Ijtihad and the Question of Legislation: An Analysis of Allama Iqbals’ Views

Juneefa Bilal & Sheikh Ishfaq

Abstract
Islam presents a comprehensive system of life based on divine guidance. Its dynamism is due to its general principles through which solution for any conceivable problem could be sought. Muslim scholars over the period of time have resorted to well defined and well structured process of change known as Ijtihad, to exert one’s utmost in inferring the rules of Shariah from their detailed evidences in the sources, in order to make the Shariah applicable to ever changing times. It was this change that made Muslims adapt in the face of changing societal conditions, new thoughts and knowledge. To reinterpret the Shariah in the light of modern thought, experience, knowledge and scientific developments, and make it more compatible in modern times the process of Ijtihad must be revived. Many Muslim scholars have attributed the decadence of the Muslim world in the present era, after their glorious past during medieval times, to the stagnation of the process of Ijtihad. This decadence acted as an academic and intellectual stimulus to the Muslim Ummah in general and Muslim scholars in particular, to think pessimistically about the future of Islam. In the last quarter of the 19th century and the beginning of the 20th century, many Muslims have come explicitly to reject the authority of medieval schools of law in favour of unmediated and immediate recourse to the Islamic foundational texts. They objected to the absolute authority of medieval jurists to solely interpret the law of Islam. One such among them was Allama Mohammad Iqbal, acclaimed and revered throughout, who resorted to reinterpret the Islamic thought and to revaluate the Muslim intellectual heritage through the disciplined intellectual activity, as the only way to revive the lost glory of Muslims and rescue Muslims from the state of inertia. This study will attempt to highlight the role of Ijtihad as sine qua non in the revival of Muslim civilization and how it will reinforce the process.  
Key Terms:  Iqbal, Ijtihad, shariah, taqlid, shura.

Introduction
Islamic Shariah presents a complete code of conduct and divine guidance for the whole World. The Islamic shariah guarantees not only the dynamism and evolution of human life but also aims at giving it discipline and framework. With change in the demands and forces of life, the human life also undergoes changes.

Juneefa Bilal, JRF, Centre of Central Asian Studies, University of Kashmir, Jammau & Kashmir. E-mail Id.: juneefabilaldeva@gmail.com Sheikh Ishfaq, JRF, Department of Islamic Studies, University of Kashmir, Jammau & Kashmir. E-mail Id.: ishfaqsheikh63@gmail.com

In the changing circumstances it becomes quite essential to undertake structural review of Islamic laws not only to keep its spirit and purpose alive but also to keep its effectiveness intact so that the aspect of discipline of law does not clash with the aspect of dynamism and evolution of life. Their mutual conflict and clash has the potential of rendering the dynamism and evolution of life into stagnant and non-productive state and attaining to control and organization becomes far from possible. The accomplishment of this obligation is carried out through ijtihad in the process of law-making. This guarantees effective enforcement of Islamic laws in the changing circumstances of every period; makes them truly result-oriented and ensures their universality and perpetuity. This process of ijtihad is based not only upon thebasic sources of Islam i.e., the Qurán and the Sunnah but also on reason, deduction, and prioritization.Ijtihad is practiced by the fuqaha to discover and infer secondary divine legislation (laws).

