An Introduction to Collective

Ijtihad (Ijtihad Jama‘i):

Concept and Applications
Aznan Hasan

Abstract
This article explores the concept of collective ijtihad as a means
of determining new judicial judgments. Accordingly, it analyzes
the theoretical framework of this kind of ijtihad and its applica-
tion by discussing the various institutions that practice it. In gen-
eral, this article seeks to present this as a practical mechanism
for ascertaining the Shari‘ah’s opinion concerning the Muslim
ummah on a variety of current issues. At the outset, it will pre-
sent briefly the controversy concerning the closure of the gate of
ijtihad, for this kind of ijtihad relies heavily upon our recogni-
tion that, throughout the history of Islamic law, jurists have
never abandoned the task of ijtihad.

The Controversy Surrounding the Theory of

the Closure of the Gate of Ijtihad
In his introduction, Joseph Schacht asserted that Islamic law is no longer
relevant to modern life, due to its inflexibility and consequent inability to
meet the constant changes therein. He stated further that the nature of
Islamic law’s unchanging principles had inevitably resulted in this situa-
tion. At the time of the classical jurists, although the nature of the system
was the same, those involved in legal matters found a remedy for Islamic

Aznan Hasan has a B.A. (Hons.) from al-Azhar, an M.A. from Cairo University, and is cur-
rently working on his Ph.D. in Islamic law at the University of Wales, Lampeter, England.
He is a lecturer at the Ahmad Ibrahim Kulliyyah of Law, International Islamic University of
Malaysia, Selangor, Malaysia.
 Hasan: An Introduction to Collective Ijtihad ( Ijtih a d Jam a ‘ i) 27

law’s constrained rudimentaries: ijtihad. This doctrine contributed to easing

the law’s rigid foundations by serving as a dynamic device to suit the appli-
cation of Islamic law to the relevancies of life. This mechanism, however,
had been abandoned with the consensus of the jurists, which led to the
assertion that the gate of ijtihad allegedly had been closed during the mid-
dle of the ninth century. 1 This assertion was then echoed by many scholars,
especially the Orientalists.2
Some scholars refuted this claim. One of them, Wael B. Hallaq, opined
that “these views on the history of ijtihad (i.e., about its abandonment) after
the second/eighth century are entirely baseless and inaccurate.”3 He proved
that the jurists had never abandoned the mechanism of ijtihad, neither in
theory nor in practice. After analyzing the relevant sources in some depth,
namely, the subject matter dating from the fourth/tenth century onward, he
concluded that his findings contradicted the theory suggested by Schacht
and echoed by others.4 The basis of his claim may be summarized by the
following four points:

a) In reality, centuries of Islamic law had witnessed a number of

jurists who had reached the level of ijtihad and had practiced such.
b) After the formation of the well-known schools of law, subsequent
jurists utilized ijtihad as a way to develop positive law within these
schools. The writings of jurists from the sixth century onward pro-
vide overwhelming evidence of this development.
c) The phrase insidad bab al-ijtihad, or any expression that may
imply this notion of closure, never occurred before 500 AH.
Despite this, some scholars claim that closure dated back to the
fourth century AH.
d) The claim that there was a juristic consensus regarding such a clo-
sure seems unlikely, given the books written by jurists who con-
demned those who called for or believed in it.
Ibn ‘Abd al-Barr (d. 463/1070) devoted a whole chapter in his Jami‘
Bayan al-‘Ilm wa Fadlihi to refuting taqlid, and called for those eligible to
undertak ijtihad to do so.5 Al-Khatib al-Baghdadi (d. 462/1069)6 and al-
Mawardi (d. 449/1058) 7 made the same call. More interestingly, in his Ahkam
al-Sultaniyah, al-Mawardi further insisted that the delegated officials
(‘ummal al-tafwid) must apply the result of their own ijtihad even though it
may disagree with that of the ruler (imam), because they were not bound to
follow the ijtihad of others.8 Some jurists even wrote works claiming that the
28 The American Journal of Islamic Social Sciences 20:2

existence of the mujtahid and ijtihad was indispensable. In his Al-Radd ‘ala
man Akhlada ila al-Ard wa Jahila anna al-Ijtihad fi Kulli ‘Asr Fard, the emi-
nent Shafi‘i jurist al-Suyuti (d. 911/1505) argued that ijtihad is a fard kifayah
(communal duty) on the Muslim community as a whole. By failing to pro-
duce even a single mujtahid, the whole community is in a state of sin.
Pursuing this view, al-Suyuti reasoned that knowing and deriving the
Shari‘ah’s opinion in every aspect of life is necessary for all Muslim com-
munities. The only person genuinely qualified to deduce and produce these
opinions, by engaging in ijtihad, is the mujtahid. The cessation of the mech-
anism of ijtihad would eliminate ways of knowing the Shari‘ah’s opinions on
issues facing Muslim communities, a situation that could lead to the demoli-
tion of the Shari‘ah itself. The demise of Islamic law is inconceivable, for
God has promised to protect it until the day of resurrection. 9 Consequently,
the existence of the mujtahid and the undertaking of ijtihad are indispens-
able.10 Courageously, al-Suyuti proclaimed that he was capable of performing
the highest rank of ijtihad in the Shafi‘i school: ijtihad mutlaq.11
In addition to these arguments, affirming the jurists’ consensus that the
gate of ijtihad has been closed as well as the non-existence of the mujtahid
is both self-contradictory and debatable. How could the classical jurists
have reached such a consensus if they were not mujtahidun, for if they were
not, then their consensus may be disregarded because they were not enti-
tled to undertake it. If they were mujtahidun, how could they deny the exis-
tence of something of which they were a part? This clearly demonstrates
that the asserted closure of the gate of ijtihad is baseless and inaccurate,
and, as such, gives validity to Hallaq’s claims.
The contemporary jurist Muhammad Mustafa Shalabi concurred with
Hallaq on the inaccuracy of Schact’s assertion, although his approach to the
issue was different. While he admitted that the notion of such a closure was,
in fact, renounced by the classical jurists, he claimed that the sole purpose of
this was to prevent unqualified people from undertaking ijtihad. Therefore,
the phrase insidad bab al-ijtihad must be understood within the context that
the gate of ijtihad was – and is – closed to all unqualified people. Although
this statement seems merely to repeat the discussion concerning the neces-
sity of holding the necessary qualifications to be a mujtahid, jurists were
forced to reiterate this due to the arrogance of some people, even those who
were unqualified, who wished to undertake this task.
He further argued that the jurists’ writings are open to interpretation, as
there is no textual evidence from any reliable source of Islamic law that
supports the notion of the gate’s closure. Shalabi went on to affirm that
 Hasan: An Introduction to Collective Ijtihad ( Ijtih a d Jam a ‘ i) 29

throughout the history of Islamic law, there were always at least one or two
jurists who were eligible to perform ijtihad, and that therefore the Muslim
community had never been left without any mujtahid throughout its histor-
ical development.12

