Book: Contemporary Ijtihad limits and controversies

Written from the internal viewpoint of Muslims, this book discusses the resurgence that Islamic law is experiencing in Muslim communities across the world.

This book studies the jurodynamics of Islamic law in evolutionary spatiotemporal contexts. Written from the internal viewpoint of Muslims, the book discusses the resurgence that Islamic law is experiencing in Muslim communities across the world. The internal viewpoint takes for granted the core Islamic belief that the Qur’an and the Prophet’s Sunnah are divine texts, valid all the time and in all places. The universality of Islamic divine texts, however, is not synonymous with natural law articulated in classical Greek and Roman literature, including the works of Plato, Aristotle, and Cicero. While natural law may emanate from reason, intuition, experience, or historical wisdom, the universal law of Islamic divine texts is anchored in faith, a faith neither opposed to reason, intuition, experience, and historical wisdom, nor dependent on any such human construct. From the internal viewpoint, the Qur’an is the Word of God, and the Sunnah is the word of the Prophet. Both sources of law are divine. The Qur’an illuminates the Sunnah, and the Sunnah illuminates the Qur’an. Neither source can be fully understood without the other. Efforts to separate the Qur’an from the Sunnah confuse the purposes of Islamic law.

Contemporary ijtihad refers to efforts that are under way to construct Islamic legal systems and state institutions in the Muslim world. Etymologically, ijtihad and jihad are derived from the same root word, juhd, which means to strive or make an effort. Jihad is striving to propagate the message of Islam and to fight oppression, occupation, and subjugation. Ijtihad is striving, in the realm of law, to solve new legal problems. The exercise of ijtihad, however, presupposes that opiniojurists possess the required knowledge and competence in order to derive new rules of law through reasoning from the original sources, that is, the Qur’an and the Sunnah. Ijtihad, however, is needed only if the Qur’an and the Prophet’s Sunnah are not decisive on particular questions under juristic consideration. Ijtihad cannot be used to undermine or modify the Qur’an or the Prophet’s Sunnah. Contemporary ijtihad, however, is more than deductive in nature. It allows Muslim nations and communities to use positive sources of law, such as constitutions and legislation, compatible with Islamic divine texts.

For analytical and normative clarity, this book embraces a fundamental distinction between Islamic divine texts, comprising the Qur’an and the Prophet’s Sunnah, and Islamic positive law, comprising classical fiqh, local customs, legislation, case law, and international law. Islamic law is presented as a composite of two distinct parts: divine texts and Islamic positive law. The divine texts are immutable. No era, civilization, culture, or human need can modify the Qur’an and the Prophet’s Sunnah. However, the bodies of Islamic positive law are flexible, mobile, and responsive to change. Positive sources of law may vary from nation to nation and from one period to another. Like dynamic energy, Islamic positive law shapes and is shaped by both space and time. Reactionary agendas to freeze Islamic positive law in any one era or in any one culture cannot succeed. Each era and each culture contributes to the sources of Islamic positive law. No era and no culture may lawfully claim to exercise monopoly over the creation, preservation, or substance of positive norms.

Islamic law is inexhaustible energy. It cannot be contained or suppressed. It is neither tribal, nor territorial. Islamic law originated in the seventh-century sociocultural conditions of Mecca and Medina, the two cities where the Qur’an was revealed and the Sunnah delivered. In a few decades, however, Islamic law transcended the spatiotemporality of Mecca and Medina and began to engage diverse peoples and their cultures and customs. Over the past fourteen centuries, Islamic law has continued to guide prominent cultures, empires, and kingdoms established in Syria, Mesopotamia, Spain, Egypt, Persia, Turkey, and India. Indonesia, thousands of miles away from the holy cities, is the largest Muslim nation. In the last one hundred years, Islamic law has seen a resurgence in contemporary Muslim nations across all continents. Islamic law has also reached Europe and North America, where substantial Muslim communities, native and immigrant, have taken root.

Permanence, flexibility, and diversity are the core attributes of Islamic law. Islamic law is permanent because the Qur’an and the Prophet’s Sunnah cannot be altered, amended, or repealed. Islamic law is flexible because no generation of Muslims is empowered to preempt future interpretations and understandings of divine texts. Islamic law is diverse because it respects the dignity and various needs of culturally distinct Muslim communities. Islamic law moves through time with imperceptible ease. Each generation of Muslims benefits from the accumulated knowledge of past precedents and sources of Islamic law. However, respect for past precedents and sources of Islamic law does not tie the hand of future generations of Muslims in amending or setting aside prior interpretations and understandings of Islamic law that no longer respond to the changed realities of Muslim communities. Contesting the thesis that Islamic law is a static and inflexible aggregation of norms framed in the classical era of Islam, Contemporary Ijtihad argues that Islamic law is inherently fluid and evolutionary within the bounds of the Qur’an and the Prophet’s Sunnah.

