Posted 25 August 2011, sections on urf and istishab added 28 August at reader request.
Professor Kamali is currently the founding Chairman and CEO of the International Institute of Advanced Islamic Studies based in Kuala Lumpur, Malaysia. I had the honour of meeting him when I visited Kuala Lumpur in May 2010 to attend the Sixth World Islamic Economic Forum.
This 500 page book is probably the leading treatment of the subject in English, and I recommend it to anyone seriously interested in Islamic thinking.
This review uses some of Kamali’s chapter headings. I have not attempted to cover all of Kamali's material but only those subjects which I find particularly interesting or which give an important insight into the work. Accordingly this review does not claim to be a comprehensive summary of the book.
Fiqh is an Arabic word which can be translated as Islamic law. Its primary sources are the Quran and the Sunnah (the sayings and the actions of the Prophet Muhammad, peace be upon him, as recorded in the hadith).
Usul al-fiqh is the study of the sources of Islamic law and the methodology by which Islamic law is developed. Fiqh is the end product of the application of usul al-fiqh which is best translated as Islamic jurisprudence.
To be a competent Islamic jurist one must know both the law and the methods by which it was developed. As an example, Kamali points out that Islamic law prohibits theft. However the jurist needs to know the source which in this case is given as the Quran 2.188 "Devour not each other's property in defiance of the law."
During the lifetime of the Prophet (pbuh) Islamic law existed in the form of the Quran and the Prophet's rulings. However Islamic jurisprudence was not required as any new problem not covered by existing Islamic law could be referred to the Prophet (pbuh) for a decision. That decision would then become a part of the expanded Islamic law.
After the Prophet (pbuh) died, legal decisions were made by his companions, inspired by their knowledge of his approach to decisions, and they were not in need of any formal legal methodology or jurisprudence. However with the passage of time those who had known the Prophet (pbuh) passed away and gradually jurisprudence became a formal methodology.
Whereas Kamali is careful to define Arabic terms when he first uses them, he fails to do so with the word "Shariah" and the word is missing from the glossary at the end of the book. I suspect that this apparent oversight arises from the fact that Shariah is such an overarching concept for Muslims. The original meaning of the Arabic word Shariah is a path to water, which is of course a vital requirement in the Arabian desert. In a religious sense, Shariah can be understood as the path to salvation and encompasses all of the teachings and doctrines of Islam.
Given the importance of law to the practice of Islam, the common English translation of Shariah as "Islamic law" is not unreasonable but in my view it is more accurate to think of "Islamic law" as being fiqh and to think of Shariah as something more overarching such as “Islamic doctrine.”
Kamali explains that religious scholars are unanimous that the Quran is the most fundamental source of the Shariah. Indeed, some scholars consider it to be the only source, regarding all other sources as only being explanatory of the Quran. However Kamali points out that while the Quran contains over 6200 verses, less than 10% relate to law and jurisprudence while the remainder deal with matters of belief, morality and faith.
Given the importance of the Quran, the way that it is to be read and understood is fundamental. Kamali explains that rulings in the Quran may be conveyed in text which is either unequivocal or in language that is open to different interpretations.
A definitive text is one which is clear and specific; it has only one meaning and admits of no other interpretations. Kamali gives the example of Quran 4.12 which entitles a husband to half of the estate of his deceased wife if she leaves no child: "In what your wives leave, your share is a half, if they leave no child." Kamali explains that a definitive text is binding upon everyone and is not open to ijtihad (literally "exertion" and technically the effort a jurist makes in order to deduce the law, when it is not self-evident, from its sources.)
Conversely, speculative verses of the Quran are those which are open to interpretation and ijtihad. Kamali explains that the best interpretation is that derived from the Quran as a whole while the Sunnah is another source that supplements the Quran and helps with its interpretation.
Kamali illustrates this with Quran 4.23 "Prohibited to you are your mothers and your daughters." The prohibition of marriage with one's mother is definitive.
However the Arabic word for "your daughters" could be taken literally which would be any girl for whom you are the biological father. Alternatively the juridical meaning could be applied which limits the meaning to a legitimate daughter. The jurists disagree which meaning applies. Kamali states that the Hanafi school (there are four main schools of Islamic law named after their founders) follow the first meaning prohibiting marriage to your illegitimate daughter. Conversely the Shafi school follow the second interpretation permitting marriage with your illegitimate daughter.
