The ijtehaad needs a spirit of Jihad. People issue ijtehadic fatwas on the issues of beard, taking arms, shrines, Fateha, Meeladunnabi, etc., but they don’t bother to think seriously about the issues concerning the “social reform”, “national integrity”, “country’s unity” etc.

One of the reasons for lacking Ijtehadic spirit is the misunderstanding about the Islamic law. It must be removed from the minds that the divine laws are rigid, inflexible and irrespective of the timely needs. The law, Islamic or non-Islamic, basically, is a product of human needs, convenience and reasoning. Therefore, the purpose or the need create the law, the law does not create the purpose or the need. The ultimate purpose of the law is the justice and the welfare of the society with the consent of Allah. Other than the divine laws called Nass, which are clearly descended in the Quran, several factors which affect the making of the law include the social norms, customs, ecology and environment. A law suitable for an African country may not be suitable for an European country. A law workable in the urban area can not be practical in the rural area. Therefore, the human beings, ever since they started learning to live a social life, adopted a system of ‘greatest good of the greatest number’ i.e. majority opinion. In the democracy, if the majority opinion votes in favour of an act which is prohibited by Allah, the law is approved. The Shariah law does not give the liberty to the man to become the law maker by himself as it would be incompatible with the ethical control of human actions and, ultimately, of society. In Islam, the democracy is limited to the permissibility by Nass. Where the direct Nass is not found, neither in the Ahadith nor in the Companions (رضي الله عنهم) period, one has to do ijtehaad, and majority opinion is the convenient way.

There are ample examples in this regard from the Islamic history and the life history of the Prophet Mohammad(ﷺ) as well as of the Caliph’s. The procedure of the appointment of the Caliph, for example. Although it was not legislated by the Prophet Mohammad(ﷺ) but the Caliphs appointed a body to take the opinion poll about the probable candidates. Regarding the war plans and war prisoners, the Prophet Mohammad(ﷺ) used the opinion polling.

The guiding factor to the judgment of the right or wrong is the divine admonition of the Hadith that:
“choose the same for others what you choose for yourself”.

There are three main sources of the Shariah laws:
1. Direct commandments of the Quran
2. Instructions, recommendations or the acts of the Prophet Mohammad (ﷺ)
3. Acts left legally indifferent (those things which are left open where there is no direct ruling found in the Quran, Ahadith , Seerat or in the lives of the Companions (رضي الله عنهم)). Here the scholars, intellectuals, etc. are required to find a solution which does not go against the aims and objectives of the Shariah. This is called Ijtehaad.

The life insurance too falls in the category of the third source and is legally indifferent.
The question arises: who has the authority to do the ijtehaad?
This subject has been so controversial for centuries that it requires many more volumes. To shorten the argument, we find a logical as well as rational solution in the suggestions of Dr. Allama Iqbal, one of the most revered Muslim intellectuals, a poet and a leader.
In the “The reconstruction of thought in Islam” he suggested the application of the principle of “Ijma” (consensus) of the community on the fundamentals, leaving the matters of detail to the agreement of the scholars. This has been enunciated by Imam Ghazali too. Thus, the text, if properly interpreted, is capable of meeting new situations and the Islamic law will not appear rigid as it is generally considered, but on the other hand, flexible enough to provide for all the eventualities. Since it is not possible anywhere any time that all the scholars will agree to any issue with absolute consensus, therefore, there is no other solution than accepting the opinion of the majority of the reliable scholars.

For this reason only, we sought to get the opinion of the leading Ulema from all parts of India. The list of the Ulema as well as the institutions has been given in the Chapter “Permissibility of life insurance.”