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Unformatted text preview: rapidly increasing influences to which modern society is exposed, the possibility of consensus over values becomes ever more difficult to obtain. To come to grips with the fluctuation of attitude and outlook on basic values that the law must seek to uphold has perhaps become the most challenging task of the science of jurisprudence in general. To provide a set of criteria with which to determine the propriety or otherwise of law and of effective government under the rule of law, is the primary concern of jurisprudence. The Muslim jurist is being criticised for having lost contact with the changing conditions of contemporary life in that he has been unable to relate the resources of Shariah to modern government processes in the fields of legislation and judicial practice. A part of the same criticism is also leveled against the government in Islamic countries in that it has failed to internalise the usul al-fiqh in its legislative practices. The alleged closure of the door of ijtihad is one of the factors which is held accountable for the gap that has developed between the law and its sources on the one hand and the changing conditions of society on the other. The introduction of statutory legislation which has already become a common practice in Islamic countries has also affected the role and function of ijtihad. Apart Principles of Islamic Jurisprudence ~ Kamali 7 from circumventing the traditional role of the jurist/mujtahid, the self-contained statutory code and the formal procedures that are laid down for its ratification have eroded the incentive to his effective participation in legislative construction. Furthermore, the wholesale importation of foreign legal concepts and institutions to Islamic countries and the uneasy combinations that this has brought about in legal education and judicial practice are among the sources of general discontent. These and many other factors are in turn accountable for the Islamic revivalism/resurgence which many Muslim societies are currently experiencing. In view of the diverse influences and the rapid pace of social change visible in modern society it is perhaps inevitable to encounter a measure of uncertainty in identifying the correct balance of values. But the quest to minimise this uncertainty must remain the central concern of the science of jurisprudence. The quest for better solutions and more refined alternatives lies at the very heart of ijtihad, which must, according to the classical formulations of usul al-fiqh, never be allowed to discontinue. For ijtihad is wajib kafai, a collective obligation of the Muslim community and its scholars to exert themselves in order to find solutions to new problems and to provide the necessary guidance in matters of law and religion. But even so, to make an error in ijtihad is not only tolerated but is worthy of reward given the sincerity and earnestness of the mujtahid who attempts it. And it is often through such errors that the best solution can ultimately be reached. One can have different solution...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.
- Spring '13