For most of us, Denmark evokes an image of a country that over the past few decades has become a near perfect showcase of a Socialist Democracy. So how was this sleepy little Scandinavian country thrown into the limelight recently? Just because of some ludicrous cartoons, some might say. For others because it fired the opening salvo that lit the already smoldering keg of Muslim resentment. The cartoons also started a debate about the primacy of free speech over religious and racial harmony in the West.

Free speech in modern history has become a sacred cow of Western ideology and ideals. It has to be defended at all costs. Thus A. C. Grayling who is a Professor of Philosophy at Birkbeck College, University of London, wrote the following in 2006 that nicely sums up the Western outlook:

“Free speech is the fundamental civil liberty. Without it none of the others is possible. I applaud the newspapers in Europe that have shown solidarity with Denmark’s Jyllands-Posten newspaper by reprinting the cartoons, and regard our own Foreign Secretary as pusillanimous in buckling to the artificially inflated hysteria of those who think that feeling offended gives them a license to censor other people’s freedom to criticize and satirize whomever they wish. I am strongly in favor of freedom to comment on anything, including religious matters. There needs to be some possibility to protect not only from direct incitement but from things that lead indirectly to violence. I think the spread of falsehood that can incite fear and hatred is something that should be controlled. I think people should be perfectly free to caricature any aspect of religion they wish. I am always baffled as to why it is considered blasphemous. It is made clear in Islam that Muhammad is not a divine figure. He is a human figure.”

One might argue that he has a point. If Christians can make fun of Jesus Christ on a regular basis then why cannot Muslims do the same? It was precisely this position taken by Flemming Rose, Jyllands-Posten’s culture editor when he wrote:

“The modern, secular society is rejected by some Muslims. They demand a special position, insisting on special consideration of their own religious feelings. It is incompatible with contemporary democracy and freedom of speech, where you must be ready to put up with insults, mockery and ridicule.”

However, some have questioned whether it was the burning need for self-expression and to uphold the flag of free speech that made them do all that or was it just another ruse to embarrass Muslims and vent their religious contempt against them. Some in fact have criticized the paper for holding double standards. Thus, the counter argument made by Muslims in general and some non-Muslims against the cartoons hinges on two separate grounds. First is utilitarian: given the tastelessness of the caricatures and the general message behind them was it worth it? Second (and more importantly) is ethical: what are the limits of free speech and should it apply equally to all (in our case the minorities)? Many Westerners claim that this is the case. For Muslims the answer is a resounding no. Many Muslim newspapers for example, have quoted the laws governing holocaust in Europe. For them it is this kind of duplicity that makes the arguments made by people like A. C. Grayling look spurious.

The whole affair resembles a bullfight. A bullfight is staged, calculated, and entertaining for the spectators. The matador has the brains and skill and the bull has the brawn. Usually the former wears-out the latter. When the Muslim community was first flashed the cartoons in 2005, they did what they usually do – mount a furious and feral initial response. There were attacks on embassies, ritual burning of flags, processions, marching and so on. They looted and plundered their own public properties. The upshot? One might claim that some of the bigger papers were somewhat intimidated into not printing the cartoons. And then it all died down – only to resurface in February 2008 when the cartoons were reprinted in a Danish newspaper. This time many major Western papers followed suit including the New York-based Wall Street Journal and Britain ‘s The Observer. There is even a website that openly flaunts these cartoons.

This time there were sporadic protests. For example, close to 3,000 students in Mauritania marched through the streets of the capital Nouakchott early 2008. According to some reports at least 50 people have been killed in the protests so far. Although the charge after the publication of cartoons three years ago continues – it is nowhere as vigorous as before. While a museum in Copenhagen planned to acquire the 12 original Danish cartoons to preserve “a part of Danish history,” some Muslim leaders have suggested that it was time to “move on.” It seems as if the bull is finally worn-out.

Poem: Jawab-e-Shikwah
Poet: Mohammad Iqbal

As one who identifies himself strongly with the idea of a liberal Islam and also advocates moderation in the manifestation and – expression of Islamic politics, I believe it is important that we flush out this “political identity”. In an era when who we are determines what we do politically, it is imperative that we clarify the “we” in politics.

American media uses the term moderate Muslim to indicate a Muslim who is either pro-western in her politics or is being self-critical in her discourse. Therefore both President Karzai of Afghanistan and Professor Kahlid Abul Fadl of UCLA wear the cap with felicity, the former for his politics the latter for his ideas.

Muslims in general do not like using the term, understanding it to indicate an individual who has politically sold out to the “other” side. In some internal intellectual debates, the term moderate Muslim is used pejoratively to indicate a Muslim who is more secular and less Islamic than the norm, which varies across communities. In America, a moderate Muslim is one who peddles a softer form of Islam – the Islam of John Esposito and Karen Arm Strong – is willing to co-exist peacefully with peoples of other faiths and is comfortable with democracy and the separation of politics and religion.

Both, Western media and Muslims, do a disservice by branding some Muslims as moderate on the basis of their politics. These people should general be understood as opportunists and self-serving. Most of the moderate regimes in the Muslim World are neither democratic nor manifest the softer side of Islam. That leaves intellectual positions as the criteria for determining who is a moderate Muslim, and especially in comparison to whom, since moderate is a relative term.

Both Muslims and the media are generally on the mark when they identify moderate Muslims as reflective, self-critical, pro-democracy and human-rights and closet secularists. But who are they different from and how?

