Mawdudl's and AS SHIDOIQY's Theory of Ljtihad in the Islamic Law

DRS. ILZAMUDDIN MA'MUR, M.A. MAWDUDl'S AND AS SHIDOIQY'S Theory of ljtihad in the Islamic Law

Introduction teachings of the Qur'an and the In his 77ie Recontructions of Sunnah. The efforts directed to Relig'ious Thought in Islam, Mu make such change is called ijtihad hammad Iqbal (1877 -1938) asserts in Islamic legal term or, in Iqbal's that Islam does not recognize any words, the "principle of move static view of the universe but ment". According to Iqbal, as Noel supports a dynamic view.1 This J. Coulson puts it, the exercise means that Islam with its dynamic of i)tihador independent judgment nature will always be able to keep is not only right, but also the pace with the ever changing cir duty of present generation of ls cumstances of the world. In -line lam. 2 Earlier than this, even Mu with this, as far as the Islamic hammad 'Abduh (]G49-1905), the law or Shari'a is concerned, i.t great Wgyptian jurist, had advo shows that it has undergone, to cated the reinterpretation of the certain extent, some changes. The principles embodied in the divine revelation as a basic for legal changes, of course, must not COO· 3 traclict the basic principles of the reform. Though some modern The Recontruction of Religious Thoughtin Islam 1) Muhammad Iqbal, · · (Lahore: Sh. Muhammad Ashraf, 1986). p. 146. 2) Rahimuddin Kemal, a prominent Indian Muslim scholar, explains further the reason behind the necessity of ijtihad. He says, "Suchan institution of ijtihadis not an impossibility in the present day conditions.It is in fact, becausethe necessity for ijtihadtodayis far greater than in the past. With the"µrogress of knowledge, life- has become ·more· complicate cl. and many new factors have come into play. Alt these make ijtihad indispensable; otherwise, there is the danger of Muslims being left without any guidence for integration and development of Islamic law and ummat. See Rahimuddin Kemal, The Concept of ConstitutionalLaw in Islam(Hyderabad: Fase Brothers, 'AI-Riaz', 1955), pp.109-110. 3) Noel J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964,

31 scholars on lslamic law, such as in turn become furu'. Even durii:ig Joseph Schacht, H.A.R. Gibb, C.S. the time of, as Schacht believes Hurgronje, and J.N.D. Anderson, it, vacuum years, indeed there just to mention but a few, still were mujtahid (mu{lhi) who de believe that the gate of 1Jtihad creed their ijtihacl (fatwas). 6 was closed and is closed in the In lights of the above point contemporary Muslim world, al of view, it is, therefore, not sur though no recent Muslim refor prising if in the history of Islamic mists suport this idea. fazlur legal thought in Pakistan and In Rahman, for instance, is of the donesta, we great contemporary view that " ... the door of ijtihad Muslim scholars like, among oth has always remained open and no 4 ers, Sayyid Abul A'la Mawclucli jurist has ever closed iL." Having (1903-1979) of Pakistan and Mu conducted a comptehensive study hammad Hasbi Ash-Shiddieqy on this matter, a similar conclu (1904-1975) of [ndonesia. As far sion is also reached by Wael B. as the theory of ijtihad is con HaUaq, i.e., the gate of i}tihacl cerned, both scholars are of the was never closed either in theory opinion that iJtihad is very im or practice. In fact, he argues, portant in that it facilitates a ijtihad constitutes the backbone ,rwjcit<:ihid to formulate or rein of the Sunni legal doctrine as terpret Islamic law in modern shown in its developments all time. In this paper, therefore, as 5 along the history of Islamic law. attempt will be made tb tree their Besides the four great Imams, respective ideas on ijtihad in Is Hallaq shows that there have been lamic law and to find out how many mujlahicl who reveal their they apply their ijtihad, if any, ijtihad in the form of fatwa's which 111 coping with the problems faced

