THE TOOLS OF IJTIHAD

Most contemporary Muslims - and especially Western Muslims - no longer subscribe to the traditional Madhabs (Schools of Law). In classical Islam Muslims were bound to subscribe to one or other of the four schools of jurisprudence. Usually, these schools occupied geographical blocs so that, for instance, the Ottoman Empire was a bloc of Hanafi law. But these geographical blocs have now all but gone and the four schools of jurisprudence no longer dominate as they once did. Modern Muslims do not feel obliged to stay within a single Madhab anymore. This is the result of many factors, including the ossification of the schools themselves but also including the influence of (fundamentalist) Salafism which is hostile to the traditional Madhabs (though itself stemming from Hanbali law). Ironically, "fundamentalist" Islam has inadvertantly promoted greater individualism and eclictism and the erosion of traditional loyalties.

Consequently, contemporary Muslims are left to make legal judgements according to their own devices, drawing on their own resources. It is very unlikely that the traditional Madhabs can ever attain their old dominance, and so modern Islam may be usefully defined as post-Madhab. Modernists tend to promote Hanafi Law as the most liberal and most compatible with the demands of modern life, but attempts to install Hanafi law as a universal standard in modern times have come to nothing.

This leaves questions about how Muslims can determine law in these times. If the old schools of legal clerics are no longer viable, then to whom can Muslims turn for legal determinations since Islam is, first and foremost, a divine Law? Salafis generally believe that Muslims can make their own judgements based on the literal understanding of two sources "Koran and Bukhari". They believe that the traditional Madhabs led Islam astray. Pure Islam, they believe, is plainly obvious to everyone who reads the Koran and Bukhari. Others - probably the wide majority of modern Muslims - tend to use an eclectic approach that takes elements from some or all of the various old schools of law and are not afraid to exercise some personal judgement.

The use of personal judgement in Islam is called "Ijtihad" and many Muslims refer to the modern post-Madhab age as a new era of "Ijtihad". This, as they point out, is a return to the same state of affairs as in the early days of Islam before the four schools of law became codified. In early Islam there was considerable freedom of personal opinion - ijtihad. It was only later that the "gates of ijtihad" were regarded as closed and the orthodoxy of the Madhabs became entrenched. It was believed that all opinions had been settled and there was no need for further deliberation. Moreover, once the gates of ijtihad were shut the successive schools of law moved further and further from the freedom of early Islam - Hanafi's school was earliest and most liberal, but the schools that followed became more and more strict, more and more literal, and allowed less and less room for personal opinion and the use of reason and analogy. Today, however, circumstances have led most non-fundamentalist Muslims to rediscover the idea of ijtihad. Indeed, it is not inaccurate to characterize modern Islam as a struggle between two camps - the Ijtihadis and the Fundamentalists. For non-fundamentalists a new age of Ijtihad is upon us. The great dividing line was the fall of the Caliphate in 1924. Thereafter, the gates of ijtihad are - perforce - open once more. The Madhabs have failed to meet the challenges of post-Caliphate Islam. Muslims are looking for another way.

The following is a framework for making legal determinations drawing upon the various tools developed during the history of Islamic jurisprudence. It is an attempt to sketch a structured method by which contemporary Muslims can go about the task of ijtihad in a modern context. The traditions of Islamic jurisprudence are fantastically rich and diverse. It is a legacy of which Muslims can be proud. But the post-Caliphate/post-Madhab era is a period of reflection and synthesis - we can take stock of the full scope of the legal traditions, learn from their experiences, and synthesize their methods and tools into a "natural" approach. In practise, this is what large numbers of Muslims do already.

Here are a Muslim's tools of ijtihad arranged in a logical and natural rank according to the formula:

In all questions of law Muslims are to refer to Scripture, and foremost to the Koran, and then to the Sunnah, reasoning by analogy where necessary (qiyas), and they are to exercise personal judgement (ijtihad) in view of public interest (istislah), and local custom (urf), and in accordance with their own innate sense of right and wrong (fitrah) and subject, finally, to the consensus (ijma) of the Ummah.

