Ijtihad or Personal Reasoning
Ijtihad or Personal Reasoning
Introduction
Ijtihad
is the most important source of Islamic law also considered as continuous
process of development and the main instrument of interpreting the divine
message. In fact all the non-revealed proofs of Shari'ah are an embodiment of
the single phenomenon of ijtihad.
Since
ijtihad derives its validity from divine revelation, therefore its propriety is
measured by its harmony with the Qur'an and the Sunnah.
Meaning
a) Literal
Ijtihad
is a derivation of word jahada, and literally means striving, or self-exertion
in any activity.
b) Juridical
Juridically,
ijtihad mainly consists not of physical, but of intellectual exertion on the
part of the jurist.
Definition
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”.
Or
it may also be defined 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”. Or,
“Acts
of jurist for deducing a new ruling to meet a fresh situation in the light of
holy Quran and Sunnah”.
Explanation
Ijtihad
essentially, consists of an inference which amounts to a probability, in other
words, consists of the formulation of an opinion in regard to a hukm shari
through the endeavour of the jurist by total expenditure of his effort. And lastly
the definition of ijtihad precludes self-exertion by a layman, that only a
Mujtahid (jurist) may practice ijtihad.
The subject (scope) of ijtihad
The
subject of ijtihad is a question of Shari'ah; more specifically, the practical
rules of Shari'ah, i.e. the conduct of subject (mukallaf).
It
precludes from the scope of ijtihad;
·
Purely
intellectual (`aqli) and
·
Customary
(urfi) issues, or
·
Matters that
are perceptible to the senses (hissi) and
·
Which do not
involve the inference of a hukm shar'i
·
For example the
createdness of the universe, the existence of a Creator etc.
a) Scope on basis of evidence
For
this purpose evidences found in the Qur'an and the Sunnah are divided into four
types;
Ijtihad
does not apply to the first of the below mentioned, but can validly operate in
regard to any of the remaining three;
1)
Evidence which
is decisive both in respect of authenticity and meaning.
2)
Evidence which is
authentic but speculative in meaning.
For
example; sura al-Baqarah (2:228);
“The
divorced women must observe three courses (quru') upon themselves”.
There
is no doubt in authenticity but the word quru', is open to speculation, which
have meaning both “menstruations” and “the clean periods between menstruations”.
3)
That which is
of doubtful authenticity, but definite in meaning.
For
example; the tradition that “a goat is to be levied on every five camels”. 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.
4)
Evidence which
is speculative in respect both of authenticity and meaning
For
instance the Hadith which provides; “There is no salah without the recitation
of sura al Fatihah”. Being a solitary Hadith, its authenticity is not proven
and similarly open to different interpretations, i.e. that salah without the
Fatihah is invalid, or merely incomplete.
The Value (Hukm) of Ijtihad
The
ulema are in agreement that ijtihad is the collective obligation (fard kafa'i)
of all qualified jurists in matters no urgency, but a personal obligation (fard
or wajib) in case of urgency. This is so because imitation (taqlid) is
forbidden to a mujtahid who is capable of deducing the hukm. In reference to
this the ayah is quoted (Muhammad, 47:24);
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“Do they not then think deeply in the Qurân, or are their hearts
locked up (from understanding it)?”
· Value of ruling
The ulema are
agreed that the mujtahid, Once he has deduced the ruling on a particular issue,
is bound by the result of his own ijtihad and he may not imitate other
mujtahids in such matter. The mujtahid is thus the authority (hujjah) for
himself. And he is under the duty to provide guidance to those who do not know;
as provided in (al-Nahl 16:43)
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“Then ask those
who have knowledge (ahl al-dhikr) if you yourselves do not know”.
· Change of ruling
A
mujtahid may set aside or change his initial ruling, for this reference 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”.
The Proof of Ijtihad
Ijtihad is validated by the Quran,
the Sunnah and the dictates of reason (aql).
a) The Quran
Sura
al-Tawbah (9:122);
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“Let
a contingent from each division of them devote themselves to the study of
religion 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.
Sura
al-Ankabut (29:69);
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“And
those who strive 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, which are open.
Sura
al-Nisa' (4:59);
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“If
you dispute over something, then refer it to God and to the Messenger”.
b) The Sunnah
The Sunnah is more specific in validating ijtihad. The Hadith of
Muadh b. Jabal, as al-Ghazali points out, provides a clear authority for
ijtihad.
According
to another Hadith;
“When
a judge exercises ijtihad and gives a right judgment, he will have two rewards,
but if he errs in his judgment, he will still have earned one reward”.
There
is also the Hadith which reads;
“When
God favours one of His servants, He enables him to acquire knowledge (tafaqquh)
in religion”.
And
another hadith which declares “the Ulema to be the successors of the Prophets”.
The
Companions practiced ijtihad, and their consensus is claimed in support of it.
c) The dictates of reason (aql)
The
rational argument in support of ijtihad is to be sought in the fact that while
the nusus of Shariah 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.
