Ijtihad

Ijtihad is a term related to Islamic law. It refers to the process of a jurist, or legal expert, making decisions about issues that are not specifically addressed in the usual sources of legal guidance and precedence. These sources include the Koran, the Hadith—the words and life of the Prophet Muhammad—and ijma, or the consensus of scholars and experts. Jurists are required to use this type of judgement in making legal decisions; it is considered their religious obligation to do so. However, it is believed that decisions made this way can be mistaken, since there can be more than one way of interpreting the sources. Some Muslims believe that ijtihad should be applied to update aspects of Sharia, or the Divine Law, to reflect contemporary life.

Background

The word ijtihad comes from the Arabic word juhd, which refers to the expenditure of effort toward a goal. It specifically involves the additional mental reasoning and intellect the jurist must use in making decisions with ijtihad. Instead of relying on written laws and the legal decisions made by previous jurists, the jurist applying ijtihad uses independent reasoning.

All Muslims are religiously obligated to follow Sharia law, which is sometimes spelled Shariah. The word Sharia refers to a clear, well-travelled path that leads to water. This word is used because Muslims believe that following Sharia law is as important and life-sustaining as water.

Sharia law is based on the Koran, the holy book of the Islamic faith. It also incorporates the words and experiences of the Prophet Muhammad and his companions, collectively known as the Hadith, and the well-established teachings of Islamic scholars. These teachings are known as ijmas, which means "consensus." Sharia law is considered Divine Law. It has clear parameters and, because it is based on holy sources, it is considered infallible.

However, anytime a system of laws is employed, situations will arise that are not covered under the sources used to form these laws. This often happens as time passes, as people move to other areas of society, and as ways of life change. New technology, changing circumstances, the combining of cultures, and the introduction of new societal expectations are all situations that can uncover gaps in existing laws. These gaps are not unique to Islam and exist in every culture.

An example of such a gap from contemporary American culture might involve drones and privacy laws. Many existing privacy laws were passed before drones existed. This means a judge might be asked to rule on whether it is a violation of privacy if a person is flying a drone equipped with a camera around the neighborhood and it passes over another person's backyard. If the neighbor feels this is a violation of his privacy, he may take the matter to court. This could present a challenge for a judge if there is no law addressing the use of drones. The judge would then have to apply the existing laws as much as possible and use his reasoning, training, and discretion to make a ruling. In a case such as this, the judge would be applying similar principles to those used by an Islamic jurist under ijtihad.

Overview

Ijtihad is the form of law that Muslims turn to when existing laws and the sources of those laws, such as the Koran, do not address the situation in question. It can also be applied if there are two rules in conflict with each other or if it is unclear if the rule is applicable to the situation. The goal is to create a way of handling the situation that is in keeping with the overall established Divine Law and will benefit and protect the Muslim population.

For instance, the illegal street drugs and prescription opioids that exist now were unheard of when the Koran was written. As a result, there are no established rules pertaining to these drugs or penalties provided for those who use them. A jurist using ijtihad would most likely use analogy to render a decision on such a case by looking at how the substance and its use corresponds to other situations that are addressed in the law. The jurist could then draw an analogy between the substances considered forbidden under existing law and the new substances and make a ruling based on the laws that do exist. Such analogies are called qiyas.

In doing this, an Islamic jurist would act in one way that is different from most other legal systems: Islamic law is based on religious principles and the idea that Allah is the ultimate source of all laws. Whereas judges in civil courts in most areas of the world would have to rule based solely on laws that had been passed by secular authorities, Islamic jurists consider first and foremost how Allah would want things handled. This is why the primary sources of law are the Koran and the teachings of Muhammad.

Still, some people in the Muslim world feel that the "gates of ijtihad" closed in the third century. At this time, it was believed that every jurist had the ability and the religious obligation to make these educated decisions. The Muslim leaders between the eighth and thirteenth centuries believed that the last jurists to have this ability, the mujtahids, lived through the third century, and subsequent jurists were bound by the decisions they made; their mandatory acceptance of this is called taqlid. In contemporary times, however, more Muslim leaders believe that the "gates" of ijtihad are still open.

They believe that it is not only appropriate but also necessary to apply educated and informed interpretation to find analogies and to provide updated laws. As Muslims increasingly live in situations where they are not the majority population, their situations change. Many modern leaders believe the laws should reflect and adapt to these changes. While this is the opinion of many Sunni Muslims, many Shiite Muslims still hold that the rules established by the mujtahids are binding.

Bibliography

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"Ijtihid." Oxford Islamic Studies Online, www.oxfordislamicstudies.com/article/opr/t125/e990. Accessed 7 Apr. 2017.

Kuruvilla, Carol. "5 Things You Need to Know about Sharia Law." The Huffington Post, 15 July 2016, www.huffingtonpost.com/entry/5-facts-you-need-to-know-about-sharia-law‗us‗5788f567e4b03fc3ee507c01. Accessed 7 Apr. 2017.

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Terrill, Richard J. World Criminal Justice Systems: A Comparative Study. Routledge, 2015.

"Viewpoint: The Door of Ijtihad is Open." Islamic Supreme Council, www.islamicsupremecouncil.org/publications/articles/45-viewpoint-door-of-ijtihad-is-open.html. Accessed 7 Apr. 2017.