The concept of ijtihad in Islam
Change is inevitable in human life and society. Dr Allama Iqbal, the noted poet, also says that it is only revolution which is permanent and everything else keeps on changing. In the event of constant change, can religion and religious law remain unchanged?
Again the important question is what is permanent in religion? Is there any component which changes? Does divine mean something static? Then what is the meaning of the Qur'anic verse ...every day He manifests Himself in yet another (wondrous) way (29:55).
Does this not mean that Allah and His creative powers manifest themselves in ever new and wondrous ways? Can then we reject change as blasphemous? Which change is blasphemous and which one legitimate? Does the holy Qur'an reject the concept of change altogether? Does it not invite the unbelievers repeatedly to abandon their ancestors' ways, reflect over changes around them and respond to the Prophet's call? These are very important questions which need to be answered with great deal of deep reflection.
It is true many orthodox souls are horrified by the very mention of change'. They find great consolation in following what they have inherited. What is given' is a proud heritage for them and what is evolving and changing is not only unacceptable but blasphemous'. In fact most of the 'Ulama today set great store by taqlid' (unthinking imitation). In fact taqlid has been elevated to the status of principle today though no such principle exists in Islamic jurisprudence.
What is to be noted is that there is no concept of priesthood in Islam unlike Christianity or Hinduism. Every believer is obliged (mukallaf) to perform all the functions obligatory in Islam. There was no tribe of 'Ulama during the life time of the holy Prophet (PBUH). The companions of the Prophet, whenever faced any problem, requested the Prophet to guide them. The Prophet, either waited for revelation - and often he did so - or guided the companions out of his prophetic wisdom.
After the death of the holy Prophet when new problems arose, the Caliph would hold assembly of the companions and place the problem before it and it would be resolved either in the light of the Qur'an and the Sunnah or in the absence of it through collective wisdom. The best example is of punishment for drinking. When nothing was found in the holy Qur'an and the Prophet's Sunnah Hazrat Ali's suggestion that eighty lashes be given as a punishment for drinking was accepted on the grounds that after drinking a person tends to make false accusation and the punishment for false accusation in the Qur'an was eighty lashes. Thus many other similar problems arose from time to time and the assembly of the Prophet's companion would resolve them one way or the other. Thus the process of legislation continued even after the death of the Prophet.
The Prophet himself had encouraged the faculty of thinking and reasoning among his followers. He himself was acutely aware of the developing situations, possibility of problems arising in future and hence approved of Ma'adh bin Jabal, his companion whom he had appointed as 'Amil (Governor) of the Yemen, exerting himself intellectually (this is what ijtihad means - to strive, to make efforts to solve a problem) to find a solution of the problem he did not find either in the holy Qur'an or in Prophet's Sunnah.
In fact the Muslims continued to face new problems many of which had not been mentioned in the two principal sources of Islam. New problems arose for variety of reasons mainly on account of geographical spread of Islam and the 'adat (traditions and customary laws) of new people embracing Islam. The two principal sources were not enough to resolve these new problems. New concepts, therefore, had to be devised to meet the new eventualities.
Thus the institutions of qiyas and ijma' (i.e. analogy and consensus) had to be used. Thus for Shari'ah these four sources i.e. Qur'an, Sunnah, qiyas and ijma' became widely acceptable for the Islamic legislators. However, the additional two sources i.e. qiyas and ijma' were not acceptable to the Shi'a Muslims. They were limited to Sunni Islam.
In Shi'a Islam the ahl al-bayt (the people of the Prophet's family), particularly the Imams, are considered the absolute authority in not only interpreting the Qur'an but also in pronouncements over new problems. But even Shi'as faced problems after the last Imam (12th in the case of Ithna 'Ashari Shi'as and 21st Imam in case of Isma'ili-Musta'lian Shi'as) went into seclusion. Their place was taken by mujtahids in case of Ithna 'Asharis and by Da'is in case of Isma'ili-Musta'lians. And in case of Isma'ili-Nizaris the problem did not arise at all as one of their Imams suspended the application of the Shari'ah itself.
