Reports on: Media
reporting on Fiqh Issue
Week 1: 7 November 2011
Name of the Scholar:
Bilal Philips
Title: Theft, murder
and adultery
Important fiqh lesson:
1)
According to
Islamic law, anyone who dealing with stealing will punish by cut off their
hands because it was stated in Quran. Ruling of Hudud.
2)
Anyone who commit
with fornication and adultery is prohibited (haram) in Islam and will punish by
stone to death.
3)
In order to
apply the Islamic law of adultery issue, it required four witnesses.
Evolution:
1)
Nowadays we can
see that this Islamic law is very rarely to apply
2)
In order to
solve these social ills, we need to apply the Islamic law because this law came
from Allah and only He knows what the best is for His slaves.
3)
We also must look
back to Quran and Sunnah because both of them were revealed by Allah as
guidance to us to solve all the matters in this world.
Reports on: Media
reporting on Fiqh Issue
Week 2: 14 November
2011
Name of the Scholar:
Bilal Philips
Title: Marriage to non
Muslims
Important fiqh lesson:
1)
Muslim male is
allowed to marry two categories of non Muslim female either the Christian or
Judish. (followed the sunnah of the prophet)
2)
But Muslim
female may not allow to marry others than Muslim male because for the sake of
the religion.
3)
Marriage is
requirements (hajiyyat) for both male and female so that, they can have halal
and blessed relationship.
Evaluation
1)
Through having
this marriage, Muslim man who married non Muslim woman can guide or influence
their wives to enter or convert to Islam.
2)
It is good for
non Muslim woman marry Muslim man because when she entered Islam, she become
pure and wipe out all the sins.
3)
Islam is very
beautiful religion because it is not make its believers feel difficult in
whatever they want to do as long as it is not contradict to Quran and Sunnah.
Islam is easy religion and way of life.
Reports on: Media
reporting on Fiqh Issue
Week 3: 21 November
2011
Name of the Scholar:
Bilal Philips
Title: Abortion,
contraception, and population control
Important fiqh lesson:
1)
Islam permits
contraception as long as it is not involved any substances that harmful to
woman.
2)
It is haram for abortion,
contraception and population control unless it happened with valid reasons for
example because of health problem.
3)
It is not
permissible to abort the child after four months since conception because from
then onwards the foetus is a living human being.
4)
The issue of
population control can be consider as public interest or masalih al mursalah which is related to the changeable ruling in
Islam.
Evaluation:
1)
Islam encourages
large family likes what our prophet told us in one of the hadith that “marry the woman who is fertile and loving,
for I will be proud of your great number before (other) nations on the Day of
Resurrection.” ( H.R. Nasai)
2)
Every one soul is equivalent to all
of mankind clearly indicates the value of every life. In surah al Maidah: 32
Allah mentioned that, “Whosoever has killed a soul, it is
as though he has murdered all of mankind."
3)
A Muslim cannot use
population control due to avoid poverty because Allah swt certainly knows the
best for His slaves.
Reports on:
Media reporting on Fiqh Issue
Week 4: 28
November 2011
Name of the
Scholar: Bilal Philips
Title: Women’s
inheritance
Important
fiqh lesson:
1)
If a woman dies without any children, ½ of her
property is inherited by her husband, and the remaining ½ is given to her other
heirs. If, she has children from that or another husband, her husband will get
¼ of the estate, and the remaining part will be inherited by her other heirs.
2)
Islam is very concern about the protection of
property because the neglecting this issue will lead to total disruption and
disorder. The protection of property is essential (daruriyyat) in human’s life.
3)
In Islam, nowadays woman has the right to inherit
the wealth as it was stated in the main sources of Islamic law which is Quran
and Hadith. For example in surah An- Nisa: 11-12, 176.
Evaluation:
1)
Distribution of remaining estate
amongst the heirs is among the duties that a Muslim need to be performed when
dies.
2) The Qur'an improved the status of women by
identifying their share of inheritance in clear terms.
3)
Inheritance is considered as an integral part of shariah
law and its application in Islamic society is a mandatory. Muslims
inherit from one another as stated in the Qur'an in surah An-Nisa: 7 “For men is a share of what the parents and close relatives leave, and
for women is a share of what the parents and close relatives leave, be it
little or much - an obligatory share”.
Reports on: Media
reporting on Fiqh Issue
Week 1: 7 December 2011
Name of the Scholar:
Bilal Philips
Title: Hijab
Important fiqh lessons:
1)
Covering the
aurah is compulsory in Islam and anyone who not cover their aurah properly will
get a sin and then will punish by Allah.
2)
According to
Imam Shafi’e, all the woman body part is aurah, except for face and the palm.
3)
Covering the
aurah will minimize the harm to woman itself.
4)
By covering our
aurah properly, it will protect our dignity and avoid us from getting rape.
Evaluation:
1)
Nowadays, the
western fashion industry is common to Muslimah’s society and they wearing it
because of influenced and exposed by media especially.
2)
We should be
proud of wearing hijab because it brings us to the right way and help us to
know our responsibilities as a woman and the slave of Allah.
3)
As a Muslimah,
we should not wear the hijab because of other people or custom (urf), but we
must do it sincerely because of command from Allah swt.
4) O
Prophet, tell your wives and your daughters and the women of the believers to
bring down over themselves [part] of their outer garments. That is more
suitable that they will be known and not be abused. And ever is Allah Forgiving
and Merciful.
[Al-
Ahzab: 59]
Reports on: Media
reporting on Fiqh Issue
Week 2: 14 December
2011
Name of the Scholar:
Bilal Philips
Title: Homosexuality
Important fiqh lessons:
1)
Homosexuality is
prohibited (haram) in Islam and consider as a sin.
2)
Islam is very
concern about human’s dignity
3)
Homosexuality is
not a choice, although Islam promotes freedom and human right to human.
