Ijtihad in Usul al-Fiqh
Reforming Islamic Thought through Structural Ijtihad
Iran Nameh: A Persian-English Quarterly of Iranian Studies, Vol. 30, No. 3, Nov. 2015, XX-XXVII
Ijtihad, or independent reasoning, has been the first cause of the dynamism of Islam from within for several centuries, and it has worked well. According to this method, Muslim scholars – mostly jurists (fuqaha)—referred to the Qur’an and the tradition of the prophet Muhammad in order to find the practical duties (shari’a) of believers. The ordinances of shari’a that were introduced by the jurists were sufficient for the believers. They enjoyed practicing these ordinances (ahkam), and the order of Muslims’ lives continued without difficulty.
When a new problem occurred, the jurists tried to find its solution according to the traditional method of ijtihad. If they did not clearly find the response in the scripture or prophetic tradition, consensus (ijma’) and a few techniques in each school such as, analogy (qiyas) and her ‘sisters’ (such as istihsan, istislah and so on), or reason (‘aql) assisted them in finding the ordinances of shari’a.
Since the end of the 19th century, it has seemed that the understanding of the fuqaha in the name of the ordinances of shari’a do not fit modern life in regards to some issues. These areas of inconsistency between Islam and modernity have gradually expanded. There were not just a few problems, or a small domain of shari’a ordinances. By the second decade of the 21st century the areas of inconsistency covered almost the whole of non-ritual ordinances of shari’a as well as a few parts of the rituals (manasik or ‘ibadat). These areas include not solely shari’a and practical ordinances, but also include the theoretical parts of Islam in the name of theology (kalam), the interpretation of the scripture (tafsir al-Qur’an), and the science of tradition (‘ilm al-hadith).
It is not just a few elites who found the shortcomings and weaknesses of the understanding of the conservative scholars. The majority of the modern educated Muslims have reached this conclusion. As much as Muslim communities confront the phenomena of modernity, the problems of the inconsistencies of Islam and modernity become larger, deeper and more widespread. To be honest these problems are not exclusive to Muslims: Jews, Christians, and other traditions have had almost the same problems and experiences with modernity.
There are three main approaches amongst Muslims to this issue. The first approach locates the problem within the essence of religions, including Islam. Islam, for them, is the obstacle to modernity, to development and improvement. Eliminating religion from life is the solution. Live, as if there is no God, or assume that He is dead. Subjective or philosophical secularism is the result of this first approach. Happiness is based on departing from Islam and its out of date rules. The time of religions, God, scripture and revelation is over; it is now the time of reason—autonomous.
The second approach involves accusing modernity for this deviation from religiosity. Their solution is returning to early Islam, the pure teachings of the prophet, and the literal understanding of the scripture. Modernity has ruined human spirituality. There were no problems in Islam, shari’a and the understanding of the ‘ulama. The problem is satanic modernity. We may call this approach fundamentalism, and it contains the varied versions of conservatism.
The third approach is between these two radical points of view. It tries to make a way for the consistency of Islam and modernity and to consolidate a product in the name of modern Islam under the process of reforming Islamic thought. According to this approach there exists a big problem, but the problem is not religiosity, God or revelation. The problem is not the essence of Islam. The problem is the implementation of the understandings of the past experts in modern times. The products of ijtihad of the ‘ulama of the past centuries no longer respond to the needs of the Muslims in the modern age. What should be changed is the understanding of Islam—not Islam itself. The understandings of Islam by Al-Ghazali or Sheikh al-Mufid belonged to their times and situations, not to our time and situation.
Although many Muslim experts, including theologians, jurists, scripture interpreters, Hadith compilers and commentators, philosophers and mystics, serviced Islamic teachings during the 14 previous centuries, and their services were quite respectful, rich and wonderful, it is not right to follow them blindly or repeat their works without any revision, or to utilize their frameworks without making adjustments.
This reformist approach has two major elements. The first involves applying traditional ijtihad in response to modern issues. The modern problems are much bigger than the powers of the traditional methods. Thus, most of the problems of modernity have remained unsolved or have been responded to in unsatisfactory ways.
