The Book and the Sunnah, then you may accept it. But if it does not comply with them, then you should reject it". Al Shafei (d. 204 H) declared "If ever I opine in deviation from a tradition, then you should follow the tradition and never imitate me. And if a report is later authenticated as being a tradition, then whatever I had opined contrary to it is no more valid, and you should only follow the tradition". Imam Hanbal (d. 241 H.) declared : "Do you imitate me, or Malik, or al-Shafi'i or Al-Thawari, or derive directly from where they themselves had derived".14
After having examined the attitude of the jurists regarding their personal opinions in matters of formulating laws, a pertinent question arises: how, in spite of the clear and dynamic attitude of these eminent jurists towards Shari'ah, did the law develop a tendency to stagnate? Dr. Mohammad lqbal poses a similar question in different words: "It is, therefore, necessary to discover the causes of this intellectual attitude which has reduced the law of Islam practically to a state of immobility".15 According to him, three causes have effected this state of immobility and are summarised by him with eloquent precision; one, the bitter controversy about the dogma of the eternity of the Quran during the early Abbassid period became extremely complicated and difficult to resolve as two opposing camps, the rationalists and the conservatives, grew further apart in the nature of their arguments and convictions. Hence, in order to preserve the social and legal integrity of Islam, the conservatives, supported by the rulers, wished to render the structure of their legal system as rigorous as possible.
Secondly, legal niceties and subtleties of the contemporary legists drove some of the most brilliant min' cis of Islam to Sufism, fostering a kind of revolt against the verbal quibbles of the early doctors of law. Gradually ascetic Sufism, developing under influences alien to Islam, with its spirit of non-worldliness, not only captured the best Muslim minds, to whom unrestrained speculation appealed greatly, but further obscured from men's vision the very significant aspect of Islam as a political socio-economic system. "The Muslim state was thus left generally in the hands of intellectual mediocrities"," who, having no personalities of a higher calibre to guide them, found their security only in following the schools.
Finally, the siege of Baghdad by the Mongols constituted another important reason to undermine the flexibility of Islamic law. This, in the middle of the thirteenth century, brought with it a period of political decay, during which the conservative thinkers of Islam, fearing further disintegration, "focused all their efforts on the one point of preserving uniform social life for the people by a zealous exclusion of all innovations in the law of Sharrali as expounded by the early doctors of Islam".17 But this strict channelisation of legal thought resulted in bitter and inevitable consequences. For, "in an over-organised society the individual is altogether crushed out of existence. He gains the whole wealth of social thought around him and loses his own soul... The tendency to over-organisation by a false reverence of the past as manifested in the legists of Islam in the thirteenth century and later was contrary to the inner impulse of Islam".''
Hence arose the misconception of Taglid, which literally means "following the opinion of another person without knowledge of the authority of such opinion". In other words, it means the duty of adopting the exposition of law as made by the ancient jurists, an attitude contrary to the spirit of what the jurists propagated. Thus, "the entangled outlook which either confuses the principle of al-Ijtihad, as initiated by the Shari’ ah itself, with the technical employment of it by the later jurists, or gets so involved with the works of these jurists that it loses sight, at least for all practical purposes, of the Shariah, and identifies it, consciously or unconsciously, with what the jurists understood by it or with the methods they applied in understanding it, whether in historical authentication, lexicology, terminology of specific courses of analogy","
The basic defect, therefore, seems to consist in confusing what God and His Prophet have prescribed, with what the jurists have been opining. Again, with increased and varied individual opinions the established schools of law gained precedence, which divergence from the direct adherence to the Shari'ah was something that none of the classical jurists had intended. They interpreted the law implementing an opinion on the applicability of a particular text to a particular issue, or, in the absence of an applicable text, giving individual opinions. Such authority is dependent on its compliance with the Quranic Injunctions and Prophetic Traditions for the fulfilment of their objectives. Hence, the diversity which emerges in juristic opinion should be considered- as an active sign of flexibility which can only be conceived if the study of the Quran and Sunnah are held predominant and primary-to the extensive works of the-jurists.
Accordingly Joseph Schach’3 analvsis "During the greater part of the first century, Islamic Law in the technical meaning of the term did not yet exist. As had been the case in the time of the Prophet, law as such fell outside the sphere of religion„and as far as there were no religious or moral objections to specific transactions or modes of behaviour, the technical aspects of law were a matter of indifference to the Muslims".20
Movements to restore ljtihad had their beginning in the fourteenth century with ibn Taimiyyah who started a revivalist movement, thereby exposing the Muslim reaction to all innovations contrary to the Book of God and the Tradition of the Prophet as decadent. He claimed the right of ljtihad as initiated by the Sharjah also challenging the two basic instruments of most schools of law : the Qiyas and the Ijma. His revolt, an Islamic renaissance, represents a turning point in the field of Islamic jurisprudence, Ibn al-Qayyim, his disciple, followed his footsteps providing further force to the movement which, as a consequence, later initiated the activity of the Wahizabis in the eighteenth century. This, in turn, inspired a series of movement throughout the Muslim world, all aiming at the emancipation of both Islam and the Muslim.
