AFTER the recent fatwa from Dar-ul-Uloom, Deoband, (some deny that a fatwa was issued) saying that a Muslim woman cannot work with strange men and if she did her earnings would be

haram (prohibited), a debate is raging on the need for ijtihad (reinterpretation of Sharia laws).

It is suggested that the doors of ijtihad that were closed after the sack of Baghdad in the year 1258 must be reopened. It must be pointed out here that there is no church in Islam; thus, there is no single authority which can issue its diktats to keep the practice of ijtihad closed or to reopen it. When Ibn Taymiyyah issued the fatwa on jihad after the sack of Baghdad he went against his Hanbali school and gave the fatwa based on his own authority. The Hanbali school requires submission to the ruling authorities.

Let us also point out that ijtihad has been part and parcel of the process of lawmaking in Islam. The root meaning of ijtihad (derived from jahada) is to strive, to make an effort. Ijtihad is the process whereby a scholar makes his utmost intellectual effort to understand a new phenomenon and find a solution to it that is acceptable to Islam.

Technically, ijtihad was first applied by Maadh bin Jabal, who was appointed as the governor of Yemen by the Prophet (PBUH) of Islam. When asked how he would govern when he did not find a clear ruling in the Quran or the Sunnah, he said “Ana ajtahidu”, i.e. “I will strive” (to understand the problem myself and find a way out). The Holy Prophet approved of this reasoning.

All great imams and founders of different schools of Islamic law practised ijtihad to arrive at solutions of various problems they confronted in their own time. The word fiqh, which is often used for Islamic jurisprudence, also means to know, understand and comprehend. Hence fiqh became an integral part of Islamic jurisprudence; experts of Islamic law are referred to as faqih.

The process of lawmaking in Islam has been most dynamic and spread over nearly six centuries. It represents one of the greatest lawmaking ventures in human history.

When Islam spread to non-Arab cultures in Asia and Africa, the ulema were faced with new problems and often baffling challenges. They exerted themselves intellectually and tried to find solutions in the light of Quranic pronouncements and values and the sunnah of the Prophet. They also invented useful tools like qiyas (analogical reasoning) and ijma, i.e. consensus among experts.

Why were these tools necessary? Because often the ulema could not find solutions directly in the Quran and the Sunnah to the problems that arose in their respective times. The process of lawmaking had begun right in the beginning when conquests brought Muslims face to face with new problems and varying social practices. Thus, the dynamic spirit of Islamic law was suffused in the very process.

It never ignored objective conditions and new situations that arose from time to time in societies that were not Bedouin and tribal (in which Islam was born). The stagnation in the process of ijtihad was not because of the sack of Baghdad but a result of stagnation in Muslim societies after the sack.

A new process of change began again during colonisation of Muslim lands when Islamic thinkers came, once again, face to face with modernity. Modernity posed new challenges before them and many great Islamic thinkers rose to the occasion and began to reformulate specific injunctions.

There were shining examples of brilliant thinkers, like Muhammad Abduh who rose to be the grand mufti of Egypt. He issued a series of new fatwas on postal saving interests, a fatwa for South African Muslims allowing them to eat meat of permissible animals slaughtered by Christians, the necessity for modern education and so on. He was one of the most dynamic thinkers of the 19th-20th century. Rashid Raza, his disciple, though not as bold, continued his work.

Sir Syed Ahmed Khan (and his team) in India also did commendable work during the 19th century. His commentary on the Quran is a seminal contribution and represents the dynamic spirit of ijtihad and fresh theological thinking. But unfortunately he had to discontinue writing after facing stiff opposition from conservative ulema. What we have of his commentary (which was not available earlier) has been republished by the Khudabakhsh Library, Patna, in two volumes.

Sir Syed's work was continued by great scholars like Maulvi Mumtaz Ali Khan, Maulvi Chiragh Ali and several others who once again infused a dynamic spirit in Islamic law. So what is needed today is solid scholarship and intellectual courage to break the stagnation of Islamic law instead of lamenting that ijtihad is a closed deal. It is not; it must be undertaken to address the many new issues Muslim societies are facing today.

The writer is an Islamic scholar who also heads the Centre for Study of Secularism & Society, Mumbai.