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THE CONCEPT OF IJTIHAD IN ISLAM
Part-II
By Asghar Ali Engineer
It is important to note that ijtihad is an
accepted concept in Islam. No one, not even most orthodox 'alim, can deny
its legitimacy. Apart from the tradition pertaining to Ma'adh bin Jabal
referred to above, there is also another hadith of the Prophet approving
of ijtihad which says that if one does ijtihad and makes a mistake he will
have one reward and if he does it correctly he will get double reward.
This tradition clearly brings out the significance of ijtihad in Islam. It
must be borne in mind that Islam itself came into existence in a Meccan
society which was undergoing basic socio-economic changes. The pre-Islamic
or jahiliyah laws not only were becoming obsolete but downright obstacles
for further moral, spiritual and material growth of society.
Islam and its laws thus were not the product of a stagnant society but a
society which felt a need for transcendence. Islam catered to the
spiritual, moral and material needs of this newly emerging society. It
gave new principles and laws acutely needed by the people. The Islamic
response to the changing needs of the Meccan society was not only material
but also moral and spiritual. Since Islam came into existence in a
changing society it emphasised the need for dynamism and the principle of
ijtihad embodied its spirit of dynamism.
It was the later generation of 'Ulama who while accepting the principle of
ijtihad in theory de-emphasised it in practice. They evolved the concept
of taqlid (unthinking imitation) in its place though they cannot quote any
hadith from the Prophet in its favour. Taqlid, in a stagnant Islamic
societies, thus became a widely accepted principle, as pointed out above.
However, today all Islamic societies are experiencing fundamental social
changes and rethinking on many issues has become very vital.
The conservative 'Ulama point out that though ijtihad is an accepted
principle in Islam there are no qualified people to indulge in it. They
feel and rightly so that one intending to resort to ijtihad should have
thorough knowledge of the Qur'an and the Sunnah and also of what is known
as usul al-fiqh i.e. principles of jurisprudence. They feel no one,
including themselves, have these qualifications. However, this is not
true. There are many among the 'Ulama, as well as the modern scholars of
Islam, who are qualified to do ijtihad. It is rather fear of consequences
or conservatism, rather than lack of qualification, which deters them from
undertaking ijtihad.
Also, there are internal struggles for controlling institutions which
becomes an impediment. If one 'alim shows inclination to accept need for
ijtihad, his rivals denounce him as 'heretic' and seize control of the
institution from him. A member of the Muslim personal law board n India
confessed privately that it is fear of rivals rather than lack of
perception for certain badly needed changes in matters like triple divorce
in one sitting which is the main impediment.
SOCIAL CLASS OF 'ULAMA
Also, one has to bear in mind that at least in
India and in several other Islamic countries too the people who choose
career as 'Ulama come from poorer and backward classes who have no other
choice. The children from middle and upper classes go for professional
education like engineering, medical or management courses. They can afford
to do so.
However, the parents from poorer classes perforce send their children to
religious institutions as not only education in those institutions is free
but also they get free boarding and lodging.
These children grow up with backward outlook not knowing much about other
developments in the world. Moreover, religion becomes a power in their
hands with which they rule millions of backward, poor and illiterate
masses and also, in many cases, believing educated people who do not care
to study religion by themselves. These sociological aspects of religious
community has to be borne in mind while trying to understand its
belief-system.
In a fast changing world recourse to ijtihad is a must and Islam is among
those religions which approves of healthy change and allows its believers
to not only grapple with the changes taking place around them but also to
strive to reapply Islamic principles of jurisprudence.
As far as ijtihad is concerned it should be made absolutely clear that no
one can change principles and values. These are most fundamental to
religious teachings. Ijtihad could be done only in reapplication of these
values and principles in changed circumstances.
It would be in order to explain what I mean by reapplication of principles
and values. For example, justice in the Qur'an is a most fundamental
value. It is so fundamental that while permitting slavery in a given
circumstances, it is required, in the Islamic Shari'ah, that the slaves
should be fed what master feeds upon himself, and should be clothed in
what master himself dresses in.
This was rightly thought to be a just behaviour in those circumstances.
Now, in the changed circumstances, the principle of justice i.e. its
reapplication requires that slavery be abolished. If slavery is continued
in today's circumstances it would be grave violation of principle of
justice.
