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Neo-Ijtihād In the Modern Legal Studies: A Case Study of Al-Qaraḍāwī’s Concept of

Neo-Ijtihād
Kazeem Adekunle Adegoke(1)

Abstract
Shaykh Yūsuf ʿAbd Allah al-Qaraḍāwī is a notable erudite Islamic legist (faqīh) in the contemporary Islamic world of the
fifteenth century after Hijrah. His rich and wide scholarship and intelligibility have immensely benefitted the Muslim world.
He is, most of the time, a controversial scholar as a result of his preference of situational Neo-Ijtihād to traditional juristic
approaches of medieval legists. This has indeed created an interesting landmark in the contemporary development of various
areas of Islamic law and jurisprudence which calls for thorough research. The objective of this paper is to examine the
opinion of al-Qaraḍāwī on neo-Ijtihād. This study explores the legal position of Ijtihād and Neo-Ijtihād in the contemporary
Islamic legal system and al-Qaraḍāwī’s approach to the necessity, methodology and employment of Neo-Ijtihād in the
modern day Islamic legal theory. He premises this on a certain legal assumption of Tajdīd al-Fiqh. The research methods
used in this study are expository, descriptive and analytical. This research paper concludes that the situational
jurisprudential issues should be better handled by contemporary seasoned Islamic jurists who are fully aware of the situation
and circumstances surrounding the issues in relation to time and place. Also, the researcher maintains that this paper could
be used as a reference to prove that contemporary jurisprudential issues are limited by time and are geographically binding,
and thus medieval juristic materials would be lacking in addressing them.
Keywords: Ijtihād, Neo-Ijtihād, al-Qaraḍāwī, Tajdīd al-Fiqh.

‫ دراسة حالة مفهوم القرضاوي لالجتهاد اجلديد‬:‫االجتهاد اجلديد يف الدراسة الفقهية احلديثة‬
‫ملخص البحث‬
‫ أفاد علمه الغزير والواسع وذكاؤه العامل‬.‫يعد الشيخ يوسف عبد هللا القرضاوي من كبار الفقهاء يف العامل اإلسالمي املعاصر يف القرن اخلامس عشر اهلجري‬
‫ عامل مثري للجدل نتيجة لتفضيله لالجتهاد الظريف اجلديد على األساليب الفقهية التقليدية لفقهاء العصور‬،‫ يف معظم األحيان‬،‫ إنه‬.‫اإلسالمي بشكل كبري‬
.‫مثريا لالهتمام يف التطور املعاصر ملختلف جماالت الشريعة والفقه اإلسالمي الذي يدعو إىل إجراء حبث شامل‬ ً ‫معلما‬
ً ‫ لقد خلق هذا ابلفعل‬.‫الوسطى‬
‫ تستكشف هذه الدراسة املكانة القانونية لالجتهاد واالجتهاد اجلديد يف النظام‬.‫اهلدف من هذه الورقة هو دراسة رأي القرضاوي يف االجتهاد اجلديد‬
‫ لقد فرض هذا على‬.‫القانوين اإلسالمي املعاصر وهنج القرضاوي للضرورة ومنهجية االجتهاد اجلديد وتوظيفه إايه يف النظرية الفقهية اإلسالمية املعاصرة‬
‫ ختلص هذه الورقة البحثية إىل أن القضااي‬.‫ ووصفية وحتليلية‬،‫ مناهج البحث املستخدمة يف هذه الدراسة هي تفسريية‬.‫افرتاض قانوين معني لتجديد الفقه‬
‫الفقهية ذات الصلة ابلظروف ينبغي معاجلتها بشكل أفضل من قبل فقهاء إسالميني معاصرين مدركني متام اإلدراك للوضاع والظروف احمليطة ابلقضااي‬
،‫ يؤكد الباحث أن هذه الورقة ميكن استخدامها كمرجع إلثبات أن القضااي الفقهية املعاصرة مرتبطة ابلزمن واملكان اجلغرايف‬،‫أيضا‬
ً .‫املتعلقة ابلزمان واملكان‬
.‫وابلتايل لن تكون هناك مواد فقهية من القرون الوسطى موجودة ملعاجلتها‬
.‫ جتديد الفقه‬،‫ القرضاوي‬،‫ االجتهاد اجلديد‬،‫ االجتهاد‬:‫كلمات مفتاحية‬
(1) Senior Lecturer, Department of Religious Studies, University of Lagos, Akoka-Yaba, Lagos, Nigeria. [email protected]

Contents 6. Rationale Behind al-Qaraḍāwī’s Concept of Neo-

113
Ijtihād in his Legal Theories
1. Introduction 109
6.1. Quasi-Dependent Islamic Jurist 113
2. Who is al-Qaraḍāwī? 109
6.2. Dependent Islamic Jurist 114
3. The Position of Ijtihād and Neo-Ijtihād in the Islamic
110
Legal System 7. Al-Qaraḍāwī’s Methodology and Employment of Neo-
114
Ijtihād in the Contemporary Period
4. Ijtihād, Neo-Ijtihād and other Principles of Islamic
111
Legal Sources 7.1. Modification of Traditional Juristic Legacy and the
114
Renewal of Fiqh-Content
4.1. Al-Dilālah al-Qaṭʿiyyah 111
7.2. Formal Renewal and Codification of Fiqh-Based
4.1.1. Qaṭʿiyyah al-Thubūt 112 115
Legal Theory