4)
In Islamic law
the punishment of homosexuality is no different with the punishment of adultery
and fornication.
Evaluation:
1)
In order to
prevent homosexual, parents must separate their children’s beds not only
between boy and girl but also between boy and boy, girl and girl.
2)
Islam stressed
distinction between man and female so that, it is forbidden to man dress up
like a woman and vice versa.
3)
Homosexuality is
against with Islamic teaching because it contradicts with human’s nature (fitrah).
4)
Allah created
man and woman with a reason which is man must be partner with woman and woman
must be partner with man.
Reports on: Media
reporting on Fiqh Issue
Week 3: 21 December
2011
Name of the Scholar:
Bilal Philips
Title: Test tube
babies, sex change operations, organ donations
Important fiqh lessons:
1) Changing gender in general is prohibited as it is considered changing of
Allah’s creation which is not allowed.
2) It is permissible to donate organs is most likely
to be the correct view, so long as the donation will not lead to the death of
the donor.
3)
Islam is very concern about human’s
lineage and dignity. Test tube babies can be haram or mubah (harus) but must depend on intention. (niat)
Evaluation:
1) There is fatwas stating that, test tube babies is not allowed, because it involves uncovering women’s
aurah, touching the private parts and tampering with the uterus, even if the
sperm used is that of the woman’s husband.
2) The change is not legally permissible if the person (male or female) has complete male or female
sex organs. This is because this person would be seeking to change
Allah’s creation, which is forbidden by Allah Almighty as in the verse in which
Allah reports Satan as saying:
............. and I will command
them so they will change the creation of Allah (an-Nisa;119)
3) To take benefit from
any part of a human being is unlawful (haram).
EDUCATIONAL ADDENDUM:
UNDERSTANDING YOUR RIGHTS
UNDERSTANDING YOUR RIGHTS
1. The
Essence of Islamic Law; contributed by Robert D. Crane, Esq., co-founder
of Muslim American Bar Association, formerly of Counsel to AMC, NM (and edited
by Kareema Altomare)
2. Fiqh
and the Fiqh Council of North American; contributed by Yusuf Talal DeLorenzo,
Secretary, Fiqh Council of North America, VA
THE ESSENCE OF ISLAMIC LAW
contributed by Robert D. Crane, Esq., co-founder of the Muslim American Bar Association, formerly of Counsel to AMC, NM (and edited by Kareema Altomare)
contributed by Robert D. Crane, Esq., co-founder of the Muslim American Bar Association, formerly of Counsel to AMC, NM (and edited by Kareema Altomare)
1) The Nature of Islamic Law
Islamic law, known as the shari 'ah, is the framework of
ultimate reality and the ethical guidance that Muslim
scholars have derived from the direct Revelation of Allah to man. Although
Allah reveals the pattern of ultimate truth indirectly through the workings of
the physical universe and in the observable nature of man, the ultimate source
of knowledge about both physical and metaphysical reality - and therefore the
ultimate source of the shari'ah - is the Qur'an. This divine text was revealed
directly in human language to the Prophet Muhammad (saws), and is exemplified
in the sunnah, which reports the Prophet's understanding of this Final
Revelation as shown through his words and deeds.
All Revelation to the Jewish Prophets (saws) and to Jesus (saws) is
binding on Muslims unless specifically abrogated in the Qur'an. The shari'ah is
a specific form of the shar' or path to God which the Qur'an states was
revealed to all the prophets of the Abrahamic succession.
Since the major purpose of Islamic law is to guide man's search for
truth, shari'ah touches on both transcendent and material experience. All
aspects of every person's spiritual understandings and undertakings, which come
under the rubric of purification, or tazki 'yah, should be consciously subject
to the reality-check of Islamic law. This deeply spiritual nature of the shari'
ah provides the perspective for understanding and acting in accordance with the
ethical
or moral standards that the creator has provided to guide every person's
and cornmunity's
Relations with other humans and with the rest of Creation. The shari'ah
therefore provides the ultimate criteria for judgment on every aspect of one's
individual and social life.
2) The Methodology of Islamic Law
The process of gaining knowledge of Islam through jurisprudence, and the
body of legal advisements so derived, is known as fiqh. The shari'ah consists
both of specific rules and regulations, known as ahkam, which are the subject
of istifta, or fiqh analysis, and of general principles induced by scholars
over many centuries from study of the Qur'an, sunnah, and their application in
everyday life.
The specific directives in the Qur'an focus primarily on the elements of formal worship known as the five
pillars of Islam, because man cannot reason to this knowledge alone. These
elements consist of the profession of faith, including the 'aqidah or articles
of faith common to all Abrahamic religions; and the rules for the five daily
prayers, charity, fasting, and pilgrimage.
The general principles of Islamic law, also known as universals (kulliyat), essentials (dururiyat), and goals (maqasid), are derived by a system of
reasoning known as istislah, which focuses on the common good of mankind. This system of thought, in turn, is
part of the broader field of study known as usul alfiqh, or study of the
sources of fiqh Analysis of the general principles of Islarnic law through the
use of intellectual effort, known as iNtihad, gives meaning to the specific
directives and also provides guidance on all aspects of Muslim life in the
variable contexts of time and place. Islamic law thereby gives living
expression to an elaborate science and art of interpreting and applying the
injunctions of the Qur'an and the guidance of the Prophet Muhammad (saws). The
development of an integrated and adaptable legal system which focuses on what
is best for mankind as a whole is one of the most outstanding achievements of
Muslim jurists. The methodology of Islarnic jurisprudence asserts that any
ruling in the fiqh has meaning only to the extent that we can understand its
rationale or higher purpose.
3) Human Responsibilities
The dignity of man derives from his acceptance, before the Creator of
the Universe, of the responsibility to know right from wrong and to be a
steward of the universe charged with caring for it and guiding it in accordance
with the Divine Will. No beings in either the physical or metaphysical worlds
have such a sllblime responsibility.