NO PLACE FOR SLAVERY
Also, the transcendental aspect of religion
has no place for slavery, it was permitted only as a transient measure. It
is regrettable that our 'Ulama never issued any fatwa for abolition of
slavery before the West did it on grounds of human rights. In fact the
Muslim 'Ulama should have done it, much before the West abolished it, had
they understood the real spirit of Islamic justice.
Similarly, today when women's rights are being universally accepted and
the concept of sexual equality has come to stay, our 'Ulama refuse to
rethink women's issues in Islam. They still continue to insist on those
Shari'ah measures which were evolved by the classical jurists in radically
different circumstances. They fail to appreciate that it is Qur'anic
principles which are immutable and not their application by the jurists (fuqaha')
in their own circumstances.
Again, like slavery, polygamy was a transient measure approved by the
Qur'an in the then given circumstances. Also, polygamy, it should be borne
in mind, was not at all indicative of subservience of women to men nor was
it divine intention to reduce them to the status of second sex. This
thinking came to be prevalent in view of patriarchal structure of society.
The holy Qur'an, if studied carefully and impartially, made several
statements according equal status to men and women (see, for example,
verses 2:228 and 33:35). However, during medieval ages, when women were
thought to be secondary to men, these verses were ignored and verses like
4:34 were repeatedly quoted to prove man's superiority over woman though
the above verse was not value-based like the two other verses (i.e. 2:228
and 33:35) which were value-based.
Today there is a great need that the value-based verses according equality
to both sexes be highlighted and all women related issues thoroughly
re-thought in the light of these two verses, and other verses which tend
to give a slight edge to man over woman be de-emphasised as transient,
valid only in certain circumstances. In the same spirit polygamy should be
strictly regulated, at the most bigamy being permitted in certain
exceptional circumstances by the court. In no case it should be decision
of an individual.
PROBLEM WITH POLYGAMY
In fact the Qur'an had permitted polygamy only
after the battle of Uhud wherein large number of Muslim men were killed,
to take care of widows and orphans. And equal justice with all wives was
strictly stipulated. Today such circumstances do not exist and hence
polygamy should be nearly abolished (allowing bigamy, as pointed out, in
exceptional circumstances). Muhammad Abduhu rightly maintained that it
would be unjust to take another wife in presence of one and hence he
recommended its abolition.
Triple divorce in one sitting is highly obnoxious and is based, not on
Qur'anic injunction but on an hadith of Rukana which is quite
controversial in which Prophet permitted triple divorce. On the other hand
we have hadith widely accepted in which Prophet condemned triple divorce
and he described it as 'playing with the divine law in his (Prophet's )
own lifetime' and he ordered the person to take back his wife. This hadith
has been reported by Ibn Dawood. It is also accepted that triple divorce
was not practiced during the Prophet's time and during the time of the
first Caliph.
The second Caliph allowed it under some circumstances to check its abuse.
The Qur'an does not mention this form of triple divorce in one sitting at
all. It requires that both man and woman appoint their arbitrators who
will finally decide whether divorce should take place or not (see 4:35).
The Qur'an also requires two witnesses for divorce (see 65:2). But we
ignore all these injunctions of the Qur'an and base the practice of
divorce on a hadith which is, at best, quite controversial. Thus there is
a strong case for abolition of triple divorce which is highly unjust to
women and violative of fundamental principle of Islam which is justice.
Similarly we should not treat a woman as half witness. It amounts to
grossly misunderstanding the real spirit of the Qur'anic verse 2:228. It
is far from the Qur'anic intention to reduce women to half witnesses. The
second woman was required to remind if the first woman forgets and not to
treat the first woman as half witness. Moreover, this was stipulated only
in financial matters wherein women, in those days, were rather
inexperienced. In all other matters she was treated as full witness
including in cases of murder (in the case of the assassination of the
third Caliph Uthman, his wife Na'ila was the sole witness and no one
questioned her testimony).
Thus it was not at all the Qur'anic intention to treat woman as half
witness, and now women are experts in all fields as they head many
financial institutions. Thus even in financial matters she should be
treated as full witness in her own right. Moreover the divine
pronouncement in the verse 2:282 is not a value-pronouncement but a
recommendatory one. After all, it is not obligatory on Muslims to reduce
all financial transactions to writing. Many deals take place on mutual
trust. Thus one must distinguish between recommendatory and
value-pronouncements while evolving a rule or a law.
