19. IJTIHAD OR PERSONAL REASONING
Ijtihad is the most important source of Islamic law next to the Qur’an and the Sunnah. The main difference between ijtihad and the revealed sources of the Shari’ah lies in the fact that ijtihad is a continuous process of development whereas divine revelation and prophetic legislation discontinued upon the demise of the Prophet. In this sense, ijtihad continues to be the main instrument of interpreting the divine message and relating it to the changing conditions of the Muslim community in its aspirations to attain justice, salvation and truth.
Since ijtihad derives its validity from divine revelation, its propriety is measured by its harmony with the Qur’an and the Sunnah. The sources of Islamic law are therefore essentially monolithic, and the commonly accepted division of the roots of jurisprudence into the primary and secondary is somewhat formal rather than real. The essential unity of the Shari’ah lies in the degree of harmony that is achieved between revelation and reason. Ijtihad is the principal instrument of maintaining this harmony. The various sources of Islamic law that feature next to the Qur’an and the Sunnah are all manifestations of ijtihad, albeit with differences that are largely procedural in character. In this way, consensus of opinion, analogy, juristic preference, considerations of public interest (maslahah), etc., are all inter-related not only under the main heading of ijtihad, but via it to the Quran and the Sunnah. It is partly due to the formalistic character of these subdivisions that they are often found to be overlapping and concurrent. Thus a ruling of ijma is often based on analogy, maslahah, or istihsan, and so on, despite its being designated as ijma,. Similarly, qiyas and istihsan are closely related to one another in the sense that one of the two main varieties of istihsan consists of a selection between two analogies on the same issue. The difference between maslahah and istihsan is largely procedural, for they are essentially the same, the one being reflective of the Maliki and the other of the Hanafi approach to ijtihad. It is thus evident that all the non-revealed proofs of Shari’ah are an embodiment of the single phenomenon of ijtihad.
Being a derivation from the root word jahada, ijtihad literally means striving, or self-exertion in any activity which entails a measure of hardship. It would thus be in order to use jahada in respect of one who carries a heavy load, but not so if he carries only a trivial weight. Juridically, however, ijtihad mainly consists not of physical, but of intellectual exertion on the part of the jurist. Ijtihad is defined as the total expenditure of effort made by a jurist in order to infer, with a degree of probability, the rules of Shari’ah from their detailed evidence in the sources. Some ulema have defined ijtihad as the application by a jurist of all his faculties either in inferring the rules of Shari’ah from their sources, or in implementing such rules and applying them to particular issues. Ijtihad essentially consists of an inference (istinbat) that amounts to a probability (zann), thereby excluding the extraction of a ruling from a clear text. It also excludes the discovery of a hukm by asking a learned person or by consulting the relevant literature without the exercise of one’s own opinion and judgment. Thus a person who knows the rules of Shari’ah in detail but is unable to exercise his judgment in the inference of the ahkam directly from their sources is not a mujtahid. Ijtihad, in other words, consists of the formulation of an opinion in regard to a hukm shar’i. The presence of an element of speculation in ijtihad implies that the result arrived at is probably correct, while the possibility of its being erroneous is not excluded. Zann in this context is distinguished from ‘ilm, which implies positive knowledge. Since the decisive rules of Shari’ah impart positive knowledge, they are excluded from the scope of ijtihad. Essential to the meaning of ijtihad is also the concept that the endeavour of the jurist involves a total expenditure of efforts in such a manner that the jurits feels an inability to exert himself further. If the jurist has failed to discover the evidence which he was capable of discovering, his opinion is void. And lastly, the definition of ijtihad is explicit on the point that only a jurist (faqih) may practice ijtihad. This is explained by the requirements of ijtihad, namely the qualifications that must be fulfilled for attainment to the rank of mujtahid. When these requirements are met, it is inevitable that the mujtahid must also be a faqih. Thus the definition of ijtihad precludes self-exertion by a layman in the inference of ahkam.
The subject of ijtihad must be a question of Shari’ah; more specifically, ijtihad is concerned with the practical rules of Shari’ah which usually regulate the conduct of those to whom they apply (i.e. the mukallaf). This would preclude from the scope of ijtihad purely intellectual (`aqli) and customary (urfi) issues, or matters that are perceptible to the senses (hissi) and do not involve the inference of a hukm shar’i from the evidence present in the sources. Thus ijtihad may not be exercised in regard to such issues as the createdness of the universe, the existence of a Creator, the sending of prophets, and so forth, because there is only one correct view in regard to these matters, and any one who differs from it is wrong. Similarly, one may not exercise ijtihad on matters such as the obligatory status of the pillars of the faith, or the prohibition of murder, theft, and adultery. For these are evident truths of the Shari’ah which are determined in the explicit statements of the text.
The detailed evidence found in the Qur’an and the Sunnah are divided into four types, as follows.
1. Evidence which is decisive both in respect of authenticity and meaning.
2. Evidence which is authentic but speculative in meaning.
3. That which is of doubtful authenticity, but definite in meaning.
4. Evidence which is speculative in respect both of authenticity and meaning.
Ijtihad does not apply to the first of the foregoing categories, such as the clear nusus concerning the prescribed penalties (hudud). But ijtihad can validly operate in regard to any of the remaining three types of evidence, as the following illustrations will show:
1. An example of ijtihad concerning evidence which is definite of proof but speculative of meaning is the Qur’anic text in sura al-Baqarah (2:228): ‘The divorced women must observe three courses (quru’) upon themselves.’ There is no doubt concerning the authenticity of this text, as the Qur’an is authentic throughout. However its meaning, in particular the precise meaning of the word quru’, is open to speculation. Quru’ is a homonym meaning both ‘menstruations’ and `the clean periods between menstruations’. Whereas Imam Abu Hanifah and Ibn Hanbal have adopted the former, Imam Shafi’i and Malik have adopted the latter meaning, and their respective ijtihad leads them to correspondingly different results.
2. Ijtihad in regard to the second variety of evidence relates mainly to Hadith material, which may have a definitive meaning but whose authenticity is open to doubt. To give an example, the Hadith which provides in regard to zakah on camels that `a goat is to be levied on every five camels.’ has a clear meaning, which is why the jurists are in agreement that there is no zakah on less than five camels. But since this is a solitary Hadith, its authenticity remains speculative. Ijtihad concerning this Hadith may take the form of an investigation into the authenticity of its transmission and the reliability of its narrators, matters on which the jurists are not unanimous due to the different criteria that they apply.
This would in turn lead them to different conclusions. Should the differences of ijtihad and the rulings so arrived at be conflicting to the point that no reliance can be placed on any, they are all to be abandoned and no obligation may be established on their basis.
3. To give an example of ijtihad concerning evidence that is speculative in both authenticity and meaning, we may refer to the Hadith which provides: There is no salah (la salata) without the recitation of sura al-Fatihah.
Being a solitary Hadith, its authenticity is not proven with certainty. Similarly it is open to different interpretations in the sense that it could mean either that salah without the Fatihah is invalid, or that it is merely incomplete. The Hanafis have held the latter, whereas the Shafi’is have adopted the former meaning of the Hadith. And finally with regard to such matters on which no evidence can be found in the nusus or ijma`, ijtihad may take the form of analogical deduction, juristic preference (istihsan), or the consideration of public interest (maslahah), and so on.