Ijtihad: Definition and Historical Overview
Basically, Ijtihad is derived from the word “jahada” which means striving or exerting one’s effort, utilizing ones utmost strength, employment of endeavour in performing certain activity, etc . Ijtihad has been defined in different ways by various scholars.
According to Imam Ghazali, ijtihad is the effort and employment of one’s utmost powers to extract a command (hukm). Al-Ghazali further remarks: “Ijtihad in its complete sense is to make utmost effort in achieving a goal so that it is not possible for one to do anything more”.
Sayf al-Din al- Amidi define ijtihad as the total expenditure of effort in the search for an opinion as to any legal rule in such a manner that an individualsenses (within himself) an ability to expand further effort.
According to Tahir ul Qadri, ijtihad is an expert reasoning endeavour conducted inaccordance with inferential and deductive method to formulate, reconstruct, elaborate, expand and enforce Islamic laws in the light of the  Qur’an, Sunna and ijma(consensus).
Abu IshaqShatibi (d.790/1388) an eminent jurist of Islam, defines ijtihad as:
“An extreme intellectual effort employed by expert interpreters to have a correct and definite perception of the original basic maxims of Islamic law with a view to derive operative orders thatfrom to provide the necessary legal solution of the problems and issues faced by an Islamic society at any stage of its development. The whole purpose of interpretative efforts is to legal rules which a society needs to meet an unending stream of newcontroversies, conflicts and disputations arising out of the eternalproblem of conflicting interests, human and material”.
While summarising the meaning of ijtihad, Amidi (d.631A.H.) says that ijtihad is that academic research of the mujtahid who exerts his utmost intellectual endeavor in it to legislate the laws of the Shariah wherever the nasus are silent. Therefore,ijtihad is basically an intellectual effort which the mujtahid exercises to his utmost forderiving a solution to the issue in question. The effort implies also the interpreting the ruling of the nasus to apply them in required situations of life. Because of the diverse nature of ijtihad, it is, sometimes, classified into two categories – (1) ijtihad-i-naqiswhich is an interpretative effort of an average level, (2) Ijtihad -i tam which isperformed in the matters where the nasus (textual rulings) are silent and the derivateorder to be inferred from the foundational principles of the nasus.
Muslims are directed to exercise ijtihad and to formulate laws in order to settle the growing problems of their society under the new situations in both Qurán and Hadith. Following verses from the Qur’an reflect this guidance: “We have sent down to you the Book in truth, so that you might judge between men as guided by Allah”(al-Qur’an, 16:89). “Those who strive in our (cause) We will certainly guidethem to Our paths”. (al-Qur’an, 2:228). “And (the believers) conduct their affairs by mutual consultation”. (al-Qur’an, 26:38).
There is a hadith in the Sunan Abu Daud where the Prophet Muhammad  sanctions the exercise of ijtihad:
Prophet of Allah, when he was sending Mu’az as the governor of Yamen, asked him when you will be called upon to decide a suit, then what will you do? Muaz replied that whatever is in the book of Allah, I will judge according to it. The Prophet observed, if it is not in the book of Allah? Mu’az said, I will judge according to the traditions of Prophet of Allah. The Prophet observed, if it is not in the traditions? Mu’az replied, I will exert myself to find the solution. On hearing this Apostle of Allah was pleased, and as a gesture of his pleasure patted his chest and observed, thanks to Allah Who gave the messenger of the Prophet of Allah divine guidance which is pleasing to Prophet of Allah.
In another hadith, the Prophet’s appreciation of ijtihad is as following:
Whenever a faqhi decides, by means of interpretation, an issue presented to him correctly, then he gets twice the reward, while when he decides incorrectly, even then he gets reward.
Ijtihad has, therefore, attained a tremendous significance in the legal history of Islam, right from the times of the Prophet(SAAS). With the changing times and the emergence of the new problems ijtihad has been performed by the Sahabah, theTabi’in and the Imams of the legal schools of Islam (madhahib).
Ijtihad under the Sahabah and the Tabi’in served as a source of the Shariah. Since both the generations had a good comprehension (fahm) of the Qur’an and the Sunnah, they formed easily theirr’ayon the issues faced by them. Their r’ay was in consonance with the spirit of the Shari’ah. They exercised ijtihad both at the individual and the collectivelevels. Ijtihad, however, found a remarkable development during the latter half of thesecond century and the third century Hijra. During this period the legal schools(madhahib) of the illustrious mujtahidiin developed and spread far and wide. All the four Sunni Schools of law – the Hanafi, the Maliki, the Shafi’i and the Hanbali -resorted to ijtihad in their fiqh.

