A CRIT ICAL ANALYS IS OF THE ROLE OFI JT IHAD IN LEGAL REFORMS IN THE MUSL IM

WORLD

Rachel Anne Codd*

This article is an exploration of the concept of Ijtihad as a means for achieving aviable methodology for legal reforms in the Muslim world. The article aims toshow that the Islamic system is reformable and that it can sustain reforms to it.The need is to find a religiously acceptable methodology of legal reform within theIslamic framework. If a new series of rules is constructed from a combination ofthe evolutionary approach postulated by Ustadh Mahmoud Mohammad Taha1

and a fresh reinterpretation of Ijtihad then Ijtihad may be able to claim a morecentral role in bringing about sufficient and lasting legal reforms in the Muslimworld.

I N T R O DU C T I O N

Islam has been described by scholars and jurists as a progressive, dynamic anduniversal religion.2 The Quran has also been declared to be accessible to allMuslims not just one or two privileged individuals, and as such it is the duty of allMuslims to understand it and to derive assistance from it in matters relating totheir lives. Others, whilst admitting that Muslims may derive assistance by readingthe commentaries of learned jurists from the past also state that such commentariesare not the last word on any subject in question.3 Judge Mohammad Shafi, statedin Begum v. Din (Pakistan High Court) that: ``Reading and understanding theQur'an implies the interpretation of it and the interpretation in its turn includesthe application of it which must be in the light of the existing circumstance and thechanging needs of the world''.4 He then goes on to say that if the interpretation of

* This article is based on a dissertation submitted in partial fulfilment of the requirements for thedegree of M.A. Area Studies Near and Middle East, at the School of Oriental and African Studies,University of London, in September 1996.

1 Abdullahi Ahmed An-Naim, Toward an Islamic Reformation. Civil Liberties, Human Rights andInternational Law, Syracuse, Syracuse University Press, 1990, Chapter 3, p. 52.

2 Rahman v. Begum and other, High Court Decision in Bangladesh Legal Decisions, 1995, 15, vol. XV,p. 36.

3 Begum v. Din, High Court Decision in Pakistan Legal Decisions, Lahore, 1960, vol. XII, p. 1153.4 Ibid.

Arab Law Quarterly, [1999] 112±131

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the Holy Quran by the jurists in the early centuries after the death of the ProphetMohammad is to be considered as the final and binding word on subjects thenIslam would have no place in modern times and would cease to fulfil its role as auniversal religion, restricted to when and where it was revealed.

However over the years, the prevailing view regarding Islamic law is one thatinstead of demonstrating fluidity and flexibility has depicted Islamic law as a rigidlegal system incapable and resistant to change. Interpretation of the Quran and theSunna of the Prophet to extract a necessary rule or principle (Ijtihad) was used inthe early days after the death of Prophet Mohammad and indeed it was seen as theright of the jurists to do this. However, scholars writing on the subject haveassumed that the right of Ijtihad fell into abeyance after about the fourth century ofthe Hijra, approximately AD 900, and that the so±called ``Gate of Ijtihad'' wasclosed soon afterwards resulting in the stagnation of Islamic law. Schacht 5 sees theclosure of the gate of Ijtihad as being responsible for the reduction of the humanelement used for interpreting the sacred texts and sees the ``prohibition'' of the useof Ijtihad as the obstacle that prevented Islamic law from evolving as a system ofpositive law. Still others, such as Khadduri,6 without question, adopted Schacht'sview of Ijtihad, reasoning that because of the Muslims increasing intolerancetowards legal reasoning and to a difference of opinion amongst the jurists the doorof Ijtihad was closed and taqlid or imitation became de rigueur. These views doindeed suggest that Islamic law is unable to sustain reforms and that legaldevelopment within this system is practically impossible. However, these views arebased on misconceptions and a failure to really investigate whether Ijtihad wasabandoned in the manner suggested above. Hallaq7 shows us that the gate ofIjtihad was neither closed in theory or in practice, and that Ijtihad provided andstill provides a legal mechanism which is indispensable to legal theory as a devicefor discovering judicial judgments as set out in the Quran by Allah, and by thistoken a means of effecting legal reforms in accordance with the times and customsof society.

That the traditional Shari`a is in need of reform is evident. An-Naim8 is of theopinion that the application of the traditional Shari`a, especially in the area ofpublic law, would create severe difficulties and suggests that a modern concept ormodern version of the Shari`a derived from the same Islamic sources as the old ismuch needed to amend the negative aspects of the traditional Shari`a, such as theabuse of human rights among non±Muslim sections of the population. For suchreforms to take place however, they must have an underlying religious legitimacy ifthey are to change thought and practice in Muslim countries.

How, therefore, are such reforms to be achieved within an Islamic framework?

5 Joseph Schacht, An Introduction to Islamic Law, Oxford, Clarendon Press, 1964, Chapter 10, p. 69.6 M. Khadduri, ``From Religious to National Law'', Modernisation of the Arab World, Thompson

and Reischaeur (eds.) 1966, p. 41.7 Wael B. Hallaq, The Gate of Ijtihad: A Study in Islamic Legal History, University of Washington,

University Microfilms International, Ann Arbor, USA, 1983, p. 9.8 Abdullahi Ahmed An-Naim, supra, n. 1, Chapter 1, p. 2.

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The concept of Ijtihad is particularly appealing in that it adheres to An-Naim'srule of religious legitimacy, relying on fresh interpretation of the Quran and Sunnawhich is also in line with the view taken in Begum v. Din, 1960. However, there areproblems with the application of Ijtihad. Is Ijtihad only applicable in the absenceof definite and clear injunctions in the Quran? Or is Ijtihad also allowed wherethere are such injunctions? The link between the texts and a principle of theShari`a is established through reasoning and it is hard to see even in the presenceof clear and definite injunctions that the use of Ijtihad would not be used toestablish answers to problems. Classical evidence suggests that Ijtihad has actuallybeen used in the presence of clear injunctions in the Quran. The Caliph Umarexercised Ijtihad in precisely these situations and his actions have been explainedin terms of his perception of the best needs of the Muslim community at that time.It remains doubtful that Umar's behaviour was an isolated incidence when coupledwith the evidence from Hallaq9 that Ijtihad was very much exercised in thecenturies that followed the death of the Prophet. The fourth Caliph, Ali, also madethe statement that men and women speak for the Quran and so interpretation(Ijtihad) of its dictates is an essential part of applying Quranic injunctions to thelives of Muslims. However, there are still problems if reforms are to take placewithin the Islamic framework using Ijtihad as the mechanism of reform. Ijtihadmust first of all be able to provide adequate interpretation of the sources and thenbe able to apply such interpretations to actually solve the problems found in theMuslim world today. Secondly, there are the apparent inconsistencies found in theQuran. The verses revealed in Mecca advocate the peaceful transmission of theword of Allah and non-compulsion in the acceptance of Islam, whereas the versesrevealed in Medina sanction the use of force against anyone not wishing to acceptIslam.