A MATTER OF INTEREST
Another important but controversial matter is
pertaining to bank interest. Does bank interest amount to riba' strongly
condemned in the Qur'anic verses 2:275-278 and 3:130? Most of the 'Ulama
treat the bank interest also as riba' and several books have been written
on this subject. However, there are others modern Islamic scholars who
have studied in depth both Qur'anic injunctions and modern economy and
feel that banking interest should not be treated as riba' and that
interest-free financial institutions should be established to help weaker
sections of society for housing and consumption loans but commercial
banking could be based on interest. If banking interest is treated as
prohibited what about paper currency?
Paper currency also amounts to deferred payment (a promised payment by the
Reserve Bank) and could be included in the deferred payment category (nasia')
which 'Ulama treat as strictly prohibited. Also, stock exchange operations
amount to speculation and should be treated as haram (prohibited) but one
does not see these operations condemned by the 'Ulama as they condemn
banking operations. The Qur'an has condemned riba' as highly exploitative
and unjust and hence its strong condemnation. But the 'ulama treat
interest as prohibited on non-risk factor which is not mentioned in the
Qur'an.
If banking interest is condemned only on absence of risk what about
practice of renting? It also does not involve any risk and will stand
condemned. Thus it is highly necessary to rethink on banking interest
keeping in view the Qur'anic spirit and values. In fact the Qur'an is
strongly opposed to exploitation of one human person by another. Thus what
needs to be decided is whether banking interest amounts to such
exploitation? One should not introduce extraneous elements like risk etc.
in arriving at proper conclusion.
PUNISHMENT OR REFORM
It is also necessary to evolve proper approach
as regards the punishments for crimes like theft, adultery etc. It is
true, the Qur'an mentions cutting off hands of thieves (see 5:38) but the
fundamental question is what is intended: prevention of theft or
punishment. Obviously prevention of theft. Can it not be prevented by
other means. Punishments are instruments of prevention of crime and not
goal by themselves.
Also, punishments are often specific to society and the Holy Qur'an also
prescribed, as an effective measure what was specific to that society but
also added in the following verse that "But whoever repents after his
wrongdoing and reforms, Allah will turn to him (mercifully). Surely Allah
is Forgiving, Merciful" (5:39).
Thus this verse makes it quite clear that real intention is to reform, and
emphasis is laid on Allah's forgiveness and mercifulness. In usual cases
reformatory measures should be adopted and the maximum punishment could be
given only in case of hardened criminals. It would not be in the real
spirit of the Qur'an to cut off hands for any and every theft as is being
done by some Islamic countries.
Similarly the Qur'an nowhere mentions punishment for adultery as stoning
to death. It prescribes only 100 lashes in verse 24:2. Stoning to death
was in fact a Jewish practice which found way in the Islamic law later.
There is no proof that the Prophet inflicted stoning to death on any
adulterous Muslim after revelation of this verse. In fact, half the
punishment for slave girl for adultery in verse 4:25 also makes it clear
that the Qur'an nowhere intends to prescribe stoning to death as
punishment for adultery (how can one otherwise halve the punishment of
stoning to death?).
There are several other new issues like transplantation of organs,
cloning, euthanasia etc. which have come up in our times. The Fiqh Academy
in India has been doing good work in this direction. It has approved of
transplantation of organs to save human life provided it is not of pig.
Cloning of course has not been accepted even by medical profession. It has
been condemned widely as unethical practice and pregnant with dangerous
possibilities. Cloning has been restricted so far to animals only.
However, it is unfortunate that some Muslim jurists are still opposing eye
donation. There should not be any objection if a dying or a dead person's
eye is used to give sight to a living blind person. There is no mention of
such a problem in the Qur'an or hadith literature as such a problem never
arose then. The Prophet has been described in the Qur'an as "Mercy of
the worlds" and can one imagine that such a compassionate person
would have prohibited human beings from restoring sight to a blind person
through donation of one's eyes?
Ends.
Source: http://www.dawoodi-bohras.com
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