Procedure of Ijtihad
Since ijtihad
occurs in a variety of forms, such as qiyas, istihsan so no uniform procedure
for ijtihad as such. But the ulema have nevertheless suggested that;
·
The jurist must
first of all look at the nusus of the Qur'an and the Hadith, failing which,
·
Then he may
resort to the manifest text (zahir) of the Qur'an and Hadith, failing which,
·
The mujtahid
may resort to the actual (fi'li) and tacitly approved (taqriri) Sunnah, failing
·
He must find
out if there is a ruling of ijma or qiyas available and after then
·
He may attempt
an original ijtihad along the lines of ijtihad.
Conditions, Classification of Ijtihad, and Mujtahid and Restrictions
a) Conditions/essentials 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. Furthermore the essentials of Ijtihad can be summarised as, it;
1.
Must be
performed by mujtahid
2.
Entails
interrelationship of human actions with will of God
3.
Upheld rules of
shariah
4.
Effort towards
discovering rules of shariah
5.
Must pertains
to interpretation of shariah
6.
Must prefer or
reconcile apparent text
The
first essential leaves a question that, who is Mujtahid?
(i) Conditions/Qualifications of Mujtahid
The
earliest complete account of the qualifications of a mujtahid is given in Abu'
Husayn al-Basri's which was later accepted, with minor changes, by al-Shirazi,
al-Ghazali and al-Amidi, and these are;
A
Mujtahid must have knowledge;
1.
Of Arabic
2.
Of Qur'an, the
Makki and the Madinese contents, the occasions of its revelation.
3.
Of the related
commentaries (tafasir)
4.
Of the Sunnah.
5.
Of the
incidences of abrogation.
6.
Of the absolute
and the qualified (mutlaq and muqayyad), and the reliability or otherwise of
the narrators of Hadith.
7.
Of the
substance of the furu on which there is an ijma.
8.
Of qiyas.
9.
Of the
objectives (maqasid) of the Shari'ah
10. Of the general maxims of fiqh
11. Of logic (mantiq)
12. Of strength and weakness in reasoning and evidence, and finally
13. The mujtahid must be an upright (adil) person who refrains from
committing sins and whose judgement the people can trust.
b) Classifications of Ijtihad
The
ulema of usul of the fifth/eleventh century and the subsequent period
classified ijtihad into several categories. Initially it was divided by
Al-Ghazali into two types;
(i) Independent ijtihad
The
Ijtihad which aims at deducing the law from the evidence in the sources is
called Independent Ijtihad, and 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.
(ii) Limited ijtihad
The
ijtihad which is concerned mainly with the elaboration and implementation of
the law within the confines of a particular school is known as limited ijtihad.
c) Restrictions on Ijtihad
During
the first two and a half centuries of Islam, there was no denial of the right
to find solutions to legal problems. It was at a later the question of
qualification to practice ijtihad was raised. And the question of the total
extinction of mujtahids at any given period or generation is debatable, some
answered in affirmation while 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”.
(i) Closure of the gate of ijtihad
And
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”. At such time al-Ghazali admitted that independent
mujtahids were extinct.
(ii) Ranks of Mujtahids
About
two centuries later, the number of the ranks of mujtahidun reached five, and by
the tenth/sixteenth century these ranks were seven, which are as follows;
1. Full Mujtahid (mujtahid fi'l-shar')
Those
who fulfilled all the requirements of ijtihad. They deduced the ahkam from the
evidence in the sources, and were not restricted by the rules of a particular madhha.
2. Mujtahids within the School
These
are jurists who expounded the law within the confines of a particular school
e.g. Hasan b. Ziyad in the Hanafi, Jalal
al-Din al-Suyuti in the Shafi, Abu Bakr b. al-Arabi in the Maliki, and Ibn
Taymiyyah in the Hanbali schools.
3. Mujtahids on Particular Issues
These
are jurists who were competent to elucidate and apply the law in particular
cases
4. Ashab al-takhrij
Those
who did not deduce the ahkam but were well conversant in the doctrine and were
able to indicate which were preferable in ambiguity.
5. Ashab al-tarjih
Those
who were competent to make comparisons and distinguish the correct and the
preferred and the agreed upon views from the weak ones.
6. Ashab al-tashih
Those
who could distinguish between the manifest and the rare and obscure views of
the schools of their followings.
7. Muqallidun
The
“imitators”, who lack the abilities of the above and comprise all who do not
fall in any of the preceding classes.
(iii) Closure of the gate of ijtihad and conclusion
The
restrictions on ijtihad and the ensuing phenomenon of the 'closing of its gate'
is an historical development of little support. And the
notion that the Ulema of the fourth century reached on consensus of opinion
that further ijtihad was unnecessary is ill-conceived and untenable.
·
AI-Shawkani
vehemently denies the claim that independent mujtahidun have become extinct.
·
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, turns great thinkers into idols.
·
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.
With
regards to the conditions under which ijtihad was formerly practiced by the
ulema of the early periods are no longer what they were. Statutory legislation
as the main instrument of government alongside of it the role of interpretation
assigned to the courts of law, is a discouraging effect on ijtihad.
The
mujtahids should be given recognised status in legislation and interpretation
of law in Islamic countries. 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 into the fabric of modern government is to institutionalise ijtihad by
making it an integral feature of the legislative function of the state.
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