All adult observing Muslims are capable of forming legal judgements in this way and it is not the exclusive right of clerics and jurists.

The tools are:

1. Scripture
2. The Koran
3. The Sunnah
4. Reasoning by analogy
5. Public interest
6. Local custom
7. Innate sense of right and wrong
8. Concensus of the Ummah

These are the matters about which the whole tradition of Islamic jurisprudence has been concerned. The differences between the schools have been because of different weight given to different tools. Hanafi law, for example, uses reasoning by analogy extensively whereas Hanbali law, for example, tries to avoid it in favour of the Koran and Sunnah. But when we survey the four schools as a whole and treat 1400 years of Islamic legal thought as a single body of jurisprudentrial experience we must conclude that Islamic law has developed a range of tools and methods that also include the notion of public interest, local custom, innate sense of right and wrong, and the concensus of the community (Ummah). All of these have a place and a purpose.

The current need is to press all of these devices into a coherent and natural structure suited to a new era of ijtihad. The natural order seems to be:

1. Scripture

The Muslim must be aware of the scriptural background to the matter at hand, by which is meant, primarily, the Laws of Moses. Islamic law is built upon the foundations of Jewish Law. Mosaic Law is residual in Islam. Muslims first lived by Mosaic Law until it was modified by the Koranic revelations. In all legal matters, therefore, we turn not to the Koran first but to the Bible. We must ask the question: Before Islam how did the 'People of the Book' legislate on this particular matter? What is the teaching of the broader monotheist tradition? What is the teaching of the prophets?

2. The Koran

Koran over-rules and abrogates all previous Scriptures. If the Koran makes a determination on any particular matter then it supercedes whatever laws came before it. So, having understood the general background of an issue, we turn to the Holy Koran as the best of guides.

3. The Sunnah

In general, the Koran supplies only broad principles regarding most issues. For the details of the Law we must turn to the Sunnah of the Holy Prophet - peace be upon him - for the Prophet showed us how the Law was realised in action. So, after the Koran, the Muslim must then consult the Sunnah, especially as it is recorded in the Hadith literature. The hadith are the "horizontal" extrapolation of the "vertical" Koran. But a hadith on its own can never contradict the spirit or the letter of the Koran.

4. Reasoning by analogy

Broad though it may be the Hadith literature - the Sunnah - does not cover all circumstances, and so sometimes it is necessary to further extrapolate from the previous sources and reason by analogy assuming that one circumstance is like (analogous to) another. Furthermore, no two circumstances are exactly alike and so it is - in theory - always necessary to reason by analogy, assuming that circumstance (a) is like circumstance (b) - it is unavoidable. As human beings, and tempero-spatial conditions being what they are, we cannot not reason by analogy however much we deny that is what we are doing. Things change. The Prophet cleaned his teeth with a stick. We use a toothbrush. The two things are analogous. The Muslim must, where necessary (and refraining where unnecessary), excercise reasoning by analogy in order to apply the Scripture, the Koran and the Sunnah to his given circumstance.

5. Public interest

Personal judgement does not mean a judgement according to one's selfish desires and for one's own benefit. Muslims are required to exercise judgement selflessly and always with a view to the wider public interest. The question is not: Will this benefit me? but Will this benefit the community, the public good? We know that Allah's Laws are intended for the good of His Ummah and it is quite obviously the Sunnah of the Prophet - peace be to him - to always act in the interests of his people. A legal judgement is unsound if it is blatently contrary to the public interest, if it creates discord or harm. The Muslim must take into account public interest in forming legal opinion.

6. Local custom

Fundamentalists want to create an Islamic monoculture. Saudi interests, in particular, work into Muslim communities throughout the world and seek to impose a single, homogenous style of Islam. Whereas the Prophet - peace be upon him - allowed different styles of Islam among his followers and permitted them to retain their ethnic and tribal peculiarities. The Prophet was a pragmatic man, not a fanatic. As long as all the essentials are in order a certain amount of local colour is welcome. Diversity is a blessing. The Muslim must therefore acknowledge and allow for local customs when making legal determinations. Islam is adaptable.

