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1 Consensus = Ijma Analogical deduction = Qiyas Preference = Istehsan al-maslaha al-mursalah, which means social benefit Common practice = urf Taqlid = as was said before 2 • Concept – Literal – In Fiqah • • • From Quran,Caliphat and Fiqah Needs and limitations Practice of Ijtehad – By Individual – By Institutions • Epilogue_Doors open or closed ? 3 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) 4 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. 5 • mubah (neutral), All behavior which is neither discouraged nor recommended, neither forbidden nor required is of the Mubah; it is permissible. • 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. • 6 • Primary –Quran –Sunnah • Secondary – Ijma – Qyais – Ijtehad – Istidlal – Taqleed – Ijtehad – Istehsan 7 "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 • 8 • 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. • 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 9 • • • 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.’ 10 • • 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. 11 • • • 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.” 12 • • 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]. 13 • Legal Rulings The Shariah regulates all human actions and puts them into five categories: • • • • • 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. 14 Limitations Cant be invoke in : • Creation of universe • Oneness of Allah • Faiths • 5 Pillars of Islam 15 • • 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." 16 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. 17 • • • Gap b/w message and meaning Issues of Language Two basic elements of Law – Dignity – Flexible according to need • • • • • • • • • • 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 18 Areas • Cloning • Organ transplantation • Blood Transformation • Riba • Lewis Brown • Share Trade • Concept of Islamic State • Globalization and its challenges – Jet Lag – Geographical lag 19 • Individual_Mujtahid. – Concept of Shah Wali Ullah_Ulema – Comment • Impossible to find – Sir syed Ahmed Khan_ Intellectuals • Institutional • • • • 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 20 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. 21