Kamali starts by explaining the meaning of the word.
"Literally, Sunnah means a clear path or a beaten track but it is also used to imply normative practice, or an established course of conduct. A Sunnah may be a good example or a bad one, and it may be set by an individual, a sect or a community. In pre-Islamic Arabia, the Arabs use the word "Sunnah" in reference to the ancient and continuous practices of the community that they inherited from their forefathers. Thus it is said that the pre-Islamic tribes of Arabia each had their own Sunnah, which they considered the basis of their identity and pride. The opposite of Sunnah is bidah, or innovation, which is characterised by lack of precedent and continuity with the past."
The scholars of jurisprudence consider Sunnah as referring to all that is narrated from the Prophet (pbuh), his acts, his sayings and whatever he has tacitly approved.
Kamali explains that although scholars have used Sunnah and hadith almost interchangeably, the words have distinct meanings. Sunnah occurs 16 times in the Quran and is always used to imply an established practice or course of conduct. Hadith occurs 23 times in the Quran and in each case carries the meaning of a narrative or communication. None of the occurrences in the Quran use the word hadith in its technical exclusive sense of being a saying of the Prophet (pbuh). In juristic terms, Kamali states that hadith is a narration of the conduct of the Prophet (pbuh) whereas Sunnah is the law that is deduced from that conduct.
Kamali explains that the scholars are unanimous that Sunnah is a source of Shariah. As the Quran commanded Muslims to obey the Prophet (pbuh), his words were obligatory for anyone who heard them. For the rest of us who receive them through the verbal and written reports of narrators, we need to ascertain their authenticity which may be definitive or it may be a preferable conjecture; in either case such established reports should be followed.
However, the Sunnah divides into two categories, non-legal and legal.
Non-legal Sunnah mainly consists of the natural activities of the Prophet (pbuh) such as the way he ate, slept and dressed. According to the majority of scholars, the Prophet’s (pbuh) preferences in these areas such as his favourite colours were peripheral to his prophetic mission and are therefore not part of the Shariah. The same would apply to what the Prophet (pbuh) did in very particular circumstances such as the timing of military actions; these are considered situational and not part of the Shariah.
In some cases it is difficult to determine the status. For example, the Prophet (pbuh) kept his beard at a particular length and trimmed his moustache. The majority of scholars have regarded this as an example that believers must follow. Conversely other scholars consider that the Prophet (pbuh) was simply following the social practice of the Arabs at that time which was designed to prevent resemblance to the Jews and to some non-Arabs who used to shave their beards and grow their moustaches. This view makes the style of facial hair optional.
The legal Sunnah consists of the actions of the Prophet (pbuh) which were expressly intended to set an example. This legal Sunnah itself divides into three types depending upon the capacity in which the Prophet (pbuh) was acting:
Rules which the Prophet (pbuh) laid down in his capacity of Messenger of God pertaining to the principles of the religion, especially in the area of devotional matters and setting out what is permissible and what is prohibited are general legislation whose validity is not restricted by the limitations of time and circumstance. Instead they apply to all Muslims everywhere. The individual Muslim should act upon these laws without needing prior authorisation from a religious leader or the government.
Conversely action which the Prophet (pbuh) authorised in his capacity as the imam can only be acted upon by other Muslims with prior authorisation of the imam for the time being. This would include matters such as government administration, signing treaties, division of the spoils of war, the declaration of war etc. Kamali points out that sometimes determining the status is difficult. He cites the hadith: "Whoever kills a warrior [in battle] may take his belongings."
"Imam Malik held that the Prophet (pbuh) offered this hadith in his capacity as imam, in which case no one is entitled to the belongings of his victim in the battlefield without the express authorisation of the imam. The majority have held the view that this hadith lays down a general law which entitles the soldier to the belongings of the deceased even without the permission of the imam."
Sunnah originating from the Prophet (pbuh) in his capacity as a judge in particular disputes usually has two parts. One is situational relating to the specific dispute and does not constitute general law. The second part, being the judgement itself lays down general law. However nobody may act upon it without the prior authorisation of a competent judge since the Prophet (pbuh) himself was acting in a judicial capacity.
