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Section 3
Factors Responsible for
Emergence of the Practice of Ra'y
Factors
Responsible for Emergence of the Practice of Ra'y
At the most sensitive juncture in
the history of Islam when the Muhammadan Shari ah was in the course of
expansion, the process of wahy (revelation) was terminated and with it
the epoch of tashri (legislation).
The losing of the era of tashri' and
the demise of the Prophet (S) coincided with the emergence of diverse changes
in the world of Islam. These changes were the result of the spread of Islam in
new territories and alien soils, followed by new situations and problems each
one of which required an answer.
The passage of time did not offer
any solution to the problems; rather it added to their intricacy and their
number as well. For, with time, sometimes even the problems that had received
exposition during the period of tashri were
lost in the mazes of ambiguity arising from different narrations and riwayat (traditions), thus giving rise
to new obstacles in the way of determining the laws (ahkam).
At this point, while the Islamic
Ummah had no access to wahyand
had lost the biggest source towards which they looked for the solution of their
problems, much greater problems cropped up, and this vacuum was felt more
acutely than ever before. Two different outlooks emerged in order to confront
this difficult situation in the newly‑born Islamic society:
(a) The point of view that the authority for determining the
Divine ahkam and expounding the
Quranic meanings belonged to the House of the Prophet (S) after him, and that
they alone, in accordance with the Prophet's express decree, should be referred
to for solution of the problems and determination of the ahkam of the Almighty. Those who believed in this outlook did not
face any insoluble problem in the wake of the cessation of wahy, as they knew well that their duty was
to refer to the Masumun (A). [1]
(b) The view that there was no
specified person after the Prophet to interpret and determine the Divine
commandments. Its proponents maintained that the Book and the Sunnah of the
Prophet (S) were the only sources from which the ahkam regarding the new legal issues could be derived.
Those who subscribed to this view‑later
to be known as "Ahl al Sunnah" turned to solve their problems by
referring to the Quran and the Sunnah; but they soon realized that it is not at
all an easy task to extract all the ahkam
of the Shari'ah from express Quranic texts(nusus) and the Sunnah of the
Prophet, and that they are not adequate to answer many of the new issues.
This led the Ahl al‑Sunnah
into finding other ways and sources of ijtihad
and to put their trust in the practice of ray and personal judgement and to rely on such sources for basing
legal conjectures as qiyas (analogy),
istihsan, masalih mursalah, istislah,
sadd al‑dhara'i, fath aldhara'i;
madhhab al‑sahabi, shariat al‑salaf, urf, istidlal and so on
as hujjah (possessing legal
validity).
This was a sketchy description of
what we shall discuss in detail below.
The Factors Which Generated New,
Contingent Issues
The emergence of new issues after
the termination of the period of tashri depended
upon various factors:
1. Natural and ordinary factors
related to the day‑to‑day life of the Muslims.
2. Exceptional or extraordinary
factors, like wars.
3. Islamic conquests and
victories extended Islamic influence in Asia, Africa and some European regions,
and, in this way, diverse cultural traditions stepped into the vast domain of
Islam. On account of this, new requirements and needs were felt in the same
proportion, and Islamic fiqh was bound to answer all of them, in addition to
presenting appropriate ahkam which
could suit different environmental and social conditions.
All these factors put strains on ijtihad and made deduction of the laws
of Shari ah more difficult for the Sunni community. This caused the Ahl
al‑Ray‑those who believed in the practice of ray‑ the Iraqi school of
jurisprudence, whose founder was Abu Hanifah al‑Nu'man ibn Thabit (80‑150/699‑767),
and a large group of Sunni fuqaha' to reach the conclusion that the express
texts (nusus) of the Quran and the Sunnah of the Prophet (S) alone,
being limited, cannot provide an answer to the new issues and problems, while
the issues of daily life are countless and ever‑increasing. Accordingly,
they were forced to rely on an ijtihad based
on ray and other such conjectural instruments that were devised before him.
