MATEC Web of Conferences 150, 05056 (2018) https://doi.org/10.1051/matecconf/201815005056 MUCET 2017
The Theory of Interpretation in Solving Contemporary Legal Issues: With A Focus on the Instrument of Ijtihad
Abdulrahman M.A.Albelahi1,*, A. Ali1, Faten Mohmed1, and Metwally Ali1
1School of Human Development and Technocomunication, Universiti Malaysia Perlis, Perlis, Malaysia
Abstract. Since the beginning, legal theory has concerned itself with the establishment of principles and precepts that govern the procedure of legal interpretation, from the initial stages of the judicial reasoning down to the promulgation of ruling and their implementation, Islam is a total way of life. Muslims are obliged to abide by the rules of Allah in every aspect of their lives, always and wherever they live. However, the actual rules of Allah as given in the Qur’an and the sunna are limited. The Qur’an contains only six hundred verses directly related to laws, and there are approximately two thousand hadiths. The function of interpretation is to discover the intention of the Lawmaker of the matter, therefore, interpretat primarily concerned with the discovery of that which is rot self-evident the objective of interpretation is to ascertain the intention c the Lawmaker with regard to what has been left unexpressed as a matter of necessary interference from the surrounding circumstances. Sometimes, the textual sources did not provide detailed guidelines in which to derive the law, and then the role of interpretation is important to determine the law. In Islamic law the role of Ijtihad undoubtedly important in order to meet new problems. But some of the Jurist contended that the role of Ijtihad had ended and we have to follow the rule that has been stated. An explanation given to this trend is that a point had been reached at which all essential question of law had been thoroughly discussed and further deliberation was deemed unnecessary. In Common law, man-made law and legislation are related to one another within a philosophy of law. Parliament makes law and it is the duty of the courts to give effect to them if properly enacted. While courts may rule that a particular statute or section is invalid for various reasons such as unconstitutionality, they cannot say, "We shall change this Act because it is not appropriate". That function belongs to Parliament (Wu Min Aun 1990: 120). So as in Islamic law, the Lawmaker is Allah S.w.t and the sacred text (Quran) is legislated due to His intention whereas Sunnah of the Prophet Muhammad is enacted due to the Prophet's intention. Therefore, Ulama of Usul Fiqh, in making any Ijtihad, they are du y bound to be guided by Quran and Sunnah.
1 Background Search discover secondary divine legislation (laws). Ijtihad is defined in different ways. Islam, the fastest growing religion in the world, with The terms 'mujtahid' and 'ijtihad' are nowadays over 1.2 billion followers, has the astounding capability among those which have acquired great currency, even of adapting to ever changing conditions. Recent sanctity, among the Shi'ah. One would be surprised to international events have intensified interest among know that the term ijtihad was formerly, from the times religious leaders, scholars and educational professionals of the Prophet (S) and for several successive centuries, a about the way Shariah (Islamic law) is taught & adopted Sunni term. It became Shia after undergoing a change of in Muslim society. The Quran has given the fundamental meaning, or what would be more precise to say, the term education and knowledge but the Muslim scholars must remained specifically Sunni for several centuries and interpret this fundamental knowledge wisely in became 'Muslim', in the wider sense, that is, after accordance with the spirit of the time in which we live undergoing a change of meaning and dissociating itself .Shariah (Islamic law) is subject to interpretation in order from its earlier particular sense. to meet the ever-changing needs of society. Its guiding 'Ijtihad' in the Sunni Tradition Sunni scholars principles were designed to protect the individual and the narrate a hadith that the Prophet (S), while sending society so that it was not established as a set of fixed Mu'adh to Yemen, asked him as to on what he would rules. To respond to the changing needs of Muslim base his judgment. “In accordance with the Book of societies, muslim jurists and scholars have relied on the Allah”, replied Mu'adh, “But what if you don't find it well-established process of change, ijtihad. This process there?” inquired the Prophet (S). “According to the is based not only on the holy book (Qur’an) and religious Sunnah of the Apostle of Allah”, replied Mu'adh. “But tradition (Sunna), but also on reason, deduction, and what if you don't find it there too?” asked the Prophet (S) prioritization. Ijtihad is practiced by the jurisprudent to again. 'I will exert my own opinion', replied Mu'adh. The