The Quran was recorded in writing from beginning to end during the Prophet's (pbuh) lifetime. He was anxious to ensure that his own Sunnah was not confused with the text of the Quran and initially discouraged his companions from writing down his Sunnah.
Accordingly, while we have a single agreed text of the Quran, open only to disputes regarding its meaning in certain cases, most of the Sunnah is only available in the form of narrations from transmitters and many of the hadith which have come from different lines of transmission differ in their detailed content. Unlike the Quran, the Sunnah faces issues not only of interpretation but also of authenticity. Kamali discusses this later in the book.
Kamali is categorical that the Sunnah is the second source of the Shariah after the Quran. Accordingly the jurist looking for the solution to a legal question must resort to the Sunnah only when he fails to find any guidance in the Quran. If there is a clear text in the Quran, it takes priority over any conflicting ruling of the Sunnah.
The reason the Quran takes priority is that it consists entirely of manifest revelation whereas the Sunnah, even though inspired by God, is largely transmitted in the words of the narrators and also is open to questions of authenticity. Conversely, the authenticity of the Quran is not open to doubt. Furthermore, the Sunnah is explanatory of the Quran.
Kamali cites the Prophet (pbuh) sending Muadh ibn Jabal as a judge to the Yemen and asking him how he would reach his decisions. Muadh responded that he would first refer first refer to the "book of God" and then to the "Sunnah of the messenger of God." He points out that this example was expressly referred to by the second Caliph Umar ibn al-Khattab in writing addressed to two judges who were ordered to resort to the Quran first and the Sunnah only when they could find no guidance in the Quran.
Kamali explains that there are three types of relationship between the Quran and the Sunnah.
Kamali states that the first two varieties listed above constitute the majority of the Sunnah and that the ulama consider that these two types are integral to the Quran and constitute a logical whole with it. He goes on to say:
"It is considered that the Sunnah that qualifies or elaborates the general provisions of the Quran on devotional matters (ibadat), on the punishment for theft, on the duty of Zakah and on the subject of bequests, could only have originated in divine inspiration (ilham), for these cannot be determined by means of rationality and ijtihad alone."
He states that it is the third category which is the subject of debate as to whether the Sunnah is an independent source of law, and proceeds to discuss the alternative arguments of scholars.
Kamali explains in this section the methodology applied to evaluate hadith for genuineness and reliability. As he has written a separate book on this subject, this review does not try to summarise his exposition within the current book.
The highest category of hadith is mutawatir which means 'continuously recurrent.' This means "a report by an indefinite number of people related in such a way as to preclude the possibility of the agreement to perpetuate a lie.” Kamali explains that the majority of ulama regard the authority of a mutawatir hadith as equivalent to that of the Quran.
The next category down is a mashur (well-known) hadith. The schools of thought differ on the level of certainty that a mashur hadith gives.
Kamali explains that in Arabic there are two common words for "interpretation" namely tafsir and tawil.
Tafsir literally means "explanation" and basically aims at explaining the meaning of a given text and deducing the ruling from it within the confines of the words and sentences. Accordingly the explanation follows immediately from the content of the text.
The word tawil could be translated as "allegorical interpretation" but Kamali prefers to use the Arabic word. Tawil goes beyond the literal meaning of words and sentences and reads into them a hidden meaning which is often based upon speculative reasoning and ijtihad. It should only be used when there is evidence to justify the departure from the manifest meaning of a text.
Tawil itself fall into two categories:
Kamali illustrates remote tawil with the example of the Hanafi interpretation of a hadith. One of the companions of the Prophet (pbuh), Firuz al-Daylami embraced Islam having married two sisters before he became a Muslim. The Prophet (pbuh) ordered him to "retain one of the two, whichever you wish, and separate from the other."
The Hanafi interpretation is that al-Daylami was instructed to contract a new marriage with one of the sisters if he had previously married both in a single contract of marriage. However if he had married each sister in a separate contract, he was to retain the one whom he had married first without requiring a further marriage contract.
Their logic for this tawil interpretation is that there is a rule of Shariah prohibiting two women being married in a single contract. However the jurists regard this Hanafi interpretation as remote and not supported by the wording of the hadith. As a new convert to Islam, al-Daylami would not be expected to be familiar with the detailed rules of Shariah. Accordingly had the Prophet (pbuh) intended the interpretation given by the Hanafis, he would have clarified his ruling himself.