The Emergence of the Concept

of Collective Ijtiha d
The collapse of the closure theory has given a new dimension to applying
Islamic law in the modern world. Both modernists and Islamists accept that
the appropriate utilization of this legal mechanism will provide Islamic law
with fresh interpretations that are suitable for the modern world. Ijtihad
plays a crucial role in applying the Shari‘ah to contemporary society and,
to quote the words of Vikør: “Ijtihad is a prerequisite for the survival of
Islam in a modern world.” 13
The Prophet practiced ijtihad and encouraged his Companions to exer-
cise it. As shown by al-‘Alwani, on several occasions the Prophet was pre-
pared to tolerate their deficient exercise of ijtihad. This does not deny the
fact that the Prophet would later revise any inadequacy. 14 As a result, before
the Prophet’s death there were Companions who were competent to exer-
cise ijtihad, even though their level of understanding and capability were
different.15 The caliphs used these valuable sources wisely. It is reported
that when the caliphs Abu Bakr and ‘Umar faced a new issue that had no
direct ruling from the Qur’an or no precedent from the Prophet, they would
gather the Companions together and ask for their opinions. After this, they
would pass a judgment based on a consensus or majority opinion of those
who were present at that time. 16 This practice of deducing a ruling through
consultation (shura) with the Companions, as claimed by many, lays the
foundation for the concept of collective ijtihad.17
However, this practice differs from contemporary collective ijtihad in
two aspects. First, such a consultation seemed to happen on the spur of the
moment, for such meetings were not arranged. As shown by Ibn ‘Abd al-
Barr, the caliph would simply call for a meeting in the mosque whenever
he faced a complicated issue that needed to be resolved; contemporary col-
lective ijtihad is undertaken by means of a prior invitation to the members
to gather in a certain place at a given time to discuss particular issues.
Second, there was no predetermined number of members called to engage
in such a consultation, for it was just done with the number of Companions
who were present at the time. None of the records made available by hadith
30 The American Journal of Islamic Social Sciences 20:2

scholars or jurists mention the number of Companions present in any such

meeting; in contemporary collective ijtihad, the number of participants is
fixed. This feature will be scrutinized in detail in the coming pages.
When ‘Uthman became caliph, the Companions, especially during the
second half of his reign, started to disperse all over the Islamic territories.18
Many of them formulated their own ways of deducing ahkam (legal rul-
ings). The resulting diversity of interpretation and consequent differences
in methods of applying the law’s provisions were then expanded through
the jurists’ works. Over time, this resulted in the establishment of the
schools of law, led by the four Sunni schools, namely, Hanafi, Maliki,
Shafi‘i and Hanbali.19 The earlier practice of exercising ijtihad after con-
sulting with the Companions was no longer undertaken.
According to some studies, during this era ijtihad was performed on an
individual basis and no arrangement was made to gather all of the muj-
tahidun together to discuss and agree on specific Shari‘ah rules.20 If all of
the mujtahidun happened to arrive at one particular ruling on a certain
issue, this agreement was referred to as ijma‘ (consensus). But as this hap-
pened only rarely, such jurists as Imam Ahmad believed that ijma‘ was fea-
sible only in matters for which specific evidence is explicit in the Qur’an or
the Prophet’s sunnah.21 According to this view, the only ijma‘ likely to take
place was the ijma‘ held by a particular legal school22 or group of people,23
or ijma‘ confined to particular localities. 24
This state of affairs continued during the subsequent periods of fiqh,
whereby jurists became more comfortable with affiliating themselves with
existing legal schools instead of creating their own.25 Their vigor was
focused mainly on ascertaining strong opinions in their respective legal
school, distinguishing them from weak ones, or expanding and applying
them to new issues. In this regard, some of them attempted to write concise
works, on which others wrote elaborate glosses, on which yet others wrote
further glosses and annotations. It has been proved beyond a shadow of
doubt that there was a tendency during this era to believe that the quality
of the ijtihad made by later jurists was inferior to that made during the
golden era of fiqh. Recognizing the gravity of undertaking ijtihad and
believing that the quality of the mujtahidun had diminished, these later
jurists sought to perform ijtihad collectively. However, the ruling authori-
ties’ gathering the jurists together to discuss and decide certain issues ren-
dered this task unrealizable. 26
The first attempt at such an ijtihad materialized under the auspices of
the Ottoman Empire, which promulgated an Islamic Civil Code (the
 Hasan: An Introduction to Collective Ijtihad ( Ijtih a d Jam a ‘ i) 31

Majallah) during the Tanzimat period. Attempts to revitalize the feeble

Empire led to the promulgation of new laws based mainly on western codes
(i.e., the Penal Code [1840, revised 1851 and 1858], the Commercial Code
[1850, revised 1860], the Code of Commercial Procedure [1861], and the
Commercial Maritime Code [1863]). The promulgation of new civil codes
caused controversy, and several Islamists, led by Cevdet Pasha, aired their
dissatisfaction with the government’s inclination toward adopting western
ideology on the grounds that it was an effort to distance Islam from the
Empire. Hence, they suggested the promulgation of a new civil code that
was western in form and standard, but Islamic in content and approach. As
a result, a seven-man Committee of Jurists (the Committee of the Majallah)
was appointed under the chairmanship of Cevdet Pasha.27 Its members were
Ahmad Khulusi and Ahmad Hilmi, members of the Grand Council of
Justice; Muhammad Amin al-Jundi and Sayf al-Din, members of the
Council of State; Sayyid Khalil, inspector of Awqaf; and Shaykh
Muhammad ‘Ala’ al-Din ibn ‘Abidin (of Damascus). 28
The committee’s main objective was to compile the law of transaction,
based on the Hanafi legal school, which would then be applied throughout the
Empire. To achieve this, the committee studied and extracted the most dom-
inant Hanafi opinions and compiled a law that was subsequently promulgat-
ed as a civil law of the Ottoman Empire. At this time, this law applied to
Turkey and all of the Empire’s other possessions, except for Egypt, Arabia,
and Yemen.29 It remained the civil law of Turkey until Kemal Ataturk
replaced it with the Swiss Civil Code in 1926.30 It remained in force in
Bosnia-Herzegovina even after the Austro-Hungarian Empire occupied it in
1878, in Albania until 1928, in Cyprus at least into the 1960s, in Lebanon
until 1934, in Syria until 1949, in Iraq until 1953, 31 and in Jordan until 1976.32
The Majallah also influenced the modern civil codes of Middle Eastern coun-
tries, and today serves as a source of the codified laws.33
Scholars of Islamic law acknowledge the Majallah as the first and most
successful attempt to codify Islamic law. In the words of Islahi: The
Majallah is “the most successful attempt towards codification in Islamic
law.”34 However, no one, as far as the writers of Islamic law are concerned,
realized that promulgating the Majallah also marked the beginning of the
era of collective ijtihad. Even though this idea did not emerge as such, the
committee’s work laid down the initial method of establishing collective
ijtihad as a means of ijtihad in the modern world.
The seven scholars appointed to prepare this law convened, studied the
classical manuals of Islamic law, scrutinized all of the opinions, and then
32 The American Journal of Islamic Social Sciences 20:2

formed the opinion considered to be the most appropriate for that time35 and
most in harmony with the exigencies of modern life and business. 36 The
committee also practiced the principle of takhayyur,37 for its members
included Hanafi opinions that were not regarded as the most prevalent, as
well as some non-Hanafi opinions. 38 Despite the criticism that the Majallah
adhered to the Hanafi school, one must bear in mind that the Hanafi school
had enjoyed official status in the Ottoman Empire since its formation.39 This
rendered the Majallah inadequate, in some ways, to meet the Empire’s eco-
nomic and social needs. However, it cannot be denied that the idea of col-
lective ijtihad performed by committee brought about an Islamic law in a
new and hitherto unknown form and model.
Rashid Rida, the well-known Islamic modernist, further propounded
the notion of collective ijtihad. During his discussion regarding the
Islamic state’s decline and the reasons behind it, he theorized that in order
for the Islamic ummah to regain lost glory, the gate of ijtihad (if it was
closed) should be reopened and used by contemporary jurists. His thesis
promoted a new theory in the exercise of ijtihad, part of which had not
been advanced by the Majallah. Realizing the difficulties that individuals
might face in exercising ijtihad, he suggested that ijtihad should be per-
formed collectively and supported by the government. In other words, he
tried to relate this kind of ijtihad to the institution of ijma‘. He contended
that the classical theory of ijma‘ was previously impracticable, because
the authorities had never organized it. If planned wisely by the pertinent
authority, the institution of ijma‘ would benefit both the Muslim commu-
nity and the government. He suggested that the caliphate should adapt
this concept, integrate it into governmental institutions, and that those
who perform it consist of ahl al-hall wa al-‘aqd (those who loosen and
bind).
In this sense, Rida attempted to associate the institution of ijtihad with
that of classical shura. However, this body should be considered as an ijma‘
institution whose opinions would be more that just advisory to the caliph.
He suggested that in order to gain recognition from the whole Islamic
world, this institution should be pan-Islamic in character. Thus, his concept
is more far-reaching than the Majallah. Instead of relying upon a specific
legal school, Rida suggested that this committee should be free from any
attachment to a particular school. Rather, its members should look into all
schools of law and concur with the opinion considered to be the strongest,
the most suitable and adaptable to the government, and the most practica-
ble to the community. He contended that it is currently far easier to convene
 Hasan: An Introduction to Collective Ijtihad ( Ijtih a d Jam a ‘ i) 33