Jamaluddin al-Afghani and Muhamad Abduh together, by the end of the nineteenth century, gradually gave shape to a school which came to be known as the Salafiyah
School. The Salafiyah is an expression of Arabic origin implying the retracing of the footsteps of the early Muslims, and subtly revealing a characteristic tendency in line with the old revolt of Ibn Taiimiyyah. Muhammad Abduh, as quoted by Gibb, says: "I say that Islam has not given, whether to Caliph or to qadi or to mufti or to Shaikh al-Islam, the smallest authority in the matter of doctrines and the formulation of rules. Whatever authority is held by any one of these is a civil authority defined by Islamic Law, and it is inadmissa.ble that any of them should claim the right of control over the belief or worship of the individual or should require him to defend his way of thought".21
Rashid Rida, the editor of the magazine, Al-Manar, published in Cairo was the central figure in the activity of the Salafiyah movement. On his death in 1935, the person who replaced him as editor of the magazine was Masan al-Banna, "the founder of the Muslim Brotherhood, the strongest and most controversial movement in the present-day Muslim world". An outline of this movement, as described by Louis Gardet, is the enlargement and simplification of Salafi tendencies to which it remains very near; more of a programmers of action then a scholastic doctrine; a special insistence on social and economic problem." The general movement towards the formulation of such activity in the Arab world is, described by Hans Tuetsch as: "One of its main organizational expression is the Muslim Brotherhood, which demands a return to the old laws of Islam".22
Scholars like Mohammad lqbal in India, pursuing the theme of ljtihad,- similarly argued that the exercise of ljtihad Pr'independent judgement was not only the right,. but also the duty, of present generations, if Islam was to adapt itself successfully,_ to the modern world. The opponents of such a thesis maintained that a contradiction of the doctrine of Taglid or "the closure of the door of ljtihad" which has been established by the infallible Ijma. was almost equal to heresy, while its supporters denied either the existence or the binding nature of such an alleged ljrna.
This theoretical dispute concerning the right to ljt-ihad or not was, however, secondary and subordinate to the primary issue, which .comprised a clash between conservative and progressive opinion. Those who maintained the established law as the ideal order of things upheld the doctrine of Taglid„ while those who believed in If litihag argued for the legitimacy of it as the ultimate and proper means of introducing reform which otherwise rested on the unanimous authority of the traditional jurists. Nevertheless, due to the strength of traditional, jurisprudence, the possibility of a modernist legislation giving any practical implementation to the principle that the interpretations of classical jurists may be replaced and that the Quran and the Sunnah may be construed afresh in the light of modern conditions, was a difficult task.
However, further effort towards reopening the closed gates to Iitihad was initiated in spite of severe opposition. The repercussions of the two world wars, the fall of the Ottoman Empire and the abolition of the Caliphate in Turkey, colonial expansions of Great Britain and France, the emergence of small sovereign states. In West Asia
Resulting in the growth of Arab nationalism, the rise of communism in Central Asia af‘d some parts of Europe ceded by the Ottoman rulers, the social reform movements in Egypt, Iran and Indonesia, the independence and partition of the Indian sub-continent, and numerous other events of history led to revolutionary changes in the jurisdiction and scope of the traditional law of Islam.
The argument of the scholars is that legislative inquiry is essential in every age since the intense pressures of changing conditions of life require a new understanding for a vivid appreciation of the true spirit of the teachings of Islam. It is, therefore, incumbent to turn to the Quran and the Prophet who, through his example, roused the world to spiritual truth of hope and promise, inspiring men to heights of intellectual achievements.
To continue to activate such a process is as necessary now as it was in the past. To limit juristic discussions, therefore, to a definition of terms and scholastic refinements, or to doctrinal differences and hair splitting dialectics of a period so remote that it can hardly have any direct bearing upon the present set-up, is not in consonance with the teachings of the Quran and the Traditions. It is, therefore, insufficient to live in the shadow of past thoughts which undoubtedly belong to some of the greatest minds, who, however, neither pretended to be infallible nor assumed responsibility to have their views endorsed as final. They, more than anyone, understood that the teachings of Islam could never he exhausted in their depth, that new discoveries, new meanings, new interpretations’ in the Word of God, and the Example of the Prophet would bring new light and new dimension into this world. This, undoubtedly, was their endeavour, and in keeping with the spirit that the door towards effort, legislative or otherwise, be always kept open.