As an illustration of relevant tawil, Kamali cites the Quranic verse 5.6 "O believers, when you stand for salah [prayer], wash your faces and your hands up to the elbows." The interpretation is that ablution is required before standing for prayer since the contrary interpretation of performing ablution after starting to pray makes no sense.
Kamali explains that the law normally requires compliance not only with the obvious meaning of a sacred text but also with its implied meanings and indirect implications and inferences that could be drawn from the text. He explains that Hanafi jurists have distinguished four levels of meaning in declining order of priority.
This is the immediate meaning of the text derived from its obvious words and sentences. Such a meaning conveys a definitive ruling on its own without needing corroborative evidence.
As well as the explicit meaning, a text may also can be an additional meaning that is logically necessary. This alluded meaning may be easily detectable or may need deeper investigation.
Kamali gives the example of Quran 2.233 "it is his [father's] duty to provide them with maintenance and clothing according to custom." The explicit meaning is the father's duty to support his child. However a further implication is that a child’s descent is solely attributed to the father. Furthermore when combined with the hadith "you and your property both belong to your father" the text provides authority for the father if in dire need to take what he needs of his child’s property without seeking the child’s permission.
This is a meaning derived from the spirit and rationale of a text even when it is not indicated in the words and sentences. Instead it is derived through analogy and some scholars have in fact treated it as equivalent to analogical deduction (qiyas jali) which is discussed later.
Kamali gives the example of Quran 17.23 "and say not "Fie" to them [one's parents]" where the explicit meaning is uttering words of contempt to your parents. The inferred meaning is that all forms of abusive behaviour and acts which offend your parents are forbidden.
This is a meaning on which the text itself is silent but which must be read into the text if the text is to fulfil its proper objective. Kamali gives the example of Quran 5.3 "Unlawful to you are the dead carcass and blood". Although the text does not refer to eating, that is a necessary implication for the text to convey a complete meaning.
Kamali gives an example of how the explicit meaning takes priority over the alluded meaning. Quran 4.93 states "Whoever deliberately kills a believer; his punishment will be permanent hellfire." The explicit meaning of this verse is that a murderer is punished in the hereafter. However there is an alluded meaning that a murderer does not need punishment in this lifetime as they will be punished after death. Yet Quran 2.178 provides "retaliation is prescribed for you in cases of murder" and the explicit meaning of that verse takes priority over the alluded meaning of verse 4.93.
Kamali also gives an example of the conflict between the alluded meaning and the inferred meaning. Quran 4.92 states "The expiation (kaffarah) of anyone who erroneously kills a believer is to set free a Muslim slave." The explicit meaning of the text is straightforward. The inferred meaning is that freeing a Muslim slave is also required in the case of intentional killing. However the following verse 4.93 quoted above has an alluded meaning that murder is so heinous that there is no room for expiation so that the killer is not required to free a slave. The alluded meaning of 4.93 takes priority over the inferred meaning of 4.92 so the murderer is not required to pay expiation, although he is of course subject to retaliation.
This demonstrates the Hanafi school order of priority mentioned earlier.
However the Shafi school considers that the inferred meaning takes priority over the alluded meaning on the grounds that the inferred meaning is based on the language and rationale of the text whereas the alluded meaning is not. Accordingly the Shafi school would require the murderer to pay expiation as well as suffering retaliation.
Kamali explains that the rule is that a legal text never implies its opposite meaning and that any attempt to obtain two divergent meanings from one and the same text goes against the principles of interpretation. Accordingly the Hanafi school basically consider that the divergent meaning is not a valid method of interpretation. However it is used on a restricted basis by the Shafi school but also (despite the preceding comment) by the Hanafi school in certain cases.
A divergent meaning is one which is derived from the words of the text but in a way that diverges from the explicit meaning. Looking at the examples Kamali discusses in his book, I think it is fair to say that a divergent meaning consists of trying to derive a legal ruling by looking at the opposite of the explicit meaning of a text.
Kamali gives the example of Quran 6.145 "Say, I find nothing in the message that is revealed to me forbidding anyone who wishes to eat except the dead carcass and blood shed forth." Looking at the final part of this verse, the divergent meaning would be to say that since blood shed forth is prohibited, blood which is not shed forth is lawful for consumption. That is regarded as improper reasoning.