Table of Contents with some Explanations

• Classical Era of Ijtihad, 632–875

The classical era of ijtihad, which lasted for about 250 years (632–875), was a period of astounding jurisprudential research and creativity. A critical awareness of this period is valuable for understanding contemporary ijtihad. The classical period underscores a simple but powerful thesis that Islamic law is inherently dynamic and diverse, responsive to customs, cultures, and commerce, and to the diversity of nations, communities, and global conditions. The classical era also demonstrates that God’s Law animates the physical universe and systems of knowledge on a daily basis. Islamic law in all times and in all places must, therefore, proactively respond to changing realities under the guidance of the Basic Code. Any assertion that the Basic Code alone can answer all legal questions is as unsustainable, as is the counter-assertion that the Basic Code is irrelevant to the technological intricacies of contemporary life.

The classical era of ijtihad is closely related to, but distinguished from, the period of prophecy (610–32) during which the Qur’an was received and the Prophet’s Sunnah was delivered. The classical period may be counted from 632, the year the Prophet passed away, to 875, the year when the five founders of madhabs (Islamic schools of jurisprudence), Sunni and Shia, had launched their teachings and passed away. All the founders of the five madhabs were born and died during the classical period. Abu Hanifa, the founder of the largest Sunni madhab, and the most senior Sunni opiniojurist, died in 767. Abu Hanifa’s two eminent students, Al-Shaybani (d. 750) and Abu Yusuf (d. 798), who collected and systematized the Hanafi madhab in their written works, also belonged to the classical period. Malik ibn Anas, who established a Sunni madhab in Medina, the city of the Prophet, died in 795. Al-Shafi and Ibn Hanbal, who initiated the last two Sunni madhabs, died in 820 and 855, respectively. Included in the classical period are the life spans of two great researchers and compilers of ahadith: Al-Bukhari (809–869) and Al-Muslim (817– 75). The founders of the Shia madhab, Muhammad Al-Baqir and his son, Jafar Sadiq, were contemporaries of Abu Hanifa; they died in…

• Free Markets of Fiqh

Since the founding of Islam in the early seventh century (610–32), Islamic law has developed through free markets of jurisprudence, which may be called iswaq al-fiqh or fiqh markets. A fiqh market consists of jurists (muftis), scholars (mujtahids), and followers (ashab). Muftis and mujtahids serve as opiniojurists. They offer juristic opinions on matters of law. When a new legal issue arises that cannot be resolved under the existing body of Islamic law, Muslim opiniojurists offer legal opinions consistent with the Basic Code, the Qur’an, and the Sunnah. These opinions, known as fatwas, compete in the fiqh markets to win over Muslim followers. Each competing opinion may receive some following. An opinion that gains the most Muslim followers becomes a rule of fiqh. Even minority opinions with substantial followings in Muslim communities are treated as rules of fiqh. Each opinion is binding on its followers.

As always, fiqh markets are founded on persuasion, and not coercion. The fiqh rules appeal to logic, common sense, and systemic coherence. While rendering opinions, opiniojurists must demonstrate that an opinion is normatively compatible with the Basic Code and analytically consistent with the existing body of fiqh, just as a judge must demonstrate that a case holding is compatible with the Constitution and the body of law relevant to the case. Opiniojurists are rarely arbitrary or impulsive. They do not convert personal preferences into legal opinions. Working under the divine majesty of the Basic Code, they show how the new opinion belongs to the Islamic legal landscape. Unpersuasive, incoherent, and illogical opinions fail to find a durable place in the realm of fiqh.