This topic will be discussed in the article "Sayr‑e ta'rikhi‑ye qiyas dar manabi‑ye
ijtihad" (the Historical development of Qiyas as a Source of Ijtihad).
In the same period, the Shi'ah,
who formed a section of the Islamic society, also encountered the new problems
that faced the society. They also considered it essential to find solutions to
the new problems. But due to their particular point of view, they never came
across the above‑mentioned strains when facing diverse situations,
because, during the days of accessibility to an Imam (A) they went to him for
solving their problems, and during the days when they could not find an access
to him or during his occultation they could solve the problems of daily life by
means of the usul and by using them in deriving the ahkam of the Shari'ah. They never felt the need for having recourse
to ijtihad by ray and depending
upon conjectural legal sources.
According to Ahl al‑Sunnah,
in instances where the nass of the
Quran and the Sunnah was not available, the mujtahid
can legislate laws by exerting his own personal judgement and ray and set them forth as divine laws.
But according to the Shi'i point of view, in Islamic law a mujtahid has no right to legislate laws regarding new situations
and issues, as there is no need for a mujtahid
to resort to tashri in presence
of the general juristic principles which already exist.
Different Points of View Among
Ahl al‑Sunnah
It is essential to mention this
point here that the practice of ray was
not accepted by the Sunni community without any resistance, and the different
Sunni sects were not uniform in this regard. The Ahl al‑Hadith (the Hijaz
school of fiqh), whose founder was Malik ibn Anas al‑'Asbahi (93‑179/711‑795),
were a section of the Sunni community who forbade every kind of ijtihad that crossed the limits of the
Quran and the Sunnah. Others who held this outlook were the Hanbalis, the
followers of Ahmad ibn Hanbal al‑Shaybani (164‑241/780‑855),
and the Zahiris, the followers of Da'ud ibn 'Ali al‑'Isfahani, knownas
Abu Sulayman Zahiri (200 or 202‑270/815 or 817‑883). In the
beginning, however, Malik did not subscribe to this outlook and approved the
practice of ray.
Ijtihad, as accepted by the Shi'ah, involves the application of
certain essential and fundamental principles (usul) to secondary issues (furu). This results in expansion of
fiqh and the laws of Shari'ah in the sense of development and emergence of new
instances and diversity of legal applications, and not through legislation of
new laws.
But ijtihadin the Sunni sense implies tashri or legislation of laws, which
forms the part of the mujtahid's activity.
In other words, in Sunni fiqh, ahkamor the laws of Shari'ah also expand along with the expansion and
multiplication of the issues. The variety and number of the issues and
applications and their external and objective diversity requires variety and
diversity of the relevant ahkam. Many
a time, the general laws that cover those applications are not to be found in
the Book and the Sunnah, as if those ahkamhave no relationship with the wahy. Like laws and regulations formulated by non‑Muslim nations
of the world for their societies, they are also the product of the mind and
intellect of human individuals. On account of this, it is not legitimate to
acknowledge them as Divine commands and the laws of Islam. We shall discuss
this matter in detail later in this article‑in the critique of the Riwayahof Mu'adh. However, before that, we
shall examine the arguments advanced by believers in the practice of ray and
its supporters.
Arguments in Defence of Ra'y and
Their Refutation
The arguments extended by Sunni
fuqaha' in favour of ijtihadby
means of ray can be divided into two
main parts:
(1) the arguments derived from
the Quran, and
(2) the arguments produced from
the tradition and Sunnah.
1. The Arguments Based on the
Quran
In order to prove the validity of
the practice of ra'y, the fuqaha' of
the Ahl al‑Sunnah advance certain arguments from Quranic verses. Some of
them are the following.
1. Verily, We revealed unto thee the Book with the truth, that thou
mayest judge between mankind by that which God showeth thee (araka, from
the same root as ray) .... (4:105)