4.1.2. Qaṭʿiyyah al-Dilālah 112 7.3. Implementation of Islamic Legal Rules (Sharīʿah) in
115
Daily life
4.2. Al-Dilālah al-Ẓanniyyah 112
8. Conclusion 116
5. Al-Qaraḍāwī’s Approach to the Employment of Neo-
112
Ijtihād in his Legal Theories References 116
 International Journal of Fiqh and Usul al-Fiqh Studies
Volume 4, Issue 1, 1441/2020 109

1. Introduction Thus, this paper attempts to examine the concept

of neo-ijtihād in the modern Islamic legal system in
In the early period of Islam, the fundamental sources of
light of the legal competence of Yūsuf al-Qaraḍāwī,
the Sharīʿah and Fiqh were the Qur’ān and the Sunnah
one of the outstanding legists of the fifteen century after
of the Prophet (S.A.W). During this period, Sunnah
Hijrah. The paper is divided into eight sections. Section
served as a means for the elaboration, exemplification
one introduces the topic with a brief review of relevant
and interpretation of the Qur’ān. The Arabian society
literature, section two cites a short life sketch of al-
(place of origin of Islam) in which these fundamental
Qaraḍāwī, section three deals with the position of
sources were revealed and practised was naturally
ijtihād and neo-ijtihād in the Islamic legal system,
designed to develop further as a result of the expansion
section four examines ijtihād, neo-ijtihād and other
of Islam outside that society. Hasan (1982) observes
principles of Islamic legal sources, section five
that a majority of the jurisprudential issues that
discusses al-Qaraḍāwī’s approach to the employment
confronted the first generation of Muslims differed
of neo-ijtihād in his legal theories, section six
from those of the coming generations in the wake of the
expatiates on the rationale behind al-Qaraḍāwī’s
interplay between Islam and other non-Islamic cultures
concept of neo-ijtihād in his legal theories, section
which generated situations where the former had to
seven examines al-Qaraḍāwī’s methodology and
inadvertently interact with the latter. (Hasan, 1982,
employment of neo-ijtihād in the contemporary period
115).
while section eight concludes the study.
As a result of this development, the Qur’ān and
Sunnah, which served as the only fundamental sources
of Islamic law during the time of the first generation of 2. Who is al-Qaraḍāwī?
Muslims, had to be supplemented, or sometimes re- There is no doubt about the fact that Yūsuf ʿAbd Allah
interpreted and elaborated to capture new al-Qaraḍāwī is one of the controversial figures in the
jurisprudential problems in order to find answers and discipline of Islamic jurisprudence (Fiqh) in the
solutions to them. It is on this understanding that contemporary period.
Islamic jurisprudence (Fiqh) was developed to deal He was born in Egypt in 1926. This is equivalent
with the emergence of new jurisprudential issues from to 1344 of the Hijrah calendar. He completed the
time to time and from one place to another since the memorization (ḥifz) of the Qur’ān before the age of ten.
time of the Prophet (S.A.W). This time and location He had his elementary education, secondary education,
bound jurisprudential development was created and re- undergraduate and post-graduate studies at Al-Azhar
created, interpreted and re-interpreted, developed and Institution of learning. These studies ended in 1973
re-developed on the premises of varied circumstances with the completion of his doctoral programme (Ph.D)
relating to time, place, situation and culture. (Hasan, in Sharīʿah and Fiqh. He once worked as a khaṭīb and
1982, 115). writer in the Department of Awqāf and Sharīʿah at Al-
Regarding this development, Kamali (1991) Azhar University in Cairo. He also served as the Dean
reveals that ijtihād became necessary and it has to be a of the College of Sharīʿah and Islamic Studies as well
continual jurisprudential process of interpreting the as the Director of the Centre for Sunnah and Sīrah
primary source of Islamic law (Sharīʿah) by relating it Studies at the University of Qaṭar. (Al-Raysūnī, 2003,
to the changing conditions of Muslim societies in the 111).