The Value (Hukm) of Ijtihad
Legal theory in all of its parts derives its validity from the revealed sources. It is partly for this reason and partly for the reason of man’s duty to worship his Creator that the practice of ijtihad is a religious duty. The ulema are in agreement that ijtihad is the collective obligation (fard kafa’i) of all qualified jurists in the event where an issue arises but no urgency is encountered over its ruling. The duty remains unfulfilled until it is performed by at least one mujtahid. If a question is addressed to two mujtahids, or to two judges for that matter, and one of them exerts himself to formulate a response, the other is absolved of his duty. But ijtihad becomes a personal obligation (wajib or fard `ayn) of the qualified mujtahid in urgent cases, that is, when there is fear that the cause of justice or truth may be lost if ijtihad is not immediately attempted. This is particularly the case when no other qualified person can be found to attempt ijtihad. With regard to the mujtahid himself, ijtihad is a wajib ‘ayni: he must practice ijtihad in order to find the ruling for an issue that affects him personally. This is so because imitation (taqlid) is forbidden to a mujtahid who is capable of deducing the hukm directly from the sources. Should there be no urgency over ijtihad, or in the event where other mujtahids are available, then the duty remains as a fard kafa’i only. Furthermore, ijtihad is recommended (mandub) in all cases where no particular issue has been referred to the mujtahid, or when it is attempted in the absence of an issue by way of theoretical construction at the initiative of the jurist himself. And finally ijtihad is forbidden (haram) when it contradicts the decisive rules of the Quran, the Sunnah and a definite ijma.
The ulema of usul are in agreement that the mujtahid is bound by the result of his own ijtihad. Once he has deduced the ruling on a particular issue which is founded in his true conviction and belief, he may not imitate other mujtahids on that matter regardless as to whether they agree with him or otherwise. For the mujtahid, the conclusion that he reaches is tantamount to a divine command which he must observe. It is therefore unlawful for him to abandon it or to follow anyone else in respect of it. But if he had not rendered his own ijtihad on an issue which is not urgent, and he has time to investigate, then according to some ulema he may imitate other mujtahids. However, the preferred view is that he must avoid taqlid, even of one who might be more learned than him. Only a ‘ammi (layman) who is capable of ijtihad is allowed to follow the opinion of others. This is considered to be the purport of the Qur’anic command, addressed to all those who have the capacity and knowledge, to exert themselves in the cause of justice and truth (al-Hashr, 59:2).
Elsewhere we read in the Qur’an (Muhammad, 47:24): ‘Will they not meditate on the Qur’an, or do they have locks on their heart?’ The same conclusion is sustained in another Qur’anic passage, in sura al-Nisa’ (4:59) where the text requires the judgment of all disputes to be referred to God and to His Messenger. These and many similar ayat in the Qur’an lend support to the conclusion that it is the duty of the learned to study and investigate the Qur’an and the teachings of the Prophet. The correct meaning of the manifest directives (Zawahir) of the Qur’an is also understood from the practice of the Companions who used to investigate matters, and each would formulate their own ijtihad, in which case they would not imitate anyone else. The mujtahid is thus the authority (hujjah) for himself. He is to provide guidance to those who do not know, but he himself must remain in close contact with the sources. This is also the purport of another Quranic ayah which enjoins those who do not possess knowledge: ‘Then ask those who have knowledge (ahl al-dhikr) if you yourselves do not know’ (al-Nahl, 16:43). Thus only those who do not know may seek guidance from others, not those who have the ability and knowledge to deduce the correct answer themselves. The ahl al-dhikr in this ayah refers to the ulema, regardless as to whether they actually know the correct ruling of an issue or not, provided they have the capacity to investigate and find out. but after a period of time changes his opinion on the same issue, he may set aside or change his initial ruling if this would only affect him personally. For example, when he enters a contract of marriage with a woman without the consent of her guardian (wali) and later changes his opinion on the validity of such a marriage, he must annul the nikah. But if his ijtihad affects others when, for example, he acts as a judge and issues a decision on the basis of his own ijtihad, and then changes his views, he may not, according to the majority of ulema, set aside his earlier decision. For if one ruling of ijtihad could be set aside by another, then the latter must be equally subject to reversal, and this would lead to uncertainty and loss of credibility in the ahkam. It is reported that `Umar b. Al- Khattab adjudicated a case, known as Hajariyyah, in which the deceased, a woman, was survived by her husband, mother, two consanguine and two uterine brothers. ‘Umar b. al-Khattab entitled all the brothers to a share in one-third of the estate. but was told by one of the parties that the previous year, he (`Umar) had not entitled all the brothers to share the portion of one-third. To this the caliph replied, ‘That was my decision then, but today I have decided it differently.’ Thus the Caliph Umar upheld both his decisions and did not allow his latter decision to affect the validity of the former.Similarly, the decision of one judge may not be set aside by another merely because the latter happens to have a different opinion on the matter. It is reported that a man whose case was adjudicated by ‘Ali and Zayd informed Umar b. al-Khattab of their decision, to which the latter replied that he would have ruled differently if he were the judge. To this the man replied, ‘Then why don’t you, as you are the Caliph?’ `Umar b. al-Khattab replied that had it been a matter of applying the Qur’an or the Sunnah, he would have intervened, but since the decision was based in ra’y, they were all equal in this respect. Since in matters of juristic opinion no-one can be certain that a particular view is wrong, the view that has already been embodied in a judicial decree has a greater claim to validity than the opposite view. The position is, however, different if the initial decision is found to be in violation of the law, in which case it must be set aside. This is the purport of the ruling of `Umar ibn al-Khattab which he conveyed in his well-known letter to Abu Musa al-Ash’ari as follows: ‘After giving a judgment, if upon reconsideration you arrive at a different opinion, do not let the judgment stand in the way of retraction. For justice may not be disregarded, and you are to know that it is better to retract than to persist injustice.
The precedent of the Companions on this issue has led to the formulation of a legal maxim which provides that ‘ijtihad may not be overruled by its equivalent’ (al-ijtihad la yunqad bi-mithlih). Consequently, unless the judge and the mujtahid is convinced that his previous ijtihad was erroneous, he must not attempt to reverse it. Thus a judicial decision which is based on the personal opinion and ijtihad of a particular judge-cum-mujtahid is irreversible on the basis of a mere difference of opinion by another judge. It is further suggested that the issuing judge himself may change his initial decision which was based on ijtihad in a subsequent case if he is convinced that this is a preferable course to take. But the credibility of judicial decisions is a factor that would discourage the issuing judge to change his initial decision unless it proves to have been manifestly oppressive.
The Proof (Hujjiyyah) of Ijtihad
Ijtihad is validated by the Qur’an, the Sunnah and the dictates of reason (`aql). Of the first two, the Sunnah is more specific in validating ijtihad. The Hadith of Mu’adh b. Jabal, as al-Ghazali points out, provides clear authority for ijtihad.The same author adds: The claim that this Hadith is mursal (i.e. a Hadith whose chain of narration is broken at the point when the name of the companion who heard it from the Prophet is not mentioned) is of no account. For the ummah has accepted it and has consistently relied on it; no further dispute over its authenticity is therefore warranted. According to another Hadith, when a judgement is made, he will still have earned one reward.
