The vast majority of Muslim scholars agree that new ijtihâd is necessary to address newly emergent matters that have not been previously addressed by classical scholars. Most of them would also agree that new ijtihâd may also be needed to reexamine the established positions in the Islamic fiqhi legacy and choose from among those positions what is most suitable for the current realities. Those scholars are simply talking about using the same established juridical theory to reexamine individual rulings. However, a group of scholars are calling for a ‘systems approach’ to the juridical theory itself and an overhaul of the methodology of deduction. Not unexpectedly, they were met by fierce resistance. Those calling for tajdeed al-uṣool are very diverse, and one should not be hasty to use a broad brush in describing their propositions, let alone their intentions. I will try here to examine whether there is a need for an overhaul of the juridical theory or of the science of uṣool al-fiqh.
First, the scholars of Islam have always disagreed over issues pertaining to uṣool al-fiqh
. Imam Aḥmad (rh) famously said, “…whoever claimed a consensus had lied.”15
Ibn Rushd (rh) wrote his book Faṣl ul-maqâl wa taqreer ma bayn al-Sharee‘ah wal-Ḥikmah min al-ittiṣâl
on the harmony between religion and philosophy. Ar-Râzi (rh) suggested that there is rational abrogation. Aṭ-Ṭoofi (rh) expanded (judiciously or not) the place of maṣlaḥah
(benefit/interest) in legislation. Al-Qarâfi (rh) divided the traditions of the Prophet ﷺ into different categories based on the capacity in which he was acting. These are just a few examples of the ongoing tajdeed in the principles of jurisprudence.
It is obvious then that the science of uṣool al-fiqh was not meant to be a closed system, since that makes it subject to stagnation and demise. Nevertheless, this author posits here that there is no need to overhaul the science of uṣool al-fiqh; it is a solid structure with remarkable flexibility. It is our failure to utilize its flexibility and discover its tajdeed-enabling principles that makes some of us hastily desire to overhaul it. What we really need is learned incremental renewal in this science. Having said that, one must admit that there have been positions, sometimes adopted by the majority, that caused some stagnation and rigidity in juridical theory and its practical use. These positions were mainly in the domain of ijtihâd. I will start here by addressing some of those positions and their impact on the development of the law; then I will talk about the existing flexibility within the science of uṣool al-fiqh that should be used to serve the purposes of adaptation and renewal of our religious discourse. Finally, I will suggest some areas where change may be desirable.
Positions impeding the ongoing renewal of discourse16
Over-reporting of consensus
Nothing could stifle ijtihâd-based renewal more than the over-reporting of consensus. Sometimes, scholars reported consensus on matters that were debated heatedly within the four madhâhib (pl. of madhhab), let alone outside of them. This was sometimes because of the usage of special terminology or simply the result of innocent mistakes. Even those scholars known for their rigorous practice of verification reported hundreds of cases of consensus after the era of the Companions that are extremely difficult—if not impossible—to establish. I will quote Shaykh Muhammad al-Khudari, whose views here are shared by many of the contemporary verifying scholars of uṣool al-fiqh. He states:
The question that remains is whether they [the Companions] truly reached consensus on a particular issue that was presented to them, while it is considered subject to ijtihâd. We may be able to answer this and say that there are many issues about which we do not know of any disagreement among the Companions regarding them. This is the most we could say. As far as claiming that they all reached a positive consensus, that is a claim that lacks supporting proofs. As for the following generations, after the expansion of Muslim territories and the relocation of the jurists to different Muslim lands, and many of the jurists among the followers of the Companions (tâbiʽeen) and others reaching distinction, whose numbers grew beyond count, with their variant political ideologies and personal interests, the claim of the establishment of a consensus then is not easy for one to accept. This is even though many issues during these times were not known to be subjects of disagreement. On such basis, we may be able to understand the statement of Aḥmad ibn Ḥanbal, “Whoever claimed a consensus has lied; maybe they disagreed; he should rather say, ‘I don’t know that they disagreed,’ if he did not hear of a disagreement.” Some Ḥanbali scholars posited that the imam means a consensus other than that of the Companions.17
While Ibn Ḥazm (rh) was an erudite scholar and was one of those known to verify reports, his book Marâtib al-Ijmâʽ
, in which he reported the consensuses of the scholars, had so many dubious reports of consensuses that Ibn Taymiyyah (rh) was prompted to write a treatise entitled Naqd Marâtib al-Ijmâʽ
to point out those erroneous reports. Interestingly, one consensus Ibn Taymiyyah criticized concerns the disbelief (kufr
) of one who rejects a certain consensus after recognizing its validity.18
It is vital that we appreciate the beauty of the doctrine of ijmâʽ
which is not only a tool of preservation, but also an antidote to clerical autocracy. In a nation where no one after the Messenger ﷺ speaks on behalf of God, this doctrine provided an instrument not only for conservatism, but also for efficiency, tolerance, and adaptability. However, we need an objective examination of the reported consensuses and we need to apply stringent criteria before we accept them, since mere acceptance would be conferring definitiveness on a certain position and putting an end to any scholarly debate. We apply rigorous criteria before we authenticate the prophetic traditions, even though they may not confer the same decisiveness as a consensus, because of their often-speculative implications. Additionally, we should treat the validated ijmâʽ sukooti
which constitutes the bulk of ijmâʽ
, as only corroborative evidence because of its presumptive nature.