aspiration for justice, salvation and truth. (Kamali, He is a member of several Islamic academic
1991, 366). This jurisprudential exercise of re-reading, societies and associations. He was appointed as
re-thinking and re-interpreting the Islamic chairman of the Academic Council of the University of
jurisprudence in accordance with the above-mentioned Al-Amīr ʿAbd al-Qādir for Islamic Sciences in
circumstances is what is popularly known as ijtihād. It Constantine, Algeria and a Special Adviser on Islamic
was later re-packaged in the modern period as neo- Affairs to the Ministry of Islamic Affairs in the same
ijtihād and this is the ambit of this study. country. (Al-Qaraḍāwī, Y., 1991, ii). Currently, he is
 Neo-Ijtihād In the Modern Legal Studies: A Case Study of Al-Qaraḍāwī’s Concept of Neo-Ijtihād
110 Kazeem Adekunle Adegoke

the chairman of the International Union of Muslim 18. Bayyinat al-Ḥall al-Islāmī wa Shubuhāt al-
Scholars (IUMS) and the European Council for Fatwa ‘Ulmānīyyīn wa al-Mutagarribīn;
and Research (ECFR). He has also involved himself in 19. Fī Fiqh al-Aqallīyyāt al-Muslimah Ḥayat al-
the most popular Fiqh session aired by Al-Jazeera TV Muslimīn Wasaṭ al-Mujtama‘āt al-Ukhrā (El-
Channel “Al-Sharīʿah wa al-Ḥayāt. This programme Wereny, 2017).
anchored by Yūsuf al-Qaraḍāwī has ceased to exist
Al-Qaraḍāwī is also one of the most temperate
after the last appearance of al-Qaraḍāwī on the show on
Islamic legists who has combined traditional
August 25, 2013 for unknown reason, which has earned
knowledge of Sharī‘ah and Fiqh with the
him popularity and recognition not only among the
understanding of contemporary problems (Fiqh al-
Muslims in the Middle East, but among European
Wāqiʿ). His writings have found general acceptance
Muslims as well. (El-Wereny, 2016, 7).
among all sectors of the Muslim world, and many of his
Without mincing words, al-Qaraḍāwī is an works have been translated into various languages (Al-
influential authority on contemporary Islamic Raysūnī, 2003)
jurisprudence in the Islamic world. (Caeiro & Al-Saify,
2009, 109).
3. The Position of Ijtihād and Neo-Ijtihād
As a scholar of high repute, al-Qaraḍāwī has
in the Islamic Legal System
written and published several books on various aspects
The legal term “ijtihād” gets its derivation from the
of Sharī‘ah and Fiqh. Among these books are:
Arabic verb “ijtahada” which, according to Cowan,
1. Al-Ḥalāl wa al-Ḥarām fi al-Islām;
means “he exerted effort on a project; he attempted to
2. Fiqh al-Zakāh; carry out a project”.
3. Al-Imān wa al-Ḥayah; In line with this meaning, he described ijtihād as
4. Al-Ḥulūl al-Mustawradah wa Kayfa Janat ‘Alā the independent judgement on a legal or theological
Ummatinā; question, based on the interpretation and application of
5. Ḥatmiyyat al-Ḥall al-Islāmī; the four uṣūl (foundations), which are the Qur’ān,
Sunnah, Ijmā‘ and Qiyās, as opposed to taqlīd. (Cowan,
6. Al-Ṣaḥwah al-Islāmiyyah bayna al-Juḥūd wa al-
1976, 143). Al-Alwani describes ijtihād as the technical
Taṭārruf;
