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KembaraXtra-Islamic Finance - The Approach to Ijtihad
As outlined in the opening chapter, Islamic law stands apart from both common law and civil law in its foundations and methodology. The process of deriving rulings within Islamic jurisprudence is inherently text-centered, anchored in the Qur’an, Sunnah, and other authoritative sources. Historically, much of Islamic substantive law emerged through the interpretative efforts of jurists, whose role was crucial in shaping legal understanding and application.
A comparison can be drawn with Roman law, which also relied heavily on interpretation, to the extent that it became known as the “jurists’ law.” Roman jurists, however, exercised broader freedom. Their solutions often stemmed from intuition, guided by prevailing concepts of fairness and equity as well as social and cultural influences of their era. In Roman society, a jurist’s prestige was built upon his judgment and insight, reflecting an almost innate wisdom rather than specialized textual or interpretive expertise.
In contrast, Muslim jurists were more constrained. Their authority did not rest on personal intuition but on demonstrated skill in navigating formal texts and legal principles. Their credibility was rooted in scholarly rigor rather than personal reputation alone. This made Islamic law more disciplined in its adherence to textual foundations while still requiring juristic acumen for practical application.
Common law provides another useful parallel, though it differs significantly. Like Islamic and Roman law, interpretation plays a central role, but in common law systems, judges rather than jurists took the lead in developing the law. This is why common law is often described as “judge-made law.” In the United Kingdom, for instance, statutory interpretation has been guided by the Interpretation Act of 1889. Yet, despite such statutory frameworks, judges frequently confront cases where legislative language is ambiguous, and their interpretive role becomes decisive in filling those gaps.
Illustrative Examples of Interpretation and Solutions
As outlined in the opening chapter, Islamic law stands apart from both common law and civil law in its foundations and methodology. The process of deriving rulings within Islamic jurisprudence is inherently text-centered, anchored in the Qur’an, Sunnah, and other authoritative sources. Historically, much of Islamic substantive law emerged through the interpretative efforts of jurists, whose role was crucial in shaping legal understanding and application.
A comparison can be drawn with Roman law, which also relied heavily on interpretation, to the extent that it became known as the “jurists’ law.” Roman jurists, however, exercised broader freedom. Their solutions often stemmed from intuition, guided by prevailing concepts of fairness and equity as well as social and cultural influences of their era. In Roman society, a jurist’s prestige was built upon his judgment and insight, reflecting an almost innate wisdom rather than specialized textual or interpretive expertise.
In contrast, Muslim jurists were more constrained. Their authority did not rest on personal intuition but on demonstrated skill in navigating formal texts and legal principles. Their credibility was rooted in scholarly rigor rather than personal reputation alone. This made Islamic law more disciplined in its adherence to textual foundations while still requiring juristic acumen for practical application.
Common law provides another useful parallel, though it differs significantly. Like Islamic and Roman law, interpretation plays a central role, but in common law systems, judges rather than jurists took the lead in developing the law. This is why common law is often described as “judge-made law.” In the United Kingdom, for instance, statutory interpretation has been guided by the Interpretation Act of 1889. Yet, despite such statutory frameworks, judges frequently confront cases where legislative language is ambiguous, and their interpretive role becomes decisive in filling those gaps.
Illustrative Examples of Interpretation and Solutions
- Islamic Law Example (Riba / Usury):
- Problem: The Qur’an prohibits riba (usury), but questions arose about whether modern bank interest falls under the same prohibition.
- Solution: Through ijtihad, most jurists extended the prohibition to cover modern interest-based lending, emphasizing the spirit of preventing exploitation in financial transactions.
- Islamic Law Example (New Technology – Organ Transplants):
- Problem: Classical sources do not mention organ transplantation. Is it permissible to donate or receive organs?
- Solution: Jurists used qiyas (analogy) and maslahah (public interest) to conclude that organ donation is permissible if it saves life, reflecting Islam’s higher objective of preserving human life.
- Roman Law Example (Inheritance Dispute):
- Problem: Two heirs disputed over ambiguous wording in a will concerning land division.
- Solution: Roman jurists relied on equity and fairness, granting each heir a portion that aligned with the deceased’s presumed intention, even without a strict textual mandate.
- Common Law Example (Ambiguity in Statutory Wording):
- Problem: A statute prohibited vehicles in public parks. A case arose when a person used an electric wheelchair in the park.
- Solution: Judges applied purposive interpretation, ruling that the law’s intention was to prevent disturbance from cars or motorcycles, not mobility aids. Thus, wheelchairs were allowed.
- Common Law Example (Interpretation of “Marriage” Before Reform):
- Problem: Before the legalization of same-sex marriage, courts had to decide whether the statutory word “marriage” included same-sex unions.
- Solution: Judges, bound by existing statutory wording, ruled it did not, but highlighted the need for legislative reform — which eventually came through Parliament.
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