Any understanding of the Shari’a is always the product of ijtihad, in the general sense that reasoning and reflection by human beings are ways of understanding the meanings of the Qur’an and Sunna of the Prophet. But in the process of development of Shari’a during the second and third centuries of Islam, this term was defined and limited by Muslim scholars in two ways. First, they determined that ijtihad can be exercised only in matters that are not governed by the categorical texts (nass qat’i) of the Qur’an and Sunna. This is a logical proposition, but it not only assumes that Muslims agree on which texts are relevant to a particular issue and on how to interpret those texts, but also deems that whatever consensus was achieved over these matters in the past is permanent. Second, early Muslim scholars specified detailed requirements for a person to be accepted as qualified to exercise ijtihad (mujtahid), as well as in the manner in which ijtihad can be exercised. But even the very definition of the term or qualification needed by the scholar who can exercise this role is necessarily the product of human reasoning and judgment. So why should that human process preclude subsequent reconsideration?
Determinations about whether or not any text (nass) of the Qur’an or Sunna applies to an issue, whether or not it is categorical (qat’i), and who can exercise ijtihad and how are all matters that can be decided only through human reasoning and judgment. It therefore follows that imposing prior censorship on such efforts violates the premise of how Shari’a can be derived from the Qur’an and Sunna. It is illogical to say that ijtihad cannot be exercised regarding any issue or question, because that determination itself is the product of human reasoning and reflection. It is also dangerous to limit the ability to exercise ijtihad to a restricted group of Muslims who is supposed to have specific qualities, because in practice that will depend on those human beings who set the criteria and select a person as a qualified mujtahid. To concede this authority to any institution or group, whether it is official or not is dangerous, because that power will likely be manipulated for political or other reasons. The fact that knowing and upholding Shari’a is the permanent and inescapable responsibility of every Muslim means that no human being or institution should control this process. The power to decide who is qualified to exercise ijtihad and how it is to be exercised is part of the religious belief and obligation of every Muslim. Any restriction of free debate by entrusting human beings or institutions with the authority to decide which views are to be allowed or suppressed is inconsistent with the religious nature of Shari’a itself. This reasoning is one of the main Islamic foundations I propose for safeguarding constitutionalism, human rights, and citizenship for all…
The principle of consensus apparently acted as a unifying force during the second and third centuries of Islam by drawing the substantive content of Sunni schools together, diminishing the scope of creative new thinking through ijtihad. The commonly held view is that there was a gradual decrease in the role of creative juridical reasoning (the so-called closing of the gate of ijtihad) on the assumption that Shari’a had already been fully and exhaustively elaborated. Whether there was a closing of the gate of ijtihad or not is the subject of debate among historians (Hallaq 1984). But it is clear that there has not been any change in the basic structure and methodology of Shari’a since the tenth century, although practical adaptations continued in limited scope and locations. That rigidity was probably necessary for maintaining the stability of the system during the decline, and sometimes breakdown, of the social and political institutions of Islamic societies. However, from an Islamic point of view, no human authority was or is entitled to declare that ijtihad is not permitted, though there may have been consensus on this matter among Muslims. There is nothing, therefore, to prevent the emergence of a new consensus that ijtihad should be freely exercised to meet the new needs and aspirations of Islamic societies. The purpose of the proposal presented here is to secure the political, social, and intellectual space for debate and reformation, not to prescribe a particular approach to that debate. The essentially religious nature of Shari’a and its focus on regulating the relationship between God and human believers mean that believers can neither abdicate nor delegate their responsibility. No human institution can be religious in this sense, even when it claims to apply or enforce the principles of Shari’a. In other words, the state and all its institutions are by definition secular and not religious, regardless of claims to the contrary.
... Islam and the Secular State: Negotiating the Future of Shari'a, Abdullahi Ahmad an-Na’im
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