Maulana Taqi Amini writes in Fundamentals of Ijtihad ‘Islamic law is dynamic in nature yet it has been stagnating for quite some time for want of interpretative efforts, on the part of the Jurists. This has not only created a gulf between the law and the life, but has given birth to the false notion, that Islamic Law does not provide effective answers to the social, economic, political and scientific issues and problems faced by the present societies.’ One of the essential principles in the development of Islam is the concept of Ijtihad. It occupies an important place in Islamic jurisprudence and indicates the dynamic and progressive character of Islamic philosophy. It must be said to the credit of Islam that in spite of laying down a compressive set of principles, it provided scope for accommodation of new developments which may not be fully elucidated in the light and teachings of the Quran and the Sunnah. Ijtihad is a living institution but only when it is not out of pleasure or according to the whims of personal interests. An honest and sincere application of mind with strong efforts is needed in Ijtihad. The main purpose of it is to bring uniformity in plurality. It is an intellectual striving which starts when there no express text is given. It is a research aspect of Islam. Ijtihad was unfortunately, restricted, restrained and blocked for so many centuries. Allama Iqbal has enumerated various reasons for this intellectual attitude which reduced the law of Islam in the state of immobility. The rise of Rationalism or the Rationalist Movement which aims at deciding each and every thing on reason and logic. Since Islam has the source in revelation as each and every things could not be understood by the human mind. Although Islam encourages in applying reason and logic, by application of mind, but certainly man reaches at a level where his mind stops answering the queries because there is something which is beyond the reason of man and that is probably the revelation. And that is the difference between religion and philosophy. By denying the eternity of Quran or by challenging or raising doubts on some verses of Qur’an the orthodox conservative thinkers thought that Rationalists are undermining the very foundation of Muslim society and thus to take care of social integrity of Islam and for this the structure of Legal system was made as rigorous as possible. When a person is not rationally satisfied with any query, the obvious result is the growth of skeptic feelings within. As skeptical thought grooms, it results in denial of things which otherwise exist on the guide lines of religion or divine knowledge. Apprehending the further alienation from the Islam and disintegration within the social fabric of Islam, the institution of Taqlid was strongly upheld. The rise and growth of ascetic Sufism (rahbaniyat: no concern with the worldly affairs) which gradually developed under influences of a non- Islamic Character, a purely speculative side, is to a large extent responsible for this attitude. It also kept Islam in the state of immobility as it undermined the social polity of Islam and puts more weight on speculative thinking, thus absorbed the best minds in Islam. The Muslim state was thus left generally in the hands of intellectual mediocrities, and the unthinking masses of Islam, having no personalities of a higher caliber to guide them, found their security only in blindly following the schools. On top of all this came the destruction of Baghdad, the centre of Muslim intellectual life in the middle of the 13th century. This was indeed a great blow, by the invasion of Tatars resulting havoc and creating future threats for Islam. Apprehending, further disintegration, which is natural in such a periods of political decay, the conservative thinkers of Islam focused all their efforts on the one point of preserving a uniform social life for the people by exclusion of all the innovations in the law of Shari’ah. Their leading idea was social order of Islam, and to preserve the identity of Islam.
Since Islam has the source in revelation as each and every things could not be understood by the human mind. Although Islam encourages in applying reason and logic, by application of mind, but certainly man reaches at a level where his mind stops answering the queries because there is something which is beyond the reason of man and that is probably the revelation.
Therefore it was said that gate of Ijtihad has been closed in the Sunni world since the formation of the four schools of Law whereas in Shi’ism the gate must of necessity be always open. Whatever view may be taken of the theoretical basis or the results of modernists Ijtihad, its practical and undeniable effect has been to infuse life and movement into Shari’ah Law. Ahamd Hassan writes in The early Development of Islamic Jurisprudence that the term Ijtihad in the early period was used in a narrower and more specialized sense than it came to be used in al-Shafi and later one. It conveyed the meaning of fair discretionary judgment or expert’s opinion. Thus it aims to strive for knowledge to get a solution. It means to think using reason and logic but it never means to think independent of Quran and Sunnah. The guidelines while doing Ijtihad have to be inferred from the original source of Shari’ah. It demands intellect of high caliber and the mujtahid must be occupied with the sound knowledge of Quran and Sunnah. The apprehension that Ijtihad leads to deviation from the path already laid down by the injunctions of Quran and Hadith has largely been by the irrational use of the instrument of Ijtihad by the so called secular and liberal Muslim scholars who justified this pattern to get free from the bondages of Islam in the name of modernism and change in the society. Ijtihad does not arise in respect of those matters that have been dealt already with in the Quran and Sunnah and are settled once for all . However, sometimes, there occur situations which have been left undetermined by the first two sources, when jurists are called upon to make use of Ijtihad and determine laws applicable to them, or formulate new ones if necessary, in the light of the fundamental principles of Islamic jurisprudence. It only means that in each generation the Law should be applied to the new circumstances that are faced. The practice of Ijtihad in the spirit of Islam does not mean to change the Law to suit the convenience of men but to face and solve every new situation and problem in conformity with the teachings of the Shariah by applying those teachings to newly arisen problems. N.J. Coulson in his book A Hisotory of Islam enumerates various qualifications of a Mujtahid (one who is capable of doing Ijtihad). He must be a master of the Arabic language. He must have proficient knowledge of theology, the revealed texts and the four schools of thought. He must have a comprehensive knowledge of legal theory, usul al-fiqh, which governs the interpretative principles of legal language and the method of investigating the texts, the asbab al-Nuzul(Cause of Revelation) and the asbab al-warud, the naskh wal mansukh etc. He should have thorough knowledge of the Qur’an and Hadith and in the exegesis. He must know what parts of the law have become subject to consensus. He must be a pious and practicing Muslim. He should first seek the solution of a legal problem in the specific terms of the Qur’an and the Sunna, applying the accepted methods of interpretations and construction, including, the doctrine of Naskh, asbab etc., before considering Ijtihad. He must have an in-depth understanding and knowledge of the developments of his time in which he is living which becoming prompting reasons for finding solutions to those issues are arising out of such developments.
(Author is pursuing Ph.D at Law Department at Kashmir University. Views are his own)