dirough the process of reasoning and informed judgment, "[t]his collective ijtihad . . . constitute[s] the authoritative ijma of the community, the majority of whose members would have a better knowledge of contemporary affairs and modern disciplines, thus allowing the Shari'a to be interpreted in light of new complexities in the world."
In summary, the Holy Quran's principles of consultation, Ijma, and Ijtehad parallel democratic values and add to the democratic tradition of the Islamic world.

Conclusion
Does ijtihad play--or will it play-a meaningful role in the development
of the law in contemporary Islamic society? Is the idea of
Islamic law-a Law of God encompassing every aspect of human lifestill
viable? In most Muslim countries the influence of the traditional
shari'a has been severely diminished as European legal systems have
become increasingly influential. However, the idea of a life wholly
regulated by the will of God is not easily relinquished. Whether Islam
can endure as Islam without Islamic law is yet to be determined. At the
present time, many influential Muslims cannot envision such a possibility.
The considerable number of books which have been written by
Muslim religious scholars in recent years on the theory of law and its
interpretation bears witness to a continuing interest in the shari'a.
Ijtihad may seem to have little effect on actual legal development in
many Muslim countries, but as long as the theory persists, the stage is
always set for a possible reformation of existing law. Whether the
theory would be used to justify existing practice or to reform it is not
important. What is important is that the theory, far from being irrelevant
to legal realities in the Muslim world, is the key to the future of
Islamic law, for it is by virtue of the theory that Islamic law is Islamic.
Obviously, the theory must eventually be related to actual practice, and
for this a renewed ijtihid, resembling in its vigor and zeal the ijtihad of
the earliest centuries of Islam, clearly must be undertaken.