The procedure of naskh (abrogation) of certain of the Quranic and Sunnaic textsproduced a comprehensive Shari`a which was consistent with the totality of theQuran and the Sunna. Thus, compulsion in spreading the word of Islam wasjustified by abrogating the Meccan verses forbidding force in conversion with theMedinan verses sanctioning such force. However, if this was employed in the pastand seen as an Islamic model then this approach according to An-Naim10 maycertainly be reused in light of today's society to produce a genuine and modernIslamic law. However, although this procedure may be used, and if one accepts thisview for reforming the Shari`a, does this necessarily imply that Ijtihad has alreadybeen made redundant? I would suggest that although the procedure of naskh mayplay a role in effecting reforms in Islamic law, without Ijtihad as a mechanism forinterpreting the remaining verses of the Quran and Sunna, there will always be therisk of whatever interpretation is given to these remaining verses that these willhave a totalitarian nature, and thus will have a tendency to remain just as static asthe verses that have been used to justify use of compulsion. It is my opinion that

9 Wael B. Hallaq, ``Was the Gate of Ijtihad Closed?'', International Journal of Middle East Studies,16, 1984, pp. 3±41, at p. 10.

10 Abdullahi Ahmed An-Naim, supra, n. 1, Chapter 3, p. 49.

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without Ijtihad, the striving to interpret the Quran and Sunna in light of today'ssocietal needs will leave the Quran and the essential message of Islam in the pastwith little or nothing to say to guide today's Muslims. Ustadh MahmoudMohammad Taha11 provides an evolutionary approach which suggests that when aparticular verse has served its purpose and is irrelevant for the needs of society(i.e., in the twentieth century) then it needs to be abrogated and the first verses (theMeccan verses) are to be re-enacted. Ustadh Mahmoud suggests that in this waythe Meccan verses have their place in the twentieth century as the operative textand the foundation of new legislation. This evolutionary approach gives credenceto the notion that it is indeed possible to exercise Ijtihad in the presence of clearinjunctions in the Quran and Sunna and the fact that Caliph Umar did such a thingsupports Ustadh Mahmoud's proposals.

I believe that Ijtihad is important as a legal device in effecting legal reformswithin an Islamic framework. This article aims to investigate the true role ofIjtihad in effecting modern legal reforms in the Muslim world. To do so I will firstanalyse the concept of Ijtihad and discuss how Ijtihad has already been used tobring about reforms. Finally I will attempt to discuss the exact role of Ijtihad inbringing about such reforms and analyse whether its role is central or peripheral tothe reform process.

W H A T I S I J T I H A D ?

The fundamental aim of the Quran was to introduce certain standards of behaviourfor the Muslim community. The so±called ``legal matter'' of the Quran is made upof broad propositions as to how the Muslim community should be guided, and assuch it does not clearly expound what the laws should be but only provides thebasic foundation from which Islamic laws and legal principles can be, and are,derived. Because legal theory (usul al-fiqh) is based on divine authority, andbecause of man's duty to praise God in accordance with the divine laws, Hallaq12

tells us that the process of extracting laws from the sacred texts (Ijtihad) became areligious duty for all jurists whenever a new case arrived, and until Ijtihad wasperformed by at least one mujtahid Muslims remained under the cloud of thisunfulfilled duty.

Literally, Ijtihad means ``exertion'' or ``self-endeavour''. However, in legalusage, Ijtihad refers to the striving of the jurist to a point of mental exhaustion toderive principles and rules of law from evidence found in the sacred texts orsources. Anything less than total exertion rules out the practice of Ijtihad. Ofcourse, only the jurist can himself verify whether or not he has expended hisutmost in trying to derive a legal principle. This makes the practice of Ijtihaddependent on the individuals' conscience. In contrast, there is the concept of taqlid

11 Ibid., p. 52.12 Wael B. Hallaq, supra, n. 7, p. 14.

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or imitation of either the classical jurists or an Imam. However, there are certainproblems that are encountered when trying to find a legal principle from the sacredtexts. Weiss13 points out that the person deriving the law must first ascertain thedegree of reliability of the non±Quranic texts and then determine the boundaries ofthe body of the texts he is consulting. Al-Amidi14 is very frank about the problemsthat are encountered when engaging in Ijtihad. He applies extremely strictmeasures to ascertain the authenticity of the Sunnaic texts and rejects simplisticefforts to solve the problem. Although very few of the Sunnaic texts pass thecriteria set out by Al-Amidi, what results from this is a body of texts that haveprobable authenticity and also a degree of uncertainty, which is in line with Al-Amidi's jurisprudential thinking, who takes nothing short of the original intendedmeaning of the texts as the foundation or springboard for the understanding of thelaw, so that the co±functioning of word and context is extremely important. One ofthe greatest problems therefore in this context is to decipher any ambiguity in thetexts. This approach is as Weiss, 199215 describes a holistic approach to theinterpretation of the texts so that the scholar must read every passage in light of awhole body of texts. When seen in this light we can grasp the meaning of total selfexertion in formulating the law, and also the importance of Ijtihad in remainingone of the most important mechanisms for legal reform. If the law is as Weissstates formulated ``on the anvil of debate''16 then this supports the notion that theShari`a would be freed from charges of rigidity and inflexibility if Ijtihad was to beemployed for deriving law reforms suitable for the twentieth century.

Who, then, has this right to derive laws that are acceptable to Allah? For asystem of positive law to be developed it is obviously necessary that not everyperson to whom the resulting laws apply should wish to engage in Ijtihadpreferring to leave this endeavour to the few and to follow what they decide upon.As Weiss17 notes it is in the interest of social stability that many choose not toacquire the qualifications of mujtahid. The term ``mujtahid'' has been looselydescribed by Al-Amidi as ``anyone characterised by Ijtihad''.18 However, he ismuch more rigorous as to the qualifications that the scholar must meet in order tobe so characterised. In this manner, the term mujtahid is not just a definingcharacteristic; it is also one of status.

There are many differing opinions as to what the qualifications of mujtahidsmust be. Abu Husayn al-Basri's19 (d.436/1044) requirements for Ijtihad entailknowledge of the Quran, Sunna and the principles of inference and analogy, withemphasis being placed on the use of analogy, as indispensable in performing

13 Bernard G. Weiss, The Search for God's Law: Islamic Jurisprudence in the Writings of Sayf al-Dinal-Amidi, University of Utah Press, Salt Lake City, USA, 1992, Chapter 16, p. 684.