reprint 1991), p. 202. 4) Fazlur Rahman, Islamic Methodology in History (Islamabad: Islamic Research Institute. 1965, 3rd reprint, 1984), p. 172. 5) For a detailed·and cornprehensive discussion of the issue, see Wael 6. Hallaq·, "The Gate .of ljtihad: A Study in Islamic Legat History" (Unpublished Ph.D. dissertation, University of Washington, 1983), and Wael B. Hallaq, 'Was the Gate of ljtfhad Closed?." in International Journal of Middle Ea.sl Studies, Vol. 16, No. 1 (March, 1984). 6) For a comprehensive discussion on this issue, see Wael B. Hallaq, "From Fatwa's to Furu': Growth and Change in Islamic Substantive Law," in Islamic Law and Society, 1st edition (1993), pp. 1-33.

32 by the Muslim society of their this Divine Law should govern respective environment. Further not only individual but collective more, an analytical comparison be life of a Muslim. Though Mawdudi tween the two will also be taken believes that the Islamic Law is into account. all embracing law for all time and situation, he does not deny that Mawdudi's ideas on Ijtihad the Islamic law still has room for 7 change and interpretation, espe Sayyid Abu! A'la Mawdudi, cially for those areas which are is of the opinion that the entire not covered by existing law yet. work of the Holy Prophet which This change is possible, according was completed in 23 years of his to Mawdudi, in the field of what life as a Prophet, is the Sunnah is called rnu'cunalah. Ar; for the which, in conjunction of the law of 'ibadah, Mawdudi convinces Qur'an, formulated and complete that there is no room for ijtihad the Supreme Law of the real Sov in 'ibadah. To quote Mawdudi's ereign. It is this law, Mawdudi own words: "ln Islam there is no adds, that is called Shari'a in 8 scope for legislation in the field Islamic terminology. Regarding of worships. Their forms have been its objective, he proceeds to say laid and cannot be changed or that, "The main objective of the amended. But the field of inclivid Shari'a is to construct human life ual and social affairs or on the basis of rna'ru,lal and to m.u'cunalah there is a limited scope cleanse it of the munlwra.t'B. In for legislation in matters about line with this, he emphasizes that

7) Sayyid Abul A'la Mawdudi, whose family tree can be traced back to 'Ali ibn Abi Talib, the last of the Khulafah al-Rashidin, was born on September 25, 1903, in Aurangabad, Deccan, presently Andhara Paradesh, India, He was self educated scholar who wrote no less than one hundred books and booklets and hundreds of speeches and statements. Though it seems that his interest is more in politics rather than Islamic law, his works touch almost all aspect of sciences such as education, economics, politics, history, etc. For a complete account on Mawdudi life and works, see Masudul Hasan, SayyidAbu/ A'la Mawdudi and His Thought, Vols. 1-11. (Lahore: Islamic Publivations, 1984, 1986); Khurshid Ahmad and Zafar lshaq Ansari, Mawdudi: An Introduction to His Life ·and Thought (London: Islamic Foundation, 1986); and Syed Asad Gillani, Mawdudi: Thought and Movement (Lahor-e: Islamic Publications, 1984). 8) Sayyid Abul A'la mawdudi, "The Role of ljtihad and the Scope of Lagislation in Islam", in Islamic Thought Quarterly Journal. Vol VII, No. 1 (1960), p. 11. 9) Sayyid Abu A'la Mawdudi, Islamic Law and Its Introduction in Pakistan (Lahore: Islamic Publications, 1955, 4th ed. 1983), p. 14.

