The idea...

The idea, I believe, has its origin in a well-known verse of the Qur’an - ‘And to those who exert We show Our path’.6 We find it more definitely adumbrated in a tradition of the Holy Prophet. When Mu‘«dh was appointed ruler of Yemen, the Prophet is reported to have asked him as to how he would decide matters coming up before him. ‘I will judge matters according to the Book of God,’ said Mu‘«dh.

‘But if the Book of God contains nothing to guide you?’ ‘Then I will act on the precedents of the Prophet of God.’ ‘But if the precedents fail?’ ‘Then I will exert to form my own judgement.’7 The student of the history of Islam, however, is well aware that with the political expansion of Islam systematic legal thought became an absolute necessity, and our early doctors of law, both of Arabian and non-Arabian descent, worked ceaselessly until all the accumulated wealth of legal thought found a final expression in our recognized schools of Law.

These schools of Law recognize three degrees of Ijtih«d : (1) complete authority in legislation which is practically confined to be founders of the schools, (2) relative authority which is to be exercised within the limits of a particular school, and (3) special authority which relates to the determining of the law applicable to a particular case left undetermined by the founders.8 In this paper I am concerned with the first degree of Ijtih«d only, i.e. complete authority in legislation.

The theoretical possibility of this degree of Ijtih«d is admitted by the Sunni`s, but in practice it has always been denied ever since the establishment of the schools, inasmuch as the idea of complete Ijtih«d is hedged round by conditions which are well-nigh impossible of realization in a single individual. Such an attitude seems exceedingly strange in a system of law based mainly on the groundwork provided by the Qur’an which embodies an essentially dynamic outlook on life.

It is, therefore, necessary, before we proceed farther, to discover the cause of this intellectual attitude which has reduced the Law of Islam practically to a state of immobility. Some European writers think that the stationary character of the Law of Islam is due to the influence of the Turks. This is an entirely superficial view, for the legal schools of Islam had been finally established long before the Turkish influence began to work in the history of Islam.