The rights of the human person and community derive from this
responsibility, because every person and community must be free to carry out
this stewardship. Every man and every woman, every Arab and every Jew, and
every rich person and every poor person are equal in their responsibility to
Allah and therefore in their dignity and in their human rights.
Islamic law focuses on human responsibility, because a focus on human
rights can devolve into the selfishness of seeking to maximize one's own
freedom to do whatever one wants at the expense of others. If everyone would
fulfill all of his or her responsibilities, individually and collectively, then
everyone would be accorded the full range of human rights.
The scholars of Islam, have identified a half dozen overarching
responsibilities, though some scholars will condense these to five or expand
the number by elevating a secondary responsibility to the level of the
universal or essential. The first three concern the essentials of life itself, whereas the next three concern the quality of life.
The first three essential areas of responsibility or duty in Islamic law
are:
a) Respect for life, or "the right to life" known as haqq al
haya This requires not merely respect for the unborn after the spirit or ruh
has been breathed into the fetus, but also such social duties as respect for
non-belligerents in war and the use of dispute settling mechanisms whenever
possible to avoid violence that might threaten the lives of oneself or others.
Respect for life requires most basically an understanding that lasting peace
can result only from justice, and that therefore stability should be sought as
the by-product of sound foreign policy rather than as its direct aim.
Similarly, crime should be combated primarily by addressing the causes rather
than the results of the criminal mentality.
b) Respect for community, or right to one's identity as a
member of a family, community, or nation, known as haqq al nasl. This focus on
the family, and more broadly on expanding circles of community to include
mankind and even all sentient beings in the universe, is unique to Islamic law,
because it implies that sovereignty lies not in the extent of a country's or a
government's power, as it does in Euro-American international law, but in the
inherent dignity of the human person in community. This acknowledgment of the
inherent right of the person to live in a series of legally recognized
communities permits several levels of sovereignty, all subject to the highest
sovereignty of God, and contrasts with the concept of exclusive sovereignty
found in the so-called "nation-state" of the mid-twentieth century.
c) Respect for free, private enterprise, with broad capital
ownership, known as haqq al mal. The principle of freedom for individual
persons to own the means of production has been basic in all Islamic
scholarship until the twentieth century. Unfortunately, the principle of equal
opportunities to own capital or the tools of production has been largely
ignored for over a thousand years because various "rulers" understood
that concentrated political power requires concentrated property ownership.
Denial of access to capital ownership in a capital-intensive economy can amount
to the denial of the right to life itself. Therefore all institutions that work
in practice to concentrate ownership, including the financing of economic
growth through the use of interest rather than by risk-sharing in
joint-ownership, are "illegal," that is, morally illegitimate, in
Islamic law.
The next three of the universals, essentials, or purposes of Islamic
law, which concern the quality of life, are:
d) Political self-determination, or haqq al hurriyah. This is usually
known as "the right to political freedom." Islamically, however, this
term emphasizes the responsibility of both the ruled and the rulers to
establish permanent institutions designed to facilitate broad-based political
participation by every member of a polity in its governance so that they can
help determine their own immediate well-being and long-run destiny.
This universal, like each of the other five, contains a second-order
level of responsibilities that serve to elucidate and carry out the primary
responsibility. In the context of political self- determination, this next
lower level of responsibility, known as hadyiyat, consists of iMma, which is
the duty of the governed to reach consensus
on critical issues, and shurah, which
is the duty of the ruler to be responsive to this consensus. In a complex
society, this might be accomplished best by using a concept of a hierarchy of
assemblies that culminate in a national parliament.
The third necessary element in the system of government prescribed in
Islamic law, in addition to the executive and legislative, is an independent
judiciary charged with applying the principles of Islamic law, especially as
they are spelled out in a formal constitution covering the organs, methods, and
principles of governance chosen by the legislature. The judicial area of
government is designed to limit both the ruled and the ruler so that the
ultimate sovereign, both in theory and in fact, will be Allah.
5) Dignity, known as haqq al karama. The duty to respect human dignity is at the
core of all Islamic law, because the essential purpose of the shari'ah is to
help persons acknowledge and deepen their relationship to Allah and express
this higher level of being especially in their relationships with each other.
There are two major parts of this fifth universal principle of Islamic law.
The most important aspect of the principle of dignity is the duty to
respect each person's need to seek and worship God in his or her own way. This
is known in Western thought as "freedom of religion." In both
traditional Islamic and traditional American thought, this most essential
element of the dignity of man requires that the government avoid any sectarian
bias in carrying out its duty to facilitate freedom of religion in public
affairs.
Another aspect of this principle of dignity, which is second in
importance only because it is so often ignored, is "gender equality."
Whereas the Prophet Muharnmad (saws) and the Islamic teachings of the prophetic
period were breathtakingly revolutionary in recognizing the divinely ordained
rights and responsibilities of women in society, the practice of later Muslims
degenerated to the level of their neighbors and has largely remained at this
level while the rest of the world has begun to understand and share the
sophistication of the original Islamic heritage.
Islamic law recognizes a greater responsibility of wife and mother to
care for the home and children, and a greater responsibility of the husband and
father to support the family. The family, however, is a mutual support group,
whereby all responsibilities are held in common through the principle of collective responsibility, or fard kifaya. It follows from this
that if any duty is not being adequately met, each member has a personal
responsibility, or fard 'ain, to do whatever is required to fulfill that duty,
whether it be the husband washing dishes or the wife working outside the home.