33 which the Qur'an and Sunnah are Islam by keeping it in conformity silent_,i1o with fundamental guidance of the "Literary the world ijtihad, shari'a and abreast of the chang according to Mawducli, "means to ing condition of the world. Since put in the maximum of effort in undertaking ijtihad in this sense performing job, but technically it is undoubtedly very hard, the mu signifies maximum effort to ascer jtahid therefore has to meet cer tain, in a given problem or issue, tain qualifications otherwise his the injunction of Islam and its ijtihad will not be a healthy ijti real intent."11 Henceforth, he dis had. In stead of giving a clear agrees if the ijtihad is employed and detailed explanation of what to connote an independent and he means by healthy ijtihml. free use of one's own judgment .. Mawclucli goes on to state that a He asserts that any ijtihad that nwjtahid has to possess at least purports to be independent of it six requirements. They include: a) can neither be an Islamic ijtihad faith in the shari'a and conviction nor is there any room for it in of its truthfulness; b) a proper the legal system of lslam. knowledge of the Arabic language; c) sound knowledge of the Qur'an It should be borne in mind, and the Sunnah; d) acquaintance Mawducli warns, that ijtihml in with the contributions of the Islam is not meant to replace the ear Lier jurist and thinkers (mujta Divine Law by man-made law, hi-din) of Islam; e) aquaintance but to properly understand the Supreme Law and to impart dy with the problems and conclitions of our times, and () commendeble namism to the legal system of character and conduct according

10) Sayyid Abul A'la Mawdudi, Islamic Law and Constitution (Lahore: Islamic Publications, 1955, 1 oth edition, 1990), p. 85. To support the idea he quotes Shathibi's opinion that the rule for worships is a little different from the one for general affairs of life. In general affairs the law is that where the sovereign is silent, the people are free to act on their won vision, this is the field of permissible. But contrary to this, in respect of matters of worship and prayer no such thing can be adopted which has no basis in the shari'a. For 'ib1:1dah are directly related to the clear command and the will of God. The reason for this distinction is that in the general worldly matters we ourselves may, with the help of our own intellect, discover the right path, but intellect cannot guide us in the realm of worship. It cannot tells us how to get nearest to the Lord Cf. al-Shatibi, Al- l'tisam, Vol. 11, (Cairo: Matba' Mustafa Muhammad, nd), p. 115, cited in Ibid, p. 86, 11) Mawdudi, Islamic Law and Constitution, p. 76, and also Mawdudi, "The Role of ljtihad ... ", p. 12.

34 to the Islamic ethical standard.12 The next method, analogy, is Having touched his definition employed when no specific injuc of ijtihad and the qualifications tions have been laid down in the required for a mujtahid, we now shari'a, but provisions have been proceed to look at Mawdudi's tech made about some analogous situ nique of ijtihad. He is of the ations. In this case, the task of view that m11,juihict, equipped with Muslim scholar is just to apply the above qualifications, has to analogical injunctions to the prob follow the proper method and tech lems which has identical causal nique. Mawdudi categorizes the connections. method of ijtihad into four forms: Third method is applied to interpretation, analogy, inference, the problems about which shari'a and province of independent leg has nor prescribed specific guid isfation. 13 ance, but broad principles. ln an Here the task of a Muslim swering this problems, the func scholar is a) to find out exactly tion of Muslim scholar is to and precisely the law, its nature understand principles of the and extent; b) determining as shari'a and the intention of the meaning and intent; c) investigat Law-giver and formulate such ing the conditions for which it is laws about the practical problems. intended and the way in which as are· based on these principles it is to be applied to the practical and fulfill the intention of the problems; d) working out minor Low-giver. details in the case of such laws Finally. if there is a problem which are too brief for a straight to which shari'a is totally silent, way application in actual life and independent legislation can be re finally: e) determining the extent stored but it must be in line with of its applicability or applicability real spirit of Islam. In other words, in case of exceptional circum his independent judgment and stances, than determining its reasoning should always be based meaning and purport aocl defining on the Qur'an and the Sunnah. occasion and circumstance to This last method employs istihsan which is relevant. and ,naslahah al- mursalah.

12) Mawdudi, IslamicLaw and Constitution, pp. 77-78, and Mawdudi, "The Role of ljtihad ... ", p. 13. 13) Mawdudi, Islamic Law and Constitution, pp. 74-76.