The fiqh markets may not be identified, or confused, with madhabs. A madhab is a distinct school of law that develops its own legal methodology to interpret the Basic Code. Each madhab also offers a comprehensive code of substantive rules dealing with worship (ibadaat) and worldly transactions (muamalaat). A fiqh market, however, is not confined to a single madhab, but accommodates all competing schools of law. Opiniojurists may differ and…

• Islamic Positive Law

Classical fiqh, legal methods, old and new schools of jurisprudence, modern juristic opinions, constitutions, civil codes, international law, qanun (legislation), local customs, case law, and regulations, all these bodies of law constitute Islamic positive law. By contrast, as noted in prior chapters, the Qur’an and the Prophet’s Sunnah are divine texts that comprise the Basic Code of Islam. The bodies of positive law and the Basic Code together form Islamic law. Islamic law is a broader term that includes both divine texts and positive law. Note again for purposes of clarity, however, that the Basic Code is the divine part of Islamic law; the Basic Code is not positive law. The divine part of Islamic law is permanent for all times, all nations, and all generations of Muslims. Islamic positive law can be modified and repealed. Islamic positive law is constantly evolving to meet new challenges of the Muslim condition. It may vary from nation to nation, time to time, and generation to generation. The immutable Basic Code and alterable Islamic positive law must never be confused with each other.¹

Philosophically, positive law represents human intelligence that regulates human affairs. Communities that do not believe in God or believe in several gods may establish intelligent laws to curb the arbitrariness of rulers, to regulate families and businesses, to forge prosperity, and to secure the people from internal strife and external aggression. God’s Law revealed in divine texts is granted to human beings. God’s Law precedes human intelligence. It is inaccurate to assume that God’s Law is irrational or opposed to human rationality. God’s Law, for the most part, is compatible with human intelligence and no chasm separates the two, even though human intelligence is fluid and mutable through evolutionary development. In some aspects, however, God’s Law may not reconcile with human intelligence. When God’s Law appears to be incompatible with human intelligence at a given evolutionary stage of human development, human beings may choose God’s Law or they may follow positive law originating from human intelligence.² In such possible conflicts…

• Islamic Constitutionalism

Islamic constitutionalism is an integral part of contemporary ijtihad. As its defining attribute, an Islamic constitution submits to supremacy of the Basic Code, the Qur’an and the Prophet’s Sunnah. Historically, constitutionalism has not been critical to the advancement of Islamic law. For centuries, Islamic law has developed without any notion of constitutionalism. The classical fiqh markets knew no constitution, nor was their vibrancy dependent on one. The history of law in all legal traditions demonstrates that a viable body of law may come into existence without a written constitution, it may continue to develop without a written constitution, and it may or may not adopt a written constitution as the supreme source of law. Legal systems without written constitutions, however, may gradually develop constitutional conventions that provide political and normative stability. Since 1789, the successful tenure of the US Constitution demonstrates that a written constitution can guide a more reliable evolution of a legal system.¹

Islamic constitutionalism discussed below is not confined to the rule of law or some other broad underlayment of the government, such as the consultation principle. Nor is it confined to lawful restrictions on the scope of the ruler’s authority. These generic concepts are significant elements of modern constitutionalism, and have been parts of almost all Muslim governments since the dawn of Islam. Rule arbitrariness or power absolutism is inherently unlawful under the Basic Code. The concept of Islamic constitutionalism refers to modern constitutions in Muslim nations, written texts that contain succession rules, federation structures, the supremacy clause, fundamental rights, and economic ideology, such as socialism or free markets.

One reason why the idea of the written constitution has been immaterial to the development of Islamic law is the ever presence of the Basic Code. During the centuries, the Basic Code has served Muslim empires and communities as the written constitution. The modern constitution provides two essential frameworks: the political…

• Covenants with Non-Muslims

Millions of non-Muslims live as permanent residents in Muslim states. Jews, Christians, Zoroastrians, Hindus, Buddhists, and nonbelievers who subscribe to no God-based belief systems are, and have been, permanent residents of Muslim states during all time periods. Hundreds of thousands of non-Muslims live in Muslim states as migrant workers. Since the dawn of Islam in the seventh century, non-Muslim faith communities have lived in close proximity with Muslim communities, sharing language, culture, and natural and economic resources. Law-based efforts to offer fair and dignified treatment to non-Muslims have been an integral part of Islamic civilization. Every legal system, out of sheer necessity, must design standards of treatment for all communities under its jurisdiction, for no community is above or outside the realm of law. In the Western legal tradition, the distinction between citizens and aliens, with different sets of rights and obligations, continues to inform modern legal systems. Some legal systems practice blatant discrimination against aliens, legal and illegal; some, despite a commitment to equal protection of laws, discriminate in practice against racial and indigenous communities; some offer varying degrees of formal equality to resident communities. The modern human rights movement, in which many Muslim states are actively engaged as proponents, is dedicated to removing unacceptable forms of inequality that politically vulnerable communities face in contemporary nation-states.

