Ijtihad
Ijtihad is one of the most important key words of the Shari`ah, and its goal is defined as comprehending the purpose of the Qur’an and the Sunnah. The main purpose of law is to maintain the continuity of answering people’s needs. A legal system that answers the questions of its era while offering solutions for future generations can be realized only by constantly renew in itself. In this sense, Ijtihad has very important functions in keeping the law alive, which is one of the Shari`ah’s main dynamics.[1]
The Definition of Ijtihad:
Ijtihad is derived from two words: juhd (exertion of effort or energy) and
jahd (the forbearance of hardship, namely, striving and self-exertion in any
activity that entails a measure of hardship). Thus, it would be suitable to use
jahada for one who carries a heavy load, but not if he/she carries a trivial
weight. Ijtihad is the expenditure of effort to arrive at the correct judgment,
whether physical (e.g., walking or working) or intellectual (e.g., inferring a
ruling or a juristic and linguistic theory).
Technically, the juristic meaning of Ijtihad has several definitions according to the usuli scholars. Some define it as the jurist’s action and activity to reach a solution. Al-Ghazzali (d. 505/1111) defines it as the “total
Kayadibi: Ijtihad by Ra’y 75expenditure of effort made by a jurist for the purpose of obtaining the religious rulings.”
Al-Amidi (d. 631/1233) considers it to be the expenditure of one’s total effort in search of zann (probability), to the extent that the jurist feels obliged to exert himself/herself further in proving that the ruling is correct. His definition implies that it is not enough just to exert effort; rather, the jurist should feel that he/she has spared no effort to pursue the issue further:
“Ijtihad is the application of the jurist using all of his faculties, either in inferring the Shari`ah’s practical rules from the sources or in implementing such rules and applying them to a particular issue.”
The Shari`ah’s definitive rulings that are known by necessity are therefore excluded from ijtihad, such as the Five Pillars of Islam¸ rulings related to the `aqidah (creed), and realizing the attributes of God, all of which are determined by explicit textual statements. There is only one correct view in regard to these matters, and anyone who differs is wrong. Al-Qarafi (d. 684/1285) defines ijtihad as “the expenditure of total effort while considering a case which is condemned by religion.”
Al-Isnawi (d. 772/1370) explains it as “the expenditure of effort to arrive at and realize the rulings of the Shari`ah, whether definitive (qat`i) or probable (zanni).”
Kamal ibn al-Humam (d. 861/1457) describes it as the expenditure of efforts by the faqih (jurisprudent) to arrive at a juristic ruling, such ruling being either rational (`aqli) or transmitted (naqli), definitive (qat`i) or speculative (zanni).[2]
Ibn Hazm (d. 456/1064) differs and interprets it as “investigating the rules of God solely in the Qur’an and in the Sunnah.”Fazlur Rahman (d. 1988) defines it technically as “the effort to understand the meaning of a relevant text or precedent in the past, containing a rule, and to alter that rule by extending, restricting or otherwise modifying it in such a manner that a new situation can be subsumed by a new solution.”
Where does Ijtihad start from?
Ijtihad starts from the point where the fixed law based on the evidence of the Qur'an and the Sunnah, (i.e. The injunctions in the first category) are not available. In places where these Fixed Laws are available it is going beyond one's jurisdiction to apply one's own intellect to take decisions against these Fixed Laws. Such a practice Allah has allowed trading and prohibited Usury.
Now you have no business to object to this Divine Command, because when Allah has allowed trading, it is lawful; and when He has forbidden usury, it is unlawful.
To raise objections to this Divine Command is nothing but using the Intellect beyond its Jurisdiction.
An Event:
It is a famous event that once an Indian musician went on the Hajj Pilgrimage. After performing the pilgrimage, while he was going to Madina Munawwarah, he had to pass the nights at the various nlght stops. When thi s musicians topped at a place t o pass th e night, by chace an A rab musician also came there . He was a Bedouin and an untrained musician and did not know how to play on the usual musical instruments. His performance was hopeless and repulsive. When the Indian musician l i s t e n e d t o Bedouin performance he said: Now I understand why the Holy Prophet & declared singing and musical performance to be unlawful, because he listened only to the hopeless performance of the Bedouins. If he had listened to my performance, he would not have declared music unlawful. The intention in relating this event is to point out t h a t now- a -days mi s -di r e c t ed and wrong t h i n k i n g a r e be ing d u b b e d a s Ijtihad. T h i s an example of us ing personal desires within the domain of the Shari bh.[3]
Ijtihad a Legislative Function:
The need for an Islamic Theory of Legislation:
In the earlier structure of the legal system, the individual mujtahid and the school of law had a big role to play. They dealt with almost the entire law leavind certain matters to the state. The imam or the state issued regulation under its siyasah jurisdiction to raise taxes, to administer the mazalim court, to regulate the mistake, to issue currency and to manage the institution of ihtisab among other thing. With the passage of the every century, the jurisdiction of the state kept on increasing and in the modern times many of the laws that were administered by the qadi in collabration with the school, or using the law laid down by the schools, have now been transferred to the exclusive domain of the state. Even the personal law is now administered by the state. The administration of the mosques and waqfs, the organisation of the pilgrimage and measures for the observance of the Ramadan are also the sole responsibilityof the state. The modern legislatore lays down the law in the form of the statutes. All the rightes and duties of the muslims were determined by the decisions of the mujtahid or his school. All righte given, and taken away, depended on the version of the law issued by a school. All these functions now belongeto the legislature (or in the case of Pakistan, to some extent, to the Federal Shari’at Court or the Shari’at Appellate Bench of the Supreme Court). During the earlier days, it was the theory ijtihad that provided the basas for the legislative activity of the mujtahid. Today, its still contanes the solid Islamic foundation that is necessary for all types of legislation, a foundation that must contrl, guide and determine the activity of the lagislator in an Islamic state. Yet, it has been relegated to the beground and is found to a minimal extent in various institutions that act as advisort bodies for the lagislature.
The process Islamisation will remain incomplete until the activity of the legislatures in Islamic states is brought fully under the purview of the institution of ijtihad. Even though the legislature can not meet the requirements of ijtihad with respect to its individual members who will come from various professions and will have different levels of education, yet it must as an institution . the legislature must b supported as an insitution for the proformance of collective ijtihad. It is only when this is ensurd that islamic justice will be implemented and rightes guaranteed by the islamic legal system will be secured. The legialature in an islamic state must have one and only one activity: IJTIHAD.
All this will be possiblewhen the islamic theory of legislation based upon ijtihad is developed for the modern times. This places a very heavy burden on all the researchers and thinkers occupied with islamic law. The theory must be alive to modern human problems and issues. It must engage the best minds in each muslim country and move formthese problems and issues back to the fundamental principles and norms of the islamic system and then emerge to provide a humane and efficient legal systems that islamic law furnishes. [4]
Early notion of Islamic legal theory and the concept of Ijtihad:
At the time of the Prophet (SAW) the only source of the Shari‘ah was revelation. That revelation had two types, one was the direct speech of Allah, namely the Holy Qur’an, and the other was indirect speech of Allah which the Prophet expressed in his own words, that is termed as Sunnah of the Prophet.
The Quran by nature is implicit. It does not provide details of each and every individual case, rather it describes general principles, examples etc. the prophet used to explain and implement those principles and general rules in individual cases, that is Sunnah of the prophet, in that sense the Sunnah is the explanation of the Quran, though as it is mentioned earlier that explanation was also directed by the God.
Although as it is mentioned earlier that the only source of law at that time was revelation, but some time the Prophet practiced Ijtihad in its narrow sense in the absence of reveled rule(s) as the Prophet says, ‘when I do not receive a revelation I adjudicate among you on the basis of my opinion’ (Abu Dawud,1984:1017) . However, the difference of that ijtihad with ordinary ijtihad bil ray is that whenever, he mistook, a verse would be revealed in order to inform him the correct decision. For instance, ones the Prophet was asked by a woman about the rule of dhihar (ظهار).. The Prophet answered her “I don’t think that the rule is different from that of divorce”. Then Allah revealed verses regarding the hukum of dhihar, which was not similar to divorce and then the hukum of dhihar had been corrected.
The companion of the prophet used to do ijtihad at that time also. When the Prophet was not available or when the Prophet sent them to some where, they use to do ijtihad in the absence of explicit Quranic verse or Sunnah of the Prophet. They use to interpret the verses of the Quran and the Sunnah of the Prophet as well as in cases of completely new issues they use to do ijtihad on the basis of the principles of Shariah.The advantage of them was if they mistook they could correct themselves by asking the Prophet or Allah would revealed the correct rule(s). Therefore, Shariah was very much based on the revelation at that time, i.e. either Allah would reveal the hukum of a certain mas’ala or He would approve the decision(s) of the Prophet and his companions or He would disapproved and correct their decision(s). Hence, despite the fact that the practice of Ijtihad was started from that time, but it did not get the status of a source of Islamic legal theory then.
