If the sharia comes from God, then how can it change? This question, quite reasonable in itself, misses a large point about the sharia. When the Quran and the Sunnathe sources of the shariawere compiled soon after Mohammad's death, there was no assumption on the part of Muslim scholars that the meaning of everything in the Quran is clear. Surat al-Imran states: In it [the Quran] are Verses that are entirely clear, they are the foundations of the Book; and others are not entirely clear. It was clear from the beginning of Islam that the religionand the legal statutes deriving from itwould need to be interpreted. This is the foundation of fiqhthe body of Islamic jurisprudenceand that the process of ijtihad, which seeks to discover the sharia by approaching the Quran and Sunna with an eye toward finding what God intends in the application of Islamic law. As far back as the early ninth century A.D. , al-Shafi'i admitted that the Arab tongue may give a variety of meanings to the same word, and thus complicate any process of interpretation. Both ijtihad and scholars qualified to perform it were thought necessary to discover the true meaning of Islamic law.
[...] Contradicting all of the foregoing scholars, Aharon Layish argues that reopening the gates of ijtihad is tantamount to secularizing Islamic law. He writes: against orthodox doctrine, which treats Islamic law as a celestial, eternal creation not changeable by man, the modernists stress earthly, human elements as sources for the development of the shari'a.” According to Layish, ijtihad, as least as practiced by modernists, weakens and even contradicts Islamic law. This of course puts him in direct opposition to the aforementioned scholars; while not mentioning it by name, he even takes on marriage reform acts such as Law No. [...]
[...] Rather than changing fiqh to fit the modern world, as Arabi and others have tried to do, Islamic financiers judge their actions—including some very creative advances—against the classical ijtihad of pre-modern scholars. The modern-day case studies of murabaha and sukuk will show that innovation of Islamic law comes from development within the law rather than attempting to appeal to sources outside the law. This in turn will show that the closing of the gate of ijtihad does not render Islamic law static. [...]
[...] It would appear that either fiqh scholars must either perform ijtihad to make allowances for sukuk—after all they still do not charge interest—or do away with the whole concept as Hosein and Layish argue that Islamic lawyers ought to do with many other modern innovations. In fact there is a third option. According to Vogel, Islamic banks and institutions have not addressed this problem adequately, and there is still much disagreement between and within sharia supervisory boards at Islamic institutions on this and other issues. Yet the Islamic Development Bank as far back as 1998 suggested a means of applying classical sharia while still allowing for the very profitable sukuk innovation. [...]
[...] The consensus of Islamic scholars of previous generations on matters such as riba, gharar, and cancellation of ijara contracts all indicate that the gates of ijtihad are closed. Yet the Islamic Development Bank and others have tailored their products to fit within classical fiqh—and not the other way around. Sukuks al-ijara, with allowances for causality insurance, show that Islamic law is still a dynamic entity. Distinguished scholars such as Hallaq, Weiss, and Arabi believe that the gates of ijtihad are not closed. [...]
[...] Issue of Riba in Islamic Faith and Law.” Online. Available: http://people.virginia.edu/~aas/article/article7.htm April 2008. Saeed, Abdullah. Islamic Banking and Interest: A Study of the Prohibition of Riba and its Contemporary Interpretation. Brill Vogel, Frank E. and Samuel L. Hayes. Islamic Law and Finance: Religion, Risk, and Return. The Hague: Kluwer Law International Weiss, Bernard. “Interpretation in Islamic Law: The Theory of Ijtihad.” 26 American Journal of Comparative Law Quran 3:7 All dates in this essay will be in conformity with the Julian/Gregorian calendar. Risala 193. Quran 4:129: You will [...]
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