By Akmal Asghar
Staff writer: New Civilisation
The subject of ijtihad occupies a recurring theme across much contemporary Islamic literature. A tool employed by Islamic jurists, it holds the key to Islam’s continual relevance and to defining an Islamic approach for solving problems in a post-modern world. Akmal Asghar provides an overview of ijtihad and its role in presenting an Islamic alternative.
“Islam has long vanished from the stage of history, and has retreated into oriental ease and repose”, were the words of the German philosopher George Friedrich Hegel in the middle of the nineteenth century. But as Martin Kramer, senior associate of the Moshe Dayan Centre at Tel Aviv University, remarks at Hegel’s ‘endist’ predictions, “The persistent refusal of Islam to do just that remains one of the principal flaws of ‘endism,’ from Hegel to this day…” It’s certainly true, despite emerging fifteen centuries ago, Islam features considerably in current global politics and has far from vanished. The phenomenon of movements advocating a ‘revival’ of seventh century Islam can be perplexing and their stated goal – an Islamic rule – lends itself to a number of possible criticisms. Among the most obvious is the question of Islam’s ability to tackle issues in a world vastly different to the one that first received it. As Olivier Roy describes in his book ‘The Failure of Political Islam’, “The irruption of Islam into the political landscape is often perceived as an anachronism; how is it possible, late in the twentieth century, to return to the Middle Ages?”
It is a genuine challenge. How does Islam deal with the rapid advances in science and technology, institutions of the post-modern world or social, economic and political trends? If Islam were unable to handle the complexities of contemporary life, it may indeed produce an outdated medieval system, causing its adherents to deny the fruits of current modernity.
Time alone, however, is not enough to render an idea invalid. The revival of ancient Greek philosophy, art and culture was termed a ‘renaissance’ in Europe. Many of the foundations of the West’s contemporary intellectual and political tradition are associated with three millennia-old discourses still considered valid in the twenty first century. Indeed, a number of English legal statutes still in use, such as the Treason Act of 1351, date back many centuries; English common law emerged in the Middle Ages, taking from Roman law and influenced by Norman and Saxon custom; the US Bill of Rights, passed in 1791, reflects the guarantee of due process given by the Magna Carta in1215 and the English Bill of Rights of 1689. Even if only by way of example, it appears that Western scholars and jurists are willing to accept that old ideas can have a place in – indeed define – the modern world, and so comparably, the fact that Islam emerged in seventh century Arabia is not in itself cause to suggest its inapplicability.
Some propose that Islam’s continual relevance can only come through its reform. However, the keyword for Islam’s applicability in the twenty first century is not reform (islah), but the Islamic concept of ijtihad. While reform implicitly discounts the validity of an idea through suggesting that it is in need of alteration, ijtihad tackles contemporary problems using Islam’s original principles and rules; it does not demand their alteration but their application.
Indeed, the subject of ijtihad addresses two important questions regarding Islam’s continual relevance that are often thought to support reasons for its reform. Firstly, the specificity of Islam to the circumstances of seventh century Arabia and, secondly, the ability for the finite body of Islamic texts left by the Prophet of Islam (peace be upon him) to address ever changing human problems.
Regarding the first, Islam’s legislative rules and principles are founded on a doctrine that views problems as extending from the needs of human beings as human beings. That is to say, not in their racial, regional or tribal context, or as a reaction to a particular social condition; or as Muslims or non-Muslims, but as human beings. It is only a specific doctrine inasmuch as it is specific to all human beings. It is a timeless conception of the human condition, for it is not man’s nature that changes with the passage of time, but his material circumstances; the complexity of material and technology, which develop through continuous scientific endeavour.
Man’s innate needs, whether basic organic requirements such as the need for food, clothing and shelter or basic instinctual drives such as survival, justice and security, remain consistent. Furthermore, the needs that extend from this basic constitution such as the need to regulate political, social and economic relationships individually or collectively are also seen to exist across the expanse of human history. Though their manifestations may change, it could not be said that new needs have manifested or that the existing ones always increase, either in complexity or propensity. New world-views, thoughts and beliefs may develop over time and emerge at various points in human history, but these too do not represent a shift in man’s fundamental nature, intellect or needs. Since the Islamic system addresses problems as demands extending from this consistent human nature, it is continually applicable and a consistent source of solutions for tackling human problems.
Indeed, it is not thoughts, but things that time may render obsolete. An idea is invalidated by identifying its intellectual shortcomings whereas material things are replaced and considered obsolete as scientific and engineering progress produces increasing material sophistication.
Ijtihad is a legal tool employed by jurists to extract legislation for any number of new problems from the original Islamic texts. It is a defined process established by Mohammed (peace be upon him) during his lifetime and allows the finite body of Islamic texts to address, in detail, previously unfamiliar events. The key aspects of ijtihad that make this possible relate to analogy and to a process of linking the subject matter of contemporary problems with similar occurrences in the Islamic texts and precepts. The pivotal role of analogy in the process ijtihad is such that the leading Islamic jurist Mohammed Idris al-Shafi’i, in his book al-Risalah, went as far as to equate the two:
“…and ijtihad is qiyas (analogy)”. More broadly, ijtihad consists of three general stages:
first, to objectively understand in detail the reality of the problem, question or dilemma for which a solution is sought, which may demand specific knowledge if relating to a particular area of expertise, for example, relevant scientific competence if tackling issues relating to stem cell research, or economic and financial expertise if evaluating a complex financial product;
second, to identify the Islamic texts, concepts and laws which discuss a relevant, or similar, subject matter;
third, to analogise between the current issue and the relevant texts in the original Islamic sources to identify similarities and differences, and through a process of weighing these similarities and differences extract a position on the current issue.