Development of Islamic legal theory and the concept of Ijtihad:
After the death of the Prophet, the gate of revelation has been closed for ever. Therefore, in order to deal with new problems, the companions of the prophet used to depend on theIjtihad. However, it did not substitute the Quran and Sunna at all, rather whenever they faced a new phenomenon regarding which they did not know any Quranic verse or Sunnah of the Prophet, they used to ask the other companions whether they knew any Hadith of the prophet concerning that. They used to do ijtihad in the absence of the revealed rule and whenever they found any Hadith regarding that case they use to abandon their Ijtihad and followed that Hadith.
Because of the quick expansion of the Muslim world in first century, a huge number of people embraced Islam. A number of the companions of the Prophet migrated to different places in order to teach the new Muslims the science of Islam. People gathered around them to learn Islam. Through their teaching they created groups of scholars. Those groups were the producers of the different schools of thought (Madhabs).
Two distinctive trends of thought emerged at that time, namely Ahl al-ray and Ahl al-hadith. The trend of Ahl al-ray can be traced back to the second caliph ‘Umar and a renowned companion Abdullah ibn Mas’ud, whereas the trend of Ahl al-hadith can be traced back from two renowned companions and scholars Zaid Bin Thabit and Abdullah Bin ‘Umar (Abdur Rahim,2003:55). Ahl al-ray are those who depend on personal opinion (ijtihad bil ray) in order to solve the problems and analyze the ahkam of Shariah and extract the major causes (علة) of those in order to draw out those to new phenomenas. Ahl al-hadith are those who depend on only authentic evidences. There strategy is to express exactly what is in the authentic narrations. They do not involve in causation of the Ahkam of Shariah and extend those to new phenomenas. Nevertheless, the more the Muslims faced new problems the more the former trend became prominent, because of their wide practice of ijtihad they could solve the new phenomenas better than Ahl al-hadith School of thought. However, Ahl al-hadith school of thought did not completely deny or overlook the concept of ijtihad. Ijtihad also played a big roll in the development of that school of thought. However, their concept of ijtihad was narrower then that of Ahl al- Ray as we will see in the following section of the essay. Hence, it could be said that by the end of first century, ijtihad became an important source of Islamic jurisprudence through the practice of it by the companions of the Prophet and their followers, although there were difference of opinion among them about the definition, scope and way of practice of it.
Institutionalization of Islamic legal theory and the role of Ijtihad in it:
The last companion of the Prophet died in the end of the first hizra. Around that time the process of institutionalization and compilation of Islamic jurisprudence started (Rahim,2003:58). The notion of madhhad -school of thought- emerged at that time in different places. Although there were countless madhhabs, but, apart from four madhhabs others are not existed now a day. We will discuss here the development of those four madhhabs along with the Ahl al-hadith trend and the concept of ijtihad in those.
The Maliki School of thought:
The Maliki madhhab is based on the jurisprudence of Imam Malik (93-179). He lived in Madina. His magnum work Al-Muwatta is the core book of that school of thought, where he gatheredhadiths of the prophet as well as fatawas of some companions of the Prophet and that of Tabis and his own ijtihads. The method of his jurisprudence which is the method of maliki madhhab as well is that, in order to find out the hukum of a certain issue he first used to look in the Quran, if it is not available in the Quran then he used to look it in the Sunnah of the Prophet. Similarly if the Quran describes the principle or indirect hukum of the issue he also used to search the Sunnah in order to find out the details of that. He used to consider the practice of ahl-madina as Mutawatir hadith. If he did not find the solution in the Quran or inHadith he would refer to the general consensus of the companions who were known as faqih, if there were no general consensus regarding that matter then he would follow the individual opinions of the companions or would do qias. If it was an abstract matter where there is no room for ijtihad bil ray then he would follow the opinion of a companion, else he would preferijtihad bil ray. (Rahim,2003:67,68)
The notion of ijtihad in the jurisprudence of Imam Malik was in broad sense, very similar to the early notion of ijtihad, i.e. the Quran is the first priority in extracting the hokum of a given case, then the Sunnah, but considering the opinions of Sahabas as the third source and considering practices of Ahl al Madinah as Mutawatir are two distinguishable characteristics of Maliki jurisprudence. As far as the ijtihad bil ray is concern like the early jurists Imam Malik significantly applied that in the absence of the explicit text, different types of ijtihad bil ray can recognize in his discourse such as method of al-istihsan, al-istishab, al-masaleh, al-dharae etc. (Rahim,2003:68). Imam Malik particularly emphasized on al-istihsan since he said that istihsan represents nine tenth of the knowledge(الاستحسان تسعة أعشار العلم). (Kamali,1991:248)
Hanafi school of thought:
Hanafi school of thought is based on the jurisprudence of Imam Abu HanifaThe usul of Imam Abu Hanifa as he describes, which is narrated by Al-Baghdadi(1931:368), Al-Makki(h.1321:89), Al-Zahabi(h.1366:20) was as follow:
“If I find any hukum in the Quran, I confined myself with that. If I do not find that there, I accept Sunnah of the Prophet which has come to me through authentic narrators. When I do not find that in the Quran and in the Sunnah, I follow the opinion of the companions meaning their general consensuses. In case of their disagreement with each other I accept or abandon which ever I want, but I do not prefer others opinion over theirs’. In case of the opinion of others, I have the right of ijtihad as well as they have”.
As-Sa’rani mentioned in his ‘Kitab al-Mizan’ that ones the Caliph Al-Mansur wrote to Abu Hanifa, ‘I have hard that you prefer Qias over Hadith’. Abu Hanifa answered that he at first followed the Quran, then the Sunnah, then the verdicts of Abu Bakr, ‘Umar, ‘Uthman and ‘Ali. In case of their difference of opinion he did ‘Qias’.(1925:61)
Imam Abu Hanifa established a ‘Private Legislature’ in order to solve judicial problems. In other words he institutionalized the practice of ijtihad by establishing a fatawa council Al-Makki mentioned that, that body has solved eighty three thousand judicial problems which included contemporary issues as well as probable issues, those encompasses international affairs, constitutional, civil, criminal, business and witness law, judicial system etc. (h.1321:136). That combined ijtihad is the base of the Hanafi school of thought.
Imam Abu Yousuf and Imam Muhammad, the two students of Imam Abu Hanifa, contributed most in the establishment of this school of thought. Imam Abu Yousuf was appointed as the chief justice of the Abbasid Caliphate. Because of that the Hanafi School of thought became the state madhab, i.e. the jurisprudence of it became the jurisprudence of the states judicial system. Imam Muhammad learnt fiqh from Imam Abu Hanifa and Abu Yousuf then studied Muatta with Imam Malik. Afterward he started doing his own Ijtihad. He critically analyzed thefatwas of his two teachers Imam Abu Hanifa and Abu yousuf on the basis of Muatta. Where he found similarity he accepted it, but in case of conflict of those with Muatta he researched those again. In case of those which he found are supported by the opinion of a Sahabi or a Tabiyee, he preferred that over Muatta, but in case of those, which are extracted through the process of weak qias or weak istimbat and which contradict with the opinion of Sahabis of tabiyees, he abandoned that opinion and followed the one which he thought the most logical (Dehlovi,1971:18,19)
Dehlovi argues that both Imam Muhammad and Abu Yousuf were independent mujtahid. They had their own ijtihads which often contradicted with Imam Abu Hanifa. However the reasons of considering them as Hanafi jurists are as Dehlovi mentioned,
- There is a common thing in their discourses that is all of them followed the jurisprudence of Ibrahim Nakhyee.
- In Mabsut and Jamiul Kabir books their fatawas are compiled together. (Dehlovi,1971:19)
The Hanafi concept of ijtihad in broad sense is very similar to that of Maliki Jurisprudence, i.e. the Quran is the first priority in extracting the hukum of a given case, then the Sunnah, then the opinions of the companions and in case of their difference of opinion or new issues doingijtihad bil ray. However, there are some differences between their methodologies such as,
- As Dehlovi (1971) mentioned that they developed their fiqh on the basis of different sources, i.e. Imam malik took the Hadiths and Athar from famous seven jurists of Madina namely Sayd ibn Musayyeb, Urwa ibn Jubair, Qasim ibn Muhammad, Abu Bakr ibn Abd al-Rahman al-makhjumi, kharija ibn Jaid ibn Thabith, Ubaidullah ibn Abdullah, Sulaiman ibn Yasar, whereas, Hanafi jurists took the Hadiths and Athars from the channel of Abdullah ibn Masud.
- Imam Malik considered practices of Ahl al-Madinah as Khabr Mutawatir, whereas Hanafi jurists did not considered it as a source of law.
- Because of the comparatively small collection of Hadiths and Athars, Hanafi Jurists mostly depended on ijtihad bil ray, whereas, because of vast collecting of Hadiths and Athars and because of consideration of the practice of Ahl al-Madinah as Khabr mutawatir the scope of practicing ijtihad bil ray was limited.
Al-Shafi School of thought:
Imam Al-Shafi emerged during the period of the compilation of the above mentioned two school of thought’s jurisprudence(Dehlovi,1971:19). He is credited as the inventor of Usul al fiqh. However, Kamali argues that the Usul al-fiqh was existed before but until the time of Al-Shafi it was not in a form of science (1991:3,4). Imam Al-Shafi authored a book regarding the principles and rules of jurisprudence namely Al-Risalah, which is considered as the first book on Usul al-fiqh (Kamali,1991:3,4). The motivations which prompted Al-Shafi to introduce the usul al-fiqh are some inconsistencies which he observed in the discourses of his predecessors. He mentioned those in the beginning of his book kitabul Umm. In brief those are as followed:
- He observed that Maliki and Hanafi schools of thought accepted mursal and munkati traditions. Therefore, there are some shortcomings appear in their discourses. Most of those traditions are baseless, even some of those are contradictory with authentic traditions. Thus Imam Al-Shafi denied accepting unconditionally any mursal tradition.