I believe that moderate Muslims are different from militant Muslims even though both of them advocate the establishment of societies whose organizing principle is Islam. The difference between moderate and militant Muslims is in their methodological orientation and in the primordial normative preferences which shape their interpretation of Islam.

For moderate Muslims Ijtihad is the preferred method of choice for social and political change and military Jihad the last option. For militant Muslims, military Jihad is the first option and Ijtihad is not an option at all.

Ijtihad narrowly understood is a juristic tool that allows independent reasoning to articulate Islamic law on issues where textual sources are silent. The unstated assumption being when texts have spoken reason must be silent. But increasingly moderate Muslim intellectuals see Ijtihad as the spirit of Islamic thought that is necessary for the vitality of Islamic ideas and Islamic civilization. Without Ijtihad, Islamic thought and Islamic civilization fall into decay.

For moderate Muslims, Ijtihad is a way of life, which simultaneously allows Islam to reign supreme in the heart and the mind to experience unfettered freedom of thought. A moderate Muslim is therefore one who cherishes freedom of thought while recognizing the existential necessity of faith. She aspires for change, but through the power of mind and not through planting mines.

Moderate Muslims aspire for a society – a city of virtue — that will treat all people with dignity and respect. There will be no room for political or normative intimidation. Individuals will aspire to live an ethical life because they recognize its desirability. Communities will compete in doing good and politics will seek to encourage good and forbid evil. They believe that the internalization of the message of Islam can bring about the social transformation necessary for the establishment of the virtuous city. The only arena in which Moderate Muslims permit excess is in idealism.

Today, the relationship between Islam and the rest is getting increasingly worse. Muslim militants are sowing seeds of poison and hatred between Muslims and the rest of humanity by committing egregious acts of violence in the name of Islam. In this precarious environment, it is important that everyone finds and nurtures the many wonderful examples of moderate Muslims one can still find.

Chandra Muzaffar in Malaysia, Tarik Ramadan in Europe, Maulana Waheeduddin Khan and Asghar Ali Engineer in India, Khalid Abul Fadl and Louay Safi in the US, Karim Soroush and Muhammad Khatami in Iran and many many more who are committed to their Jihad (struggle) to revive the spirit of Ijtihad. Fortunately the tradition is alive globally; it needs the support and the attention of all who aspire for peace and understanding.

Listen to part 2 of Dr. Khan’s talk on Ijtihad.

In this lecture:

As promised Soach is presenting a series of lectures by scholars on the topic of Ijtihad. We have already introduced the topic in two of the previous articles named “Two Theories of Ijtihad” by Dr. M. Khan and “Ijtihad: Iqbal’s Views” in which excerpt from Iqbal’s Reconstruction of Religious Thought in Islam was presented.

[audio:mkhan1.mp3]

Ijtihad stands on the pillars of Quran, Hadith, Ijma and Qiyas as mentioned in Reconstruction. However, the exact nature and importance of Ijtihad has been a topic of many debates among religious scholars lately. One is a more classical interpretation of Ijtihad and the other is a call for a more modern interpretation of it. Moreover, who is worthy to carry out this delicate and often charged process is debated as well. Finally, what role does Ijtihad play in our individual as well as collective lives and how is it being abused is another important area of discussion.

We will try to tackle these issues one by one in a series of lectures by scholars from different backgrounds and interpretations. These lectures are by no means the final word or exhaustive accounts on this important topic but only scratch the surface and are meant to make the Soach audience think and brood over this topic. We welcome your active participation and comments on this topic.

– Soach Staff

– Although Iqbal recognizes the Quran as the primary source he does not take it as a legal code. For him it is more of an interaction between God and man to awaken “higher consciousness” in the latter.

– Similarly, Iqbal recognizes Hadith as the second most important source of legal tradition in Islam. He however, stresses the need to recognize the underlying “principles” as opposed to specific rulings as the necessary condition to benefit from this body of Islamic literature. In this he is impressed with Shah Wali Ullah’s philosophy of Hadith.

– Pay particular attention to the section on Ijma in which Iqbal implicitly endorses the idea of an “assembly” of Muslims instead of individual scholars making Ijma. He even goes on to say:

“The closing of the door of Ijtihad is pure fiction suggested partly by the crystallization of legal thought in Islam, and partly by that intellectual laziness which, especially in the period of spiritual decay, turns great thinkers into idols.”

– He points out the inherent difficulties and criticism of Qiyas as well. This along with his partial criticism of the Hanafi School was a pretty radical idea at the time. Iqbal seems to be against the analogical reasoning Hanafi school of thought adopted in early Islam. He also makes another astute observation, contrary to the religious intuition of our time when he quotes Zarkashi:

“If the upholders of this fiction mean that the previous writers had more facilities, while the later writers had more difficulties, in their way, it is, nonsense; for it does not require much understanding to see that Ijtihad for later doctors is easier than for the earlier doctors. Indeed the commentaries on the Koran and sunnah have been compiled and multiplied to such an extent that the mujtahid of today has more material for interpretation than he needs.”