14 Ibid.15 Ibid., p. 686.16 Ibid.17 Bernard G. Weiss, ``Interpretation in Islamic Law: The Theory of Ijtihad'', The American Journal

of Comparative Law, 1978, vol. 26, p. 207.18 Bernard G. Weiss, supra, n. 13, Chapter 16, p. 687.19 Wael B. Hallaq, supra, n. 7, Chapter 2, p. 15.

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Ijtihad. Knowledge of metaphors and abrogation as well as the Arabic language area must. Interestingly, Basri regards familiarity with urf or custom as anotherqualification for Ijtihad. Of equal importance for Basri is the infallibility of theMuslim community. However, Basri does not stipulate that the mujtahid shouldbe familiar with the positive rulings that have been subjected to ijma, nor does heallow a jurist to reinvestigate a case to which a ruling has already been derived.Thus the jurist must at least know the positive rulings of his school of law and doesnot allow the jurist wishing to engage in Ijtihad to treat any cases that have beentreated before. Weiss20 states that the mujtahid must be able to identifycommandments and prohibitions and be able to define their exact nature, i.e.,whether they prohibit, recommend, require, or allow, certain acts. The jurist willalso need to know the exact meaning intended in the passage and must be able tochoose accurately which of several expressions is the one intended. The jurist mustalso decide on whether the passage is to be taken literally or metaphorically andmust have a thorough grasp of linguistic clues such as nuance, implication, andallusion. Finally, according to Weiss, the jurist after formulating his opinion on agiven passage must determine if that passage has been abrogated, whereupon,Weiss considers that the mujtahid may not derive a rule of law based on thatpassage.

Shirazi21 (d.467/1083) limits the requirements for a mujtahid by only requiringthat the mujtahid have knowledge of the provisions in the Quran and Sunna thathave direct relevance to the Shari`a. The jurist must also know the texts and beable to extract rulings from them and possess the methods to do so. As more thanone ruling may be deduced for one case the jurist must know which of the rulingsshould be advanced over the others. Rudiments of usul al-fiqh, such as knowledgeof Arabic language and reasoning by analogy, are also necessary for Shirazi.

However, where Shirazi limits the knowledge needed to become a mujtahid, al-Ghazali22 (d.505/1111) expands these limits by maintaining that the jurist mustknow the 500 verses needed in law; he must know the relevant hadith literature,and have in his possession a copy of Abu Dawd's or Bayhaqi's collections ofhadith. The jurist, so that he does not deviate from the established laws, must alsoknow the works of furu and all the points subject to ijma. Al-Ghazali goes on to saythat if the jurist cannot meet this last requirement then he must make sure that anydecision he comes to does not contradict any of the renowned jurists. The juristmust then know the methods by which legal decisions are extracted from the texts,as well as knowledge of the Arabic language (complete mastery of it is notnecessary), know the rules that govern naskh or abrogation sufficiently so that thejurist knows which verses or hadith in question have not been repealed. Finally,the jurist must be able to investigate the authenticity of the hadith althoughmastery of the science of hadith criticism is not required. Al-Ghazali'srequirements are lengthy indeed but the above requirements are only needed for

20 Bernard G. Weiss, supra, n. 17, p. 210.21 Wael B. Hallaq, supra, n. 7, Chapter 2, p. 16.22 Ibid., p. 17.

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those jurists who want to use Ijtihad in all areas of law, i.e., a mujtahid mutlaq.Those that want to practice Ijtihad in only one area of law need only, according toal-Ghazali, to know the methodology and the body of texts needed to solve theproblem in question.

However, there are certain problems with the definition of the mujtahids as setout above by different scholars for the following reasons. Firstly, the opinions ofthe scholars mentioned above do not explicitly touch upon the rationality of theprocess of interpretation. Judge Mohammad Shafi23 touches upon this notion andstates that interpretation should bear in mind the changing circumstances ofsociety. He continues by saying that whilst the principles laid down in the Quranare eternal their application is not as ``the application has got to be to the facts andfor a purpose both of which go on varying and changing''.24 This to my mind cutsinto al-Ghazali's notion that jurists may not contradict the jurists of the past whenextracting legal principles from the sacred texts. If what al-Ghazali implies is truethen how would modern jurists be able to extract the relevant principle from thesacred texts to formulate laws that are consistent with the changes in today'ssociety? The Quran then would cease to be the bedrock of the law, applicable totoday's society of Muslims and would then become defunct. This eventualitydefies the universal nature of the Quran which is a fact. Secondly, the idea thatIjtihad may only be used in the absence of clear injunctions in the Quran andSunna is contradicted by the conduct of the Caliph Umar who used his Ijtihad torefuse to pay material incentives to non±Muslim elements in the society whoformerly needed to be pacified. He explained his behaviour by saying that thisshould only be carried out at times when the Muslim community was weak. As thatwas no longer the case, Umar refused to pay out the incentives. However, theinjunction to do so is clearly stated in verse 9:60 of the Quran.25 Verses 59:6±10 ofthe Quran26 stipulate that Muslim fighters are entitled to the spoils of war.However, Umar also refused to distribute lands captured during the conquests ofSyria and Iraq as part of the category ``spoils of war'' arguing that to do so wouldbe to weaken the state and deprive it of valuable resources. This classical examplerefutes the beliefs of the scholars mentioned above and cannot be explained assimply an aberration or an isolated case. An-Naim27 suggests that it is the duty ofcompetent modern Muslims to exercise Ijtihad even where there are clearinjunctions in the Quran as long as that Ijtihad does not tamper with the essentialmessage of Islam.

Again, the notion of repeal of certain Quranic passages and the prohibition of theexercise of Ijtihad therein is denied by the writings of Ustadh MahmoudMohammad Taha.28 Ustadh Mahmoud suggests that the Quran and Sunna revealtwo stages of the Islamic message. The first is the earlier Meccan stage and the

23 Begum v. Din, supra, n. 3, p. 1152.24 Ibid.25 Abdullahi Ahmed An-Naim, supra, n. 1, Chapter 2, p. 28.26 Ibid.27 Ibid., p. 29.28 Ibid., pp. 52±57.

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second is the later Medinan stage. According to Ustadh Mahmoud, the Meccanstage contains the fundamental message of Islam. This emphasises the dignity ofhumans, regardless of race, gender and belief. The fundamental message is alsocharacterised by the equality between men and women and the complete freedomof choice in religious matters. Ustadh Mahmoud then goes on to say that when thismessage was rejected, the Medina stage was implemented, which was moreappropriate for the conditions prevailing in the seventh century. The crucial pointof this argument is that when the Medina stage was revealed it did not repeal theearlier Meccan stage. The Meccan stage was not lost as a source of the law but wassuspended until the conditions of the time were appropriate for its implementa-tion. Ustadh Mahmoud insists that he is right on this point and it would appearthat he is, otherwise the fundamental message of Islam would have been lostforever after the implementation of the Medinan period. Therefore, the repeal orabrogation of subsequent texts of the Quran and Sunna revealed in Mecca is not apermanent fact. It is only suspended until such a time as they can be fullyimplemented. This shifting from one text to another is what Ustadh Mahmoudterms his ``evolutionary approach'' and this shows that the basis of the present dayShari`a may be suspended and replaced with that of the Meccan period which ismore in line with the needs of today.