35 Ijtihad according to Mawdudi, can be carried out either incliviclu Apart from these four meth aLJy or collectively. Of course, the ods. Mawdudi concludes that, any Muslim scholars who will carry ijtihad undertaken by various out the ijtihad have to possesses Muslim scholars can be no more certain qualifications, which have than a verdict and it has no bind been mentioned above. As for the ing force. at all. It seems that for collective ijtihad it can be exer Mawdudi there is no more room cised by a council of competent for individual to do ijtihad whose scholars set up by the lslamic result can be enacted but through 14 state, i.e., Majlis-i Shura. the power of an Islamic govern Further more, in order to en ment. force the result of ijtihad a:; law, Mawdudi advocates one of the fol Practical Side of his ljtihad lowing methods: When we turn to practical reality, instead of giving example Firstly, consensus of opinion by learned of or exercising ijtiha:d in Islamic men of the community: secondly. the ijtihad of an individual or a group of law. Mawdudi is either preoccu individuals may gain wide popularity pied by the political issues facing and people may suo 111010 ado-pt their the Muslims of the subcontinent verdict, for instance, the ijtihad of the ur more interested in the politienl hanafie, the Shafi' ite, tl1e Malikite, and than legal aspeets of lslam. Hav the Hanbalite schools of law were vol ing stated again and over that it untarily accepted by large groups of Muslim masses. Thirdly, Muslim gov is only "God who is sovereign in ermnent may adopt a perticular piece this universe, he proceeds to as of ij"tihad as its law, as for example sert that Islam is an ideology, the Ottom:m government had adopted Islam is a revolutionary religion, the Hana.ti Law as the law of the lai1d. and Islam is a complete way of Fourthly, mi institution may be consti life Cor all places an times. This tutionally empowered in an Islamic state to legislate and it may enact a particular mean:; that, among other things, 15 piece of ijtihad in tl1e fonn of "lciw. lslamic law is applicable in the·

14) Masudul Hasan, Mawlana Abu/ A'/a mawduai and His Thought, Vo. II (Lahore: Islamic Publications, 1986), p. 49. 15) Mawdudi, Islamic Law and Constitution, pp. 79- 80.

36 modern world. However, he argues the clictum of 'necessities make that Islamic law cannot be applied certain inhibitions legal' and 'dif. effectively unless the Muslim es ficulties attract concession:-;.'18 tablish an Islamic state. When mawdudi is criticized From this point of view, it is of being inconsistent with his pre understandable if the efforts of vious view expressed elsewhere, Mawdudi's ijtihcul is directed to he strongly argues that we have ward-; in the political aspect, i.e., to choose between yhe two evils ijtihad siyasi. Although most of · the candidature of a woman, or his political ideas, to certain ex the candicature of a tyrant. The tent, are not different from the candidature of a woman was a previous Muslim scholars, like al lesser evil than the candidate of Mawardi, al-Ghazali, and even Ibn a tyrant, and hence our acceptance Khaldun, he indeed proposes a of the candidature of a woman new trend. While most of 'ortho for the presidential elections in dox' Muslim scholars are holding the special circumstances of the that woman is not permitted to case was not against Islam. He be the head of state. Mawdudi emphasizes further that Islam supports the president candidacy permits exceptions in exceptional of Miss Fatimah Jinnah. 16 Thus, circum stances. he agrees that a woman can be From this, it can be inferred elected as head of state. Mawdudi that Mawducli, though he does justifies his ijtihad by stating that not explain further on the ground in exceptional conclitions and cir of either Qur'anic verses or the cumstances, ijtihad can be utilized Sunnah, basing hi8 reason on the to ascertain the situations justi legal maxim stating that the lesser fying deviations from these injunc harm is preferable to the greater tions to suit the exigencies of the harm, irti:Jwb bi 'ashaff al- time. 17 lt :seems that he follows 16) Further discussion on Mawdudi's support to Fatimah Jinnah's presidential candidacy, see maudul Hasan, Sayyid Abu/ A'/a.Mawdudi, Vol. 11, pp. 178-179, 493; Farhat Haq, "Islamic Reformism and the State: The Case of the Jama'at-i lslami of Pakistan," (Unpublished Pg.D. dissertation, Cornell University Press, 1988), p. 80; and Sayyed vali Reza Nasr, The Vanguard of the Islamic Revolution: The Jama'at-i ls/ami of pakistan, (Berkeley: University of California Press, 1994), p.42. 17) Mawdudi, Islamic Law and Constitution. p. 83. 18) Mawdudi, Islamic Law and Constitution, p. 84.

