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Islamic finance and the gates of Ijtihad

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  1. introduction.
    1. If the sharia comes from God, then how can it change?
  2. Interpretation from Arabic.
  3. Liberalizing Islamic law.
  4. The sharia finance industry.
    1. Modernist fiqh scholars.
  5. Ijtihad, Taqlid, and their proponents.
    1. The scholar Wael Hallaq.
    2. The opinion of Bernard Weiss on openness and development.
  6. Toward a framework for Fiqh in the modern world.
  7. Islamic finance.
  8. Islamic financial products and Fiqh.
  9. Conclusion.

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 Sunna?the sources of the sharia?were 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 religion?and the legal statutes deriving from it?would need to be interpreted. This is the foundation of fiqh?the body of Islamic jurisprudence?and 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.?[16] 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. [...]


[...] While perhaps neither academics nor Islamic financial scholars have noticed, the sharia finance industry provides a good case study for whether the gates of ijtihad are open. The evidence shows that scholars arguing for openness are incorrect. Most modernist fiqh scholars argue for reinterpretation to promote an ill-defined notion of ?moving Islamic law forward.? To where one is moving sharia is rarely given in any detail, and results in the law losing its ?Islamic-ness? except perhaps as decoration. Generally speaking, sharia scholars in Islamic finance practice ijtihad to judge new concepts based on traditional interpretations. [...]

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