What will be needed, therefore, for this type of approach to be implemented isfor the Muslims in the twentieth century to free themselves from the constrictionof old ideas from the past so that reforms of the type stated above may take placewithout the traditional idea that the Shari`a as it stands today is immutable neverto be revised or changed. This is in line with the views of Maulavi Saiyid AmirAli29 who also states that ``the elasticity of laws is the greatest test of theirbeneficence and usefulness'', and that the ``blight of the Muslim nation is due tothe parasitic doctrine that has prohibited the exercise of individual judgment''. Heurges that freedom from old ideas must be achieved.

Up until now the discussion has centered on the Sunni tradition. It is worthcomparing and contrasting the Twelver Imami or Shite Tradition (the formalreligion of the Islamic Republic of Iran) as regards legal interpretation. Bothtraditions agree that the sources used in deriving legal principles are the Quran andSunna. Both communities believe in an infallible source of truth after the death ofthe Prophet although they differ as to what this is. The Sunni tradition believesthat the infallible source of truth is the consensus of the community of Muslimswhich as Weiss30 points out is made up of the earlier generations of Muslimsespecially the Prophet's companions. However, for the Shite Muslims thecontinuing source of truth is to be found in the Twelve infallible Imams,descended in direct line from the Prophet. The paramount role of the Imam in theShia theory is really the fundamental difference between them and the Sunnis.The importance of this role then obscures the concepts of ijma and Ijtihad because

29 Amir Ali Maulavi Saiyid, The Spirit of Islam, London, 1922, pp. 230±231.30 Bernard G. Weiss, supra, n. 17, p. 210.

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to allow an individual jurist the authority to derive principles from the Quranwould be to undermine the Imam's position as the spiritual link betweenhumankind and God and his position as the executor of the law. The Imam'spronouncements are always correct regardless of whether they are included in theconsensus or not and so the importance of consensus is not as important to theShite tradition as it is to the Sunni community. The next difference between thetraditions is their stance taken on the use of human intuition as an independentsource of law. Sunnis do not recognise intuition regarding the human intellectwithout divine revelation as capable of distinguishing right from wrong. However,the Shia believe that divine revelation and command are compatible with humanintuition, although human intuition is not held to be totally capable of formulatingthe requirements of the divine law especially in the area of worship. The thirddifference is the placing of greater emphasis by the Shia on knowledge than do theSunnis. This is because of the fact that intuition is recognised as a source of law sothe Shia regard legal knowledge as more within the reach of man. This is not thecase in the Sunni tradition. Weiss31 shows us that the Shia has a functional bondbetween the sacred texts and rational intuition which helps to safeguard againstuncertainty. Unlike the Sunni tradition the emphasis of the role of the Imam in theShia tradition also opens up another source of truth in that the word of the Imam isverifiable and written down rather like the Sunna of the Prophet Mohammad andindeed is written into a more comprehensive Sunna than that of the Prophet. Thisis in contrast to the Sunni notion of consensus which is by its definition vague andtotally separate from the Sunna of the Prophet. Therefore, the Shia traditionactually recognises more sources of the law than do the Sunnis and they also allowa greater capacity for the human intellect to formulate legal knowledge. However,although the Shia may attach a greater importance to human intellect than do theSunni, the idea of the one legal school is rigorously upheld and a plurality of legalschools is not found as it is in Sunni Islam. Finally, the Shia reject the notion ofinterpretation by analogy not allowing the jurists' opinion to go beyond the actualmeaning found within the texts.

It is worth mentioning at this stage the controversy surrounding the usage ofIjtihad. Scholars have assumed that the ``gate of Ijtihad'' was closed somewhere inthe fourth century of the Hijra or AD 900 and therefore cannot be used as such tobring about modern legal reforms in today's world. However, this assumptioncannot be true as scholars such as Hallaq32 have demonstrated that Ijtihad wasneither abandoned in theory or in practice. The fact that Ijtihad can and has beenused to effect modern legal reforms within the Muslim world also refutes thisassumption that Ijtihad is now defunct and will be discussed later.

Schacht33 describes the process of the demise of independent reasoning bysaying that at the time of the fourth century, the scholars of the schools felt that allessential questions had been adequately discussed, answered and settled. He then

31 Ibid., p. 211.32 Wael B. Hallaq, supra, n.7.33 Joseph Schacht, supra, n. 5, Chapter 10, pp. 70±71.

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goes on to say that a consensus resulted whereby from that time onwards no onewould have the necessary qualifications to practice Ijtihad. Thus all future legalendeavour would be restricted to the interpretation of the doctrine as it had alreadybeen laid down. Schacht, goes on to say that the practice of taqlid or blindadherence to the doctrines of the established schools was now practised. Still otherscholars have blindly accepted this point of view and have assumed that thepractice of Ijtihad became largely defunct by the end of the fourth century Hijra.However, the opponents of this view challenge the notion of such a closure of thegate of Ijtihad, saying either that the gate was not closed tightly (e.g., LeonOstrorog34 and H.A.R. Gibb35) or that the gate was in fact never closed at all(Hallaq36). Hallaq37 gives a comprehensive account for the existence of Ijtihadthrough the centuries saying that Ijtihad was an indispensable tool for legal theorythrough which the jurists could determine the conduct acceptable to Allah. Heexplains that the qualifications specified for a jurist to practice Ijtihad were easierto meet than other scholars have previously thought. He also describes how thepractice of Ijtihad was seen as a religious duty and how individuals who opposedthe use of Ijtihad were finally excluded from Sunni Islam.

It is clear from Hallaq's description of the true state of Ijtihad that it can be usedto bring about modern legal reform in the Muslim world. Many countries underthe pressure of human rights organisations, the international community andleaders, concerned about their grip on power in their own countries, have broughtabout reform. Whilst recognising that reforms must take place they have sought tomake them palatable to as many people as possible taking special care not toalienate the religious sector of their communities.

The next part of this article demonstrates how Ijtihad has been used to bringabout lasting reforms in a variety of countries, such as Sudan, Egypt, Iraq, Syriaand Tunisia, as well as reforms in the Personal Status law of the non±Sunnite sectsin the region. Two cases from the Indian subcontinent will also be discussed as thejudges' ruling in both cases demonstrate Ijtihad and underline its importance forreform in the legal system.

