Renewing Islamic Jurisprudence

بِسۡمِ ٱللهِ ٱلرَّحۡمَـٰنِ ٱلرَّحِيمِ

The following article, Renewing the Islamic Jurisprudence: a Hard Task at Hand?, is by Shaykh ‘Ali Juma’ah.

When Muslim scholars delve into the issue of renewing Islamic jurisprudence, they encounter issues.  The first of which is our ethical commitment to remain faithful to the long standing religious legacy and scholarly heritage which we are entrusted with and were accumulated by erudite scholars and luminary figures since the time of the companions of the Prophet (s.a.w.) until the present.  This scholarly heritage left by previous scholars served well in their time and it would be completely unfair when we see differences in the issues we encounter today to judge their juristic preferences and deem it irrelevant, backward or throw other allegations which stand clearly against both truth and reality.

The previous scholars have understood well the reality of their time, their surrounding and followed a meticulous scientific methodology which was described by Imam ar-Razi (r.a.) in his definition of juristic methodologies.  He defined it to encompass realising the sources and references of research, the know-how and the methods of conducting research and the qualifications necessary for the researcher.  These three aspects were adopted later by Roger Bacon.  The students of Imam ar-Razi (r.a.) defined the art of juristic methodologies to be realising the juristic proofs in its sum and the method of utilising them and the qualification of the utiliser.  This definition is stated by Imam ar-Razi (r.a.) in his al-Mahswul and by Imam al-Baydawi (r.a.) in his al-Minhaj.

This is the methodology which we should adopt in following our ancestors to serve our time as they served theirs.  We need to learn from them how they thought and dealt with the sources, what were the conditions, frame works and boundaries we cannot cross and the areas of differences.  At the same time, we should not freeze in time by only paying attention to their own juristic issues which were relevant to their own time and do not correspond to our reality due to the tremendous revolution in communication; transportation; modern technology, especially after the establishment of virtual independent personalities, transcontinental corporations; and new methods of bank financing.  All these new features change the reality we live in and it is incumbent upon us to realise our surrounding reality and to deal with it through the adopted methodology of our predecessor to fulfill the supreme objectives of Islamic law.

Looking closely at the science of juristic methodologies, we find that its main principle is comprehending the scriptural text and determining the sources of authority which is the Qur’an and the Prophetic traditions.  It should be noted that we cannot deal with authority except through using the science of authentication which has to do with verifying the authenticity of both the Qur’an and the Prophetic traditions.  The science of juristic methodologies answers important questions pertinent to the authentication of the authority of these two sources.  For example, what are the differences between popular Qur’anic recitations and odd ones?  What is the difference between a weak hadits and a sound one?  How do we differentiate between the definitive and speculative in meaning and authentication?  So the science of juristic methodology forms the foundation for understanding the text which is the source of research which entails Allah’s (s.w.t.) Rulings on human acts.

On the other hand, our reality consists of intricate relationships among different parties.  For example we have four worlds which form the main subjects of change in our lived reality. The world of persons, things, incidents and ideas.  These four worlds are apt to development, complexity and change.  Therefore, it is incumbent upon the scholar who practices independent legal reasoning, ijtihad, to have the ability to read the text, comprehend it correctly and to have a similar aptitude to realising his surrounding reality and understanding it correctly.  Finally, he has to connect both.  The challenge of being in a reality which pushes the world to invent new things which had no precedent and still remain faithful to the correct reading of the Divine Revelation begs for new ijtihad.  To reach this fine equilibrium, we need to understand that the sources of knowledge for us are both the Divine Revelation and the universe; as the Divine Revelation is the book in which we read and the universe is the book in which we see and both came from Allah (s.w.t.).  The Divine Revelation came from Allah’s (s.w.t.) Commandment and the universe is one of Allah’s (s.w.t.) Creation.  Therefore, there is no difference between these two books as sources of knowledge and that was confirmed by Allah (s.w.t.) in the Qur’an when He Said:

…(all) Governed by Laws under His Command… (Surah al-A’araf:54)

The second issue has to do with holding tight to our identity as we do not want to erase our culture and efface our heritage.  This is why we use the science of juristic methodology in order to understand appropriately the Divine text and use our intellect to understand our lived reality.  The different elements of the Islamic epistemology may very well intersect with other religious beliefs and ethical schools and at other times can simply contradict it.  For example, those who seek to sideline the issue of divinity, and I am not saying, denying it all together, those who obliterate the issue of having a purpose to work for, those who dispense with the issue of absoluteness and call for relativism, those who ignore the issue of the hereafter and live for this world only.  These kinds of thinking lead to differences in behaviour which would be in opposition to the Islamic paradigm of knowledge.  When the Muslim is filled with the Islamic epistemology, he would be committed to work for higher goals and to fulfill his mission on earth.

