COLLECTIVE IJTIHAD·. A NEW DEVELOPMENT

The term Mujtahid refers to a single scholar. Since the tenth century it has been hard to find one individual who fulfilled the requirements to be Mujtahid. If there has been a Mujtahid, he stands at the lower ranking.

Another supporting reason for the employment of ijtihad jama’i is that it allows modern and complex problems to be resolved, and tends to reduce the fanaticism of the schools of Islamic law.^[1092] As a result, a number of Muslim scholars advocate the performance of ijtihad not only individually but also collectively. For example, Yusuf al-Qaradawi has stated that ‘the ijtihad which we need in our era is al-ijtihad al-jama’i. It is also considered as an apt solution for the crisis of thought in the Muslim world’.^[1093]

However, the term ijtihad jama’i has no single meaning. Historically, this term began to be used in referring to ijma’ (consensus). Mahmud Shaltut, for example, used this term in respect of ijma’ in the 1950s.^[1094] At this stage, there had not been any recent new development in the meaning of the term ijtihad jama’i, as ijma’ had been used since the fourteenth century.

Mu’tamar has decided that the Qur’an and the Sunnah are the main sources of Islamic law, and performing ijtihad is the right of every jurist who fulfills the requirements in the field of ijtihad.

The procedure to maintain the maslahah (benefit) when facing new cases or problems is by choosing laws from the schools of Islamic law which are suitable for that case, and if there is still no answer by doing that, then by performing al-ijtihad al-jama’i al-maddhabi (collective ijtihad by following the rule of the school dependently), and if this way is not enough (to solve the problems), then by performing al-ijtihad al-jama’i al-mutlaq (collective ijtihad independently).

This institution (Majma’ al-Buhuth al-Islamiyah) will organise or manage the efforts to perform ijtihad jama’i in both categories [dependent and independ­ent] when needed.^[1096]

It was unfortunate that the mu’tamar did not specify what it believed ijtihad jama’i to be.^[1097] It is interesting that in the proceedings of the mu’tamar, found in al-Taujih al-Ijtima’i fi al-Islam min Buhuth Mu’tamarat Majma’ al-Buhuts al-Islamiyah, Vol. 1, 1971 (seven years after the first mu’tamar was held in 1383 AH/1964 CE), no single article from eleven discusses ijtihad. The question is, how did the mu’tamar reach the conclusion about ijtihad jama’i if it did not discuss that theme during the first mu’tamar?

However, in 1983, al-Azhar University published a book, Majma’ al-Buhuth al-Islamiyah Tarikhuh wa Tatawuruh, which explains the history and the development of this institution. Unlike al-Taujih al-Ijtima’i fi al-Islam, this book consists of only the title and a summary of each article presented at the mu’tamar. Surprisingly, two articles about ijtihad are found in the latter book.

It is also hard to understand what the definition of ijtihad jama’i is, according to the Majma’. As far as can be determined, from the explanation of the mu’tamar (bayan al-mu’tamar), one should find that the idea of Islamic unity became the focus of the Majma’ to solve in problems Muslim societies. For example, the Majma’ would act for the unity of Islam, by eradicating the friction between Muslims over the cases in which schools of Islamic law may differ from one another.

If this is the reason why the Majma’ reached its conclusion about ijtihad jama’i (to eradicate the Asbab al-Khilafat al-Maddhabiyah), it is unclear whether the term ijtihad jama’i refers to the ijma’ or not, since the first mu’tamar suggested the performance of al-ijtihad al-jama’i al-Maddhabi (see the decision of the first mu’tamar above) which means that it recognised the existence of the schools, and it did not want to eradicate the schools.

Further, one may observe that although at the first mu’tamar, majma’ announced that it would organise and manage the implementation of ijtihad jama’i; however, at the following mu’tamar,^[1098] this institution neglected to provide technical guidance for collective ijtihad. From the proceeding of the next conference, it appears that the Majma’ sees itself as an upholder and proponent of Islam confronted with aggressive Western Spiritual Neo-Imperialism, especially in its Zionist garb. Mean­while, Dr Yusuf al-Qaradawi takes the view that from its very inception the Majma’ has been a failure; there has been too much political meddling, it failed to attract the most important foreign Islamic personal­ities and stayed essentially Egyptian. Since the 1970s its work has come to a halt and now it is but a building, with no meaning, which ought to be demolished.^[1099]

Subsequently, Dr Nadiyah Sharif al-‘Umari of al-Azhar University has provided some technical guidance on how to practise ijtihad jama’i in the Muslim world.