This Hadith implies that regardless of its results, ijtihad never partakes in sin. When the necessary requirements of ijtihad are present, the results is always meritorious and never blameworthy.In another Hadith, the Prophet is reported to have said: ‘Strive and endeavour, (ijtahidu), for everyone is ordained to accomplish that which he is created for.’
There is also the Hadith which reads: ‘When God favours one of His servants, He enables him to acquire knowledge (tafaqquh) in religion.’ The ulema of usul have also quoted in this connection two other ahadith, one of which makes the pursuit of knowledge an obligation of every Muslim, man or woman, and the other declares the Ulema to be the successors of the Prophets.The relevance of the last two ahadith to ijtihad is borne out by the fact that ijtihad is the main instrument of creativity and knowledge in Islam.
The numerous Quranic ayat that relate to ijtihad are all in the nature of probabilities (zawahir). All the Qur’anic ayat which the ulema have quoted in support of qiyas (see page 217) can also be quoted in support of ijtihad. In addition, we read, in sura al-Tawbah (9:122): ‘Let a contingent from each division of them devote themselves to the study of religion [li-yatafaqqahu fi’l-din] and warn their people [. . .]’ Devotion to the study of religion is the essence of ijtihad, which should be a continuous feature of the life of the community. Although the pursuit of knowledge is a duty of every individual, attaining tafaqquh, or ‘erudition in religious disciplines’, is necessary for those who guide the community and warn them against deviation and ignorance. On a similar note, we read in sura al-Ankabut (29:69): ‘And those who strive [wa’l-ladhina jahadu] in Our cause, We will certainly guide them in Our paths.’ It is interesting that in this ayah the word subulana (‘Our paths’) occurs in the plural form, which might suggest that there are numerous paths toward the truth, which are all open to those who exert themselves in its pursuit. Furthermore, we read in sura al-Nisa’ (4:59): `If you dispute over something, then refer it to God and to the Messenger.’ The implementation of this ayah would necessitate knowledge of the Qur’an, the Sunnah and the objectives (maqasid) of the Lawgiver on whose basis disputed matters could be adjudicated and resolved.
The Companions practiced ijtihad, and their consensus is claimed in support of it.In their search for solutions to disputed matters, they would base their judgement on the Qur’an and the Sunnah, but if they failed to find the necessary guidance therein, they would resort to ijtihad. The fact that the Companions resorted to ijtihad in the absence of a nass is established by continuous testimony (tawatur).
The rational argument in support of ijtihad is to be sought in the fact that while the nusus of Shari’ah are limited, new experiences in the life of the community continue to give rise to new problems. It is therefore imperative for the learned members of the community to attempt to find solutions to such problems through ijtihad.
Conditions (Shurut) of Ijtihad
The mujtahid must be a Muslim and a competent person of sound mind who has attained a level of intellectual competence which enables him to form an independent judgment. In his capacity as a successor to the Prophet, the mujtahid performs a religious duty, and his verdict is a proof (hujjah) to those who follow him; he must therefore be a Muslim, and be knowledgeable in the various disciplines of religious learning. A person who fails to meet one or more of the requirements of ijtihad is disqualified and may not exercise ijtihad. The requirements which are discussed below contemplate ijtihad in its unrestricted form, often referred to as ijtihad fi’l-shar`, as opposed to the varieties of ijtihad that are confined to a particular school, or to particular issues within the confines of a given madhhab.
The earliest complete account of the qualifications of a mujtahid is given in Abu’ Husayn al-Basri’s (d. 436/1044) al-Mu’tamad fi Usul al-Fiqh. The broad outline of al-Basri’s exposition was later accepted, with minor changes, by al-Shirazi (d. 467/1083), al-Ghazali (d. 505/111 ) and al-Amidi (d. 632/1234). This does not mean that the requirements of ijtihad received no attention from the ulema who lived before al-Basri. But it was from then onwards that they were consistently adopted by the ulema of usul and became a standard feature of ijtihad. These requirements are as follows:
(a) Knowledge of Arabic to the extent that enables the scholar to enjoy a correct understanding of the Qur’an and the Sunnah. A complete command and erudition in Arabic is not a requirement, but the mujtahid must know the nuances of the language and be able to comprehend the sources accurately and deduce the ahkam from them with a high level of competence. Al-Shatibi, however, lays greater emphasis on the knowledge of Arabic: a person who possesses only an average knowledge of Arabic cannot aim at the highest level of attainment in ijtihad. The language of the Qur’an and the Sunnah is the key to their comprehension and the ijtihad of anyone who is deficient in this respect is unacceptable. The same author adds: Since the opinion of the mujtahid is a proof (hujjah) for a layman, this degree of authority necessitates direct access to the sources and full competence in Arabic.
The mujtahid must also be knowledgeable in the Qur’an and the Sunnah, the Makki and the Madinese contents of the Qur’an, the occasions of its revelation (asbab al-nuzul) and the incidences of abrogation therein. More specifically, he must have a full grasp of the legal contents, or the ayat al-ahkam, but not necessarily of the narratives and parables of the Quran and its passages relating to the hereafter. According to some ulema, including al-Ghazali, Ibn al-Arabi, and Abu Bakr al-Raza, the legal ayat of the Qur’an which the mujtahid must know amount to about five hundred. Al-Shawkani, however, observes that a specification of this kind cannot be definitive. For a mujtahid may infer a legal rule from the narratives and parables that are found in the Qur’an. The knowledge of ayat al-ahkam includes knowledge of the related commentaries (tafasir) with special reference to the Sunnah and the views of the Companions. Al-Qurtubi’s Tafsir al-Qurtubi, and the Ahkam al-Qur’an of Abu Bakr, ‘Ali al-Jesses,are particularly recommended.
Next, the mujtahid must possess an adequate knowledge of the Sunnah, especially that part of it which relates to the subject of his ijtihad. This is the view of those who admit the divisibility (tajzi’ah) of ijtihad (for which see below), but if ijtihad is deemed to be indivisible, then the mujtahid must be knowledgeable of the Sunnah as a whole, especially with reference to the ahkam texts, often referred to as ahadith al-ahkam. He must know the incidences of abrogation in the Sunnah, the general and the specific, (‘amm and khass), the absolute and the qualified (mutlaq and muqayyad), and the reliability or otherwise of the narrators of Hadith. It is not necessary to commit to memory the ahadith al-ahkam or the names of their narrators, but he must know where to find the ahadith when he needs to refer to them, and be able to distinguish the reliable from the weak and the authentic from the spurious. Imam Ghazali points out that an adequate familiarity with the ahadith al-ahkam such as those found in Sunan Abi Dawud, Sunan al-Bayhaqi, or the Musnad of Ibn Hanbal would suffice. According to another view, which is attributed to Ahmad b. Hanbal, the ahadith al-ahkam are likely to number in the region of 1200.
The mujtahid must also know the substance of the furu`works and the points on which there is an ijma’. He should be able to verify the consensus of the Companions, the Successors, and the leading Imams and mujtahidun of the past so that he is guarded against the possibility of issuing an opinion contrary to such an ijma`. It would be rare, al-Shawkani observes, for anyone who has attained the rank of a mujtahid not to be aware of the issues on which there is a conclusive ijma`. By implication, the mujtahid must also be aware of the opposing views, as it is said, ‘the most learned of people is also one who is most knowledgeable of the differences among people.