Can there be truth outside the four madhâhib?
The four madhâhib in Sunni Islam are intellectual accomplishments that any Sunni Muslim should feel proud of. Thousands of scholars contributed through interdisciplinary and transgenerational efforts to the production of these intellectual wonders. Their authority and our need for them are as clear as the sun in the middle of a summer day, as the Arabic proverb goes. It is also the recommendation of the vast majority of Muslim scholars that the student of knowledge be first instructed in one of the four schools. One may also add that the truth does not diverge from the positions of the four madhâhib except very rarely. Imam Ibn Taymiyyah (rh) stated:
As for one who says, “I am not bound by anyone of the four imams,” if he meant he is not bound by a particular one of them as opposed to the rest, then he has spoken well; in fact, this is the correct of the two [known] positions. However, if he meant that he is bound by none of them and that he disagrees with them all, then surely he will be wrong most of the time. This is because the truth does not diverge from their positions in the vast majority of the [laws of] Shariah. People only disagreed whether the truth could be different from their positions in a few cases.21
Any attempt to belittle all, some, or any of the four madhâhib is an assault against the ummah and its heritage. However, having a balanced understanding regarding them is essential. The ummah cannot afford to swing with the pendulum of extremism. ‘Anti-madhhabism’ is wrong, but it is not the cause of all of the ailments of our ummah, as some ideologues on the opposite end of the spectrum like to believe. This simplistic reduction of complex phenomena is not new to human thinking. However, it seems extremely repugnant to the facts and the concept of causation itself. After all, who would have the audacity to claim that our ummah was doing well before this ‘new phenomenon’? This is not only about defeat by external forces, but also backwardness, inner conflict, and taʽaṣṣub, whether interdenominational or inter-madhhabi. The verifying scholars complained during their times about the conditions of fiqh and the fuqahâ’. The stagnation within the madhâhib resulted in the divide between fiqh and the needs of the people, pushing the leaders, long before the colonial era, to make arbitrary legislations. Additionally, why is it that countries and communities that were not affected by this ‘new phenomenon’ are not faring better than those that were affected?
Having said that, this is not a discussion of the importance of the legacy of the four madhâhib
, nor an attempt to referee between the contestants on the two ends of the spectrum concerning them. The discussion here is about the existence of truth beyond what they have agreed upon—an agreement that many Muslim scholars treat as a binding consensus. Some scholars have gone as far as claiming that there is a consensus that in the spheres of fatwa
and judging at least, no scholar may take a position outside that of the four schools.22
According to Dâr al-Iftâ’ al-Miṣriyyah (the Egyptian fatwa
agency), this agreement is subject to change with time, people’s customs, and the acceptance of and trust in other positions. It is also subject to enforcement by the state.23
The most someone can say about this agreement—and this is extremely hard to establish—is that it was a procedural decision that may have had some merit at some point, but is not in any way a binding consensus that the ummah
must indefinitely abide by. It is interesting to note here that the disagreement between the earlier scholars was not about the obligation for a mujtahid
to follow the opinion of another mujtahid
, but about its permissibility. Imam Abu Ḥanifah (rh) allowed it, whereas Imam ash-Shâfiʽi (rh) prohibited it: the latter argued that the level of certainty someone acquires through his or her own ijtihâd
must exceed that which could be ever acquired through someone else’s ijtihâd
Whenever we seek a ruling on a particular issue, it is either a contemporary matter or one that has been previously addressed. If it is new, then the position of the four madhâhib is not even present, except through takhreej (a form of analogical deduction based on a position in a madhhab), which usually offers some flexibility and is not particularly binding. If it is a matter that has been previously addressed, then the question is whether a position outside of the agreement of the four madhâhib may have any merit.
While it is commendable for Muslims to be wary of positions that conflict with the agreement of the four imams, this wariness should not completely rule out such positions. Abu al-Khattâb (rh) (d. 510 AH) stated in his book At-tamheed fi uṣool al-fiqh,
The proofs on the [authority of] consensus do not pertain to them (the agreement of the four imams), because they are among the believers of the ummah, and their status as imams does not change the rulings of ijmâʽ.25
Ibn Taymiyyah (rh) held the same opinion and mentioned several instances where some followers of the four imams dissented from their agreement.26
While Imam al-Qarâfi (rh) was one of the scholars who reported from Ibn aṣ-Ṣalâḥ (rh) the agreement on following one of the four madhâhib
, he said in a different place (and context) that a consensus was established during the time of the Companions that whoever converts to Islam may ask any of the scholars and is not bound to ask certain ones, and that one who asked Abu Bakr and ‘Umar may still ask Muʽâdh and Abu Hurayrah and others, and he challenged anyone who claimed those consensuses had been revoked to produce evidence for that.27
Imam Ibn Ḥajar al-Haytami ash-Shâfi’i (rh) explained that it is permissible for a scholar to follow an ijtihâd
outside the four madhâhib
as long as it is well documented, and its conditions and all necessary details are known, and he attributed this opinion to Imam as-Subki (rh).28
Imam an-Nafrâwi al-Maliki (rh) attributed this position to some of the verifying scholars—without limiting the permissibility of taqleed
to the scholars.29
What should be clear is that there is no legitimate justification that the agreement of the four madhâhib
establishes consensus, and if it does not, then there are no grounds for adding their agreement to the sources of legislation. Their agreement should rather serve as a warning sign for the mujtahid
to proceed with caution and the non-mujtahid
to stop. As mentioned above, even those who did not allow the public to follow other than one of the four madhâhib
recognized that the truth may exist outside their agreement, and they allowed the faqeeh
: specialist in fiqh
) to adopt a position outside that of the four schools.30
As mentioned in our discussion of the existing flexibility within the juridical theory, they also allowed the use of unauthorized positions in the madhâhib for valid reasons.
