8.7. CONCLUSION
Under their classical definitions, ijma` and ijtihad were both subject to conditions that virtually drove them into the realm of utopia. The unreality of these formulations is reflected in modern times in the experience of Muslim nations and their efforts to reform certain areas of the Shari’ah through the medium of statutory legislation. The juristic basis for some of the modern reforms introduced in the areas of marriage and divorce, for example, has been sought through novel interpretations of the relevant passages of the Qur’an. Some of these reforms may rightly be regarded as instances of ijtihad in modern times. Yet in none of these instances do the statutory texts or their explanatory memoranda make an open reference to ijtihad or ijma`. The total absence of these terms in modern statutes is a sad reflection of the unreality that is encountered in the strict definitions of these concepts. The classical definitions of ijtihad and ijma` might, at one time, have served the purpose of discouraging excessive diversity which was felt to be threatening the very existence and integrity of the Shari’ah. But there is no compelling reason to justify the continued domination of a practice which was designed to bring ijtihad to a close Ijtihad and ijma’ were brought to a standstill, thanks to the extremely difficult conditions that were imposed on them, conditions which often ran counter to the enterprising and creative spirit that characterised the period of the pious caliphs and the early imams of jurisprudence.
Dr Yusuf’s criticism of Iqbal’s proposed reform is based on the dubious assumption that an elected legislative assembly will not reflect the collective conscience of the community and will unavoidably be used as an instrument of power politics. Although the cautious advice of this approach may be persuasive, the assumption behind it goes counter to the spirit of maslahah and of the theory of ijma` which endows the community with the divine trust of having the capacity and competence to make the right decisions. If one is to observe the basic message of the textual authority in support of the `ismah of the community, then one must trust the community itself to elect only persons who will honour their collective conscience and their maslahah. In addition, Dr Yusuf’s critique of Iqbal merely suggests that nothing should be done to relate ijma’ to the realities of contemporary life. The critic is content with the idea of letting ijma` and ijtihad remain beyond the reach of the individuals and societies of today. On the contrary, the argument for taking a positive approach to ijma` is overwhelming. The gap between the theory and practice of Shari’ah law has grown to alarming proportions, and any attempt at prolonging it further will have to be exceedingly persuasive. While the taking of every precaution to safeguard the authentic spirit and natural strength of ijma` is fully justified, this should not necessarily mean total inertia. The main issue in institutionalizing ijma`, as Shaltut has rightly assessed, is that freedom of opinion should be vouchsafed to the participants of ijma`. This is the essence of the challenge which has to be met, not through a laissez-faire attitude toward ijtihad and ijma`, but by nurturing judicious attitudes and by evolving correct methods and procedures to protect freedom of opinion. The consensus that is arrived at in this spirit will have kept a great deal, if not all, of the most valuable features of ijma`.
by M. H. Kamali.
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