H O W C AN I J T I H A D B E U S E D T O B R I N G A B O U T MOD E R N L E G A L

R E F O RM S I N T H E MU S L I M WO R L D ?

In 1898 Mohammad Abduh38 advocated the need for fresh reinterpretation of theprinciples found in the divine revelation as the basis for legal reforms. Abduh alsoargued that Ijtihad was not only the right of modern day jurists but the only way

34 Count Leon Ostrorog, 1927, ``The Angora Reforms'', in Sumbul Ali-Karamali and Fiona Dunne,``The Ijtihad Controversy'', Unpublished, SOAS, 1993, p. 5.

35 H.A.R. Gibb, 1932, ``Whither Islam?'', London, p. 67 in Sumbul Ali-Karamali and Fiona Dunne,``The Ijtihad Controversy'', Unpublished, SOAS, 1993, p. 6.

36 Wael B. Hallaq, supra, n. 7, Chapter 1, p. 10.37 Ibid.38 N.J. Coulson, A History of Islamic Law, Edinburgh University Press, 1964, Chapter 14, p. 202.

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by which Islam could adapt itself to the needs of today's society. Abduh's ideasrepresented a break with the traditional idea of the immutability of the Shari`a as itstood and naturally the advocates of the old legal tradition opposed theserevolutionary ideas. However, the issue at stake then and today is that of the clashbetween conservative and progressive opinion. The traditional ideas hold a greatdeal of sway and because of this reforms have been few and far between. In thel950s modernist views were actually formulated into practice, the result of whichwas that the interpretations of the classical jurists were ignored and the injunctionsof the Quran and Sunna were construed afresh in the light of the demands of thesociety. Because of the implications of and the resistance to recognising Ijtihad as abasis of legal reform, a number of methods have been employed that represent asort of halfway house between Ijtihad and Taqlid.

The 1946 Egyptian Law of Testamentary Dispositions represents whatCoulson39 terms quasi-Ijtihad. The traditional law of inheritance made noprovision for orphaned grandchildren if there was a surviving son of the deceased.The reformers in Egypt considered this to be a defect in the inheritance law as itstood so they set out to reform the rule of obligatory bequests. The 1946 Lawprovided that orphaned grandchildren of the deceased, regardless of whether therewas a surviving son of the deceased, were entitled to the share that their parentwould have had had they been alive, provided that the grandchildren in questionhad not received such an amount as a gift or a bequest from the propositus. Theshare in question where necessary was cut down to one third of the estate which isthe recognised limit for testamentary dispositions. This system was alsointroduced in Syria, 1953, Tunisia, 1957 and Morocco, 1958. However, in theSyrian and Moroccan Codes this rule is confined only to the issue of the deceasedson and not to the issue of the deceased daughter, and so are limited in their scopefor reform. How did the reformers in Egypt bring such a reform about?

First, individual jurists had disagreed with the majority opinion that the Quranicinjunction making bequests to near relatives was abrogated by the rules of intestatesuccession which were later formulated. Ash-Shafei was of the opinion that it wasmorally correct to make bequests to those that were not legal heirs but were closerelatives, and Zahiri Ibn Hazm considered this obligatory. The reformers thencombined their own interpretation of the Quran with that of the traditionalauthorities specifying who those near relatives were to be. This reform represents aquasi-Ijtihad in that the reformers whilst reforming the law of intestate successionby interpreting the spirit of the Quran anew did not break completely with pastauthorities. However, it is interesting to note that as time went by and there was noevidence from the traditional authorities to support the new rules, the reformersbegan to assert that their ideas were based on a new interpretation of the originalsources of the Shari`a law not from the traditional authorities. This is aninteresting point that Coulson40 makes here. If two of the original sources of the

39 Ibid., p. 203.40 Ibid., p. 206.

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Shari`a law are to be the Quran and the Sunna as indeed they must, then in myopinion it is clear that even as early as 1947 the idea that fresh interpretation of theQuran and Sunna, without reliance on the traditional jurists of the classical periodor the traditional Shari`a, could be postulated, albeit in a very cloaked manner, andthis is very much in line with the thesis of An-Naim41 that in order for an Islamicreformation to come about and to be a viable alternative for the governance of theMuslim world, the Shari`a, as it stands today, must be reformulated from theoriginal texts from whence it came to make a ``new Shari`a'' suitable for thedemands of life in the twentieth century.

The second area of reform that drew the reformer's attention was the area ofpolygamy and the right of the husband to unilaterally repudiate his wife. TheSyrian Law of Personal Status, 195342 was the first country to remedy the situationby using Ijtihad. The Quran stipulates that a husband, if he feels he cannot dealfairly with more than one wife or is not financially capable of maintaining morethan one wife, should only take one. This excerpt from the Quran had always beenseen as a moral injunction rather than as a legal one. However, the Syrianreformers maintained that the Quranic stipulation should be seen as a legalcondition and should be enforced by the courts to make sure that abuses would notbe allowed to continue. Article l7 of the Syrian Law stipulates that the qadi maywithhold his permission for a man to marry a second time if he is not in a positionto support both wives. However, Article 17 was rendered less powerful by thesubsequent provision that a second marriage in contravention to the above articlewas not invalid. However, the parties who did such a thing were liable for penaltiesand the court would not recognise the marriage in the case of judicial relief unlesschildren had been born or if the wife was clearly pregnant.

In the area of unilateral repudiation or talaq, the Syrian Law introduced a boldstep. The Syrian Law provided that in the case of a repudiation without just cause,the wife might be awarded compensation from the husband to the effect of oneyears maintenance. This reform was brought about by the verses in the Quran thatenjoined husbands, firstly, to make fair provision for wives who had beenrepudiated, and secondly, to keep them in kindness or release them withconsideration. Although the Syrian reforms of 1953 were not as great as desiredand do not absolutely forbid a husband marrying a second time even if he did so incontravention of Article 17, the reforms in Syria of 1953 demonstrate for the firsttime a change in the juristic basis on which these reforms were founded. For thefirst time fresh interpretation of the relevant Quranic verses marked a significantpoint in departure from the legal tradition considered acceptable and followed upto this point.

Following the Syrian example, the Tunisian Law of Personal Status, 195743

went somewhat further in their use of Ijtihad to bring about legal reforms. The

41 Abdullahi Ahmed An-Naim, supra, n. 1, Chapter 1, p. 10.42 J.N.D. Anderson, ``The Modernisation of Islamic Law in the Sudan'', Sudan Law Journal and

Reports, 1960, p. 306.43 N.J. Coulson, supra, n. 38, Chapter 14, p. 210.

