THE CONCEPT OF IJTIHAD AS AN EFFORT TO REFORM ISLAMIC LAW:

A STUDY OF HUMAN RIGHTS DEVELOPMENTS FROM AN ISLAMIC

PERSPECTIVE

Zaky Taqiyuddin Rahmat

Universitas Islam Indonesia
Email: 22410179@students.uii.ac.id

Abstract
This article discusses the challenges and possibilities of reforming Islamic law to
accommodate modern human rights standards, based on the analysis in the book
"Contemporary Thought in the Muslim World: Trends, Themes, and Issues" by Carool
Kersten. The main focus of the book is the tension between traditional interpretations
of Islamic law and universal human rights principles. Writers such as Mohsen Kadivar
and Abdullahi Ahmed an-Na'im emphasize the importance of internal reform using
ijtihad to update Islamic law to be more compatible with modern human rights
standards. The article reviews revelation acceptance theory and social contract theory
in the context of Islamic law reform. An-Na'im stresses the integration of modern
human rights standards through internal reform, while Kadivar proposes the
development of new jurisprudence that aligns with principles of universal justice and
human dignity. Additionally, the article highlights the importance of considering
different sociocultural contexts in various Islamic countries in the acceptance and
implementation of human rights standards. Despite various reform efforts, there are still
many challenges in accommodating human rights standards within Islamic law. The
article also critiques the overly general and apologetic approach towards Islamic human
rights declarations and the lack of exploration of conservative scholars' perspectives
who oppose Islamic law reform. Thus, this article makes a significant contribution to
understanding Islamic law reform through the concept of ijtihad to create a more
inclusive and just society.

Keywords: human rights, Islamic law reform, ijtihad, universal justice

1
 A. The Key Issues

The book "Contemporary Thought in the Muslim World: Trends, Themes, and
Issues" by Carool Kersten offers an in-depth analysis of the challenges and possibilities
faced by the Islamic world in accommodating modern human rights standards. The
main focus of the book is to identify the tension between traditional interpretations of
Islamic law and universal human rights principles. Kersten explores how modern
human rights norms often conflict with traditional interpretations of Islamic law that
have been upheld by conservative scholars.

In its discussion of human rights, the book highlights several key issues,
including religious freedom, minority rights, and women's rights. Freedom of religion,
for example, is often narrowly understood in the context of traditional Islamic law,
which gives non-Muslims an inferior status. Similarly, women's rights are often limited
by traditional interpretations that place women in an inferior position to men in various
aspects of social and legal life.

Kersten also observed that human rights declarations in the Islamic world, such
as the Cairo Declaration on Human Rights in Islam, often fail to recognize the true
universality of human rights. These declarations tend to emphasize that human rights
have been comprehensively accommodated in Islamic sacred texts, such as the Qur'an
and Sunnah, without taking into account differences in interpretation and historical
context.

The reformist approach proposed by some contemporary Islamic thinkers

emphasizes the importance of radical revision and reformulation of techniques for
formulating legal rules from Islamic foundations.1 Thinkers such as Mohsen Kadivar
and Abdullahi Ahmed an-Na'im argue that only through internal reform of Islamic law,
incorporating principles of universal justice and human rights, can the existing
disparities and injustices be addressed. They propose the use of ijtihad, or independent
interpretation, as a tool to update Islamic law to make it more compatible with modern
human rights standards.

1
Carool Kersten, “Dealing With Difference And Plurality: Emancipation, Toleration, And Human Rights”,
(New York: Routledge, 2019), pg. 160.

