Continuity and Change of Traditional Islamic Law in Modern Times: tarjīḥ as a Method of Adaptation and Development of Legal Doctrines

Abstract

In addition to ijtihād (independent legal reasoning), tarjīḥ (weighing up and preference) serves as a fundamental instrument of traditional Islamic law's operational work and was used on different levels. In modern times, tarjīḥ is still applied not only by individual scholars but also by collective fiqh institutions. However, the conception of tarjīḥ is undergoing a transformation in its current application. In the scope of this article, the first purpose is to provide a comprehensive overview of the conception and the diverse practical forms of the tarjīḥ in traditional Islamic law. The focus then lies on setting out how to apply tarjīḥ in modern Islamic jurisprudence. This article also aims to illustrate the conceptual and operational changes of tarjīḥ, paying special attention to the relation between tarjīḥ and ijtihād. Overall, this article intends, on the one hand, to contribute to the study of present Islamic law's developments; on the other hand, it examines the continuity and change of tarjīḥ from traditional Islamic law to contemporary fiqh institutions. It is argued that tarjīḥ in the modern age is not only used as a method of weighing and choosing a legal view that among the diverse views of pre-modern law most closely adapts to the current social circumstances, but that it is also integrated in the process of development of new legal doctrines.