Download Ijtehad

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Consensus
= Ijma
Analogical deduction = Qiyas
Preference = Istehsan
al-maslaha al-mursalah, which means
social benefit
Common practice
= urf
Taqlid =
as was said before
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Concept
– Literal
– In Fiqah
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From Quran,Caliphat and Fiqah
Needs and limitations
Practice of Ijtehad
– By Individual
– By Institutions
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Epilogue_Doors open or closed ?
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Sharia can be divided into five main
branches:
 Ibadah
(ritual worship)
 Mu'amalat (transactions and contracts)
 Adab (morals and manners),
 I'tiqadat (beliefs)
 Uqubat (punishments)
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
fard (obligatory), Actions in the fard category are those
required of all Muslims. They include the five daily
prayers, fasting, articles of faith, obligatory charity, and
the hajj pilgrimage to Mecca.

mustahabb (recommended), The recommended,
permissible and discouraged categories are drawn
largely from accounts of the life of the Islamic Prophet
Muhammad. the mustahabb category includes proper
behavior in matters such as marriage, funeral rites and
family life, as civil law in the West. behavior is not
mustahabb can be ruled against by the judge.
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mubah (neutral), All behavior which is neither
discouraged nor recommended, neither forbidden nor
required is of the Mubah; it is permissible.
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makruh (discouraged), Makruh behavior, while it is not
sinful of itself, is considered undesirable among
Muslims. It may also make a Muslim liable to criminal
penalties under certain circumstances.
haraam (forbidden). haraam behavior is explicitly
forbidden. It is both sinful and criminal. It includes all
actions expressly forbidden in the Qur'an. Certain
Muslim dietary and clothing restrictions also fall into
this category.
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Primary
–Quran
–Sunnah
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Secondary
– Ijma
– Qyais
– Ijtehad
– Istidlal
– Taqleed
– Ijtehad
– Istehsan
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"Ijtihad" constitutes and effort to opt for one of two or more
possible solutions in a given situation and to provide legal
justification for that solution with legal justification”
• Ijtihad is subjective, it starts with your belief and
conscience. Science is objective, it starts with a tabula raza.
You start with no basic values
In Quran
• Ijtehad literally means ‘to exert’. In the Islamic terminology
it means to exert with a view to form an independent
judgement on a legal question. It has its origin in the wellknown verse of the Qur’an ‘And to those who exert we
show our path.’
• Ijtehad + consensus = IJMA
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Hazrat Ali, when consulted by Caliph Uthman on the
punishment which should be meted out to those who drank
wine, he advised; “We apply the punishment for calumny’,
namely eighty lashes of the whip, because ‘if a person
becomes intoxicated, he knows not what he says, and in
such a condition he commits calumny.” Thus, through this
analogy, drinking of wine was linked to calumny.
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Other examples of Ijtehad by orthodox Caliphs are as
follows; Punishment as prescribed by the Qur’an for the
thief, male or female, is to cut off their hands, but the Caliph
‘Umar suspended it in the year of famine because of
necessity and in order that people might keep alive. The
consensus of jurists followed this rule
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Caliph ‘Umar , observed the principle of sound analogy (Tawil) in
the interpretation of the Qur’anic verse: ‘Alms are only for the poor
and the needy, and those who collect them and for those whose
hearts are to be reconciled, and to free the captives and the debtors,
and for the cause of Allah and the wayfarer, a duty imposed by God.
(9:60)
The words, ‘those whose hearts are to be reconciled’, refer to a
group of weavers who were included among the recipients of the
alms. The verse is silent as to the cause why this group was
included among the recipients of alms.
The sole object was to win them over to the side of Islam on
account of their influence and the high esteem in which they were
held in their tribe. Caliph ‘Umar refused to give them alms when
Islam had gained in strength saying: ‘These were payments from
the Prophet (Pbuh) to you in order to win you over for Islam. Now
Allah has given power to Islam and made your support
unnecessary. So you either remain faithful to Islam or the sword
will be the arbitrator between us.’
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Imam Abu Hanifa and Abu Yusuf are reported by
Ibn Qyyaim al-Jawziah to have said, ‘It is not
legitimate for anyone to follow our view until he
has learned the source where from we derived
those views.’
Imam Mohammad, and Imam Yusuf both students
of Imam Hanifa, rejected eighty percent of Ijtehad
of their teacher Abu Hanifa in the light of new
sources and changed conditions. The Fiqh Hanafi
as it exists today is based on the Ijtehad of both
these students, that is, Imam Yusuf and Imam
Mohammad.
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Ahmad Ibn Hanbal, reputed the most meticulous adherent to the
traditions said, “Do not imitate me, Malik, AlShafi’i or al-Thawri but
learn from the source from which they learned.”