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© The Authors, published by EDP Sciences. This is an open access article distributed under the terms of the Creative Commons Attribution License 4.0 (http://creativecommons.org/licenses/by/4.0/). MATEC Web of Conferences 150, 05056 (2018) https://doi.org/10.1051/matecconf/201815005056 MUCET 2017
Prophet (S) put his hand on Mu'adh's chest and said The role of ijtihad had been recogni ed in the Quran and “Thank God for assisting His Apostle with what he Sunnah for e ample in loves.” They have narrated other traditions on the subject Surah AI-Ankabut 69 And those who strive for Us - to the effect that either the Prophet (S) directly We will surely guide them to Our ways. And indeed, commanded his ompanions to e ercise ijtihad in case Allah is with the doers of good. they could not ind a rule in the Book and the Sunnah, or to the effect that he approved of the practice of his hich means, ''And those whose strive in ur (cause) ompanions that practiced ijtihad. To the Sunnis, this is e will certainly guide them to ur Paths. or verily something definite, confirmed by consensus (ijma'). od is with those who do right . This ayat clearly About the Holy Prophet (S) himself, they have said that allowed the foundation of the principle of Ijtihad to meet some of his injunctions were purely based on personal the growing of legal ruling in the future. It is because ijtihad not on revelation. ven in their works on Quran only provides basic principles and few details jurisprudence ('ilm al-'usul) the problem is raised legal provisions, but mostly it needs elucidation and whether or not the Prophet (S) could make errors in his elaboration of those matters. This process of inference is personal ijtihad. They have narrated traditions in this intended to meet the diverse needs of ever growing life regard and transmitted reports of the ompanions as to in the developing society in the future. By this inference how they justified their own actions or those of others on and logical deduction, then all future problem of human the basis of ijtihad. e abstain from quoting any of them society could be solved by evolving guiding rules here for the sake of brevity. Another surah which encourages to search a knowledge so as to arrive at sounh, decisions, can be seen in Surah 1.1 Definition of Ijtihad An isa' 3: And when there comes to them information about [public] security or fear, they spread it around. Ijtihad is defined literally as striving, e erting, self But if they had referred it back to the Messenger or to endeavor or making an effort to deduce a principle and those of authority among them, then the ones who [can] e erting oneself to the utmost. hile legally it refers to draw correct conclusions from it would have known the striving of the jurists to the point of mental about it. And if not for the favor of Allah upon you and e haustion to derive principles and rules of law from His mercy, you would have followed Satan, except for a evidence found in the sacred te ts of sources (Codd few. 1999: 115 Mashood A. Baderin the Islamic legal Theory, hich means, And when there comes to them tidings of volume .) safety or fear, they spread all around, whereas if they had However, it has also been described as a rethinking referred it to the Prophet and to such other persons as are (Fatawa Qadi Han, (I-VI), Eqypt: Bulaq RAHMAN, in authority those among them who can search out of Fazlur (1962). "Post-Formative Developments in IsIam” knowledge of it, would have known it . in: Islamic Studies, Karachi, 1, 4 RIDA, M. Rashid The term used in this verse is 'to such other persons as (1324AH)) or most commonly, as independent are in authority' or ulul amri in Arabic means that men reasoning. who are in authority, or who are in a position to search It is an activity, a struggle and a process to out the knowledge. The Quran, while thus encouraging discover the law from the te ts and to apply it to the the process of ijtihad, indicates that the function should facts awaiting decisions. The jurist stay as close to the be carried out by the Prophet and by ulul amr or men in meaning of the te ts as is possible. The purpose is to authority, power, wisdom and understanding. discover the true intent of the awmaker. The famous and well known hadith, where Mua bin In jurisprudential sense, the meaning of Ijtihad is abal has been