In our times, what can be done to protect people from the chaos of unregulated fatwas
is to stress the guidelines that must be followed in mainstreaming positions that are counter to the agreement of the four madhâhib
(which will be addressed later) and to advance the cause of collective ijtihâd
, which confers greater validity on new positions, as Shaykh Mustafa az-Zarqa remarked when he talked about reopening the gates of ijtihâd
An example of a new collective ijtihâd
is the decision of the Fiqh Assembly of the OIC (Organisation of Islamic Cooperation) concerning the manufacturing contract (‘aqd al-istiṣnâ‘
) whereby people may purchase unbuilt homes and pay their price in installments. This transaction is considered a type of salam
(sale with payment in advance) by the Mâliki, Shâfiʽi, and Ḥanbali schools, which means all of the conditions of salam
will apply to it, including the immediate payment of the whole price. The reason for this particular condition is so that the transaction does not become forbidden because of the deferment of both the price and the commodity (bayʽ al-kâli’ bil-kâli’
). However, Imam Abu Ḥanifah (rh) considers it a separate contract since, unlike salam
, it involves the manufacturing of the commodity. This position allows the buyer to pay the price in installments. Yet, according to Abu Ḥanifah, this contract will turn into salam
if a deadline is set for submitting the commodity. His two disciples held a different position, and allowed setting a deadline. The Fiqh Assembly of the OIC indicated that a deadline should be set, and that this should not change the contract from istiṣnâ‘
, allowing for deferred payments. Thus, the Assembly approved the sale of homes before their construction and paying the price in installments if there is an accurate description of the property.32
This is an important ruling that is vital for the thriving of a major industry. Its adoption by a major fiqh
council removed the discomfort many people may have had because of its perceived contradiction with the authorized view of the four madhâhib
. The same may be said about Ibn Taymiyyah’s position on the composite threefold divorce. He counted it as one divorce. His position was counter to the authorized view of the four madhâhib
. The adoption of this position by fatwa
agencies in many Muslim countries, including Egypt, Syria, and Jordan, has conferred it with mainstream acceptance. In summary, one may say that the mainstreaming of positions outside the agreement of the four madhâhib
should be contingent upon their validation by collective ijtihâd or acceptance by a large group of verifying scholars.
Flexibility Within Juridical Theory (Uṣool al-Fiqh)
Objectives of Shariah and reform
The maqâṣid of Shariah and their role in tajdeed is a frequently and heatedly debated issue. The primary objectives of Shariah, as deduced by the scholars, are the preservation of religion, life, intellect, lineage, honor, and wealth of the people. The Shariah not only prioritizes among these objectives, but it also recognizes three levels within each of them: luxuries, needs, and dire necessities. A third aspect of brilliance is the flexibility of the Shariah wherein concessions are made for dire necessities, and to some extent, for needs as well.
Muslim thinkers who were searching for a way to reform the Islamic collective mind, like the prominent Moroccan critic and professor of philosophy Muhammad ‘Âbid al-Jâbiri (rh), had hopes, as he posited in his book Wijhat naẓar, that the use of maqâṣid would be the key to that reform. They felt that such use—coupled with a proper understanding of the reality to which the rulings were meant to be applied—would result in a major renaissance in Muslim communities. There is no doubt that this is true. However, a problem arises when some of them seek to use maqâṣid in isolation from the detailed rulings in the books of fiqh and even in the textual proofs. The maqâṣid are the highest level of abstraction in Islamic law, like the ultimate transcendental values of Plato (truth, beauty, and goodness) and the motto of the French Revolution (liberty, fraternity, and equality). Although humans have perpetually agreed on the merit of these values, they have forever disagreed on the roadmap to them. This is where the Shariah shines bright, for it is what grants guidance towards the realization of those great objectives and values, quenching humanity’s thirst for direction. Linguistically, Shariah (shareeʽah) refers to a path which leads to a water supply. Water is essential for our physical sustenance, and invoking the Divine guidance of Allah is essential for our spiritual (and overall) sustenance.
The middle position between those who exaggerate the utility of maqâṣid and those who reject their role in guiding the ijtihâd of the faqeeh, in my belief, is that the faqeeh must always be mindful of the maqâṣid (as addressed in the discussion of the rational proofs), but he or she should not circumvent the detailed rulings, the methodology of deduction, or the legal maxims to realize those objectives. They must provide valid justification if they decided to use istiḥsân or other legal devices to achieve those maqâṣid. It is those legal experts that are most suited to employ the maqâṣid without compromising the methodology of deduction laid out in uṣool al-fiqh. They will always be capable of finding a way to their proper realization through the proper understanding of the textual proofs and legal maxims (al-qawâ’id al-fiqhiyyah); the latter are a lower level of abstraction than the maqâṣid, and thus much more reckonable.