2
B. The Prior Research On Topic

This book discusses the contributions of various Muslim scholars to the

discussion of human rights and Islamic law reform. One figure that receives special
attention is Abdullahi Ahmed an-Na'im, who is known for his views on the acceptance
of the Universal Declaration of Human Rights (UDHR) by Muslims. An-Na'im
emphasized the importance of accepting the universality of human rights across cultures
and proposed three main elements in the philosophy of Islam and human rights:
acceptance of the UDHR, reconciliation of sharia with modern human rights standards
through internal reforms, and protection of freedom of belief and political action by
secularizing Muslim states.2

Another study discussed is the work of Mohsen Kadivar, an Iranian thinker who
explores the tension between traditional interpretations of Islam and modern human
rights standards. In his book "Haqq al-Nas," Kadivar criticizes the apologetic approach
of traditional scholars who seek to defend historical Islam without considering the need
to adopt more modern universal human rights standards. Kadivar argues that traditional
Islamic law fails to address the inequalities that exist between different groups in
Muslim societies, especially in terms of gender equality and minority rights.3

Kadivar proposed a new approach known as "New Thinker Islam," which

emphasizes the spiritual and objective aspects of Islamic law. This approach involves a
broader use of ijtihad in the Shia tradition to make minor adjustments, but also
recognizes the need to develop a new jurisprudence that is more compatible with
modern human rights standards.4 In his view, this new jurisprudence should be based
on the principles of universal justice and human dignity, which can help address the
injustices that exist in Muslim societies.

In addition to an-Na'im and Kadivar, the book also examines the contributions
of other scholars who have sought to develop new approaches to Islamic law that can
accommodate modern human rights standards. The research highlights the importance
of rethinking and reconciling traditional Islamic norms and universal human rights

2
ibid, pg 149
3
ibid, pg 170
4
ibid

3
 principles, as well as the need for ongoing efforts to develop a more inclusive and just
jurisprudence.

C. The Theoritical Framework

The approaches used in the research discussed in this book include revelation
acceptance theory and social contract. Revelation acceptance theory in the Islamic context
focuses on the understanding that Islamic law is based on divine revelation received by the
Prophet Muhammad. However, reformers such as an-Na'im and Kadivar emphasize the
need for reinterpretation of that revelation to fit the modern context and human rights
standards. They argue that divine revelation must be understood in the context of Islam's
universal goals of justice and human dignity.

An-Na'im adopts this approach by emphasizing that modern human rights standards
must be integrated into the Islamic legal framework through internal reform. He argues that
the implementation of modern human rights standards can only succeed through a proper
reconciliation between local socio-political conditions and Islamic sacred texts. According
to an-Na'im, religious interpretations and practices must be adapted to local and global
contexts to ensure that human rights principles can be effectively accommodated in Muslim
societies.

On the other side, social contract theory derived from Western thought emphasizes
that laws and social norms should be based on mutual agreements that reflect the interests
and rights of individuals. Kadivar adopted elements of these theories to develop a "New
Thinker Islam" approach that emphasizes the importance of adopting an anthropological
and epistemological approach that recognizes critical reasoning as an inherently human
part. This approach distinguishes between permanent and temporary laws based on
rationality and justice in accordance with the norms of the times.5

Kadivar also emphasized the importance of a broader use of ijtihad within the Shia
tradition to make minor adjustments, but also recognized the need to develop a new
jurisprudence that is more compatible with modern human rights standards. He argues that
only through internal reforms based on the principles of universal justice and human dignity
can Islamic law be adapted to meet the demands of modern society.

5
ibid, pg 158

4
 These approaches show that despite differences in methodology, the ultimate goal
is the same: integrating modern human rights standards into the Islamic legal framework to
create a more just and equal society.

D. The Result Of Research

The research discussed in this book shows that despite various reform efforts, there
are still many challenges faced in accommodating modern human rights standards in
Islamic law. An-Na'im emphasizes the importance of accepting the universality of human
rights and reconciling sharia with modern human rights standards through internal reform.
He argues that without deep reform, traditional Islamic law will continue to face difficulties
in accommodating inclusive and just human rights principles.

Kadivar, on the other hand, proposes a new approach to Islamic law that emphasizes
the spiritual aspect and purpose of Islamic law. He argues that a new jurisprudence that is
more compatible with modern human rights standards needs to be developed to address
existing inequalities. According to Kadivar, Islamic law should be based on the principles
of universal justice and human dignity, which can help create a more inclusive and equal
society.

The research also shows that while there are many challenges, there are also
opportunities to develop new approaches in Islamic law that can accommodate modern
human rights standards.