The second element recognizes the insufficiency of traditional ijtihad. There exist a spectrum of views of progressive Muslims in this element from Jamal al-din al-Afghani (Asad-Abadi) and Muhammad Iqbal Lahori to the present and recent past, including those views from Fazlul Rahman, Mohammad Arkoun, Nasr Hamid abu Zaid, ‘Abid al-jaberi, Abdulkarim Soroush and Muhammad Mujtahed Shabestari . Each of them tried to reform Islamic thought from their unique point of view. Although I could offer some critiques of each of them, this does not deny the importance of their effort in the reformation of Islamic thought. I respect all of them and value their works. Regarding their experiences, as well the experiences of Christian and Jewish theologians, guided me to a comprehensive method that could be called “structural ijtihad”, or ijtihad in the foundations and principles. Muhammad Iqbal Lahori, in Reconstruction of Religious Thought in Islam, used this term in 1930. There is an informal agreement amongst progressive Muslims about the necessity of structural ijtihad, but each thinker has used it in different ways. We have many descriptions and prescriptions of structural ijtihad in the past 8o years; now is the time to apply it and show the product of this method in understanding Islam. I endeavor to offer my approach to structural ijtihad in this paper.
Structural ijtihad means revision in the principles and foundations of Islamic thought. The reform should be started beyond and before shari’a, as shari’a is subordinate to many foundations and principles that exist prior to it.
The scope of ijtihad is not only shari’a, fiqh and the practical part of Islam, but also the theoretical part of Islam which includes traditional theology, ethics, the interpretation of the scripture, the compiling and commentary of the hadiths, and so on. We should start with these methods. Traditional ijtihad is based on a science in the name of usul al-fiqh, which could be translated to ‘the methodology of the jurisprudence’. This science is not exclusive to jurisprudence, however. It includes the methodology of all Islamic texts, I mean the Qur’an and the hadiths.
According to one of the best classifications of usul al-fiqh that was made by Muhammad-Rida al-Mizaffar, the distinguished Iraqi jurist of the 20th century, usul al-fiqh has four parts. The first and main part of usul al-fiqh is Muslim linguistic philosophy or the discussions of the utterances (mabihith al-alfaz). The second part includes the rational accompaniments, or consequences (al-mulazimat al-‘agliyah). The third part is in the qualification, credibility, reliability and domain of authority of each of sources of Islamic teachings (al-hujjiah), including the Qur’an, the tradition of the prophet, the consensus, reason, analogy and its ‘sisters’, and customs (‘urf). Consolidation of the sources in the time of inconsistency, contradiction and differences (al-ta’adul wa al-tarajih) is an appendix of this part. Textual sources are full of inconsistencies. What, then, would be the method during the time of the inconsistency of the sources? The fourth part regards the practical principles (al-usul al-’amaliyah) in the absence of four shari’a sources (kitab, sunna, ijma’, and ‘aql or qiyas). Ijtihad and taqlid (following religious authority) are like the conclusion of usul al-fiqh.
These four major parts of ‘usul al-fiqh are the cornerstone of traditional ijtihad, traditional interpretation of the Qur’an, traditional hadith commentary, and traditional theology. Any reform without reconstruction of almost all of these parts of traditional methodology is unsuccessful.
Usul al-fiqh needs reconstruction, not a mild reform. There are many valuable points within it, but it needs enrichment, and continuity of ijtihad throughout itself. We may be inspired by linguistic philosophy, hermeneutics, historicity, and critical thinking. The role of the scholar in understanding the texts is often ignored in traditional Islam. It is one of the main shortcomings of the traditional ijtihad. It is what we should learn from modern philosophers such as Shelayer Makher, Otto, Heidegger, Gadamer, and Eric Donald Hirsch. The result of these additions brings us to a brilliant point: there could be several real meanings of a text. There is no standard meaning of a text. Welcome to diversity and inter-religious plurality! Also we should keep in our minds that the text may not be understood out of its context.
Historicity is another major method that traditional Muslim scholars have ignored. Islamic teachings, as with all other religions, were made gradually in a long process of challenges, evolutions, and under the influence of sociopolitical and economic cultural powers. Studying the genealogy of Islamic teachings is required for all Muslim scholars. It includes the genealogy of Islamic dogmas, beliefs, norms, values and ordinances.
Critical thinking is one of the most important necessities of structural ijtihad. Critical thinking is defined as “an intellectually disciplined process of actively and skillfully conceptualizing, applying, analyzing, synthesizing, and/or evaluating information gathered from, or generated by, observation, experience, reflection, reasoning, or communication, as a guide to belief and action”. The lack of this method is one of the big shortcomings of traditional ijtihad.