and legal interpretation of the source materials. It
7. Al-Fatāwā al-Mu‘āsirah;
involves inferring rules from these materials as well as
8. Al-Fiqh al-Islāmī bayna al-Aṣālah wa Al-Tajdīd; giving a legal verdict or decision on any issue on which
9. Al-Islām wa al-‘Ulmāniyyah Wajhan li-Wajh; there is no specific guidance in the Qur’ān and Sunnah.
10. Dirāsah fī Fiqh Maqāsid al-Sharī‘ah bayna al- (Cowan, 1976, 143). According to Philips, ijtihād is the
Maqāsid al-Kuliyyah wa al-Nuṣūṣ al-Juz’iyyah; legal process of reasoning through which Islamic law is
deduced from the textual evidences from the Qur’ān
11. Madkhal li-Dirāsat al-Sharī‘ah al-Islāmiyyah;
and Sunnah after thorough research; while neo-ijtihād
12. Naḥwa Fiqh Muyassar Mu‘āsir fī Uṣūl al-Fiqh al-
simply means juristic re-interpretation of already-
Muyassar Fiqh al-‘Ilm;
exercised legal opinions of renowned medieval Islamic
13. Sharī‘at al-Islām Ṣāliḥah Lil-Taṭbiq fī Kulli jurists (Philips, 1980, 147). According to Muḥammad
Zaman wa Makān; ʿAbduh, the former Mufti of Egypt, neo-ijtihād could
14. Kayfa Nata‘āmal ma‘a al-Qurān al-‘Azīm; be defined as an intellectual re-interpretation of various
15. Kayfa Nata‘āmal ma‘a al-Sunnah al-Nabawiyyin: challengeable jurisprudential issues arising in the
Ma‘ālim wa Ḍawābiṭ; contemporary Islamic world. Ajetunmobi elucidated
better when he pointed out that neo-ijtihād is an
16. Al-Siyāsah al-Shar‘iyyah fī Ḍāw al-Nuṣūṣ al-
offshoot of previous ijtihād. Ijtihād was practised by
Shar‘iyyah wa Maqāsiduhā;
the earlier generation of Islamic jurists (fuqahā’) in
17. Madkhal li-Ma‘rifat al-Islām;
order to bring out a new legal ruling for the issues
 International Journal of Fiqh and Usul al-Fiqh Studies
Volume 4, Issue 1, 1441/2020 111

arising from certain circumstances or occasions in any approaches to the methodological employment and
given environment; while neo-Ijtihād is the juristic positive utilization of neo-ijtiḥād in the contemporary
output of contemporary jurists. (Ajetunmobi, 1989, 30). period, Al-Qaraḍāwī’s contribution towards this
Thus, both ijtihād and neo-ijtihād require that jurisprudential project forms the essence of the
legists strive to understand the Sharī‘ah as a legal dynamism of neo-ijtiḥad as an offshoot of Ijtihād of the
system on the basis of available evidence from its earlier generation of Muslim legists (mujtahidūn). The
primary, secondary and subsidiary sources. This is latter is now being re-interpreted so as to bring out new
done through the instruments of legal exercise. This legal rulings on the premise of the culture and custom
exercise of both ijtihād and neo-ijtihād is regarded as a of a society.
communal obligatory religious duty in a Muslim Ijtihād and neo-ijtihād are legally necessary in
community (ummah). However, this exercise is also this contemporary age as there should be no period of
considered as an individual religious duty which is time without a qualified Islamic legist (Mujtahid). This
binding on any intellectually-capable Muslim who is is a welcome idea since the Qur’ān (16:89) attests to the
qualified and competent and who must engage in it fact that the Islamic legal system is comprehensive
whenever both or either of them are required. Such a enough to accommodate any lawful thing at any period
Muslim must be well grounded in knowledge of of time. Hence, there is a contemporary jurisprudential
Sharīʿah texts and the basic principles of Islamic vacuum which al-Qaraḍāwī wishes to fill, in the
jurisprudence (Uṣūl Al-Fiqh), as well as have an fifteenth century of the Hijrah calendar, through his
understanding of the guidelines of deriving legal legal theory (Adegoke, 2011, 43).
rulings with a full awareness of the legal viewpoints of
other scholars. This is in line with the Qur’ān, 16:43
4. Ijtihād, Neo-Ijtihād and other
and 21:7 which go: “Ask those who know the Scripture,
Principles of Islamic Legal Sources
if you know not.”
The sources of legal rules in Islamic jurisprudence
It should be noted that this study does not shy
(Fiqh) are popularly known as maṣādir al-aḥkām in the
away from the fact that both ijtihād and neo-ijtihād are
Islamic legal system. These sources are classified into
volatile and sensitive areas as they could be subjected
three by Islamic legists, namely, primary sources,
to manipulation by people to achieve either positive or
secondary sources and subsidiary sources.
negative ends. On the pretext of exercising ijtihād and
The primary sources are the the Qur’ān and the
neo-ijtihād, some biased-minded scholars were guilty
Sunnah of Prophet Muḥammad (S.A.W), while the
of misusing these two intellectual exercises. This
secondary sources are the Ijmā‘(consensus) and Qiyās
happened as a result of their blind followership (taqlīd)
(analogical deduction) of competent Islamic legists.
to a certain school of thought (madhhab), sectarian
The subsidiary sources are the subordinate legal
dogma and orientalism. Despite this wrong application
exercises which are subjected to circumstances and
of ijtihād and neo-ijtihād by some Islamic scholars, its
conditions. The derivation of the legal rules from the
importance in the contemporary Islamic world cannot
primary sources of Islamic jurisprudence (Fiqh) could
be denied as there are contemporary jurisprudential
be made through two ways, namely, al-dilālah al-
issues in the modern age that need a re-interpretative
qatʿiyyah (certain and fixed meaning) and al-dilālah al-
ijtihād that will reveal the Islamic jurisprudential stand
ẓaniyyah (speculative meaning) (Adegoke, 2012, 297).
on them.
