QLCian 2009

IQBAL'S CONCEPT OF IJTIHAD

More than seventy years have passed since the death of Iqbal, but we have not been able to discover all the scattered dimensions of his thought. Probably the reason is that we accept him only as a poet and do not care to pay the attention to his prose which it deserves. As for Iqbal, he neither considered himself a poet, nor a theologian, nor a philosopher. But he was definitely a multi-dimensional person. Therefore to regard him only as a poet and to attach secondary importance to his prose-writings, particularly the Reconstruction Lectures is the main hurdle in the way to a deeper understanding and evaluation of his thought.

Dr. Javed Iqbal

Dr. Javed Iqbal is the son of the great philosopher and poet of subcontinent Dr. Allama Iqbal. He is a former judge of Supreme Court of Pakistan; He was also Chief Justice of Lahore High Court. Dr. Javed Iqbal is Professor emeritus of QLC, Lahore. He is a great asset to the legal fraternity.

Regarding the revival of Islamic culture in modern times, one of the dimensions of Iqbal's thought which requires special attention, is his rejection of Taqlid (blind following of ancient authorities in the interpretation of Islamic law) and his emphasis on Ijtihad-e-Mutliq (reinterpretation of Islamic law by reverting back to the original sources). In his opinion the elected Assembly of a Muslim state should exercise this power as Ijma (consensus of the community) in the process of enacting Islamic legislation.1 At this stage, certain questions arise, the answers of which can be found in the prosewritings of Iqbal. First: What is the Iqbalian model of Islamic state, the elected Assembly of which is expected to exercise the power of Ijtihad-e-Mutliq? Second: Under which prevailing conditions did Iqbal realize that there existed a dire necessity for Ijtihad-e-Mutliq? Third: What qualifications were required in elected members of the Assembly who were expected to exercise the power of Ijtihad-e-Mutliq? Fourth: In Iqbal's opinion for coping with the new demands of time, the ulema and preachers of the Muslim community should be equipped with what form of knowledge? Fifth: Iqbal defined the principal of Tauhid (Unity of God) as founded on human solidarity, human equality and human freedom. In the light of this definition, he claimed that the ultimate aim of Islam was to establish a spiritual democracy. What did he mean by spiritual democracy?2 Sixth: Which matters of the Muslim community, according to Iqbal, required fresh legislation through the process of Ijtihad-e-Mutliq? Seventh: Can Iqbal's concept of Ijtihad-e-Mutliq be introduced for Islamic law making in the present political and constitutional set up of Pakistan? In order to identify the Iqbalian model of Islamic state we have to turn to the events which occurred in the second half of the 19th and early part of the 20th centuries, when the Turk nationalists were agitating for the curtailment of arbitrary powers of

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the Ottoman Caliph and the establishment of a democratic order in Turkey. It was during those years that Jamal-ud-Din Afghani had advanced the idea of Constitutional Caliphate for the retention of symbolic unity of the Muslim world, under the protective wings of the Ottoman Caliphate. But the Sheikh-ul-Islam delivered a Fatwa in Istanbul to the effect that under the Quran, obedience to those who command authority, was obligatory on all Muslims. Therefore those who wanted to curtail powers of the Caliph were infidels and traitors. The conservative Fatwa eventually led to abolition of the Caliphate and closure of the office of Sheikh-ul-Islam at the hands of Turk nationalists in 1924. According to the new Turkish Ijtihad all powers of the Caliph stood transferred to the elected National Assembly of Turkey, and as a result the Muslim world broke up into numerous independent or semi-independent nation-states. The Turkish Ijtihad that Parliament as Imam is sovereign, was acknowledged by Iqbal as correct and in accordance with ground realities.3 He adopted it for his imaginary Islamic state. However when the Turk nationalists following the Europeans accepted secularism, Iqbal developed his Ijtihadi political thought further and claimed that Islam was not only a religion but also a state, and he proceeded to vase his theory of modern Islamic state on what he called Muslim nationalism i.e. if Muslims constituted the majority in a variable territory then they, on the basis of a common spiritual aspiration, were justified in carving out a nation-state for themselves. Iqbal's prose-writings establish that despite his severe criticism of democracy in his poems, he was unable to find any alternative for democracy. If there existed any alternative, it was either in the form of monarchy or dictatorship, and both these substitutes, according to him, were opposed to the spirit of Islam.4 In light of this evidence it can be concluded that Iqbal, like Al-Farabi, considered democracy as the nearest to Al-Madina-tul-Fadila i.e. the ideal Islamic state. Thus Iqbal's Islamic state is based on free and fair elections, the safeguarding of human rights and the establishment of rule of law. In his view these modern principles were not repugnant to, but in conformity with the injunctions of Islam. It is clear that the elected Muslim Assembly or Parliament of Iqbal is not Shura i.e. an advisory body for furnishing advice to any person who commands authority (Oolul Amar), and who, as Imam, is entitled to accept or reject such advice. On the contrary, his elected Assembly is a mutually consultative body which is sovereign, and as a legislative body and perform functions of Ijma. It is to this elected Assembly or Parliament that Iqbal bestows the power of Ijtihad-e-Mutliq for Islamic law making. It may be noted at this stage that Iqbal's model is different from the Saudi or other forms of Muslim monarchy, or numerous varieties of dictatorship established in some Muslim countries, or the secular republic of Turkey. He does not approve of the concept of Naibeen-e-Imam or the body called Walayat-e-Faqih as a substitute for the interpretation of Islamic law until reappearance of the Imam-e-Ghaib (the hidden Imam), as this would amount to the establishment of a kind of theocracy.5 For the same reason, he may have also rejected the former Taliban model of Emirate based on Shura i.e. advisory body of the ulema (religious doctors). It should be kept in mind that Iqbal's belief in the Finality of Prophet-hood also included the termination of every variety of monarchy as well as priesthood. Briefly, according to him, the birth of Islam meant the birth of inductive intellect, or that in order to attain full self consciousness, man was ordained to rely on his own resources instead of depending on kings or priests.6