Each element is considerably more elaborate and requires expertise and competence in Islamic jurisprudence, the sciences of Islamic sources, and of Islamic legal maxims, legal principles and specific legal definitions. The competence to apply the process of ijtihad defines an Islamic scholar (mujtahid), but the process is not reserved to a priestly class or clergy. The qualification is open to all, men and women, who wish to gain sufficient competence in Islamic jurisprudence to practise ijtihad and to work as a judge, advocate or legal expert.
The scope of ijtihad, it is important to note, does not extend to things, including the products of scientific and technological progress; the general principle is that they are useable without restriction. They are only addressed when specific questions about their use gives rise to other human problems. For example, in developments relating to genetic engineering, the technology is not rejected, but its use may be defined to prevent human cloning due to its impact on marriage and genealogy.
The substantial progress many historians note in early Islamic history was made possible through the continuous use of Ijtihad. It allowed the Caliphate to tackle numerous political, social and economic problems that had not previously confronted the Prophet Mohammed (peace be upon him). The expansion of its territories brought it into contact with foreign cultures and differing political structures, whether those of Greek, Persian or south Asian origin, in the second century of the Hijri calendar (ninth century CE), and with it their customs, traditions and practices, and their own models of organising and regulating society. This expansion created parallel internal challenges whether relating to the rights, distribution or productivity of land; the rights of minorities or the administration of the expanding state apparatus, with its specific questions about qualifications for rule, organisation of the judiciary, accountability, ascension and removal of people
from posts of power. Indeed, these foreign and internal challenges acted to provide a continuous demand for the use of ijtihad, to develop perspectives and provide a legislative framework with which to deal with them. It produced a rich and healthy legislative, political and intellectual atmosphere and with it generations of some of the most accomplished mujtahids, both Shiah and Sunni, in Islamic history. Among them, the Kufi (Iraqi) Imams such as Numan bin Thabit (‘Abu
Hanifah’), North Africans such as al-Layth ibn Sa’d, Arabs such as Malik ibn Anas and Mohammed Shafi’i, and later Andalusians, such as ibn Hazm, Central Asians and many others, whose impact has been such that much of the body of Islamic jurisprudence lies, to this day, within the framework of their endeavours.
Indeed, the absence of ijtihad would have been debilitating, positively paralysing, for the progress of the Islamic world historically. And it is exactly why when its use slowly declined from the tenth century and when, in the thirteenth century after the destruction of the seat of learning in Baghdad by the Mongols, it was suggested that its use be discontinued – an event of commonly referred to as ‘the closure of the gates of Ijtihad’ by Islamic historians – the Islamic world fell into a slow decline. The loss of ijtihad amounted to a denial of oxygen to the bloodstream of the legislative and political
processes in the Islamic world, rendering the Caliphate incapacitated in the face of new problems and challenges. For a while, jurists relied on annotating the conclusions of previous jurists, far removed from the primary Islamic legislative texts, a practice that promoted imitation (taqlid) and stifled thinking. But when confronted with a European mindset distinctly more ideological than the one it confronted in its siege of Vienna, having gone through its ‘enlightenment’, the extent of the decline in the Islamic world became apparent. Unable to respond to the intellectual and technological challenges it now confronted, the Caliphate, due to the absence of ijtihad, failed to clearly evaluate its position on a number of fronts. This produced the bizarre situation during the nineteenth century where, on the one hand, European legislative codes were being introduced in their swathes while on the other, the Caliphate initially rejected inventions as simple as the printing press. The Islamic world, therefore, was in no position to present Islam’s alternative political philosophy, and some interpreted events as highlighting deficiencies within Islam itself; indeed numerous individuals set about advocating its reform. But when evaluating reformist thought, whether that of Jamal ad-Din Afghani (1839-1897), Sir Syed Ahmed Khan (1817-1898), Mohammed Abduh (1849-1905), Taha Husayn (1889-1973) or others, one finds that reform did not offer an alternative but was an implicit – often explicit – call to integrate into Europe’s intellectual and political culture. Indeed, some even ironically advocated a revival of ‘ijtihad’. However, their definition of the word was often more secular than Islamic, using as they did the literal meaning ‘jahada’ or ‘to exert’ which was taken to mean a call to exhaust independent intellectual effort as opposed to a juristic process to derive distinctly Islamic solutions to contemporary problems based on its original texts.
Islam is no stranger to foreign or alterative ideas and cultures and the challenges they bring. Western political philosophy presents the current alternative and contemporary events, problems and dilemmas present a spectrum of challenges. The Muslim world is now in need of perspective on issues from globalisation, the free market and liberalism to genetics, stem cell research and cloning. Ijtihad provides the ability to present Islamic perspectives, indeed alternative approaches,
for each of these, and is why, for example, Farooq Khan, in his article “Re-defining the Globalisation debate”, is able to suggest, “Islam…can be argued as not only the first global political philosophy but the only political philosophy that can capture the forces of globalisation…” A revival in the use of ijtihad marks an important step in presenting a practical Islamic alternative.