The contemporary jurisprudential issues which
are in dire need of fresh ijtihād and re-interpretative 4.1 Al-Dilālah al-Qatʿiyyah
ijtihād are modern family planning, abortion, in-vitro The rules derived through al-dilālah al-qatciyyah of the
fertilization, human cloning, artificial insemination, verses of the Qur’ān and the Sunnah of Prophet
surrogacy, test-tube babies, genetic counselling, Muḥammad (S.A.W) are absolute rules in which
prosthetic surgery, milk banking, organ transplantation, neither ijtihād nor neo-ijtihād is allowed. This is in line
etc. (Adegoke, 2011, 47). Considering the modern with a popular legal axiom which says “La Ijtihāda
 Neo-Ijtihād In the Modern Legal Studies: A Case Study of Al-Qaraḍāwī’s Concept of Neo-Ijtihād
112 Kazeem Adekunle Adegoke

Ma‘a Naṣṣ” meaning “There is no legal exercise (of a referred to it as the menstrual period (hayḍ) of such a
legal expert) on a textual clear-cut issue”. This is so divorced woman.
because the primary sources (Qur’ān and Sunnah) have It is also derived from any of the secondary
provided the absolute verdict. This type of legal rule is sources such as Ijmā‘ (consensus of contemporary
decisive (qaṭ‘ī) in nature. (Al-Ilūrī, 1991, 8). This scholars) and Qiyās (analogical deduction of a
qatciyyah (decisiveness or certainty) could also be sub- contemporary scholar); and subsidiary sources of
divided into two, namely: i. qaticiyyat al-thubūt; and ii. Islamic jurisprudence which serve as neo-ijtihād such
qatciyyat al-dilālah. as Istiḥsān (Public Welfare), Istishāb (Legal
4.1.1 c
Qati iyyat al-Thubūt Presumption), Istişlaḥ (Public Interest), Maşāliḥ al-
Qaticiyyat al-thubūt means certainty of the transmission Murşalaḥ (Public Interest), Al-‘Urf wa al-‘Ādāt
of a text. For example, in terms of its transmission, the (Custom and Cultures), A‘māl ahl al-Madīnah
whole Qur’an is certain. Therefore, no Ijtihad or neo- (Practices of the People of Madinah), Qawl al-Ṣahābah
Ijtihad is allowed to find out the certainty of any verse (Sayings of the Prophet’s Companions), Shar‘ Man
of the Qur’an. Likewise, transmission of some ahadith, Qablanā (Legal Rules of Earlier Prophets), Sadd al-
such as ahdith mutawatirah, is certain. Like the verses Dharā’i‘ (Precautionary Measure), Istiqrār (Common
of the Qur’an, no Ijtihad or neo-Ijtihad is permissible Legal Understanding), etc.
to find out the certainty of these ahadith.
4.1.2 Qatciyyat al-Dilālah 5. Al-Qaraḍāwī’s Approach to the
This is the type of legal system which only instructs and Employment of Neo-Ijtihād in His Legal
guides the people to observe certain compulsory forms
Theories
of worship (‘ibādah). Examples of this legal ruling are Al-Qaraḍāwī’s approach to the concept of neo-ijtihād
the divine instructions on the performance of obligatory was basically apologetic and persuasive. This stance of
Ṣalāwat (canonical prayers), Ṣiyām (fasting), Zakāt al-Qaraḍāwī’ can be deduced from the scholar’s appeal
(obligatory charity) and Ḥajj (pilgrimage) as stated in to contemporary Muslims that Islamic law (Sharī‘ah) is
the Qur’ān. The qatciyyat al-dilālah could appear as the a programme which left no affair untouched
legal rules which are decisive (qaṭ‘ī) in authenticity and irrespective of age and environment because of its
transmission and also decisive in meaning. Sometimes, natural absolute and universal approach.
such a rule could appear as a legal rule which is As a result of this development, al-Qaraḍāwī
probable and speculative in authenticity (ẓannī), but opines that Islamic law is applicable to every human
definite and decisive in meaning as it comes from a society in every age. This is so because history bears
competent jurist after either thorough ijtihād or neo- witness that it brought societal peace, justice, social
ijtihād legal exercises. (Adegoke, 2012, 297). welfare and stability wherever this law is well
understood and perfectly put into practice (Al-
4.2 Al-Dilālah al-Ẓanniyyah Qaraḍāwī, 1997, 2-6). The success of Islamic law is
attributed to the fact that Islamic law has been divinely
Al-Dilālah al-Ẓaniyyah is the presumptive legal rule
equipped by Allah and perfectly exercised by Prophet
based on the legal assumption or presumption of a
Muḥammad (S.A.W) with a remarkable flexibility in
renowned Islamic legal expert such as an Usūlī and
such a way that it could effectively confront the
Faqīh, which occurs either thorough ijtihād or neo-
problematic issues of every society and age. (Al-
ijtihād legal exercises. An example of this appears in
Qaraḍāwī, 1997b, 11).