37 dararain. Moreover, his conviction is carried out in his country. is also derived from an analogy or prayers when he says that Muhammad Hasbi Ash Shid ''Even prayers could be curtailed dieqi's Ideas of Ijtihad or omitted in the event of danger. On the same analogy the slection of a woman as the president would Like Mawdudi, Muhammad 0 be permissible of such a course Hasbi A<,h Shiddieq/ also be have to be restored to, to save lieves that shari'a is the 'final the country from tyrany and dic law' that God revealed through tatorship." 19 His last messenger, Muhammad. Another side of his ijtihad is Coupled with the Sunnah of the his adoption of trias politica, i.e., Prophet, it is not rigid but flexible that an Islamic state should have source of law in a sense that it three separate functionaries such can be applied in all places nnd as legislative, executive and jucli times. It is dynamic and it there cature, a concept whith was not fore opens, to a certain degree, recognized in the Islamic political to a change. The change, of which discourses previously. Qur'an and the Sunnah is not clear or even silent, can be In legal thought Mawdudi, achieved through ijtihad. However though acknowledge no attach unlike Mawdudi, Shiddieqy opines ment to any of the four schools that ijlihad can be applied, to of fiqh, tends to be rigid in in certain extent, not only in the terpreting the present conditions. domain of mu'amalah but also of For instance, he strongly rejects 'ibcidah Shidclieqy believes th<1t the idea the familyplanning which ijtihad constitutes an important

19) Masudul Hasan, Sayyid Abu/ 'Ala Mawdudi and His Thought, Vol. 11, p. 179. 20) Muhammad Hasbi Ash Shiddieqy, who claimed to be the 42nd descendant of Abu Bakr al Sidq, the first Caliph of Islam, was born on March 10, 1904, in Lhokseumawe, Aceh. He was an 'alim, Muslim intellectual, faqig, mufasir, who wrote no less than 72 books on fiqh, tafsir, kalam, history, and other topics on Islam. For further information on Hasbi's life and works, see Djamil Latif, Riwayat Hidup Prof. T.M. Hasbi As-Shiddieqy (Jakarta: a.p., 1974); Nouruzzaman Shiddiqi, "Muhammad Hasbi Ash Shiddieqy Dalam Perspektif Sejarah Pemikiran Islam di Indonesia". (Unpublished Ph.D. Dissertation, Graduate Faculty, Institute of Islamic Studies 'Sunan Kali Jaga', Yogyakarta, 1987); Yudian Wahyudi, "Hasbi's Theory of ljtihad in the Context of Indonesian Fiqh," (Unpublished M.A. thesis, Institute of Islamic Studies, McGill University, 1993), pp. 12· 22.

38 means for understanding and dig sessing good knowledge of the ging out the laws unplicitly Qur'an dealing with legal verses: touched upon in the Qur'an and c) sound understanding of ahaclith haclith. Moreover, ijtihacl also con especially those concerning the le stitutes a way through which the gal matters, not only in their con arising problems in the society, tent but also their validity; cl) about which both of the Qur'an knowing the schools of the pre and the Sunn.ah are silent, can vious mujathid so as to realize be found out. Before going further which laws considered of getting to Shiclclieqy's ideas and practice a consensus (ij11w) and which laws of ijtihad, it is worth touching his are still disutable; e) comprehend definition of ijtihad and his quali ing the prevailing condition of the fication of a mujta.hid in advance. society where the problems arise; Jjtihad Shicldieqy defines, {) understand usul al-fiqh; h) un means the use of aJJ capabilities derstanding the secret of Islamic of reason and deducing law from law; i) knowing the maxims of its proof (chalif), by way of an Islamic jurisprudence cleclucecl inquiry which leads to the law, from universal legal maxims and or it also indicates of doing re the aims of Islamic law; and fi. search on a perticular queation nally j) a uu1,jathid must be hon in a scientific manner, and to est, just, and good in his con using the capacity of reasoning to duct.22 the utmost.21 In other words ijti Ac; for the method of ijtihad, had signifies the use of reasoning especially related to the matters to respond to the problems dis which are mentioned neither in cussed in the light of Islamic law. the (�ur'an nor haclith, Shiclclieqy To enable a nwjlahid conducts is of the firm opinion that there his job, accoecling to Shiddieqy, are at least five ways which can he has to equip himself with at be utilized in this respect. They least nine conditions: a) mastery include qiyas, i?fihsa.n, isl.isl.ah, 23 of the Arabic language; b) pus- '/11,r ". an c1 ishsa· · ,1,.