This series of articles tries to present varying outlooks on Ijtihad through modern times. Iqbal was not an Islamic theologian in the strict sense of the word. He consulted Maulana Shibli, Maulana Nadwi and Maulana Azad among others on points he had difficulty understanding. A full discussion of that is beyond the scope of this article. For readers interested in further reading Iqbal’s letters should make a good read. We hope that you enjoy the excerpt and it gives you something to think about. — Z Rana

I have given you some idea of the history and working of Ijtihad in modern Islam. I now proceed to see whether the history and structure of the Law of Islam indicate the possibility of any fresh interpretation of its principles. In other words, the question that I want to raise is – Is the Law of Islam capable of evolution? Horten, Professor of Semitic Philology at the University of Bonn, raises the same question in connexion with the Philosophy and Theology of Islam. Reviewing the work of Muslim thinkers in the sphere of purely religious thought he points out that the history of Islam may aptly be described as a gradual interaction, harmony, and mutual deepening of two distinct forces, i.e. the element of Aryan culture and knowledge on the one hand, and a Semitic religion on the other. The Muslim has always adjusted his religious outlook to the elements of culture which he assimilated from the peoples that surrounded him. From 800 to 1100, says Horten, not less than one hundred systems of theology appeared in Islam, a fact which bears ample testimony to the elasticity of Islamic thought as well as to the ceaseless activity of our early thinkers. Thus, in view of the revelations of a deeper study of Muslim literature and thought, this living European Orientalist has been driven to the following conclusion:

The spirit of Islam is so broad that it is practically boundless. With the exception of atheistic ideas alone it has assimilated all the attainable ideas of surrounding peoples, and given them its own peculiar direction of development.

The assimilative spirit of Islam is even more manifest in the sphere of law. Says Professor Hurgronje – the Dutch critic of Islam:

“When we read the history of the development of Mohammadan Law we find that, on the one hand, the doctors of every age, on the slightest stimulus, condemn one another to the point of mutual accusations of heresy; and, on the other hand, the very same people, with greater and greater unity of purpose, try to reconcile the similar quarrels of their predecessors.”

These views of modern European critics of Islam make it perfectly clear that, with the return of new life, the inner catholicity of the spirit of Islam is bound to work itself out in spite of the rigorous conservatism of our doctors. And I have no doubt that a deeper study of the enormous legal literature of Islam is sure to rid the modern critic of the superficial opinion that the Law of Islam is stationary and incapable of development. Unfortunately, the conservative Muslim public of this country is not yet quite ready for a critical discussion of Fiqh, which, if undertaken, is likely to displease most people, and raise sectarian controversies; yet I venture to offer a few remarks on the point before us.

1. In the first place, we should bear in mind that from the earliest times practically up to the rise of the Abbasids, there was no written law of Islam apart from the Qur’an.

2. Secondly, it is worthy of note that from about the middle of the first century up to the beginning of the fourth not less than nineteen schools of law and legal opinion appeared in Islam. This fact alone is sufficient to show how incessantly our early doctors of law worked in order to meet the necessities of a growing civilization. With the expansion of conquest and the consequent widening of the outlook of Islam these early legists had to take a wider view of things, and to study local conditions of life and habits of new peoples that came within the fold of Islam. A careful study of the various schools of legal opinion, in the light of contemporary social and political history, reveals that they gradually passed from the deductive to the inductive attitude in their efforts at interpretation.

3. Thirdly, when we study the four accepted sources of Muhammadan Law and the controversies which they invoked, the supposed rigidity of our recognized schools evaporates and the possibility of a further evolution becomes perfectly clear. Let us briefly discuss these sources.

(a) The Qur’an. The primary source of the Law of Islam is the Qur’an. The Qur’an, however, is not a legal code. Its main purpose, as I have said before, is to awaken in man the higher consciousness of his relation with God and the universe. No doubt, the Qur’an does lay down a few general principles and rules of a legal nature, especially relating to the family – the ultimate basis of social life. But why are these rules made part of a revelation the ultimate aim of which is man’s higher life? The answer to this question is furnished by the history of Christianity which appeared as a powerful reaction against the spirit of legality manifested in Judaism. By setting up an ideal of otherworldliness it no doubt did succeed in spiritualizing life, but its individualism could see no spiritual value in the complexity of human social relations. “Primitive Christianity”, says Naumann in his Briefe’ber Religion, “attached no value to the preservation of the State, law, organization, production. It simply does not reflect on the conditions of human society.” And Naumann concludes: “Hence we either dare to aim at being without a state, and thus throwing ourselves deliberately into the arms of anarchy, or we decide to possess, alongside of our religious creed, a political creed as well.” Thus the Qur’an considers it necessary to unite religion and state, ethics and politics in a single revelation much in the same way as Plato does in his Republic.

The important point to note in this connexion, however, is the dynamic outlook of the Qur’an. I have fully discussed its origin and history. It is obvious that with such an outlook the Holy Book of Islam cannot be inimical to the idea of evolution. Only we should not forget that life is not change, pure and simple. It has within it elements of conservation also. While enjoying his creative activity, and always focusing his energies of the discovery of new vistas of life, man has a feeling of uneasiness in the presence of his own unfoldment. In his forward movement he cannot help looking back to his past, and faces his own inward expansion with a certain amount of fear. The spirit of man in its forward movement is restrained by forces which seem to be working in the opposite direction. This is only another way of saying that life moves with the weight of its own past on its back, and that in any view of social change the value and function of the forces of conservatism cannot be lost sight of. It is with this organic insight into the essential teaching of the Qur’an that to approach our existing institutions. No people can afford to reject their past entirely, for it is their past that has made their personal identity. And in a society like Islam the problem of a revision of old institutions becomes still more delicate, and the responsibility of the reformer assumes a far more serious aspect. Islam is non-territorial in its character, and its aim is to furnish a model for the final combination of humanity by drawing its adherents from a variety of mutually repellent races, and then transforming this atomic aggregate into a people possessing a self-consciousness of their own. This was not an easy task to accomplish. Yet Islam, by means of its well-conceived institutions, has succeeded to a very great extent in creating something like a collective will and conscience in this heterogeneous mass. In the evolution of such a society even the immutability of socially harmless rules relating to eating and drinking, purity or impurity, has a life-value of its own, inasmuch as it tends to give such society a specific inwardness, and further secures that external and internal uniformity which counteracts the forces of heterogeneity always latent in a society of a composite character. The critic of these institutions must, therefore, try to secure, before he undertakes to handle them, a clear insight into the ultimate significance of the social experiment embodied in Islam. He must look at their structure, not from the standpoint of social advantage or disadvantage to this or that country, but from the point of view of the larger purpose which is being gradually worked out in the life of mankind as a whole.