all living mujtahidun from the Muslim world for the purpose of applying
ijma‘ than it was at the time of classical jurists.40
This suggestion, however, met with little interest from other jurists. It
appears that, although Rida’s idea of instituting ijtihad and formulating it
collectively was remarkable, its implementation was far from feasible,
given existing realities. The idea was formed when the Ottoman Empire
was at its weakest and facing colossal problems within its provinces. This
issue appeared insignificant with the other problems facing the Empire,
such as having to deal with surrounding armed forces from various
European countries as well as attempting to revitalize itself. The fragmen-
tation of Islamic territories rendered the realization of this vision difficult,
and, consequently, his theory appeared impossible to implement.
Sanhuri revived Rida’s ideas during his work on the new Egyptian civil
code. Confronted by several difficulties while codifying and absorbing
Islamic law into this code, especially in determining the most appropriate
opinion to be promulgated as law, he proposed establishing a body of rep-
resentatives to work on this legislation. The committee’s major role was to
examine carefully the opinions of jurists from various schools regarding
certain issues of law, and then to opine which one was the most suitable for
incorporation into the new legislation.41 Although some contemporary
jurists supported him, many others were reluctant to participate, as the idea
of blending Islamic and foreign law is considered a deviation from Islam
and even apostasy. 42
The suggestion made by Rida and advanced further by Sanhuri,
namely, to make the institution of ijtihad equivalent to classical ijma‘, is
somewhat problematic and unviable due to the various issues necessitating
adequate solutions prior to practical implementation. Such issues include
the controversy over the desirable attributes of those people who are to be
considered as mujtahidun, the question of who decides the nature of the rel-
evant qualifications, and how elections are to be structured. In addition,
there are questions as to the institution’s practical workings and whether or
not the committee’s opinion is to be considered infallible, as in the case of
classical ijma‘ (which set a precedent that could not be altered by any future
mujtahid43). If the answer to this is in the affirmative, then what practical
mechanism can be put in place to prevent the occurrence of contradictory
opinions in the twenty-first century?
Shalabi, another Egyptian jurist, appears to recommend something simi-
lar to Sanhuri’s idea. He opined that, in addition to daily Muslim matters
related to worship, marriage, and so on, ijtihad should be practiced in the
34 The American Journal of Islamic Social Sciences 20:2

sphere of legislation and promulgating law in Islamic countries. Aware of this

task’s magnitude, he contended that since individual ijtihad is not enough, it
should be carried out collectively (jama‘i). He maintained that this could be
achieved by establishing “The Juristic Assemblage” (al-Majma‘ al-Fiqhi) or
“The Supreme Council for Religious Law and Legislation” (al-Majlis al-A‘la
li al-Fiqh wa al-Tashri‘). Reflecting the suggestion made by Rida, he pro-
posed that this committee should be pan-Islamic in character. 44 Apparently,
this was the first time that the term collective ijtihad (ijtihad jama‘i) was
used. After this, scholars began using it to refer to a type of ijtihad in a forum,
where jurists meet and determine rules for arising issues. Some of these
assembling bodies have borne the name al-Majma‘ al-Fiqhi and al-Majlis al-
A‘la. This will be discussed in greater detail later.

The Concept of Collective Ijtiha d

The term collective ijtihad (ijtihad jama‘i) comprises two combined
words: ijtihad and jama‘i. Literally, ijtihad means “to strive, endeavor,
make every effort, take pains, exert oneself, and work (too) hard in doing
something.” 45 It would appear that jurists have encompassed all of these
meanings in their definitions of ijtihad in legal usage. For instance, al-
Amidi defines ijtihad as: “To spare no effort in the quest of discovering the
supposed rules of the Shari‘ah in the sense that the mujtahid leaves no
stone unturned.” 46 Similarly, Ibn al-Haj defines it as: “The exertion of the
mujtahid’s whole effort in his attempt to establish the anticipated rules of
the Shari‘ah.” 47 Al-Asnawi has advanced a shorter definition: “To spare no
effort in the quest of knowing the rules of the Shari‘ah.” Similar defini-
tions can be found in the writings of al-Shawkani,48 al-Subki,49 and al-
Bazdawi.50
In general, there is no significant disparity among these definitions. All
indicate one most important element of ijtihad: the jurists’ striving, to the
point of intellectual exhaustion, to derive and establish rules of law based
on evidence found in the sources of law, such as the Qur’an, the Sunnah,
ijma‘, and qiyas.51 Anything less than total exertion rules out the practice of
ijtihad.52 The subjective nature of this “total exertion” is noteworthy in that
only the mujtahid knows the quality of the endeavor performed. This
explains why jurists stipulate that trustworthiness (‘adalah) in accordance
with Islam is a crucial criterion for any mujtahid. Being a trustworthy per-
son (‘adil), the mujtahid would not produce any ijtihad without exerting the
effort required to reach it.
 Hasan: An Introduction to Collective Ijtihad ( Ijtih a d Jam a ‘ i) 35

These definitions, however, are contested by that proposed by al-Shafi‘i.

When asked: “What is analogy? Is it ijtihad, or are the two different?” he
replied: “They are two terms with the same meaning.” 53 Here, al-Shafi‘i
opined that ijtihad is similar to qiyas, a source of law ranked fourth after the
Qur’an, the Sunnah, and ijma‘. He suggested that they are used interchange-
ably. Al-Ghazzali dismissed this assertion and refuted the idea that the two
were similar in nature by stating that ijtihad means to discover the Shari‘ah’s
rules by utilizing evidence from the sources of Islamic law, and that qiyas is
one of these sources. Thus, in this sense ijtihad is wider than qiyas. As far as
can be ascertained, no other jurist supported al-Shafi‘i’s assertion.
Some scholars divide ijtihad into individual ijtihad (ijtihad fardi) and
collective ijtihad (ijtihad jama‘i). They differ, however, in how they define
these terms. According to al-‘Attar, individual ijtihad is an attempt by a
particular mujtahid to deduce Shari‘ah-based rules from evidence therein.54
Al-Khudari attempts to broaden this definition by including the ijtihad of
several mujtahidun, as long as this ijtihad does not involve all of the muj-
tahidun or an overwhelming majority of them. If this happens, the ijtihad
is considered collective ijtihad or ijma‘ (these two are different, in his
opinion). 55
In contrast, al-‘Attar defines collective ijtihad as the consensus of more
than one mujtahid on a certain Shari‘ah rule, into which all had put their
efforts to derive the ruling from the relevant sources.56 He attempts to
broaden this kind of ijtihad to cover not only the mujtahidun, but also the
researchers of fiqh and jurists who have not attained the rank of a muj-
tahid.57 Al-Khudari, however, regards collective ijtihad as ijma‘, as dis-
cussed in usul al-fiqh literature.58
Various issues arise regarding the above-mentioned division of ijtihad.
It is worth noting here that such a division of ijtihad is unknown within
classical usul al-fiqh literature, which has led some contemporary scholars
to believe that no accurate definition of collective ijtihad has been formu-
lated. 59 As far as the science of usul al-fiqh is concerned, classical jurists
divided ijtihad into individual ijtihad and ijma‘. If one mujtahid deduces
rules from evidence using the proper method of deduction, this is called
individual ijtihad. If all of the mujtahidun, or, according to some jurists, an
overwhelming majority of them, agree on particular rules, this is called
ijma‘. The term collective ijtihad has been created by contemporary jurists
to deal with new and complicated current issues. 60
The complexity in implementing classical ijma‘ lays the foundation for
this kind of ijtihad.61 Consequently, contemporary jurists are at variance in
36 The American Journal of Islamic Social Sciences 20:2

