Allama Muhammad Iqbal, one of the greatest thinkers of modem Islam, asserts that ijtihaad can be undertaken not only by an individual jurist but also by a legislative assembly. Emphasising the dynamism and flexibility of Islam, he defended the abolition of the Caliphate (Khilafat) by the Grand National Assembly of modem Turkey as ijtihaad. He said, “Let us now see how the Grand National Assembly has exercised this power of ijtihaad in regard to the institution of the Caliphate. According to Sunni Law the appointment of an Imam or Khalifa is absolutely indispensable. The question that arises in this connection is: should the Caliphate or “Imamat” be vested in a single person?
Turkey’s Ijtihaad is that according to the spirit of Islam the Caliphate or Imamat can be vested in a body of persons, an elected Assembly. Personally, I believe the Turkish view is perfectly sound. It is hardly necessary to argue this point. The republican form of government is not only thoroughly consistent with the spirit of Islam, but has also become a necessity in view of the new forces that are set free in the world of Islam”. He further said that ijma (consensus) can take the form of ijtihaadi legislation. He writes, “The transfer of the power of ijtihaad (independent judgment) from the individual representative of the scholars (Ulema) to a Muslim Legislative Assembly is the only possible from Ijma can take in modem time.”43 Thus according to him the Shariah will be as defined by a legislature in the Islamic State.
Maulana Maududi, who also believes in the dynamism and flexibility of Islam, divides the Shariah in two parts: the immutable Quranic nasus or divine injunctions and the Sunnah, and the flexible part, consisting of the traditional fiqh. They constitute such parts of the administrative and constitutional parts of the Shariah whose details are left to the Muslims to work out “in accordance with demands of the age or the country in which they live subject, of course, to the limits prescribed by the Shariah. The immutable parts of the Shariah, he adds further, “are such that they can always fulfil the needs of human society in every age and in every country, provided, of course; that the entire Islamic scheme of life is in operation.”
Recognising the importance of the Ijtihaad in the modem times, the Shariah Ordinance of 1988 in Pakistan has entrusted the task of making the laws in the country to conform to the Quran and Sunnah to the judiciary, especially to the Supreme Shariat Court of Pakistan.
To conclude, the importance of the Ijtihaad lies, as Allama Iqbal said, in the dynamic and flexible spirit of Islam, which is a complete code of life for all times and climes. Within the limits imposed by the Quran and Sunnah, Islamic Law can be interpreted by the authoritative opinion of a mujtahid, who may be either a man trained in Arabic, Quran, Hadith and Fiqah, or is a legislative assembly, consisting of the representatives of the Muslims or is a Judge trained in Islamic Law, i.e., in the Quran, Sunnah and Fiqah. This development will bring about a viable accommodation between the prescriptions and injunctions of Islam, on the one hand, and the imperatives of modem life and conditions, on the other. It will put an end to nearly eight centuries of stagnation in the Islamic Law and society.