Replacement of Ijtihad by Taqlid in Later Centuries
Ijtihad was once serving as an important mean or tool for the articulation and interpretation of Shariah. Some of the greatest minds in the history of Fiqh used Ijtihad during the first centuries of Hijra. But eventually, Ijtihad faltered and was replaced by the doctrine of taqlid or blind imitation. Taqlid not only discouraged individual reasoning and interpretation but also prohibited it.In the later centuries, Muslims thought all conceivable questions and situations had been explored and resolved by the ulama, obviating the need for new judgments. Most of the historians posit that the door of Ijtihad was closed because Muslim Ummah was under attack from external forces such as the Crusades and Mongol invasion and fall of Baghdad on June 6, 1258 CE. However taqlid was adopted a century before Crusades and a few centuries before the devastation by the Mongol hordes who were still in the far Asian steppes. The real reason  behind the decline of ijtihad is that there were serious differences between different schools of law and theology among individual jurists and imposition of taqlid was the best way to resolve those differences, but at a tremendous cost. Secondly the fuqaha like Imam Abu Hanifa, Imam Malik wanted to preserve their intellectual and juristic independence. They didn’t want to issue verdicts as per the wishes of caliphs. As time passed the pressure from the rulers increased, until the ulama declared the Shariah complete to provide an excuse in the face of an angry ruler. On the one hand the ulama preserved the Shariah from dissolute and corrupt Muslim rulers, but on the other they ensured that the Shariah would remain static and therefore stagnant. It is because of this that Muslims throughout the globe are starved for fresh ideas and insights and therefore suffering from withered intellectual activity. Some Muslim scholars throughout the ages have been protesting the prohibition of Ijtihad as it violates the original spirit and intention of Islam. Muslims throughout the globe claim that Islam is universally applicable to all places and in all times. This is only possible by applying ijtihad. Decline of ijtihad is considered by vast number of scholars one of major factor behind the decline of Muslim Ummah as it led to the academic decline. As such, sciences reached the stage of stagnation (staying at the same level without any farther development); because Ijtihad was virtually stopped. As per Imam Ibn Taymiyah(1263-1328 CE),  " a Muslim can perform Ijtihad for himself or herself on certain questions, it is permitted, because Ijtihad is not an absolute-the pivotal point is ability or the lack thereof . Thus a person might be able to perform Ijtihad on certain questions and not others." Taqlid (blind imitation) is based on an absence of intellectual activity on the part of the believer, and early Muslims held that it was permissible only if one was incapable of understanding due to a lack of mental ability or faculties. Dr. Taha J. al-Alwani of IIIT (International Institute of Islamic Thought) argues that" both the Prophet (SAAS) and the Qur’an rejected taqlid, the Sahabas (companions of the Prophet) and many others considered it an evil and also rejected it" .  He further quotes one of the successors to the companions as saying, "There is no difference between an animal that is led and a person who makes taqlid." By the end of 4th century Hijra taqlid became the rule rather than the exception in Shariah, in spite of the early contempt for taqlid and judgments against its permissibility. Ultimately a majority of people espoused taqlid. 

Framework for Islamic Legislation
Alama Iqbal, the multifaceted genius, born in 1877 at Sialkot, got the opportunity to study at the feet of great luminaries of his time.He is remembered for his Reconstruction, a series of lectures delivered by him at Madras, Hyderabad, and Aligarh Muslim University on the invitation of Madras Muslim association. According to Iqbal implementation of Islamic law in all matters of community imparts stability to all human beings, the very underpinnings of society, and imparts stability and eternity to the organised structure of society. The real aim of implementation of Islamic law is to realise the ideals of socio political and economic justice. Iqbal, deeply concerned for the construction of Islamic law to meet the challenges posed by modern developments and changed circumstances, wrote and spoke extensively.

Legislation of Islamic Law
Iqbal was preoccupied with the reconstruction of Islamic law and his contribution with regard to Ijtihad was very significant. Iqbal was the propounder of Ijtihad and advocated strongly the practice of Ijtihad.According to Dr Javid Iqbal’s biography of Alama Iqbal, Zindarood (1989), Alama Iqbal read his first thesis related to the topic ‘Ijtihad’ in December 1924 at the Habibya Hall of Islamia College Lahore. Iqbal comprehensively discussed the concept of Ijtihad in the sixth lecture of his Reconstruction, entitled as “the principle of movement in the structure of Islam”. The principle of movement in the structure of Islam is named as Ijtihad by Iqbal. Iqbal looks at the matter from historical and modern perspective.He asserts, “The idea has its origin in the well-known verse of the Quran- And to those who exert We show Our path”. He then quotes a Hadith where the prophet gives the approval of exercising the use of reason and independent judgement while appointing Mu’adh as governor of Yemen. Iqbal’s concern here is with first degree of Ijtihad, absolute Ijtihad, the complete authority in legislation. Then there is a detailed discussion and discourse of Iqbal on the causes of decline of the process Ijtihad. Iqbal alludes to three main reasons by which the intellectual attitude developed in medieval times, which has reduced the law of Islam practically to the state of immobility. This intellectual attitude hampered the process of Ijtihad and accelerated the practice of taqlid. These were,