- He observed that his predecessors did not set any consistent rule for reconciliation of apparently contradictory evidences following of which might secure ijtihad from errors. Therefore, Imam Al-Shafi gave particular attention on that subject in his work.
- He saw that some authentic Hadiths were not known to the Tabein jurists, therefore, their ijtihad often contradicted with authentic Hadiths. However, even when the later jurists came to know the authentic hadiths which is contradictory with the fatawas of early jurists, they did not abandon the fatawas of their predecessors, arguing that those traditions are contradictory with their Madhhab, there must be some shortcomings of those for that those were rejected by their predecessors. In response of that, Al-Shafi argues that we should follow the principles of our predecessors rather than blindly imitating them. Their principle was whenever they faced a new issue they used to looking for traditions regarding that, if they did not find any tradition then they would accept other kinds of sources and logics. However, they never closed the gate of accepting Hadiths for them, rather if they came to know any Hadith which contradicts their ijtihad bil ray, they used to abandon that and follow the Hadith. Therefore, Al-Shafi argues that unless they explicitly describe shortcomings of a Hadith it would not be fare to assume that they did not accept that because of some faults of that.
- During the time of Shafi almost all statements of Shahabis (Athars) was compiled. He observed that those are vastly self contradictory. He analyzed those and found that a large number of those are contradictory with authentic traditions. The reason of that is those traditions were unknown to them. He farther observed that in that situation the early jurists used to abandon the athars and follow the authentic Hadith. Al-Shafi followed the same principle. He said that Shabis were human being and we are also human being.
- He observed that some jurists are mixing up ray with qias, whereas Shariah forbids rayand legitimizes qias. He says that he means by ray considering a corrupted or logic based speculation or assumption as the basis of a rule of Shariah and according to him qias is reasoning the hukum of an issue which exists in the text and on the basis of that settling the hukums of other issues. He completely rejected ray and says about istihsan, which is to him one kind of ray that who he do istihsan, wants to be lawgiver.
It is appear from the reform activity of Al-Shafi that the objective of that was to make theijtihad systematic and to demolish the tendency of unconditional imitation of the predecessorsfatawas and hence to reopen and widen the scope of ijtihad. Although, he excluded ray from the category of ijtihad, specially he was critical about istihsan, and emphasized more on qiasbut he made the point clear that he is against ‘the following of ones personal whim and amounts to unjustified legislations’ (2000:236). Apart from that point there is not that much distinguishable difference between the principles of Al-Shafi and that of his predecessors. Nevertheless, as it is mentioned by Fazlur Rahman that unlike the early jurists who made a distinction between ilm namely the Quran and Sunnah, and fiqh or understanding of those primary sources, the later jurists mixed up fiqh with ilm(1979:103). In other words they started to consider fiqh of their predecessors as ilm. Al-Shafis put particular emphasis on that point and asserted that unlike ilm, fiqh or ijtihad of men never guarantees the accurate hukum and hence it does not have the parallel status of ilm and it is not obligatory over anyone except who he considers that as a correct understanding (Ramadhan,1970:86).
Hanbali School of thought:
Dehlovi argues that the Hanboli school of thought is a branch of Al-shafi school of thought in a sense that there is no such big difference between the usul of Shafi school of thought and that of Hanbalite(1971:55,56), although Imam Ahmad bin Hanbol is considered by some scholars as traditionist (muhaddith) rather than a jurist. The distinguishable character of his usul is that unlike his predecessors, he emphasized more on knowing the traditions as a qualification of a mujtahid. He says that a mujtahid should know at least five hundred thousand traditions (Dehlovi,1971:31).
The trend of Ahl Al-Hadith:
It is mentioned earlier that the trend of Ahl Al-Hadith developed from the time of the companion of the Prophet. There were some companions of the Prophet who were not in favor of doing ijtihad bil ray. During the era of tabin that trend farther developed particularly in the Madina through Sayed Musayyeb, Salem bin Abdullah bin Umar and others (Rahim,2003:61). Their argument against ijtihad bil ray can be understood from the answer of Salem when he was asked about a issue, the hokum of which was not in the Hadith, ‘I do not know anything about that, I might give my personal opinion (ijtihad bil ray) regarding that but the problem is that my opinion might change later and I might not find you in order to inform you that’ (Rahim,2003: 61,62). Abdur Rahim argued that the reason behind the stance against ‘ijtihad bil ray’ was that they were from the center of Hadith, i.e. from the Madina. Therefore, they had a rich source of Hadith and after the era of the Prophet and the companions, the situation of the Madinah did not changed that much up to their time. Therefore, they did not face that much new issues and hence they were not in need of ijtihad bil ray (2003:61). However, that trend was not restricted within the Madinah only rather the followers of that school of thought were also in other territories. Amer Shabi was a famous jurist of Kufa, he was also reluctant to give personal verdict, the usul of Sufian Sawri- another renowned kufi jurist- and Imam Awjayee –a jurist of Syria- was very similar to that. Al Shahristani(), in his book Al-Milal Al-Nahl, even classified Imam Malik and Imam Al-Shafi as Ahl al-Hadith, Ibn Khaldun also did the same in his Muqaddamah. However, Ibn Kutaiba () describes them as Ahl Al-Ray, since they were not against ijtihad bil ray. Nevertheless, that trend did not exist long; particularly after the departure of Dawd jahiri(d. 270 h.) the antiijtihad bil ray trend seems to be ended. However, Dehlovi argues that, after establishing theHadith methodology i.e. compilation of Hadiths, classifying those in order to distinguish between authentic and fabricated Hadith, the Ahl Al-Hadith school of thought concentrated to the fiqh based on a new usul. They did not follow any particular madhhab because they found that in every madhhab there are a lot of practices which are contradictory with authentic Hadiths and Athars. Dehlovi presented Imam Ahmad bin Hanbal as a jurists of that new trend (1971:31). That new usul is very similar to that of three other imams.The difference is that they had bigger collection of traditions than that of those Imams which is acknowledged by Al-Shafi when he told Imam Ahmad bin Hanbal, ‘you have better knowledge on Hadith than us, you should inform us about the authentic Hadith no matter whether it is narrated by the Basrians of Syrians’ (Dehlovi,1971:25).
We stated earlier that although the Ahl Al-Hadith trend was against ijtihad bil ray but they also did ijtihad. They research the Hadiths in order to separate authentic Hadithes from fabricated Hadithes and developed the Hadith methodology so mach so that, as Dehlovi mentioned, the early jurists struggled to have only thousand authentic Hadithes, whereas some of the traditionists succeed to collect and authenticate more than hundred thousandHadiths (). For instance, it is narrated by Imam Bukhari that after examining six hundred thousand traditions he compiled his book of Hadith. Imam Abu Dawd Sigistani narrated that he compiled his book of authentic traditions from five hundred thousand traditions(). There is no doubt about that examining the Hadith, i.e. whether its chain of narration is consistent or not, how reliable the narrators are, what is the quality of the Matan (text) and finally accepting or rejecting that, is one kind of ijtihad. Therefore it could be argued that the trend of Ahl Al-Hadith was not against the ijtihad itself rather there notion of ijtihad was deferent from that of Ahl Al-Ray. Particular point of difference between them was about the ijtihad bil ray. Ahl Al-Hadith school of thought was against that. The say of Abu Salama to Hasan Basri would farther assert this point, he told to Hasan Basri, do not solve the issues of Shariah by your personal opinion but give fatawa on the basis of the Quran and Sunnah (Dehlovi).
Does the door of Ijtihad ever been closed?
There are two ways of practicing Shariah, either doing ijtihad means practicing own understanding or doing taqlid means imitating or following that of someone else. Therefore, In order to judge the possibility of closing the gate of ijtihad it is necessary to understand the hokum of taqlid.
Hukum of taqlid:
Ibn Hazam says that according to the Qur’an and the general consensus of early scholars,taqlid is prohibited (haramatim that the Prophet says about the verse of the Quran, they (Jews) made their ‘Ulama their God instead of Allah (8:31), that they (Jews) did not worship their ‘Ulama rather when their ‘Ulama legitimized something they accepted that as legal and when they forbade that they also accepted that as forbidden. All Imams discouraged their student to imitate them. It is narrated in ‘Yaqut wa Jawahir’ that Imam Abu Hanifa says, ‘he, who does not know the evidences of my opinions, should not give legal opinion according to those’. Ones his student Imam Abu Yusuf was asked that why he deffared with Imam Abu Hanifa in numerous cases, he answered, ‘Imam Abu Hanifa definitely knew better than us, therefore we might not understand all of his opinions and giving fatawa on the basis of what we do not understand is not right’. Imam Malik says that apart from the Prophet there is no one else who’s opinion is completely accepted, i.e. all other’s opinions are partially accepted and partially rejected. Imam Al-Shafi ones told to Mujni, ‘do not blindly follow each and every opinion of mine, rather do ). All Mujtahid Imams forbade their disciples to do taqlid. a tradition of the Prophet can be cited regarding that. Muslim narrates on the authority of ‘Adi bin H ijtihad also, because it is the matter of Din’. Imam Ahmad bin Hanbal says, ‘do not imitate me, not also Malik, Awjayee, Ibrahim Nakhyee and others, rather like them take ahkam from the Quran and Sunnah’.