Similarly, to the extent that home duties and the work of financial
support for the family have been satisfactorily accomplished, both husband and
wife have equal responsibility to participate in social and political
leadership when needed for the good of the community and even to accept the
highest judicial, legislative, executive, or entrepreneurial position in the
land if it is offered. There the criterion for judgment is not women's rights
or men's rights, but individual responsibility. Gender is irrelevant when the
issue is personal responsibility to meet the needs of society in accordance
with the requirements of Islamic law.
f) Knowledge, or haqq al 'ilm. A key to success in every aspect of private and
public life is the duty to pursue knowledge. Since the highest purpose of every
person is spiritual understanding, freedom to pursue the path of spiritual
knowledge is paramount. We were created, however, as humans not as angels, so
we have a duty to pursue whatever knowledge is useful to us individually and
collectively in carrying out our responsibilities: to help the marginalized in
society, to promote justice among people and nations, to multiply the material
bounties of Allah, to work constructively in the political process, to
participate with people of other faiths in addressing all the problems of
society, and otherwise fulfilling all the requirements placed upon us by
Islamic law.
The duty to respect knowledge goes beyond the negative task of
protecting freedom of thought and expression, limited only by the duties to
respect human dignity, and extends to the positive obligation of every person
to learn as much as one can throughout one' s life in order to fulfill the
purpose for which one was created.
The nature and specific obligations inherent in Islamic law make it not
only unique among mankind's legal systems but the best suited as the paradigm
of thought within which all religions and all peoples can cooperate in building
a better world.
FIQH AND THE FIQH COUNCIL OF NORTH
AMERICA
contributed by Yusuf Talal DeLorenzo, Secretary, Fiqh Council of North America, VA
contributed by Yusuf Talal DeLorenzo, Secretary, Fiqh Council of North America, VA
As the Muslim community in North America grows to include more
ethnically and culturally diverse elements, the process of istifta ' (in which
consultation takes place between qualified experts on religious law and people
for whom adherence to that law is an essential part of their faith) and the
phenomenon of the "imported" mufti become more problematic. Immigrant
and indigent American Muslims of whatever ethnic or cultural background have
often been disappointed by the lack of appreciation for local conditions and
circumstances on the part of such "imported" muftis. Likewise,
community leaders and members alike have come to realize that the legal
responum orfatawa obtained through the mail, so to speak, from muftis in Muslim
majority countries often fail to address the crux ofthe issues presented to
them for consideration. Quite often, their responses raise more problems than
they settle. Certainly, this is only natural. For unless there is a clear
understanding of the context of a legal question, there is little likelihood
that the solution offered will be an adequate one. From here, the idea seems to
have taken hold among American Muslims that the institution of istifta' or Fiqh
consultation is one that is best supported by those who fully understand and appreciate
the special characteristics of the North American Muslim community and the
circumstances in which it strives to develop.
Over the past twenty years, the community has turned increasingly to
local experts for the solutions to their Fiqh related problems. The experts
consulted have not always had the sort of Fiqh qualifications traditionally
required of muftis, but their understanding of local condition, coupled with
backgrounds in Arabic or Islamic studies have placed them in the position of
being called upon to give opinions on sensitive issues. With the rise of
interest in Islamic studies in American academia, however, a number of Muslim
scholars with Fiqh credentials have come to American universities for graduate
studies, post graduate work, or to fill teaching posts in new or expanding
departments. At the same time, American Muslims, especially converts and second
generation converts (the children of converts), have sought in increasing
numbers to obtain advanced Fiqh training abroad at Islamic universities and
traditional Islamic institutions. All of these developments have made it
possible for the community to draw upon a wider range of Fiqh expertise and
experience.
In recent years, national organizations like the Islamic Society of
North America, the Islamic Circle of North America and the ministry of Warith
Deen Mohammed have seen the need to form committees of scholars to advise on
matters related to Fiqh and the community. Out of one such committee grew the
Fiqh Council of North America, an independent body of Fiqh councilors organized
in view of the increasing need on the part of the growing Muslim community in
North America for considered Shari'ah-based advice and counsel. Its functioning
extends to the needs of individuals and organizations within the cornmunity and
to those with whom they interact, Muslim and non-Muslim alike. By way of
example, over the past year the Council has dealt with questions submitted by
individual Muslims, by local and national Muslim organizations, by the Departments
of Justice and Defense, by Muslim and non-Muslim trial lawyers, immigration
lawyers, and journalists with interests as varied as biological engineering and
third world politics.
The Fiqh Council of North America aims at participating, through its academic
expertise, in the process of facilitating the Islamic way of life in the
secular, non-Muslim environment of North America; and the way it intends to do
this is by providing institutions and individuals with jointly considered legal
opinions and advice that are based on the Qur'an and the Sunnah. The
Council's primary objectives, as outlined in its by-laws are:
1) To consider, from a Shari'ah
perspective, and offer advice on specific undertakings, transactions,
contracts, projects, or proposals, guaranteeing thereby that the dealings of
American Muslims fall within the parameters of what is permitted by the
Shari'ah.
2) To consider issues of relevance to the
community and give, from a Shari'ah perspective, advice and guidelines for
policy, procedure, and practice. Such advice may take the form of position
papers, fatawa, research papers, sample forms for legal agreements, or whatever
else is deemed effective.
3) To consult, on issues requiring
specialized knowledge and experience, with professionals or subject
specialists.
4) To establish and maintain working
relationships with Shari'ah experts worldwide, including muftis, university
professors, researchers, Shari'ah court justices, and members of national and
international Fiqh councils and academies.
5) To assist local and national
organizations in the resolution of conflicts.
6) To advise in the appointment of
arbiters, and review arbitration proceedings and decisions for their
consistency with Islamic legal principles.
7) To commission research on relevant
Islamic legal issues.
8) To maintain and develop a comprehensive
Shari'ah library.
9) To anticipate and serve the particular
needs of minority groups within the community; youth, women, prisoners, recent
converts, etc.
10) To develop a Fiqh for Muslims living in
non-Muslim societies.