In their expositions of the qualifications of a mujtahid, the ulema of usul place a special emphasis on the knowledge of qiyas. The Qur’an and the Sunnah, on the whole, do not completely specify the law as it might be stated in a juristic manual, but contact general rulings and indications as in the causes of such rulings. The mujtahid is thus enabled to have recourse to analogical deduction in order to discover the ruling for an unprecedented case. An adequate knowledge of the rules and procedures of qiyas is thus essential for the mujtahid. Imam Shafi`i has gone so far as to equate ijtihad with qiyas. Analogy, in other words, is the main bastion of ijtihad, even if the two are not identical. Al-Ghazali has observed that notwithstanding the claim by some ulema that qiyas and ijtihad are identical and coextensive, ijtihad is wider than qiyas as it comprises methods of reasoning other than analogy.
Furthermore, the mujtahid should know the objectives (maqasid) of the Shari’ah, which consist of the masalih (considerations of public interest). The most important masalih are those which the Lawgiver has Himself identified and which must be given priority over others. Thus the protection of the `Five Principles’, namely of his religion, intellect, lineage and property, are the recognised objectives of the Lawgiver. These are the essentials (daruriyyat) of the masalih and as such they are distinguished from the complementary (hajiyyat) and the embellishments (tahsiniyyat). The mujtahid must also know the general maxims of fiqh such as the removal of hardship (raf`al-haraj), that certainty must prevail over doubt, and other such principles which are designed to prevent rigidity in the ahkam. He must be able to distinguish the genuine masalih from those which might be inspired by whimsical desires, and be able to achieve a correct balance between values.
Al-Shatibi summarises all the foregoing requirements of ijtihad under two main headings, one of which is the adequate grasp of the objectives of the Shari’ah, while the other is the knowledge of the sources and the methods of deduction. The first of these is fundamental, and the second serves as an instrument of achieving the first.
It is further suggested in this connection that the mujtahid must be capable of distinguishing strength and weakness in reasoning and evidence. This requirement has prompted some ulema to say that the mujtahid should have a knowledge of logic (mantiq). But this is not strictly a requirement. For logic as a discipline had not even developed during the time of the Companions, but this did not detract from their ability to practice ijtihad.
And finally, the mujtahid must be an upright (`adil) person who refrains from committing sins and whose judgement the people can trust. His sincerity must be beyond question and untainted with self-seeking interests. For ijtihad is a sacred trust, and anyone who is tainted with heresy and self-indulgence is unworthy of it. These are the conditions of independent ijtihad, but a mujtahid on particular issues need only know all the relevant information concerning those issues and may, at least according to those who admit the `divisibility’ of ijtihad, practice ijtihad in respect of them. His lack of knowledge in matters unrelated to the issues concerned does not prejudice his competence for ijtihad.
Some observers have suggested that the practice of ijtihad was abandoned partly because the qualifications required for its practice were made so immaculate and rigorous and were set so high that they were humanly impossible to fulfill. This is, however, an implausible supposition which has been advanced mainly by the proponents of taqlid with a view to discouraging the practice of ijtihad. As for the actual conditions, Abdur Rahim (with many others) has aptly observed that the qualifications required of a mujtahid would seem to be extremely moderate, and there can be no warrant for supposing that men of the present day are unfitted to acquire such qualifications. There is little evidence to prove that fulfilling the necessary conditions of ijtihad was beyond the reach of the ulema of later periods. On the contrary, as one observer has pointed out,the total knowledge required on the part of the jurist enabled many to undertake ijtihad in one area of the law or another. Their task was further facilitated by the legal theory, in particular the Hadith which absolved the mujtahid who committed an error from the charge of sin and even entitled him to a spiritual reward. Furthermore, the recognition in the legal theory of the divisibility of ijithad, as we shall presently discuss, enabled the specialist in particular areas of the Shari’ah to practice ijtiad even if he was not equally knowledgeable in all of its other disciplines.
Divisibility of Ijtihad
The question to be discussed here is whether a person who is learned on a particular subject is qualified to practice ijtihad in that area, or whether he is required to qualify as a full mujtahid first in order to be able to carry out any ijtihad at all. The majority of ulema have held the view that once a person has fulfilled the necessary conditions of ijtihad he is qualified to practice it in all areas of the Shari’ah. According to this view, the intellectual ability and competence of a mujtahid cannot be divided into compartments. Ijtihad, in other words, is indivisible, and we cannot say that a person is a mujtahid in the area of matrimonial law and an imitator (muqallid) in regard to devotional matters (`ibadat) or vice- versa. To say this would be tantamount to a contradiction in terms, as ijtihad and taqlid cannot be combined in one and the same person. The majority view is based on the analysis that ijtihad for the most part consists of formulating an opinion, or zann, concerning a rule of the Shari’ah. A zann of this type occurs only to a fully qualified mujtahid who has attained the necessary level of intellectual competence. It is further argued that all the branches of the Shari`ah are interrelated, and ignorance in one may lead to an error or misjudgment in another. The majority view is further supported by the argument that once a person has attained the rank of mujtahid he is no longer permitted to follow others in matters where he can exercise ijtihad himself. Among the majority there are some ulema who have allowed an exception to the indivisibility of ijtihad. This is the area of inheritance, which is considered to be self-contained as a discipline of Shari’ah law and independent of the knowledge of the other branches. Hence a jurist who is only knowledgeable in this field may practice ijtihad in isolation from the other branches of Fiqh.
Some Maliki, Hanbali and Zahiri ulema have, however, held the view that ijtihad is divisible. Hence when a person is learned in a particular area of the Shari`ah he may practice ijtihad in that area only. This would in no way violate any of the accepted principles of ijtihad. There is similarly no objection, according to this view, to the possibility of a person being both a mujtahid and a muqallid at the same time. Thus a mujtahid may confine the scope of his ijtihad to the area of his specialisation. This has, in fact, been the case with many of the prominent Imams who have, on occasions, admitted their lack of knowledge in regard to particular issues. Imam Malik is said to have admitted in regard to thirty-six issues that he did not know the right answer. But in spite of this, there is no doubt concerning Malik’s competence as a fully-fledged mujtahid.
The view that ijtihad is divisible is supported by a number of prominent ulema, including Abu’l-Husayn al-Basri, al-Ghazali, Ibn al-Humam, Ibn Taymiyyah, his disciple Ibn al-Qayyim and al-Shawkani. Al- Ghazali thus observes that a person may be particularly learned in qiyas and be able to practice ijtihad in the form of analogy even if he is not an expert on Hadith. According to the proponents of this view, if knowledge of all the disciplines of Shari’ah were to be a requirement, most ulema would fail to meet it and it would impose a heavy restriction on ijtihad. Al-Shawkani, Badran and al-Kassab have all observed that this is the preferable of the two views. One might add here that in modern times, in view of the sheer bulk of information and the more rapid pace of its growth, specialisation in any major area of knowledge would seem to hold the key to originality and creative ijtihad. Divisibility of ijtihad would thus seem to be in greater harmony with the conditions of research in modern times. By way of a postscript, one might also remark that the classification of mujtahids into various ranks, such as mujtahids in a particular school or on particular issues, takes for granted the idea that ijtihad is divisible.