appointed as the overnor of emen The e ercising of one's opinion or judgment. It means that in Prophet asked him a case where the ivine dicta is absent or implicit, one Mua , by what rule would you be guided? He should see what would be more acceptable to one's replied, By the aw of the Quran . But if you find no intelligence and taste, or nearer to truth and justice, or direction therein? asked the Prophet. Then I will act analogous to other Islamic laws and to adopt it for his according to the Sunnah of the Prophet , replied Mua judgment (Mutahhari ). But what if that also does not help? he was again asked. Then I will e ercise my judgment and act accordingly He replied it. The Prophet raised his hands 1.2 Basic of ijtihad in satisfaction and thankfulness to od and uttered, 'Praise Ijtihad is the most important source of Islamic law ne t be to Allah, who guides the Messenger of His Apostle as to the Quran and Sunnah. The main difference between He pleases . ijtihad and the revealed sources of the shariah lies in the This hadis shows the approval of the principle of fact that ijtihad is a continuous process of development ijtihad by the Prophet. This is involving the e ercise of whereas divine revelation and Prophetic legislation have one's own judgment when there are no specific directions discontinued with the demise of the Prophet. in the Quran or the Sunnah. It further shows that during the Prophet time, the companions were aware of the
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principle of ijtihad and it was freely resorted to when The role of ijtihad can be seen during the ti e of aliph necessary in order to eet new circu stances. ar and Ali practiced the ijtihad even in the presence ubse uently co panions followed the principle of of a clear uranic and unnah injunctions. o in the ijtihad in order to eet the changes of ti e and society odern ti es ijtihad is used in a largely peripheral and it was proved to be successful. anner and cannot be used in any other way unless there is a co plete overhaul of the legal syste . Therefore to be reused properly within a new sla ic fra ework to 2 Procedure of Ijtihad effect odern legal refor then ijtihad will have to be ince ijtihad occurs in a various for s such as uran odified. unnah iyas istihsan aslahah custo urf etc each n order to i ple ent ijtihad in the odern ti e of this is regulated by its own rules. There is in other then it ust be freed fro the li itation i posed on it words no unifor procedure for ijtihad as such. previously Al Gha ali e ployed dialectical ethods in ro the viewpoint of the procedure that it presenting his theology and also clai ed for hi self the e ploys ijtihad ay occur in any of the following four right of independent I ti a which had been curtailed by varieties. irst in the for of a juridical analogy this is the orthodo y Gatje e r an an its e e esis found on an effective course. The second variety of . The e a ple of the li itation is that the ijtihad consists of a probability without the presence of re uire ent of the ujtahid itself which is uite any effective course such as practicing ijtihad in regards i possible and hardly be found especially in the odern to ascertaining the ti e of solat or the direction of ti es. iblah. The third type of ijtihad consists of the interpretation of the source aterials and the deduction 4 Qualifications of Mujtahid of ahka fro e isting evidence. This type of ijtihad is called e planatory ijtihad which takes priority over the nterpretation will be reliable only of those who engage analogical ijtihad. The last type of ijtihad referred to as the selves in in uiry and investigation having deep ijtihad istislahi which is based on aslahah and seeks to knowledge and insight in legal atters supported by deduce the ahka in pursuance of the shariah which technical e pertise in deter ining the eaning i port ay take the for of istislah juristic preference the and applicability of a particular injunction. The obstruction of eans etc. a hafii however accepts interpreters ust have an ability to understand worldly only the first type na ely analogical ijtihad but to the affairs as well as public policy. This can be referred to ajority of ula a ijtihad is not confined to analogical urah Aanbyaa Ayat . e esto e t e same deduction and ay take the for of any of the foregoing avo r pon Davi an olomon e all en t e ave varieties assa F ement re ar in a tilla e into i t e s eep o I I D I I F I I some people a stra e at ni t an e ere I D itnesses to t eir ement e i e olomon to t e As far as sources of law are concerned uran ri t ver i t an e a rante ea o ranks in priority and followed by the unnah. hen the t em