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Why did Iqbal feel the need for Ijtihad-e-Mutliq? The answer is that although Iqbal, in support of his reasoning, mentioned the names of law doctors of the past including Shah Waliullah, who claimed the right of Ijtihad, he did not refer to the different forms of Ijtihad made in India which led to the Wahabi militant movement of Syed Ahmed Brailvi and Shah Ismail, and subsequently the Khilafat movement. Although both these political movements strengthened the Muslim national identity in British Indian, their results were disastrous so far as the Muslims' political, economic, educational and cultural interests were concerned. The writer has attempted to provide some details of losses suffered by Muslims during those years in his book titled Islam and Pakistan's Identity. These different kinds of Ijtihad were indeed motivated by deep religious sentiments but were totally devoid of rational strategy. After collapse of the Mughal Empire in middle of the 19th century, when the decline of Indian Muslims in every sphere of their collective life had reached its climax, Sir Syed Ahmed Khan held Taqlid responsible for this state of affairs.7 On the other hand, in the beginning of 20th century, the Ijtihad declared by the Turkish Sheikh-ul-Islam in defense of the autocratic powers of the Caliph resulted not only in the abolition of Caliphate but also in the breaking up of the Muslim world, large portions of which were occupied by the European imperialist powers. In addition the conventional Ijtihad of the Indian ulema sometime in support of Jihad (war) and sometime in favor of Hijrat (migration) led to complete failure of the Wahabi and Khilafat movements. These were the events which constituted the background that made Iqbal arrive at the conclusion that the jurisprudence developed by Muslim jurists of the past, generally known as the Islamic Shariah, required a fresh review;8 or that the freedom of person as well as the development in the material sciences had completely revolutionalized the foundations of modern life; as a result the kind of Ilm-e-Kalam, theology and Ijtihad which appealed to the minds and provided sufficient satisfaction to hearts of the Muslims of the Middles Ages, was of no importance at present times.9 It was in response to these conditions that Iqbal delivered an address in 1924 on the significance and necessity of Ijtihad-e-Mutliq, due to which he was declared an infidel by some conservative elements.10 Iqbal was conscious of the fact that owing to a lack of knowledge of the subtleties of Fiqh (Islamic Jurisprudence), the elected members of the Muslim Assembly could commit grave errors while reinterpreting or reconstructing Islamic laws. He suggested that a Board of ulema should be nominated to assist or guide the members of Parliament in their debates while enacting such laws. But he deprived them of the right to vote and further explained that this arrangement should be adopted only temporarily. The correct method according to him was to elect a group of lawyers as technocrats who had specialized in the course of a comparative study of Fiqh in the light of modern jurisprudence. In this connection he proposed that the institutions of legal instruction in the country should be made to expand their syllabus so as to include the teaching of Arabic language along with his proposed course of studies. He likewise recommended that Parliament should also elect as technocrats a fixed number of experts in modern banking, accountancy, economics etc. who should along with the lawyers participate in the debates and guide the Assembly during Islamic law-making. In this way, Iqbal thought that Parliament as Ijma would be competent to reinterpret Islamic laws and make legislation through Ijtihad-e-Mutliq.11 There are two points in these suggestions which should be understood. First: Iqbal does not include the ulema as technocrats in the Assembly owing to their sectarian