However, Dehlovi argues that the statement of Ibn Hajm is applicable for those who are qualified for doing ijtihad even if in one issue. He farther added that there is no harm in if someone follows a Mujtahid because of his lack of knowledge in Shariah. However, if he hold the view that, that mujtahid can not do mistake, whatever he says is right and no matter how weak the position of that mujtahid is from the point of view of evidence or no matter how strong the opposite opinions are, confining with that mujtahid, then that is not only prohibited but also, according to Dehlovi, very similar to the position of Jews regarding their ‘Ulama, which is apparently contradictory with the main principle of Islam namely tawhid and similar toShirk, as it is mentioned in above mentioned Hadith.
Continuation of ijtihad:
From above discussion it is clear that all jurist agreed that ijtihad is obligatory at lest for those who are qualified for that. Nawi in his book ‘Sharh al Muhazzab’ mentioned that ijtihad is fard kifaya meaning if the Muslim of any era neglect or discontinue the practice of that then all of them would be guilty for that. In other words there must be a group of mujtahid in every age, who will carry on the practice of ijtihad. The same view is expressed by Al-Mawardy in his book ‘Al-Hawi’, Al-Bagbi in his book ‘Al-Tahzib’, Ruyani in his book ‘Al-Bahar’, Dehlovi in his book ‘Al-Raddu Ala Man Akhlada Ilal Ardi Wa Jahala Annal Ijtihada Fi kulli Asrin Fardun’ ( refutation of those who tend towards the world and ignorant about the obligation of ijtihad in every era).
Shatibi in his book ‘Al- Muwafiqat fi Usul Al Shariah’ describes four types of Ijtihad from the point of view the importance of continuity of it.
1st: identification of general anchor point: in this type, the rule is already established. The function of the mujtahid is to identify the anchor point of law in general terms in a given case. Shatibi illustrates this point by an example of the ruling that requires a witness to be ‘adle(just). The general and broad meanings of ‘adl are known, but to determine the characteristics and qualifications on the basis of which a witness can be typically described as ‘adle is matter of Ijtihad. There are two levels of inquiry here, first, to define the characteristics of ‘adl and the second, to verify whether the witness in question possesses those characteristics. The first level belongs to this type.
2nd: identification of particular anchor point: this type of Ijtihad focuses on identification of the persons, acts or facts in a given case that correspond with these characteristics, e.g. the termfaqir covers a wide range of persons as its referents. To define faqir with particular reference to a specific point of law is identification of general anchor point, because the inquiry is still general. However, to identify a particular person whether he answers that definition is called identification of specific anchor point.
3rd: distinguishing between two anchor points: this type concerns those cases where the proper qualification of the ruling is mentioned in the text but in conjunction with another matter; the task of separating and distinguishing this qualification is done by this type ofIjtihad.
4th: locating the anchor point: this type refers to the text of a ruling where the anchor point(s) is/are not mentioned. The anchor point(s) is/are found through the process of deduction. This method is also called reasoning by analogy (Ijtihad al-qiyasi).
Shatibi argues that first two types of Ijtihad are ever continuing. The discontinuity of those would cause the application and extension of the rules of the Shariah impossible and henceShariah would become a set of non-practicing principles which would only exist in books. As far as the last two types of Ijtihad are concerns according to Shatibi the continuity of those depends on the situation and need of those (p. 64-76).
In the discussion of continuation of ijtihad Dehlovi divided mujtahids into three categories such as mjtihad mutlaq mustaqil, mujtahid mutlaq muntasib, mujtahid muqyyad Dehlovi, (1971:51-54).
Mujtahid mutlaq mustaqil is that mujtahid who fulfills following three conditions, 1st: he set the maxims (qawaid) and principles (usul) of extracting ahkam from the sources, 2nd: he has to have a reach collection of hadiths and athars, 3rd: he would able to solve the masael of his time on the basis of his method of Ijtihad. mujtahid mutlaq muntasib is that mujtahid who follows a mujtahid mutlaq mustaqil in above mention 1st condition. However, he has the rest of the characteristics of mujtahid mutlaq mustaqil, i.e. he contributes independently in those two fields. mujtahid muqayyad or mujtahid fil madhhab is the one who follows a mujtahid mutlaq mustaqil in above mentioned first two conditions and contribute separately in the third condition. In other words he extracts (istinbat) ahkams by following the rules and principles of a mujtahid mutlaq mustaqil and relies on the collections of him (Dehlovi, 1971:51-54).
Dehlovi argues that the door of becoming a mujtahid mutlaq mustaqil closed forever after the fourth century of hizrah (Dehlovi, 1971:46), but the door of ijtihad mutlaq muntasib andijtihad fil madhab is open and will open until the day of Qiyamah. In other words, door of inventing or setting new usul of practicing ijtihad is closed but practicing ijtihad on the basis of a well established usul is open. It must not be stopped in any age because as it is mentioned earlier it is fard kifaya. Dehlovi’s view of closing the gate of setting new usul is based on his argument that all jurist agreed about the following of the usuls of mujtahid (mustaqil) Imams namely usuls of four madhhabs (Dehlovi, 1971:45). In other word there is a tacit general consensus occurred on that. However, there are some other opinions regarding that. Some argue that usuls of Imams are also one kind of ijtihad and like other ijtihads it is also a human product therefore it is not unchangeable and obligatory to follow.[5]
The need for Ijtihad in every age
Allah (swt) addressed the whole of mankind through the Prophethood of our master Muhammad (saw). He (swt) said:
“Say (O Muhammad (saw)): “O mankind! Verily I am sent to you all as the Messenger of Allah…’’ [TMQ 7:158]
“O mankind! Verily, there has come to you a convincing proof (Muhammad [saw]) from your Lord” [TMQ 4:174]
“O mankind! Verily, there has come to you the Messenger (Muhammad [saw]) with the truth from your Lord.” [TMQ 4:170]
And He (swt) addressed the people and the Muslims with the Ahkam of Islam. He (swt) said:
“O mankind! Fear your Lord and be dutiful to Him! Verily, the earthquake of the Hour (of judgment) is a terrible thing.” [TMQ 22:1]
“O mankind! Be dutiful to your Lord, Who created you from a single person...” [TMQ 4:1]
“O you who believe! Fight those of the disbelievers who are close to you, and let them find harshness in you..” [TMQ 9:123]
“O you who believe! Approach not As-Salat (the prayer) when you are in a drunken state.” [TMQ 4:43]
“O you who believe! When you go (to fight) in the Cause of Allah, verify (the truth)...” [TMQ 4:94]
“O you who believe! Stand out firmly for justice, as witnesses to Allah, even though it be against yourselves...” [TMQ 4:135]
From these verses and others similar we understand that Allah (swt) has addressed humanity directly. Therefore for the one who has heard the address of the Legislator, Allah (swt) - it becomes incumbent on him to believe in it and understand it. It also becomes incumbent on him to act upon it, because it is Hukm Shar'ai (Shariah rule). So in principle a Muslim should understand the Hukm (rule) of Allah from the speech of the Legislator directly. This is because the speech has been directed at all people by the Legislator and not only at the Mujtahidin or the'Ulama but all the Mukallafin (those who are legally responsible). Thus it became an obligation on the Mukallafin to understand this speech so as to be able to act upon it, since it is impossible to act upon the speech without comprehending it. Therefore, the inference (Istinbat) of Allah's Hukm became Fard on all theMukallifin i.e. Ijtihad became Fard on all the Mukallafin (legally responsible). Consequently, the basis of a Mukallaf (legally responsible) should be that he adopts the Hukm of Allah himself from the speech of the Legislator because he has been addressed by this speech.
However, the reality of the Mukallifin (legally responsible) is that there is a disparity in their understanding and comprehension and in their aptitude for learning. They also differ in terms of knowledge and ignorance. Therefore, it is impossible for all of them to deduce Shar’ai rules from the evidences i.e. it is impossible for allMukallafin to be Mujtahidin. Since the objective is to understand the speech and act upon it then the understanding of the speech i.e. Ijtihad is Fard on all theMukallafin (legally responsible). However since it is impossible for all Mukallafin to understand the address for themselves due to the disparity of their understanding and the disparity in learning, then the obligation of Ijtihad becomes one of sufficiency ('ala al-Kifaya). If some undertake it the rest are absolved of the sin. Therefore, it became obligatory on those Muslims legally responsible that there should be Mujtahidin amongst them who would derive the Shar’ai rules. There is a similarity in this respect to other sciences, not everyone can become a doctor, physicist or chemist due to the disparity of people’s aptitude for learning.
