Ijtihad, the dynamic principal of Islamic Law, helps to keep law ever fresh and capable of facing the challenges of new places and times. Sometimes ijtihad requires looking afresh at Islam's primary sources, the Qur'an and Sunnah, and reinterpreting them according to new circumstances. It may, also, entail going beyond the sources and introducing new legislation under the general framework of the primary sources. The
usuli scholars who deal with the methodology of Islamic law define ijtihad as: "It is the mujtahid's exertion of maximum effort in seeking knowledge of the ahkam (rules) of the Shari'ah through interpretation."
This definition implies four main principles: (1) It is the mujtahid's effort that counts; a
non-mujtahid's effort is of no consequence. (2) Effort must be exerted to the ultimate limits of one's ability. (3) Effort should be directed towards the discovery of shar'i rules. (4) The method of discovery should be based in the interpretation of texts, assisted by other sources.
Ijtihad is not exclusively Islamic. Secular legislators, also, make ijtihad by striving to make laws that conform to the public policies of their societies and advance its objectives. These objectives are often enumerated in their constitutions or bills of rights. Similarly, judges make Ijtihad by interpreting the law. In doing so, they are guided by the wording of the law; the legislators' intentions found in reports and speeches; and interpretations given by other judges in similar circumstances.
The real difference between Islamic ijtihad and secular endeavors is not as much in the nature of the endeavor itself, but in its sources. A mujtahid or Muslim jurist uses revelations contained in the Qur'an and examples from the Sunnah as the main sources of guidance for lawmaking or rendering a decision. He expresses his views under the authority of the Lawgiver. Since the nature of law is religious, the mujtahid is supposed to be a person of piety (taqwa). They should, also, have a good knowledge of:
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Arabic: Language, grammar, syntax and rhetoric.
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Qur'an: Qur'anic principles and themes, the Makkan and Madani Surahs, asbab al-nuzul (occasions of revelation), nasikh wa mansukh (repealing and repealed rules), etc.
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Sunnah: Prophet's traditions from authentic sources of Hadith, knowledge of isnad (chain of narration) and matn (content of text), and the critical method of authentication.
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Ijma': Consensus of the sahabah and earlier scholars.
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Basic objectives of the shari'ah (maqaasid): Protection of religion, life, property, mind and family.
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Context: Situation of the time and place (wagi), and understanding of changing economic, political, and social conditions.
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Customs and cultures of the people.
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Aptitude to make ijtihad: Gifted with an analytical, legal mind and trained to do this type of work.
Islam is the total way of life. Muslims are obliged to live by Divine rules in every aspect of their lives. However, the actual Divine rules given in the Qur'an and the Sunnah are limited. The Qur'an has no more than 600 verses directly related to rules; there are approximately 2,000 ahadith that deal with laws. Muslims agree that the entire Qur'an is from God and is authentic. Ahadith, however, include statements that are definitely from the authority of Prophet Muhammad (salla Allahu 'alayhi wa sallam), as well as statements of questionable authenticity. Additionally, both the Qur'an and ahadith include statements that are of definite meaning and probable meanings. Thus, all statements can be divided into four categories:
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Definite source, definite meaning
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Definite source, probable meaning
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Probable source, definite meaning
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Probable source, probable meaning
The mujtahid's work is to ascertain the authenticity of the source/s and then:
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Discover laws through interpretation of the sources.
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Utilize analogy (qiyas) to extend laws to new cases that may be similar to cases mentioned in the sources, but where laws cannot be discovered through literal interpretation.
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Consider istihsan or istislah (general interests of the community) and the general principles and objectives of shari'ah when extending laws to new cases not covered by the previous two methods.
Jurists go into great detail in explaining rules and limits of interpretation, analogy, istihsan and istislah. The mujtahid, whose basic purpose is to explain and articulate the rule of God (hukm shar'i) in a particular situation, takes on the very serious responsibility of explaining God's Will towards His creatures, as individuals and as communities. The mujtahid explains the hukm shar'i: "The communication from God, related to acts of subjects through a demand, option or through declaration." Here, a demand could be expressed in binding terms (as obligations or prohibitions) or in nonbinding terms that give a recommendation to do or not to do. An option could be expressed in terms of choice for commission or omission, when the act becomes permissible. Declaration indicates the cause (sabab), condition (shart) or impediment (mani) for an action.
Challenges Today. Ijtihad worked very well in the past because jurists had good knowledge of the sources and developed a thorough and comprehensive methodology of interpretation. They were
also well aware of their contemporary situations. Their educational system was not bifurcated between religious and secular studies. They also enjoyed some legislative authority, where the states implemented the laws they made. The state system was not as pervasive as today; they were often free to make their own decisions and judgments.
The situation has drastically changed today. Our jurists have good knowledge of the classical sources, but their methodologies of interpretation have not been updated with new knowledge of language, logic, semantics, et cetera. Additionally, Muslim societies, by and large, lack the required freedom that scholars need in order to find resources, read, assemble, and freely debate issues of concern. Often control over freedom is not only exercised by political authorities, but also by religious establishments. The Islamic educational system has not developed. There is a large gap between religious and secular knowledge. Religious scholars are often not well aware of the socioeconomic and political conditions of their time; politicians, courts and other secular academics are not well versed in religious knowledge.
The sources and principles of Shari'ah, while enjoying the allegiance of the vast majority in Muslim societies, are not taught or applied in a cohesive, consistent or comprehensive manner. This has resulted in the existence of simultaneously running, parallel disciplines - secular and religious-that are often conflicting, rather than complimentary.
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