• Rationalist movement that emerged during Abbasids and was considered as a source of disintegration and danger to the stability of Islam. So to preserve that social solidarity and national integrity the legal system of Islam was made as rigorous as possible.
• The rise and growth of ascetic Sufism, which gradually developed under the influence of non-Islamic character. It turned even the most Muslim intellectuals in Sufis and obscured the vision of the social polity an important aspect of Islam.
• And then there was a great blow to the Muslims in the sack of Baghdad, forcing the conservative Muslim minds to preserve the uniform social life exclusive of all innovations in the shariah of Islam as expounded by early doctors of Islam. Iqbal calls fall of Baghdad, as a great blow to the Muslim community which made it to think pessimistically about the future of Islam.

This attitude of mind according to Iqbal invoked the powerful reaction from the Muslim luminaries like Ibn Taimiyyah, Ibn Hazm, Abdul Wahab, Ibn Tumart and many others. Iqbal pays tribute to all these who rose in revolt against the finality of the sources of Islamic law, for which the founders of the schools of law never claimed, and propounded and espoused the cause for opening the door of Ijtihad.Iqbal has tried his best to explain the causes that determined attitude of Muslim minds during medieval times, but insisted that such attitude should no longer be maintained, for time and circumstances have changed by extraordinary developments of human thought.

He made a critical evaluation of the sources of law and alludes to the potentialities for advancement and the inherent principles in Islamic law for meeting new challenges. The approach he employed to legislation lays emphasis on the elements of permanence and change. He says Ijtihad is the means whereby changes can be affected in the laws of Islam provided they are in consistent with basis on which the system rests. Ibadat, he says are permanent(Thawabit) and are not to be changed while Mamlat are subjected to change(Taghaeraat). He opposed the idea that shariah is static and incapable of evolution and proposed the view that “teaching of the Quran that lifeis a process of progressive creation, necessitates that each generation, guided by the work of its predecessors, should be permitted to solve its own problem”. In order to substantiate his view he then mentions Hadhrat Umar and calls him first innovator for the changes he introduced. Islam is a progressive religion and imparts practical and advanced legal social code. This is only the nature of Ijtihad that makes implications of Shariah advanced, progressive and implacable. In this way the importance of Ijtihad cannot be over emphasized. Iqbal defined Ijtihad as to exert with a view to form an independent judgment but not to be independent of the Quran and Sunnah. He opposed freedom of thought which makes man deviate from Divine guidance but endorsed the freedom of Ijtihadto oppose rigidity and stagnation. Iqbal mentioned two consequences of the freedom of Ijtihad claimed modern Muslim movements; their revolt against the finality of the schools, and their assertive stand on the right of private judgment. But this freedom of thought is not be exercised by those lacking knowledge and experience, or by those whose character is not trusted upon. Before proceeding further he gives some prerequisite of those capable of exercising this important aspect Islam.

Prerequisites of Exercising Ijtihad as per Iqbal:

• Knowledge of Islam, deep understanding of the ultimate aims of its ideology, institutions and politics.
• Understanding of the modern problems that beset the Muslim world.
• Closeness to the Prophet’s way and understanding of his methods and approach.
• Reliable moral character so that decisions may be looked upon with respect.

Sources of Ijtihad
Like any other traditional scholar,Iqbal mentions four sources of Ijtihad as –Quran, Hadith, Ijma and Qiyas.
On the first source of Ijtihad i.e., Quran, says Iqbal that, “its purpose is to awaken in man that higher consciousness of his relation with God and universe besides serving as a legal code”. He says that Quran is the embodiment of both lofty moral principle and legal rules. He also observed that Quran is giving a dynamic outlook to the life a man. To him the teaching of Quran activates and acts as a stimulus for their interpretation and reconstruction of Islamic law in the changing times.
Hadith, says he serves second source for ijtihad. He classified the Hadith tradition into legal and non-legal and suggested that the study of hadith must be taken more seriously and critically as these traditions were meant for concrete and specific serving as means and not an ultimate end so they can’t be made enforceable to the future generations. It was this aspect that made Abu Haneefa to prefer istihsan, juristic preference over Hadith.
The third source of ijtihad is ijma. Iqbal considers ijma as the most important legal notion of Islam as itis a process through which new values are established and preserved in Islam. In ijma’, the mujtahidun agreed on a point of law and such a consensus becomes a permanent source of law. Iqbal supports exercise of ijma through legislative assemblies, comprising both tradition and modern ulama.
And last source elucidated by Iqbal is qiyas which is a process of applying Islamic principles to local problems and changing conditions. Here Iqbal again made a mention of Abu Hanifah, who in view of changing socio-economic conditions, made use of qiyaswhich arose by the extension of Muslim states. In fact, Iqbal viewed the school of Abu Hanifah as the greater power of creative adaptation than any other schools of Shariah.
Thus, Iqbal’s illustration of the sources of ijtihad demonstrate it clearly that Islamic law has the potential to grow and evolve, and enable the follower to adapt to the societal change.