The reality of the Mukallafin and the Hukm Shar'ai means that there would be two categories amongst the Muslims: the Mujtahidin and Muqallidin. This is because the one who adopts the Hukm himself directly from the evidences is a Mujtahid, and the one who questions the Mujtahid about a Hukm Shar'ai is a Muqallid; irrespective of whether or not the questioner asked about the Hukm to learn and act upon it, to learn and teach it to others or just to learn it. The Muqallid is considered as one when he asks someone who is not a Mujtahid but knows the Hukm Shar'aiand is able to tell others, whether the one who was asked is knowledgeable or just a layman. Thus, they are all followers (Muqallid) of others in this Hukm even if they do not know the one who deduced the Hukm, because the Mukallaf is required to adopt the Hukm Shar'ai and not follow any particular person. Being a Muqallidmeans he has adopted a Hukm Shar’ai, which he did not deduce himself. It does not mean he followed a particular person, since the subject matter is the Hukm Shar’ai and not the person. The difference between the Muqallid and the Mujtahid is that the Mujtahid deduces the Hukm Shar’ai from the Shariah evidence himself and the Muqallid is the one who adopts the Hukm Shar’ai irrespective of whether or not he knew the one who derived it, as long as he trusts the Hukm to be a Shariah rule. It is not a permissible Taqleed to adopt the opinion of any person as a personal opinion or the opinion of such and such scholar, thinker or philosopher without it being derived from the Islamic evidences. None of this is legitimate Taqleed. It is tantamount to adopting something other than Islam and this is prohibited by the Shariah. Also, Allah has ordered us to adopt from the Messenger Muhammad (saw) and not from anybody else whoever he may be. He (swt) said:
“And whatsoever the Messenger (Muhammad [saw]) gives you, take it, and whatsoever he forbids you, abstain (from it).” [TMQ 59:7]
A prohibition has been mentioned with regards to adopting an opinion originating from the peoples own minds without being based on the Islamic evidences. In the Hadith in Sahih of Bukhari, on the authority of 'Urwa b. al-Zubayr who said: 'Abd Allah b. 'Amr b. al-'As overcame us with proof. I heard him say: “Allah will not deprive you of knowledge after he has given it to you, but it will be taken away through the death of the learned men (Ulema’a) with their knowledge. There will remain ignorant people who, when consulted, will give verdicts according to their opinions whereby they will mislead others and themselves go astray.” i.e. they give Fatwas according to their own opinions which are not derived from the Islamic evidences. The opinion that has been deduced from the Islamic evidences is not considered as an opinion originating from the one who deduced it, on the contrary it is considered as a Hukm Shar’ai. As for what is regarded as mere opinion, it is just hearsay which emanates from a person. That is why the Messenger (saw) called it a Bid'aa (innovation). In the authentic Hadith the Prophet (saw) said: “The best speech is the Book of Allah and the best guidance is the guidance of Muhammad (saw). And the evil matters are the newly invented issues and every Bida’a (innovation) is a misguidance.” [Muslim]
The 'newly invented issues' are the Bida’a (innovations), they are whatever contradicts the Kitab, Sunnah or Ijma as-Sahaba (consensus of the companions) in terms of the Ahkam whether by action or speech. Thus the Taqleed allowed by Shariah is for the person unable to deduce Hukm Shar’ai themselves to ask the scholar about the particular Hukm Shar’ai so as to learn and adopt it. To summarise, it is allowed for anybody unaware of a Hukm Shar’ai to ask one who does know the Hukm so he may learn and take it. The subject and evidences for the permissibility of Taqleed are elaborated further in the section concerning Taqleed.
The fact that Ijtihad is an obligation of sufficiency (fard kifaayah), means that no age should be devoid of the presence of a mujtahid, otherwise the Muslims will be sinful. If one or more mujtahid is present then the sin is removed from the Muslims of that age and this is proven from two angles:
Firstly: The texts of the Islamic shariah requires the Muslims to undertake Ijtihad because these texts did not come in an elaborate manner. Even the ones that did come in detail regarding some matters did not cover all the details with a definite text. For example, the ayat of inheritance have come in a detailed manner. However in terms of partial rules they still require scrutiny and deduction such as the issue of Kalaalah and Hajab. The Mujtahidun take the view that the child (Walad) whether male or female, takes precedence in inheritance over the brothers of the deceased because the word ‘Walad' (child) refers to children of both sexes. Despite this Ibn 'Abbas holds the view that the girl does not inherit because the word 'Walad' refers to a male only. This shows that even some texts that treat in detail have come as ambivalent (Mujmal), and understanding and deducing aHukm from them requires Ijtihad. This is from the angle of the texts.
Secondly: the newly occurring incidents of life are continuous and so if effort is not expended to deduce the rules relating to them, then it will not be possible apply theShariah rules on them, knowing that there are numerous texts obliging the application of the Shariah rule on every issue:
He (swt) said: “And so judge (you o Muhammad [saw]) between them by what Allah has revealed.” [TMQ 5:49]
He (swt) said: “But no, by your Lord, they can have no Faith, until they make you (O Muhammad [saw]) judge in all their disputes between them, and find in themselves no resistance against your decisions, and accept (them) with full submission.” [TMQ 4:65]
He (swt) said: “And We have sent down to you the Book (the Quran) as an exposition to everything.” [TMQ 16:89]
Thus, Ijtihad is Fard on those who have the ability in every age i.e. it is a Fard kifayah if some have already performed it the rest are absolved of the obligation. This is from the angle whatever is necessary to fulfill a wajib (obligation) is itself awajib. Ijtihad is wajib because we cannot refer to what Allah has revealed in every issue without Ijtihad.
Thus, Islam has encouraged Ijtihad by giving the one who gets an Ijtihad right two rewards and the one gets it wrong he gets one reward. The Muslims practiced Ijtihad from the beginning of Islam. The Sahabah had many Ijtihads and their differences in certain issues are well known. They used to deduce rules according to their own ability because they were proficient in the language, they lived which the Quran was being revealed. And they learnt directly from the Messenger of Allah (saw).
Then they were succeeded in the following ages by people from whom many mujtahideen emerged such as the Imaams of the mazhabs and their students.
The ages of Islam continued to flourish until the weakness in the Ijtihad creped in and its was banned and taqleed became widespread. And the deduced rules of Allah could not keep up with the new emerging issues.
Ijtihad must continue so that there are able Mujtihadeen in the Ummah and Islam can lead the world in solving their problems and bring them out from the darkness into light.
The Messenger (saw) gave us the glad tidings that this goodness will not stop and that in the last ages there will from this Ummah those who will work to apply the laws of Allah on the earth and make Ijtihad to keep Islam the highest. He (saw) said: “There is will always be a group from my Ummah who will remain in the Haqq (truth) until the Decree of Allah comes and Dajjal appears.”
To say that the doors of Ijtihad are closed is completely incorrect, this was a serious error that some Ulema mistakenly called for in history and clearly contradicts the Shariah. The Shariah texts exist today as they existed in the past, therefore Ijtihad is not only possible, it is necessary and a Fard ul Kifaya (duty of sufficiency), as was proven earlier. Al- Shawkani (d.1255/1839) articulated this brilliantly when he said:'It is utter nonsense to say that Allah Almighty bestowed the capacity for knowledge and Ijtihad on the bygone generations of ulema but denied it to the later generations.' ‘What the proponents of taqlid are saying to us is that we must know the Quran and the Sunnah through the words of other men while we still have the guidance in our hands. Praise be to Allah, this is the greatest lie (buhtanun 'azim) and there is no reason in the world to vindicate it.’ [Shawkani, Irshad, p. 254] The doors of Ijtihad are open but not for the ignorant, they are open until the day of judgement for the people of knowledge who have the capability to perform it as knowledge is the key to the door of Ijtihad.[6]
Allah (swt) addressed the whole of mankind through the Prophethood of our master Muhammad (saw). He (swt) said:
“Say (O Muhammad (saw)): “O mankind! Verily I am sent to you all as the Messenger of Allah…’’ [TMQ 7:158]
“O mankind! Verily, there has come to you a convincing proof (Muhammad [saw]) from your Lord” [TMQ 4:174]
“O mankind! Verily, there has come to you the Messenger (Muhammad [saw]) with the truth from your Lord.” [TMQ 4:170]
And He (swt) addressed the people and the Muslims with the Ahkam of Islam. He (swt) said:
“O mankind! Fear your Lord and be dutiful to Him! Verily, the earthquake of the Hour (of judgment) is a terrible thing.” [TMQ 22:1]
“O mankind! Be dutiful to your Lord, Who created you from a single person...” [TMQ 4:1]
“O you who believe! Fight those of the disbelievers who are close to you, and let them find harshness in you..” [TMQ 9:123]
“O you who believe! Approach not As-Salat (the prayer) when you are in a drunken state.” [TMQ 4:43]
“O you who believe! When you go (to fight) in the Cause of Allah, verify (the truth)...” [TMQ 4:94]
“O you who believe! Stand out firmly for justice, as witnesses to Allah, even though it be against yourselves...” [TMQ 4:135]
From these verses and others similar we understand that Allah (swt) has addressed humanity directly. Therefore for the one who has heard the address of the Legislator, Allah (swt) - it becomes incumbent on him to believe in it and understand it. It also becomes incumbent on him to act upon it, because it is Hukm Shar'ai (Shariah rule). So in principle a Muslim should understand the Hukm (rule) of Allah from the speech of the Legislator directly. This is because the speech has been directed at all people by the Legislator and not only at the Mujtahidin or the'Ulama but all the Mukallafin (those who are legally responsible). Thus it became an obligation on the Mukallafin to understand this speech so as to be able to act upon it, since it is impossible to act upon the speech without comprehending it. Therefore, the inference (Istinbat) of Allah's Hukm became Fard on all theMukallifin i.e. Ijtihad became Fard on all the Mukallafin (legally responsible). Consequently, the basis of a Mukallaf (legally responsible) should be that he adopts the Hukm of Allah himself from the speech of the Legislator because he has been addressed by this speech.