E. The Comparative References On Topic

The existence of Islamic law that has been valid and applied, even though it has
got a place in the applicable legal system, will certainly experience challenges in the
future as time goes by and the development of life and problems faced by the
community. In answering these problems in line with realizing legal certainty, the
concept of ijtihad emerged which was then also considered as a process of reforming
Islamic law.6

Ijtihad is also based on the assumption that the formulation of Islamic sharia
that has been understood and applied by Muslims in most Islamic countries is no longer
relevant because it cannot reach contemporary issues that are developing today, such as

6
Muh. Haras Rasyid, Ijtihad Dan Reformasi Hukum Indonesia, Ash-Shahabah: Jurnal Pendidikan Dan Studi
Islam, Vol 8, No 1, 2022, pg. 28.

5
 civil liberties, human rights, and international relations. Therefore, the classical shari'ah
must be reformed into modern shari'ah so that it can reach contemporary issues on a
global/universal scale, while remaining absolutely bound to the sacred sources of Islam,
namely the Qur'an and Hadith.7

As the main basis for the origin of laws in Islamic law, the Qur'an was originally
revealed in response to the situation of society at that time which then grew and
developed more widely. As a consequence, the laws contained in the Qur'an also have
the potential to be interpreted and developed.

If at the time of the Prophet Muhammad SAW in understanding such verses, the
explanation was given directly by him with his sunnah. However, in the following
period, when he died and the Islamic community experienced rapid development, and
the territory of Islam expanded, the explanation was carried out by the companions.8
This then became a responsibility that continues to shift until today to the mujtahid
scholars to conduct ijtihad.9

Legal products that are then born from Islamic legal thinking resulting from the
ijtihad process are practically bound by the time and conditions when the ijtihad is
carried out. The emergence of new problems that change the attitude of life and shift
the perspective and shape the human mindset also has consequences in shaping the
norms in social life.

In this regard, for a Muslim, new problems that arise due to advances in science
and technology do not have to be confronted with the provisions of the text in a
confrontational manner, but must be sought for ijtihadi solutions, because of the reality
that often occurs, that the development of society is faster than the development of the
law itself.10

In modern times, the call for ijtihad has become more vocal, especially after
fiqh scholars and other scholars realized that the Islamic world was lagging behind the

7
Anis Hidayatul Imtihanah, Reformasi Hukum Islam Dan Hak Asasi Manusia Perspektif Abdullah An-Na’im,
IJOIS: Indonesian Journal of Islamic Studies, Vol.1, No.01, 2020, pg. 52.
8
Lahmuddin Nasution, Pembaruan Hukum Islam (Bandung: Rosdakarya, 2001), pg. 4.
9
Ijtihad is an effort to determine a law in Islam carried out by a person by referring to the Qur'an and
Hadith and several other references..
10
Abd. Salam Arief, Pembaruan Pemikiran Hukum Islam (Yogyakarta: LESFI, 2003), pg. 3.

6
 West. In fact, many Muslim scholars have conducted comparative studies between
Islamic fiqh and Western legal products.11

Human rights are individual rights that originated from natural law thinking in
modern Europe. These rights continued to develop in the West until they became the
standard of international law. With the Universal Declaration of Human Rights by the
United Nations, these rights have now become part of international law. Although there
is debate about their universality, there are universal standards of human rights that
must be adhered to under international law. All efforts should be directed towards
putting these human rights principles into practice. The principles that respect and
protect human rights are referred to as jus cogens, which are basic international
principles that states cannot ignore because they have become a common agreement.12

From here then comes the demand to build a model of shariah that is in
accordance with the standards of modern society, especially with regard to human
rights. At the same time, Muslims must face a very delemmatic situation, between the
need to implement shariah as a religious obligation and adhere to human rights as an
obligation and demand of the international community, between upholding the values
of Islamic teachings that have been actualized in their life traditions and the need to
follow modern ideas.13