Sūrat al-Baqarah (Qur’ān 2:228) on ‘iddah or the
However, al-Qaraḍāwī maintains that in this
waiting period of a divorced woman (muṭallaqah) after
contemporary period, Muslims are now confronted
her husband’s pronouncement of divorce which the
with a myriad of jurisprudential problems emanating
Qur’ān refers to as qur’. The term ‘qur’ was interpreted
from western civilization, scientific and technological
by al-Imām al-Shāfiʿī as the cleaning period (Ṭuhr)
innovations, as well as socio-political and economic
after menstruation, while al-Imām Abū Ḥanīfah
 International Journal of Fiqh and Usul al-Fiqh Studies
Volume 4, Issue 1, 1441/2020 113

ideologies which are hurriedly transforming the daily of the constitution so as to suit the interest of the
life of the people in the Islamic societies. The majority government in power.
of these jurisprudential problems are somewhat a To al-Qaraḍāwī himself, the transformation and
novelty and are recent problems in the daily life of renewal of Islamic law (tajdīd al-Fiqh) is not a
contemporary Muslims as they were not treated by the paradigm shift of Islamic law from Islamic values to
earlier medieval Islamic legists. (Al-Qaraḍāwī, 1997b, Western foreign elements as was done by some Islamic
10). This is where al-Qaraḍāwī’s approach to neo- nations such as Egypt, Libya, Pakistan, United Arab
ijtihād lies. Al-Qaraḍāwī’s concept of neo-ijtihād in his Emirates, Iraq, etc., in some areas of their Islamic
legal theories is premised on the fact that all of these family law (Al-Ahwal al-Shakhsiyyah).
contemporary myriads of jurisprudential problems
Therefore, it is not out of tune to point out, at
require a transformation and renewal of Islamic law so
this juncture, that this change from Islamic values to
as to technically handle such problems. This is
Western-oriented ones is not a renewal of law; rather,
popularly known as tajdīd al-Fiqh.
it is a distortion and falsification of law. (El-Wereny,
As far back as 1970, a majority of al-Qaraḍāwī’s 2016, 4). The focus of al-Qaraḍāwī’s concept of neo-
academic materials written for public consumption ijtihād in his transformation and renewal of Islamic law
targeted the transformation and renewal of Islamic law (tajdīd al-Fiqh) is to appraise and utilise Islamic law as
(tajdīd al-Fiqh) through the re-interpretation process of the main solution for the socio-cultural, socio-
the presumptive aspects of primary and secondary economic and socio-political illnesses of Muslim
sources of Islamic law (Sharī‘ah). This was to be societies in the contemporary period. Al-Qaraḍāwī’s
achieved through the effective use of neo-ijtihād to approach also seeks to consider new living conditions,
treat and meet the emerging social jurisprudential on one hand, and the foundations and basic principles
problems since Sharī‘ah is a universal remedial of the Islamic legal system (Uṣūl al-Fiqh) and juristic
programme for social illness of every human society. neo-ijtihād, on the other hand. (Al-Qaraḍāwī, 2011,
Al-Qaraḍāwī discussed extensively in some of his 10).
academic materials such as Sharī‘at al-Islām Ṣāliḥah
Regarding this, al-Qaraḍāwī classifies the
lil-Taṭbiq fī Kulli Zaman aa Makān, Al-Fiqh al-Islāmī
Islamic jurists into two categories namely Quasi-
bayna al-Aṣālah aa al-Tajdīd and Min Hadī al-Islām:
Dependent Islamic Jurist and Dependent Islamic Jurist.
Fatāwā Mu‘asirah, about this subject. He wrote that all
(Al-Qaraḍāwī, 1997c, 124).
the rising social jurisprudential problems should be
professionally handled by competent Islamic legists
through the process of re-interpretation (neo-ijtihād) of 6.1 Quasi-Dependent Islamic Jurist
already-existing traditional materials on those This is a contemporary Islamic jurist who does not only
problems. Al-Qaradawi posits that such scholars or deem the legacy of old and medieval Islamic Jurists
legists should beware of blind imitation (taqlīd) and (fuqahā’ qudamā’) necessary as an immense archive of
total dependency on old or traditional methods without Islamic jurisprudence (Fiqh) that serves as a pacesetter
consideration of the different circumstances in a to the contemporary Islamic jurists (fuqahāʾ mu‘āṣirūn)
particular time and society. (El-Wereny, 2016, 4). but also builds on it through his ijtihād and neo-ijtihād
exercises in order to treat contemporary jurisprudential
problems while considering the change of time, place,
6. Rationale Behind Al-Qaraḍāwī’s
circumstances and human conditions. Such a
Concept of Neo-Ijtihād in His Legal
Theories contemporary Islamic jurist does not employ blind
imitation (taqlīd) of the past juristic legacy. Even
Al-Qaraḍāwī’s concept of neo-ijtihād in his legal
wherever it is necessary to make use of any of the past
theories was not meant to involve the unconditional
juristic legal opinions, he uses it with an eye open for
modification, adjustment and amendment of Islamic
contemporary needs and necessities. As a result, the
law in the way the Western legal system is operated,
aim of this class of jurists is to develop the Islamic law
with its usual unconditional adjustment and amendment
 Neo-Ijtihād In the Modern Legal Studies: A Case Study of Al-Qaraḍāwī’s Concept of Neo-Ijtihād
114 Kazeem Adekunle Adegoke

from within its divine methods while ensuring that its integrate Islamic law (Sharī‘ah) into the modern daily
properties and natures are neither jeopardized nor life of Muslims. This will convince the people that
tampered with. Sharī‘ah is always valid and suitable for mankind
irrespective of time, place and circumstances. (El-
Wereny, 2017, 38).
