Principles of Islamic Jurisprudence by MH kamali

The same author goes on to name a number of prominent

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Unformatted text preview: has acknowledged that they had both attained the rank of mujtahid. 'It is utter nonsense' writes al-Shawkani, `to say that God Almighty bestowed the capacity for knowledge and ijtihad on the bygone generations of ulema but denied it to the later generations.' What the proponents of taqlid are saying to us is that we must know the Qur'an and the Sunnah through the words of other men while we still have the guidance in our hands. Praise be to God, this is the greatest lie (buhtanun 'azim) and there is no reason in the world to vindicate it. [92. Shawkani, Irshad, p. 254] Iqbal Lahori considers the alleged closure of the gate of ijtihad to be 'a pure fiction' suggested partly by the crystallization of legal thought in Islam, and partly by that intellectual laziness which, especially in periods of spiritual decay, turns great thinkers into idols. Iqbal continues: if some of the later doctors Principles of Islamic Jurisprudence ~ Kamali 336 [89. have upheld this fiction, 'modern Islam is not bound by this voluntary surrender of intellectual independence'. [93. Iqbal, Reconstruction, p. 178.] Abu Zahrah is equally critical of the alleged closure of the door of ijtihad. How could anyone be right in closing the door that God Almighty has opened for the exertion of the human intellect? Anyone who has advanced this claim could surely have no convincing argument to prove it. Abu Zahrah continues: the fact that ijtihad has not been actively pursued has had the chilling effect of moving the people further away from the sources of the Shari'ah. The tide of taqlid has carried some so far as to say that there is no further need to interpret the Qur'an and Hadith now that the door of ijtihad is closed. In Abu Zahrah's phrase, 'nothing is further from the truth - and we seek refuge in God from such excesses'. Abu Zahrah, Usul, p. 318.] Conclusion The conditions under which ijtihad was formerly practiced by the ulema of the early periods are no longer what they were. For one thing, the prevalence of statutory legislation as the main instrument of government in modern times has led to the imposition of further restrictions on ijtihad. The fact that the law of the land in the majority of Islamic countries has been confined to the statute book, and the parallel development whereby the role of interpreting the statute has also been assigned to the courts of law, has had, all in all, a discouraging effect on ijtihad. The mujtahid is given no recognised status, nor is he required to play a definite role in legislation or the administration of justice in the courts. This is confirmed by the fact that many modern constitutions in Islamic countries are totally silent on ijtihad. It was this total neglect of ijtihad which prompted Iqbal to propose, in his well-known work 'The Reconstruction of Religious Thought in Islam, that the only way to utilise both ijma` and ijtihad (which he refers to as the 'principle of movement') into the fabric of modern government is to institutionalise ijtihad by making it an integral feature of the legislative function of the state (P. 174). Essentially the same view has been put forward by al-Tamawi, who points out that ijtihad by individuals in the manner that was practiced by the fuqaha' of th...
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