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Tunisian reformers, following the arguments put forward by Mohammad Abduhpreviously, pointed out that in addition to the stipulation that the husband must befinancially able to support many wives, they also pointed to the Quranic verse thatsays that the husband must treat all his wives equally and with completeimpartiality. The reformers said that these two injunctions were not just moralinjunctions but were legally binding and so no husband could marry polygamouslyunless there was evidence that he could deal impartially with all his wives. Thereformers underlined that in the present social and economic conditions, tomaintain and to treat impartially many wives was no longer possible, thepresumption being that the essential conditions for allowing polygamy wereincapable of fulfilment. So, polygamy was abolished altogether. The Tunisian'salso used Ijtihad to reform the area of unilateral repudiation. In the case of discordbetween two spouses, the Quran orders that arbiters be appointed for the parties inquestion to try to reconcile the couple. The Maliki school had been the only onesto implement this in their school of law by providing that the wife had recourse tobring charges of cruelty against the husband. The reformers argued that a sourceof cruelty and discord between two parties would be the pronouncement ofrepudiation. They then argued that the arbitration should take place in a court oflaw with lawyers as the arbiters stipulated in the Quran. The result of this Ijtihadwas that the right of the husband to unilaterally repudiate his wife extra judiciallywas abolished. This is embodied in Section 30 of the Law of Personal Status, 1957.The striking thing about this Law is that the court is unlimited in its power togrant compensation to the wife for any damage she has endured due to the divorce,and secondly, that both parties are treated equally, for example, if the wife wants adivorce but does not state her reasons then the court is able to award compensationto the husband. However radical the juristic basis for legal reform in Syria andTunisia were, most countries in the Muslim world prefer to practice taqlid usingIjtihad only when the practice of taqlid cannot bring about the desired reforms.For example, the Moroccan Code of 195844 prohibits polygamy where there isunequal treatment but can only give relief by dissolving the marriage retro-spectively. In this way the Moroccan Code does not really go outside orthodoxMaliki practice. Again, in Iraq, the Personal Status Law, 195945 provides that theqadi will not give permission for a man to marry polygamously if he is not satisfiedthat the husband has the means to do so and if there is no real lawful gain to be hadby marrying in such a way. However, the 1959 Iraqi Law falls short in making anysignificant reforms in this area because although a husband should go to court torepudiate his wife, the 1959 Law still recognises any unilateral repudiations thatoccur out of court as valid and binding.

Whilst recognising unilateral talaq as a legitimate process for divorce, Pakistan,under the Muslim Family Laws Ordinance, 1961, stipulates, under Article 7 of thesaid Act that after repudiation the husband must inform the Union Council of the

44 Ibid., p. 212.45 Y. Linant de Bellefonds, ``Statut Personnel Irakien, 1959'', Studica Islamica, 1960, vol. 13, p. 87.

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repudiation, whereupon arbiters are appointed to try to reconcile the couple. In theevent of a failure to reconcile the parties, the couple must wait a further 90 daysbefore the divorce is effective. If the husband fails to comply with Article 7 hecould suffer a fine, imprisonment or both. Under this Act the divorce is onlyeffective if the husband reports it and the wife must also be given notice of thedivorce. This procedure was to be applied to any divorce however it was pronouncedand so nullified the various types of repudiation known under the traditional Shari`alaw. However, although this reform in Pakistan represented an advance, the 1961Ordinance still left the husband's right of unilateral repudiation relatively intact. Themechanisms by which the above reform was effected were different to those reformspreviously discussed in the Arab world. Instead of a conscious reinterpretation of theoriginal sources of the law as practised in the Arab world the Pakistani reforms basethe need to reform polygamy on social desirability rather than on the Quranic versesof financial capacity and impartial treatment between wives.

With regard to legal reforms in Sudan, Anderson46 states that the best exampleof Ijtihad in the legal reform of that country is the limitation of the period ofgestation to one solar year maximum. However, Anderson mentions that this pointhas been enforced by the mechanism of denying judicial relief to other claimsrather than making any attempts to amend the substantive law as it stands. In fact,in Sudan it is clear that many of the law reforms in the country preferred to derivetheir authority for reforms from dicta in the past rather than from contemporarydeduction of the sources of law.

For the non±Sunnite sects in Islam, there is theoretically less of a problem forreforming various laws as they have never accepted the concept of taqlid. Thesharpest contrast to the dilemma that the Sunni schools find themselves in whenembarking on reform are the reforms effected for the Ismaili communities livingoutside India. Any changes for this community rest on the supreme authority ofthe Aga Khan and as such require no juristic base other than that of his will tobring about reforms. In this fashion the prohibition of marriages of persons belowthe age of 18 for boys and 16 for girls was introduced.

Perhaps one of the most striking examples of Ijtihad in the modern Sunniteworld comes from Bangladesh. In Rahman v. Begum and other47 the High CourtJudge opined that the obligation on a Muslim husband to maintain his divorcedwife does not stop at the end of Iddah period, as is traditional, but that he isobliged to maintain her beyond this period indefinitely or until she remarries. Thiscase is an excellent example of modern day Ijtihad. The Judge concluded that thecivil court had the jurisdiction to follow the law as set out in the Qurandisregarding any subsequent law even if it emanated from the early jurists and hadbeen followed for a great period of time. The Judge then considered the Quranicverse No. 241 of Sura al-Baqarah48 and found that divorced women are allowed to

46 J.N.D. Anderson, supra, n. 42, p. 305.47 Rahman v. Begum and other, supra, n. 2, pp. 34±37.48 Abdullah Yusef Ali, The Meaning of the Holy Quran, Quranic Verse No. 241, Sura al-Baqarah,

1937, pp. 98±99.

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have ``household stuff, utensils, goods and chattels'', and that she must also beprovided for ``on a reasonable scale''. He then went on to state that the Arabicword, ``Maaroof'' may mean ``recognised'' instead of ``reasonable'', reasoning thatthis meaning was to be considered with regard to the amount of maintenance not tothe actual time period of maintenance. The Judge concluded, therefore, that thehusband in question had to maintain his wife indefinitely or until she lost herstatus as a divorced woman by remarrying, and that he had to maintain his sonuntil he attained the age of majority.

Begum v. Din49 in Pakistan supports the views of the judge in the above case.Judge Mohammad Shafei, was of the opinion that: ``Reading and understandingthe Quran implies the interpretation of it and the interpretation in its turn includesthe application of it which must be in the light of the existing circumstances andthe changing needs of the world''.50 The judge clearly recognises that Ijtihad mustplay a vital role in giving to Islamic law a vitality necessary for the Islamic messageto remain applicable as society changes through the ages. He is totally againstrestricting interpretation of the sacred texts to the time of the early jurists as hestates that this will cause the religion to stagnate and become a religion restricted towhere and whence it was revealed. The judge calls for Muslims to ``awake out oftheir slumber''51 and in order for the general principles of the Quran to be appliedhe calls for the intelligent interpretation of the Quranic text so that it may beapplied in such a way that is best suited for the people, the country and the times inwhich they live. His final statement: ``All Muslims then have to listen, learn andinterpret the Quran''52 is a radical departure from the doctrine of taqlid and thetraditional practice of it by Muslims. Both cases above represent what can beachieved in order to safeguard the rights of women against abuses rife in thetraditional Shari`a if Ijtihad is applied.