6.2 Dependent Islamic Jurist
This modification is highly necessary because
This is an Islamic jurist who dogmatically follows and
not all juristic positions of traditional jurists are
imitates any early legal opinion of Islamic law and then
compatible with the present demands of the modern
wholeheartedly accepts its obsolete standpoint on a
period because of their consideration of the public
contemporary jurisprudential problem without giving
welfare (Maṣlaḥah), local customs and cultural
consideration to the change of time, place,
inclinations (‘Urf wa al-Ādāt) and analogical usage
circumstances and human conditions.
(Qiyās). However, this should be interpreted as neither
Al-Qaraḍāwī cherished the quasi-dependent
a condemnation nor rejection of the juristic legacies of
Islamic jurists because they move with the current
the traditional Islamic jurists of the medieval period of
trends of the present time in the field of Islamic
Islam. Rather, it is a continuation from where they
jurisprudence (Fiqh), while criticizing the dependent
stopped in their legacies.
Islamic jurists for their dogmatic conservatism.
Thus, there should be a linkage between modern
day neo-ijtihād and traditional juristic positions as the
7. Al-Qaraḍāwī’s Methodology and latter serves as the foundational basis of Islamic legal
Employment of Neo-Ijtihād in the maxims which the former seeks to re-interpret and re-
Contemporary Period package to meet the demands of time, place and
Al-Qaraḍāwī’s methodology and employment of the circumstance. (El-Wereny, 2017, 38). If there is no
concept of neo-ijtihād in the contemporary time is traditional juristic legacy, what would the
captured under what he termed tajdīd al-Fiqh which is contemporary jurists modify, re-interpret, re-examine
based on the following assumptions: and re-package? This form of neo-ijtihād is what al-
i. Modification of the traditional juristic legacy and Qaraḍāwī refers to as al-Ijtihād al-Tarjīḥī (re-
the renewal of Fiqh content. interpreted ijtihād). Al-Qaraḍāwī moved further to state
ii. Formal renewal and codification of a Fiqh-based that neo-ijtihād could be considered as an independent
legal theory. jurisprudential legal maxim if it serves as a
jurisprudential solution to emerging problems which
iii. Implementation of Islamic legal rules in the daily
have not been covered by the previous traditional
lives of Muslims.
juristic legacies. (Al-Qaraḍāwī, 1993, 11). According
to him, the world is changing on a daily basis and these
7.1 Modification of Traditional Juristic Legacy and changes, most of the time, lead to the emergence of new
the Renewal of Fiqh-Content challenges for ordinary Muslims and contemporary
This is the first jurisprudential method used by al- Islamic jurists.
Qaraḍāwī in his own neo-ijtihād concept. Here, he As a result of this development, there is a dire
opines that various jurisprudential positions of the need for contemporary groups of highly-competent
traditional juristic legacy need to be re-interpreted and Islamic jurists, experts and specialists to exercise a new
re-packaged to solve contemporary jurisprudential neo-ijtihād in order to tackle these novel challenges and
problems according to the demands of the time, place problems. This form of neo-ijtihād should take place at
and circumstance without negligence or tampering of an independent academic institute of learning such as a
the Sharī‘ah’s framework. Modification of these university in which Islamic jurists and other concerned
traditional legacies would give way to the formulation professional bodies would meet to professionally
of the corresponding neo-ijtihād. These re-interpreted deliberate on the emerging issues. The contemporary
rulings would enable contemporary Islamic jurists to need for Islamic Law (Sharī‘ah) leads the Islamic legal
 International Journal of Fiqh and Usul al-Fiqh Studies
Volume 4, Issue 1, 1441/2020 115

experts and professionals of other conventional fields legal theory is sourced from the major primary sources
to revise the ijtihād and neo-ijtihād of previous jurists of the Sharī‘ah which are the Qur’ān and Sunnah of
in accordance with the changes of time, place and Prophet Muḥammad (S.A.W). Fiqh-based legal theory
situation. (El-Wereny, 2017, 38). For instance, the is the interpretation and re-interpretation of the
position of professional bodies in medicine has to be Sharī‘ah-based legal theories, and these interpretations
given consideration when exercising neo-ijtihād on are subjected to time, location and circumstances (El-
health-related issues such as modern family planning, Wereny, 2016, 11).