Turning now to the groundwork of legal principles in the Qur’an, it is perfectly clear that far from leaving no scope for human thought and legislative activity the intensive breadth of these principles virtually acts as an awakener of human thought. Our early doctors of law taking their clue mainly from this groundwork evolved a number of legal systems; and the student of Muhammadan history knows very well that nearly half the triumphs of Islam as a social and political power were due to the legal acuteness of these doctors. “Next to the Romans”, says von Kremer, “there is no other nation besides the Arabs which could call its own a system of law so carefully worked out.” But with all their comprehensiveness these systems are after all individual interpretations, and as such cannot claim any finality. I know the Ulemaof Islam claim finality for the popular schools of Muhammadan Law, though they never found it possible to deny the theoretical possibility of a complete Ijtihad. I have tried to explain the causes which, in my opinion, determined this attitude of the Ulema; but since things have changed and the world of Islam is confronted and affected today by new forces set free by the extraordinary development of human thought in all its directions, I see no reason why this attitude should be maintained any longer. Did the founders of our schools ever claim finality for their reasonings and interpretations? Never. The claim of the present generation of Muslim liberals to reinterpret the foundational legal principles, in the light of their own experience and the altered conditions of modern life is, in my opinion, perfectly justified. The teaching of the Qur’an that life is a process of progressive creation necessitates that each generation, guided but unhampered by the work of its predecessors, should be permitted to solve its own problems.

You will, I think, remind me here of the Turkish poet “iya whom I quoted a moment ago, and ask whether the equality of man and woman demanded by him, equality, that is to say, in point of divorce, separation, and inheritance, is possible according to Muhammadan Law. I do not know whether the awakening of women in Turkey has created demands which cannot be met with without a fresh interpretation of foundational principles. In the Punjab, as everybody knows, there have been cases in which Muslim women wishing to get rid of undesirable husbands have been driven to apostasy.6 Nothing could be more distant from the aims of a missionary religion. The Law of Islam, says the great Spanish jurist Imam Shatibiin his al-Muwafiqat, aims at protecting five things – Din, Nafs, Aql, Mal, and Nasl. Applying this test I venture to ask: “Does the working of the rule relating to apostasy, as laid down in the Hedayah tend to protect the interests of the Faith in this country?” 

In view of the intense conservatism of the Muslims of India, Indian judges cannot but stick to what are called standard works. The result is that while the peoples are moving the law remains stationary.

With regard to the Turkish poet’s demand, I am afraid he does not seem to know much about the family law of Islam. Nor does he seem to understand the economic significance of the Quranic rule of inheritance. Marriage, according to Muhammadan Law, is a civil contract. The wife at the time of marriage is at liberty to get the husband’s power of divorce delegated to her on stated conditions, and thus secure equality of divorce with her husband. The reform suggested by the poet relating to the rule of inheritance is based on a misunderstanding. From the inequality of their legal shares it must not be supposed that the rule assumes the superiority of males over females. Such an assumption would be contrary to the spirit of Islam. The Qur’an says:

“And for women are rights over men similar to those for men over women” (2:228).

The share of the daughter is determined not by any inferiority inherent in her, but in view of her economic opportunities, and the place she occupies in the social structure of which she is a part and parcel. Further, according to the poet’s own theory of society, the rule of inheritance must be regarded not as an isolated factor in the distribution of wealth, but as one factor among others working together for the same end. While the daughter, according to Muhammadan Law, is held to be full owner of the property given to her by both the father and the husband at the time of her marriage; while, further, she absolutely owns her dower-money which may be prompt or deferred according to her own choice, and in lieu of which she can hold possession of the whole of her husband’s property till payment, the responsibility of maintaining her throughout her life is wholly thrown on the husband. If you judge the working of the rule of inheritance from this point of view, you will find that there is no material difference between the economic position of sons and daughters, and it is really by this apparent inequality of their legal shares that the law secures the equality demanded by the Turkish poet. The truth is that the principles underlying the Quranic law of inheritance – this supremely original branch of Muhammadan Law as von Kremer describes it – have not yet received from Muslim lawyers the attention they deserve. Modern society with its bitter class-struggles ought to set us thinking; and if we study our laws in reference to the impending revolution in modern economic life, we are likely to discover, in the foundational principles, hitherto unrevealed aspects which we can work out with a renewed faith in the wisdom of these principles.