their decision regarding the status of collective ijtihad. Al-‘Attar, al-Hasan,

and Siraj62 maintain that it is another type of ijtihad, one superior to individ-
ual ijtihad but inferior to classical ijma‘. Therefore, it does not necessitate all
of the requirements of ijma‘ and thus can include such non-mujtahidun as
ordinary jurists and researchers of fiqh. Some scholars suggest that collec-
tive ijtihad should include experts from various aspects of human life, such
as economists, sociologists, and medical practitioners.63 Consequently, any
decision resulting from collective ijtihad differs from that produced through
ijma‘, for its decision is not considered as certain (yaqin) and does not enjoy
the infallibility and utmost reliability that ijma‘ does. On the other hand,
some jurists hold the view that this collective ijtihad can be equivalent to
classical ijma‘ in its infallibility and utmost reliability. 64
Qasim puts forward a further proposal.65 While accepting that collective
ijtihad is a medial between individual ijtihad and ijma‘, he suggests that col-
lective ijtihad today should be viewed as having the authority of classical
ijma‘, at least in the place and at the time that it is accomplished. For
instance, the Organization of Great Jurists of Saudi Arabia (Hay’at Kibar al-
‘Ulama’ fi al-Mamlakat al-‘Arabiyat al-Sa‘udiyah) decided that collective
ijtihad should be made compulsory, at least in Saudi Arabia.66 However this
is impractical in some countries where collective ijtihad is practiced by more
than one body. No problem arises if these bodies reach the same ijtihad rul-
ing, but if they do not, which body will have the proper authority to imple -
ment it? Qasim provides no answer to this question.
Some contemporary jurists are attempting to unravel this puzzle. Siraj
suggests that demarcations must be drawn between the consensus reached
by all mujtahidun and that reached by the majority of them. In the former
case, their unanimous agreement would be considered as ijma‘, its decision
would be considered yaqin, and any conflicting opinion would be deemed
khariq li al-ijma‘ (ripping the consensus) and thus considered null and
void.67 However, if agreement is reached only by some or by the majority
of the jurists, it would be considered collective ijtihad. Contrary to ijma‘,
this ijtihad, rather than being certain and admitting no contradictory view,
would be regarded only as the predominant view, and contradiction would
be acceptable as long as appropriate measures were taken while deducing
these opinions. However, jurists should examine this collective ijtihad and
all of its arguments carefully before embarking upon any other ijtihad relat-
ing to a similar case.68 This standpoint seems to be much more practicable,
although it still reflects the notion that collective ijtihad is ranked below
classical ijma‘ and should not possess the latter’s authority.
 Hasan: An Introduction to Collective Ijtihad ( Ijtih a d Jam a ‘ i) 37

Having considered all of these illustrations, it can be concluded that,

conceptually, collective ijtihad differs from individual ijtihad and classical
ijma‘ in two aspects. First, collective ijtihad involves more than one muj-
tahid. However, this does not reach the scale set by the jurists in performing
classical ijma‘, in which all living mujtahidun must be involved. During this
study, no evidence was found of writers attempting to suggest that collective
ijtihad be performed in the way that classical ijma‘ was allegedly performed.
This reluctance can be explained as follows: Although classical ijma‘69 is
theoretically easier to perform at present, I feel that, in practice, jurists
encounter a number of difficulties. Some of these lie in establishing a stan-
dard procedure to determine who is a mujtahid, what are the precise criteria
for such a person’s attributes, and how are they to be gathered from all over
the world? The question of how to deal with the numerous bodies and com-
mittees in the majority of Islamic countries that have, until now, had their
own members and have produced several rulings on various issues, is a most
interesting one. Are they willing to relinquish the status quo in order to
establish just one body of mujtahidun? All of these quandaries suggest that
today, collective ijtihad is of a more practical nature than ijma‘.
This dissimilarity between collective ijtihad and classical ijma‘ leads to
another essential distinction, namely, the question of infallibility, for any
ruling reached via classical ijma‘ is considered irrevocable and not to be
challenged or reinterpreted by later generations. 70 Many scholars do not
extend this privilege to collective ijtihad, although some, such as Qasim,
suggest otherwise.
Therefore, the theoretical framework of collective ijtihad can be laid
down as follows:
a) Collective ijtihad is ranked second in authoritativeness, lower than
ijma‘ but higher than individual ijtihad. It is a more reliable and
practicable means of ijtihad. It is more reliable than individual ijti-
had and, in practical terms, more realistic that classical ijma‘.
b) Its role is essential to Islam’s continuity and survival in the modern
world. It is a viable way to accommodate all Muslims, organiza-
tions, or even authorities who are concerned with a more utilitarian
solution that suits the exigencies of modern life and business.
c) Nevertheless, it does not possess all of the qualities of ijma‘. For
example, it does not hold the same authority and its decisions are
not binding. Consequently disagreement between the various bod-
ies that undertake it is inevitable. Its decisions are consultative only
38 The American Journal of Islamic Social Sciences 20:2

in character, unless a covenant is made between the parties to imple -

ment a binding decision. For instance, the ruling of the Shari‘ah
Advisory Board (Hay’at al-Riqabat al-Shar‘iyah) regarding certain
banking institutions is deemed compulsory for those institutions.
d) Committees that undertake collective ijtihad should consist of the
following members: jurists who have reached the rank of ijtihad,
jurists who are not yet mujtahidun, and researchers who have stud-
ied Islamic law. However, there must be enough mujtahidun on these
committees to produce a beneficial and reliable outcome. Moreover,
there has been an apparent lack of clear parameters as to exactly
which criteria should be required in a contemporary mujtahid.
e) In addition to encompassing jurists of Islamic law, these committees
should include a variety of experts who possess keen insight into the
topics under discussion. For instance, matters related to economics
or medicine should be discussed with economists or medical prac-
titioners. Their membership could be permanent, temporary, or hon-
orary. Although their role would be advisory, their professional
presence would help the other members acquire a better under-
standing of the issues and perhaps eliminate any ambiguities.
Having discussed the theoretical framework, I will now discuss the
practical side of this ijtihad and its application in some of the institutions
established in various Muslim countries.

