Today's proponents of ijtihad take a far more expansive view. "There will be no Islamic democracy unless jurists permit the democratization of interpretation," wrote M.A. Muqtedar Khan, a professor of political science at Adrian College, in a 2003 essay. In Mr. Khan's view, political elites in the Muslim world have for centuries restricted the development of democracy and political accountability by hiding behind religious principles that they proclaim to be fixed in stone. Mr. Khan argues, in effect, for an end run around the entire traditional apparatus of Muslim jurisprudence. Believers should instead, he suggests, look directly to the Koran and to the practices of Muhammad and his companions, and use their own efforts at interpretation to build ethical communities.
Among other subscribers to roughly this approach was none other than Mohammed Iqbal, the Indo/Pakistani poet.
The other philosophy making the rounds is represented by Khaled Abou El Fadl.
Not all Muslim liberals, however, find the ijtihad model attractive. A very different strategy for working toward democracy and pluralism is put forward by Khaled Abou El Fadl, a professor of law at the University of California at Los Angeles. In Mr. Abou El Fadl's view, liberal Muslim scholars should revive, not dismiss, some of the longstanding threads of Islamic jurisprudence, looking carefully at historical cases in which Muslims have successfully built pluralist and relatively democratic societies.
Although Mr. Abou El Fadl's methodology is more elitist than Mr. Khan's vision of ijtihad for all, he also maintains that it will ultimately be more liberal. He wrote in a 2003 essay that basing government around consultation and shura, as Mr. Khan and his allies suggest, could lead to majoritarian tyranny. "Even if shura is transformed into an instrument of participatory representation," he wrote, "it must itself be limited by a scheme of private and individual rights that serve an overriding moral goal such as justice."
Mr. Abou El Fadl adds in an interview that he finds Mr. Khan's framework extremely ill-disciplined. "Instead of making the effort to study Arabic and study the texts," he says, "Muqtedar Khan is simply throwing around terms like ijtihad and mufti and fatwa. ... This kind of thing is why there's such a vacuum of authority. This is why we have people like bin Laden going around claiming to be Islamic."
It seems like El Fadl is advocating something along the lines of a moral historicism. You study history in order to have a more accurate and rigorous model for jurisprudence, but you do it with an "overriding moral goal such as justice," presumably derived from the present day.
But doesn't the presumption of a moral goal lend itself just as well to a thoroughly secularist approach to jurisprudence? If we know what justice is, we should be able to write laws without recourse to religion.
In the Indian context I've sometimes argued in favor of a radical implementation of a Uniform Civil Code, which would remove all traces of theology (Hindu or Islamic) from personal laws that affect things like marriage, divorce, custody rights, head of household status, inheritance, and property rights.
As much as it now seems that such an approach to secularism is discredited in the Islamic world because of the totalitarianism of people like Ataturk, as well as the failures in Algeria, Egypt, Syria, and Iraq, I don't see the intellectual justification for the approaches suggested by Khan or El Fadl.