Procedure of Ijtihad
Since ijtihad occurs in a variety of forms, such as qiyas, istihsan, maslahah mursalah, and so on, each of these is regulated by its own rules. There is, in other words, no uniform procedure for ijtihad as such. The ulema have nevertheless suggested that in practicing ijtihad, the jurist must first of all look at the nusus of the Qur’an and the Hadith, which must be given priority over all other evidence. Should there be no nass on the matter, then he may resort to the manifest text (zahir) of the Qur’an and Hadith and interpret it while applying the rules pertaining to the general (`amm) and specific (khass), the absolute and the qualified, and so forth, as the case may be. Should there be no manifest text on the subject in the Qur’an and the verbal Sunnah, the mujtahid may resort to the actual (fi’li) and tacitly approved (taqriri) Sunnah. Failing this, he must find out if there is a ruling of ijma` or qiyas available on the problem in the works of the renowned jurists. In the absence of any guidance in these works, he may attempt an original ijtihad along the lines of qiyas. This would entail a recourse to the Qur’an, the Hadith, or ijma` for a precedent that has a `illah identical to that of the far’ (i.e.. the case for which a solution is wanting). When this is identified, he is to apply the principles of qiyas in order to deduce the necessary ruling. In the absence of a textual basis on which an analogy could be founded, the mujtahid may resort to any of the recognised methods of ijtihad such as istihsan, maslahah mursalah, istishab, etc, and derive a solution while applying the rules that ensure the proper implementation of these doctrines.
The foregoing procedure has essentially been formulated by al-Shafi’i, who is noted to have observed the following. When an incident occurs, the mujtahid must first check the nusus of the Qur’an, but if he finds none, he must refer to Mutawatir Hadiths and then to solitary Hadiths. If the necessary guidance is still not forthcoming, he should postpone recourse to qiyas until he has looked into the manifest (zahir) text of the Qur’an. If he finds a manifest text which is general, he will need to find out if it can be specified by means of Hadith or qiyas. But if he finds nothing that would specify the manifest text, he may apply the latter as it stands. Should he fail to find a manifest text in the Qur’an or the Sunnah, he must look into the madhahib. If he finds a consensus among them, he applies it, otherwise he resorts to qiyas, but in doing so, he must pay more attention to the general principles of the Shari’ah than to its subsidiary detail. If he does not find this possible, and all else fails, then he may apply the principle of original absence of liability (al-bara’ah al-asliyyah). All this must be in full cognizance of the rules that apply to the conflict of evidences (al-ta`arud bayn al-adillah), which means that the mujtahid should know the methods deployed in reconciling such conflicts, or even eliminating one in favour of the other, should this prove to be necessary. The ruling so arrived at may be that the matter is obligatory (wajib), forbidden (haram), reprehensible (makruh), or recommended (mandub).
From the viewpoint of the procedure that it employs, ijtihad may occur in any of the following four varieties. Firstly, there is the form of a juridical analogy (qiyas) which is founded on an effective cause (`illah). The second variety of ijtihad consists of a probability (zann) without the presence of any `illah, such as practicing a ijtihad in regard to ascertaining the time of salah or the direction of the qiblah. The third type of ijtihad
consists of the interpretation of the source materials and the deduction of ahkam from existing evidence. This type of ijtihad is called ijtihad bayani, or ‘explanatory ijtihad’, which takes priority over ‘analogical ijtihad’, or ijtihad qiyas. The fourth variety of ijtihad, referred to as ijtihad istislahi, is based on maslahah and seeks to deduce the ahkam
in pursuance of the spirit and purpose of the Shari’ah, which may take the form of istislah, juristic preference (istihsan), the obstruction of means (sadd al-dhara’i’), or some other technique. Imam Shafi`i accepts only the first type, namely analogical ijtihad, but for the majority of ulema, ijtihad is not confined to qiyas and may take the form of any of the foregoing varieties.
The Ijtihad of the Prophet and his Companions
The question to be discussed here is whether all the rulings of the Prophet should be regarded as having been divinely inspired or whether they also partake in ijtihad. The ulema are generally in agreement that the Prophet practiced ijtihad in temporal and military affairs, but they have differed as to whether his rulings in shar’i matters could properly fall under the rubric of ijtihad. According to the Ash’aris, the Mu’tazilah, Ibn Hazm al-Zahiri and some Hanbali and Shafi’i ulema, the Qur’an provides clear evidence that every speech of the Prophet partakes in wahy. A specific reference is thus made to sura al-Najm (53:3) which provides `He says nothing of his own desire, it is nothing other than revelation [wahy] sent down to him.’ This ayah is quite categorical on the point that the Prophet is guided by divine revelation and that all his utterances are to be seen in this light. This would mean that all the rulings of the Prophet consist of divine revelation and that none would occur in the form of ijtihad.
The majority of ulema have, however, held that the Prophet in fact practiced ijtihad just as he was allowed to do so. This, it is said, is borne out by the numerous ayat of the Qur’an where the Prophet is invited, along with the rest of the believers, to meditate on the Qur’an and to study and think about the created world. As for the ayah in sura al-Najm quoted above, the majority of ulema have held that the reference here is to the Qur’an itself, and not to every word that the Prophet uttered. That this is so is borne out by the use of the pronoun `it’ (huwa) in this ayah, which refers to the Qur’an itself. The majority view adds that the occasion for the revelation (sha’n al-nuzul) of this ayah supports this interpretation. (The ayah was revealed in refutation of the unbelievers who claimed that the Qur’an was the work of the Prophet himself and not the speech of God.) Besides, the Prophet often resorted to reasoning by way of analogy and ijtihad, and did not postpone all matters until the reception of divine revelation.
The minority view on this subject overrules the claim of the practice of ijtihad by the Prophet and maintains that if it were true that the Prophet practiced ijtihad, then disagreeing with his views would be permissible. For it is a characteristic of ijtihad to allow disagreement and opposition. Opposing the Prophet is, however, clearly forbidden, and obedience to him is a Qur’anic duty upon every Muslim (al- Nisa’, 4:14 and 58).
There is yet a third opinion on this point which, owing to the conflicting nature of the evidence, advises total suspension. This view is attributed to al-Shafi’i and upheld by al-Baqillani and al-Ghazali. Al-Shawkani, however, rejects it by saying that the Qur’an gives us clear indications not only to the effect that ijtihad was permissible for the Prophet but also that he was capable of making errors. Nonetheless, the ulema who have maintained this view add that such an error is not sustained, meaning that any error the Prophet might have made was rectified by the Prophet himself or through subsequent revelation. Thus we find passages in the Qur’an which reproach the Prophet for his errors. To give an example, a text in sura al-Anfal (8:67) provide,: `It is not proper for the Prophet to take prisoners [of war] until he has subdued everyone in the earth: This ayah was revealed concerning the captives of the battle of Badr. It is reported that seventy persons from the enemy side were taken prisoner in the battle. The Prophet first consulted Abu Bakr, who suggested that they should be released against a ransom, whereas `Umar b. al-Khattab held the view that they should be killed. The Prophet approved of Abu Bakr’s view but then the ayah was revealed which disapproved of taking ransom from the captives. Elsewhere, in sura al-Tawbah (9:43), in an address to the Prophet, the text provides: `God granted you pardon, but why did you permit them to do so before it became clear to you who was telling the truth?’ This ayah was revealed concerning the exemption that the Prophet granted, prior to investigating the matter, to those who did not participate in the battle of Tabuk. These and similar passages in the Qur’an indicate that the Prophet had on occasions acted on his own ijtihad. For had he acted in pursuance of a divine command, there would have been no occasion for a reprimand, or the granting of divine pardon for his mistakes.