In today's world abrogation is one of the most controversial issues in Islam. At the risk of extreme oversimplification, many of the verses in the Quran that were revealed in Mecca convey a universalistic message of religious tolerance while some of the verses revealed later in Medina can be interpreted as "warlike" or intolerant of non-Muslims. If one regards these later verses as abrogating the earlier ones, one can paint an image of Islam that is narrow and exclusionary. This is done today both by non-Muslims wishing to criticise Islam but also by some Muslims (for example the adherents of Al Qaeda) who contend that the only relationship between Islam and other religions is one of unavoidable military conflict.
Literally the word naskh means 'obliteration.' Kamali writes:
"Naskh may be defined as the suspension or replacement of one Shariah ruling by another, provided the latter is of subsequent origin, and that the two rulings are enacted separately from one another. According to this definition, naskh operate with regard to the rules of Shariah only, a proviso which precludes the application of naskh to rulings that are founded in rationality ('aql') alone."
Kamali makes a number of points in his discussion of the subject:
Kamali points out that the scholars are not unanimous about whether abrogation has actually occurred in the Quran. He mentions that al-Suyuti claimed to have identified 21 occurrences of abrogation within the Quran while Shah Wali Allah accepted only five of those as genuine abrogation contending that all of the rest can be reconciled. Another scholar, Abu Muslim al-Isfahani denied the existence of abrogation in the Quran altogether. However the majority view is that abrogation within the Quran does take place as the ayahs quoted earlier attest to it. The commentators in the minority who contend that there is no abrogation consider that the ayahs mentioned in these quotations as being substituted refer not to ayahs of the Quran but to previous Scriptures such as the Torah and the Bible.
Kamali accepts the majority view that abrogation has occurred within the Quran but points out the divergence regarding the number of instances, quoting the varying counts of abrogation identified by different scholars:
Kamali goes on to explain the tendency of modern scholars to reduce the instances of abrogation to the lowest possible number. He points out that some of the large numbers above arise from confusing naskh with takhsis (specification, i.e. making a ruling more specific) and also occasions where the effective cause of a ruling disappears:
"Similarly, large numbers of Quranic ayat that advocated patience and tolerance towards the unbelievers were claimed to have been abrogated by the ayat that authorised fighting the unbelievers. There was in reality no abrogation and both rulings were valid under different circumstances. The earlier ayat applied at a time when the Muslims were small in number and weak, and the latter when they acquired military power."
Kamali goes on to draw upon criticism of the approach of some early Muslim scholars in the book “The Islamic Theory of International Relations: New Directions for Islamic Methodology and Thought” by Abdul Hamid Abu Sulayman. Kamali writes:
"The broad sweep of naskh was, however, taken so far as to invalidate a major portion of the Quran. This is precisely the case with regard to the ayah of the sword (ayah al-sayf) which reads: 'and fight the polytheists all together as they fight you all together, and know that God is with those who restrain themselves' (al-Tawbah, 9:36).
Influenced by the prevailing pattern of hostile relations with non-Muslims, some jurists took an extreme position in interpreting this ayah, and claimed that it abrogated all preceding ayat pertaining to patients, tolerance and the right of others to self-determination. Although scholars are not in agreement on the exact number of ayat that were abrogated as a result, Mustafa Abu Zayd has found that the ayah of the sword abrogated no less than 140 ayat in the Holy Book. Jurists who were inclined to stress the aggressive aspect of jihad could only do so by applying abrogation to a large number of Quranic ayat, and 'using abrogation in this manner has', Abu Sulayman contests, 'indeed narrowed the Quranic experience' and undermined the egalitarian substance of its teachings. In many passages the Quran calls for peace, compassion and forgiveness, and promotes a set of moral values such as moderation, humility, patience and tolerance whose scope could not be said to be confined to relations among Muslims alone."
Kamali's overall conclusion is to express doubt about the theory of abrogation:
"My general comment is that the theory of naskh and most of its cited examples are also open to a variety of doubts. Naskh as a whole is really too controversial to command the alleged support of the majority (jumhur) of Muslim scholars in its favour. To say that there were instances where some of the rulings of Sunnah, or even of the Quran, were amended due to the change of circumstances is not in doubt. But then to extend the scope of this essentially circumstantial phenomenon to a juridical doctrine with a theory, definition and typology of its own is less than warranted. Naskh is basically factual and has little juridical substance of its own, nor does it seem to have a direct bearing on the substance of legal theory."
