The era of the new movement in Islamic jurisprudence and the opening of the gates of Ijtihad

The new movement in the Sunni school of Fiqh came into existence in two forms:

First, in the form of applying Fiqh for legislation in Islamic countries and introducing it as a subject of legal studies this coincided with the political movements of this century. The supporters of the establishment of Islamic government joined this movement. To organize and establish the sovereignty of the Islamic system they were in need of legal support in various branches of law. The Sunni 'ulama' took significant steps in this direction.

The compilation of al-Majallah in the Ottoman period was meant to serve this purpose. After the disintegration of the empire and the independence of the Muslim countries, the 'ulama' of every country joined this movement in different forms, at the official governmental level or voluntarily. But unfortunately in many cases the cultural onslaught of the West dashed their hopes and defeated such efforts 30.

The second step was the initiation of a movement to open the door of Ijtihad and to end legal exclusiveness. New fatwas were issued which departed from the views of the four Madhhab. This movement, due to certain political reasons, began in Egypt in the second half of this century. The views of Shaykh Mahmud Shaltut, the Mufti and the former rector of al-Azhar University of Egypt, particularly his historical fatwa to the effect that Muslims are free in their choice of Madhhab had a significant impact on this movement. He declared that it is permissible to follow a Madhhab other than the popularly four Madhhab 31.

Furthermore, contrary to the opinions of the four Madhhab, he declared that triple repudiation (pronouncing divorce terms three times) in one sitting is not a valid reason to prohibit the resumption of marriage. There is no need for a Muhalllil (one who marries a thrice-divorced woman and divorces her after consummation of marriage so that she may lawfully marry her former husband). He also gave fatwas in some other cases in accordance with the Shi'ah Muslim views.

As a result of this movement, certain topics of Fiqhi were included in the curricula of law faculties of universities of Muslim countries. Various international seminars were held to work out the ways of returning to Islamic legal system through changing the secular laws or approving them in case they were not different from the Islamic laws.

In the first seminar of the heads of law faculties of Arabic countries which was held on April 1973 at Beirut University it was declared that the great mission of law faculties of Islamic countries is to teach Islamic Fiqh as the source of official legislation.

The second conference, held in 1974 in Baghdad, while reiterating the above-mentioned task of the universities, appealed to all institutions of Islamic universities to give importance to the teaching of Fiqh and to consider it the sole source of the governing law. It asked Muslim governments to expressly declare in their constitutions as a constitutional issue that Fiqh is the sole source of official legislation. That they should make the laws of the country conform to Islamic criteria in accordance with a suitable Ijtihad that takes into account current conditions and the spirit of time as well. In this meeting it was proposed that an academic body be formed in order to bring law in conformity with the Shari'ah. This society would study the ways of achieving this goal, propose the necessary measures to Muslim countries and provide consulting assistance to the legislative bodies throughout the Islamic world 32.

Following the conscious move of certain Sunni 'ulama' regarding the ending of exclusiveness in Madhhab, the trend of comparative study of Fiqh developed. Gradually 'ilm al-khilaf, which in the past meant the study of the difference of the prevalent views of the scholars of Fiqh of the four Madhhab, opened new vistas as a modern approach examining the new Fiqhi views and preferring stronger evidence and views based on superior proofs. Sectarian prejudice to a certain degree was replaced by free Ijtihad and to truth seeking in Fiqhi matters. A synchronal approach and adoption of sounder Fiqhi views from different Madhhab became prevalent. It confirmed the view that Fiqh in Islam is one and the different schools of Fiqh are, in fact, different viewpoints within the same Madhhab. This diversity of opinion gives the chance to the scholars of Fiqh to select the soundest and the most logical view from among a variety of views 33.