21) Muhammad Hasbi Ash Shiddieqy, Ruang Lingkup ljtihad Para Ulama dalam Membina Hukum /slam (Yogyakarta: IAIN Sunan Kali Jaga, nd), p.5. 22) Muhammad Hasbi Ash Shiddieqy, Pengantar Hukum Islam, I (Jakarta: Bulan Bintang, 1955, 6th ed. 1980), p. 115-117. 23) Muhammad Hasbi Ash Shiddieqy, SariKuliah Fiqh, Sala: Ramadhani, 1974), pp. 15-41.

39 Concerning the types of ijt.i are called ahl al-hall wa al-'aqd, had, Shiddieqy, like Mawdudi, it is better for as to name the also opines that there are two institution with the former func kins of ijtihad; ijtihad fardi and tion as ahl al-hill wa al- 'aqd of ijtihadjama'i. 24 The former is the ,:mamah, and for the later function efforts of an individual Muslim as ahl al-hall wa al-'aqd of ij li scholar, equipped more or less had. 26 with the above qualifications, to find out the answer of certain Although Shidctieqy is himseu· legal issues, whereas the latter involved in both types of ijtihad, constitutes the collective effort of i.e., individual and collective ijti a certain number of Muslim schol had, thi. · article will focuses only ars to solve certain legal problems. on his individual ijtihad. As one The most suitable institution to of the Indonesian modern lega exersice ijtihad jam.a'i, according reformers, he does not resu-ict to him, is institution like ahl al himself to a certain single school hall wa al-'ciqd, whose members uf fiqh in exercising ijtihad. He consist of not only Muslim scholars is not bothered by the fact that apecializing in Islamic law, but mo8t Indonesian Muslim are also those who come from different Shafi'ites. 27 Like other modernists disciplines such as economics, from other Muslim countries, me d.1cme, . ecl ucat10n,. etc.-')5 I n or- Shidclieqy employs talfiq and talt der not to be confused by the hayyur in his ijtihad. He, for in institution which bears the same stance, takes the qiyas of Shafi'i, name but has dil'ferent function, nwslalwh al-mursalah of Malik, Shiclclieqy remarks that since we and istihsan od Abu Hanifah. In have two institutions, albeit bith ad,lition, he also takes use of 'urf

24) Nouruzzaman Siddiqi, "Pemikiran M. Hasbi Ash- Shiddieqy Tentang Pembaharuan Hukum Islam di Indonesia." (Unpublished paper presented at the seminar heid by the Faculty of Islamic Law, IAIN Sunan Kali Jaga, Yogyakarta, 7-8 July 1986), p. 9. 25) M .• Hasbi Ash-shiddieqy, "Tugas Para Ulama Sekara!'g Dalarn Memelihara dan Mengembangkan Qur'an, Hadits, dan Fiqh dalam Generasi yang Sedang Berkembang," in Panji Masyarakat, 14, No. 123 (15 March, 1973), p. 17. 26) Cf. H. Hasbi Ash- Shiddieqy, llmu Kenegaraan dalam Fiqh Islam, (Jakarta: Bulan Bintang), pp. 63. 27) See llzamudin ma'mur, "The Place of Islamic Court in the Judicial System of Modern Indonesia", in Havard lslamicus, Summer 1996, pp. 75.