If the technical guidance by al-‘Umari is considered, then the second meaning of ijtihad jama’i emerges; that is, ijtihad which is performed at the international level. Actually, ijma’, as the first meaning of ijtihad jama’i, is also held at the international level. The differences between the first meaning and the second are, firstly, ijma’ does not require secular scholars to attend and, secondly, a decision of ijma’ must be reached by the consensus of all Muslims scholars (Mujtahids), not by a majority vote.

Harun Nasution, the late Rector of the State Institute for Islamic Studies in Jakarta, argued that ijtihad jama’i should be at the national level, not the international. His reasons were: firstly, each community has special problems which might be different from those of others. Sec­ondly, there are different interpretations and implementations of Islamic law in each community. Thus, he suggested that the institution of ijtihad jama’i should be present in every Muslim government.^[1101] This suggestion leads to the third meaning of ijtihad jama’i.

The first meaning, which equates the term with ijma’, as has been mentioned, is not a proper meaning in the context of new developments in Islamic tradition. The second meaning (collective ijtihad at the international level) and the third (collective ijtihad at the national level) are already implemented in the Muslim world.

At the international level, there is a Fiqh Academy (Majma’ al-Fiqh al-Islamiy), which was created at the decision of the second summit of the then Organisation of Islamic Cooperation (OIC) 1974 and inaugur­ated in February 1988.

The following can be seen as Mujtahid jama’i in the third meaning (at national level). In Egypt, for instance, the Dar al-Ifta is a government agency, established since 1895, charged with issuing Islamic legal opinions on any question to Muslims who ask for fatwas. The agency issues around 5,000 fatwas a week, including both official fatwas that the Egyptian Mufti crafts on important issues and more routine fatwas handled via phone and internet by a dozen or so subordinate muftis. In Saudi Arabia, in 1971 King Faisal established the Permanent Committee for Islamic Research and Fatwas (al-Lajnah ad-Da’imah li al-Buhuth al-‘Ilmiyyah wal-Ifta) whose task is to issue fatwas. Currently, its Chair is Sheikh ‘Abd al-Aziz (b. 1940). He is named Grand Mufti of Saudi Arabia.

In addition to those performances at international and national levels, there are many Islamic organisations in several countries that perform collective ijtihad. Indonesia is one example. Instead of the performing of collective ijtihad at the national level, there have been three main Islamic organisations that perform ijtihad collectively. One of them is the Nahdlatul Ulama, which has performed collective ijtihad since 1926, and which is even older than most international institutions mentioned above. This phenomenon leads to the fourth meaning of ijtihad jama’i: collect­ive ijtihad at the organisational level.

Despite the four different meanings of collective ijtihad, shared characteristics can be observed: Firstly, it is performed collectively. The justification for collective ijtihad comes from the Qur’an (3: 159 and 42: 38) which advocates shura (consultation). It also refers to the sayings of the Prophet:

I (‘Ali bin Abi Talib) said to the Prophet, ‘O, Prophet, [what if] there is a case among us, while neither revelation comes, nor the Sunnah exists’.

Secondly, the meetings are attended by jurists (fuqaha) and other scholars from various backgrounds. This procedure is followed since Muslim scholars appreciate and apprehend that problems in the modern era are far more complex than at the time of the Prophet 15 centuries ago. Accordingly, Muslim communities today expect Muslim scholars to provide broad answers to their problems, not only from Islamic law viewpoints, but also from other perspectives.

Thirdly, the meetings are assembled basically to confront new issues, which did not exist 15 centuries ago, and to reinterpret old judgments from modern perspectives. The current situation is completely different from that faced by Abu Hanifah, Malik, al-Shafi’i and Ahmad bin Hanbal (the founders of four main maddhabs). It is a collective attempt to show that Shari’ah is adaptable to social change.

Performing collective ijtihad at the organisational level leads to the plurality of fatwa. It is possible that a method, process and sources of fatwa from one organisation may differ from those of the other Islamic organisations, although they are in the same country, Therefore, it is possible to have many fatwas in one case. This is clearly a new development in the production of plurality of fatwas in the Islamic world.

IV.