Grasping and developing
In early Islam i.e. in the first two centuries after the demise of the holy Prophet (PBUH) many qualified people (i.e. those who had adequate knowledge of the Qur'an and Sunnah) among the Sunni Muslims continued to solve various problems - apart from ones which had already been settled - in all sincerity and according to their legislative acumen. They were known as fuqaha' (i.e. those who developed deep understanding of religion and the principles of religion and their application). The Qur'an uses the word fiqh and its derivatives in many places like 78:4, 44:17, 122:9 etc. Thus the process of grasping and developing deep understanding is very central to the whole process of compilation of the Shariah.
Among the common Muslims there is general belief that the Shari'ah is divine and hence immutable. And it is on this basis that they oppose any re-thinking of issues in the Shari'ah. It is not the correct view of the Shari'ah nor this is what is maintained by the competent authorities i.e. the 'Ulama. In fact what is known as the Shari'ah did not descend readymade. It evolved over a period of time and the jurists differed from each other on several issues.
That is why there are several schools (i.e. madhahib) of Shari'ah (five in the Sunni Islam - if we include the Zahiri School also) and three in the Shi'a Islam i.e. Ithna 'Ashari, Zaidi and Isma'ili). Thus it is very clear that the Shari'a is as much a result of human endeavour as of divine revelations. It is differences of human thinking and approach which is reflected in different schools of Shari'ah. In fact in early period of Islam there were more than 100 madhahib (schools) of which only few survived.
Needless to say, these were result of ijtihad. Many eminent and learned Muslims made an honest and sincere efforts to solve the problems confronted by them in their lifetime in the light of the Qur'an and the Sunnah even though they differed from each other. Even the Shi'as who mainly depend on the authority of Imams from the Prophet's family for Shar'iah pronouncements, developed differences (even in matters of principles) as they differed on the question of who the properly appointed Imam was and these Imams also differed from each other on many issues pertaining to the Shari'ah.
Thus the Ithna 'Ashari Imams and the Isma'ili Imams - though all of them from the Prophet's family - differed from each other, for example, on the question of muta' marriage (a time-bound temporary marriage). While the Ithna 'Ashari Imams allowed it the Isma'ili Imams considered it, like the Sunni Fuqaha', as strictly forbidden. Many more examples could be cited to illustrate the differences.
Divine and human
It is also important to bear in mind the two aspects of religion, and it applied to all religions of the world, i.e. transcendental and transient. The transcendental is immutable whereas the transient - as the word itself indicates is subject to change depending on the contingencies of the situation. What we understand by the Shari'ah is composed of both the elements i.e. transcendent and transient or, in other words, the divine and human. The Qur'an also incorporates both the elements. For example the institution of slavery is a transient one whereas the concepts of human dignity, equality and fraternity are all transcendental.
The Shari'ah had permitted slavery as a transient principle, a contingent institution that persisted all through medieval ages. However, it was abolished in our times without injuring any divine principle. Here it is important to understand that principles of the Shari'ah - what is called usul al-fiqh - are fundamental to the Shari'ah and hence are immutable whereas their application in the given human circumstances is contingent and subject to change. There have always been and will always be differences of opinion about the ways of applicability of a principle and hence different schools of thought.
Thus it will be seen that the concept of ijtihad is extremely important if the Shari'ah is to keep pace with developing society. In fact it was the result of human ijtihad that the Shari'ah was compiled as inherited by us. Even qiyas and ijma' were human institutions devised to meet emerging situations not faced by Muslims in Madina during the Prophet's lifetime. The doors of ijtihad remained open for a few centuries specially upto the fall of Baghdad in early 13th century.
In fact the decline of the Abbasid empire even earlier made the 'Ulama and fuqaha' quite apprehensive and they began to conserve what was inherited by them. It was Imam Ghazali who, by compiling his magnum opus Ihya al-Ulum (Revivification of Knowledge), led the process of closing the gates on fresh thinking. It was the period of decline and intense insecurity and what Imam Ghazali did was quite in the interest of Muslim society.
