The Principle of Ijtihad in Islam [Electronic resources] نسخه متنی

The story of Moses and God's righteous servants, which is in the Qur'an,
is a wonderful story. One moral which can be drawn from it is that the
follower should surrender to the one he is following up to the point where
basic principles and the law are not contravened. If it is seen that the
leader does something against these principles, one must not remain silent.
It is true that the fact that in the story the things which the servant
of God does are not, in his view, against these basic principles, since
he sees a wider horizon and can see into the heart of the matter; they
were, rather, his very duty and responsibility. But the question here is
why Moses was not patient, and why he gave vent to his criticisms, despite
the fact that he had promised [the servant of God] and himself that he
would not make any objection? Why, then, did he protest and criticise?
The defect in Moses' actions was not his protesting and criticising, but
the fact that he was not aware of the undivulged aspect of the matter,
the inward and secret side of the events. Of course, if he had been aware
of the hidden reasons for what happened, he would not have objected, and
he would have wanted to discover the secret of the affair; but as long
as his actions were, from his own point of view, against basic principles
and the divine Law, his faith would not allow him to remain silent. There
are those who have said that if the actions of that servant of God were
to be repeated on the Day of the Resurrection, Moses would still object
to them and criticise them, unless, by that time, he were to become aware
of the hidden reasons behind them. Moses said to the servant of God:
"Shall I follow you so that you may teach me, of what you
have been taught, right judgement."
"Assuredly you will not be able to bear with me patiently."
Then he explained the reason very clearly:
"And how should you bear patiently what you have never encompassed
in your knowledge?"
Moses said:
"Yet you will find me, if Allah will, patient, and I shall
not rebel against you in anything."
Moses did not say that he would be patient whether he discovered the secret
of the matter or not. He merely said that he hoped he would have that patience.
Of course, this patience did exist within Moses as long as he understood
the reason for things.

Then the servant of God wanted to have something more definite from
him; that, even if he did not discover the reason for what had happened,
he would remain silent and not protest until the time came for him to explain.
"Then, if you follow me, do not question me on anything
until I myself introduce the mention of it to you." (117:66­70)
Here, the verse does not say if Moses accepted; it only says that after
this they both set out together and continued till the end of the story
which we all know.

At any rate, I wanted to show that the ignorant person's taqlid of
the learned should not be blind allegiance. The unlawful kind of taqlid
between one who is ignorant and one who has knowledge is that kind
in which unquestioning obedience exists, which takes some such form as:
"an ignorant person cannot quarrel with a learned person; we don't understand,
perhaps the duties imposed by the sharia necessitate its being
like this."

I have mentioned this story as evidence and corroboration for what was
in the hadith of the Imam al­Sadiq.

Taqlid permitted by the sharia

After what I have narrated concerning the kind of taqlid forbidden
by the sharia, the Imam went on to explain the kind of taqlid
permitted by the sharia the kind which is to be praised, in
these words:
Whichever of the fuqaha' can protect his self, who can
preserve his religion, who fights his desires and is obedient to the commands
of his Master, then he should be followed by the people in taqlid.
Of course, it is clear that the struggle of a spiritual alim with
his weaker desires is very different from the struggle of an ordinary person,
because the desires of each individual are associated with specific activities.
The desires of a youth are one thing, the desires of an old man another;
everyone, in whatever position, degree, stage or age he may be, has a particular
kind of desire. The standard for subservience to inferior desires for a
spiritual alim is not what we see: for example, whether he drinks
alcohol or not, whether he has stopped praying and fasting or not, whether
he gambles or not.[37] The standard for the subservience
to inferior desires for such a person is whether he desires position, to
have his hand kissed, to become famous and popular and have people walk
behind him, to use the wealth of the Muslims to lord over others, to allow
his friends and relatives, especially his sons, to benefit from the wealth
of the Muslims. Then the Imam said:
Only some of the Shii fuqaha have these great qualities
and traits of character, not all of them.
This hadith, on account of its final phrases, is one of the pieces
of evidence in the question of ijtihad and taqlid.

So it is clear that both ijtihad and taqlid can be divided
into two kinds: that which is permitted by the sharia and that
which is not.

Why is taqlid of a dead person not permitted

We have a principle in fiqh, which is one of the indisputable
points of our fiqh, that taqlid of a dead person in the first
instance is not permitted. If taqlid of a dead person is permitted,
it is only when taqlid is carried on from someone who was followed
[by the same person] while he was alive and is now dead.[38]
Moreover, the carrying on of the taqlid of a dead person must also
be with the permission of a living mujtahid. I am not concerned
here with the reasons in fiqh for this principle, so I will only
say that it is a very basic idea, but only on the condition that the aim
of the principle is clearly understood.

