Change in the Modern Practice of Ijtihād: The Case of Islamic Finance

Abstract

In recent decades, crucial changes in the legal reasoning of Islamic shari'a resulting from the differing influences of changing social needs, economic factors, and political-legal circumstances have been observed. This paper argues that these changes are particularly visible in the manner in which the major sources of usul al-fiqh are utilized, the meanings attached to them and the frequency with which they are utilized in solving distinctly modern problems in the Muslim world. The paper makes this argument in terms of the modern theoretical approaches in Islamic finance by focusing on how a number of classical legal institutions, such as the darura, maslaha, and other foundations of ijtihad, have been re-interpreted in a manner that reflects changing socio-economic conditions in the age of globalization. The paper also demonstrates how other classical institutions, such as madhhab and the use of classical sources of usul al-fiqh, have been radically changed by the (new) theorists of Islamic economics because of changing social and legal circumstances. Thus, for instance, the paper discusses how the ijtihad in Islamic finance has been both greatly intensified and partly transformed into a collective enterprise rather than the individual act of a scholar because of increasing complexity in economics and the accompanying specialization and professionalization of 'ulama'. The paper ends with a discussion of the possible implications of these changes for the contemporary practice of Islamic finance in the West, as well as in the Muslim world.