Ijma is defined as the unanimous agreement of the mujtahidun (jurists competent to formulate independent tradition-based opinions in legal or theological matters) at any point in time after the death of the Prophet (pbuh). It was clearly not relevant while the Prophet (pbuh) was alive since during his lifetime only he was able to lay down religious decisions. Only the views of mujtahidun are taken into account; the opinions of laymen do not matter.
Kamali states four requirements for ijma:
Qiyas is a method for extending the application of Shariah from an original case to a new case because the latter has the same effective cause as the original case. This does not involve creating new law but only the extension of existing law. Kamali gives some simple examples:
The scholars are unanimous that all of the revealed religions (Judaism, Christianity and Islam) are different manifestations of an essential unity. The Shariah of Islam has retained many of the previous laws while abrogating or suspending others.
This chapter discusses the following alternative propositions:
After discussing the issue, Kamali concludes that proposition two is correct.
While the Quran and the Sunnah are the primary and secondary sources of Islamic law, there are also tertiary sources.
Kamali defines urf as "Recurring practices that are acceptable to people of sound nature." He goes on to explain "Custom that does not contravene the principles of Shariah is valid and authoritative; it must be observed and upheld by a court of law."
In my view this is similar to the way that English common law developed from the customs and practices of the Anglo-Saxons living in England. It also shows that although the teaching of the Prophet (pbuh) radically transformed pre-Islamic Arab society, it did not replace previous practices that did not conflict with Islam. Kamali writes:
"The ulama have generally accepted urf as a valid criterion for the purposes of interpreting the Quran. To give an example, the Quranic commentators have referred to urf in determining the precise amount of maintenance a husband must provide for his wife. This is the subject of sura al-Talaq (65:7) which provides 'Let those who possess means pay according to their means.' In this ayah, the Quran does not specify the exact amount of maintenance, which is to be determined by reference to custom."
Kamali goes on to discuss the requirements for the existence of a valid urf and also points out that custom will change from time to time as society itself changes.
Kamali explains that the word istishab literally means escorting or companionship and is used in the sense that the past accompanies the present without any interruption or change. He writes:
"For the Shafis and the Hanbalis, istishab denotes 'continuation of that which is proven and negation of that which had not existed'. Istishab, in other words, presumes the continuation of both the positive and negative until the contrary is established by evidence."
As an illustration, if someone who owes a debt claims that it is no longer his liability, he needs to prove that he has repaid it. Conversely if someone wishes to claim that another person owes him money, it is up to the claimant to prove that the debt has come into being.
Ijtihad is the most important source of Islamic law after the Quran and the Sunnah. It incorporates all of the processes for deriving Islamic law covered in the book such as consensus of opinion, analogy, juristic preference, considerations of public interest etc. The literal meaning of ijtihad is "striving" and of course it relates to intellectual exertion rather than physical exertion.
Ijtihad can only be practised by an appropriately qualified person, a mujtahid who must be a Muslim of sound mind who has attained a level of intellectual competence that enables him to form an independent judgement. There are detailed requirements regarding expert knowledge of the Arabic language, of the Quran including the details of the revelation of its verses, of the hadith and of the work of earlier religious scholars.
Ijtihad is not possible where there is an existing clear ruling of the Quran or the Sunnah. However ijtihad may be practised where the meaning of the text of the Quran is unclear, where a hadith is unclear or where a hadith is clear in its terms but the reliability of the hadith is uncertain.
Ijtihad is a religious duty; once a person is appropriately qualified as a mujtahid he may no longer follow the rulings of others by imitation (taqlid) but must reach his own decision by practising ijtihad and his conclusion then becomes binding upon himself.
The scholars disagree on the question of whether qualification to practice ijtihad is divisible. Some consider that the requirements to be a mujtahid can only be met in full and that once somebody is so qualified he can practice ijtihad in all areas of the Shariah.