The first purpose of this principle is that it should be a means for
the survival of the traditional centres of learning of the Islamic sciences,
so that there should be continuity, and that the Islamic sciences should
be perserved - not only preserved, but that they should advance day by
day and be perfected, and that those matters which had not previously been
solved should be solved.

It is not the case that all our problems have been solved in the past
by our ulama', and that now we have no more problems and no more
work. We have thousands of riddles and difficulties in kalam (theology),
Qur'anic exegesis, fiqh and the other Islamic sciences, many of
which have been solved by the great ulama' of the past, but many
of which remain, and it is the duty of those who follow on to solve them
and to gradually write better and more complete texts in each subject,
to continue each subject and develop it, just as in the past, too, exegesis,
theology and law were gradually developed. The caravan must not be brought
to a halt in mid­journey. So people's taqlid of living mujtahids,
and their heeding them, is a means to the continuance and development
of the Islamic sciences.

Another reason is that every day Muslims are faced with new problems
in their lives, and they do not know what there duty is in these matters.
It is necessary to have living fuqaha', aware of the contemporary
situation, to respond to this great need. It is narrated in one hadith
concerning ijtihad and taqlid:
As for al­hawadith al­waqia, refer concerning
them to the narrators of our hadith.
These hawadith al­waqia are exactly these new problems which
arise as time passes. Study and research into the books of fiqh from
different epochs and centuries shows that gradually, according to the needs
of the people, new problems arise in fiqh, and that the fuqaha'
set out to answer them. It is for this reason that the dimensions of
fiqh have increased.

If a researcher were to make a tally, he could discover, for example,
in what century, in what place and for what reason, such­and­such
a problem arose in fiqh. If it were not necessary for a living mujtahid
to give answers to these problems, what difference would there be between
taqlid of a living person and taqlid of a dead person? It
would be better to follow in taqlid some of the dead mujtahids
like the Shaykh al­Ansari, who, on the admission of the now­living
mujtahids themselves, was the most knowledgeable and learned.

Basically, the 'secret' of ijtihad lies in applying general principles
to new problems and changed circumstances. The real mujtahid is
one who has mastered this 'secret', who has observed how things change,
and subsequently how the rulings on them have changed. For there is no
skill in only thinking about things which are in the past and have already
been thought about; or, at the most, changing an ala l­aqwa into
an ala l­ahwat.[39] or vice versa;
there is no need to make a song and dance about any of this.

Of course, ijtihad has many preconditions and prerequisites;
a mujtahid must have acquired the various [preliminary] sciences.
It is necessary that he should have applied himself to the study of Arabic
language and literature, to logic, to the study of usul (jurisprudence),
even to the history of Islam and the fiqh of the other sects, so
that he might become a true and thorough faqih. No one can ordinarily
lay claim to ijtihad just by reading a few books on Arabic grammar,
or rhetoric and logic, then three or four of the set books for the intermediate
stage, such as the "Fara'id", the "Makasib" or the "Kifaya"[40],
and then spending a few hours in the dars­i kharij.[41]
He does not then become qualified to sit with the "Wasa'il" and "Jawahir"[42],
in front of him and issue legal opinions. He must be completely knowledgeable
in exegesis and hadith, that is to say in the several thousands of
hadith which appeared in the two and a half centuries from the time
of the Prophet to the time of the Imam al­Hasan al­Askari, and
of the circumstances in which they appeared; he must also know Islamic
history and the fiqh of other Islamic sects, and the narrators of
traditions and their biographies and reliability.

Ayatullah Burujirdi was a true faqih. It is not my habit to mention
people by name, and while he was alive I never mentioned him in my lectures.
But now that he has died and there can be no ulterior motive, I can say
that this man was truly a distinguished and outstanding faqih. He
was conversant with, and proficient in, all these sciences, in exegesis,
hadith, knowledge of the narrators of hadith, in the sciences
of the evaluation of hadith (ilm al-daraya), and in the fiqh
of the other sects of Islam.

How the faqih's outlook on the world affects the legal opinions
he issues

The work of a faqih and mujtahid is the deduction and
derivation of the precepts [of the sharia]; but his knowledge
and understanding of all things, in other words, his world­view, has
a great influence on the decisions he makes. The faqih must have
all the information on matters upon which he is going to issue a fatwa.
If we imagine a faqih who is always sitting in the corner of his
house or his madrasa, and compare him with a faqih who is
conversant with the currents of life, both of them refer back to the valid
proofs of the sharia, but each one of them will derive his legal
rulings in a particular way, using a particular method.