In terms of its philosophy, the council's by-laws state that it will
make its decisions jointly, and base them on evidence derived from the two most
reliable sources of revelation: theQur'an and the authentic Sunnah. In doing so
it will employ the principles and methodologies of usul al Fiqh and consider,
where relevant, the various opinions of earlier Muslim jurists. All legal
schools will be considered equally as intellectual resources to be drawn from
in the process of giving contemporary interpretations to the texts of
revelation. In other words, the issue of madhhab or affiliation to one legal
school of thought or another is one which the council considers valid only in
regard to questions of worship or 'ibadat. Yet, even within that restricted
area, new developments have brought about questions that the traditional imams
never considered.
Among the most important approaches of the Council in its treatment of
new issues and questions that apply particularly to the Muslim communities of
North America is its policy of giving additional consideration, in the light of
the higher purposes or maqasid of the Shari'ah, to the circumstances imposed
upon Muslims by the non-Islamic environment that surrounds them.
In classical terms these circumstances are called the ahwal al mahkum
'alayki, and are mentioned only briefly, if at all, in the major works of usal.
While decisions made by the council are the result of collective scholarship
and consideration, members do have the right to write dissenting opinions. As a
part of the process of istifta, the mustafti or questioner has the right to
accept whichever opinion he feels is the more valid. And this is partly a
function of his knowing better what his particular circumstances or ahwal might
be.
Another matter for the consideration of the Fiqh councilor in North
America is that since the tradition al Fiqh of Islam is essentially the Fiqh of
the historical Muslim state and its Muslim majority, it pays little or no heed
to the Fiqh of Muslim minorities except in the form of nawzil issued at times
of crisis, such as during the Mongol invasions, or the crusades, or in the
Moriscan period of Andalusian history. The Fiqh of these periods, however, was
never developed or analyzed as it was considered to have come about under
adversity and therefore fell under the category of legal exception by virtue of
necessity. It is therefore essential that the councilor strive to interpret the
teachings of Islam in a way that is consistent both with the higher principles
of the Shari'ah and with the circumstances of Muslims living in predominantly
non-Muslim societies. Such Fiqh might be known as the Fiqh of Muslims in
non-Muslim environments, and its applications in today's world are probably
without limit.
TOPIC : IJTIHAD IN CONTEMPORARY MUSLIM
THOUGHT
Introduction
Generally, Ijtihad in contemporary
Muslim thought can be defined as the study of Islamic law that based on the
reality of contemporary human’s life. From the 19th century to the present, Islamic religious
thought has presents its arguments as narratives, as opposed to concepts. A
prominent example is the narrative of Ijtihad, the independent interpretation
of religious sources used to make legal decision. Daily life has evolved radically since the last
millennium, but there has been no accompanying development in mainstream Muslim
legal theory. Ijtihad cannot reclaim its former role unless it is allowed to
borrow freely from modern interpretation theory on a range of issues, such as
language, textual criticism, psychology, and so on.
Today, as we live in a
highly complex and technologically advanced world we are facing very complex
problems. For examples such as in genetic engineering, permissibility eating of
genetically altered cattle, in vitro fertilization, and organ transplants, sometimes brings confusion to human life
whether it is permissible or not . All of these problems cannot be solved by
the Shariah. So, in order to solve this problem Prophet Muhammad introduced the
next component of shariah called Ijtihad which is individual intellectual
effort. One who performs Ijtihad is called as Mujtahid. It is necessary for
Muslims to understand four basic sources of shariah which is Quran, Sunnah,
Ijma’(consensus) and Qiyas (analogical deduction) before rely on Ijtihad. These
laws actually cover every action performed by an individual or society.
Ijtihad and modernization are closely
linked. If the term “modernization” is intended to denote renewal, development
and the search for progress in all fields of life, regardless of their
complexity and variety, Ijtihad is the key element for transition from one
stage to another where human beings can fulfil their wishes and aspirations to
a life more prosperous and more secure; a life wherein the rights of the
individual and society are preserved, justice and equality prevail and Man's
dignity is maintained as guaranteed by Allah in the verse, “We have honoured
the sons of Adam.”
The
Meaning of Ijtihad
The
literal meaning of Ijtihad is the expending of maximum effort in the
performance of an act. Technically, it is the effort made by the Mujtahid in
seeking knowledge of the ahkam (rules) of the shariah through interpretation. It means that, the Mujtahid should expand the
maximum effort that is he should works to the limits of his ability so much
that he realises his inability to go any further. An effort expended by a non-Mujtahid
is of no consequences, because he is not qualified to do so. The effort should
be directed towards the discovery of the rules of the shariah that pertain to
conduct. All other types of rules are excluded. The method of discovery the
rules should be through interpretation of the texts with the help of the other
sources. This excludes the memorisation of such rules from the books of fiqh or
their identification by the mufti. Thus, the activity of the faqih and the
mufti cannot be called Ijtihad.
In another book, we found
that Ijtihad literally means creativity (Ifti’al) derived from hard work or
over exertion (al-juhd/al jahd). They say al juhd is hardship (al-mashaqqah),
which also refers to ability (al taqah). Thus, Ijtihad is derived from al juhd,
meaning hardship and ability. Therefore, Ijtihad is characterized by its
hardship in producing a product. Technically, Ijtihad according to Al- Ghazali,
is as “over exerting one’s self in search of the knowledge of shariah rulings.
The complete Ijtihad is when one over exerts himself in the search to the
extent that he feels incapacitated to go beyond that search”
The word Ijtihad is derived from the Arabic root
word of jihad. This word derives from
the three-letter Arabic verbal root of ج-ه-د (jahada,) which means "struggle”.
It means striving to the utmost to discover the
law from the texts through all possible means of valid interpretation. It is a
certainty that Allah the Almighty has laid down and expounded all rules of the
Shari'ah; hence most scholars are assured that they will reach these rulings.
If some people fail to reach such rulings, it is impossible that others won't
manage to come to these judgments. For Allah has not placed on us burdens
greater than we can bear; Allah has not commissioned us with performing
impossible missions.