All these statements prove that interpretation is incumbent upon
every man of learning. They also prove that the interpreter is
liable to err. Caliph ‘Umar’s’ instructions to Abu Musa -al- Asha’ri
given in a letter are noteworthy. ‘After giving judgment, if upon
reconsideration you come to a different opinion, do not let the
judgement which you have given stand in the way of retraction; for
justice may not be disregarded and you are to know that it is
better to retract than to persist in injustice.’
Ibn Qayyim writes, “The sharia is all justice, kindness, common
good and wisdom. Any rule that departs from justice to injustice ...
or departs from common good (Maslaha) to harm (Mafsada) ... is
not part of Sharia, even if it is arrived at by literal interpretation.”
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Abu Ishaq Al-Shatibi in ‘Maqasid al-Sharia’ writes, “Allah
made this blessed righteous Sharia accommodating and
convenient and thus won the hearts of human beings and
invoked in them love and respect for law. Had they had to act
against convenience they could not have honestly fulfilled
their obligations.”
In a Hadith of Sahih Muslim, the Prophet (Pbuh) is reported
to have said: “Strive and make effort for each is ordained to
that which he was created for.” In another hadith Prophet
(PBUH) said, “if a judge interprets and gives a right
judgement, he will have earned two rewards, if he interprets
but errs in judgment he will still have earned one reward.”
The new millennium beckons Indian Muslims to approach
the Qur’an and Sunnah with a fresh mind in the light of
changed conditions and new information and move away
from imitation [taqlid].
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Legal Rulings
The Shariah regulates all human actions and puts
them into five categories:
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Obligatory
Recommended
Permitted
Disliked
Forbidden
Obligatory actions must be performed and when
performed with good intentions are rewarded. Its
opposite is the forbidden. Recommended action is that
which should be done. Its opposite is the disliked.
Permitted action is that which is neither encouraged nor
discouraged. Most human actions fall in this last category.
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 Limitations
Cant be invoke in :
• Creation of universe
• Oneness of Allah
• Faiths
• 5 Pillars of Islam
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Iqbal_ worldly matters (muamalaat) relate to
the rights of the people and are subject to
change and modification
King Hussein _(Jordan), "When Ijtihad-the
possibility of reconciling faith and presentday life-stopped a long time ago, that was
the beginning of a very sad deterioration
that has continued over the years and has
opened the way to all sorts of fringe
movements and splits. We need to do
whatever we can to repair that mistake."
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School of
jurisprudence
Formation of Ijma'
Rationale
Hanafi
through public agreement of
Islamic jurists
Shafi'i
through agreement of the entire the people cannot agree on
community and public at large anything erroneous
Maliki
Islamic tradition says "Medina
through agreement amongst the
expels bad people like the
residents of Medina, the first
furnace expels impurities from
Islamic capital
iron"
Hanbali
Usuli
the jurists are experts on legal
matters
they were the most
through agreement and practice
knowledgeable on religious
of Muhammad's Companions
matters and rightly guided
consensus is not genuinely
only the consensus of the ulama
binding in its own right, rather
of the same period as the
it is binding in as much as it is a
Prophet or Shia Imams is
means of discovering the
binding.
Sunnah.
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Gap b/w message and meaning
Issues of Language
Two basic elements of Law
– Dignity
– Flexible according to need
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Law is there but situation is new
Law is there but cause is developing
Law itself is developing
Law and cause both are developing
Rapidly Changing Culture and ideas
Revival of Religion
A return to traditional views of Sharia
The Islamist movement-neo-Sharism, Political Islam
The Fundamentalist movement-Hadood Laws
Extremism-justifying terrorism
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Areas
• Cloning
• Organ transplantation
• Blood Transformation
• Riba
• Lewis Brown
• Share Trade
• Concept of Islamic State
• Globalization and its challenges
– Jet Lag
– Geographical lag
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Individual_Mujtahid.
– Concept of Shah Wali Ullah_Ulema
– Comment
• Impossible to find
– Sir syed Ahmed Khan_ Intellectuals
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Institutional
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Parliament _Iqbal
Cabinet_ Molana Azad
Courts_ Justice Javid
National Institutions _ Courts, Council of Islamic Ideology, Federal
Shariat Court, Research Institutions
– International Ijtehad
• Imam-e-Kaba
• OIC
• Courts of Non-Muslim Countries
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In the fourth century of Hijrah a person called al-Qaffal
issued a Fatwa closing the door of Ijtihad, thus he was called
al-Qaffal which means the one who closes something
Imam Ghazali_ “freezing Islamic thinking in time”
During the Mogul invasion. Rulers feared that under
pressure of occupation by non-Muslim forces that Ijtihad
may lead to misinterpretations. usually if a nation is
defending itself during occupation, it does not have much
tolerance for multiplicity of opinion. Only with security can
one tolerate differences. If the self is threatened it clutches to
certainties, wants to keep them and builds on them. In times
of crises multiplicity of opinion is not encouraged and Ijtihad
is endangered.
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