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differences as well as lack of familiarity with the mode of reasoning adopted in modern jurisprudence. And second: He contemplates a lawyer or legal expert as Mujtahid of today and does not insist on the presence of traditional religious qualifications in him. It is evident from Iqbal's prose-writings that he expected modern ulema and preachers to be well acquainted with Islamic history, economics and social sciences besides the literature and idealism of their nation.12 He appears to be of the view that the present condition of Shariah law and the way in which it was applied, was deplorable, and therefore, it required a complete reconstruction.13 He suggested to the Vice Chancellor of Aligarh Muslim University to select competent and intelligent students from the Madrassas like Deoband and Nadwa and prescribed for them a course of studies of economics, social sciences, traditional Fiqh and modern jurisprudence. He expected that these students should pass the intermediate and LL.B examination and be encouraged to adopt the profession of lawyers. In case they were not inclined to study law, they should be asked to select physics, mathematics or philosophy as subjects so that they could be acquainted with modern thought and sciences. In the second phrase he proposed that they should be made to study the tenets of different sects of Islam, Islamic ethics, metaphysics, theology, Fiqh and modern jurisprudence, so that they were able to deliver lectures on the need of Ijtihad. Among those who were naturally inclined to the study of empirical sciences should be permitted to take up subjects like modern physics, sciences and technology. In the course of Islamic culture, the subjects of Muslim art and architecture must be included and those who selected this course should also be required to learn German and French languages. Iqbal presented these views because he felt that those ulema and preachers who performed the function of moral education of Muslims were not competent for the job because their knowledge of Islamic history and sciences was very limited. 1 4 Iqbal believed that the real aim of Islam was to establish a spiritual democracy. But he did not explain what he meant by it. Some Iqbal scholars are of the view that the expression means tolerance and acceptance of different sects within Islam in his imaginary Islamic state. But in light of Iqbal's prose-writings the expression is not confined only to tolerating Muslim sects but is broad enough to include protection of the rights of non-Muslim minorities.15 Although Iqbal did not explain what he meant by spiritual democracy, it is possible that he had the Misaq-e-Madina in mind while evolving this idea, as it was a written constitutional document of federal democratic nature considering collectively the Muslim, Jewish, Christian and pagan citizens of the state of Madina as Ummat-ul-Wahida ( a single community).16 It is also possible that foundations of his concept can be traced from Surah Al-Maida: Verse 48 of the Quran, where under instead of ordaining one religion for the entire humanity, God ordained different religions so as to test man for what He had bestowed upon him; but along with it He ordered men to compete with each other in performing good acts, and that when they eventually retuned to Him, He would explain to them wherein they differed. Finally if Iqbal believes that the principle of Tauhid is based on human solidarity, human equality and human freedom, when the obvious logical inference is that Islam must be understood as a democracy of a spiritual nature. How would spiritual democracy actually function in Iqbal's vision of Islamic state? It would mean no discrimination between Muslims and non-Muslims as citizens. Furthermore, since Shia and Sunni Muslims, as well as non-Muslim minorities, are governed by their own personal civil law and according to the prevalent legal system, a judge belonging to any religion can adjudicate on a civil dispute in accordance with the personal law

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of the parties, on the same principle it would be legally possible that any elected member of the Assembly, irrespective of his religion, could participate in the discussion on all kinds of legislation and express his views by casting his vote in favor or against the law under consideration. In other words, Iqbal approves of the participation in Ijtihad if non-Muslim elected members of the Assembly as they are virtually an integral part of Ijma. Which are the matters concerning Muslims that require legislation through Ijtihad? Iqbal refers to some defects in the application of Muslim family law in his main lecture on Ijtihad and also is of the view that Islamic criminal law should not be strictly enforced.17 But from his other pros-writings, one can gather the trends of his thought. For instance: In specific circumstances he approves of limiting, expanding or holding in abeyance any Quranic rule of law; Does not object to legislation on Family Planning; Supports legislation on the ban of polygamous marriages; In order to abolish feudalism, insists on strict enforcement of Islamic law of inheritance; Suggests imposition of tax on agricultural income; Does not consider the fixing of limit on land-holdings as against the Shariah; Proposes state land to be distributed among landless tenants; Wants legislation to safeguard the rights of industrial workers and laborers, as such measures are in accordance with the Shariah; Considers the presence of Muslim insurance companies as well as life insurance of Muslims as not repugnant to the injunctions of Islam; For the promotion of free market economy he does not regard bank profit on deposits, interests on bank loans, or income in the form of dividends on Shares as Ribah (usury); Proposes implementation of blasphemy law that provides punishment for Disrespect of the Founders of all Religions (Touhin-eBaniyan-e-Adyan); For the maintenance of peace among Muslim sects, suggests separation of the department of religion from the other departments of state, holding it as a functional arrangement and not amounting to metaphysical separation between church and state; he further proposes that religious department should take over the mosques and appoint the Imams and preachers. This department should likewise affiliate theological seminaries (madrassas) with the universities, emphasizing that such measures were not in conflict with the injunctions of Islam.18 Last question: Can Iqbal's concept of Ijtihad be introduced to Pakistan's National Assembly as a method for Islamic law making? The answer is that Islamization in Pakistan is a different subject and requires a separate study. Most of the recent Islamic laws made applicable in Pakistan have not been implemented through the process of Ijtihad. These laws were imposed by a military dictator with the support of conservative ulema through Presidential Ordinances and had been accepted by Parliament without holding any debate or discussion on them. Therefore Iqbal's concept of Ijtihad has nothing to do with this subject. The main objection, against Iqbal's contention that Parliament, in the form of Ijma, should interpret and implement Islamic laws through the process of Ijtihad, is that

