By M. Hanif Lakdawala
History bears testimony to the fact that change in the society, environment and life style, fed by the unveiling of latest information has always posed major challenges to mankind. In modern society hidden and unknown frontiers are conquered and obscure facts decoded at an accelerated pace. Society’s environment and life style is changing as never before.
Islam, in the earlier stages of its civilisation and cultural career met various challenges successfully with the result that it became the dominant ideology of the world and the Islamic world-the lone super power. In his book, Reconstruction of Religious thought in Islam, famous poet and philosopher, Allama Iqbal, writes, “from about the middle of the first century, upto the beginning of the fourth, not less than 19 schools of law and legal opinions appeared in Islam. This fact alone is sufficient to show how incessantly our early doctors of law worked in order to meet the necessities of a growing civilisation.”
But ironically, Islamic world at the door step of the new millennium is at the cross road, confused and out of tune with the reality. The notion, that the Islamic concept of law is absolute and authoritarian and hence immutable amongst the believers is breeding intellectual inertia.
It is argued that Islamic law seeks its basis in divine revelation through the Prophet, it is embedded in the Qur’an and Hadith. Being divine, or divinely inspired, these sources are believed to be sacred, final, eternal and hence immutable.
Philosophers such as Abu Ishaq al-Shatifi argue that the divine law has not provided a ruling for each and every individual case that will ever occur. It has prescribed only universal principles, general statements and a number of examples that provide guidance in an infinite number of cases.
In ‘al-Muwafaqat’, Shatibi writes, “each individual case differs from the other in details and facts. The Qazi or Mufti distinguishes these cases from each other. Two institutions, futya (juris consultation) and hukm (qada, court of law), were developed by the Muslim society to deal with legal cases. A Qazi or a Mufti finds out which general or abstract principle governs a specific case. Sometimes this knowledge is easily available and often it requires a great effort. This whole process is called Ijtihad.”
While defining Ijtihad Shatibi writes, “A process in which one exerts one’s efforts to one’s full capacity in order to acquire exact or probable knowledge or reach judgement in a given case.”
The different schools of thought (fiqh) which exist today is nothing but the collection of Ijtehad done by the various Islamic scholars, prominent amongst them being Imam Abu Hanifa, Imam Hanbal, and Imam Malik.
The Ijtehad done by them were based on the interpretation of Qur’an and Sunnah keeping in mind the changes and the needs of the society at that particular time. To consider their Ijtehad as binding on all Muslims of all eras would lead to intellectual stagnation.
Allama Iqbal in, “Reconstruction of Religious Thought in Islam,” writes “....but since things have changed and the world of Islam is to-day confronted and affected by new forces set free by the extraordinary development of human thought in all its directions, I see no reason why this attitude (finality of legal schools) should be maintained any longer. Did the founders of our schools ever claim finality for their reasoning and interpretations? Never. The claim of the present generation of Muslim liberals to re-interpret the foundational legal principles, in the light of their own experience and the altered conditions of modern life is, in my opinion, perfectly justified. The teaching of the Qur’an that life is a process of progressive creation necessitates that each generation, guided but unhampered by the work of its predecessor, should be permitted to solve its own problems.”
A jurists’ fatwa is merely his opinion and not law. To give it the status of law ‘ijma’ or consensus is necessary. For example, drinking of wine is forbidden by the clear text of the Qur’an but no specific punishment is prescribed for it. The Prophet Muhammad (Pbuh) punished the offenders as it suited the particular case. The Caliphs Hadrat Abu Bakr and Hadrat Umar punished the offender with forty lashes but there was no established law to this effect. In the days of the Caliph ‘Hadrat Uthman when the number of offenders increased, the problem was presented before the advisory council [Majlis -i- Shura] and it was suggested by Hadrat Ali on the analogy of calumny that eighty lashes should be the punishment for this crime which was upheld by the consensus and became law.
Ijtehad and Qur’an
In the Qur’an, it is crystal clear that far from leaving no scope for human thought and legislative activity the intensive breath of these principles virtually acts as an awakener of human thought.
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 well-known verse of the Qur’an ‘And to those who exert we show our path.’
Ijtehad and Holy Prophet (Pbuh)
The Prophet Muhammad (Pbuh), while sending Ma’ad Ibn Jabal to Yemen as its governor, is reported to have asked him as to how he would decide matters coming up before him. ‘I will judge matters according to the Book of Allah,’ said Ma’ad. But if the book of Allah contains nothing to guide you’ then I will act on the precedents of the Prophet of Allah. But if the precedent fails? “Then I will exert to form my own judgement”. The Prophet (Pbuh) approved his answers.
The Qur’anic verse ‘their affairs are (conducted) by mutual counsel’, was applied to its fullest extent by the Prophet (Pbuh) in his private and public life and was fully acted upon by the Caliphs.
Ijtihad and Orthodex Caliphs
The companions of the Prophet were the first to resort to analogy [A form of Ijtihad] when confronted with the problem of the election of Abu Bakr to Khilafat. The Prophet (Pbuh) having asked Abu Bakr to lead the prayers they elected him as their leader, for one who is the leader in religious affairs must also be the leader in worldly affairs. The cause for election is quite apparent and they were justified in electing Abu Bakr as their leader.
The companions were unanimously in agreement concerning the application of analogy. An example is the directive from the Caliph ‘umar to Abu Musa al-Ashari which read; “know the similitude and weigh the cases against them!”
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.
Similarly workers and artisans such as tailors and goldsmiths were not responsible for the loss of things given to them to work upon. Hadrat Ali argued, “although the workers or the manufacturers do not seem to be responsible for the loss of such things, if there is no responsibility they will become quite negligent with the result that the owners will have to suffer a great loss.” Therefore, the artisans and workers must be held responsible, hence ‘Ali’s proposal was adopted by consensus.
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.’
Ijtihad and Four Imams
It is interesting to note that the four Imams Abu Hanifa, Malik, Shafi and Ahmed Ibn Hanbal never advised to follow their views unless their sources were ascertained.
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.
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.”
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.”
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].
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 judgement he will still have earned one reward.”