ement an no le e e ma e t e atters are silence both under the revealed sources of mo ntains an t e ir s ele rate t e praise o law then the rule of interpretation plays an i portant lla it Davi It as e o i all t is. o it is role. Accordingly ijtihad is also accounted as one of the clear fro the above state ent that not everybody is sources of sla ic legislation like the uran and ualified to for a valid ijtihad but only certain people unnah although not as a source parallel to these two. who had fulfilled all the re uire ents to be a ujtahid. As long as a rule is to be found in the uran and the eiss in his article said that if every an was a unnah the need for ijtihad does not arise. ujtahid there would be no law in the ordinary sense every an would be law unto hi self. The i plications which this would have for society can hardly be co prehended. Therefore it is in interest of social 3 The Need and Justification of Ijtihad stability that not all choose to ac uire the ualifications in Modern Times which are prere uisites of ijtihad A A ini T HA nterpreting sla ic rinciples .The ujtahid The role of ijtihad cannot be denied due to changes in should have knowledge of the uran and Hadith he the society and circu stances. A new role has to be should be able to distinguish the nasikh fro the for ulated in order to eet a odern era in which the ansukh the a fro the khass the uj al fro the need and justification of ijtihad in the odern ti es is ubayyan and the uhka fro the utashabih. He very i portant. should be fa iliar with the uranic vocabulary and ohd Abduh had advocated the need for fresh ter inology know the circu stances in which a reinterpretation of the principles found in the divine particular verse was revealed and have knowledge of the revelation as the basis of the legal refor s. He also successive generations of narrators and trans itters of argued the ijtihad was not only the right of odern day hadith. He should also be able to reconcile the apparently jurists but the only way to which sla could adapt itself conflicting traditions. n addition to all that he should to the needs of today s society Glassse e on ise practice ijtihad and e ercise his personal judg ent in n lopae ia o Islam . particular case.
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t see s at these ualifications in certain aspects are very person. The prohibition is derived fro the hadith of good where they are very e perts in sla ic rophet o not ask for a wo an in arriage when jurisprudence and sla ic laws and they can answer all another usli has already done so . The ratio decided the uestions raised to the . ut on the other hand these of this prohibition lies in the fact that this would violate ualifications hardly to be achieve at the present ti es. the brotherhood and unity a ong fellow usli s. This ut indeed they should be able to know all the related rule can si ply be applied to other si ilar contract such fields of the uran and unnah. as sale of property hire purchase rent etc. According to al hawkaniyy one who atte pted to n The or of nterpretation of the ource aterials al conduct ijtihad had to ac uire a certain degree of ran knowledge and other re uire ents The uran is the first and i portant sources of sla ic law. f the uran proves so ething it is sufficient to understand the sources. considered binding. The related uranic verse And e sent not before you e cept en to who e revealed ertain branch of non religious ur essage . o ask the people of the essage if you sciences yet atte pting to understand the shariah. . do not know. A ahl provides the authority to ew the actual conditions so e ula a has aptly pursue ijtihad and conte plated of the e istence of observed that. ualifications re uired of a ujtahid learned an at all ti es. As far as uran is concerned would see to be e tre ely oderate and there can be its authenticity is un uestioned. hat is e pressed in the no warrant for supposing that en of the present day are uran is the e pression of the absolute authority of God. unfitled to. ut it is fairly clear that the uran which is essentially a He had ade relatively easy and possible the religio oral scripture does not provide co prehensive re uire ent for ujtahid since he is the ost radical provision for the for ation and the develop ent of the a ong his conte porary infor ers towards the reopen shariah. The uran only supplied ele entary rules for the closing of the door of ijtihad . o e aliki few cases Hidayatullah The rigins of sla ic aw Hanbali and ahiri ula a also held the view that when a onstitutional ights oundation . person is learned in a particular area of the shariah he o we ay say that uran only provides general