Let me give an example. Suppose that someone who grew up in Tehran,
or in a big town like Tehran, where running water is in plentiful supply
and there are reservoirs and tanks and gutters, becomes a faqih and
wishes to issue a fatwa concerning the precepts about what is pure
and what is impure. When he refers to the hadiths on purity and
impurity, such a person will, owing to his own previous experience, make
a deduction in a way which will be extremely circumspect and will necessitate
the avoidance of many things. But the same person, once he has been to
the House of God [the Kaaba] and seen the conditions of purity and impurity
and the lack of water in that place, will find himself changing his outlook
regarding the subject of purity and impurity. After such a journey, if
he consults the hadiths on this matter, he will see them in a different
light.

If someone compares the fatwas of the fuqaha' with each
other, and then pays attention to the individual circumstances and each
of these scholars' ways of thinking about living problems, he will see
how the mental environment of a faqih and the information he has
concerning the outside world influence his legal rulings in such a way
that the legal rulings of an Arab faqih have an Arabic flavour,
those of an Iranian have an Iranian flavour, and those of a country­dweller
have a rustic flavour as opposed to the urban feel of those of a city­dweller.

This religion is the final religion; it is not exclusive to a particular
time or place; it is relevant to all times and places. It is a religion
which came to establish order and progress in the life of man, so how could
a faqih who is uninformed of the natural arrangement and movement
of things and who does not believe in a progression towards perfection
in life, deduce the high and truly progressive laws of this upright (hanif)
religion in a way which is in perfect accordance with the truth? For
this religion came to give order to this natural arrangement, movement
and development, and it guarantees its guidance.

The understanding of necessities

At the present time, we have some cases in our fiqh where our
fuqaha' have given a definite ruling on the requirement of something
only because they have seen the necessity and importance of the matter.
In other words, since there is no transmitted evidence from the verses
of the Qur'an or from hadith which is explicit and sufficient, and
since there is also no valid consensus in the matter, they have used the
fourth basic principle of derivation, i.e., the principle of independent
reasoning (aql). In this kind of instance, the fuqaha' become
certain that the command of God in such and­such a case is such­and­such,
because of the importance of the matter and their knowledge of the spirit
of Islam which leaves no important matter in abeyance. For example, in
the case of the legal ruling given by the fuqaha' concerning the
guardianship (wilaya) of the ruler and the subsidiary problems connected
with it, if the importance of this matter had not been realised, no legal
rulings would have been issued. The fuqaha' have only issued them
to the extent which they understand to be necessary. Other instances similar
to this can be found where the reason that a legal ruling has not been
given is the fact that the importance and necessity of the matter has not
been fully realised.

An important recommendation

Here I have a recommendation which could be most useful for the advancement
and development of our fiqh. It was previously put forward by the
late Shaykh Abd al­Karim al­Yazdi[43], and
I am here only reiterating his proposal.

He asked what it was that required people to follow only one person
in taqlid in all matters. Would it not be better if specialised
divisions were established in fiqh? That is to say, there would
be groups who, after having completed the general study of fiqh and
become experts in it, would specialise in one particular section, and then
people would follow them in that particular section. For example, some
would take as their specialisation ibadat (the rites of Islam),
and others muamilat (transactions), some siyasat (politics),
and other ahkam (criminal law); this is exactly what has been done
in medicine where specialised branches have been created, and doctors divided
into groups for each speciality, some being heart specialists, some eye
specialists, some ear, nose and throat specialists, and others specialists
in other branches. If this were done, each person could study his own branch
more thoroughly. I believe that there is a discussion of this matter in
the book "al­Kalam Yajurru l­Kalam" by the Sayyid Ahmad
al-Zanjani.[44]

This recommendation is a very good one, and I will add only that the
need to divide fiqh up and to create specialised branches arose
a hundred years ago, and in present circumstances the fuqaha of
today will impede the forward development of fiqh and stunt its
growth unless they heed this recommendation.

The division of the sciences into specialised branches

The division of the sciences is the result of their development, but
also its cause. For a science gradually progresses until it reaches the
point where it is no longer possible for a single person to investigate
all the problems it raises. It must then necessarily be divided up into
branches of specialisation. Thus the division of a science and the creation
of branches within it is the result and the effect of the development of
that science, while, at the same time, more progress is made when these
branches are created, and thought can be concentrated on the special problems
in each branch.

In all the world's sciences - medicine, mathematics, law, literature
and philosophy - branches of specialisation have been created, and for
that very reason progress has been accelerated in each of these branches.

