Issues in the Legal Theory of Usul and Prospects of Reform
Author: Mohammad Hashim Kamali
Publisher: International Islamic University, Kuala Lumpur
Price: 5 Malaysian Ringit
The compatibility or otherwise of the corpus of traditional Islamic jurisprudence (fiqh) with modern conditions and needs, as well as the need to address new issues out of the gamut of traditional fiqh have been written about extensively. Many scholars have pointed to the possibilities offered by ijtihad or creative, contextually-relevant interpretations of the primary sources of Islamic law, namely the Quran and the genuine Hadith, as a principal vehicle for legal reform and dynamism in this regard.
This fascinating study is concerned with the broader theoretical framework of the principles of Islamic jurisprudence (usul al-fiqh) and the issue of ijtihad. Kamali, an internationally-renowned scholar of Islamic law, argues that for this purpose, traditional usul al-fiqh needs to be approached afresh, not simply as a part of traditional Muslim legal heritage but also as a tool to regulate and promote ijtihad. At the same time, Kamali also points to what he sees as the flaws of traditional usul-e fiqh, which, in his view, have greatly hampered the use of ijtihad. He notes the relatively little attention that traditional jurists have given to the 'aims of the shariah' (maqasid al-shariah), owing to a sternly literalist approach, which has further restricted the scope of ijtihad. Finally, he argues that for relevant ijithad in our times, it is necessary for usul al-fiqh to be re-imagined and linked directly to the 'aims of the shariah'. This would require jurists to pay greater stress to issues of public interest (istislah) and to allow for the possibility of choosing between prescriptions of different Muslim legal schools (istihsan), instead of taqlid or remaining bound by the prescriptions of just one traditional school of Muslim law.
Kamali traces the origins of usul al-fiqh as a discipline to Imam al-Shafi, the putative founder of the Shafi school of jurisprudence, who supported the use of qiyas or analogy to provide prescriptions in the case of issues not directly mentioned in the Quran and the authentic Hadith. His theory, however, tended towards literalism, rejecting the use of personal opinion and istihsan, in contrast to the more liberal Hanafi school, which is the dominant school among the Indian Muslims. This tendency towards literalism was further strengthened with the insistence that coming generations should strictly follow the consensus (ijma) of earlier jurists on legal matters. Traditional usul al-fiqh also failed to sufficiently integrate the Quranic commandment of consultation (shura). It is thus, not surprising, Kamali writes that because of all this, 'the legal theory of usul al-fiqh plays no visible role in the legislative process of modern nation states almost anywhere in the Muslim lands' (p.9). It is, he says, this that 'has made the traditional role of the scholar and mujtahid in law-making almost totally redundant' (p.10).
Kamali makes a plea for ijtihad to be recognised and used as a vehicle for Islamic jurisprudential dynamism, and for it to be adequately integrated into the general framework of usul al-fiqh. He even recognises the possibility of ijtihad going beyond the prescriptions of the established schools of jurisprudence. He insists that without taking into account the maqasid or aims of the shariah, which include personal and social welfare, mercy and justice as shaped by Islamic values, ijtihad and the established frame of Muslim jurisprudence cannot give adequate answers to many complicated issues of our times. Five generally accepted maqasid of the shariah, as elaborated by the classical jurists, are the protection of faith, life, intellect, property and lineage, although more could possibly be added, as the maqasid are not specifically detailed as such in the Quran but, rather, have been deduced from it by Islamic scholars. To ignore the maqasid, in other words, could easily lead to erroneous ijtihad and unwanted literalism. As Kamali says, 'Since the legal theory of usul is meant to translate the value structure of the revelation (wahy) into operative formulas and ensure that ray and ijtihad are the carriers of these values, it would follow that the objectives and values, rather than technicality and literalism, should have been the overriding theme and preoccupation of usul al-fiqh' (p. 13). Lamentably, Kamali notes, this is not the case.
Kamali also expands the operative principles of ijtihad, calling for not just madrasa-trained ulema, but also experts in various 'worldly' fields, as well social activists, scientists, government officials and elected parliamentarians, to be involved in a process of collective, as opposed to individual, ijtihad, a major departure from the traditional approach.
Unlike many other texts on the theories and concepts of Islamic jurisprudence, this book is relatively free of technicalities and can be easily understood by the general reader. A passionate appeal for reintroducing dynamism in Islamic jurisprudence, it deserves to be read by those interested in Islamic law in the contemporary world.
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September 2009 |