abortion, in-vitro fertilization, human cloning, artificial Because of this development, the Fiqh-based
insemination, surrogacy, test-tube baby, genetic legal theory is flexible, amendable and renewable. The
counselling, prosthetic surgery, milk banking and organ renewability of the Fiqh-based legal theory led to the
transplantation in order to arrive to an adequate interpretation (ijtihād) and re-interpretation (neo-
jurisprudential solution. (Adegoke, 2011, 47). ijtihād) of the Sharī‘ah-based legal theory. As a result
However, on the concept of neo-ijtihād, it of this, the formal renewal of this Fiqh-based legal
should be rightly stated at this juncture that al- theory needs to be drafted into an orderly manner that
Qaraḍāwī himself is conscious of the fact that there are is perfectly numbered and well-organised in codes so
Islamic legal provisions which are already fixed and as to make Islamic law easily accessible for
unalterable and on which any form of ijtihād or neo- consultation and create avenues through which all
ijtihād is not allowed. These Islamic legal provisions contemporary Fiqh-related challenges could be
are context-independent and are valid for all time and satisfactorily treated. In the opinion of al-Qaraḍāwī, the
at every place, such as Islamic belief system (‘Aqīdah), codification of Islamic law, which he termed “taqnīn
Islamic worship (‘Ibādah) and Islamic moral values al-Fiqh”, would not only help to define the relationship
(Akhlāq). The Islamic legal provisions that al-Qaraḍāwī between the rulers and the ruled but would also protect
mentions, on which ijtihād or neo-ijtihād are allowed, the rights of the ruled and restrict the power of the
are those with variable norms because their Qur’anic rulers. (El-Wereny, 2016, 11).
and prophetic references are presumptive (ẓannī) in
terms of their authenticity (thubūt) and their meaning
7.3 Implementation of Islamic Legal Rules
(dilālah) as this present study has earlier highlighted.
(Sharī‘ah) in Daily life
(Adegoke, 2012, 14). With this understanding, such
A full implementation of Sharī‘ah rules in every
Islamic legal provisions are subjected to various
society serves as the main focus of al-Qaraḍāwī’s neo-
interpretations and re-interpretations through the
ijtihād in his legal theory. According to him, Sharī‘ah
intellectual processes of ijtihād
sets the limits and conditions that must be observed and
or neo-ijtihād from highly competent Islamic jurists in
or avoided in dealings since its rules are a suitable
consideration of changes in living conditions. This is
panacea to the current jurisprudential problems in the
what al-Qaraḍāwī refers to as al-Ijtihād al-Inshā’ī
modern Islamic world.
(productive or creative ijtihād). (Al-Qaraḍāwī, 1993,
78). However, because the nature of the
contemporary world as a global village does not fully
permit a complete implementation of Sharī‘ah rules,
7.2 Formal Renewal and Codification of Fiqh-Based
the process of the entire implementation of these rules
Legal Theory
should be a gradual process and cannot come about in
The two types of legal theory in the Islamic legal the twinkle of an eye. (Al-Qaraḍāwī, 1997, 75). The
system are Sharī‘ah-based legal theory and Fiqh-based first step which should be considered in order to
legal theory. The Sharī‘ah-based legal theory is achieve this, is to provide Sharī‘ah provisional rules
immutable and eternally valid because it is neither that can be applied to the current societal problems
time-bound, nor geographically and circumstantially which are hindering the application of these Sharī‘ah
bound unlike any of the Western legal theories. The rules in such a society.
reason for this development is that the Sharī‘ah-based
 Neo-Ijtihād In the Modern Legal Studies: A Case Study of Al-Qaraḍāwī’s Concept of Neo-Ijtihād
116 Kazeem Adekunle Adegoke

Al-Qaraḍāwī cited samples of these societal 3- Neglect of this dynamic nature of Fiqh in the
problems such as problems of unemployment, poverty, contemporary period would eventually lead to
ignorance, disease, marriage issues, housing, increase unnecessary confusion in local Fiqh-based
in prices, disasters, and the enormous disparity between jurisprudential matters.
the miserable poverty of some, on the one hand and the 4- The contemporary Muslim communities are in
colossal wealth of others on the other hand (Al- need of situational Fiqh through the exercise of
Qaraḍāwī, 1997, 75). All these need the intervention of neo-ijtihād by competent Islamic jurists in the
interpretation (ijtihād) and re-interpretation (neo- modern jurisprudential-related matters.
ijtihād) of both the Sharī‘ah-based and the Fiqh-based
legal theories through the processes of thorough
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