A mistake that many callers to tajdeed through the understanding of maqâṣid make is overestimating the capacity of the human intellect in realizing those maqâṣid independently. The error their diametrical opponents fall into is underestimating the human intellect, which results in a state of stagnation and deprives the Shariah of its flexibility in addressing ever-changing realities—a salient quality that guarantees its transcendental vitality.
The role of human intellect
The pressing question here is whether human intellect can suffice in realizing the maqâṣid
mentioned above. The scholars have disagreed regarding the ability of humankind to discern between good and bad (ḥasan and qabeeḥ
). The Muʽtazilah believed that human intellect is totally capable of this (and liable for it as well). Many Ashʽaris and some Atharis said it is not (but they still employed rational thought in the matters of law). Many Maturidis and Atharis, including Ibn Taymiyyah,33
maintained a middle position and said that human intellect is partially capable of that discernment; however, it is incomplete and clouded by ego, prejudice, ignorance, and so on. They also maintained, like the Ashʽaris, that people are not liable based on this discernment until they receive a revelation from God. The last position has great merit, because all humans agree at some level on an objective consistent system of basic moral values. The Shariah
acknowledges that discernment mechanism which exists in every human being; it calls it fitrah
(natural disposition). Based on this position, which Ibn Taymiyyah (rh) attributed to the majority of Ahl us-Sunnah
the intellect has a great role in drawing that roadmap by ensuring a solid understanding of the Shariah
and its maqâṣid
and a clear understanding of the reality within which the Shariah operates.
Before we talk about the interplay between the intellect and Shariah, we must ask about their respective scopes of operation. What parts and how much of our lives are controlled by the Shariah and how much is left for human thought? As Muslims, we comply with the Divine. Life itself is a gift from Him. We live it by Him and for Him. However, how much did the Divine leave for us to decide for ourselves, while still being under His authority? Contention between the Divine and the secular in our modern discourse as Muslims is intense. Many times, the proponents of secularism assault the place of the Divine in the ‘public sphere.’ However, we need to ask ourselves if the opposite is also true. When you hear of clinics that claim to treat patients with prophetic medicine, you must find the idea offensive to the Prophet ﷺ himself and his teachings. He ﷺ was, after all, the one who said,
أَنْتُمْ أَعْلَمُ بِأَمْرِ دُنْيَاكُمْ.
You know best about the affairs of your world. (Reported by Muslim)
It is true that the Prophet ﷺ did prescribe some medications. However, only very few of these prescriptions have an indication that their source was Divine revelation. Otherwise, the Prophet ﷺ used the same medicines available to him at the time and in the place he lived. While some scholars, like Ibn al-Qayyim (rh), believed that all of his prescriptions are infallible, others, like al-Qâḍi ‘Iyâd (rh) and Ibn Khaldoon (rh), believed they are not. Excluding the few prescriptions that have some indication of a Divine origin, the second position seems more consistent with the hadith
above, and as Ibn Khaldoon pointed out, he ﷺ came to teach us about the religion, not about medicine and the like.35 Whichever position you are more comfortable with, the fact that should not be missed is that there is no separate genre of medicine called ‘prophetic medicine.’
The matter gets more contentious when the discussion pertains to politics, economics, or other aspects of public policy. It is to be expected that there would be Islamic instructions and guidelines regarding these matters. It seems though that we selectively abandoned some of the most obvious ones, like the concept of shoorâ (consultation), which, if we consider it binding, may be translated as ‘majority rule.’ Having said that, it seems that those areas were left very lightly regulated and without detailed instruction in order to allow for human creativity and leave ample room for human intellect to decide what is suitable in different times and places. If we had been commanded to abide by direct democracy, the command would have been inapplicable for more than twelve centuries because it was simply logistically impossible. It would have also barred people from choosing some form of representative oligarchy if they found it more suitable in certain circumstances. The endless debate over Islam being more capitalist or socialist or a completely separate system is an indication of the light regulation in this area that has allowed this discussion to take place between sincere scholars and thinkers.
Beyond setting boundaries between the Divine and the secular, the interplay between the intellect and Shariah is enormous. One of the roles of the intellect, which is guided by the text of revelation and the tradition, is to examine the tradition in light of the revelation, the maqâṣid, and al-qawâ’id al-fiqhiyyah, and to determine which opinions are most justifiable and most suitable. Imam Ibn al-Qayyim (rh) wrote,
The Shariah is based on wisdom and the pursuit of the welfare of humanity in their fleeting life and in the life to come. It is entirely just, wise, beneficial, and merciful. Anything that veers from justice into injustice, from mercy to its opposite, from wisdom to foolishness, and from the welfare of humanity to its harm, is not part of the Shariah, even if it has been included therein by misinterpretation.36
These positions, which were included by misinterpretation in the Shariah (meaning here the fiqhi legacy), need to be identified. The critical examination of the great legacy of the scholars is not an assault on the Shariah, as long as it is done by qualified experts, for proper purposes, and with the respect due to our intellectual elders, those who spent their lives serving the religion and its branches of study.