The Scope of Ijtihad
Ijtihad
has a large extent and unlimited scope. It may cover all matters associated
with the life of the Muslim. So, the scope of Ijtihad, subject to the
aforementioned rules, encompasses all issues and matters that hold the interest
of Muslims. Islam tackles all aspects of life and touches upon
all human situations. For example, Islam is very concern and takes serious with
issues of marriage, finance, justice, warfare and others. Since contemporary Ijtihad rests on the
shrewd adaptation of the religious texts that are definitive in their
affirmation and reliability to the requirements of the time and place where the
Shariah is applied, the subjects of Ijtihad should cover all matters that
promote the public interest of Muslim society and advance the five general
necessities or purposes which is the preservation of religion, life, intellect,
lineage and property.
Ijtihad is not a
source of law; the sources in the true sense of the term are the texts of the
Quran and the Sunnah. It is an activity, a struggle, a process to discover the
law from the texts and apply to apply it to the set of facts awaiting decision.
The first restriction that is placed on this activity is there is no Ijtihad
within an explicit rule in the texts (la ijtihada ma’ al nass). This implies
that when the rule stated in the texts is so clear that more than one meaning
cannot be derived from it, the jurist is prohibited from undertaking ijtihad in
it. The examples of these are the word “hundred stripes” or the words “cut off
their hands”. Here the word hundred has a single meaning, but the word stripes
may be subject to interpretation. Hundred cannot be converted to two hundred.
However, one may ask: what kinds of stripes are intended here with respect to
the instruments used the intensity of the stroke and so on. In the cutting of
the hand, the hukm is clear that the hands are to be cut, but what is the exact
meaning of the term yad, which may extend from the elbow to the fingers, and
whether the left hand is to be cut or the right. Again there may be questions
about the thief and about the value of property stolen. These questions are
first answered on the basis of the texts themselves that is through the Quran
and the Sunnah. If a meaning is given in these texts, it becomes the legal
meaning and is to be followed, irrespective of its conformity with the literal
meaning of the word. When no explanation is available, the jurist looks for
literal meanings and uses his own reasoning and judgement to arrive at the
appropriate answer. In this case the literal and technical meanings would be
the same.
The first method
used by the jurists, as explained earlier, is that of literal interpretation.
We may refer to it as the first mode of ijtihad. When the set of facts awaiting
decision is not covered by literal meanings and implications, the jurist
undertakes analogy. The form of analogy used here is very strict and goes by
the name of qiyas al-illah. This entails the extension of the meaning to a new
case from a single text of the Quran or the Sunnah with a specific meaning on
the basis of a common underlying cause. Thus, we may call this as the second
mode of ijtihad. In case this method of extending the hukm does not solve the
problem, the jurist undertakes the extension by considering the texts
collectively, that is by looking at the spirit of laws. For the third mode of
Ijtihad, the jurist uses the general principles of the law by referring them to
the maqasid al shariah and checking them against these purposes.
For
the first two modes, it is necessary that the jurist know the Arabic language,
the science of usul al fiqh, as well as the texts. For the third mode of
ijtihad, writers like al Shatibi are lenient, and they may maintain that it is
possible for a person to derive the law through the maqasid al shariah even if
he does not know the Arabic language, because meanings are conveyed by the
principles themselves. It is suggested, however, that the derivation of the law
entails a heavy responsibility, and it is better if the person interpreting the
law is well qualified. The jurists in general practice three types or modes of
Ijtihad. In reality, the activity of the jurist cannot be split up into
separate modes. Ijtihad is a single seamless process, but for simplification
and ease of understanding this activity is divided into three types.
In the first mode, the
jurist stays as close as he can to the texts. He focuses on the literal meaning
of the texts that is he follows the plain meaning rule. In doing so, he first
tries to find explanations for difficult or unelaborated words from the texts
themselves. He moves to other sources, like the meaning of words in literature,
later. This also depends on whether the words have been used in the texts in
their literal sense or their use is figurative. (haqiqah and majaz ). The text
may not indicate the required meaning through a plain reading. In such a case,
the jurist will use other techniques called dalalat, through which the implied
meanings are ascertained.
The second mode of Ijtihad
is confined to the use of Qiyas. This is because when the first mode of literal
construction is exhausted by the jurist, he turns to syllogism, which is called
qiyas. This mode is confined to strict types of analogy as mentioned before.
These are called qiyas al ma’na and qiyas al-‘illah. Certain loose forms of
analogy like qiyas al shabah or analogy of resemblance are rejected by some
jurists. The reason why only strict methods of analogy are approved is again
the desire of the jurist to stay close to the intention to the Lawgiver. If
very loose methods are adopted the Islamic colour of the legal system may be
lost. Qiyas is, therefore, designed to be a strict type of analogy and may be
said to apply to the process of finding an exact parallel. The second mode of
ijtihad is confined to the extension of the law from individual texts.
As said before, for the
third mode the reliance is on all the texts considered collectively. This means
that legal reasoning undertaken more in line with the spirit of the law and its
purposes rather than confines of individual texts. The spirit of the law and
its purposes can be witnessed clearly in the general principles of the legal
system. The principles are used by methods like istihsan and maslahah mursalah.
The third mode of Ijtihad provides the jurist with the opportunity to generate
new principles provided he observes a prescribed methodology and fulfils the
conditions imposed for such legal reasoning.
The Importance of Ijtihad in Contemporary Muslim Thought
It is very important and good for contemporary Muslim thought
to practice Ijtihad. This is because Ijtihad is the one that keeps pace with
current trends or the one that assimilates the spirit of the era. We are actually in dire need of ijtihad; if there
were no ijtihad, the number of Muslims who would behave according to their
personal opinion or according to non religious norms would multiply in every
generation. As a matter of fact, this would constitute a deviation from the
teachings of Allah since behaviour will follow human criteria and be shaped
according to personal desires. Accordingly, this would considerably undermine
the public interest. That's why ijtihad was legalized in every time and place
provided that the mujtahid is eligible for this task and abides by the terms
laid down by the scholars.