The majority view that the Prophet resorted to ijtihad finds further support in the Sunnah. Thus, according to one Hadith, the Prophet is reported to have said, `When I do not receive a revelation (wahy) I adjudicate among you on the basis of my opinion (ra’y).’
The next point to be raised in this connection is whether ijtihad was lawful for the Companions during the lifetime of the Prophet. Once again the majority of ulema have held that it was, regardless as to whether it took place in the presence of the Prophet or in his absence. The ulema have, however, differed over the details. Ibn Hazm held that such an ijtihad is valid in matters other than the halal and haram, whereas al-Amidi and Ibn al-Hajib have observed that it is only speculative and does not establish a definitive ruling. There are still others who have held that ijtihad was lawful for the Companions only if it took place in the presence of the Prophet, with his permission, or if the Prophet had approved of it in some way. Those who invalidate ijtihad for the Companions during the lifetime of the Prophet maintain that the Companions had access to the Prophet in order to obtain the necessary authority, which would be decisive and final. If one is able to obtain a decisive ruling on a juridical matter, ijtihad which is merely a speculative exercise is unlawful. This view is, however, considered to be weak as it takes for granted ready access to the Prophet; it also discounts the possibility that certain decisions had to be made by the Companions without delay. The correct view is therefore that of the majority, which is supported by the fact that the Companions did, on numerous occasions, practice ijtihad both in the presence of the Prophet and in his absence. The Hadith of Mu’adh b. Jabal is quoted as clear authority to the effect that the Prophet authorised Mu’adh to resort to ijtihad in his absence (i.e. in Yemen). Numerous other names are quoted, including those of Abu Bakr, Sa’d b. Mu’adh, Amr b. al-‘As and Abu Musa al-Ash’ari, who have delivered ijtihad in the absence of the Prophet. It is also reported in a Hadith that when the Prophet authorised `Amr b. al-`As to adjudicate in some disputes, he asked the Prophet, ‘Shall I render ijtihad while you are present?’ To this the Prophet replied, ‘Yes. If you are right in your judgement, you earn two rewards, but if you err, only one.’ It is similarly reported that Sa’d b. Mu’adh rendered a judgment concerning the Jews of Banu Qurayzah in the presence of the Prophet, and that he approved of it.
Truth and Fallacy of Ijtihad
The jurists have differed as to whether every mujtahid can be assumed to be right in his conclusions, or whether only one of several solutions to a particular problem may be regarded as true to the exclusion of all others. At the root of this question lies the uncertainty over the unity or plurality of truth in ijtihad. Has Almighty God predetermined a specific solution to every issue, which alone may be regarded as right? If the answer to this is in the affirmative then it will follow that there is only one correct solution to any juridical problem and that all others are erroneous. This would in turn beg the question of whether it is at all possible for the mujtahid to commit a sin by rendering an erroneous ijtihad. In the face of the Hadith which promises a spiritual reward to every mujtahid regardless of the accuracy of his conclusions, plus the fact that he is performing a sacred duty-is it theoretically possible for a mujtahid to commit a sin?
The ulema are in agreement that in regard to the essentials of dogma, such as the oneness of God (tawhid), His attributes, the truth of the Prophethood of Muhammad, the hereafter, and so on, there is only one truth and anyone, whether a mujtahid or otherwise, who takes a different view automatically renounces islam.
With regard to juridical or shar’i matters, the majority of ulema, including the Ash’aris and the Mu`tazilah, recognise two types:
1) Juridical matters which are determined by a clear and definitive text, such as the obligatoriness of salah and other pillars of the faith, the prohibition of theft, adultery, and so on. In regard to these matters, once again, there is only one truth with which the mujtahid may not differ. Anyone who takes an exception to it commits a sin, and according to some, even heresy and disbelief.
2) Shar’i matters on which no decisive ruling is found in the sources. There is much disagreement on this. The Ash’aris and the Mu’tazilah have held the view that ijtihad in regard to such matters is always meritorious and partakes in truth regardless of the nature of its results. But according to the four leading imams and many other ulema, only one of the several opposing views on a particular issue may be said to be correct. For it is impossible to say that one and the same thing at the same time regarding the same person could be both lawful and unlawful. This view has been quoted in support of the Quranic text where in reference to the two judgements of David and Solomon on one and the same issue, God validated only one. The text runs:
And when David and Solomon both passed judgement on the field where some people’s sheep had strayed to pasture there at night, We acted as Witnesses for their decision. We made Solomon understand it. To each We gave discretion and knowledge [ …] (al-Anbiya’, 21:78-79).
Had there been more than one correct solution to a juridical problem, then this ayah would have upheld the judgements both of David and Solomon. It is thus suggested that this ayah confirms the unitary character of truth in ijtihad. Furthermore, when one looks at the practice of the Companions, it will be obvious that not only did they admit the possibility of error in their own judgements but that then also criticised one another. If all of them were to be right in their ijtihad, there would be no point in their criticising one another or in admitting the possibility of error in their own ijtihad. To give an example, the Caliph Abu Bakr is reported to have said in regard to the issue of kalalah (i.e. when the deceased leaves no parent or child to inherit him): ‘I decided the question of kalalah according to my opinion. If it is correct, it is an inspiration from God; if it is wrong, then the error is mine and Satan’s: It is further reported that when `Umar b. al-Khattab adjudicated a case, one of the parties to the dispute who was present at the time said, ‘By God this is the truth.’ To this the caliph replied that he did not know whether he had attained the truth, but that he had spared no effort in striving to do so.
The ahadith and the practice of the Companions on ijtihad clearly entertain the possibility of error in ijtihad. A mujtahid may be right or may have erred, but in either case, his effort is commendable and worthy of reward.
The opposite view, which is a minority opinion, maintains that there is no predetermined truth in regard to ijtihadi matters. Almighty God has not determined one particular solution as truth to the exclusion of all others. The result of ijtihad may thus vary and several verdicts may be regarded as truth on their merit. This view quotes in support the same Qur’anic text, quoted above, which in its latter part refers to David and Solomon with the words: To each We gave discretion and knowledge.’ Had either of them committed an error, God would not have praised them thus. It is hence implied that both were right, and that every mujtahid attains the truth in his own way. It is further argued that had there been only one truth in regard to a particular issue, the mujtahid would not have been bound by the result of his own ijtihad. His duty to follow his own ijtihad to the exclusion of anyone else’s suggests that every mujtahid attains the truth. This view seeks further support in the rule of Shari’ah which authorises the Imam or the mujtahid to appoint as judge another mujtahid who may differ with him in ijtihad. This was, for example, the case when Abu Bakr appointed Zayd b. Thabit as a judge while it was common knowledge among the Companions that Zayd had differed with Abu Bakr on many issues. Had a difference of opinion in ijtihadi matters amounted to divergence from truth and indulgence in error, Abu Bakr would not have appointed Zayd to judicial office. And lastly, the proponents of this view have referred to the Hadith which reads: `My Companions are like stars; any one of them that you follow will lead you to the right path.’