However, the reality of the Mukallifin (legally responsible) is that there is a disparity in their understanding and comprehension and in their aptitude for learning. They also differ in terms of knowledge and ignorance. Therefore, it is impossible for all of them to deduce Shar’ai rules from the evidences i.e. it is impossible for allMukallafin to be Mujtahidin. Since the objective is to understand the speech and act upon it then the understanding of the speech i.e. Ijtihad is Fard on all theMukallafin (legally responsible). However since it is impossible for all Mukallafin to understand the address for themselves due to the disparity of their understanding and the disparity in learning, then the obligation of Ijtihad becomes one of sufficiency ('ala al-Kifaya). If some undertake it the rest are absolved of the sin. Therefore, it became obligatory on those Muslims legally responsible that there should be Mujtahidin amongst them who would derive the Shar’ai rules. There is a similarity in this respect to other sciences, not everyone can become a doctor, physicist or chemist due to the disparity of people’s aptitude for learning.
The reality of the Mukallafin and the Hukm Shar'ai means that there would be two categories amongst the Muslims: the Mujtahidin and Muqallidin. This is because the one who adopts the Hukm himself directly from the evidences is a Mujtahid, and the one who questions the Mujtahid about a Hukm Shar'ai is a Muqallid; irrespective of whether or not the questioner asked about the Hukm to learn and act upon it, to learn and teach it to others or just to learn it. The Muqallid is considered as one when he asks someone who is not a Mujtahid but knows the Hukm Shar'aiand is able to tell others, whether the one who was asked is knowledgeable or just a layman. Thus, they are all followers (Muqallid) of others in this Hukm even if they do not know the one who deduced the Hukm, because the Mukallaf is required to adopt the Hukm Shar'ai and not follow any particular person. Being a Muqallidmeans he has adopted a Hukm Shar’ai, which he did not deduce himself. It does not mean he followed a particular person, since the subject matter is the Hukm Shar’ai and not the person. The difference between the Muqallid and the Mujtahid is that the Mujtahid deduces the Hukm Shar’ai from the Shariah evidence himself and the Muqallid is the one who adopts the Hukm Shar’ai irrespective of whether or not he knew the one who derived it, as long as he trusts the Hukm to be a Shariah rule. It is not a permissible Taqleed to adopt the opinion of any person as a personal opinion or the opinion of such and such scholar, thinker or philosopher without it being derived from the Islamic evidences. None of this is legitimate Taqleed. It is tantamount to adopting something other than Islam and this is prohibited by the Shariah. Also, Allah has ordered us to adopt from the Messenger Muhammad (saw) and not from anybody else whoever he may be. He (swt) said:
“And whatsoever the Messenger (Muhammad [saw]) gives you, take it, and whatsoever he forbids you, abstain (from it).” [TMQ 59:7]
A prohibition has been mentioned with regards to adopting an opinion originating from the peoples own minds without being based on the Islamic evidences. In the Hadith in Sahih of Bukhari, on the authority of 'Urwa b. al-Zubayr who said: 'Abd Allah b. 'Amr b. al-'As overcame us with proof. I heard him say: “Allah will not deprive you of knowledge after he has given it to you, but it will be taken away through the death of the learned men (Ulema’a) with their knowledge. There will remain ignorant people who, when consulted, will give verdicts according to their opinions whereby they will mislead others and themselves go astray.” i.e. they give Fatwas according to their own opinions which are not derived from the Islamic evidences. The opinion that has been deduced from the Islamic evidences is not considered as an opinion originating from the one who deduced it, on the contrary it is considered as a Hukm Shar’ai. As for what is regarded as mere opinion, it is just hearsay which emanates from a person. That is why the Messenger (saw) called it a Bid'aa (innovation). In the authentic Hadith the Prophet (saw) said: “The best speech is the Book of Allah and the best guidance is the guidance of Muhammad (saw). And the evil matters are the newly invented issues and every Bida’a (innovation) is a misguidance.” [Muslim]
The 'newly invented issues' are the Bida’a (innovations), they are whatever contradicts the Kitab, Sunnah or Ijma as-Sahaba (consensus of the companions) in terms of the Ahkam whether by action or speech. Thus the Taqleed allowed by Shariah is for the person unable to deduce Hukm Shar’ai themselves to ask the scholar about the particular Hukm Shar’ai so as to learn and adopt it. To summarise, it is allowed for anybody unaware of a Hukm Shar’ai to ask one who does know the Hukm so he may learn and take it. The subject and evidences for the permissibility of Taqleed are elaborated further in the section concerning Taqleed.
The fact that Ijtihad is an obligation of sufficiency (fard kifaayah), means that no age should be devoid of the presence of a mujtahid, otherwise the Muslims will be sinful. If one or more mujtahid is present then the sin is removed from the Muslims of that age and this is proven from two angles:
Firstly: The texts of the Islamic shariah requires the Muslims to undertake Ijtihad because these texts did not come in an elaborate manner. Even the ones that did come in detail regarding some matters did not cover all the details with a definite text. For example, the ayat of inheritance have come in a detailed manner. However in terms of partial rules they still require scrutiny and deduction such as the issue of Kalaalah and Hajab. The Mujtahidun take the view that the child (Walad) whether male or female, takes precedence in inheritance over the brothers of the deceased because the word ‘Walad' (child) refers to children of both sexes. Despite this Ibn 'Abbas holds the view that the girl does not inherit because the word 'Walad' refers to a male only. This shows that even some texts that treat in detail have come as ambivalent (Mujmal), and understanding and deducing aHukm from them requires Ijtihad. This is from the angle of the texts.
Secondly: the newly occurring incidents of life are continuous and so if effort is not expended to deduce the rules relating to them, then it will not be possible apply theShariah rules on them, knowing that there are numerous texts obliging the application of the Shariah rule on every issue:
He (swt) said: “And so judge (you o Muhammad [saw]) between them by what Allah has revealed.” [TMQ 5:49]
He (swt) said: “But no, by your Lord, they can have no Faith, until they make you (O Muhammad [saw]) judge in all their disputes between them, and find in themselves no resistance against your decisions, and accept (them) with full submission.” [TMQ 4:65]
He (swt) said: “And We have sent down to you the Book (the Quran) as an exposition to everything.” [TMQ 16:89]
Thus, Ijtihad is Fard on those who have the ability in every age i.e. it is a Fard kifayah if some have already performed it the rest are absolved of the obligation. This is from the angle whatever is necessary to fulfill a wajib (obligation) is itself awajib. Ijtihad is wajib because we cannot refer to what Allah has revealed in every issue without Ijtihad.
Thus, Islam has encouraged Ijtihad by giving the one who gets an Ijtihad right two rewards and the one gets it wrong he gets one reward. The Muslims practiced Ijtihad from the beginning of Islam. The Sahabah had many Ijtihads and their differences in certain issues are well known. They used to deduce rules according to their own ability because they were proficient in the language, they lived which the Quran was being revealed. And they learnt directly from the Messenger of Allah (saw).
Then they were succeeded in the following ages by people from whom many mujtahideen emerged such as the Imaams of the mazhabs and their students.
The ages of Islam continued to flourish until the weakness in the Ijtihad creped in and its was banned and taqleed became widespread. And the deduced rules of Allah could not keep up with the new emerging issues.
Ijtihad must continue so that there are able Mujtihadeen in the Ummah and Islam can lead the world in solving their problems and bring them out from the darkness into light.
The Messenger (saw) gave us the glad tidings that this goodness will not stop and that in the last ages there will from this Ummah those who will work to apply the laws of Allah on the earth and make Ijtihad to keep Islam the highest. He (saw) said: “There is will always be a group from my Ummah who will remain in the Haqq (truth) until the Decree of Allah comes and Dajjal appears.”