Applying Collective Ijtihad in

the Muslim World
Applying collective ijtihad can best be explored by studying the institutions
that undertake it. However, as this is beyond the scope of this article, the
following list details a few examples of well-known institutions and the
countries in which they operate (or have their headquarters):
• Egypt: The Academy for Islamic Researches (Majma‘ al-Buhuth
al-Fiqhiyah), and The High Council for Islamic Affairs (al-Majlis
al-A‘la li al-Shu’un al-Islamiyah).
• Saudi Arabia: The Organization of Great Jurists of Saudi Arabia
(Hay’at Kibar al-‘Ulama’ fi al-Mamlakat al-Arabiyat al-
Sa‘udiyah); The Permanent Committee for Scientific Researches
and Ifta’ (al-Lajnat al-Da’imah li al-Buhuth al-‘Ilmiyah wa al-
Ifta’); The General Commission for the Administration of
 Hasan: An Introduction to Collective Ijtihad ( Ijtih a d Jam a ‘ i) 39

Scientific Researches, Ifta’ and Missionary Works and Preaching

(al-Ri’asat al-‘Ammah li Idarat al-Buhuth wa al-Ifta’ wa al-
Da‘wah wa al-Irshad); The International Fiqh Academy (Majma‘
al-Fiqh al-Islami al-Dawli); and The Fiqh Academy (Majma‘ al-
Fiqh al-Islami).
• Kuwait: The General Administration for Ifta’ (Kuwait); The
Islamic Organization for Medical Researches (al-Munazzamat al-
Islamiyat li al-‘Ulum al-Tibbiyah); The Islamic Council for Fatwa
and Shari‘ah Supervisory in the Kuwaiti House of Finance (Hay’at
al-Fatwa wa al-Riqabat al-Shar‘iyah fi Bayt al-Tamwil al-
Kuwayti); and The International Shari‘ah Council for Affairs
Related to Zakat under the House of Zakat in Kuwait (al-Hay’at al-
Shar‘iyat al-‘Alamiyat li al-Zakat al-Tabi‘at li Bayt al-Zakat fi
Dawlat al-Kuwayt).
• Sudan: The Board for Shari‘at’s Ifta’ in Sudan (Majlis al-Ifta’ al-
Shar‘i fi al-Sudan) and The Supreme Council of the Shari‘ah
Supervisory Board for Banking and Financial Institutions in Sudan
(al-Hay’at al-‘Ulya al-Shar‘iyah li al-Jihaz al-Masrafi wa al-
Mu’assasat al-Maliyah fi Sudan).
• Pakistan: The Council for Islamic Teaching in Pakistan (Majlis al-
Fikr al-Islami bi Bakistan).
Several points should be made pertaining to these institutions. First,
members are selected in three ways: from local scholars, international
scholars, or from a combination of the two (local members being predom-
inant). For instance, The Organization of Great Jurists of Saudi Arabia, The
Permanent Committee for Scientific Researches and Ifta,’ as well as The
General Commission for the Administration of Scientific Researches, Ifta’
and Missionary Works and Preaching, select only Saudi citizens as Council
members; The High Council for Islamic Affairs in Egypt selects only
Egyptians; and The General Administration for Ifta’ in Kuwait appoins only
Kuwaiti citizens.
However, some institutions have not restricted their membership to
scholars who reside in the locality of the head offices. For instance, mem-
bers of The International Fiqh Academy and The Fiqh Academy are
selected from different parts of the Islamic world, even though their head-
quarters are located in Saudi Arabia. Similarly, The Islamic Organization
for Medical Researches and the International Shari‘ah Council for Affairs
Related to Zakat under the House of Zakat, in spite of being administrated
40 The American Journal of Islamic Social Sciences 20:2

from Kuwait, draw their members largely from outside of Kuwait. Only the
Academy for Islamic Researches, formed under the patronage of al-Azhar,
adopts a different approach: Law no. 103 of 1961, in Reorganizing Certain
Regulation Pertaining to al-Azhar and Its Institutions, states:
A body of Shari‘ah scholars should be established to succeed the Council
of Great Jurists established in 1911. 71 This organization is to be known as
the Academy for Islamic Researches, the aim of which is to engage in a
wider scope of operation compared to the previous council. The intention
is to appoint no more than fifty scholars, of whom no more than twenty
non-Egyptians may be members; provided that the Egyptian scholars
form the majority in this academy.72

A further issue that may be raised while considering membership is

related to gender. During my study, I found no evidence of any female
scholars participating in these organizations. Nor is there any apparent reg-
ulation that ensures a place for women in ijtihad jama‘i (with the exception
of the Council for Islamic Teaching in Pakistan). By virtue of Article 228
of the Federal Constitution of Pakistan, a committee known as The Council
for Islamic Thinking (Majlis li al-Fikr al-Islami) has been established. The
number of members must be at least eight and must not exceed fifteen. At
least one woman is appointed to this committee, but this is the sole institu-
tion to do so. No explanation can be found to clarify the reason for this, and
one may assume that Muslim communities are unconcerned by the gender
bias in collective ijtihad.
However, the apparent discriminatory nature of the latter should not be
attributed to Islam, because over the centuries Islam has had several female
mujtahidat. ‘A’ishah, the Prophet’s wife, is considered a mujtahidah. She
instructed several Companions and their successors who went on to
become mujtahidun in the history of Islamic law. In reality, stipulating that
women must be included as members is futile, particularly if no competent
and knowledgeable female scholars can be found. It is therefore suggested
that practical steps be taken to educate women and encourage their acade-
mic potential so that eligible female jurists can be produced to take their
place in these institutions.
The scope of these institutions is generally two-pronged: those having
life issues as a main concern, and those engaged in specific matters only.
Representing the first group are numerous institutions of collective ijtihad,
such as The Academy for Islamic Researches, The International Fiqh
Academy, The High Council For Islamic Affairs, and The Permanent
 Hasan: An Introduction to Collective Ijtihad ( Ijtih a d Jam a ‘ i) 41

Committee for Scientific Researches and Ifta’. The International Fiqh

Academy, for instance, states in its objective:
This Academy should be considered as a meeting place for scholars from
various parts of the Muslim World to examine numerous issues relating
to the problems faced by Muslims in their daily lives in their countries;
therefore opinions and views should be exchanged and scrutinized prop-
erly in order to generate the most correct and sound opinions.73

Similarly, circulars relating to implementing Law no. 250 of 1975 with

regard to establishing The Academy for Islamic Researches in al-Azhar,
state their objectives as follows:
To conduct indepth research in every sphere of Islamic studies; to reform
Islamic literature and present it in its unadulterated form; to extend the
knowledge of Islam and Islamic culture at every level; to scrutinize the
Islamic legacy and publish it; to produce statements and opinions on var-
ious issues that emerge, such as societal and economic problems; to carry
out the responsibility of preaching the wisdom of educating mankind
towards the way of Allah; to follow all that is published pertaining to
Islam and its legacy, whether local or international [in order to] promote
any benefit that might be derived from these works, and also to identify
and refute those studies which may deviate from the true ethos of Islam;
and to schematize the system of sending people from al-Azhar to various
parts of the globe and encouraging the acceptance of people to come and
learn in al-Azhar. 74

It is clear from these objectives that The Academy for Islamic

Researches conducts research and undertakes collective ijtihad for various
important issues. In addition to collective ijtihad, some institutions partici-
pate in preaching, publishing books related to Islamic teachings, and in
other issues. This can be seen, for example, in the projected objectives of
The Academy for Islamic Researches in al-Azhar, as well as those of The
General Commission for the Administration of Scientific Researches, Ifta’
and Missionary Works and Preaching, as well as The Organization of Great
Jurists of Saudi Arabia, The Permanent Committee for Scientific
Researches and Ifta in Saudi Arabia, The High Council for Islamic Affairs
in Egypt, and The Board for Shari‘at’s Ifta’ in Sudan.
The second grouping includes institutions that tend to concentrate on
particular issues. For instance, The Islamic Organization for Medical
Researches restricts its sphere of research and ijtihad to matters related
solely to medicine. Its stated objective is
42 The American Journal of Islamic Social Sciences 20:2

to encourage Muslims toward medical research, to support those who

work in areas related to the medical profession, to multiply efforts in
conducting research involving medical issues in order to find a most
appropriate opinion of the Shari‘ah in any new medical findings, and to
discover the solution of the Shari‘ah to any instrument or medication that
may be prohibited by the Shari‘ah.75