40 and the saddu al-dham'i as Shidclieqy's proceeds to settle sources of Islamic law.28 this issue by undertaking the fol lowing steps. Firstly, he takes Practical Side of His Ijtihad relevant three Qur'anic verses: al Baqarah 29, al-A'raf 26 and al Having discussed Shidclieqy's A 'ra,f :32. 30 Basing himself to these ijtihad theory of briefly, it is time verses, Shiddieqy argues that ijtihad. to look at his actual Our since Goel has provided people source shows that Shiddieqy prac with everything in this world, tak ijtihad ticed on more than five ing benefits from them is permis hundred items on different issue:; sible, except from those things facing Indonesian Muslims such which are explicitly forbidden. as organ transplantation, blood Furthermore, God has also pro transfusion, dead penalty, etc. All vided all kind5 of dreasses and of these can be found in his book clothing which could be used by entitled Al-Ahkam.: Hukum.-Hu people for protecting themselves hum Fiqh Islam (Rules of Islamic 29 from hot and cold weather, and Jurisprudence). In order to give God, according to him, also en a cleaner picture of his exercise courages them to dress properly ijtihad, of an often disputed issue and to adorn them selves by wear on 'wearing silk and gold by a ing jewelry, silk, gold, etc. man'· and its law according to The second step is searching Shiddieqy, will be discussed m for a relevant hadith and he finds the following pages. no less than eight ahadith which

28) A. Syadali, "Pemikiran Prof. Dr. T.M. hasbi Ash-Shiddieqy bagi Ummat Islam di Indonesia", (Unpublished paper presented at the seminar held by the Faculty of Islamic Law, IAIN Sunan Kalijaga, Yogyakarta, 7-BJuly 1986), p.1. 29) M. Hasbi Ash- Shiddieqy, AI-Ahkam: Hukum-Hukum Fiqh Islam, Vols. 1-5, 4th ed. (Jakarta: Bulan.-Bintang, 1970). 30) These verses respectively are read as fallow: "He it is 1/'vlio created for you all that is in the earth"; "O children of Adam! We have revealed unto you raiment to conceal your shame, and splendid venture, but the raiment of·restrain from evil, that is the best. This is the revelations of Allah, that they may remember"; and Say: who hath forbidden the adornment or Allah whichHe hath brought forth His bondment, and the good things of His providing? Say: Such, on the Day of the Resurrection, will be only for those who believed during the life of the world. Thus do We detail Our revelations for people who have knowledge." The English translation of these Qur'anic verses are based on A. Yusuf Ali, The Holy Qur'an: Translation and Commentary (Maryland: Amana Group, 1983).

41 address that wearing silk and gold and practice of ijtihad briefly. are only permitted for women, not Both of these scholar, who lives men. Having analyzed their sanad in relatively same era and claim (transmitters) carefully, he con as the 42th descendant from the vinces that all these ahadith. He rightly-guided caliphs of 'Ali Ibn then turns to the views of the Abi Talib and Abu Bakr al- Siddiq previous fuqaha. Again, here he respectively, agreed that ijtihad finds that most of them opine is very important method to de that men are forbidden to wear velop Islamic law as having been silk and gold, while women are demonstrated almost throughout permitted to wear gold and silk. the history of Islam. Fallowing the principle of al They also do not disagree that aslu fi al-ashya' atibahah (in its ijt,:had can be carried out on two nature everything is permissible), levels; individual level and collec he argues that since tne cited tive level. ln addition, Mawdudi verses of the Qur'an clearly incli and Shiddieqy believe that the cate that using jewelry or orna rnujtaliids, in order to get sound ment is permissible for both men ijtihad, must meet certain require and women and, therefor, they ments. This is because jtihad can cannot be altered by the cited not be conducted freely without ahadith which are proven as taking into considerations the ba ahculith of ahad not ,nu.t.awauir. ::;ic principle of Islam as pro He then concludes that men are pounded in the Qur'an and the also permitted to wear both silk Sunnah, the most important and gold. This conclusion is dif sources of Islam law. ferent from ju.mhur 'ula.rn.a, be While mawdudi and Shiddieqy cause he strongly holds that gen share many things on the princi eral rule of the <�ur'an only can ples of ijtihacl and requirements be altered by a nas of equal of mujtahicl, they have different authority, that is either by the goals. Though both of them are other Qur'anic verses or hculith concerned with the bettenneAt of mutawattir. the Muslim society of their re Conclusion spective countries. Pakistan and So for we have discussed Indonesia, they choose different Mawclucli and Shiclclieqy's theories 'vehicles' to achieve their objec-