The main function of the ijtihad that
improves our conditions and edifies our societies consists of upholding and
preserving the interests of people in all events. This is consonant with the
spirit of Islamic Shari'ah which Ibn al-Qayyim expounded in such clear,
illuminating and clear-cut phrases as the following: “the foundation of the
Shari'ah is the safeguarding of people's interests in this world and the
hereafter. In its entirety it is justice, mercy benefit and wisdom. Every matter
that leaves justice for injustice, mercy for its opposite, benefit for harm,
and wisdom for foolishness, does not belong to the Shari'ah even though it is
attributed to it by means of false reasoning. The Shari'ah is the justice of
Allah amongst His servants. It is His mercy amongst His Creation, His
protection over His Earth, and His wisdom which is an indication of Him and of
the truth of the Messenger, peace be upon him.” So, from that statement it is
clear to say that the practising of Ijtihad in comtemporary Muslim thought is
important in order to improve our life’s condition and provides peace and
harmony for the society and environment.
On the basis of Ibn al-Qayyim's words,
we can say that every ijtihad that leads to justice, mercy and benefit, and
eliminates injustice, cruelty and harm is indeed upholding the objectives of
the Shari'ah. Accordingly, every matter in which ijtihad is employed to achieve
the objectives of the Shari'ah constitutes one of the necessities of the
Islamic society that should be awarded due attention and consideration.The
political, economic and political reality of contemporary life has brought
about numerous and complicated problems in the Islamic society. Hence, they
must be addressed by the Shari'ah through a thorough understanding of the
objectives set forth by Islam and through heightened awareness of current
issues.Given this situation, ijtihad has presently become not only a need but a
requirement for the Muslim society wishing to live according to Islamic teachings.
More than that, ijtihad is not only permissible but it constitutes nowadays one
of the collective duties on all Muslims in order to regulate all religious and
worldly matters; if some perform these collective obligations in a competent
way, then the rest are absolved of sin.
Issues and subjects of ijtihad
encompass all aspects of Muslim life and they are not confined to
jurisprudential matters in the purely terminological significance, or to legal
matters in the limited professional notion, but they also cover political,
administrative, economic, social, scientific, medical, environmental and
educational aspects as well as any element in relation with the present and
future of the Muslim society. The Islamic Ummah is facing today numerous
challenges and problems in all spheres of life. Any counter-attack should
necessarily be engaged through sound opinion and shrewd knowledge that are
founded upon a thorough understanding of the texts and an enlightened ijtihad
that moves the Ummah from the state of weakness and backwardness to that of
power and progress. This process should also seek to maintain the public
interest and abide by the objectives of Islamic law which are laid down in
order to repel confusion and make things easy for people. Allah said, “And has
not laid upon you in religion any hardship”. It is in this way that the
validity of Islam for every time and place is confirmed.
The ijtihad associated with the
application of religious rules to their corresponding events involves all
communities of the Ummah; it cannot cease since the “taklif” (responsibility
according to capacity) is well-founded. This kind of ijtihad is termed as
“Tahqiq al-Manat”, which consists of verifying the attributes ('Illah) of an
established case in a new case (far') re-offered for examination, for example
ascertaining the presence of the 'Illah in the new case where the ruling is to
be extended.If ijtihad is, in an all-encompassing phrase, the science laid by
Islam in order to involve competent scholars in legislation and interpretation
of the divine message - thus making Islamic Shari'ah adaptable to the public
and private interest in all times and locations, contemporary ijtihad, or the
ijtihad that keeps pace with current changes, is the science which materializes
the interests of the Ummah and maintains their constant stability and their
adherence to the principles of the Shari'ah. In this way, ijtihad shields the
Ummah from deviation and confusion and prevents any legislative failure as well
as inclination to positivist laws which are unjust in most instances and
incompatible with the objectives of Islamic law in numerous cases.
Who is a
mujtahid today?
Despite the emergence of great
mujtahids at the end of the 19th century and the beginning of the 20th century
in a number of Arab Islamic countries, some of them received fierce criticism
not only from rigid and traditionalist scholars but also from those who are
supposed to assimilate the mission of ijtihad and who blame the jurists and
scholars for not performing ijtihad. In the present times, possession of all
qualifications is not likely to bestow the status of mujtahid on a person. The
reason for this is that much depends on acceptance by the people. As there are
established schools today, the need for such acceptance by the people does not
exist. It is for this reason that jurists like al-Sarakhsi,al-Ghazali and many
others who may be said to possess all the qualities of full mujtahids were not
granted such a status.
In this regard, Sheikh Muhammed Abdou,
who was considered as one of the leading mujtahids and the pioneer of one of
the renewal schools in Islamic thought, was severely criticized and disparaged.
Surprisingly enough, his detractor was nobody but Dr. Taha Hussein who was
considered as one of enlightenment pioneers in the Arab world. What is
distinctly odd is that Muhammed Abdou's critics were partisans of a certain
jurisprudential and intellectual school, but none of them was belonging to the
school of (enlightenment) of which Dr. Taha Hussein was supposed to be one of
the eminent figures.Dr. Taha Hussein said in an article that appeared in a
French magazine published in Paris in 1934, “Sheikh Muhammed Abdou has
undoubtedly shaken the Islamic world as a whole, awakened the oriental mind and
thought the Orientals how to have a liking for the freedom of thinking.
Mohammed Abdou was no longer able to capture the spirit of his time to such an
extent that the tact he used in bringing about renewal and innovation appeared
to lack audacity. Thoughts and words are not enough; there is an attempt at
action (sic); all Mohammed Abdou's thoughts concerning science and religion
have become outdated and are no more compatible with the Orientals' adherence
to the greater freedom.”Dr. Taha Hussein went on saying, “there are few Muslims
who seek to reconcile between their faith and their acquired knowledge while
they joyfully rush upon western civilization and set it as a high ideal.”
