How do we exercise our
intellectual faculties to resolve the current divergence between
the modern world and the traditional presentation of Islamic Law
What we aim
to do is deploy the techniques and tools of ijtihad in a way
that is compatible with our time and the new explosion in
knowledge, the sciences and means of learning, and restore the
role of Shariah in modern life. There is no doubt that the role
of ijtihad is to regulate and guide man’s actions to accomplish
his role as the vicegerent of God on earth, as God intended.
The pivotal issue here, then is
the nature, value, quality and purpose of man’s actions. This is
the fundamental objective of legislation now and in the past,
divine or man-made. All divine doctrines were aimed at guiding
man’s actions to fulfill the purpose of his being which is to
serve God in the widest possible sense of the word. Such
fulfillment shall be reflected in life in the form of prosperity
and advancement, and in the human heart as pure monotheism,
tawhid, and as good and constructive behavior.
Muslim legal theorist, al ‘Alwani writes that al maslahah (or
the maqasid that ensure the implementation of public good) is
extremely important in Muslim legal practice and thought. He
believes that al maslahah is part of qiyas (analogical
reasoning) which he in turn equates with ijtihad. Al Alwani
(1988, p. 5) cites Prophet Muhamamd’s hadith…
importance of and the exercise of reason is strongly encouraged
by the Prophet, who implies that the judge could not go wrong if
the public good or the maqasid (i.e., preserving the religion,
the self, the mind, and the property) are taken into account
when deciding a case.
(1982, p. 275) add in a footnote:
If we make al
maslahah and the end goals of the Shariah the basis on which we
make decisions, it would exemplify the realistic relation that
exist between the Shariah and our everyday life, regardless of
place and time. Al maslahah means the protection of the needs
and the wants of individuals as well as states. Therefore
building decisions upon al maslahah is the only solution for
ensuring the protection and the realistic implementation of such
There are three
degrees of Ijtihad:
fi'sh-Shar', absolute independence in legislation.
fi'l-Madhab, authority in the judicial systems founded
by the Mujtahidun of the first class.
fi-l-Masa'il, authority in cases which have not been
decided by the authors of the four systems of jurisprudence.