ULUM (Jul 2018)
The Role of Ijtihād in Family Law Reforms of Modern Muslim-Majority States: A Case Study of Morocco (PhD. Dissertation)
Abstract
Yavuz [Altıntaş], Miyase.The Role of Ijtihādin Family Law Reforms of Modern Muslim-Majority States: A Case Study of Morocco.PhD. Dissertation, SOAS University of London Faculty of Law and Social Sciences School of Law, England, 2018. The primary objective of this thesis is to investigate the role of ijtihādin its application to Islamic law in modern Muslim-majority states by analysingits conceptualisationsand the jurisprudential justification for its practices. The question of how and why ijtihādoperates in legal reforms is addressed as well as what are the motivations, techniques, forms and reasoning adopted when practisingit. This thesis involves examining whether ijtihād is exercised by going back to the primary sources, i.e. the Qur’an and the Sunnah or by choosing among existing juristic views in classical Islamic jurisprudence. To what extent the rules and principles of classical Islamic legal theory (uṣūl al-fiqh) are respected and followed in bringing about the reforms by means of contemporary ijtihād, is explored. The main substantive area of focus is family law due to its being the most widely applied aspect of Islamic law among modern Muslim-majority states. Specifically, the reforms of the Moroccan Family Code of 2004 are examined as having been introduced on the basis of ijtihād. A central argument of the thesis is that whilst the modern conceptualisations of ijtihādand its practice differ from classical mainstream understanding of the notion in terms of their definition, scope, and the authority of exercising it, they can still be accommodated within Islamic law. That is, a conceptual analysis reveals that various ijtihād understandings and practices, which were particularly triggered by the socio-political changes of the historical context, existed in Islamic legal history. Based on the research findings, it is concluded that most modern ijtihād practices do not strictly follow the detailed rules and principles of classical Islamic legal theory, in general. Nevertheless, they do not lack jurisprudential justifications, and some of them can be rooted in classical Islamic jurisprudence. Moreover, these practices also present a legitimate theoretical, albeit rudimentary, framework.