Thus, it focuses its work and ijtihad solely upon matters relating to the
medical profession and does not involve itself in any other issues concern-
ing the Muslim ummah. This is true of The International Shari‘ah Council
for Affairs Related to Zakat under the House of Zakat in Kuwait. As its name
implies, it engages only in matters related to zakat. As its objectives state, its
sole purpose is “to deal with various contemporary issues concerning zakat
and all matters related to its collection, distribution, and investments.” 76
In addition to these two particular institutions, many supervisory
boards have been established by banking and finance institutions to moni-
tor their activities or investments. Their purpose is to ensure that their activ-
ities do not violate Islamic banking and finance principles. For instance,
The Islamic Council for Fatwa and Shari‘ah Supervisory Board in Kuwait’s
House of Finance was established primarily to supervise the latter organi-
zation’s activities and to suggest solutions to any current modes of trans-
action and other activities that are contrary to the principals of Islamic
finance. 77 A similar establishment is The Supreme Council of Shari‘ah
Supervisory Board for Banking and Financial Institutions in Sudan, which
specializes in giving fatawa and ijtihad in matters related to transactions,
business, and banking. Its main objectives are to supervise the activities of
the Central Bank of Sudan and other Sudanese banking and financial insti-
tutions, and to ensure their compliance with the Shari‘ah.78
Although these institutions have had a positive effect on the various
mechanisms pertaining to modern finance and their necessary adherence
to the essence of Islamic principles, there is still room for improving ideas
so that they are directly linked to Islam, rather than implementing ideas
that reflect a mere modification of existing western systems. This could
be achieved through the direct involvement of skilled economists and
bankers who would help scholars of Islamic law understand the modern
laws related to transactions and business. Further efforts could be chan-
nelled into producing scholars of Islamic law who are well-versed in the
intricacies of current and rapidly changing methods of conducting trans-
actions and business.
 Hasan: An Introduction to Collective Ijtihad ( Ijtih a d Jam a ‘ i) 43

It is apparent from further observation that decision-making practices

vary from one institution to another. At present, most consider their deci-
sions as consultative only and, as a result, no one is bound to follow their
collective ijtihad. Be that as it may, some of these institutions do follow
another system. Most Shari‘ah supervisory boards belonging to banking and
financial institutions make ijtihad compulsory for their respective banks. For
instance, The Islamic Council for Fatwa and Shari‘ah Supervisory in the
Kuwait’s House of Finance consists of two sections: the Advisory Board,
where scholars of Islamic law meet and arrive at particular decisions on cer-
tain matters; and the Board of Monitoring, whose duties are, inter alia, to
ensure that decisions of the former organization are fully implemented. 79
This practice also is followed by The Supreme Council of Shari‘ah
Supervisory Board for Banking and Financial Institutions in Sudan. 80 The
Council for Islamic Teaching in Pakistan has gone even further: It makes
its decisions binding not only on certain institutions, but also on the coun-
try and the president. Based on Article 230 of the constitution, this council
can object to any bill tabled in Parliament if any deviation from the Shari‘ah
is detected in any provision. Accordingly, the bill must be amended before
being presented for a second time. This mechanism ensures full compliance
with the Shari‘ah’s principles. 81
Some scholars incline toward making the decisions of some of these
institutions binding, at least in the countries in which they operate. This
suggestion is far from realistic, for in most cases there is more than one
institution in any given country that practices collective ijtihad. Given this,
which decision is to be considered binding? In my opinion, this suggestion
is practical in only two situations: where the establishment of a particular
institution is undertaken by that country and provisions for it have been
inserted into the law, so that the relevant authority has to enforce its deci-
sions, as in the case of Pakistan’s Council for Islamic Teaching; or, where
the institution has been set up by a particular body to advise its members on
specific matters (as is the practice in many banking and financial institu-
tions). Even in this scenario, there must be laws that obligate these institu-
tions to implement the decision reached.
This writer feels that whatever shortcomings are manifest in these insti-
tutions’ application of collective ijtihad, it is indisputable that it has brought
new life to the practice of ijtihad and revitalized the application of Islamic
law in today’s world. This does not, however, negate the need for more
research and development in applying this ijtihad, as practiced by these insti-
tutions. Perhaps more discussion is essential for further improvement.
44 The American Journal of Islamic Social Sciences 20:2

Conclusion
Collective ijtihad is a new method formulated by contemporary scholars in
response to modern issues and developments. No precise definition has yet
been proffered, but various scholars define it loosely as the agreement of
the majority of jurists on any matter. Currently, it is practiced by several
fatwa institutions scattered throughout the Muslim world. Despite several
attempts to equate it with classical ijma‘, this study has revealed that, in the-
ory, the former is inferior to classical ijma‘ and yet is superior to individual
ijtihad. Therefore, its decisions are not considered binding, except for those
who are themselves obliged to follow it, such as banking and financial insti-
tutions or Pakistan.
Nevertheless, this kind of ijtihad is more viable than classical ijma‘ and
more reliable than individual ijtihad. Consequently, formulating a particu-
lar answer on any matter should be achieved via this new type of ijtihad.
Nevertheless, some revisions need to be made regarding its practice in
order to overcome any shortcomings. Some suggestions for this have been
presented above. It is hoped that this article will further discussion of the
important mechanism of ijtihad, especially in the area of finding solutions
to today’s problems in accordance with the Shari‘ah’s principles.

Notes

1. Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press,

reprinted 1991), 70-71.
2. Norman Anderson, Law Reform in the Muslim World (London: The Athlon
Press, University of London, 1976), 7; M. Khadduri, “From Religious to
National Law,” in J. H. Thompson and R. D. Reischauer, eds., Modernization
of the Arab World (Princeton, NJ: Van Nostrand, 1966), 77-78; H. A. R. Gibb,
Mohammedanism (London and New York: Oxford University Press., 1970),
104; N. J. Coulson, A History of Islamic Law (Edinburgh: University Press,
1964), 81; Majid Khadduri (tr.), Islamic Jurisprudence: Shafi‘i’s Risala
(Baltimore: The Johns Hopkins Press, 1961), 7.
3. Wael B. Hallaq, “Was the Gate of Ijtihad Closed?” International Journal of
Middle Eastern Studies, no. 16 (1984): 4.
4. Ibid., 3-41.
5. Yunus ibn ‘Abdullah Ibn ‘Abd al-Barr, ed. Abu al-Ashbal al-Zuhayri, Jami‘
Bayan al-‘Ilm wa Fadlihi, 1st ed. (Dar ibn al-Jawzi: 1994/1414).
6. Al-Khatib al-Baghdadi, Kitab al-Faqih wa al-Mutafaqqih (n.p.: n.d.): 2:66-70.
7. Al-Mawardi, Adab al-Qadi, ed. M. H. al-Sarhan (Baghdad: Matba‘at al-
Irshad, 1971/1391), 1:269-73.
 Hasan: An Introduction to Collective Ijtihad ( Ijtih a d Jam a ‘ i) 45