ay practice ijtihad in that area only. This would be no principles and only a few of nor ative verses which of way violating any of the accepted principles of ijtihad course need to be interpreted especially for the changes adran an aith ased G s Advance nterfaith of the society of the odern ti es. n other words it econciliation . ust be interpreted in the light of odern ages. o e observers have suggested that the practice of Therefore the uran contains a significant nu ber of ijtihad s abandoned partly because the ualifications verses with legal bearing. t is these verses which re uired for its practice w re ade so i aculate and provide usli s raw aterial out of which legal rigorous and were set so high that they were hu anly elaboration were ade and around which their legal i possible of fulfill ent assab revious speculation re ained focused. or e a ple the uranic source . This is however a i plausible supposition verse which needs further elaboration as follows which has been advanced ainly by the proponents of ro i ite to o or marria e o r mot ers ta lid with a view to discourage the practice of ijtihad. a ters ro i ite to o or marria e are o r Ac uire such ualifications mot ers o r a ters o r sisters o r at er s sisters o r mot er s sisters o r rot er s a ters o r sister s a ters o r mil mot ers o n rse 5 Instruments of Ijtihad o o r sisters t ro n rsin o r ives mot ers an o r step a ters n er o r ar ians ip orn 5.1 In the Form of Juridical Analogy (Qiyas) f new cases occurred which were not provided in the o o r ives nto om o ave one in t i o uran the unnah or the consensus of opinion the ave not one in nto t em t ere is no sin pon o jurists found the co pelled in seeking solutions to n also pro i ite are t e ives o o r sons o are have recourse to reason logic and opinion for e a ple rom o r o n loins an t at o ta e in marria e applying iyas. However they were not entirely free or t o sisters sim ltaneo sl e ept or at as alrea unrestrained for they had to adhere to scientific rules and o rre In ee lla is ever For ivin an pre ise which they classified in a new category known er i l I isa . t is unani ously agreed that as analogy. The jurists derived this new source fro the arriage with one s other and daughter is prohibited. funda ental judicial pre ise that all rules are based However the word daughter could be taken for its upon objectives and interest and those objectives and literal eaning which would be a fe ale child born to a interests are the causes for the rules. Hence fro the person either through arriage or ina. udicially the rules they deduced their causes. Having done so in word daughter can only ean a legiti ate daughter. reference to any particular proble they were able to urists had e ercised ijtihad to co e to the own apply the sa e rule to another proble whenever the conclusion. or e a ple Hanafi stated that this cause for both was identical iadeh A tudy of a prohibition applies to both legiti ate and illegiti ate evivalist ove ent in sla . daughters whereas hafii opined that this prohibition A case in point is the prohibition of seeking only applies to legiti ate daughters. ven the child born arriage with a wo an already engaged to another out of wedlock but the father of the child stills the sa e
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an and considers the father of the child then he cannot ac uired by the during the arriage by their joint be per itted to arry his own child. efforts. n the case of Hajah ijah bt. a al . ati ah bt. at iah riggs says that since 5.1.1 Sunnah there is a clear recognition on jointly ac uired property Traditional theory is that unnah confir s the uran in any states and courts thus any regulation assists in its interpretation or fill in the lacunae. The concerning jointly ac uired property is to be part of the unnah is the second ost i portant source of sla ic personal law in the state. Tun alleh Abbas in his law. esides getting proof of continuous ijtihad in judg ent in the case of oto bt. Taha v. aafar bin hadith the unnah itself uha ed also says that jointly According to A aru i needs ijtihad. or e a ple ac uired property is a custo practiced by the alays where the rulings of unnah were changed in order to usli . Thus since custo has been recogni ed as a reflects the changes of circu stances. The rophet had basis of law ijtihad has been ade in deter ining the granted the right to attend the os ue for congregational validity of jointly ac uired property under sla ic law in prayer. ue to change of circu stances however alaysia. Aishah later changed this ruling as she concluded had the essenger of God observed what was happening to wo an he would have forbidden the fro attending 5.3 In the form deducting hokum in pursuance the os ue A Gha aliyy . of the purpose of shariah