To say that the doors of Ijtihad are closed is completely incorrect, this was a serious error that some Ulema mistakenly called for in history and clearly contradicts the Shariah. The Shariah texts exist today as they existed in the past, therefore Ijtihad is not only possible, it is necessary and a Fard ul Kifaya (duty of sufficiency), as was proven earlier. Al- Shawkani (d.1255/1839) articulated this brilliantly when he said:'It is utter nonsense to say that Allah Almighty bestowed the capacity for knowledge and Ijtihad on the bygone generations of ulema but denied it to the later generations.' ‘What the proponents of taqlid are saying to us is that we must know the Quran and the Sunnah through the words of other men while we still have the guidance in our hands. Praise be to Allah, this is the greatest lie (buhtanun 'azim) and there is no reason in the world to vindicate it.’ [Shawkani, Irshad, p. 254] The doors of Ijtihad are open but not for the ignorant, they are open until the day of judgement for the people of knowledge who have the capability to perform it as knowledge is the key to the door of Ijtihad.[6]
The Ijtihad of present-day thinkers:
There is among us a so-called 'thinker'. I mention him here as a 'thinker' because he is regarded as such in his circle
‘As for the thief, both male and female, cut off their hands (5. 3 8)
E plainin g this verse of the Hol y Qu r’a n , T hi s so-called thinker has said: The word "thief' stands for the capitalists who have established huge industries, the word "hands " s t a n d s for indus t r i e s and "cut o f f ' s t a n d s for nationalization of their industries. According to this, the verse means that all the industries of the capitalists should be nationalised to close the door of theft.
Note: Thus, according to his "great thinker", Allah has let free the thieves, robbers, dacoits and plunderers to continue their crimes without fear of punishment. Dr Muhammad Iqbal's opinion about the Ijtilaad (Independent opinion) of this kind.
To follow in the footsteps of the past learned men are safer than following the Ijtihad of such short-sighted men of today. [7]
The Validity of Ijtihad:
Many Qur’anic verses appear to validate ijtihad: “Verily, in these things are ayat (e.g., proof, evidences, lessons, signs) for people who reflect” (13:3);
“Verily, in these things are ayat for the people who understand” (13:4); and
“Surely, We have sent down to you (O Muhammad) the book (this Qur’an) in truth that you might judge between people by that which God has shown you” (4:105).
These verses support the use of ijtihad by qiyas.
The following verses obviously indicate its validity: “And consult them in their affairs”
(3:159) and “… who (conduct) their affairs by mutual consultation” (42:38).
In addition, many hadiths validate ijtihad. `Amr ibn al-`As (d. 65/684) narrated that he heard the Prophet say: “If a jurist exerts efforts and arrives at 76 The American Journal of Islamic Social Sciences 24:1a correct ruling, he will be rewarded twice. If he arrives at an errorenous ruling, he will be rewarded once.”
According to Mu`adh ibn Jabal’s (d. 18/640) famous hadith:
The Prophet asked: “How will you judge when the occasion of deciding a case arises?” He replied: “I shall judge in accordance with God’s book.” The Prophet asked: “(What will you do) if you do not find guidance in God’s book?” He replied: “(I will act) in accordance with the Sunnah of the Messenger of God.” The Prophet asked: “(What will you do) if you do not find guidance in the Sunnah of the Apostle of God and in God’s
book?” He replied: “I shall do my best to form an opinion and spare no pains.” The Apostle of God then patted him on the chest and said: “Praise be to God who helped the messenger of the Apostle of God to find a thing which pleases the Apostle of God.”
According to Muhammad al-Dasuqi, all jurists are to use ijtihad that is valid and unanimously accepted. Undertaking it is a key to the ongoing development of Islamic law and opens a gate to fiqh that will develop the law when dealing with new issues. He further says that its use is a kind of revelation of Islamic fiqh.
Ijtihad and its scope in 21st centaury:
It is generally acknowledged that the privilege of Ijtihad is restricted to the great scholars
of Islamic law. The question whether or not Ijtihad can still be performed now is therefore controversial. There is certainly a strong opinion in classical Sunni Islamic law that by the tenth century all main principles of Islamic law had been completely settled and that therefore ‘the gates of Ijtihad’ had been closed. Shia jurisprudence did not accept the concept of the ‘closing of the gates of Ijtihad’. For the Shia, the hidden Imam (the twelfth Imam of the Shia who was subsumed in the mosque of Samara near Baghdad) has always been a source of reinterpretation of existing concepts and even of fundamental changes. In fact, Shia jurisprudence, like that of the Sunni, entered into a period of stagnation around the tenth century. However, there are contemporary Islamic jurists who argue that the gates of Ijtihad were never closed and that, for this reason, Ijtihad should be employed to adapt Islamic law to the modern world. In practice, in many instances law reform measures carried out by way of legislation have adapted Islamic law to the requirements of the modern world. This is the case in many Arab countries and also in countries like Pakistan and Bangladesh. You will see examples of these reform measures in the chapter on marriage.[8]
The subject of ijtihad occupies a recurring theme across much contemporary Islamic literature. A tool employed by Islamic jurists, it holds the key to Islam’s continual relevance and to defining an Islamic approach for solving problems in a post-modern world. Akmal Asghar provides an overview of ijtihad and its role in presenting an Islamic alternative.
“Islam has long vanished from the stage of history, and has retreated into oriental ease and repose”, were the words of the German philosopher George Friedrich Hegel in the middle of the nineteenth century. But as Martin Kramer, senior associate of the Moshe Dayan Centre at Tel Aviv University, remarks at Hegel’s ‘endist’ predictions, “The persistent refusal of Islam to do just that remains one of the principal flaws of ‘endism,’ from Hegel to this day…” It’s certainly true, despite emerging fifteen centuries ago, Islam features considerably in current global politics and has far from vanished. The phenomenon of movements advocating a ‘revival’ of seventh century Islam can be perplexing and their stated goal - an Islamic rule - lends itself to a number of possible criticisms. Among the most obvious is the question of Islam’s ability to tackle issues in a world vastly different to the one that first received it. As Olivier Roy describes in his book ‘The Failure of Political Islam’, “The irruption of Islam into the political landscape is often perceived as an anachronism; how is it possible, late in the twentieth century, to return to the Middle Ages?”
It is a genuine challenge. How does Islam deal with the rapid advances in science and technology, institutions of the post-modern world or social, economic and political trends? If Islam were unable to handle the complexities of contemporary life, it may indeed produce an outdated medieval system, causing its adherents to deny the fruits of current modernity.
Time alone, however, is not enough to render an idea invalid. The revival of ancient Greek philosophy, art and culture was termed a ‘renaissance’ in Europe. Many of the foundations of the West’s contemporary intellectual and political tradition are associated with three millennia-old discourses still considered valid in the twenty first century. Indeed, a number of English legal statutes still in use, such as the Treason Act of 1351, date back many centuries; English common law emerged in the Middle Ages, taking from Roman law and influenced by Norman and Saxon custom; the US Bill of Rights, passed in 1791, reflects the guarantee of due process given by the Magna Carta in1215 and the English Bill of Rights of 1689. Even if only by way of example, it appears that Western scholars and jurists are willing to accept that old ideas can have a place in - indeed define - the modern world, and so comparably, the fact that Islam emerged in seventh century Arabia is not in itself cause to suggest its inapplicability.
Some propose that Islam’s continual relevance can only come through its reform. However, the keyword for Islam’s applicability in the twenty first century is not reform (islah), but the Islamic concept of ijtihad. While reform implicitly discounts the validity of an idea through suggesting that it is in need of alteration, ijtihad tackles contemporary problems using Islam’s original principles and rules; it does not demand their alteration but their application.
Indeed, the subject of ijtihad addresses two important questions regarding Islam’s continual relevance that are often thought to support reasons for its reform. Firstly, the specificity of Islam to the circumstances of seventh century Arabia and, secondly, the ability for the finite body of Islamic texts left by the Prophet of Islam (peace be upon him) to address ever changing human problems.
Regarding the first, Islam’s legislative rules and principles are founded on a doctrine that views problems as extending from the needs of human beings as human beings. That is to say, not in their racial, regional or tribal context, or as a reaction to a particular social condition; or as Muslims or non-Muslims, but as human beings. It is only a specific doctrine inasmuch as it is specific to all human beings. It is a timeless conception of the human condition, for it is not man’s nature that changes with the passage of time, but his material circumstances; the complexity of material and technology, which develop through continuous scientific endeavour.
Man’s innate needs, whether basic organic requirements such as the need for food, clothing and shelter or basic instinctual drives such as survival, justice and security, remain consistent. Furthermore, the needs that extend from this basic constitution such as the need to regulate political, social and economic relationships individually or collectively are also seen to exist across the expanse of human history. Though their manifestations may change, it could not be said that new needs have manifested or that the existing ones always increase, either in complexity or propensity. New world-views, thoughts and beliefs may develop over time and emerge at various points in human history, but these too do not represent a shift in man’s fundamental nature, intellect or needs. Since the Islamic system addresses problems as demands extending from this consistent human nature, it is continually applicable and a consistent source of solutions for tackling human problems.
Indeed, it is not thoughts, but things that time may render obsolete. An idea is invalidated by identifying its intellectual shortcomings whereas material things are replaced and considered obsolete as scientific and engineering progress produces increasing material sophistication.
Ijtihad is a legal tool employed by jurists to extract legislation for any number of new problems from the original Islamic texts. It is a defined process established by Mohammed (peace be upon him) during his lifetime and allows the finite body of Islamic texts to address, in detail, previously unfamiliar events. The key aspects of ijtihad that make this possible relate to analogy and to a process of linking the subject matter of contemporary problems with similar occurrences in the Islamic texts and precepts. The pivotal role of analogy in the process ijtihad is such that the leading Islamic jurist Mohammed Idris al-Shafi’i, in his book al-Risalah, went as far as to equate the two:
“…and ijtihad is qiyas (analogy)”. More broadly, ijtihad consists of three general stages:
first, to objectively understand in detail the reality of the problem, question or dilemma for which a solution is sought, which may demand specific knowledge if relating to a particular area of expertise, for example, relevant scientific competence if tackling issues relating to stem cell research, or economic and financial expertise if evaluating a complex financial product;
second, to identify the Islamic texts, concepts and laws which discuss a relevant, or similar, subject matter;
third, to analogise between the current issue and the relevant texts in the original Islamic sources to identify similarities and differences, and through a process of weighing these similarities and differences extract a position on the current issue.