As has been demonstrated above Ijtihad has been used as a legal vehicle forlasting reform within the Muslim world. However, it is clear that whilst reformshave been effected, many countries still wish to obscure the fact that the juristicbasis of the reform in question has been altered away from traditional reliance onthe jurists, for example in Sudan. Other countries, for example, Morocco, whilstwishing to adopt reforms, have hardly deviated from the traditional doctrine of theschool followed in that country. The Tunisian example is the most radical andlasting of the reforms using Ijtihad in the modern world today. However, thisreform was not brought about by a bottom up demand, rather it was brought aboutby a top down process imposed by the President of the time. That the Presidentwas careful to provide religious legitimacy for the proposed reforms demonstratesa keen knowledge of the religio-political events of the time.

That the reforms stayed as legislation shows the nature of the political re gimesthat introduced them. Ijtihad therefore has moved away, certainly in the Tunisian

49 Begum v. Din, supra, n. 3, pp. 1142±1178.50 Ibid., p. 1153.51 Ibid.52 Ibid., p. 1154.

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example, from being the right of the Mujtahids to derive legal principles from thesacred texts where no analogous ruling had been determined before, to a simpledevice which modifies clear injunctions in the Quran and Sunna to bring aboutreform in turn fitting the political aspirations of the countries' leaders. Thestriving and intense self exertion of the real nature of Ijtihad and the willingness toactually claim Ijtihad is somewhat lacking in these examples. At the theoreticallevel this form of Ijtihad engaged in by reformers is opposed by strict theorists onthe grounds that this type of Ijtihad is not an objective endeavour as it should be.This type of Ijtihad is therefore only used as a legitimising agent for such reforms,the results and limits of which fit a preconceived standard which usually coincideswith the aspirations of the political community in power. However, to counter thisargument we must consider that even in the classical law the law was formulatedfrom the sacred texts in the light of the prevailing social conditions of the time, andthe view taken in Begum v. Din53 in Pakistan and in Rahman v. Begum and other54

in Bangladesh reflects modernist thinking. Modernist reforms using Ijtihad whichelevate Quranic injunctions, previously held only as moral injunctions, to a legalstatus are acknowledging and emphasising the importance of Quranic precepts tobring about reforms that are in harmony with the identity of Muslim people, theidentity of whom is not reflected in the traditional texts or in embracingsecularism.

That Ijtihad can and has been used to enact legislation and to derive novelrulings for contemporary cases is clear from the above examples. However, what isthe real nature of the role that Ijtihad can play, and is the application of Ijtihad onits own sufficient to bring about modern reforms in today's context? The final partof this article deals with these questions and also asks if a combination of Ijtihadand naskh may better succeed where perhaps Ijtihad by itself might fail.

C O N C L U S I O N

Ijtihad has been used to effect legal reforms in many countries in the Muslimworld. However, what is also clear is that Ijtihad has been used as a legitimisingfactor for reforms and has been used as such by the reformers ever conscious of theneed to appease the religious sectors of their communities. The 1946 EgyptianLaw of Testamentary Dispositions used Ijtihad to reform the area of intestatesuccession. However, the Law has actually used a feature of the Shia law ofsuccession called succession per stirpes which allows orphaned grandchildren toinherit the share that their own parent (had they been alive) would have inherited.The Egyptians did make a veiled reference to the Ithna Asharite view but they didnot explicitly state it because the adoption of legal principles from a heterodox sectis not considered an acceptable basis for legal reform for Sunni jurists. The Iraqi

53 Ibid.54 Rahman v. Begum and other, supra, n. 2, pp. 34±37.

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Personal Status Code of 1959, also totally reformed the law of succession throughthe adoption of Shia principles although they did not explicitly state that they haddone so. Iraq has a large population of Shia Muslims, thus making it somewhateasier to adopt such principles. However, in the rest of the Muslim world this wayof bringing about reform is not acceptable to the traditional Sunni authorities. Theradical reform in Tunisian law of the law of succession provides that ``any linealdescendant of the deceased, male or female, excludes the deceased's collateralrelatives from intestate succession; for under the agnatic system of traditionalSunnite law the brothers of the deceased, in the absence of any surviving maleascendant or descendant, are the primary residuary heirs''.55 Coulson56 points outthat it can be forcefully argued that this provision implements the spirit of theQuran as the Prophet Mohammad introduced reforms that looked to replace thetribal system with the individuals' family. However, in contrast to their use ofIjtihad to bring about reforms in the areas of polygamy and unilateral talaq, theTunisians, in this case, made no attempt to use Ijtihad, simply stating that thereform was needed by society. As seen above this is what happened in Pakistan inthe Muslim Family Laws Ordinance, 1961. Both the Tunisian reform of the law ofsuccession and the Pakistan reform of the Personal Status Law stand in directopposition to the 1946 Egyptian Law of Testamentary Dispositions which did finda way to reform based on traditional authorities and the use of quasi±Ijtihad.

However, what is evident is that although the reforms regarding polygamy andunilateral talaq reformed the existing system from the reformers interpretations ofspecific Quranic verses, the methodology of reform for the law of succession isbased on a very different concept of Ijtihad. The reformers approach in this caseseems to be more of a piecemeal answer to existing problems in the Shari`a ratherthan as a step towards creating a legal structure capable of handling areas such asthe law of succession. The reformers have lacked any consistency in the way theyhave brought about reforms and have failed to provide a legal structure which iscapable of coping with the legal demands placed on it by contemporary society.

It is clear from what has preceded that Ijtihad shows promise in its ability toeffect legal reforms although it does so at a largely peripheral level. What is reallyneeded to address the problem is an overhaul of the whole legal structure, i.e., achanging of the foundations of the traditional Shari`a. There are however, certainproblems to be overcome in that Muslims are reluctant to use Ijtihad to reinterpretthe Quran and the Sunna as it was practised in the early days after the death of theProphet Mohammad. In theory therefore, Ijtihad as a mechanism for legal reformseems to have the appropriate qualifications but in practice it is limited byMuslims present inability to break free of the idea that the Shari`a as it stands isimmutable and may not be tampered with. The ``peripheral role'' of Ijtihad intoday's practice is furthered by the way that Ijtihad is applied to effect desiredreforms, as opposed to how in strict theory it should be applied. Furthermore,

55 N.J. Coulson, supra, n. 38, pp. 219±220.56 Ibid., p.220.

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there is the problem of when Ijtihad may be used. The discussion has so fardetermined that although the traditional authorities forbade Ijtihad where therewere clear injunctions in the Quran and Sunna, classical examples have shownotherwise (e.g., Caliphs Umar and Ali). It is suggested in this article therefore, thatCaliphs Umar and Ali's examples provide initial support for the practice of Ijtihadeven in the presence of clear Quranic and Sunnaic injunctions.