Holding on to the legacy of past traditions can mean subordination and

backwardness, while abandoning them altogether can destroy Islamic identity and the
entire spiritual and intellectual construct that has been inherited and embraced over the
years. The current sharia is no longer relevant and sufficient for the needs of modern
society and is considered to have caused serious problems when dealing with current
human rights standards. The renewal of sharia in the form of ijtihad then allows sharia
to accommodate issues that are important for the future of humanity, such as democracy,
peace, including respect for human rights.14

11
Abdul Aziz Dahlan, Ensiklopedi Hukum Islam, jilid V (Jakarta: Ichtiar Baru Van Hoeve, 2001), pg. 1449.
12
Jamhari, “Reformasi Syari’ah Dan Wacana Hak Asasi Manusia”: Studi Pemikiran Hukum Abdullah An-
Na’m, Nurani, VOL. 15, NO. 2, 2015, pg. 37.
13
Ahmed Istiaq, “Abdullah An-Na’im an Constitusional an Human Right Issue”, in Islamic Law Reform and
Human Right: Challeger and Rejoides” (ToreLindholm: Olso Human Right Publication, 1993), pg. 70.
14
Jamhari, “Reformasi Syari’ah Dan Wacana Hak Asasi Manusia”: Studi Pemikiran Hukum Abdullah An-
Na’m, Nurani, VOL. 15, NO. 2, 2015, pg. 32.

7
 Ultimately, the reform of Islamic law through the concept of ijtihad is a response
to the need to adapt shari'ah to the times and contemporary demands, especially in terms
of civil liberties, human rights, and international relations. Although the historical
shari'ah has traditional values, it must be reformed into a modern shari'ah that is in line
with the principles of human rights and social justice. The essence of this view is to
strike a balance between full individual freedom and comprehensive social justice,
which supports international peace. Thus, Islamic law reform is not a rejection of
religion, but rather an attempt to return to the original spirit of Islam that is relevant and
applicable in the modern context.

F. The Contribution To Knowledge

This article makes a significant contribution to the knowledge of Islamic law

reform through the concept of ijtihad, addressing contemporary challenges such as
human rights, civil liberties, and international relations. In line with this, Kamali in his
book also discusses the importance of ijtihad in enabling Islamic law to remain relevant
to the times and contemporary challenges such as human rights and civil liberties. By
providing an in-depth insight into the importance of ijtihad, this paper helps readers
understand that this process is dynamic and allows Islamic law to remain relevant to
the times.

In addition, it highlights the injustices that exist in traditional interpretations of

Islamic law, particularly regarding the rights of women and minorities, providing a
foundation for the argument that reform of Islamic law is a crucial step towards creating
a more inclusive and just society. An-Na'im in his book similarly explains how human
rights principles can be integrated into the Islamic legal framework through ijtihad,
adding a new dimension to the academic discussion on harmonization between Islamic
law and international human rights standards.15

Furthermore, this paper also examines modern theories such as revelatory

acceptance theory and social contract in the context of Islamic law reform, enriching
knowledge on how new approaches can be applied to resolve issues of injustice and
inequality in Islamic law. Social contract theory also offers a framework for creating a
more just and inclusive law, addressing the injustices and inequalities that exist in

15
Abdullahi Ahmed An-Na’im, “Toward an Islamic Reformation: Civil Liberties, Human Rights, and
International Law”, (New York: Syracuse University Press, 1996), pg. 52.

8
 traditional interpretations. It shows that Islamic law can be reformed to better align with
human rights principles and the needs of modern society.16

G. The Reviewer Critique Toward The Book

There are several criticisms to be made of Carool Kersten's Contemporary Thought

in the Muslim World. While the book offers an in-depth analysis of the challenges faced
by the Islamic world in accommodating modern human rights standards, it tends to fall
short in providing practical and concrete solutions that can be implemented by Muslim
societies. Kersten could have made it clearer how human rights principles can be
effectively integrated in local and global contexts.