Collective Ijtihad: Scope and Implementation
Iqbal was deeply concerned with the construction of Islamic law to meet the challenges posed by modern economic, political and social developments. Despotic political system, based on one individual’s will and denying the rights of the ummah, as claimed by some modernists became the reason of backwardness of the Muslims. Interpretation of shariah is the right of entire ummah. During classical erathis right was exercised by the people through their chosen representatives. Subsequently this right was snatched to the ummah and given to various sects and schools of fiqh. Iqbal opined that the ummah should elect their representatives by means of a fair and impartial election and these representatives should carry out the duty of the interpretation of shariah.Iqbal allocated the authority to interpret shariah to elected representatives in Parliament or majlis-al-shura. Iqbal thought that followers of different schools of fiqh, representing different viewpoints, cannot interpret shariah objectively and also Allah has not delegated the right to interpret the Shariah to any person or sect but He has bestowed it to the entire ummah. Iqbal has laid down the condition for the members of majlis-al-shura as:

• Should possess a firm and profound belief in the fundamentals of Islam.
• Should possess integrity of character.
• Should have reasonable knowledge andnecessary understanding of the job andresponsibility which is being entrusted to him.
• Should possess only a good intellectualpersonality, but also an impressive physical personality.

The task of majlis-i-shura has been categorised by Iqbal as follows;

• Amend the existing law and make it in conformity to Islamic injunctions.
• Implement Islamic laws that are not being enforced.
• And make new laws that are not repugnant to Islam.

Need of Ijtihad in the Contemporary Era:
The present era has brought multidimensional changes in society due to advancement in political, economic and social spheres. Progress of science and technology has created new horizons. World has shrunk down to the size of a small settlement. New developments in social, political and economic fields have created new problems. People who want to follow Islam and make Shariah the standard guide in their social life and trades are facing a number of questions for which they seek guidance from jurists who exert their utmost in finding answers. It is the responsibility and important obligation of Islamic scholars to solve and address the problems and difficulties arising in every age. The jurists of the classical age have addressed the problems of their own time both individually and collectively. However the later has been regarded as a safer and most appropriate approach in dealing with matters of Shariah in today’s world. Collective Ijtihad (Ijtihad jama’i) is the approach through which a problem is addressed vis-a-vis the objectives of Islamic law. This provides the way to discuss the issues in most democratic and conducive manner. Iqbal as a modern Muslim reformer has also deliberated upon the concept of collective ijtihad in solving the modern issues. The concept of parliament (Shura) in Iqbal’s thought is actually a manifestation of what is known as collective ijtihad in the modern world. Iqbal was conscious of the nature of issues brimming up in modern world and as such became a staunch advocate of collective ijtihad.

Conclusion
Iqbal’s observation works as a synthesis between the ulama and modernist scholars. The concept of legislative assembly and his views on ijtihad serve as a ground work to solve some of the Islamic legal issues in modern times.  Iqbal’s articulation of Islamic law and his views about Ijtihad gave a new string to the Muslims to move ahead and solve the pressing issues of day. Iqbal emphasises that Muslims must return to critical thinking and reasoning in order to attain past glory and the key to this critical thinking is in the practice of ijtihad. Iqbal considers this as the only way by which Muslims can make Islamic law (Shariah)compatible with the modern World and can cope with the challenges put forth by the contemporary world. Without the tool of ijtihad, the abyss between Islamic law and contemporary reality or constraints becomes impossible to fill.