As I have stated above Ijtihad at the present time is used in a largely peripheralmanner and cannot be used in any other way, and unless there is a completeoverhaul of the legal system and its present juristic basis, Ijtihad will always berelegated to a peripheral role.

However, if Ijtihad is to be reused properly even within a new Islamicframework to effect modern legal reforms then as An-Naim57 suggests, Ijtihadwill have to be modified and the traditional Shari`a disbanded. He argues thatproponents of the view that Ijtihad is sufficient to bring about reforms under thepresent Shari`a are engaging in wishful thinking as Ijtihad in its traditionalconception is restricted only to the interpretation of the sacred texts where thereare no clear injunctions in the Quran and Sunna, which obviously confines thepractice of Ijtihad within the bounds of the traditional Shari`a. An-Naim calls forthe disbanding of the traditional Shari`a and a new one to be implemented andthat Ijtihad needs to be freed from the limitations imposed on it previously. Thesuggestion which allows Ijtihad to be used in the presence of clear Quranicinjunctions as well as in the absence goes some way in providing for anappropriate reformulation of Islamic law in keeping with the arguments putforward here.

If Ijtihad is to be reformulated to allow for the reinterpretation of the sacredtexts regardless of the presence or absence of clear injunctions, then the questionremains is this enough to bring about the necessary reforms? Will Ijtihad be givena central role as a reform mechanism? Are Muslims ready for such a radical breakwith past tradition? Will the reformers be allowed to apply it to effect legal reform,and, finally, which verses of the Quran are to be applied to the demands of today?

A break with tradition is always traumatic and the reluctance of many Muslimsto perceive anything other than heresy in rejecting taqlid and the Shari`a as itstands today can lead some to the persecution of those like Mahmoud Taha whogave his life for his pacifist ideas for the evolution of Islamic law. However, to theexclusion of any new ideas radical sections such as the Muslim Brotherhood inEgypt and in Sudan, who call for the complete implementation of the historicalShari`a in their respective countries, have shown only that imposition of thetraditional Shari`a to the exclusion of any new ideas often results in violence,persecution, intolerance and bloodshed. The recent experiments in Sudan,Pakistan and Iran are testimony to this. The thesis of Hassan al-Turabi, theleader of the Islamic National Front in Sudan is a good example of how theproponents of the return to the historical Shari`a do not address the specific

57 Abdullah Ahmed An-Naim, supra, n. 1, Chapter 2, p. 28.

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problems facing the Muslim world today. An-Naim58 points out that on suchissues al-Turabi's thesis fails to specify what type of reforms are needed and howthey are to be achieved. His thesis rests on no actual authority found in the Quranor Sunna for his assertions. On the question of how non±Muslims would be treatedif the Shari`a was implemented, al-Turabi's comments are misleading. He givesthe sense that non±Muslims would have a choice, for example, in the public lawimposed on them when in fact the traditional Shari`a allows no such thing. Hisideas on the treatment of women under the Shari`a are at best vague and hisassertions amount to an evasion of the issue. With the very real danger of suchpeople coming to power in Muslim countries and the dim consequences that thiswill have on many people, it is extremely important to find a way to provide ahumanitarian form of governance that is acceptable for Muslims.

From an analysis of the role of Ijtihad and the call for Islamic reformation, itseems that although Ijtihad must be allowed to play a role in deriving lawsacceptable to Allah for the daily lives of Muslims, Ijtihad as it is conceived todaymust undergo a reformulation and modification and be used to build up, from theQuranic Verses, a new body of laws suitable for the demands of today's society. Acombination of the procedure of Naskh (abrogation) and Ijtihad to reinterpretpreviously abrogated verses, namely from the Meccan period, goes some way tobuilding from the same sources of the law a new legal structure which hassomething to say about life in the twentieth century but which remains within theIslamic framework.

The most suitable method in my opinion is the combination of the approach ofUstadh Mahmoud Mohammad Taha59 with the reinterpretation of the revivedverses. Ustadh Mahmoud's evolutionary approach advocates shifting the juristicbasis of Islamic law from their current foundations on a particular set of texts toanother class of texts to provide a new Quranic base, for the restructuring of thelaw within an Islamic framework that is as advanced as the level of humandevelopment at this time. Ustadh Mahmoud proposed to revive the earlier texts ofthe Meccan period which had been abrogated by those preceding them to buildfrom them a modern basis of Islamic law. In this manner the explicit textsconstraining the rights of women and minority groups as well as compulsion inIslam are set aside leaving the essential equalitarian message of Islam whichadvocates equality for all human beings regardless of race, gender or religion as thebasis for a new departure for Islamic law. If this evolutionary approach is put intopractice then Ijtihad may then be used to interpret the revived verses restoring itthrough some modification to a central role in the formulation of Islamic law. Thisreformulation represents a new departure for the Islamic message as it matures andadvances away from the somewhat primitive framework that was suitable in theearly centuries of Islam to a framework that is compatible with concepts such as

58 Ibid., pp. 38±42.59 Mahmoud Mohammad Taha, The Second Message of Islam, Syracuse University Press, 1987,

Chapter 7, pp. 165±172.

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equality between all humans, constitutionalism, and democratic forms ofgovernance.

We have seen, in this article how Ijtihad was employed in the first centuries ofIslam to build up a body of laws suitable to govern the early community ofMuslims. We have also seen how Ijtihad has again been employed in this centuryto bring about reforms for the present community of Muslims. However, Ijtihadby itself within the traditional Shari`a framework is not sufficient to bring aboutthe lasting reforms or to solve all the problems facing Muslim countries today. Inconclusion, therefore, I believe that if Ijtihad continues to be used as a legitimisingagent as opposed to a central mechanism of reform it will never attain its positionas one of the central foundations of juristic reform. However, Ijtihadmay regain itscore position if the evolutionary approach postulated by Ustadh MahmoudMohammed Taha is adopted. If the classical examples of the Caliphs Umar andAli on using Ijtihad in the presence of clear injunctions in the Quran and Sunna arealso accepted then the evolutionary approach combined with the modified versionof Ijtihad may be used to interpret the ``new'' texts together constituting thefoundations for a new and modern Islamic law.

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