It is true that the 'Ulama, after the fall of Baghdad, felt acutely insecure and closed the gates of ijtihad but this may not fully explain the causes of abandoning the concept of ijtihad in Islam. Ijtihad, as pointed out above, has been very central to the very process of compilation of the Shari'ah rules. One may also point out that after the disappearance of the Abbasid empire and fall of Baghdad, other Muslims empires like the Turkish empire, Safavid empire in Iran and the Mughal empire in India came into existence and these empires were quite powerful ones. Why then the process of ijtihad did not revive.
Firstly, because all these empires did not have the legitimacy which the Abbasid empire had - the Abbasid empire being conceived as the core Islamic empire' and the other later empires being thought as the outer peripheral empires.
Universal empire of Islam
Also, the Abbasid empire being the most powerful and the first one that was conceived as what the noted historian Arnold Toyenbee calls the Universal empire' of Islam. The most talented jurists - some of them under direct patronage of the Abbasid caliphs - engaged themselves responding to new juridical needs which arose in a place like Baghdad which was, at that time, a confluence of several cultures.
These jurists used their talents to interpret the Quran and the Sunnah in response to these needs and compiled the laws of the Shari'ah. Ijtihad became highly useful institution for these jurists who had to exercise their intellectual faculties to comprehend new situations and find solutions to them - what the holy Prophet had advised Ma'adh bin Jabal to do.
However, once elaborate rules were evolved by the classical jurists those who succeeded them did not question these formulations. They acquired universal character and came to be widely accepted. Moreover, during the medieval ages situation remained more or less stagnant and the jurists belonging to the subsequent generations did not feel any need to question the classical Shari'ah formulations. The subsequent empires which came into existence in Turkey, Iran or India also were feudal empires wherein much social change was not occurring. What was formulated by the classical jurists could serve the needs of the people in these empires also. Thus the classical Shari'ah continued to be enforced.
However, a qualitative change took place in Islamic societies from the 19th century onwards. Though until then these societies were feudal in structure but an encounter with colonialism brought about certain basic changes which made people rethink many issues. Also, the Muslim jurists and intellectuals were faced with the criticism by Western scholars and orientalists and had to defend themselves.
Their own legal and juridical categories were found problematic in meeting with the Western criticism. Certain practices like slavery, concubinage, polygamy etc. came under attack. Some 'Ulama withdrew into their shells and simply denounced orientalists and Western scholars as enemies of Islam and unworthy of being taken note of while others, specially modernists among Muslims, answered the orientalist criticisms with creative thinking.
Mohammad 'Abduh of Egypt was disciple of al-Afghani and despite his orthodox training, he spent several years in France as a political exile. He was great 'Alim and rose to be the Grand Mufti of al-Azhar, the premier institution of Islam. He was a great mujtahid and utilised his profound knowledge of Islam to rethink many issues confronting the society. He issued many fatwas, one among them was legitimising interest on postal savings. He also criticised the practice of polygamy which was rampant in Egypt in his time. He laid stress on dignity of womanhood and was in favour of according them higher status. He also emphasised the need for their education.
Creative response to criticism
In India, too, some Muslim intellectuals, though not the traditional 'Ulama, responded to the new developing situation creatively and persuasively, not simply dismissing the Western colonial criticism as mere hostile propaganda. I must emphasise here that the orientalists were not motivated by best of intentions in mounting criticism of oriental societies they encountered and their attacks on Islam were often hostile.
But to dismiss their criticism as mere hostility towards Islam and keeping quiet about the issues raised by them or simply withdrawing into the shells would not have been the right response. It was necessary to take their criticism seriously and apply ones' knowledge and intellectual faculties in creatively responding to the criticism.
Some intellectuals like Sir Syed Ahmed Khan, Syed Amir Ali, Maulvi Cheragh Ali and others rose to the occasion and responded to these orientalist attacks seriously and creatively. Sir Syed Ahmad Khan wrote a voluminous reply to Sir William Muir's Life of Muhammad. He went to London, did his own researches and wrote a convincing reply. Justice Amir Ali wrote his classical book The Spirit of Islam. Similarly Maulavi Cheragh Ali wrote books on slavery, jihad, personal law etc. His book A Critical Exposition of the Popular Jihad is an important work in this genre. Later on Maulana Saeed Ahmad Akbarabadi, though a product of Darul 'Uloom Deoband, was a critical thinker and approved of the need for ijtihad in our times.
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