5.3.1 Maslahah 5.2 In the form of a probability without the presence of any effective course According to A Gha ali aslahah consists of consideration which secure a benefit and prevent a har but har onious with the objective of shariah that is to 5.2.1 Custom protect five values eligion life lineage intellect and usto is defined by so e jurists as recurring practices property. The usefulness of this principle of law in which are acceptable to the people of sound nature. conte porary issues is beyond doubt since both uran Thus the legal theory of sla on the whole does not and unnah do not te tually cover current issues. recogni e custo as an independent or for al source of The sla ic eligious ouncil of ohore issued a law. ut the ula a accepted the authority of general fatwa effective as of ove ber which re uires usage satisfying the juristic standards for the purposes andatory H A blood test for prospective usli of interpretation and application of legal rules dealing couples prior to registration of arriage. eports with worldly affairs. They ad itted a li ited indicate that the fatwa was under consideration over a contribution of custo in the growth of law. The period of onths prior to its eventual approval and ainspring of this growth was however the interpreter i ple entation. pon announcing its proposed ujtahid antillana . i ple entation the enteri esar of ohor ade a brief o custo whatever is the degree of its utility state ent in which he said that the fatwa was taken in therefore beca e law i any judicial sense unless it was accordance with the principle of syara in sla which authoritatively recogni ed. n order to constitute a valid safeguards religion life property intellect and lineage. basis for legal decisions custo s ust be sound and atwa can beco e the binding law if the sla ic reasonable. t has been accepted as a binding authority eligious ouncil sub its it to the legislative authority and been accepted in order to solve conte porary for ratification either by proble s. n alaysia the ost popstar. usto which arlia ent or the state legislature as ay be the case has been recogni ed and enacted by sla ic law via the arnali . ins ent of ijtihad is jointly ac uired property. t was The shariah doctrine of aslahah entitles the defined as property ac uire during the subsistence of a political authority and those in charge of the co unity arriage by a husband and wife out of their joint affairs the ulul a r to rn decisions enact legislation and res urces or by their joint effort at . A clai issue fatwa which are designed to secure the public over the jointly ac uired property often arises fro welfare. t is the sla ic duty of the govern ent to divorce or fro the death of either husband or wife. t is pro ote and advance the aslahah of the people. clear cut evident that there is no specific provision under aslahah as such is an i portant goal and hilosophy of sla ic law concerning the said property and yet the sla ic govern ent. clai of jointly ac uired property has been practiced in courts and judicial decisions on the clai are ainly 5.3.2 Istihsan based on custo . t is to be noted that ost of the states in alaysia The jurist who resorts to istihsan ay find the law to be have special provisions concerning A . or instance either too general or too specific and infle ible. n both section of the elangor sla ic a ily aw cases istihsan ay offer a eans of avoiding hardship nact ent o. of provides to order the division and solution which is har onious with the higher between the parties husband and wife of any assets objectives of the shariah. or e a ple the ruling of
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aydina ar where during fa ine he was not enforce atwa or ijtihad that is based on interpretation and a hadd penalty of the a putation of the hand for theft. personal opinion of the ufti is nor ally not binding on aydina ar had departed fro e isting law in order to anyone unless and until it is published in the tates s preserve public interest and justice. ga ette. The i portant ele ent in fatwa is that it always stihsan enable a choice between alternative involves a uestion and an answer to a new case but if a solutions it conte plates the relatives erit and huku is issued without any uery it is no called fatwa de erits of each of the alternatives. n this sense but a ere ijtihad. istihsan offers considerable potential for innovation and n alaysia atwa o ittee of every state is for i aginative solutions to legal proble s. The uestion established under the respective tates