Sharia Law An Introduction - by Mohammad Hashim Kamali

Independent reasoning and juristic opinion 171
original conception of ijtihÉd as a problem-solving formula of
wider concern to Muslims. This would confirm our desire as noted
above to broaden the scope of ijtihÉd to other disciplines beyond
the framework of fiqh and jurisprudence.
5) According to a legal maxim of Islamic jurisprudence, there should
be no ijtihÉd in the presence of a clear text of the Qur’Én and ÍadÊth
(lÉ ijtihÉd ma‘al-naÎÎ). This maxim also needs to be revised due to
the possibility that the text in question may be given a fresh
interpretation in a different context, and that by itself may involve
ijtihÉd. Hence ijtihÉd should not be precluded if it could advance
a fresh understanding of the text in the first place.
IJTIHÓD AND CONTEMPORARY ISSUES
At the dawn of the twentieth century, JamÉl al-DÊn al-AfghÉni
(d. 1898) and his disciples MuÍammad Abduh (d. 1905) and
MuÍammad RashÊd RiÌÉ (d. 1935) called for a return to original
ijtihÉd, which was well received and won wide support in the succeeding
decades. They called upon Muslims to turn away from
unquestioning imitation and exercise originality and initiative in their
quest for suitable solutions to new issues. The underlying note of this
appeal also conveyed the message that ijtihÉd in modern times tends
to differ to what it was in medieval times. Mujtahids in earlier times
lived in a predictable social environment that was preoccupied with
issues of marriage and divorce, property, inheritance, zakÉh and
usury and the like. Society was not prone to rapid change and ijtihÉd
could be attempted with a degree of predictability that is no longer the
case. The much accelerated pace of change and its attendant complexities
suggest a multi-disciplinary approach to ijtihÉd. It would
seem difficult for a jurist now to address, for example, issues pertaining
to new banking products and transactions without some knowledge
of modern economics and finance. Technical issues in medicine
and science, in labour relations and so on generate different demands
on the skills of a modern scholar and mujtahid. 8
IjtihÉd in modern times has occurred in the following three forms:
through statutory legislation, in the form of fatwÉ by scholars and
judges, and through scholarly writings. Instances of legislative
ijtihÉd can be found in the modern reforms of family law in many