Had there been any substance to the idea that truth is unitary, the Prophet would have specified adherence only to those of his Companions who attained to it. These differences may be resolved, as the majority of ulema suggest, in the light of the celebrated Hadith, which we quote again: ‘When a judge renders ijtihad and gives a right judgement, he will have two rewards, but if he errs, he will still have earned one reward.’ This Hadith clearly shows that the mujtahid is either right (musib), or in error (mukhti’), that some mujtahidun attain the truth while others do not; but that sin attaches to neither as they are both rewarded for their efforts. Hence anyone who maintains that there are as many truths as there are mujtahids is clearly out of line with the purport of this Hadith. If every mujtahid were supposed to be right, then the division of mujtahids into two types in this Hadith would have no meaning.
Classification and Restrictions
In their drive to impose restrictions on ijtihad, the ulema of usul of the fifth/eleventh century and the subsequent period classified ijtihad into several categories. Initially it was divided into two types: firstly, ijtihad which aims at deducing the law from the evidence in the sources, often referred to as ‘independent ijtihad’; and secondly, ijtihad which is concerned mainly with the elaboration and implementation of the law within the confines of a particular school, known as `limited ijtihad’. During the first two and a half centuries of Islam, there was never any attempt at denying a scholar the right to find his own solutions to legal problems. It was only at a later period that the question of who was qualified to practice ijtihad was raised. From about the middle of the third/ninth century, the idea began to gain currency that only the great scholars of the past had enjoyed the right to practice ijtihad. This was the beginning of what came to be known as the closure of the gate of ijtihad. Before the fifth/ eleventh century, no trace may be found of any attempt to classify ijtihad into categories of excellence. Al-Ghazali (d. 505/1111) was the first to divide ijtihad into two categories, as noted above. This division was later developed into five, and eventually into seven classes. While representing the prevailing opinion of his time, al-Ghazali admitted that independent mujtahids were already extinct. About two centuries later, the number of the ranks of mujtahidun reached five, and by the tenth/ sixteenth century seven ranks were distinguished, while from the sixth/ twelfth century onwards jurists are said to belong to only the last two categories on the scale of seven. This is as follows:
1) Full Mujtahid (mujtahid fi’l-shar’). This rank is assigned to choose who fulfilled all the requirements of ijtihad. They deduced the ahkam from the evidence in the sources, and in so doing were not restricted by the rules of a particular madhhab. The learned among the Companions, and the leading jurists of the succeeding generation, like Sa`id b. al-Musayyib and Ibrahim al-Nakha’i, the leading Imams of the four schools, the leading Imams of the Shi’ah Muhammad al-Baqir and his son ja’far al- Sadiq, al-Awza’i and many others were identified as independent mujtahids. It is by the authority of these that consensus of opinion, analogy, juristic preference, maslahah mursalah, etc., were formulated and established as the secondary proofs of Shari’ah. Although Abu Yusuf and al-Shaybani are usually subsumed under the second rank, Abu Zahrah, who has written extensively on the lives and works of the leading ulema, regards them as full mujtahids. The criteria of distinguishing the first from the second class of mujtahidun is originality and independent thought. If this is deemed to be the case the mere fact that a mujtahid has concurred with the opinion of another is immaterial in the determination of his rank. Many of the leading mujtahids are known to have concurred with the views of other ulema. For example, it is known that Abu Hanifah on many occasions agreed with and followed the views of his teacher Ibrahim al-Nakha’i, but this was only because he was convinced of the accuracy of his reasoning, and not out of imitation for its own sake.
The question arises whether this type of ijtihad is still open or came to an end with the so-called closure of the gate of ijtihad. With the exception of the Hanbalis who maintain that ijtihad in all of its forms remains open, the ulema of the other three schools have on the whole acceded to the view that independent ijtihad has discontinued. Another related question that has been extensively debated by the ulema is whether the idea of the total extinction of mujtahids at any given period or generation is at all acceptable from the viewpoint of doctrine. Could the Shari’ah entertain such a possibility and maintain its own continuation , both at the same time? The majority of the ulema of usul, including al-Amidi, Ibn al-Hajib, Ibn al-Humam, Ibn al-Subki, and Zakariya al-Ansari have answered this question in the affirmative, whereas the Hanbalis have held otherwise. The Hanbalis have argued that ijtihad is an obligatory duty of the Muslim community whose total abandonment would amount to an agreement on deviation/error, which is precluded by the Hadith which states that ‘My community shall never agree on an error.’
To say that ijtihad is a wajib, whether `ayni or kafa’i, takes it for granted that it may never be discontinued. This is also the implication of another Hadith which provides that ‘a section of my ummah will continue to be on the right path; they will be the dominant force and they will not be vanquished till the day of resurrection.
Since the successful pursuit of truth is not possible without knowledge, the survival of mujtahidun in any given age (`asr) is therefore sustained by this Hadith. Furthermore, according to some ulema, the duty to perform ijtihad is not fulfilled by means of limited ijtihad or by practicing the delivery of fatwa alone. According to the Hanbalis, the claim that ijtihad has been discontinued is to be utterly rejected. Ijtihad is not only open, but no period may be without a mujtahid. The Shi’ah Imamiyyah have held the same view. The Shi’ah, however, follow their recognised Imams, in whose absence they may exercise ijtihad on condition that they adhere, both in principle and in detail, to the rulings of the Imams. In the absence of any ruling by the Imams, the Shi’ah recognise `aql as a proof following the Qur’an, the Sunnah, and the rulings of their Imams. And finally, it may be said that the nation of the discontinuation of ijtihad would appear to be in conflict with some of the important doctrines of Shari’ah. The theory of ijma’, for example, and the elaborate procedures relating to qiyas all proceed on the assumption that they are the living proofs of the law and contemplate the existence of mujtahidun in every age.
2) Mujtahids within the School. These are jurists who expounded the law within the confines of a particular school while adhering to the principles laid down by their Imams. Among the prominent names that feature in this category are Zafar b. al-Hudhayl, Hasan b. Ziyad in the Hanafi school; Isma’il b. Yahya al-Muzani, ‘Uthman Taqi al-Din b. al-Salah and Jalal al-Din al-Suyuti in the Shafi’i; Ibn `Abd al-Barr and Abu Bakr b. al-`Arabi in the Maliki, and Ibn Taymiyyah and his disciple Ibn Qayyim al- Jawziyyah in the Hanbali schools. It is observed that although these ulema all followed the doctrines of their respective schools, nevertheless they did not consider themselves bound to follow their masters in the implementation of the general principles or in arguments concerning particular issues. This is borne out by the fact that they have held opinions that were opposed to those of their leading Imams.
3) Mujtahids on Particular Issues. These are jurists who were competent to elucidate and apply the law in particular cases which were not settled by the jurists of the first and second ranks. They did not oppose the leading mujtahidun and generally followed the established principles of their schools. Their main pre-occupation was to elaborate the law on fresh points which were not clearly determined by the higher authorities. Scholars like Abu’l-Hasan al-Karkhi and Abu Ja’far al-Tahawi in the Hanafi school, Abu al-Fadl al-Marwazi and Abu Ishaq al-Shirazi in the Shafi’i, Abu Bakr al-Abhari in the Maliki and ‘Amr b. Husayn al-Khiraqi in the Hanbali schools have been placed in this category.
All the preceding three classes were designated as mujtahids, but the remaining four classes of ulema, as described below have been classified as imitators.
4) The so-called ashab al-takhrij, who did not deduce the ahkam but were well conversant in the doctrine and were able to indicate which view was preferable in cases of ambiguity, or regarding suitability to prevailing conditions.