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elected members of the Assembly are not competent to do Ijtihad . But it is evident from the statements of Iqbal that due to ignorance of modern knowledge and jurisprudence, our ulema are also not in a position to guide the elected members of the Assembly in making Islamic laws in accordance with the needs and requirements of contemporary times. Further it is also to be admitted that there is a dearth of such trained lawyers and experts, fulfilling the conditions set by Iqbal, who are required for this purpose. Nevertheless, Iqbal claims that the spirit of Islamic Shariah, being dynamic, with the return of new life, its inner catholicity is bound to work out in spite of the rigorous conservatism of our law doctors.19 In order to find out whether this claim is justified, we must examine what kind of Islamic law are operative in different Muslim nation-states today. For instance, under Indonesia's Islamic law of inheritance son and daughter have equal shares; or that inter-religious performance of Nikah (marriage) is permitted.20 In Iran and Saudi Arabia where punishment for the crime of zina (illicit sex) is rajm (stoning) or death, there besides male's right of permanent Nikah with up to four females, man and woman can have secret temporary sex relationship in the form of contracts known as seeghay and misyar sanctioned under Islamic law of these countries.21 If such laws are inconsistent with our interpretation of Islamic Shariah, then it is necessary to find out under what kind of Ijtihad, Mutliq or Taqlidi, the jurists of these countries had issued fatwas in support of them. Iqbal claims that his visualization of state is Islamic, democratic, welfare as well as human. But in order to make it modern, the power of Ijtihad, he grants to the elected Assembly for the reinterpretation and implementation of Shariah law, is not realizable in Pakistan at this stage, as the Pakistani Muslim nation, which is still struggling for the establishment of a democratic order on a permanent basis in the country, is not yet prepared to take that kind of a leap towards modernity as Iqbal desires.

Notes:
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

The Reconstruction of Religious thought in Islam by Allama Muhammad Iqbal. Publishers Sheikh Muhammad Ashraf. 1982 ed. P. 157. Ibid, pp. 154. 180. Ibid, p. 157. Ibid, p. 157. Ibid, p. 176. Ibid, p. 126. Iqbal Ka Ilm-e-Kalam, by Ali Abbas Jalalpuri. (Urdu). Pp. 50, 51. Zinda Rood by Br. Javed Iqbal. (Urdu). Sang-e-Meel Publications. 2004 ed. Pp. 227. Ibid, Pp. 239-241. Khutbat-e-Iqbal, Tasheel-o-Tafheem (Urdu) by Dr. Javed Iqbal. Sang-e-Meel Publications 2008 ed. P. 6. The Reconstruction of Religious Thought. Pp. 175, 176. Zinda Rood. Pp. 232, 233. Ibid, Pp. 239-241. Ibid, Pp. 232, 233. Speeches and Statements of Iqbal, Compiled by A.R. Tariq. Publishers: Sheikh Ghulam Ali & Sons. 1973 ed. P. 10. Muhammad at Madina by Montgomery Watt. 1962 ed. Pp. 221-225. (English translation of Misaq-e-Madina). The Reconstruction of Religious Thought. P. 172. This material is taken from different collections of prose-writings of Iqbal. The Reconstruction of Religious Thought. P. 164. Quarterly Journal Ijtihad, December, 2007. Council of Islamic Ideology, Islamabad. P. 104. The Herald, June, 2008. Article: Marriage of Convenience by Mahreen Hamdany.

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