Neo-Ijtih?d: A Hierarchical Process Adopted by Pakistani Judiciary in the Context of Muslim Family Laws
Neo-Ijtih?d: A Hierarchical Process Adopted by Pakistani Judiciary in the Context of Muslim Family Laws
Muhammad Farooq
 
Abstract: This article explores how Pakistani judges use ‘personal reasoning’ in their deliberations when deciding Muslim family law cases. The article first presents an overview of the doctrine of ‘neo-ijtih?d’ by providing the historical background within which this judicial discourse has evolved. Secondly, the article elaborates the methodology of judicial ijtih?d with the help of relevant case law. The article then analyses the rules of interpretation that Pakistani judges have used to reform the classical Islamic family law and explores how judges have readjusted those rules in accordance with the ongoing social changes and emerging social needs. This close examination of current trends in judicial reasoning in marriage and divorce cases reveals the ways and means by which the reformation in Islamic family law is happening in Pakistan. The article argues that ijtih?d by judges is an institutionalised form of ijtih?d, which not only has a defined methodology but also a hierarchy of mujtahidin in the form of a binding system of precedents. This has created an effective system of ijtih?d for cases requiring new interpretation as well as a system of taqlid where judgements of superior courts are binding on lower courts. This essentially posits that Pakistani judiciary has assumed, well within its constitutional confines, a quasi-legislative power to reform Muslim family laws, which is indeed essential for a progressive Muslim society.

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