(b) The Hadith. The second great source of Muhammadan Law is the traditions of the Holy Prophet. These have been the subject of great discussion both in ancient and modern times. Among their modern critics Professor Goldziher has subjected them to a searching examination in the light of modern canons of historical criticism, and arrives at the conclusion that they are, on the whole, untrustworthy. Another European writer, after examining the Muslim methods of determining the genuineness of a tradition, and pointing out the theoretical possibilities of error, arrives at the following conclusion:

“It must be said in conclusion that the preceding considerations represent only theoretical possibilities and that the question whether and how far these possibilities have become actualities is largely a matter of how far the actual circumstances offered inducements for making use of the possibilities. Doubtless, the latter, relatively speaking, were few and affected only a small proportion of the entire Sunnah. It may therefore be said that . . . for the most part the collections of Sunnah considered by the Moslems as canonical are genuine records of the rise and early growth of Islam” (Mohammedan Theories of Finance).

For our present purposes, however, we must distinguish traditions of a purely legal import from those which are of a non-legal character. With regard to the former, there arises a very important question as to how far they embody the pre-Islamic usages of Arabia which were in some cases left intact, and in others modified by the Prophet. It is difficult to make this discovery, for our early writers do not always refer to pre-Islamic usages. Nor is it possible to discover that usages, left intact by express or tacit approval of the Prophet, were intended to be universal in their application. Shah WaliAllah has a very illuminating discussion on the point. I reproduce here the substance of his view. The prophetic method of teaching, according to Shah WaliAllah, is that, generally speaking, the law revealed by a prophet takes especial notice of the habits, ways, and peculiarities of the people to whom he is specifically sent. The prophet who aims at all-embracing principles, however, can neither reveal different principles for different peoples, nor leaves them to work out their own rules of conduct. His method is to train one particular people, and to use them as a nucleus for the building up of a universal Shari’ah. In doing so he accentuates the principles underlying the social life of all mankind, and applies them to concrete cases in the light of the specific habits of the people immediately before him. The Shari’ah values (Ahkam) resulting from this application (e.g. rules relating to penalties for crimes) are in a sense specific to that people; and since their observance is not an end in itself they cannot be strictly enforced in the case of future generations. It was perhaps in view of this that Abu Hanifah, who had, a keen insight into the universal character of Islam, made practically no use of these traditions. The fact that he introduced the principle of Isti’san, i.e. juristic preference, which necessitates a careful study of actual conditions in legal thinking, throws further light on the motives which determined his attitude towards this source of Muhammadan Law. It is said that Abu Hanifah made no use of traditions because there were no regular collections in his day. In the first place, it is not true to say that there were no collections in his day, as the collections of Abd al-Malik and Zuhri were made not less than thirty years before the death of Abu Hanifah. But even if we suppose that these collections never reached him, or that they did not contain traditions of a legal import, Abu Hanifah, like Malik and Ahmad Ibn Hanbal after him, could have easily made his own collection if he had deemed such a thing necessary. On the whole, then, the attitude of Abu Hanifah towards the traditions of a purely legal import is to my mind perfectly sound; and if modern Liberalism considers it safer not to make any indiscriminate use of them as a source of law, it will be only following one of the greatest exponents of Muhammadan Law in Sunni Islam. It is, however, impossible to deny the fact that the traditionists, by insisting on the value of the concrete case as against the tendency to abstract thinking in law, have done the greatest service to the Law of Islam. And a further intelligent study of the literature of traditions, if used as indicative of the spirit in which the Prophet himself interpreted his Revelation, may still be of great help in understanding the life-value of the legal principles enunciated in the Qur’an. A complete grasp of their life-value alone can equip us in our endeavour to reinterpret the foundational principles.

(c) The Ijma. The third source of Muhammadan Law is Ijma which is, in my opinion, perhaps the most important legal notion in Islam. It is, however, strange that this important notion, while invoking great academic discussions in early Islam, remained practically a mere idea, and rarely assumed the form of a permanent institution in any Muhammadan country. Possibly its transformation into a permanent legislative institution was contrary to the political interests of the kind of absolute monarchy that grew up in Islam immediately after the fourth Caliph. It was, I think, favourable to the interest of the Umayyad and the Abbasid Caliphs to leave the power of Ijtihad to individual Mujtahids rather than encourage the formation of a permanent assembly which might become too powerful for them. It is, however, extremely satisfactory to note that the pressure of new world-forces and the political experience of European nations are impressing on the mind of modern Islam the value and possibilities of the idea of Ijma. The growth of republican spirit and the gradual formation of legislative assemblies in Muslim lands constitute a great step in advance. The transfer of the power of Ijtihad from individual representatives of schools to a Muslim legislative assembly which, in view of the growth of opposing sects, is the only possible form Ijma can take in modern times, will secure contributions to legal discussion from laymen who happen to possess a keen insight into affairs. In this way alone can we stir into activity the dormant spirit of life in our legal system, and give it an evolutionary outlook. In India, however, difficulties are likely to arise for it is doubtful whether a non-Muslim legislative assembly can exercise the power of Ijtihad.

But there are one or two questions which must be raised and answered in regard to the Ijma. Can the Ijma repeal the Qur’an? It is unnecessary to raise this question before a Muslim audience, but I consider it necessary to do so in view of a very misleading statement by a European critic in a book called Mohammedan Theories of Finance – published by the Columbia University. The author of this book says, without citing any authority, that according to some Hanafi and Mu’tazilah writers the Ijma can repeal the Qur’an. There is not the slightest justification for such a statement in the legal literature of Islam. Not even a tradition of the Prophet can have any such effect. It seems to me that the author is misled by the word Naskh in the writings of our early doctors to whom, as Imam Sha;ibiu points out in al-Muwaffiqat, vol. iii, p. 65, this word, when used in discussions relating to the Ijma of the companions, meant only the power to extend or limit the application of a Quranic rule of law, and not the power to repeal or supersede it by another rule of law. And even in the exercise of this power the legal theory, as “Amidi- a Shafi”i doctor of law who died about the middle of the seventh century, and whose work is recently published in Egypt – tells us, is that the companions must have been in possession of a Shari”ah value (hukm) entitling them to such a limitation or extension.