Conversely other scholars consider that a person can be learned in a particular area of the Shariah only and be qualified to practice ijtihad within that limited area but not within other parts of the Shariah. In practice many of the most prominent imams have acknowledged their limited knowledge in certain areas; Imam Malik is said to have admitted that for at least 36 issues he did not know the right answer even though there are no doubts regarding his competence as a fully-fledged mujtahid.
Kamali has a section discussing this interesting question. The scholars generally agree that the Prophet (pbuh) practised ijtihad in temporal and military matters, but differ regarding whether he practised ijtihad on Shariah questions.
Some scholars point to Quran 53:3 'he says nothing of his own desire, it is nothing other than revelation sent down to him.’ They contend that this ayah implies that all of the rulings of the Prophet (pbuh) consist of divine revelation so that none of them constitute ijtihad.
Kamali explains that the majority view is that in the above ayah "it" refers to the Quran itself and not to every word that the Prophet (pbuh) spoke. In particular, there are instances in the Quran where earlier decisions of the Prophet (pbuh) are overruled and he is reprimanded by God while being given a divine pardon for his mistakes. This majority view is also supported by the Sunnah, for example the hadith 'when I do not receive a revelation, I adjudicate among you on the basis of my opinion.'
As part of a drive to impose restrictions on ijtihad, the scholars of the fifth/eleventh century classified the right to practice ijtihad into different categories, eventually reaching seven categories:
Over the last 200 years there has been movement back towards the wider practice of ijtihad, seeking to renovate Islam by going back to the original sources of the Quran and Sunnah rather than being confined to the rulings of earlier jurists.
Kamali points out that the methods of usul al-fiqh are conspicuously absent in the legislative and judicial decision-making processes of contemporary Muslim majority countries. He points out the theoretical orientation of usul al-fiqh:
“Usul al fiqh is often described as a theoretical, rather than empirical, discipline, which is studied more for its own sake than as a means by which to develop the law in relation to new issues. This is one of the problems of the legal theory of usul, which took a turning for the worse with the domination of taqlid around the fourth/tenth century. With the so-called closure of the door of ijtihad, the ulama resorted less and less to the sources of Shariah for finding solutions to problems. Instead of addressing social issues and attempting to find new solutions, the ulama of later ages (al-muta akhkhirun) occupied themselves mainly with the elaboration, annotation, abridgement, summaries and glossaries of the works of their predecessors. At first, ijtihad was discouraged. Then in the fifth/eleventh and sixth/twelfth centuries, scholars were restricted to tarjih, or giving preference to the opinion of one Imam or another on questions of fiqh. However tarjih was also discouraged and scholars were restricted to choosing between rulings within a single madhab [school of thought]. In this way the door to independent legal thought was shut and then barred.”
Kamali emphasises the lack of empiricism in the work of the ulama and the fact that they paid little attention to developing systematic rational knowledge regarding law and social structure. He also points out that usul al-fiqh was developed by private jurists working in isolation from government and often with unfriendly relations with government. This rift began with the Umayyad rulers and became deeper under the Abbasids.
He considers that usul al-fiqh could be considerably improved by integrating the Quranic principle of consultation into its procedures and also by becoming more connected with the practicalities of government.
Kamali reminds us that Shariah is not static:
“It is equally evident that the methodology of usul al-fiqh would have little meaning and purpose if the Shariah were meant to be a fixed and unchangeable entity. Usul al-fiqh is predicated on the idea of development and growth, and functions as a vehicle of accommodation and compromise between the normative values of Shariah and the practicalities of social change.”
Overall, he seeks some form of integration between the elected representative assemblies that democratic Muslim majority countries that have set up and usul al-fiqh.
Despite being 500 pages long, the book was easy to read because the importance of the subject matter and Kamali’s clear writing style keeps one reading. He brings out the differences between the various schools of thought, and is not afraid to offer his own opinions.
Reading the book will give both Muslims and non-Muslims a much deeper appreciation of the richness of Islamic thought. It shows the great care Muslims have taken over the interpretation of the Quran and Sunnah, and how they were able to extend these sources to generate new law as circumstances changed.
All too often, some Muslims assert that theirs is the only true interpretation of Islam, with their assertions often being accompanied by threats of takfir (pronouncement that a person has ceased to be a Muslim) directed against anyone who dares to disagree with them. Reading this book will equip Muslims to treat such assertions with the scepticism that they deserve.
I recommend it to everyone.