Methods of ijtihad in Islamic judicial proceedings with special reference to the practice of the Shariah Courts in Malaysia

Abstract

It has been unequivocally accepted that ijtihad assumes a very significant position in the Islamic judicial proceedings. However, the practice of ijtihad in such a process has not received the deserving attention compared to the attention given to the practice of ijtihad in the law adducing process (istinbat al-ahkam) or in the legal verdicts issuing process (al-ifta’). Hence, with the purpose of exploring and constitutionalising the proper practice of ijtihad in the Islamic judicial proceedings, the thesis examines the methods of ijtihad in relation to the main constituents of the judicial proceedings; the facts, the evidence, the law as well as the judicial judgment. In view of keeping in touch with the local practice, reference has also been made to the practice of the Malaysian Syariah Courts, whenever deemed relevant and necessary for comparative as well as compatibility analysis. Approaching this doctrinal and practical research on library data and decided cases, the thesis proves that the practice of ijtihad is indispensable in the judicial proceedings and that Islam has proffered feasible and systematic methods of ijtihad to be employed in the judicial proceedings. Further, contrary to the negative perception and unfounded criticisms of the western traditions, the judges, according to Islamic law, are regulated by a systematic and dynamic divinely-inspired adjudication process with the ultimate view of dispensing justice and preserving the well-being of the people. Finally, it is believed that the discussions of the thesis and its recommendations have contributed significantly towards enriching the scholarship of ijtihad and enhancing its professional practice in the Islamic judicial proceedings.