But supposing the companions have unanimously decided a certain point, the further question is whether later generations are bound by their decision. Shaukani has fully discussed this point, and cited the views held by writers belonging to different schools. I think it is necessary in this connexion to discriminate between a decision relating to a question of fact and the one relating to a question of law. In the former case, as for instance, when the question arose whether the two small Surahs known as Mu’awwidhatan  formed part of the Qur’an or not, and the companions unanimously decided that they did, we are bound by their decision, obviously because the companions alone were in a position to know the fact. In the latter case the question is one of interpretation only, and I venture to think, on the authority of Karkhi, that later generations are not bound by the decision of the companions. Says Karkhi: “The Sunnah of the companions is binding in matters which cannot be cleared up by Qiyas, but it is not so in matters which can be established by Qiyas.”

One more question may be asked as to the legislative activity of a modern Muslim assembly which must consist, at least for the present, mostly of men possessing no knowledge of the subtleties of Muhammadan Law. Such an assembly may make grave mistakes in their interpretation of law. How can we exclude or at least reduce the possibilities of erroneous interpretation? The Persian constitution of 1906 provided a separate ecclesiastical committee of Ulema – “conversant with the affairs of the world” – having power to supervise the legislative activity of the Mejlis. This, in my opinion, dangerous arrangement is probably necessary in view of the Persian constitutional theory. According to that theory, I believe, the king is a mere custodian of the realm which really belongs to the Absent Imam. The Ulema, as representatives of the Imam, consider themselves entitled to supervise the whole life of the community, though I fail to understand how, in the absence of an apostolic succession, they establish their claim to represent the Imam. But whatever may be the Persian constitutional theory, the arrangement is not free from danger, and may be tried, if at all, only as a temporary measure in Sunni countries. The Ulema should form a vital part of a Muslim legislative assembly helping and guiding free discussion on questions relating to law. The only effective remedy for the possibilities of erroneous interpretations is to reform the present system of legal education in Muhammadan countries, to extend its sphere, and to combine it with an intelligent study of modern jurisprudence.

(d) The Qiyas. The fourth basis of Fiqh is Qiyas, i.e. the use of analogical reasoning in legislation. In view of different social and agricultural conditions prevailing in the countries conquered by Islam, the school of Abu Hanifah seem to have found, on the whole, little or no guidance from the precedents recorded in the literature of traditions. The only alternative open to them was to resort to speculative reason in their interpretations. The application of Aristotelian logic, however, though suggested by the discovery of new conditions in Iraq, was likely to prove exceedingly harmful in the preliminary stages of legal development. The intricate behaviour of life cannot be subjected to hard and fast rules logically deducible from certain general notions. Yet, looked at through the spectacles of Aristotle’s logic, it appears to be a mechanism pure and simple with no internal principle of movement. Thus, the school of Abu Hanifah tended to ignore the creative freedom and arbitrariness of life, and hoped to build a logically perfect legal system on the lines of pure reason. The legists of Hijaz, however, true to the practical genius of their race, raised strong protests against the scholastic subtleties of the legalists of Iraq, and their tendency to imagine unreal cases which they rightly thought would turn the Law of Islam into a kind of lifeless mechanism. These bitter controversies among the early doctors of Islam led to a critical definition of the limitations, conditions, and correctives of Qiyas which, though originally appeared as a mere disguise for Mujtahid’s personal opinion, eventually became a source of life and movement in the Law of Islam. The spirit of the acute criticism of Malik and Shafi’i on Abu “anifah’s principle of Qiyas, as a source of law, constitutes really an effective Semitic restraint on the Aryan tendency to seize the abstract in preference to the concrete, to enjoy the idea rather than the event. This was really a controversy between the advocates of deductive and inductive methods in legal research. The legists of Iraq originally emphasized the eternal aspect of the “notion”, while those of Hijaz laid stress on its temporal aspect. The latter, however, did not see the full significance of their own position, and their instinctive partiality to the legal tradition of Hijaz narrowed their vision to the “precedents” that had actually happened in the days of the Prophet and his companions. No doubt they recognized the value of the concrete, but at the same time they eternalized it, rarely resorting to Qiyas based on the study of the concrete as such. Their criticism of Abu Hanifah and his school, however, emancipated the concrete as it were, and brought out the necessity of observing the actual movement and variety of life in the interpretation of juristic principles. Thus the school of Abu Hanifah which fully assimilated the results of this controversy is absolutely free in its essential principle and possesses much greater power of creative adaptation than any other school of Muhammadan Law. But, contrary to the spirit of his own school, the modern Hanafi legist has eternalized the interpretations of the founder or his immediate followers much in the same way as the early critics of Abu Hanifah eternalized the decisions given on concrete cases. Properly understood and applied, the essential principle of this school, i.e. Qiyas, as Shafi’i rightly says, is only another name for Ijtihad which, within the limits of the revealed texts, is absolutely free; and its importance as a principle can be seen from the fact that, according to most of the doctors, as Qadi Shaukani tells us, it was permitted even in the lifetime of the Holy Prophet. The closing of the door of Ijtihad is pure fiction suggested partly by the crystallization of legal thought in Islam, and partly by that intellectual laziness which, especially in the period of spiritual decay, turns great thinkers into idols. If some of the later doctors have upheld this fiction, modern Islam is not bound by this voluntary surrender of intellectual independence. Zarkashi writing in the eighth century of the Hijrah rightly observes:

“If the upholders of this fiction mean that the previous writers had more facilities, while the later writers had more difficulties, in their way, it is, nonsense; for it does not require much understanding to see that Ijtihad for later doctors is easier than for the earlier doctors. Indeed the commentaries on the Koran and sunnah have been compiled and multiplied to such an extent that the mujtahid of today has more material for interpretation than he needs”.