In addition, the book tends to generalize in discussing traditional interpretations

of Islamic law and their challenges to human rights, without sufficiently emphasizing
how different socio-cultural contexts in various Islamic countries can affect the
acceptance and implementation of human rights standards. In contrast to what An-
Na'im writes in his book where he provides examples of how Muslim countries can
adopt human rights principles locally by taking into account cultural and social norms,
while remaining committed to international standards through cross-cultural dialogue
and internal reforms taking into account the principles of secularism.17

Another criticism is that the book sometimes seems too apologetic towards
Islamic human rights declarations such as the Cairo Declaration, and Kersten could
have been more critical in evaluating the limitations of these declarations in recognizing
the universality of real human rights. Mayer mentions in her book that the declarations
tend to retain elements that limit individual freedom and gender equality, showing
limitations in recognizing and applying truly universal human rights standards. Mayer
underscores the need for a more critical and inclusive approach to integrating human
rights with Islamic law to achieve broader and authentic acceptance.18

The book also under-explores the perspectives of conservative scholars who

oppose Islamic law reform; understanding their arguments in more depth could provide

16
Fazlur Rahman “Islam and Modernity: Transformation of an Intellectual Tradition”, (Chicago: University of
Chicago Press, 1982) pg. 89.
17
Abdullahi Ahmed An-Na’im. “Islam and the Secular State: Negotiating the Future of Shari'a”. (New York:
Harvard University Press, 2008), pg. 112.
18
Ann Elizabeth Mayer, “Islam and Human Rights: Tradition and Politics”, (Colorado: Westview Press,
2012), pg. 90.

9
 a more comprehensive view of the internal dynamics within the Islamic world on
human rights issues. As Hallaq explains in his book, these scholars often argue that
Islamic law is perfect and complete as it is, based on classical texts and traditional
interpretations. They see reform efforts as a threat to the authority and purity of Sharia.19

Finally, while Kersten discusses reformist figures such as an-Na'im and

Kadivar, the book could have gone more in-depth in exploring alternative approaches
and critical thoughts from other Muslim scholars who may offer diverse perspectives
on Islamic law reform and human rights.

19
Wael B. Hallaq “Shari'a: Theory, Practice, Transformations”, (Cambridge: Cambridge University Press,
2009) pg. 210.

10
References

An-Na'im, A. A. (2008). Islam And The Secular State: Negotiating The Future Of Shari'a. New York:
Harvard University Press.

Arief, A. S. (2003). Pembaruan Pemikiran Hukum Islam. Yogyakarta: LESFI.

Dahlan, A. A. (2001). Ensiklopedi Hukum Islam jilid V. Jakarta: Ichtiar Baru Van Hoeve.

Hallaq, W. B. (2009). Sharia: Theory, Practice, transformations. Cambridge: Cambridge University

Press.

Imtihanah, A. H. (2020). Reformasi Hukum Islam Dan Hak Asasi Manusia Perspektif Abdullah An-
Na'im. IJOIS: Indonesian Journal Of Islamic Studies, 52.

Istiaq, A. (1993). Abdullah An-Na'im An Constitutional An Human Right Issue, In Islamic Law Reform
And Human Right. ToreLindholm: Olso Human Right Publication.

Jamhari. (2015). Reformasi Syari'ah Dan Wacana Hak Asasi Manusia: Studi Pemikiran Hukum
Abdullah An-Na'im. Nurani, 37.

Jamhari. (2015). Reformasi Syari'ah Dan Wacana Hak Asasi Manusia: Studi Pemikiran Hukum
Abdullah An-Na'im. Nurani, 32.

Kersten, C. (2019). Dealing With Difference And Plurality: Emancipation, Toleration, And Human
Right. In C. Kersten, Contemporary Trought In The Muslim World, Trends, Themes, and Issues
(p. 160). New York: Routledge.

Mayer, A. E. (2012). Islam And Human Rights: Tradition And Politics. Colorado: Westview Press.

Nasution, L. (2001). Pembaruan Hukum Islam. Bandung: Rosdakarya.

Rahman, F. (1982). Islam And Modernity: Transformation Of An Intelectual Tradition. Chicago:

Chicago Press.

Rasyid, M. H. (2022). Ijtihad Dan Reformasi Hukum Indonesia. Ash-Shahabah, 28.

11