Ijtihad was performed in all Arab and
Islamic countries throughout the 20th century. In this regard, an
intellectual from the Kingdom of Saudi Arabia, Amin Madani, brought some
attractive and innovating ideas in an original research paper published
twenty-seven years ago; he said, “Islamic law has not stood in the way of
evolution, nor has it constituted an impediment to progress in all Islamic
eras. Indeed, it has assimilated each generation in its melting pot and shaped
it in accordance with Islamic Shari'ah. Since the era of Islamic conquests,
Islamic legislation has codified laws in such a way as to benefit society;
law-makers in every generation opted for the simplest solutions and they would
willingly lift any easily removable restrictions. Individuals in charge of
law-making have to assume their duties by establishing rulings for cases that
were not expected by the ancients.” Amin Madani expressed a courageous
intellectual stance in which he formulated his own concept of innovating
ijtihad; he said, “Giving every novelty a negative and static response is not
an impediment to it; on the contrary it encourages its dissemination because
everyone is filled with a desire for evolution. If the novelty is not examined
in a practical, wise and flexible approach, the masses will avert negativity and
adopt the novelty with all its implications on the premise that it is one of the
requirements of evolution.”
Sheikh Yusuf al-Qaradawi is among the
most prominent Islamic figures who expressed his views in many issues regarding
to the Muslim societies. He mentions that Ijtihad in the contemporary context
consists of two kinds which are Ijtihad Intiqali and Ijtihad Inshai. Ijtihad
Intiqali is ijtihad based on what our traditional legal giants have bequeathed
to us while Ijtihad Inshai is ijtihad based on issues the likes of which were
never seen by the previous scholars. Contemporary
ijtihad should address the needs of people in such a satisfactory way that it
paves the way for a decent and peaceful life.In this regard, Dr. Yusuf
al-Qaradawi says, “We should be cautious not to be prey to the pressure of the
prevailing reality in our contemporary societies. This reality is not created
by Islam through its creed, law and morals; it is brought about neither by
Muslims' free will and accord, nor by their minds or hands. It was rather a
reality that was imposed on them in times when they were unmindful, weak and
disunited, whereas their colonizers were strong, alert and proficient. As
Muslims could not at that time set their selves free, the subsequent generations
inherited this reality and matters remained unchanged. Hence, the essence of
ijtihad does not consist of finding justifications for this reality, making
texts subservient to it and fabricating fatwas to lend legitimacy to its
existence.”
This does not imply that the current
era is an absolutely corrupt one and that keeping pace with it is not valid.
Religion, rationality and wisdom call us to employ our minds to look for the
public interest and to accurately evaluate the ensuing needs so that we can be fully
aware of the particularities of our present era. The ultimate goal is to
acquire a thorough understanding of our contemporary problems, issues and
needs.Consequently, we will acquire a new fiqh based on ijtihad which would
serve as a foundation to assimilate current problems and as a framework for
contemporary ijtihad in order to find solutions that are in full consonance
with the rules and spirit of Islamic Shari'ah.
Conclusion
As a conclusion, Islam has made the
fruit of ijtihad, jihad and perseverance in every activity, as the guidance
from Allah to man in all spheres of his life. Allah the Most Gracious said “and
those who strive in our (cause) We will certainly guide them to our path...” (Al-Ankabat:
69). This verse indicating that jihad in this context refers to doing one’s
best in achieving Allah’s pleasure in all sphere of our life.
In order to perform Ijtihad, a Muslim man or woman should be
thoroughly familiar with the sciences of Qur'an and the Sunnah, comprehend the
wider purposes of the Shariah and understand Arabic correctly. On complicated
and complex issues of law, Ijtihad should be previewed by trained scholars. Any
Muslim or Muslimah with some knowledge of religion can perform Ijtihad on
certain matters, particularly those of personal concern. For example Muslims
have been practicing Ijtihad routinely in determining the direction of Qibla or
to ascertain the times of prayer by the position of the sun. The Hanbali scholar,
Imam Ibn Taymiyah(1263-1328 CE) wrote that " a Muslim can perform Ijtihad
for himself or herself on certain questions, it is permitted, because Ijtihad
is not an absolute-the pivotal point is ability or the lack there of. Thus a
person might be able to perform Ijtihad on certain questions and not
others."
Basically contemporary
Ijtihad does account for the context within which we tackle the
necessities of ijtihad and the necessity to observe the requirements of
contemporary life presupposes that we determine the meaning intended by
contemporary ijtihad. Accordingly,
contemporary ijtihad does not entail that we should adapt ijtihad to the
characteristics of the era in which we live as this has no bearing to the
religion. Rather, contemporary ijtihad should faithfully convey and strictly
observe the interests of the Muslim community. To be genuine, effective and influential in the
life of Muslim societies, contemporary ijtihad has to be carried out in
conformity with the general objectives of the Islamic Shari'ah; it has also to
build on the conviction of the validity of this Shari'ah for every time and
place. Otherwise, ijtihad would depart from the essence of Islam and
accordingly lose its legitimacy.
Bibliography
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Abdul Azib Hussain (2012), Manhaj Ilmu Fiqah dan Usul Fiqah, Kuala Lumpur: Telaga Biru Sdn.
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Nyazee, Imran Ahsan Khan (2000), Islamic Jurisprudence, Islamabad: IIIT,
Islamic Research Institute.
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Nyazee, Imran Ahsan Khan (1994), Theories of Islamic Law: The Methodology of
Ijtihad, Islamabad: IIIT, Islamic Research Institute
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Jamal Badi, Mustapha Tajdin (2004), Creative Thinking: An Islamic Perspective, Kuala
Lumpur: Research Centre, IIUM
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