Ad inistration of is istihsan is not erely to find a solution to a particular sla ic aw enact ents. The o ittee shall consists proble but to find a better solution which is already of the ufti eputy e ists. ufti two e bers of the ajlis no inated by Generally speaking the scientific and edical the ajlis not less than two fit and proper persons to be advance ent pri arily ai at the preservation of so e appointed by the ajlis and an officer of the sla ic benefit in sla especially in the area of bio edical eligious epart ent of the particular states to be technology. or e a ple the donation of hu an body appointed by the ajlis who shall be the secretary. organs in its conte porary state are not te tually covered henever the ufti proposes to ake a fatwa he shall by uran and unnah and is the new issue which the call for a eeting of the o ittee for the purpose of ancient jurists not dealt with. t is agreed a ong the discussing the proposed fatwa. efore the ufti akes jurists that the basic rule is the forbidding of the fatwa he ay cause such studies or research to be utili ation and e ploitation of the parts of the hu an conducted as he ay direct and a working paper body either because of its dignity or value or because no prepared. legiti ate use can be ade of the parts. This prohibits n issuing any fatwa or certifying any opinion the the donations of hu an body organs. This is based on ufti shall ordinarily follow the accepted views of urah An isa Allah says a hab hafii. However if the ufti considers that you who have believed do not consu e one another s following the view of the a hab hafii will lead to a wealth unjustly but only in lawful business by utual situation which is repugnant to public interest the ufti consent. And do not kill yourselves or one another . ay follow the accepted views of a hab Hanafi ndeed Allah is to you ever erciful. And whoever does aliki or Hanbali. or e a ple the use of local that in aggression and injustice then e will drive hi currency to replace the use of rice in akat fitrah into a ire. And that for Allah is always easy.Which pay ent is in accordance with the opinion of a hab means, "Nor kill (destroy) yourselves, for verily God Hanafi huaib . had been to you most merciful". The ufti shall ake and publish in the Ga ette a fatwa on any unsettled uestion relating to sla ic law on the direction of the ang di ertuan Agong or aybe he The rophet also said do so on his own initiative or on the re uest ade by The breaking of the dead s person bone is just like the letter addressed to a ufti. pon publication in the breaking of his bone while alive”. Ga ette a fattwa shall be binding on every usli n the other hand as a result of the advance ent in this residents in the particular state as dictate this religion edical issue there is need for a new ruling. The and it shall be the usli s duty to up little unless he is recognition of the jurists right to e ercise istihsan in per ittee by sla ic law to depart fro the fatwa donation of hu an bod organs as a result of scientific because of personal observance belief or opinion. advance ent re uires departure fro the principle by A fatwa shall also be recogni ed by all syariah courts i allowing the donation to prevail over such prohibition. the particular states as authoritative of all atters laid Therefore based on the right of the jurists to e ercise down but not civil courts. However once the civil courts istihsan that is to choose the least of the two har s in call it it should be observed and respected. order to reject the worst of the two the donation of hu an organ is per itted. 7 Problem There are certain ualifications to be fulfilled before the 6 Fatwa Making Procedure in Malaysia person can be called as ujtahid. or e a ple he ust possess t e knowledge of the sources of the shariah atwa eans a response given by a ualified person who knowledge in Arabic. The proble faced at present is e pounds the ruling shariah on a particular issue that is that despite the door of ijtihad having been declares put to hi by a person or a group of persons. atwa also widely open but still we fail to detect any ove ent can be defined as a for al legal opinion given by a towards the regeneration of ijtihad. There are opinions ufti in an answer to a uestion sub itted to hi either also which stated that ualification of ujtahid is heavy by a judge or private individual shak . and e acting. According to so e scholar this is another atwa is often used synony ously with ijtihad ta lid oriented assertion by those who wished to bring both of which involve intellectual effort of a ualified ijtihad to be closed. scholar to provide shariah based responses to real issues.