7. Innate sense of right and wrong

Every man and woman is endowed with the God-given gift of fitrah - an innate moral sense born out of human circumstance. In matters of legal judgement individuals should turn to this moral sense and listen to their conscience, praying to Allah for illumination and guidance. But note - "fitrah" also means "purity". It is the pure state of the new born child. In the natural course of things people lose their "fitrah" as they grow up and it must be restored by religious observance. Consequently, observant Muslims have a deeper sense of "fitrah" than those who neglect the practises of Islam. In theory all Muslims - all people - have an innate sense of right and wrong, but it is blunted by our experience of the world (dunya) and it is the purpose of religion to restore it. Pious Muslims are better able to base judgements on "fitrah" than merely nominal Muslims. In fact, non-observing Muslims - though they will tell you they believe in Allah and His messenger but who neglect the prayer, fail to fast and withhold the zakat - are not entitled to an opinion at all. They are disqualified because they cannot appeal to "fitrah" and have not confirmed their opinion through prayer and meditation.

8. Concensus of the Ummah

Every Muslim must respect the concensus of the Ummah, the global fellowship of Islam. There are certain issues about which all - or most - Muslims agree, and while an individual is free to think as they please, they must respect the opinions of others and this includes respecting the collective wisdom of the body of believers. An individual is not at liberty to form wholly idiosyncretic views that put him at odds with the collective thinking of Muslims as a whole. "Concensus" means broad agreement. It need not mean complete and total agreement across the board. There may be dissenting voices on some matters, but there is a "concensus" if there is a recognizeable, established body of broad agreement among Muslims everywhere. Where there is a solid concensus of opinion on an issue, an individual must take this into account in forming their own opinion and be prepared to admit that they are probably wrong. They must be very, very certain in their convictions if they are to hold views that fly in the face of a solid concensus.

Ijma, then, is a check upon reckless individualism. For example, an individual may hold very liberal views on drinking alcohol, but such views are contrary to the whole thrust of the Muslim tradition and the solid concensus of Muslim opinion. A Muslim is entitled to hold such views but the fact that they are contrary to the concensus of the faithful counts strongly against them. The individual who holds such views should acknowledge this and defer to ijma - unless he or she has a very good reason not to do so. It would be wrong of them to promote their views with aggression and to be contemptuous of the concensus view. The Ummah is to be respected, even where one disagrees with it. The unity of the Ummah is important. A Muslim is not free to hold views which flout the concensus, are wildly idiosyncratic or create either scandal or dissension and strife within the Ummah.

An example of concensus of the Ummah in modern times is to be seen in the issue of slavery. Classical Islam allowed slavery and indeed the Koran legislates upon it. In post-Caliphate times the Ummah - the broader Muslim community around the world - has unanimously agreed that slavery is abolished. The argument that the ultimate intent of the Koranic teachings on slavery was abolition has been accepted. There are some dissenting voices on this matter - there is still slavery in some parts of the old "Islamic world" - but this does not change the fact that there is, for legal purposes, a concensus (ijma) on the matter. This fact must be taken into account in any legal opinions a modern Muslim may form. By ijma it is Law.

* * *

It is reported - but Allah knows best - that the Prophet Muhammad - may peace be upon him - taught that Allah Almighty said, "Neither heaven nor earth contains Me, but the heart of a true believer contains Me."

It is reported - and Allah knows best - that Abd al-Ghani al-Nabulsi, a friend of God - may Allah be pleased with him - said, "Be with Allah. You will find Allah with you."

It is reported - but Allah knows best - that the Prophet Muhammad - may peace be upon him - taught that Allah Almighty said,"I fulfil the faith of he who puts his faith in Me; and I am with him, and near him, when remembers Me."