The progress made in fiqh during the last thousand years

There was a time when fiqh was a very limited science. When we
refer back to the texts before the time of the Shaykh al­Tusi, we see
how restricted it was. By writing his "al­Mabsut", al­Tusi
took fiqh into new realms and enlarged its scope, and in the course
of time, as a result of the efforts of the ulama' and fuqaha,
and because of the creation of new problems and the initiation of new
investigations to answer them, fiqh progressed even further, to
the point where, about a hundred years ago, when the author of the "Jawahir"
wrote his complete compendium of fiqh, he was only just able
to finish it. It is said that he started his task when he was about twenty
years old, and that, thanks to his extraordinary genius, continual work
and a long life, he was able to write the last pages right at the very
end of his life. The "Jawahir" was printed in six very bulky [lithographed]
volumes, while the whole of al­Tusi's "al­Mabsut", which
was in his time the example of a comprehensive work on fiqh, is
probably less than half of one of these six volumes. After the author of
the "Jawahir" died, the foundations of a new fiqh were laid
by the Shaykh Murtada al­Ansari, and the epitome of this new fiqh
was that great man's "al­Makasib" and "al­Tahara".[45]
Since his time, no­one could even conceive of teaching a complete cycle
of fiqh with such thorough explanation and research.

At the present time, after this advance in the development of our fiqh,
which occurred in the same way as similar advances in other sciences
all over the world, and which has been the result of the efforts of the
ulama' and fuqaha' of the past, the scholars of today will
find themselves faced with the choice of either curbing any further progress
in fiqh or putting this sensible and progressive recommendation
into practice and creating branches of specialization, as a result of which
people will come to discriminate in their taqlid, in the same way
as they discriminate in referring to a doctor.

A council of fuqaha'

There is another recommendation which I wish to make, and the more fully
I explain what I have in mind the better it will be. At the present time,
when branches of specialization exist in every science, resulting in breathtaking
advances in these sciences, there is another practice which, in its turn,
has acted as a contributing factor, and this is practical and theoretical
cooperation between first rank scientists and specialists in all the branches
of science. Now, solitary theorising or experiment no longer has any value,
nothing is to be achieved from going one's own way. In every branch, scholars
and scientists are constantly engaged in exchanging ideas; they put the
results of their thinking at the disposal of other specialists, and the
scientists of one continent cooperate with those of another. The result
of this theoretical and experimental cooperation between first rank scientists
is that if a useful and valid theory is put forward, it can be published
and establish itself more quickly, whereas, if a theory is weak, its failing
can be discovered and it can be eliminated sooner, so that in the future
the pupils of the authorities who developed these theories will be saved
from these errors.

Unfortunately, we still have not created any division of labour or specialization
among ourselves, no practical or theoretical cooperation, and it is clear
that as long as this is delayed, progress and the solution of difficulties
cannot be achieved. There is no need for a proof of the need for scientific
cooperation and the exchange of ideas since it is so self­evident,
but so that it may not be doubted, I shall show, by quotations from the
Qur'an and "Nahj al­Balagha ", that this recommendation, this
progressive order, is to be found within Islam itself.

In the Qur'an, in the sura called al­Shura (Counsel),
it is said:
And those who answer their Lord, and perform the prayer,
their affair being counsel between them, and expend of that We have provided
them with. (42:38)
This verse describes the true believers and followers of Islam in this
way: they reply to the call of God, they establish prayer, they do their
work in consultation with each other, and they dispose of that which God
has bestowed on them. So, in the view of Islam, consultation and the exchange
of ideas is one of the basic principles of life for people of faith, the
true followers of Islam.

In "Nahj al­Balaqha" it is said:
Know that a group of the slaves of Allah with whom knowledge
of Allah was entrusted keep His secret; they cause His springs to flow
(i.e., they open the springs of knowledge for the people), they have friendly
relations with one another and feelings of affection, they meet each other
with warmth and cheerfulness and love, they quench each other's thirst
from the cup of their acquired knowledge, and they emerge with their thirsts
quenched.
If scientific consultation were to come into existence in the science of
fiqh, and the principle of the exchange of ideas were to be thoroughly
practiced, many of the differences between legal opinions would be resolved,
quite apart from the advances that would be made in the science as such.
There is no alternative: if we maintain that our fiqh is also one
of the world's genuine sciences, we must make use of the methods used in
the other sciences. If we do not, the result will be that it will no longer
be considered a science.

I have other useful and urgent recommendations, but my time is running
out and I cannot mention them now, for it would take almost another three
quarters of an hour, and I know that some people have a long way to go
to reach their homes.