The intellect has another role here that relates to changing realities. A fatwa
is a specific ruling, or the application of Shariah
in tailored details, so it is the customization of a ruling for a certain situation. There is even more of a human element here—and subsequently a greater margin of error—since a fatwa
requires understanding the texts of the Shariah
as well as an understanding of the situation being judged. When you add to this the enormous changes that have taken place in the world in the last two hundred years, you will be able to appreciate how much effort should be spent in examining the fatwas
in classical fiqh
books before we rush to apply them to current realities. If we go by the expression of Imam ar-Râzi (rh),37
there will be a lot of rational abrogation, which is abrogation of a ruling because of the absence of its sphere of operation (dhahâb al-maḥal
). However, the word ‘abrogation’ here may have been used loosely by ar-Râzi (rh). We can simply say that the rule is inapplicable due to the absence of the conditions of its application, as Imam al-Qarâfi (rh) remarked.38
For example, the condition of the imam (head of the Muslim state) being from the tribe of Quraysh may have been simply, as Ibn Khaldoon maintained, to defuse conflict and chaos in the immediate succession to the Prophet ﷺ. Nowadays, millions of people trace their roots back to Quraysh, and there is no dependable way of verifying the veracity of their claims. The ruling is, therefore, considered by many to be inapplicable.
Those who master the different sciences and fields of human activity would be the best people to employ the Islamic value system in them. The scholars need to have some mastery of those fields to provide proper guidance in them. Then, we must resort to the division of ijtihâd, where scholars may be most sought for fatwas in the areas of their specialization. If that is not always possible, then it may be required that fatwas in such matters be undertaken collectively with the faqeeh being the last signatory, after listening to various experts and learning sufficiently about the issue at hand.
Expansion of our use of rational proofs
In our existing juridical theory, there is an expected emphasis on the authority of textual proofs (the Qur’an, the Sunnah, and the fatwas of the Companions), but there is also an acknowledgment of a myriad of rational proofs, such as qiyâs (analogical reasoning), al-maṣlaḥah al-mursalah (consideration of interest), istiḥsân (juristic preference), ‘urf (norms and customs), and sadd/fatḥ al-dharâ’iʽ (blocking and opening the means to evil and good, respectively). These rational proofs provide a great repository for renewal-enabling instruments when the faqeeh approaches them while being cognizant of the maqâṣid and the wisdoms of legislation.
For example, the different forms of qiyâs
provide great malleability and strength to the body of fiqh
; this is particularly true of the less technical qiyâs
, which is more observant of the maqâṣid
and the principle of equity. Also, using the ḥikmah
(wisdom; which is the primary reason behind the legislation of a particular ruling) in addition to the ‘illah
(which is the immediate contingency of the ruling) will give great vitality to qiyâs
. Using the ḥikmah
, when it is apparent (ẓâhir
) and measurable (mundabiṭ
) is the position of al-Âmidi, Ibn al-Ḥâjib, aṣ-Ṣafiy al-Hindiy, and many Ḥanbalis.39
This is also the way in which the Qur’an attaches rulings to the ultimate wisdom of their legislation. Even when some scholars stress that qiyâs
cannot be based on the ḥikmah
, you find them considering it in their application of qiyâs
. A good example of this is the ruling on combining the prayers for the sick, which lacks any specific proof in the text of revelation: you find the Mâlikis, the Ḥanbalis, and many Shâfiʽis allowing it, using analogy to the rule on combining prayers for travel and for prolonged bleeding, on the basis of preventing hardship. Hardship is not the ‘illah
(immediate effective cause) in combining the prayers for traveling; it is rather the ḥikmah
(wisdom behind the legislation). We find the Ḥanbalis using that rationale to further expand the list of valid excuses for combining prayers to include various reasons that may cause hardship or harm to a person concerning his or her health, dignity, or even livelihood.40
Ibn Taymiyyah (rh) expounded upon this to include a baker who fears that his dough will get spoiled if he leaves it.41 It was also Ibn Taymiyyah’s understanding of the wisdom of the prohibition of intoxication that led him to keep his disciples from preventing the Tatar soldiers from drinking. He reasoned that if the invaders became intoxicated, people might be safe for a while from their evil, because whenever they were sober, they pillaged the city and spread mischief.
The consideration of ḥikmah is not limited to using it in qiyâs, but it affects the understanding of the naṣṣ (text of revelation) itself. For example, you find the Ḥanafis and Mâlikis considering, in addition to other factors, the ultimate wisdom behind the legislation of tayammum (dry ablution) where they consider any surface of the earth suitable for it, unlike those who, based on the wording of one report, limited it to mean soil.
The consideration of ḥikmah
is also behind the concept of istiḥsân
, which is an antidote to the literalism and technicality that may frustrate rather than serve the ideals and objectives of Shariah
. It is setting aside an established analogy in favor of an alternative one that serves the ideals of justice and public interest in a better way. This form of istiḥsân
originally considered by Imam Abu Ḥanifah (rh) and his main disciples, as Ibn Taymiyyah noted, is not the form that was denounced by Imam ash-Shâfiʽi and Imam Aḥmad when they encountered some of the later Ḥanafi scholars practicing it.42
Al-Âmidi (Shâfiʽi jurist) stated that, notwithstanding his explicit denunciation of istiḥsân
, Imam al-Shâfiʽi (rh) himself resorted to istiḥsân
on several occasions.43
For a practical example, traditionally our jurists agreed that someone who is in debt may subtract their debts from their assets when calculating their zakat. However, nowadays people incur debts to purchase durable assets, such as houses and investment tools. If we allow people to subtract their mortgages and the debts incurred to buy machines for their factories, many wealthy people will not pay zakat at all. The scholars, through juristic preference, excluded investment debts from those debts that may be subtracted from the ‘zakatable’ assets. This istiḥsân is observant of the spirit of the legislation of zakat and its objectives and wisdoms, including the prioritization of the rights of the poor.