8. ‘Ali ibn Muhammad al-Mawardi, Al-Ahkam al-Sultaniyah wa al-Wilayat al-

Diniyah (n.p.: 1960), 116.
9. Allah says in al-Qur’an: “It is We Who have sent down the Reminder and We
Who will preserve it (Surat al-Hijr: 9).
10. Al-Suyuti, Al-Radd ‘ala man Akhlada ila al-Ard wa Jahila Anna al-Ijtihad fi
Kull ‘Asr Fard (n.p.: n.d.), 1:63ff.
11. Speaking on himself in this regard, he said: “God has bestowed on me alone
and uniquely the duty of undertaking ijtihad in this age.” Cited in J. O.
Hunwick, ed., “Ignaz Goldziher on al-Suyuti,” Muslim World 68, no. 2 (April
1978): 98.
12. Muhammad Mustafa Shalabi, Al-Fiqh al-Islami bayna al-Mithaliyat wa al-
Waqi‘iyah (Alexandria: 1960), 189-91.
13. S. Knut Vikør, “The Development of Ijtihad and Islamic Reform, 1750-1850”
(paper presented at the Third Nordic Conference on Middle Eastern Studies:
Ethnic Encounter and Culture Change, Joensuu, Finland, 19-22 June 1995).
Online at: www. Hfuib.no/institute/smi/paj/vikør.html.
14. Taha Jabir al-‘Alwani, Ijtihad (Herndon, VA: International Institute of Islamic
Thought, 1993), 6-9.
15. Al-‘Alwani claims that there were less than 160 men and women who were
qualified to practice ijtihad at that time, yet no evidence supporting this claim
is provided. Ibid., 8.
16. Examples of these judgments can be found in Abu Yusuf, Ya‘qub ibn Ibrahim
al-Ansari, Kitab al-Kharaj (Cairo: al-Matba‘at al-Salafiyah, 1325), 26-27; al-
Qasim ibn ‘Abd al-Salam Abu ‘Ubayd, Kitab al-Amwal, ed. Khalil Harras
(Cairo: Maktabah Kulliyah al-Azhariyah, 1975/1395), 61-62; Abu
Muhammad ‘Abdullah ibn ‘Abd al-Rahman ibn Bahram al-Darimi, Sunan al-
Darimi (Beirut: Dar al-Kutub al-‘Ilmiyyah, n.d.), 1:58, Abu Muhammad
‘Abdullah ibn Ahmad ibn Muhammad Ibn Qudamah, Al-Mughni (Beirut: Dar
al-Kutub al-‘Ilmiyah, n.d.), 2:720-21; al-‘Ayni, ‘Umdat (n.p.: n.d.), 23:266;
Yunus ibn ‘Abdulah Ibn ‘Abd al-Barr, ed. Abu al-Ashbal al-Zuhayri, Jami‘
Bayan al-‘Ilm wa Fadlihi, 1st ed. (Dar Ibn al-Jawzi: 1994/1414), 2:56.
17. ‘Abd al-Nasir Tawfiq al-‘Attar, “Al-Ta’rif bi al-Ijtihad al-Jama‘i,” Conference
on al-Ijtihad al-Jama‘i fi al-A‘lam al-Islami (al-Ain, UAE: United Arab
Emirates University, 1996), 1:32 (organized by Faculty of Shari‘ah and Law);
al-‘Alwani, Ijtihad, 8.
18. The second caliph, ‘Umar ibn al-Khattab, did not allow the Companions to
disperse but kept them in Madinah. When ‘Uthman ibn al-‘Affan became
caliph, this decree was discontinued.
19. For some of the examples of these disagreement and their reasons, see M. S.
H. Ma’sumi, “Disagreement on the Sahabah and Early Jurists,” Hamdard
Islamicus 2, no. 4 (1979): 23-35.
20. Wahbah al-Zuhayli, Usul al-Fiqh al-Islami, 2d ed. (Damascus: Dar al-Fikr,
1998), 1:488; al-‘Attar, “Al-Ta‘rif,” 1:32.
46 The American Journal of Islamic Social Sciences 20:2

21. It is reported that Imam Ahmad said: “It is no more than a lie for any man to
claim the existence of ijma‘. Whoever claims ijma‘ is telling lie.” See
Muhammad ibn ‘Ali al-Shawkani, Irshad al-Fuhul ila Tahqiq al-îaqq min
‘Ilm al-Usul, ed. Muhammad Hasan (Beirut: Dar al-Kutub al-‘Ilmiyah, 1999),
64; Ibn Qayyim al-Jawziyah, A‘lam al-Muwaqqi‘in ‘an Rabb al-‘Alamin
(Cairo: al-Maktabat al-Tijariyah, 1374), 1:30. Among recent scholars who
held that classical ijma‘ is not feasible in modern times are al-Shakyh al-
Khudari Abu Zuhrah and Abd al-Wahhab Khallaf. See al-Zuhayli, Usul al-
Fiqh al-Islami, 1:578-81. See also note 68 (below).
22. This kind of ijma‘ is often cited in classical book of fiqh with the following
citation “That on which our associates (ashabuna) have agreed and dis-
agreed.” For instance, see ‘Umar ibn ‘Abd al-‘Aziz al-Husam al-Shahid Ibn
Maza, Sharh Adab al-Qadi, ed. Abu al-Wafa’ al-Afghani and Muhammad al-
Hashimi (Beirut: Dar al-Kutub al-‘Ilmiyah, 1994), 4-5. Cited in Wael B.
Hallaq, Authority, Continuity and Change in Islamic Law (Cambridge, UK:
Cambridge University Press, 2001), 80.
23. Such as ijma‘ al-shaykhayn, ijma‘ al-khulafa’ al-rashidin, or ijma‘ al-‘itrah.
24. Such as ijma‘ ahl al-Madinah and ijma‘ ‘ulama’ al-Kufah. See al-Zuhayli,
Usul al-Fiqh al-Islami, 1:505, 512-16; Wael B. Hallaq, A History of Islamic
Legal Theories: An Introduction to Sunni Usul al-Fiqh (Cambridge University
Press: 1997), 20.
25. This era was accepted by many scholars as one of taqlid.
26. The idea of selecting specific opinions to be made into the law of the coun-
try or, in other words, asking the jurists to produce certain opinions on cer-
tain issues, did emerge throughout Islamic history. However, it was never
put into effect for various reasons. For further discussion on this, see Amin
Ahsan Islahi, Juristic Differences and How To Solve Them in an Islamic
State, 1st ed., tr. S. A. Rauf (New Delhi: International Islamic Publishers,
1993), 58; Amin Ahsan Islahi, Islamic Law, Concept, and Codification
(Lahore: Islamic Pubs., n.d.), 89ff; Subhi Mahmasani, Falsafat al-Tashri‘
fi al-Islam (Malaysia: Hizbi Publisher, 1987), 40, Hasan Ahmad, The Early
Development of Islamic Jurisprudence (Islamabad: Islamic Research
Institute, 1970), 161; Zafrul Islam, Socio Economic Dimension of Fiqh
Literature in Medieval India, 1st ed. (Lahore: Research Cell, Dyal Singh
Trust Library, 1990), 70. It seems that one of the points raised by Rida in
his suggestion for institutionalizing of ijma‘ is that without the involve-
ment of the ruling authorities, the practice of ijma‘ would never be feasi-
ble. See Muhammad Rashid Rida, Al-Khilafah al-‘U`ma (Cairo: 1923),
80, 102.
27. Al-‘Attar, “Al-Ta‘rif,” 1:32-33.
28. Mahmasani, Falsafat al-Tashri‘, 42.
29. Al-Qadi Tariq Ziyadah, “Mawqi‘u Majallat al-Ahkam al-‘Adliyah al-
‘Uthmaniyah bayna I‘timad Madhhab Fiqhi Rasmi Wahid wa al-Qawanin al-
 Hasan: An Introduction to Collective Ijtihad ( Ijtih a d Jam a ‘ i) 47

