100 MOHAMMAD HASHIM KAMALI

continuity, which would account for the fact that there have been no significant additions to the early compilations of legal maxims. Having said this, one may agree that substantive reforms of the fiqh, or major developments of concern to uṣūl al-fiqh, may also, to some extent, have to be reflected in the legal maxims. On the subject of ijtihād, for example, the basic idea of statutory legislation whereby the elected assembly and parliament, rather than the mujtahid, or the general consensus (ijmāʿ) of mujtahids, has become the principal mode of law making in the present day Muslim countries. This development has not been contemplated with all its ramifications in the legal theory of uṣūl al-fiqh. Now that the statute book has assumed a near-total control of legislation in the Muslim countries, some aspects of the theory of ijtihād may also need to be reviewed. For instance, ijtihād used to be seen as a preserve of the individual scholar and mujtahid, but the view has gained ground nowadays that collective ijtihād (ijtihād jamāʿī) should now be recognised. Some of the legal maxims concerning ijtihād may consequently call for adjustment. The present writer has elsewhere discussed this in detail, but we may note here a legal maxim, for example, that “ijtihād is not valid in the presence of naṣṣ (clear injunction)”. Yet, there may be a naṣṣ that can hardly be implemented without substantial ijtihād concerning it. The issue one faces may be such that a naṣṣ, such as the ones concerning the punishments of adultery and theft, could either be marginalized or read side by side with ijtihād to ascertain how best they can be implemented. Without wishing to enter details, one can imagine that ijtihād may well operate in the presence of a naṣṣ so as to explain the naṣṣ in the light of new realities. Moreover, the ijtihād that is now undertaken may be guided, not so much by the specificity of naṣṣ, but by the overall purpose of that naṣṣ within the wider framework of the goals and purposes, or maqāṣid, of Sharīʿa. This can also be said with regard to another maxim on ijtihād, which provides that “ijtihād may not be overruled by its equivalent”.⁴⁴ Some of the legal maxims concerning evidence and proof, especially relating to circumstantial evidence, may also call for adjustment as a result of the availability of reliable methods of proof, such as photography and sound recording, DNA analysis and the like, which did not exist in earlier times. Yet, notwithstanding all of these developments, one still notes a remarkable degree of continuity in the substantive themes of legal maxims.