Oct 21, 2010, 3:29 PM
Istihsan, which is a mode of ijtihad, is regulated by a methodology of its own. Siyasah, on the other hand, is more of a policy decision, and, as such, a tool in the hands of political authorities. Only the ruler and judge make siyasah-based decisions, whereas istihsan is resorted to by political authorities as well as by the judge or mujtahid.
Siyasah shar'iyyah has bee applied extensively in the spheres of criminal law and criminal procedure as well as in the particularization of court jurisdiction (takhsis al-qada). In the area of substantive criminal law, the Shariah has established only a few specific penalties, known as hudud, for serious crimes. As for the rest, the ruler is granted discretion to introduce measures, both procedural and substantive, to prosecute and punish criminal conduct. Twentieth-century reforms in almost all Muslim countries included the introduction of specialized courts and tribunals, side by side with the Shariah courts, to adjudicate e.g. in commercial and labor disputes, which follow procedures different from those of the Shariah courts.
Siyasah Shar'iyyah can be utilized as an instrument of harmonization between the Shariah and law in a manner similar to that employed in the past. To pursue the higher goals and objectives of the Shariah and civil law at the expense of a departure from existing fiqh rules or statutory law on grounds of equity and fairness remains as valid today as it was in the past. In times of emergency, natural calamities and war, there may be cases and situations in which decisions based on siyasah shar'iyyah must be taken to address the situation, at the expense of a departure from a particular ruling of the existing law and Shariah.
The ruler may deem it necessary to achieve greater integration between the Shariah and civil law to formulate policy decisions and guidelines about how the two may be more effectively harmonized. This may be done, in some instance, through court decisions or by issuing instructions and policy guidelines that may lead to new legislation. An initiative has been taken, for example, in
Similar projects might advance the objective of harmonization in specific areas of Shariah and civil law. For instance, the Shariah doctrine of options (khiyarat), particularly the option of defect (khuyar al-'ayb) and the option of stipulation (khiyar al-shart), are more consumer protective and should perhaps be integrated into the body of law that regulates the sale and purchase of goods, with a view to enabling the customer to return faulty objects upon discovery of a material defect, even after completing the purchase thereof. Similarly, the Shariah law of pre-emption (shuf'a) which gives the owner of real estate a priority right to purchase when adjacent property has been offered for sale may be also adopted into the civil law. The law of shuf ‘a may be deemed to promote a better pattern of neighborhood relations, and a more effective way of reclamation of barren lands in the countryside. If these objectives are conducive to public welfare, they may be adopted in the land code and harmonized within the fabric of the applied law of the country concerned. If the law imposes limits on land ownership (e.g., 100 acres per person), then the right of shuf'a and the legal limits on land ownership may be subjected to that statutory limits. This would be an instance of harmonization between the law of shuf’a and legal limits on ownership.
19. interpretation and Ijtihad: The debate over ijtihad in modern times has give rise to two different positions. One position sees the Shariah as a criterion of authenticity that needs to be observed if one is o preserve the purity of ijtihad. The focus of this position is adherence to the guidelines of usul al-fiqh, and rules governing inferences from and interpretation of text (al-istinbat min al-nusus). This is a text-bound method that does not pay much attention to attendant realities in society, and its experiences are expected to conform to the textual mandate.
The second position, which is more pragmatic, holds that contemporary ijtihad should take its cue from social science research methodology, albeit with adjustments that may be necessary to retain the basic Islamic characteristics of the methods in question. The hallmark of this position is its attention to reality on the ground. A theoretical plan or hypothesis is formulated, recognized methods of research are employed, and results are judged by conformity of the hypothesis with actual findings. The results are open to criticism and challenge through further investigation. From this perspective the observable world, nature and social reality are seen as the signs of God in His creation (ayat Allah fi'l-khalq). Interpretation of the text is seen as an attempt to discover the manifestations of God's laws in His creation and to discover reality through sense perception and reason.
Notwithstanding their different approaches to interpretation and ijtihad, the advocates of positions, the idealists and the realists, tend to agree that Islamic authenticity cannot be achieved by adherence to only one of these approaches. This is because Islam itself is emphatic on attention to both text and reality. General consensus (ijma') and custom ('urf) are valid bases of decision-making and judgment even in the methodology of usul al-fiqh. A correct Islamic methodology must merge these two approaches into a unified whole and take this as the cornerstone of the methodology of ijtihad.
The persistent decline of ijtihad and the dominance of taqlid are a result not of shortcomings in the theory of ijtihad but of socio-political climate that prevails in the Muslims world. Even after the so-called closure of the door of ijtihad ca. the 4th/10th century, a persistent rift between the ulama’ and the state, followed by the fall of Baghdah (1258 CE) ad defeat of Muslims in al-Andalus, suffocated the once thriving spirit of originality and ijtihad among Muslims. This tendency has been reinforced, more recently, by colonial rule and its aftermath, the ubiquitous dominance of the statute book, and the resulting secularization of law and government.
The theory of ijtihad and what it says on the qualifications of a mujtahid also require that due attention is paid to prevailing social conditional. The usul al-fiqh methodology recognizes custom ('urf) as a source and requires the mujtahid to be knowledgeable of the mores and customs of his society. In fact throughout history, ijtihad and fatwa have been the main vehicles of keeping the Shariah abreast with social reality. And fatwa and ijtihad are changeable with the change of circumstances. However, the much talked about ijtihad has not become an engaging phenomenon of law and government in Muslim societies and the methodology of usul al-fiqh, which was designed to encourage ijtihad, has fallen short of achieving that purpose. Hence, we reach the conclusion, tentatively, that new and more pragmatic approaches should be explored. I believe that our proposed methodology of harmonization is cognizant of the need to utilize the resources of usul al-fiqh and the guideline they offer for contemporary ijtihad. Our methodology makes ijtihad more pragmatic by using it as a tool of harmonization the acceptable part of civil law with the Shariah.
Fatwa and ijtihad are broad subjects about which much has bee written in English, for which reason I propose here to discuss only their relevance to harmonization. Another connection between ijtihad and harmonization is that in attempting to harmonize aspects of Shariah and civil law, a need may arise for flexibility or adjustment in the existing rules of Shariah or in those of the civil law. The amendment of an existing statute normally requires implementation of a procedure contained in and explained by the constitution or the law itself. A change in the substantive laws of Shariah or fiqh, on the other hand, may require recourse re-interpretation of the Quran and hadith. A practical suggestion in this connection may be to point out the relevance of siyasah shar'iyyah.
To be continued