The verse of the Qur'an which I quoted at the beginning was:
It is not for the believers to go forth all together; but
why should not a party of every section of them go forth, to become learned
(yatafaqqahu) in the religion, and to warn their people when they return
to them, that they may beware. (9:122)
This verse explicitly instructs that a group of the Muslims should study
(tafaqquh) their religion and let others benefit from what they
have studied. Tafaqquh is from the root f­q­h. The
meaning of fiqh is not mere understanding: rather, it is deep understanding
of, and perfect insight into, the truth of something. In his "Mufradat",
Raghib [46], says:
Fiqh is the reaching for hidden knowledge by means of
manifest knowledge.
Taffaquh is defined as:
Going after something and becoming expert in it.
The above verse is addressed to Muslims whose understanding of Islam is
not superficial, telling them to think deeply and discover the meaning
and the spirit of the rules of Islam. This verse is the evidence for ijtihad
and the study of fiqh, and it is also the evidence for our recommendations.
Just as this verse lays the foundation for ijtihad and tafaqquh
in Islam, so also it advocates that these two things should be more
widely practiced. More attention should be paid to what is required, the
ulama' should start to sit in fiqh counsels, the individualistic
approach should be discouraged, and branches of specialization should be
created, so that our fiqh may continue on its path of perfection.

Footnotes

Abd Salih, the "Righteous Servant". For this story see
the sura of "al­Kahf', 60 ­ 82.

Since he obviously refrains from such activities.

According to a commonly accepted ruling, this applies
only to those matters which the muqallid formerly performed according
to the fatawa of the subsequently deceased marja al-taqlid. If
any new matter arises for him, he must follow the fatwa of a living, adil
mujtahid

Two principles (usul amalia) for the preponderance
of one opinion over another in fiqh. If one opinion is chosen over
another ala l­aqwa, it is chosen because the proof for it is
thought to be stronger; if it chosen ala l­ahwat, it is because
of the principle of precaution (ihtiyat) which requires that what
is least likely to be at variance with the sharia should be adopted.
It will be appreciated that there may be a good deal of rather trivial
argument as to whether one or the other of the two opinions should be chosen,
according to which of these two principles is preferred.

a) for "Fara'id al­ Usul", see above, note
26. b) "Kitab al­Makasib", also by the Shaykh al­Ansari,
an extensive exposition of the section in fiqh on transactions.
c) "Kifayat al­Usul" (2 vols, Tehran, n.d.) by "Akhund" Mulla
Muhammad Kazim al­Khurasani (d. 1329/1911), a systematic text on usul
al­fiqh.

After the student (talaba, lit. 'seeker') has
completed his reading of the main texts and mastered the necessary preliminary
sciences, he may continue to the more detailed, but also more specialised,
courses given by the main teachers of the subjects concerned. These lessons,
the dars­i kharij, are kharij to (outside, beyond) the
texts, and the teacher will expound his own opinions, thus teaching the
actual practice of ijtihad. The teacher will be able to assess the
abilities of his pupils in these classes, and, in the case of fiqh,
may subsequently award a certificate of ijtihad to those he
considers to have mastered all the required skills and to be consequently
in a position to employ them to arrive at their own legal opinions (see
also above, note 23).

a) "Wasa'il al­Shia" (ed. A. al­Rabbani
M. al­Razi, 20 vols, Tehran, 1376 ­1389), by the Shaykh Muhammad
b. al­Hasan al­Hurr al­Amili (d. 1104/1693); the most comprehensive
collection of hadith relevant to fiqh, arranged according
to subject matter. b) "Jawahir al­Kalam" (ed. A. Quchani et
al., 43 vols, Najaf-Qum-Tehran, 1377­1401), by the Shaykh Muhammad
Hasan b. Baqir al­Najafi (d. 1266/1849); an extensive commentary on
the "Sharayi al­Islam" by the Muhaqqiq al­Hilli (602/1202
­ 676/1277).

The Shaykh Abd al­Karim b. Muhammad Jafar al­Mirjirdi
al­Yazdi al­Hairi (1276/1859­60 ­ 1355/1937), whose move
from Arak to Qum in 1920 began the modern history of that city as a centre
of Shii learning.

The Sayyid Ahmad al­Husayni al­Zanjani (1308/1890
­ 1393/1973), a Qummi scholar. His "al­Kalam Yajurru l­Kalam"
(3 vols, Tehran, 1363/1944) is a compendium of historical, literary, biographical
and hadith information.

By the Shaykh al­Ansari.

"Al­Mufradat fi Gharib al­Qur'an'', (ed.
M. S. al­Kilani, Cairo, 1961), by Abu l­Qasim al­Husayn b.
Muhammad b. al­Mafdal al­Isfahani (d. 502/1108­9), a famous
lexicon of obscure meanings in the Qur'an.