The place of maṣlaḥah
in the Shariah
is established, whether, the jurists recognize istiṣlâḥ
(acquisition of benefit) in theory as a source of legislation or not. The fact is that all of them in their actual deduction of rulings considered maṣlaḥah
. The question is not about the consideration of maṣlaḥah
but rather the strength of this in the face of the explicit or implicit meaning of the text of revelation. One finds that scholars differ regarding this: their opinions fall on a wide spectrum from Najm-ud-Deen aṭ-Ṭoofi (rh) who gave istiṣlâḥ
almost unchecked authority, to others who limited it to instances where there is no superior basis for legislation in the revelation; and even then, this particular maṣlaḥah
has to be recognized by the Shariah
If we tie this into the role of maqâṣid
, we can simply expand the recognizable maṣlaḥah
to include any benefit that is harmonious with the maqâṣid
of the Shariah
: that is, all the benefits that are recognized by sound intellect. Where there is a conflict between the perceived benefit and the text of revelation, a careful examination of both is warranted by qualified masters of fiqh
. There is always an error, whether in the estimation of the benefit, or due to overlooking the overriding associated harms, or in our understanding of the naṣṣ
“Customs are binding” is a legal maxim of Shariah. ‘Urf which does not oppose the Shariah is, hence, given authority and recognized as evidence. In other words, the Law-Giver considers customs a determining factor in the rulings on interpersonal dealings, not as a stand-alone source of law, usually, but a secondary one that will ensure the proper application of the naṣṣ.
خُذْ الْعَفْوَ وَأمُرْ بِالْعُرْفِ وَأعْرِضْ عَنْ الْجَاهِلِينَ
Take what is given freely, enjoin what is ‘urf (known to be good), and turn away from the ignorant. (al-Aʽrâf 7:199)
Allah also says,
وَلَهُنَّ مِثْلُ الَّذِي عَلَيهِنَّ بِالْمَعْرُوفِ
And due to them [i.e., the wives] is similar to what is expected of them, according to what is ma‘roof (considered reasonable). (al-Baqarah 2:228)
That which is ‘known to be good’ and ‘considered reasonable’ is left to the judgment of the society or community, as long as there is no conflict with a clear text of revelation.
An example of the consideration of societal norms is what Abu Dâwood reported from Ḥarâm ibn Muhayyiṣah on the authority of his father:
A she-camel belonging to al-Barâ’ ibn ‘Âzib entered a man’s garden and ruined it. The Messenger of Allah ﷺ decreed that the property owners must safeguard their wealth by day, and the herd owners must keep their animals [from harming] by night.46
If people in a different time or place agreed that the owners of livestock must watch them all the time, their ‘urf (custom) will be the basis of judgment between them. Imam al-Qarâfi stated:
Whenever the customs change, take that into consideration, and whenever they end, drop them (out of the equation), and do not be stiffly bound your entire life by that which is written in books. Similarly, when someone from outside your region comes to seek your fatwa, do not apply to him the norms (‘urf) of your town. Instead, ask him about the norms of his town and base your fatwa on them, not on the norms of your town or that which is established in your books. This is the plain truth; stiffness in applying the transmitted edicts is misguidance in the religion and ignorance of the objectives of the Muslim scholars and the pious predecessors.47
Imam Ibn al-Qayyim wrote:
He who issues fatwas to people based only on what is transmitted in books, despite the differences in their norms, customs, times, and places, and their own conditions, has gone astray and led others astray. His crime against the religion is greater than that of one who treats all people, regardless of their countries, customs, times, and personal inclinations, by that which is in the books of medicine. These ignorant muftis and physicians are the most damaging to the people’s religion and bodies. Allah alone is the one sought for assistance.48
Through this maxim, the Shariah recognizes people’s varying norms, customs, and traditions, and preserves the cultural identities of diverse nations. This also applies to people of different times, accommodating the changes that humans of different generations are bound to experience. In summary, the expansion of the use of rational evidence that is guided by the maqâṣid and observant of the bounds set by the text of revelation and genuine consensus will provide a major source of flexibility and serve as an instrument of tajdeed.
Flexibility in the existing theory of ijtihâd
Quoting earlier scholars, Imam Ibn Taymiyyah stated,
إجماعهم حجة قاطعة واختلافهم رحمة واسعة
Their [the scholars’] consensus is a definitive proof, and their divergence of opinion is a vast mercy.49
The vastness of our fiqhi
legacy and the many disagreements among the different madhâhib
and independent mujtahideen
cause frustration to some students of fiqh
and junior fuqahâ’
. This is, however, a major source of flexibility that enables renewal. Many followers of the four most reputable schools allowed transfer (tanaqqul
), even for the public,50
from one madhhab
to another, and takhayyur
(expert selection) or patching positions (talfeeq
) from the different madhâhib
; something that is frequently done in contemporary fiqh
assemblies by scholars who are otherwise wholly committed to their own madhâhib.