Reconstructing usul al-fiqh is only half of the way, as it is ijtihad in principles. The other half of structural ijtihad is ijtihad in foundations. These foundations are the epistemological, cosmological, ontological, anthropological, sociological, psychological, theological, and ethical foundations of Islam. The medieval understanding of these foundations needs reconstruction and revision. Ptolemy’s cosmology (Batlamaous) has been the cosmology of traditional Muslim scholar. The cosmology of the modern Muslim scholar is based on post-Newtonian cosmology.
Aristotelian epistemology has been dominant for traditional Muslim scholars. The epistemology of modern Muslim scholars is neo-Kantian. The ontology of most of the traditional Muslim scholars has been based on the principle of the separation of the existences (tabayon al-wujud). Modern Muslim scholars’ ontology is based on the principle of gradation and the unity of the existence (tashkik va wahdat al-wujud) that was articulated by Mulla Sadra.
According to the anthropology and ethnology of the traditional Muslim scholars, gender equality is not acceptable. Justice is based on natural merits. Modern Muslim scholars generally believe in egalitarian justice and gender equality. On the other hand, according to traditional ijtihad, religion is the basis of different classes of rights for human beings. According to structural ijtihad, rights belong to the human, as he/she is human, and are not dependent on his or her faith, belief or religion. These two foundations produce two different kinds of jurisprudence, fiqh and shari’a.
Who is God? Arbitrary ruler, or just Lord that ought to be just? This is the key question of theology that affects the whole of religious teachings. Although the majority of Muslims follow the doctrine of Ash’raite, and the minority, including Shi’ites and the banned Mu’tazilite, believe in a just ruler, the output of this fundamental axiom has not been apparent in different aspects of Islamic teachings such as ethics, jurisprudence and interpretation of the scripture and hadith. The philosophy of resurrection depends on the response to this key question. Although reason has been accepted as one of the four sources of shari’a, to be honest the jurists have not applied it in its full capacity. Seyyed Muhammad Baqir Sadr, the distinguished Iraqi jurist that was executed by Saddam Hussein in 1979, wrote frankly in the introduction of his fatwa handbook al-fatawa al-wadiha: “I did not use reason, although I believe in it, because after sufficient verbal sources, I do not need it at all”.
What was the philosophy of prophecy? What is our expectation of religion and revelation? Was religious law the ultimate goal of prophecy? This is what traditional Muslim scholars, including philosophers, theologians and jurists claimed. According to this doctrine fiqh became the first ranking and the master of all Islamic sciences. The second result of this doctrine regards shari’a, which became the system of Islamic Law, and thus Islam became law-oriented religion. This was a big misunderstanding. According to structural ijtihad, shari’a is the set of ethical values. The difference between these two approaches is vast. Values are almost permanent, but the law is subject to changes of situation, time and place. There is no reason that the rules that fit Arabia in 7th century should fit the modern time. What remains of those rules taken out of their contexts is the form or the shell, and what is lost is the soul and kernel.
Islamic rules in the time of revelation had four characteristics. They were reasonable, just, ethical and more functional than competing rules, according to the mentality of that time. To be honest, most of the non-ritual ordinances of shari’a do not have all or some of these characteristics, at least according to the mentality of modern times. The form of the rules in the absence of these four characteristics is not a valuable thing to be preserved. The time of traditional ijtihad and its products is now over. Its products do not work in modern times. In the school of structural ijtihad those rules that are not reasonable, just, ethical and better functional according to the mentality of this time are marked as abrogated rules (mansukh). It is a way of minimalizing the scope of religion, but deepening it.
The Qur’an introduced itself as the book of guidance, not the book of law. A few verses in the scripture about the penal code or the rights of women do not mean they are permanent law. The scripture and prophetic tradition had two goals: giving the guidelines of a happy life, and managing the religious life of the time of the establishment of Islam. The former is permanent; the latter is temporal—regardless of whether it is in the scripture or tradition. Traditional Muslim scholars ignored this main point, and took all the content of the scripture and tradition as permanent and timeless. They made quite a bit of difficulty for Muslims through this mistake. Structural ijtihad aims to distinguish between these two types of Islamic ordinances. It keeps the permanent doctrines and teachings, and sends the remainder to the museum of the history of Islam. All of the problems about Islam come from those ordinances that were temporal and were restricted to their special land and situation from the beginning. It was not an unchangeable and inseparable part of Islam. It was a big misunderstanding.
Ijtihad in principles and foundation (ijtihad fi al-usul wa al-mabani) is my understanding of structural ijtihad. I think this is the necessary step of the reconstruction Islamic thought while preserving the soul of Islam.