42 tives. Mawdudi is more interentecl Pakistan, and Shicldieqy is recog in the political aspects of Islam nized by his students in Indonesia than the legal aspect of Islam, as one of the fuquha who takes and his writings are thus focused initiative to establish what is on the politics. If he also writes called the 'Indonesian Fiqh'. While on other aspects of Islam, he colors Mawdudi is known not only in them with politics.31 Conse South Asia but also in the Muslim quently, in line with this, many world, Shiddieqy is only known of his ijtihads are found in the by Muslims of the Southeast Asia. field offiqh siyasi. Meanwhile, his This is due to the fact that the contemporary, Shiddieqy, is thus works of the former have been more concerned with legal aspects translated into many languages of lslam as reflected in his writ such as English, Arabic, French, ings. Shiddieqy does nut only write Indonesia, etc., whereas the works theoretical aspect of ijtihcul, he of the latter have been still in tries to apply them whenever are their original language, Bahasa necessary. His ijtihad on various Indonesia. issues is compiled and published Wallahu a'lam bi al-sawab. in five volumes. One example has been taken out from this compi lation, i.e., on the issue of whether man is allowed to wear silk. and Bibliography gold or not. In· ad(ution, it is al-Sha.tibi, Al-l'tisam. Vol. II Cairo: Marba' interesting to note here that while Mustafa Muhammad, nd. Shiddieqy, based on his ijtiha

31) Maryam Jameelah, "An Appraisal of Some Aspects of Mawlan Sayyid Mawdudi's Life and Thought", in Islamic Quarterly, Vol. XXXI, No. 2 (1987), p. 126. 32) Mawdudi's ideas on this issue can be read in Sayyid Abul Mawdudi, The Questions of Dress (Chicago: Kazi Publications, 1976, reprint 1978), p. 13.

43 Kemal, Rahimuddin, The Concept of Consti Hallaq, Wael B., "The Gate of ljtihad: A Study tutional Law in Islam, Hyderabad: in Islamic Legal History" (Unpub Fase Brother, 'AI-Riaz', 1955. lished Ph.D. dissertation, University Mawdudi, Sayyid Abul A'la, Islamic Law and of Washington, 1983). Constitution, Lahore: Islamic Publica Hallaq, Wael 8., 'Was the Gate of ljtihad tions, 1955, 10th edition, 1990. Clossed?", in International Journal of Mawdudi, Sayyid Abul A'la, Islamic Law and Middle East Studies, Vol. 16, No. 1 Its Introduction in Pakistan, Lahore: (March, 1984). Islamic Publications, 1955, 4th ed., Rahman, fazlur, Islamic Methodology in His 1983. tory, Islamabad: Islamic Research_ln Muttaqin, Zainul, "Pola ljtihad Hukum Mu stitute, 1965, 3rd reprint, 1984. hammad Hasbi Ash- Shiddieqy dan Mawdudi, Sayyid Abu; A'la, "The Role of ljti A. Hassan", (Unpublished Uder had and the Scope of Lagislation in graduate Thesis, Fakultas Syari'ah Islam", Islamic Thought Quarterly IAIN Sunan Kalijaga, Yogyakarta, Journal, Vol. VII, No. 1 (1960). 1992).