It is a question of a later conceptualisation of what Muḥammad (peace be upon him) and his Companions naturally understood and applied. When ‘Umar, upon succeeding Abū Bakr as the head of the Muslim community, decided, during the year known as the year of famine, to suspend the punishment of cutting off the hands of thieves, he was following exactly the principle enunciated above. To maintain the application of this punishment would have meant a betrayal of the objective of the Revelation which alone is absolute (even if this could be seen as falling short of the letter of the Qur’ān). 7
There are in the Qur’ān nearly 228 verses (out of 6,238) which deal with general legislation (constitutional law, penal and civil codes, international relations, economic order, etc.). 8 These injunctions lay the fundamental norms of behaviour and define the four corners within which legislation takes place. Built in is a mechanism for change and evolutionary guidance. General and absolute principles 9 which were hidden behind the specific answers given to the inhabitants of the Arabian peninsula in the seventh century. The Qur’ān, therefore, offers directing principles, principles of orientation. The latter are, in essence, absolute, since for the Muslim, they have come from the Creator Who indicates to man the way (the Sharī‘a) 10 is to be followed in order to respect His injunctions. These principles are the point of reference for jurists who have the responsibility, in all places and at all times, of providing answers in tune with their environment without betraying the initial orientation. Thus, it is not a question of rejecting the evolution of societies, the change of modes and mentalities or cultural diversities. On the contrary, the Muslim is obligated to respect the Divine Order which has willed time, history and diversity.
He brings forth the living from the dead, and brings forth the dead from the living, and He revives the earth after it is dead; even so you shall be brought forth. And of His signs is that He created you of dust; then lo, you are mortals, all scattered abroad. And of His signs is that He created for you, of yourselves, spouses, that you might repose in them, and He has set between you love and mercy. Surely in that are signs for a people who consider. And of His signs is the creation of the heaven and earth and the variety of your tongues and hues. Surely in that are signs for all living beings. (Qur’ān, 30:19–22)
The stages of creation of the heavens, earth and human beings and the diversity of idioms and colours are signs of the divine Presence and should therefore be respected. The interpolation of all human beings follows the same sense:
O mankind, We have created you from a male and a female, and appointed you races and tribes, that you may know one another. (Qur’ān, 49:13)
Thus, man who has faith, has to acknowledge, at the very moment when he is busy with the affairs of humans, the facts of historical evolution as well as the diversity of cultures and worship. To face up to his responsibilities as a believer is to comprehend the horizon of this complexity, and to activate himself to find, for his time and country, the best way of establishing harmony between absolute principles and daily life. The Sunna of the Prophet (peace be upon him), the second source of Islamic law, allows one to approach the objective of the Revelation. In fact, by analysing what Muḥammad (peace be upon him) said on such or such an occasion, or how he acted, or again what he approved, we are in a better position to understand the meaning as well as the extent of the Divine injunctions. 11 In the same vein, jurists have exerted themselves to extract from the sayings, deeds and decisions of the Prophet Muḥammad (peace be upon him) the principles which allow Muslims to live with their time and environment while still remaining faithful to his teaching.
At first sight, the constant reference to the Qur’ān and the Prophet (peace be upon him) might seem as an obstacle and as a negation to change, and this is manifested by the will to see applied today a legislation which is 14 centuries old. What we have just said, however, is proof that this understanding is too reductionist and corresponds neither to the teachings of Muḥammad (peace be upon him) nor to the attitude of the ‘ulamā’ (scholars) of the first era. The establishment of general principles is a fact which is proved in the modalities of juridical readings of the Qur’ān and the traditions, and confirms, if there was need for confirmation, the requirement of “the effort of personal reflection” (ijtihād) in situations which neither the Qur’ ā n nor the Sunna mention. 12
II. Ijtihād: Between the Absoluteness of Sources and the Relativity of History
When he had to pronounce a ruling, the first Caliph, Abū Bakr, referred firstly to the Qur’ān, trying to find whether there was an applicable text. If he did not find one there, he would take into consideration the life of the Prophet – according to his memory or that of his Companions – in order to discover a similar situation for which the Prophet (peace be upon him) might have pronounced a specific ruling. If at the end of his enquiry the two sources remained silent on the case in question, he would gather for consultation the representatives of the people and agree with them on a new decision. One which was rationally independent but respectful of the spirit of the first two sources.
This step-by-step procedure received the approbation of Muḥammad (peace be upon him) himself when he sent Mu‘ādh ibn Jabal to the Yemen to assume the office of Judge. On the eve of his departure, the Prophet (peace be upon him) asked him: “According to what are you going to judge?” “According to the Book of Allah”, answered Mu‘ādh. “And if you don’t find the ruling therein.” “According to the tradition (Sunna) of the Prophet of God.” “And if you don’t find the ruling therein.” “Then I will exert my effort to formulate my own ruling.” Upon hearing Mu‘ādh’s answer, the Prophet (peace be upon him) concluded: “Praise be to Allah Who has guided the messenger of the Prophet to what is acceptable to the Prophet.”
In fact, things are very clear in legislative matters. Islamic law, which is so much talked about today, is in the first place all the general rules stipulated by the Qur’ān and the Sunna. Within a short space of time, as many complex issues and challenges emerged, jurists developed a method and established principles of research in the subject of law. Just as in the example of Mu‘ādh, they put “all their energies into formulating their own rulings”. This duty of reflection is known in Islamic law by the name of ijtihād, an Arabic term whose literal meaning is “exerting all one’s energy”, “making an effort”. In the absence of textual references, it is for the jurist to rationally harness a regulation in tune with the time and place but one which does not betray the teachings and spirit of the two fundamental sources. 13 In other words, the answers were adapted to the context. They were themselves, by the force of things, diverse and plural but always “Islamic” when they did not contradict those general principles which are unanimously accepted. Jurists ought to respond to the questions of their time by taking into account the social, economic, and political realities then pertaining. Just as did Imām al-Shāfi‘ī