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ree evelo en of he law was alrea e is e . in er re a ion an allow for alis o s ifle an sear h igi i was grea l in rease b he evelo en of he for r h an he e i able a li a ion of legal r les he o rine of he losing of he ga e of in e en en law is likel o re ain alien an of en bewil ering o he reasoning. he ris s were res ri e o he in er re a ion eo le a large . n or er o serve ra i l hanging so ial of he a hori a ive an als of he s hools whi h e ono i an oli i al on i ions an new s s e s will generall were books wri en no b an ien as ers of however also have o reserve fle ibili . he s hools b b he o ara ivel la e s holars. n heor herefore sla i ris s sin e hen have been ere i i a ors an o is s. n ra i e of o rse he References evelo en of he law has no s oo s ill al ho gh i . ha ali b a i . h a l ai in. n was no o b slowe iebesn . i ion. airo ar l ikr. hallaf. b l ahhab IIm s l al Fi wai ar l ala 8 Suggestion . . l as sla i ers e ive o rnal 1 – he on en ion a e is no r e sin e he alifi a ions . . . ini F n amentals o I ti a elhi were no e essive an were f lfille fre en l . r her ore he n er ain ies s rro n ing i iha have . a ran b ra n a ran s l al Fi al in o ern i es been e a erba e b he s rea of Islami le an ria assasah hihab al a iah se laris an he fa ha he s a e has be o e he sole law aking a hori in i s own erri orial o ain. . o ri i al nal sis of he ole of l iha in ss ing ha ahi has been re ogni e an hen i egal efor s in he sli orl . rab aw sho l be ossible o evise a ro e re whi h wo l ar erl l wer aw n erna ional 14 in egra e i iha in he legisla ion ro esses of . . . alla o rnal of ies sla i a 24 overn en . – niversi ies an legal rofessions in an sli . . alik o an an in ontemporar Islami o n ries are engage in raining law ers an barris ers o t en ennial blishers eir in o ern law s rea s hen hese are heir ies o . . . alla o rnal of i le as ies ins i e an effe ive rogra of raining for he – ros e ive ahi . b l ahab hallaf s gges s . . i a a llah he ole of he ran in he ha he govern en in ever sli o n r sho l evelo en of he hariah sla an he o ern s e if er ain on i ions for a aining o he rank of ge ahi an his on ingen on ob aining a . . bal e onstr tion o eli io s o t in re ogni e er ifi a e whi h wo l enable he Islam shraf rin ing ress ahore akis an govern en o i en if he ahi an o verif heir views when he o asion so re ires hallaf . . bal e e onstr tion o eli io s o t . in Islam ahore h ha a s raf he view for olle ive i iha is ainl s or e . shak h an. . a wa ala er n angan b oh bal in his work e ons r ion sla . ala r a ar ak i n. h . of eligion ho gh in sla ha he ower o arr o . . . albani ea hing of hah ali llah of i iha an i a sho l be res e in he sli elhi shraf rin ing ress ahore akis an legisla ive asse bl . here are s gges ion also in s or of he ins i ionali a ion of bo h i a an . . a ali aw o rnal 9 i iha wi hin he fabri of o ern govern en . iha . . . . assab a a l a i a I l ti a in he as has been rela e o he ris i on e an Fi I aria I Islami a airo ar awfi re ain reserving of he ahi . o i iha in he sense of self e er ion is a e ho of fin ing sol ions o new . . a ish efor s n sla i o er ial aw iss es in ligh of he g i an e of wah . holars of owar s eo ening f he a e o l iha shariah as well as e er s in o her is i lines s sean n fri an ies e er ise so wi er ro osi ions an he s a ire . . ewis he sli is over of ro e as er of he r ler a a es e iall in he ran an on on e woo rn . blishers nnah er aining o his s b e or ing o o lson a ish here an be no o b ha he review . . erber iebesn ta ilit an allen e in of he e is ing o er ial laws i or e fro he wes Islami a i le as ns i e in he ligh of he basis rin i les of he e al so r es . . . Mas’ud Iqbal’s reconstruction of Ijtihad will even all lea o a gen ine sla i law of on ra s bal a e blishers ahore akis an an o er e ha will give shariah legi i a o he rin i le of on ra al free o . . . a a an sla in ala sia n he ena en of o ern o es an s a es is no egal onfli an esol ion e le niversi eno gh so his is he ask of he o r o a s he new ress. an illana. . aw an o ie in he ena en o ra i al nee s. f he o r s as has been ega f sla he ase o asionall are oo li eral an s ri in heir
7 MATEC Web of Conferences 150, 05056 (2018) https://doi.org/10.1051/matecconf/201815005056 MUCET 2017
M M Mu a a ad s a a s a d s a Ma a a a 4 a a ost or ati e e elo ents in Isla a a s a ud s a a ioneers of Isla ic e i al d s d u s s d d ss a u a a a a 26 – ss a u a a a a 26 u M u he ala sian e al ste a Ma a s a d d a a s ss a u s Mus u s us du a a d M a u u a ud s a a du a a ds 18 – ad s u s ud
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