Islamic law furnishes the concept of covenant that governs relations between Muslims and non-Muslims; and more importantly, under contemporary ijtihad, relations between non-Muslims and the Islamic state. Generally, the Qur’an mandates that every covenant be performed, particularly the covenants undertaken to protect the rights of the vulnerable (17:34). Aahad, aaqd, and mithaq, the words of the Qur’an revealed in diverse contexts, mean covenant, promise, or contract (2:27; 5:1). “Fulfill all promises” is the fundamental norm of the Basic Code (5:1). In its various manifestations, the law of covenants is the paradigmatic principle of Islamic law. It is a legal

• Western Views of Islamic Law

This chapter examines the external scholarship, authored by nonMuslims, about Islam and Islamic law and asks the question whether such scholarship can be efficacious in influencing contemporary ijtihad. As noted in Chapter 2, external scholarship, mostly published in the West, can influence contemporary ijtihad by showing the way to improve, even modify, some sources of Islamic positive law, such as constitutions, local customs, legislation, and international law. External scholarship can be highly influential in specialized markets, such as finance, where non-Muslim experts can offer advice in structuring technical rules. However, external scholarship faces difficulty, at times fierce opposition, when it aims to improve or modify the rules of fiqh derived from divine texts. This opposition to the engagement of external scholarship with the fiqh markets may be attributed to at least two factors. First, the fiqh markets do not allow non-Muslim jurists to interpret the Basic Code for the benefit, or to the detriment, of Muslim communities. The fiqh markets are formally open only to Muslim jurists who may render opinions without fear or favor. Even the most learned non-Muslim scholars cannot invoke formal authority to issue binding opinions on divine texts. The external scholarship on fiqh, even when deferential to Islamic divine texts, is frequently viewed with suspicion in Muslim circles. Second, the fiqh markets do not welcome any criticisms of the Basic Code. External scholarship on fiqh, when it offers to reform Islamic law by finding faults with the Basic Code or compromising the Prophet’s personal integrity, is summarily dismissed as prejudiced, if not deliberately blasphemous.

Although external scholarship rarely influences the fiqh markets, it remains a potent source of information about Islamic law in the non-Muslim world. Millions of people in the West and other parts of the non-Muslim world receive information about Islam and Islamic law through external sources. As the discussion in this chapter below shows, negative and even dangerous caricatures about Islam and Islamic law presented in external scholarship pave the way for…

• Muslim Diaspora Law

Muslim diaspora law is the Islamic law that deals with specific and unique issues facing Muslim diasporas, that is, Muslim populations permanently settled in non-Muslim states. Muslim diaspora law, just like any other part of Islamic law, must be compatible with the Basic Code, the Qur’an and the Prophet’s Sunnah. Because Muslim emigrants face social, economic, and political circumstances that Muslims living in Islamic states do not, Muslim diaspora law dealing with worldly matters (muamalaat) may differ from the conventional norms of Islamic law. The difference of circumstance, however, cannot compromise the basic principles of Islamic law. For the most part, Muslim diasporas are not exempt from the primary obligations of ibadaat (acts of worship), including daily prayers, fasting in the month of Ramadhan, and paying zakah. Nor are Muslims authorized to make changes in laws dealing with ibadaat. The fundamental principles, including piety in lifestyles, reverence for parents, kindness for children, respect for spouses, and care for neighbors remain unchanged and apply to all Muslims, regardless of where they live or work. Muslim diaspora law discussed in this chapter does not answer all the predicaments that Muslims face in non-Muslim states. However, this chapter discusses a few general ideas and invites scholars to further develop Muslim diaspora law.

The diaspora law is also applicable to occupied Muslim communities. Occupied Muslim populations share one simple but momentous fact with Muslim diasporas, that is, each population lives as a minority among non-Muslims. Occupied Muslim communities living under the sovereignty of non-Muslim states face many social, economic, cultural, and religious challenges similar to Muslim diasporas settled in non-Muslim states. Many such occupied communities assert the right of self-determination to seek independence. Palestinians, Chechens, Kashmiris, and Uighurs are prominent Muslim communities that seek independence from their respective non-Muslim occupiers. Even though Iraq and Afghanistan are currently under non-Muslim invasion, their occupation appears to be…

Bibliographic Information

Title: Contemporary Ijtihad:  limits and controversies

Authors: Ali Khan and Hisham Ramadan

Publisher: Edinburgh University Press; 1 edition (September 17, 2012)

 Language: English

Length: 264 pages

ISBN: 978-0748668564

Pub. Date: September 17, 2012