Madaniyah al-îadithah,” Dirasat fi al-Fiqh wa al-Qanun (Lebanon: Dar al-

Shimal Press, 1990), 104.
30. G. Shaw-Lefevre Eversley, The Turkish Empire: Its Growth and Decay
(Lahore: Premier Book House, 1959), 440-41.
31. “Medjelle,” First Encyclopedia of Islam, 1913 - 1936 (Leiden: E. J. Brill
1987), 449.
32. Ziyadah, Mawqi‘u, 104.
33. Ibid.
34. Islahi, Islamic Law, 91.
35. “Medjelle,” E. I., 971.
36. J. H. Kramers, “Medjelle,” First Encyclopedia of Islam, 449.
37. Takhayyur is the general Arabic term for the process of selection. For further
reading, see Coulson, A History, 185- 201.
38. J. N. D. Anderson, Islamic Law in the Modern World (New York: New York
University Press: 1959), 17, 24, 47-48.
39. “Medjelle,” 971.
40. Rida, Al-Khilafah al-‘U`ma, 66, 70, 79, 80, 102.
41. ‘Abd al-Razzaq al-Sanhuri, “Wujub Tanqih al-Qanun al-Madani al-Misri wa
‘ala ayy Asas Yakunu Hadha al-Tanqih,” Majallat al-Qanun wa al-Iqtisad,
6:115-16.
42. ‘Umar Sulayman al-Ashqar, Al-Shari‘at al-Ilahiyah la al-Qawanin al-
Jahiliyah (n.p.: 1078 AH), 127-46.
43. In classical ijma‘, any opinion contradicting the opinion held by way of ijma‘
is considered null and void (khariq li al-ijma‘).
44. Muhammad Mustafa Shalabi, Al-Fiqh al-Islami bayn al-Mithaliyah wa al-
Waqi‘iyah (Alexandria: 1960), 189-91.
45. Ruhi and Munir al-Ba‘labaki, Al-Mawrid, 1st ed. (Beirut: Dar al-‘Ilm li al-
Malayin, 1997), 38.
46. Sayf al-Din al-Amidi, Al-Ihkam fi Usul al-Ahkam, 1st ed. (n.p.: Tab‘at Rabitah
al-‘Alam al-Islami, 1387), 4:141.
47. Ibn Amir al-Haj, Al-Taqrir wa al-Ta hbir, 1st ed. (Cairo: al-Matba‘at al-
Amiriyah, 1316 AH), 3:291.
48. Muhammad ibn ‘Ali al-Shawkani, Irshad al-Fuhul ila Tahqiq al-îaqq min
‘Ilm al-Usul (Beirut: Dar al-Ma‘rifah, 1979), 250.
49. ‘Ali ibn ‘Abd al-Kafi al-Subki, Al-Ibhaj fi Sharh al-Minhaj (Cairo: Maktabat
al-Kulliyat al-Azhariyah, Cairo, 1982), 3:262.
50. ‘Ala’ al-Din ‘Abd al-‘Aziz ibn Ahmad al-Bazdawi, Kashf al-Asrar ‘an Usul
Fakhr al-Islam al-Bazdawi (Beirut: Dar al-Kitab al-‘Arabi, 1973), 4:14.
51. Muhammad Muhammad Farhat, “Al-Ijtihad al-Jama‘i: Ta’rifuhu, Shurutuhu,
Mawdu‘atuhu, Wasa’iluhu, wa Adillatuhu,” Conference, 1:129.
52. Rachel Anne Codd, “A Critical Analysis of the Role Ijtihad in Legal Reforms
in the Muslim World,” Arab Law Quarterly 14, part 2 (1999): 112-31, at page
115.
48 The American Journal of Islamic Social Sciences 20:2

53. Khadduri, Islamic Jurisprudence, 288.

54. Al-‘Attar, “Al-Ta‘rif,” 1:31.
55. Al-Sayyid al-Tayyib Khudari, Al-Ijtihad fi Ma la Nass fihi, 1st ed. (Riyadh:
Tab‘at Maktabat al-Haramayn, 1983), 81.
56. Al-‘Attar, Al-Ta‘rif bi al-Ijtihad al-Jama‘i, 1:31.
57. Ibid.
58. Khudari, Al-Ijtihad fi Ma la Nass fihi, 81.
59. Jamal al-Din Mahmud, “Al-Ijtihad al-Jama‘i fi al-Mamlakah al-‘Arabiyah al-
Sa‘udiyah,” Conference, 1:395.
60. Khalifah Babkar Al-Hasan, “Commentary on ‘Abd al-Nasir’s ‘Al-Ta‘rif,’”
Conference, 1:116; Farhat, “Al-Ijtihad al-Jama‘i,” Conference, 1:146.
61. Farhat, “Al-Ijtihad al-Jam a‘i,” Conference, 1:146.
62. Muhammad Ahmad Siraj, “Al-Ijma‘ fi Ahkam al-Mu‘amalat al-Maliyat al-
Mu‘asirah,” Conference, 2:664-65.
63. Al-‘Attar, “Al-Ta‘rif,” 1:31.
64. Ibid.; Khudari, “Al-Ijtihad fi Ma la Nass fihi,” Conference, 81; Farhat, “Al-
Ijtihad al-Jam a‘i,” Conference, 1:168; Yusuf al-Qardawi, Al-Ijtihad fi al-
Shari‘ah al-Islamiyah, 1st ed. (Kuwait: Tab‘at Dar al-Qalam), 182.
65. Yusuf Mahmud Qasim, “îujiyat al-Ijtihad al-Jama‘i, wa al-îulul al-
Muqtarahah ‘inda Ta‘addud al-Ijtihadat fi Mawdu‘ Wahid,” Conference,
2:904.
66. Ibid., 913-16.
67. The doctrine of ijma‘ operated as a restrictive principle to ratify the status quo,
for once the ijma‘ had cast an umbrella authority not only over those points
that were the subject of a consensus but also over existing variant opinions, to
propound any further variant was to contradict the infallible ijma‘ and there-
fore tantamount to heresy. See Ignaz Goldziher, Introduction to Islamic
Theology, tr. Andras and Ruth Hamori (Princeton, NJ: Princeton University
Press, 1981), 50 ff.
68. Muhammad Ahmad Siraj, “Al-Ijma‘ fi Ahkam,” Conference, 2:664-65.
69. Even the existence of the classical ijma‘ in practice is also arguable. Al-Shafi‘i
for instance, maintained that ijma‘ only existed regarding obligatory duties,
such the five pillars of faith, and other matters on which Qur’anic verses or
Prophetic tradition have decisively placed them. In such a situation, one can
still query the significance of such ijma‘, for as long as these two sources have
already pronounced rules, no other sources are necessary for these rules to be
effective. In this way, the authority of ijma‘ is only redundant in the face of a
decisive ruling of the Qur’an or the Sunnah. See: Mohammad Hasyim Kamali,
Principles of Islamic Jurisprudence, 2d rev. ed. (Kuala Lumpur: Ilmiah Pubs.,
1998), 168-69.
70. Wael B. Hallaq, “On the Authoritativeness of Sunni Consensus,” Journal of
Middle Eastern Studies, no. 18 (1986): 427-28.
71. By virtue of Law no. 10.
 Hasan: An Introduction to Collective Ijtihad ( Ijtih a d Jam a ‘ i) 49

72. ‘Abd al-Fattah Barakah, “Al-Ijtihad al-Jama‘i fi Misr: Majma‘ al-Buhuth al-
Islamiyah,” Conference, 1:195.
73. Majallat Majma‘ al-Fiqh al-Islami, no. 2 (1986/1407), 2:33.
74. Barakah, “Al-Ijtihad al-Jama‘i,” 1:195.
75. ‘Abdullah Madhkur al-Madhkur, “Al-Ijtihad al-Jama‘i fi Dawlat al-Kuwayt,”
Conference, 1:441.
76. Ibid., 1:485-89.
77. Ibid., 1:475-78.
78. Khalifah Babkar Al-Hasan, “Al-Ijtihad al-Jama‘i fi al-Sudan: Tarikhuhu wa
Mu’assasatuhu wa Injazatuhu,” Conference 1:611-16.
79. Al-Madhkur, “Al-Ijtihad al-Jama‘i fi Dawlat al-Kuwayt,” 1:475.
80. Al-Hasan, “Al-Ijtihad al-Jama‘i fi al-Sudan,” 1:613-14.
81. Diyab ‘Abd al-Jawwad ‘Ata, “Al-Ijtihad al-Jama‘i fi Bakistan,” Conference
1:586-88. Constitution of Islamic Republic of Pakistan Year 1973.