Principles of Islamic Jurisprudence by MH kamali

Ijtihad today cannot be exercised in isolation modern

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Unformatted text preview: p. 244.] The late Shaykh of al-Azhar, Mahmud Shaltut, observes that the conditions of a conclusive ijma`, especially the one which requires the agreement of all the mujtahidun of the ummah, is no more than a theoretical proposition which is never expressed in reality. Ijma', in reality, has often meant either the absence of disagreement (`adam al-ilm bi'l-mukhalif), or the agreement of the majority only (ittifaq al- Principles of Islamic Jurisprudence ~ Kamali 177 [83. Hasan, Doctrine. p. kathrah). Both of these are acceptable propositions which may form the basis of general legislation. Shaltut goes on to quote in support the Qur'anic ayah in sura al-Baqarah (2:286) that `God does not assign to any soul that which falls beyond its capacity.' Shaltut is not opposed to the institutionalization of ijma` provided that this does not violate the freedom of opinion which must in all eventualities be granted to the constituents of ijma`. Consensus must never be subjected to a condition which subjugates freedom of opinion to the arbitrary exercise of political power. Shaltut further adds that since the realization of maslahah through consensus is the objective of ijma`, maslahah as bound to vary according to circumstances of time and place. Hence the mujtahidun who participate in ijma`, and their successors, should all be able to take into consideration a change of circumstances and it should be possible for them to review a previous ijma` if this is deemed to be the only way to realize the maslahah. Should they arrive at a second ijma`, this will nullify and replace the first, and constitute a binding authority on all members of the community. Conclusion [85. Shaltut, Islam, pp. 558-559.] Under their classical definitions, ijma` and ijtihad were both subject to conditions that virtually drove them into the realm of utopia. The unreality of these formulations is reflected in modern times in the experience of Muslim nations and their efforts to reform certain areas of the Shari'ah through the medium of statutory legislation. The juristic basis for some of the modern reforms introduced in the areas of marriage and divorce, for example, has been sought through novel interpretations of the relevant passages of the Qur'an. Some of these reforms may rightly be regarded as instances of ijtihad in modern times. Yet in none of these instances do the statutory texts or their explanatory memoranda make an open reference to ijtihad or ijma`. The total absence of these terms in modern statutes is a sad reflection of the unreality that is encountered in the strict definitions of these concepts. The classical definitions of ijtihad and ijma` might, at one time, have served the purpose of discouraging excessive diversity which was felt to be threatening the very existence and integrity of the Shari'ah. But there is no compelling reason to justify the continued domination of a practice which was designed to bring ijtihad to a close Ijtihad and ijma' were brought to a standstill, thanks to the extremely difficult conditions that were imposed on them, conditions which often ran counter to the enterprising and creative sp...
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