Ijtihad

Joseph Schacht is credited with giving prominence to this theory in western legal scholarship
scholars writing on this subject have assumed that the right of ijtihad feels into abeyance after
the 4th century of hijra and that so called gate of ‘ijtihad’ was closed soon after the emergence
of taqlid, resulting in the stagnation of Islamic law. Others consent that the gate was never
closed (kamali) and ijtihad manifests itself through statutory legislation and judicial decisions
some abide by neither views and find no objection as to why gate should not be reopened. The
aim of this essay is to explore these views.
Ijtihad literally means ‘exertion’ and in legal use it refers to the striving of the jurist to a point of
mental exhaustion to derive rules of law from evidence found in sacred texts (Fazalur Rahman)
Quran affirms the general concept of ijtihad in saying that those to our path (Q29:69). However,
it is not primary source of Islamic law and is placed below the secondary sources. Rather it is a
methodology of legal reasoning.
In the first 3 centuries jurists enjoyed much freedom in the formation of legal opinions
Gradually as a result of crystallization of legal doctrines and formulation of 4 main sunni
schools, subsequent centuries became more restricted by the requirement of adhering to their
teachings (taqlid) and the place of independent mujtahids was taken dependent mere initators
(muqallid).
This prompted western scholars to confirm that the closure of the gate was a ‘facet accompli’
(JND Anderson) and assert that it was never again to be reopened (Gibb) resulting in Islamic law
to become so rigid to the point that legal activity has become solely characterized by a lack of
originality (Schacht). Noel Coulson also finds ijma to be the root cause of closure of the gate
and thus it set ‘the final seal’ upon the process of increasing rigidity in the law. Other also
consistently refer to the closure of the gate of ijtihad after the Islamic third century (Ostorog
said Nursi, Hasan and Hourani).
However, the champions of renewed ijtihad are many (M.Abduh) who reiterate the slogan
‘opening the door’ (Maududi, Doi, Ramadan, Phillips) and that taqlid is not as harmony with
theory of Islam (Siddiqi) as it has turned sharia into a fossil (Iqbal). Even Schacht asserts that
Prophet himself made binding rulings primarily on religious and not legal matters which
illustrates that Fyzee’s formula (of separating law and religion) conforms faithfully to the
practice of Prophet. Hence their main is that ijtihad should be free to do its creative work once
again (Ramadan).
On the other hand it has been argued that the closing of the gate of ijtihad is ‘pure fiction’
(Iqbal) Hallaq is a main advocate who demonstrates that ijtihad was widely accepted both in
theory as well as in practice. Regarding theory, he asserts that because ijtihad is the only means
by which Muslims may classify their acts as forbidden recommended approved, Jurists could
not have simply done away with it. Regarding practice, he notes that rapid growth of fatwas
approved and contravened to grow rapidly from 4th century onwards.
It appears that general trends of reforms that took place 1950s coincides with Hallaq’s view.
One such example of Quasi Ijtihad is the 1946 Egyptian Law of Testamentary Dispositions
Traditional Succession law did not provide any provisions for orphaned grandchildren if there
was a surviving grandfather failed to make legacy to his orphaned grandchildren in the amount
their pre decreased parents would have been entitled by way of supervision the court shall
execute such a bequest third limitation. Thus the law of interstate spirit of the Quran anew
without completely breaking with past authorities (Q180:2)
A second area of reform via ijtihad is that of polygamy (Q 4:3) and right of husband to
unilaterally repudiate his wife (Q4:34) Syrian Law of Personal Status 1953 was the first to
remedy this situation. performers argued that the excerpt from Quran (Q4:129) stipulating that
a husband if he feels he cannot deal fairly with more than one wife should, take only one
should be seen as a legal condition rather than a moral one. Thus Article 17 stipulates a qadi
may withhold his permission for man to marry another if he is not in a position to support both
wives. In areas of talaq, Syrian Law of 1985 took a bold step by providing that in case of
repudiation without just cause the wife might be awarded compensation from husband to
effect of one-year maintenance (mixed provisions of Sudanese and Egyptians law) (Article 92).
Following this example, the, Tunisian Law of Personal Status 1956 further and pointed out that
in addition to the stipulation that husband must be able to support many wives the Quranic
verse also states husband may treat all his wives and with complete impartially. Performers
argued that these are legally binding and underlined that in present social and economic
conditions, to maintain and to treat impartially was no longer possible the presumption being
that essential condition for allowing polygamy were incapable of fulfillment. Thus polygamy
was abolished altogether.
Tunisia also used ijtihad to reform area of divorce where it was argued that after
pronouncement of repudiation from husband, the arbitration should take place in court, with
the result that the right of husband to unilaterally repudiate his wife extra judicially was
abolished.
Similarly in Pakistan, the law makers in khurshid Bibi v Amin and Balqis Fatima were able to
appeal directly to the primary sources of sharia (Q2:229) to wider the rights of wife to divorce
her husband through Khula if in the opinion of the court, the limits of God would otherwise be
transgressed for reason not wholly due to the fault of the wife.
In addition to this the Hanafi school of law stipulates that a divorced mother’s right to care and
custody of her children outweighs father’s claim until boy reaches age 7 and girl age 9. More
often than not custody decisions entered by Pakistani court decision deviation from these rules
where they cite custody provisions of Guardian and Wards Act 1980 to make their reliance on
the ‘best interests of the child’ (Zohra Begum v Latif Ahmed). The legal technique by which
courts incorporate best interests test into Pakistan law is concept of ijtihad.
Another striking example of ijtihad in modern Sunnite world comes from Bangladesh where it
was opined in Rehman v Begum that the obligation on Muslim husband to maintain his
divorced wife does not stop at the iddah period as is traditional, but rather that he is obliged to
maintain her beyond this period indefinitely or until she remarries. The judge concluded that
the civil court had the jurisdiction to follow the law as set out in Quran disregarding any
previous law. Thus ijtihad central role is central to reform process and it has been used to enact
legislation and to derive novel rulings for contemporary cases as is clear from the above
examples also defending Hallaq’s view.
Another view regarding this theory worth mentioning is of those who concur that there may
never have been an ijma of Jurists delivering to put an end to ‘all’ forms of ijtihad. For a fairer
understanding of should turn to Bernard Weiss’s article in which it is explained that Ijtihad
comprises of 3 levels firstly that which is directed at a particular question of law. Secondly that
which is solely confined to the initio of one’s particular nadhab and thirdly ‘absolute ijtihad’
exemplified to founders of great schools. Weiss criticized that Schacht and orientalists and so
their research focuses on theory at the expense of practice.
In conclusion modern scholars maintain the gate of ijtihad was either never closed or if it was
closed, it should be reopened, whatever, one may argue decades since the world war II legal
endeavors has existed throughout the Muslim world from apse of Judicial branches to family
law statutory reforms. Perhaps it is better to state that the gate is neither fully closed nor full
open. It is not open to all but a few mujtahids who fulfill the conditions to exercise it and
because some issues are in fact definitive and excluded from ijtihad (as is the position in
religious law).