Each element is considerably more elaborate and requires expertise and competence in Islamic jurisprudence, the sciences of Islamic sources, and of Islamic legal maxims, legal principles and specific legal definitions. The competence to apply the process of ijtihad defines an Islamic scholar (mujtahid), but the process is not reserved to a priestly class or clergy. The qualification is open to all, men and women, who wish to gain sufficient competence in Islamic jurisprudence to practise ijtihad and to work as a judge, advocate or legal expert.
The scope of ijtihad, it is important to note, does not extend to things, including the products of scientific and technological progress; the general principle is that they are useable without restriction. They are only addressed when specific questions about their use gives rise to other human problems. For example, in developments relating to genetic engineering, the technology is not rejected, but its use may be defined to prevent human cloning due to its impact on marriage and genealogy.
The substantial progress many historians note in early Islamic history was made possible through the continuous use of Ijtihad. It allowed the Caliphate to tackle numerous political, social and economic problems that had not previously confronted the Prophet Mohammed (peace be upon him). The expansion of its territories brought it into contact with foreign cultures and differing political structures, whether those of Greek, Persian or south Asian origin, in the second century of the Hijri calendar (ninth century CE), and with it their customs, traditions and practices, and their own models of organising and regulating society. This expansion created parallel internal challenges whether relating to the rights, distribution or productivity of land; the rights of minorities or the administration of the expanding state apparatus, with its specific questions about qualifications for rule, organisation of the judiciary, accountability, ascension and removal of people
from posts of power. Indeed, these foreign and internal challenges acted to provide a continuous demand for the use of ijtihad, to develop perspectives and provide a legislative framework with which to deal with them. It produced a rich and healthy legislative, political and intellectual atmosphere and with it generations of some of the most accomplished mujtahids, both Shiah and Sunni, in Islamic history. Among them, the Kufi (Iraqi) Imams such as Numan bin Thabit (’Abu
Hanifah’), North Africans such as al-Layth ibn Sa’d, Arabs such as Malik ibn Anas and Mohammed Shafi’i, and later Andalusians, such as ibn Hazm, Central Asians and many others, whose impact has been such that much of the body of Islamic jurisprudence lies, to this day, within the framework of their endeavours.
from posts of power. Indeed, these foreign and internal challenges acted to provide a continuous demand for the use of ijtihad, to develop perspectives and provide a legislative framework with which to deal with them. It produced a rich and healthy legislative, political and intellectual atmosphere and with it generations of some of the most accomplished mujtahids, both Shiah and Sunni, in Islamic history. Among them, the Kufi (Iraqi) Imams such as Numan bin Thabit (’Abu
Hanifah’), North Africans such as al-Layth ibn Sa’d, Arabs such as Malik ibn Anas and Mohammed Shafi’i, and later Andalusians, such as ibn Hazm, Central Asians and many others, whose impact has been such that much of the body of Islamic jurisprudence lies, to this day, within the framework of their endeavours.
Indeed, the absence of ijtihad would have been debilitating, positively paralysing, for the progress of the Islamic world historically. And it is exactly why when its use slowly declined from the tenth century and when, in the thirteenth century after the destruction of the seat of learning in Baghdad by the Mongols, it was suggested that its use be discontinued - an event of commonly referred to as ‘the closure of the gates of Ijtihad’ by Islamic historians - the Islamic world fell into a slow decline. The loss of ijtihad amounted to a denial of oxygen to the bloodstream of the legislative and political
processes in the Islamic world, rendering the Caliphate incapacitated in the face of new problems and challenges. For a while, jurists relied on annotating the conclusions of previous jurists, far removed from the primary Islamic legislative texts, a practice that promoted imitation (taqlid) and stifled thinking. But when confronted with a European mindset distinctly more ideological than the one it confronted in its siege of Vienna, having gone through its ‘enlightenment’, the extent of the decline in the Islamic world became apparent. Unable to respond to the intellectual and technological challenges it now confronted, the Caliphate, due to the absence of ijtihad, failed to clearly evaluate its position on a number of fronts. This produced the bizarre situation during the nineteenth century where, on the one hand, European legislative codes were being introduced in their swathes while on the other, the Caliphate initially rejected inventions as simple as the printing press. The Islamic world, therefore, was in no position to present Islam’s alternative political philosophy, and some interpreted events as highlighting deficiencies within Islam itself; indeed numerous individuals set about advocating its reform. But when evaluating reformist thought, whether that of Jamal ad-Din Afghani (1839-1897), Sir Syed Ahmed Khan (1817-1898), Mohammed Abduh (1849-1905), Taha Husayn (1889-1973) or others, one finds that reform did not offer an alternative but was an implicit - often explicit - call to integrate into Europe’s intellectual and political culture. Indeed, some even ironically advocated a revival of ‘ijtihad’. However, their definition of the word was often more secular than Islamic, using as they did the literal meaning ‘jahada’ or ‘to exert’ which was taken to mean a call to exhaust independent intellectual effort as opposed to a juristic process to derive distinctly Islamic solutions to contemporary problems based on its original texts.
processes in the Islamic world, rendering the Caliphate incapacitated in the face of new problems and challenges. For a while, jurists relied on annotating the conclusions of previous jurists, far removed from the primary Islamic legislative texts, a practice that promoted imitation (taqlid) and stifled thinking. But when confronted with a European mindset distinctly more ideological than the one it confronted in its siege of Vienna, having gone through its ‘enlightenment’, the extent of the decline in the Islamic world became apparent. Unable to respond to the intellectual and technological challenges it now confronted, the Caliphate, due to the absence of ijtihad, failed to clearly evaluate its position on a number of fronts. This produced the bizarre situation during the nineteenth century where, on the one hand, European legislative codes were being introduced in their swathes while on the other, the Caliphate initially rejected inventions as simple as the printing press. The Islamic world, therefore, was in no position to present Islam’s alternative political philosophy, and some interpreted events as highlighting deficiencies within Islam itself; indeed numerous individuals set about advocating its reform. But when evaluating reformist thought, whether that of Jamal ad-Din Afghani (1839-1897), Sir Syed Ahmed Khan (1817-1898), Mohammed Abduh (1849-1905), Taha Husayn (1889-1973) or others, one finds that reform did not offer an alternative but was an implicit - often explicit - call to integrate into Europe’s intellectual and political culture. Indeed, some even ironically advocated a revival of ‘ijtihad’. However, their definition of the word was often more secular than Islamic, using as they did the literal meaning ‘jahada’ or ‘to exert’ which was taken to mean a call to exhaust independent intellectual effort as opposed to a juristic process to derive distinctly Islamic solutions to contemporary problems based on its original texts.
Islam is no stranger to foreign or alterative ideas and cultures and the challenges they bring. Western political philosophy presents the current alternative and contemporary events, problems and dilemmas present a spectrum of challenges. The Muslim world is now in need of perspective on issues from globalisation, the free market and liberalism to genetics, stem cell research and cloning. Ijtihad provides the ability to present Islamic perspectives, indeed alternative approaches,
for each of these, and is why, for example, Farooq Khan, in his article “Re-defining the Globalisation debate”, is able to suggest, “Islam…can be argued as not only the first global political philosophy but the only political philosophy that can capture the forces of globalisation…” A revival in the use of ijtihad marks an important step in presenting a practical Islamic alternative[9]
for each of these, and is why, for example, Farooq Khan, in his article “Re-defining the Globalisation debate”, is able to suggest, “Islam…can be argued as not only the first global political philosophy but the only political philosophy that can capture the forces of globalisation…” A revival in the use of ijtihad marks an important step in presenting a practical Islamic alternative[9]
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[1]. Kamali, M. H. (1996). Principles of Islamic Jurisprudence. Karachi
[2] Muhammad, T.U. (1991). Discources on Islamic way of life. Pakistan
[3] . . Fawzan, Dr.Al.S. (2001). A summary of Islamic Jurisprudence. Dawa Foundition. Vol:2 pp. 22-24.
[4] Imran,Ahsan Khan Nyazee.”Islamic Jurispurudence”: Pakistan,Islamic Research Institue,2000. Pp.273-274
4.An-Na'im, Abdullahi Ahmed An-Na'im. (1946). Toward an Islamic reformation. America
[8] . Qasmi, A. H. (2006). International encyclopaedia of Islam. Published by Isha books. India
I got a lot from your this kind post. Thank you very much for such a nice post.
ReplyDeleteOnly one thing i would like to say that on Page 3 there is a lot of typing mistakes. If you get time go through that so that someone seeking help shouldn't feel difficulty in reading it and lest he/she should understand other meaning of it.
Peace be upon you for sharing this.
:)
jazakallah.. definitly, i wil take a look on it....
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