This brief discussion, I hope, will make it clear to you that neither in the foundational principles nor in the structure of our systems, as we find them today, is there anything to justify the present attitude. Equipped with penetrative thought and fresh experience the world of Islam should courageously proceed to the work of reconstruction before them. This work of reconstruction, however, has a far more serious aspect than mere adjustment to modern conditions of life. The Great European War bringing in its wake the awakening on Turkey – the element of stability in the world of Islam – as a French writer has recently described her, and the new economic experiment tried in the neighbourhood of Muslim Asia, must open our eyes to the inner meaning and destiny of Islam. Humanity needs three things today – a spiritual interpretation of the universe, spiritual emancipation of the individual, and basic principles of a universal import directing the evolution of human society on a spiritual basis. Modern Europe has, no doubt, built idealistic systems on these lines, but experience shows that truth revealed through pure reason is incapable of bringing that fire of living conviction which personal revelation alone can bring. This is the reason why pure thought has so little influenced men, while religion has always elevated individuals, and transformed whole societies. The idealism of Europe never became a living factor in her life, and the result is a perverted ego seeking itself through mutually intolerant democracies whose sole function is to exploit the poor in the interest of the rich. Believe me, Europe today is the greatest hindrance in the way of man”s ethical advancement. The Muslim, on the other hand, is in possession of these ultimate ideas of the basis of a revelation, which, speaking from the inmost depths of life, internalizes its own apparent externality. With him the spiritual basis of life is a matter of conviction for which even the least enlightened man among us can easily lay down his life; and in view of the basic idea of Islam that there can be no further revelation binding on man, we ought to be spiritually one of the most emancipated peoples on earth. Early Muslims emerging out of the spiritual slavery of pre-Islamic Asia were not in a position to realize the true significance of this basic idea. Let the Muslim of today appreciate his position, reconstruct his social life in the light of ultimate principles, and evolve, out of the hitherto partially revealed purpose of Islam, that spiritual democracy which is the ultimate aim of Islam.

As tensions between the Muslim and Western worlds continue to grow, there is one largely overlooked area of activity that may play a role in building bridges: Ijtihad. While Ijtihad can be a tool for understanding Islamic principles in a way that fits the needs and challenges of individuals and societies, there is no universal agreement on its proper role.

The Islamic tradition has two conceptions of Ijtihad. One is a very narrow, legalistic notion of it as a process of juristic reasoning employed to determine the permissibility of an action when primary sources, namely the Koran and Sunnah (Tradition of the Prophet), are silent and earlier scholars of shari’a (Islamic law) had not ruled on the matter. For those who hold this view of Ijtihad, who can perform Ijtihad is often more important than the need for Ijtihad.

In reality, this view is designed to stifle independent thought among Muslims and to confine the right to understand and explain Islam to Muslim jurists. It is also opposed to reasoning, because it essentially says that reason shall be employed only when the texts are silent and no medieval scholar has addressed the issue under scrutiny. Reason, according to this viewpoint, is the last resort for understanding the will of God. For those who hold this view, opening the doors of Ijtihad would make no difference, since their very conception of it is impoverished and limited.

The second view, often espoused by non-jurists and particularly by those who advocate some form of Islamic modernism and liberalism, envisions Ijtihad more broadly. For modernist Muslims — and I believe that Islamic modernism deeply influences all “moderate” Muslim thinking — Ijtihad is about freedom of thought, rational thinking and the quest for truth through an epistemology covering science, rationalism, human experience, critical thinking and so on.

When modernist Muslims claim that the door of Ijtihad has been closed, they are lamenting the loss of the spirit of inquiry that was so spectacularly demonstrated by classical Islamic civilization at its peak. They are, in a sense, nostalgic for Ibn Sina’ (Avicenna) and Ibn Rushd (Averroes), for al-Farabi, al-Biruni and al-Haytham — scientists, philosophers and jurists of Islam’s “Golden Age”. Thus, modernist Muslims see Ijtihad as the spirit of inquiry and desire for all forms of knowledge, not just religious and juristic, that needs to be revived to revitalize and restore Islamic civilization.
As long as a majority of Muslims equates Islam with shari’a, Islamic scholarship with Fiqh (jurisprudence) and real knowledge with juristic knowledge, Ijtihad will remain a limited jurisprudential tool and closed minds will never open. Islamic modernists have been trying, since the time of Sir Syed Ahmad Khan, the great Muslim reformer of the 19th century, to re-instill a sense of the value of knowledge and an appreciation for science and philosophical inquiry. Yet, as a Muslim, I acknowledge that there is no research institution worthy of recognition in this way in the entire Muslim world.

Muslims must go back and read Ibn Rushd (Fasl al-Maqaal, The Decisive Treatise), and learn how he bridged science and religion, in order to understand that Islam has nothing to fear from reason and so to open their hearts and minds to rational thought. This is the goal that Ibn Khaldun, the great 14th century Arab historian and philosopher, would have called the “engine of civilization.” Modernist Muslims subscribe to and advocate this spirit of Islam.