Therefore our tools for understanding our lived reality are different because universities teach social and human sciences in the same pattern of the Western epistemology not the Islamic one and the reason for turning to Western pattern is that adopting the Islamic paradigm of knowledge in university curricula needs what is called as “heavy intellectual manufacturing” as a tool for founding the bases of these sciences on a real understanding of our reality and realising it through solid bases like the ones that were set by the science of juristic methodologies and on which Imam ash-Shafi’i (r.a.) authored his ar-Risalah, which was followed by a huge intellectual legacy and scholarly heritage.

In our age, we miss this tool, as the science of juristic methodology, for example provides the mujtahid with tools to understand the sacred text but we do not have tools to understand the lived reality.  Therefore, the absence of this tool explains a lot of the differences among scholars in juristic councils and the reason behind objections each other’s juristic opinions.  In other words, the differences in realising our lived reality are the reason behind the differences in the issued fatawa of our time.  So the duty of our time is to build a tool for realising our reality and by contemplating our reality, we find that there are some vivid features which can actually mount to thirty features such as neighbourhood, relativism, change, complexity, intersection, development and so forth.  We need to realise the negative aspects in these features in order to put it aside and make the best use of the positive ones.

The mujtahid has to realize that during the process of his independent legal reasoning, ijtihad, there is a certain ceiling which he cannot go over which is composed of the sacred Qur’anic text and the sound Prophetic traditions.  After the authentication and verification of these two sources of authority, the mujtahid is not allowed to break the sound authority of these two definitive sources and we should mention scholarly consensus, ijma’, as well as another source of authority which we cannot breach.

Furthermore, it is equally important to pay special attention to the Arabic language with which the Qur’an was Revealed because there are some sects who claim the renewal of Islamic law and actually went against the meaning of the language.  This is where most people err because without a proper knowledge in Arabic language, the field would be wide open to random unscholarly baseless opinions.  Some people claim that the role of the language is a medium for conveying information but actually it is also a tool for formulating information and the bases for conveying and formulating information are well established since time immemorial in any language which is called al-wadh, or the used words and the appropriate meanings which are placed as indicatives to these words.  Therefore, interpreting the Qur’an does not depend on the impressions which the text leaves on the interpreter but actually the interpreter needs to pay attention to the meanings and indications of the words along with the scholarly consensus as ceilings which the mujtahid cannot exceed.

The mujtahid also needs to pay attention to the major objectives of shari’ah as they form the general system which aims at preserving the life, intellect, religion, dignity and property.  Prioritising these five objectives in the way that is arranged did not meet the consensus of scholars.  Imam ash-Shatibi (r.a.), for example, started with religion and Imam az Zarkashi (r.a.) mentioned the arguments over this arrangement of objectives.  From my stand point, I believe that the arrangement I mentioned suits well our current time because it places preserving the human life as the most important priority and then comes preserving the mind which is the subject of legal responsibility and then comes the issue of preserving the religion and then comes preserving both dignity and property.  This arrangement of the major objectives of shari’ah can very well be the base for a system that works for non-Muslims as well because these objectives meet the corroboration of all humanity.  There is no legal system in the world which allows random killing or theft.  This means that this general system which is based on the major objectives of the shari’ah encompasses cultural plurality and civilisational multiplicities which Muslims had already adopted when they allowed non-Muslims from different cults to preserve their religious and cultural identities.

There are major juristic rulings which can be used as another base for intersection between Muslims and non-Muslims and which encompass all secondary juristic rulings like, for example, things are judged by its purpose, harm has to be left, certainty is not obliterated by doubt, customs rule, hardship brings ease and so forth.  Therefore, we need to realise the methodology with which we can derive juristic rulings and we have to consider the purpose and the interest of people.  We also need to realise the proper ranks of these objectives as some of them are deemed necessary and others are less important.  Therefore, the books which deal with the major objectives of shari’ah discuss the ranks of the different objectives but unfortunately they do not discuss the relationship among these objectives and this area needs a lot of research.

To sum it up, the mujtahid has to realise the primary guidelines which are necessary for ijtihad and it has to be coupled with comprehending the text and realising the lived reality along with mastering the art of connecting between them.  This whole process has to be done under the ceiling of understanding the sacred text, scholarly consensus, mastering the Arabic language, realising the objectives, interests, principles and rulings of shari’ah.


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