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Why Muslim Countries and Their Jurists Have Failed

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By Shaykh-ul-Islam Dr. Muhammad Tahir-ul-Qadri

Life is a dynamic process and the realities(systems) of life keep changing under its influence. The objective of law is that all demands of life are met in such an amicable manner that its movement continues in the right direction without any hindrance. All decrees of Islamic law have two layers of meaning in general; namely the spirit or essential aspect and the structural or existential aspect

The essential aspect guarantees dynamism and evolution of human life, whereas the existential aspect is to give it discipline and balance. When human life undergoes changes dictated by realities of life, it becomes necessary to review the structure of law to keep it intact, commensurate with its objective. The idea is to disallow any clash between aspects of discipline and evolution of life because their mutual conflict renders the movement of human life into corrupt phenomenon, which in turn makes the achievement of the required purpose far from possible.

This situation is against the collective ideal of Islam. Collective objectives of Islam cannot be attained without fulfillment of all the demands of life. Keeping this objective in view, undertaking a structural review of law in accordance with Islamic teachings on matters not discussed by the Holy Quran or Sunnah and exploring new sources of legal framework to maintain life as a progressive and dynamics process is called Ijtihad. It is through the institution of Ijtihad that attainment of the aims of Islam is not only possible but is also actualized.

There is no denying the fact that under the change in realities(systems) of life, previous laws framed in accordance with objectives and priorities of its own time fail to address the newly emerging problems of life. The old laws give way and render the system into a sterile process, incapable to cope with the new realities. Their violation instead of implementation proves productive which signifies the need to derive a new legal framework. Its reconstruction becomes, therefore, urgent and inevitable to keep life moving in the right direction. If such a course of reforming law is not undertaken, rule of law loses its importance in life resulting in violation, violence, disobedience, and lawlessness.

We have been unable to give Ijtihad its due importance that it naturally occupies in the Islamic system of jurisprudence in spite of vast changes in the realms of society, politics and economy. As a result, demands of law and life come into clash with each other. Life demands the fulfillment of its needs, while law proposes punishment for any violation committed in the process of fulfillment of needs.

The basic purpose of law in Islam is to provide the people with a life free from fear and anxiety. This condition cannot be met without fulfilling all material and spiritual demands of life. The Holy Quran has described the basic demands of human life in this manner.

And We (Allah) ordered them to get down as enemies of each other. And for you is a stay on the earth for a time as a means of sustenance.” (36:2)

There are three preconditions for establishment, survival, solidarity and evolution of such a society, namely growth of human self, completion of social order, and environmental controls.

There are several aspects of the human self of which biological aspect is one with three demands; namely food, clothes and shelter. If they are not met, the human cannot develop biologically. The ambition, greed and miserliness in a society are a stumbling block in the fulfillment of these demands. Islam necessitates removal of harm to ensure the fulfillment of biological needs of the human life.

Another aspect of human necessity is the socio-biological aspect, which involves matrimony and procreation.  No healthy society can remain absolved of the fulfillment of these needs unless it loses sight of the moral excellence of the concept of the chastity. Another aspect known as the socio-cultural aspect demands that society undertakes the responsibility of education of society and its economic development. No civilized society can abstain itself from fulfilling this demand nor can it be saved from the decline by such an abdication of responsibility.

The psychological aspect of human life emphasizes the proportional and harmonious growth of emotion, motivation, and perception. The psychical aspect warrants complete harmony between the conscious the sub-conscious. Without this harmony, neither can mental balance of man be maintained nor can his character be developed on the right lines. All psychopathology is generated from negligence of this balance.

The demands of another aspect of human life known as transcendental aspect can be met through a struggle waged for establishment of an ideal society, religion, art, morality and knowledge. What guarantees the growth of all aspects of human life is the positive response to the sociological structure. The establishment of societal institutions, their organization and disciplined persistence depends upon a system of promoting the lawful and impeding the unlawful, which serves as a shield for the protection of human values. This explains the objectives of reconstruction, reformation and modernization of law.

The third precondition relates to environment control. Environment is of two types i.e. natural and human. Science and technology are the means to conquer the natural environment. The human environment has two extremes; namely hostile and favorable. The favorable human environment is brought under control through beneficial policies and practices while a hostile human environment is corrected through humanitarianism and benevolence, after gaining its control by coercive actions. When these preconditions are met in a society, the environment is geared for a culture to develop and grow.

The code of conduct established to organize the action of societal institutions can protect the societal benefits accruing from them as long as forces of life do not register any change. Since life is a dynamic entity, the forces are bound to undergo change. If changes occur, the code of conduct that was put in place previously to organize and control functions of societal institutions fails to protect the values of life in the new environment. This necessitates that the methods and means adopted to achieve the public objectives be reviewed to determine how effective they are in obtaining the required results. This critical assessment is called evaluation, and in the language of Islamic law, it is known as Ijtihad, whose precedents can be found from the times of rightly guided Caliphs to later periods of the Muslim empire.

It dawns upon our consciousness that the ideal which initiates and fosters growth of higher values of life in the human self and societal structures is determined by the Holy Book and Sunnah. The Holy Quran and Sunnah not only set the ideal but they also denote the strategy to achieve it. As long as the sanction of power of enforcement backs the strategy, worthwhile results are produced. But when law is deprived of the real power, neither can the system of law fulfill the demands of life nor can it protect the values of life.

This is the stage where reconstruction of law is required and Ijtihad becomes essential so that the values of life can be protected again through employment of effective law, and the function of societal institutions may be controlled and organized. Because it is in this way that the evolutionary dynamism could continue towards the collective ideal of life. It should be kept in view here that at the time of Ijtihad, the determination of the ideal and its strategy should be worked out in the light of teachings of the Holy Quran and Sunnah. As Allah Almighty says in the Holy Quran:

“We have designed for all of you a law (ideal) and method (strategy).” (5:48)

At a time when the values of human life stand degraded and blessings are turned into curses, no imposition of any legal order can reverse the circumstances.  So with a view to restoring the lost values and to achieve the ultimate ideal, we will have to bring about a comprehensive revolution in our social life through employment of Ijtihad. It is after this stage that the implementation of Islamic law could guarantee the protection of these values and their growth. Guidance can be sought from the Holy Quran, the Sunnah, practices and customs of the holy companions, and consensus of Ummah etc.

The juristic principle, which is agreed upon by the consensus of jurists of the Ummah, and demonstrates the need of Ijtihad is “the change in the circumstances and time warrants change in Jurisprudence”. To us, this principle of Islamic jurisprudence is the basis of establishing the institution of Ijtihad and it is by invoking this precept that the leading pioneer jurists and their successors have been doing legislation in view of the new problems and issues of their respective eras. That is Ijtihad, a vital legislative instrument of Islamic Law that could provide the revival of Islamic culture and civilization till the end of time.

Daily The Nation July 20,2007

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