Islamic reformation can be understood in two different ways. It can mean the reform of society to bring it back to what have been considered Islamic norms and values: most Islamic and Islamist reformers are pursuing this type of reform. The other reform strategy is to question the existing understanding of Islam and seek to articulate a reformed understanding of Islam: this is where Islamic modernists and rationalists have always plied their trade.

Here, Ijtihad is employed as an instrument to critique prevalent understanding and articulate a more compassionate, more modern and, perhaps, even a more liberal understanding (which some would call the truly-traditional understanding). The rethinking of Islam vis-à-vis democracy is an area in which Islamic reformist thinking is taking place.

In my opinion, Muslims can modernize without de-Islamizing or de-traditionalizing. India and Japan have shown that societies can modernize without losing their traditional cultures. Muslim societies today have to distinguish between Islam and culture, retain their Islamic essence and reform dysfunctional cultural habits that hinder development, progress, equality and prosperity.

Without holding fast to revelation, Muslims will lose their connection with the divine, which would cause life to lose meaning and purpose for many. The challenge for Muslims today is to latch on to the currents of democracy, modernity and globalization without cutting the umbilical cord to the heavens. I believe that we can do it. American Muslims are demonstrating this in their lives.

When it comes to the modern practice of Ijtihad, American Muslims are miles ahead of other Muslim communities. Not only are there a large number of scholars pushing for Ijtihad in the U.S., but there are also national organizations and prominent Islamic centers that are, in principle, willing to put initiatives advanced by Ijtihad into practice.

An excellent practical example of this is the adoption of guidelines for women-friendly mosques by many Islamic centers. An outstanding theoretical example is the now widespread acceptance in the U.S., and to some extent in Europe, of the idea of Fiqh al Aqliyaat (minority jurisprudence), which is the idea that Muslims who live as minorities need to revisit and rearticulate Islamic legal positions, keeping in mind their minority status. We can see the product of American Ijtihad in the progressive role that women play in the American-Muslim community and in Islamic scholarship. Another important indicator is the absence of embedded radicalism in American Islam and the enormous appetite that American Muslims and their organizations express for democracy, civil rights, pluralism and civic engagement.

Thus, a broad vision of Ijtihad ensures that Islam and Muslim communities continue to reform in positive ways without losing the connection to Divine revelation and traditional culture. Muslims must continue to embrace this spirit of inquiry and desire for all forms of knowledge in order to revitalize and restore Islamic civilization.

This article was originally published at ijtihad.org

Actually this year was more confusing because Islamic Society of North America (ISNA) decided that it would go by calculations instead of actual moon sighting. However, they were sensible enough to put a disclaimer along with their announcement. It read as follows:

“The Fiqh Council of North America (FCNA) is encouraging all Muslims throughout North America to consider using the methodology of calculations for the sake of unity and to avoid the confusion and disputes that have occurred in the past. However, the Fiqh Council does not, and does not intend to, force its decision on anyone or on any Muslim community. You should follow the decision of your Imam and your Masjid. Moreover, you should do so with great respect and avoiding unnecessary disputes and arguments.”

I quote this statement to point out the inherent dilemma. There seems to be a conflict between unity and uniformity here. Unfortunately, moon sighting has involved political maneuvering and factional rivalries in the past. Given the political sensitivities and schism between rival “factions” involved it is not surprising that my local Masjid, like so many in the U.S. always takes the easy way out. It simply follows Saudi Arabia. However, if you think about it, it becomes obvious that this is not the correct approach. Eid is supposed to be local. If we look at classic Islamic methodology the whole matter is pretty simple and rests only on the Shahada of adults Muslims. There is also some room for error according to a narration by Ibn Abbas. Without going into the full details, that is the domain of Islamic Jurisprudence, suffice it to say that the whole matter of moon sighting is relatively simple or at least not as obtrusive as it seems.

So we decided to swim against the current and follow Islamic Circle of North America (ICNA) – they still seemed to follow the old fashioned and time-honored methodology of local moon sighting. Ramadan started well – although we were a little out of synch with our local friends. However, on the night of moon sighting their website stopped working! So we learned the hard way that this approach although ideal is not for the faint-hearted as it raises eyebrows in the local community. Moreover, you also run the risk of missing a chance to socialize and network during Eid – a ritual only a few are willing to forgo.

The problem does not end here though. Seems like I was in for another dilemma – this time at an individual level. I was talking to one of my friends the other day and the conversation drifted to moon sighting in Ramadan. I told him that we were not following our local Masjid as it follows Saudi Arabia. As my reasoning went because the Eid and Ramadan are local therefore it is not correct to do that (i.e., to follow Saudi Arabia in the U.S.). He however, pointed out that it was important to follow local Masjid for the sake of unity. He made a reference to a Hadith in which Muslims are advised to obey their leader even if he is a Fasiq (with the proviso that you do not have any means to remove him from office). That obviously got us both thinking – what is more important local unity or purity of religion (assuming that local moon sighting is the correct way to go). The discussion turned out to be a little more sophisticated (or convoluted depending how you look at it). I felt that we needed more evidence from the Quran and Hadith to solve this riddle. I also realize that there may not be any direct evidence but only derived conclusions.

So there we have it. Like so many conflicts in Islamic theology, moon sighting has a simple practical solution – yet its implementation seems as elusive as reaching the stars.