5) The ashab al-tarjih are those who were competent to make comparisons and distinguish the correct (sahih) and the preferred (rajih, arjah) and the agreed upon (mufta biha) views from the weak ones. Authors like ‘Ala’ al-Din al-Kasani and Burhan al-Din al-Marghinani of the Hanafi school, Muhyi al-Din al-Nawawi of the Shafi’i, Ibn Rushd al-Qurtubi of the Maliki and Muwaffaq al-Din ibn Qudamah of the Hanbali schools and their equals have been placed in this category.
6) The so-called ashab al-tashih: those who could distinguish between the manifest (zahir al-riwayah) and the rare and obscure (al-nawadir) views of the schools of their following. Textbook writers whose works are in use in the various madhahib are said to fall into this category.
It will be noted here that the previous three categories are somewhat overlapping and could be unified under one category to comprise all those who drew comparisons and evaluated the strengths and weaknesses of the existing views.
7) And finally the muqallidun, or the ‘imitators’, who lack the abilities of the above and comprise all who do not fall in any of the preceding classes. It is said concerning them that, They do not distinguish between the lean and the fat, right and left, but get together whatever they find, like the one who gathers wood in the dark of the night.
While referring to this classification, Aghnides is probably right in observing that `It implies a gratuitous assumption that the latter mujtahids could not show greater independence of thought.The restrictions that were imposed on ijtihad and the ensuing phenomenon of the ‘closing of its gate’ are, in the most part, an historical development which could find little if any support in the legal theory of ijtihad. Similarly, the notion that the ulema, at around the beginning of the fourth century, reached such an immutable consensus of opinion that further ijtihad was unnecessary is ill-conceived and untenable. The mendacity of such a claim is attested by the rejection on the part of numerous ulema, including those of the Hanbali and the Shi’ah Imamiyyah, of the validity of such a consensus.
Authors throughout the Muslim world have begun to criticise taqlid and advocate the continued validity of ijtihad as a divinely prescribed legal principle. A number of most prominent ulema, including Shah Wali Allah, Muhammad b. Isma’il al-San’ani, Muhammad bin `Ali al-Shawkani and Ibn ‘Ali al-Sanusi led the call for the revival of ijtihad. The nineteenth century Salafiyyah movement in Egypt advocated the renovation of Islam in the light of modern conditions and the total rejection of taqlid. AI-Shawkani (d.1255/1839) vehemently denies the claim that independent mujtahidun have become extinct, a claim which smacks of ‘crass ignorance and is utterly to be rejected’. The same author goes on to name a number of prominent ulema who have achieved the highest rank of erudition in Shari’ah. Among the Shafi`is, for example, at least six such ulema can be named who have fulfilled, in an uninterrupted chain of scholarship, all the requirements of ijtihad. These are ‘Izz al-Din ibn ‘Abd al-Salem and his disciple, Ibn Daqiq al-`Id, then the latter’s disciple Muhammad ibn Sayyid al-Nas, then his disciple Zayn al-Din al-‘Iraqi, his disciple Ibn Hajar al-`Asqalani, and his disciple, Jalal al-Din al- Suyuti. That they were all full mujtahids is attested by the calibre of their works and the significant contributions they have made to the Shari’ah. The first two of these are particularly prominent. In his well-recognised juristic work. At-Bahr al-Muhit, Muhammad b. `Abd Allah al-Zarkashi has acknowledged that they had both attained the rank of mujtahid. ‘It is utter nonsense’ writes al-Shawkani, `to say that God 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 Qur’an and the Sunnah through the words of other men while we still have the guidance in our hands. Praise be to God, this is the greatest lie (buhtanun ‘azim) and there is no reason in the world to vindicate it.
Iqbal Lahori considers the alleged closure of the gate of ijtihad to be ‘a pure fiction’ suggested partly by the crystallization of legal thought in Islam, and partly by that intellectual laziness which, especially in periods of spiritual decay, turns great thinkers into idols. Iqbal continues: if some of the later doctors have upheld this fiction, ‘modern Islam is not bound by this voluntary surrender of intellectual independence.
Abu Zahrah is equally critical of the alleged closure of the door of ijtihad. How could anyone be right in closing the door that God Almighty has opened for the exertion of the human intellect? Anyone who has advanced this claim could surely have no convincing argument to prove it. Abu Zahrah continues: the fact that ijtihad has not been actively pursued has had the chilling effect of moving the people further away from the sources of the Shari’ah. The tide of taqlid has carried some so far as to say that there is no further need to interpret the Qur’an and Hadith now that the door of ijtihad is closed. In Abu Zahrah’s phrase, ‘nothing is further from the truth – and we seek refuge in God from such excesses’.
Conclusion
The conditions under which ijtihad was formerly practiced by the ulema of the early periods are no longer what they were. For one thing, the prevalence of statutory legislation as the main instrument of government in modern times has led to the imposition of further restrictions on ijtihad. The fact that the law of the land in the majority of Islamic countries has been confined to the statute book, and the parallel development whereby the role of interpreting the statute has also been assigned to the courts of law, has had, all in all, a discouraging effect on ijtihad. The mujtahid is given no recognised status, nor is he required to play a definite role in legislation or the administration of justice in the courts. This is confirmed by the fact that many modern constitutions in Islamic countries are totally silent on ijtihad. It was this total neglect of ijtihad which prompted Iqbal to propose, in his well-known work ‘The Reconstruction of Religious Thought in Islam, that the only way to utilise both ijma` and ijtihad (which he refers to as the ‘principle of movement’) into the fabric of modern government is to institutionalise ijtihad by making it an integral feature of the legislative function of the state (P. 174).
Essentially the same view has been put forward by al-Tamawi, who points out that ijtihad by individuals in the manner that was practiced by the fuqaha’ of the past is no longer suitable to modern conditions. The revival of ijtihad in our times would necessitate efforts which the government must undertake. Since education is the business and responsibility of modern governments, it should be possible to provide the necessary education and training that a mujtahid would need to possess, and to make attainment to this rank dependent on special qualifications. Al-Tamawi further recommends the setting up of a council of qualified mujtahids to advise in the preparation and approval of statutory law so as to ensure its harmony with Shari’ah principles.
This is, of course, not to say that the traditional forms of learning in the Shari`ah disciplines, or of the practice of ijtihad, are obsolete. On the contrary, the contribution that the ulema and scholars can make, in their individual capacities, to the incessant search for better solutions and more refined alternatives should never be underestimated. It is further hoped that, for its part, the government will also play a positive role in preserving the best heritage of the traditional modes of learning, and encourage the ulema to enhance their contribution to law and development. The universities and legal professions in many Islamic countries are currently committed to the training of lawyers and barristers in the modern law stream. To initiate a comprehensive and well-defined programme of education for prospective mujtahids, which would combine training in both the traditional and modern legal disciplines, would not seem to be beyond the combined capabilities of universities and legal professions possessed of long-standing experience in Islamic legal education.
Furthermore, in a Shari’ah-oriented government it would seem desirable that the range of selection to senior advisory, educational and judicial posts would include the qualified mujtahidun. This would hopefully provide the basis for healthy competition and incentives for high performance among the candidates, and help to create a definite role for them in the various spheres of government.
by M. H. Kamali.
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