Concerning the concept of tanaqqul from one madhhab to another, Imam Ibn Nujaym al-Ḥanafi wrote:
It is permissible to follow any mujtahid one pleases, even after the codification of the madhâhib as is the case today. It is also permissible for him to transfer from his madhhab, but he should not seek out the concessions (rukhaṣ), and if he did, would he be a deviant (fâsiq)? [There are] two views. The commentator said, the most eminent view: [he is] not; and Allah knows best. In the beginning of At-tatârkhaniyah, [the author] wrote two chapters on religious decrees; the summary of the first is that Abu Yusuf said that issuing a fatwa is permissible only for a mujtahid, while Muhammad permitted it for anyone whose correct views are more numerous than his errors. It is reported from Al-iskâf that the most knowledgeable in a town has no excuse to avoid [issuing fatwas].51
Imam Zakariyâ al-Anṣâri ash-Shâfiʽi said:
It is permissible for the non-mujtahid “to follow any mujtahid he chooses, if the madhâhib are codified like they are today.” Then, they may follow each of them in some issues, for the Companions used to ask someone one time and another one another time, without any denunciation [of this practice by any of them]. “He may also transfer from his madhhab” to another one, whether or not we said he is bound to seek the more knowledgeable or allowed him to choose any of them, as when he follows someone in their ijtihâd concerning the qibla sometimes and [follows] another one at other times. However, he may not seek out the concessions, for selecting them leads to the compromise of one’s religious dutifulness. “If he still chose them from the different madhâhib, would he become a deviant (fâsiq)? Two views; the more esteemed one: no.” This is different from one who selects them from the madhâhib that have not been documented, if he was in the early era, he would certainly not be a deviant (fâsiq), but if he is from the latter ages, it appears that he would become a deviant (fâsiq) for sure.52
The Ḥanbalis agree with this concept, and Abu al-Khaṭṭâb al-Kallodhani (rh) even cites consensus on it.53
Al-Qâḍi Abu Yaʽlâ (rh) cites several reports from Aḥmad allowing his disciples and other people who asked him to find a concession in fatwas
by other scholars, referring them at times to Abdul Wahhâb al-Warrâq, Isḥâq, or Abu Thawr, and even to locations where scholars gathered to ask any of them.54
It is obvious that, to Abu Yaʽlâ (d. 458 AH), the concept was not limited to the four madhâhib.
The utility of weak or unauthorized positions
Even if we consider an opinion weak, it may sometimes be adopted to relieve some hardship, provided that it meets certain conditions, as found in the following verses by the Mâliki author of Marâqi as-soʽood:
وكَوْنِهِ يُلْــجى إليهِ الضَّرَرُ إنْ كانَ لَمْ يَشْتَــدّ فِيهِ الخَوَرُ
وثَبَتَ العَــزْوُ وقَـدْ تَحَقَّقَا ضُرّاً مَن الضُّرُّ بِهِ تَعَلَّــــقَا
Finally, because the pressing need or necessity may compel people to act upon such [weak positions] if they are not too weak, and their attribution [to a mujtahid] was established, and the one under duress is certain of his/her necessity.55
One may add to those two more conditions that al-Qarâfi quoted from previous Mâliki scholars:
- That one does not seek out concessions wherever they are.
This may be part of the condition mentioned above, which is the presence of need. Thus, one may not screen all the madhâhib of the previous scholars in order to take the easiest position among them concerning every matter. This is the position of the vast majority. A minority of scholars allowed this. They also attribute it to ‘Umar ibn ‘Abdul-‘Azeez, who said,
مَا أُحِبُّ أَنَّ أَصْحَابَ رَسُولِ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ لَمْ يَخْتَلِفُوا؛ لأَنَّهُ لَوْ كَانُوا قَوْلا وَاحِدًا كَانَ النَّاسُ فِي ضِيقٍ وَإِنَّهُمْ أَئِمَّةٌ يُقْتَدَى بِهِمْ وَلَوْ أَخَذَ رَجُلٌ بِقَوْلِ أَحَدِهِمْ كَانَ فِي سَعَةٍ
I would not like it if the Companions of the Messenger of Allah ﷺ had not differed, for if they had agreed on one opinion, people would be restricted. They (the Companions) are the leaders to be followed, and if a person were to adopt the opinion of one of them, he would not be blameworthy.56
However, the vast majority of scholars qualify that statement to mean that one may take an easier position of a qualified mujtahid if it spares him or her some hardship, but may not simply select every easy position he or she encounters.
- That one does not compose a position which is rejected by consensus. (This applies mostly to talfeeq (patching or mixing of different positions).
Al-Qarâfi approvingly reported from az-Zanâti that the three conditions to make a transfer from one madhhab
to another permissible are: 1) that one does not patch the opinions of the different madhâhib
in a way that produces a position which has been rejected by consensus; 2) that the person engaging in this talfeeq
believes in the virtue of the mujtahid
being followed; and 3) that they do not choose the concessions from all the madhâhib
. Al-Qarâfi commented that the concessions that are not to be adopted are those that are unfounded and that may be revoked even if issued by a judge.57
that leads to the synthesis of a position rejected by all of the integrated madhâhib
should only be forbidden in certain cases. If one engages in taqleed
(following) of one imam in some clauses of a sale transaction and another in others, this contract should still be valid, unless the clauses are mutually exclusive or lead to inequity or deviation that is repugnant to the maqâṣid
of the Shariah
. This is based on the stronger position, which is that the ‘ammi
(the layperson) has no madhhab
An example of forbidden talfeeq is when someone marries without witnesses, citing Imam Mâlik, and without announcement, citing the majority. This marriage is a secretive relationship that is considered unlawful by all. Another example is when one applies different standards to oneself than one applies to others, such as invoking the right to preemption against one of his neighbors but refusing to honor it if another neighbor attempted to use it against him.
It should be obvious that these examples are different from the case of a layperson asking two muftis
about two different matters pertaining to wudu
: ablution) and getting an answer from a Shâfiʽi mufti
that wiping any part of the hair is sufficient and another answer from a Ḥanafi that (a man) touching a woman without lust is not a nullifier. If he makes wudu
according to the Shâfiʽi position and then touches a woman without lust, he will have retained his wudu
according to any of the four. Despite that, it seems that his wudu
should still be valid.59
These issues are neither interdependent nor mutually exclusive. Although the majority of scholars after the tenth century prevented this, we do not find it mentioned before the seventh century.60
Also, it is the consensus of the Companions that one who asked Abu Bakr and ‘Umar about one issue may ask Muʽadh, Abu Hurayrah, or others, about another issue.61
They never restricted this to issues that do not pertain to the same act of worship. Without the permission of regulated talfeeq
many modern contracts would not be permissible according to any single madhhab
. Much hardship would ensue and the vastness of our fiqhi legacy would lose an important feature of its malleability and resilience.
One may add another condition here, which is that the follower of the weaker position must not have certain knowledge of its faultiness. Imam ash-Shâfi‘i stated,
أجمع المسلمون على أن من استبانت له سنة رسول الله ﷺ لم يكن له أن يدعها لقول أحد من الناس
The Muslims have unanimously agreed that whomever the Sunnah of the Messenger of Allah ﷺ becomes apparent to, it becomes impermissible for him to leave it for the statement of anyone else, regardless of who they are.62
While he was talking about the scholars, the same may apply to all people who are certain of the erroneousness of some position.63 Wâbisah bin Maʽbad (ra) said: I came to the Messenger of Allah ﷺ and he said, “You have come to ask about righteousness.” I replied, “Yes.” He ﷺ said,
اسْتَفْتِ قَلْبَكَ؛ الْبِرُّ مَا اطْمَأنَّتْ إِلَيْهِ النَّفْسُ وَاطْمَأنَّ إِلَيْهِ الْقَلْبُ، وَالإِثْمُ مَا حَاكَ فِي النَّفْسِ وَتَرَدَّدَ فِي الصَّدْرِ وَإِنْ أَفْتَاكَ النَّاسُ وَأَفْتَوْكَ
“Consult your heart. Righteousness is that about which the soul feels at ease and the heart feels tranquil. And ithm
(sin) is that which wavers in the soul and causes uneasiness in the breast, even though people have repeatedly given you their legal opinion.”64
Suggestions for Incremental Renewal
Here are some areas of flexibility and suggestions to improve the existent utility of uṣool in the adaptation of the laws to changing realities:
- Removing topics that are of no benefit and adding others, such as the legal maxims that are considered a different discipline of knowledge, but must be recoupled with the science of uṣool due to their great utility in the deduction of rulings. Also, coupling the study of uṣool with that of maqâṣid is essential due to the role the maqâṣid play in guiding the whole theory. Finally, recoupling the study of uṣool with that of takhreej al-furoo’ ‘ala al-uṣool, which deals with tracing the various positions in fiqh to their roots in the uṣool (juridical theory). One must add here that it is essential to update the examples given in the science of uṣool and use modern and relevant examples in the application of the principles to detailed rulings, so that the junior faqeeh may be trained in addressing contemporary issues.
- Placing a greater emphasis on the sources of rational evidence discussed above.
- Including dalâlât al-maqṣood (signification of intended objective). In the chapters of dalâlât (significations), which deals with the rules of interpretation, we have two main dalâlât: manṭooq (stated) and mafhoom (implied). While the scholars have always been aware of the importance of maqâṣid, it may be helpful to add dalâlât al-maqṣood to the rubric. This addition may simply highlight the importance of including the intended objective in the understanding of the text to begin with. Sometimes, scholars who accept the divergent implication (mafhoom al-mukhâlafah) and then reject it are thought by junior fuqahâ’ to be contradicting themselves in their practice of deduction; whereas these scholars did so purely because their awareness of the intended objectives made them override their previous position on this type of implication. It would be helpful to explain this clearly, in order for the junior fuqahâ’ to learn the inclusion of dalâlat al-maqṣood in their deductive methodology.
- In the chapters on ijtihâd, greater emphasis should be placed on collective ijtihâd, as discussed earlier, and experts from various fields need to be included in this process.
- There is also a need for placing greater emphasis on specialized ijtihâd, the so called tajazzu’ al-ijtihâd (division of juristic reasoning). This allows jurists to specialize in certain areas of the law, so that they may become more competent in those areas. This is not a new concept; in fact, tajazzu’ al-ijtihâd is sanctioned by the majority of the scholars as pointed out by Imam Ibn an-Najjâr al-Futooḥi al-Ḥanbali (rh), who wrote, “[Ijtihâd is divisible] according to our fellows and the majority, and it is the correct position.”65
- Finally, there is a need for reexamination of uṣooli positions that may have hindered the development of the fiqhi legacy, such as the over-reporting of consensus and the requirement of following only one of the four madhâhib while avoiding any alternative ijtihâd, even from qualified scholars.