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2. Thus We explain the signs for people who think. (10:24)
3. ....Thus We explain the signs for people who ratiocinate. (30:28)
Basing any argument upon these
verses for proving the validity of the practice under discussion does not
appear to be proper. As the first verse is particularly addressed to the Holy
Prophet (S), it does not include anyone else. Moreover, the phrase (by that which God showeth thee)
indicates that the Prophet (S) adjudicated among the people of his Ummah
according to that which was revealed to him by God in the Holy Quran and not
according to his own personal judgement and ray. In fact this verse conveys something contrary to the aims of
the believers in the practice of ray, as
it acknowledges the presence of definite laws revealed to the Prophet (S) as
the only criterion and standard. This issue has no relevance whatsoever to the
validity of the practice of ray in ijtihad. As to the second and the third verses, they also are not
concerned with the subject of the practice of ray. They specify the significance and value of thinking and
reflecting about the Divine verses and the signs of God in creation, for such
thought and reflection leads man to the knowledge of God, strengthens faith,
and guides him to the cognition of the most fundamental of religious doctrines,
which is the knowledge of God.
2. Arguments Based on the
Tradition
(A) It is reported in the Musnad
of Ahmad ibn Hanbal al‑Shaybani (vo1.5,p.230) that the Prophet (S)
while sending Mu'adh as a judge to Yaman asked him: "On what shall you
base your judgements?" Mu'adh replied: "On the Book of God". The
Prophet (S) asked: "But what if you don't find it there?" Mu'adh
said: "(Then I will act) according to the Sunnah of the Apostle of
Allah". The Prophet (S) again asked: "What if you don't find it
there[ too]?" Mu'adh said: (I will exert my own ray). The Prophet (S) said: "Thanks to God who gave success
to, His Messenger".
This tradition sounds to be
explicit in confirming the view that the Prophet (S) gave approval to ijtihad by means of exerting personal
judgement and ray.
(b) Umar in his letter to Abu
Musa al‑'Ash'ari, wrote:
Concentrate your understanding on
that which goes on in your mind (i.e. something which is not to be found in the
Book and the Sunnah of the Prophet) and draw an analogy between similar
matters.
Ibn Qayyim al‑Jawzi has expounded
this Riwayahin his book A'lam al‑muqitn (vo1:1, pp. 373‑385).
(c) In the Sahih of al‑Bukhari (Bab
ajr al‑hakim, vol. 4,
p. 178) it has been reported from Amr ibn al‑As that the Prophet said
that whenever a judge gives a verdict according to his ijtihad, he will be given two rewards if his judgement is right,
and if it is not, he will be given one reward.
Muhammad ibn Muslim also has
recorded this Riwayahin his Sahih (Kitab al‑Aqdiyah, hadith
No.150). Ibn Majah has recorded it in his Sunan
(Bab al‑hakim, hadith No.2314) and Ahmad ibn Hanbal alShaybani in
his Musnad (vol.2,p.187).
(d) Dr. Mahmasani, in his book on
the philosophy of legislation in Islam, quotes a tradition in which the Prophet
(S) is reported to have said to Ibn Mas'ud:
Judge according to the Book and
the Sunnah if you find (the judgement) in the two, but if you don't find it
there exert your own ray.
Critique of the Tradition
Narrated about Mu'adh
The tradition about Mu'adh is not
acceptable for several reasons:
1. From the point of view of sanad (chain of transmission), as it is
narrated on the authority of al‑Harith ibn Amr alone. There is no other
line of transmission besides this. Moreover, al‑Harith ibn Amr is an
unknown narrator (majhul al‑hal) whose
character is not known. This objection was also raised by Abu Muhammad Ali ibn
Hazm al‑'Andalusi al‑Zahiri (d.456/1064) in his al‑'Ilham li usul al‑'ahkam (vol.5, pp.373‑375).
Al‑Bukhari has also, in al‑Ta'rikh
al‑'awsat, stated that there is no mention of the name of al‑Harith
in any text of tradition or book of rijal
except this sole Riwayah. Moreover,
his character is also obscure. Therefore, it is not proper to consider the Riwayahreported from him to be reliable.
2. From the point of view of
meaning (dalalah), also, the recourse
to this tradition for arguing in favour of ray is unjustified. Because, ijtihad in the sense of legislation of laws and determination
of ahkam for the new and emergent
issues by means of ray and personal
judgement was not in vogue during the lifetime of the Prophet (S), as the
Prophet (S) himself was alive and there was no need for it. Why would an
individual like Mu'adh in spite of having access to the Prophet (S) practise ra'y or exercise his personal opinion,
when the ahkam and the precepts
regarding the religious duties, in detail and in every aspect, could have been
understood very easily and simply by referring to the Prophet (S)? The
Prophet's contemporaries could also refer to individuals trained under the
guidance of the Prophet (S) who had acquired firsthand learning of the Divine
teachings and the wahy, regarding
any problem of scientific, religious, ethical; social, economic, penal,
commercial, agricultural or some other nature, and get a satisfactory and
complete answer to it. In such conditions, there were no grounds for practising
ra'y and personal opinion. Moreover, during the course of a long journey
when it was not possible to contact the Prophet (S) immediately or anyone
trained in Islamic teachings, there was still the possibility for Mu'adh to
find out the Divine commandment in a certain case by sending a messenger. Hence
distance could not be a justification for exercising ray and personal judgement.
The term ijtihad, however, was in vogue during the time of the Prophet (S)
and even during the time of the Sahabah and
Tabiun‑in its literal sense, i.e. striving and making effort in doing something.
We find many instances of its use in this sense (some of which were mentioned
in our article entitled: "A Study of the Sources of Ijtihad").
The need for ijtihadin the sense of exercising ray and personal opinion given to it by
the Ahl al‑Sunnah was felt after the Prophet's demise. This matter will
be elaborated under the heading "The Emergence of ijtihad bi al‑ray" later in this
article.
3. There appears to be no
connection between the lexical meaning of ijtihad
and the sense of the practice of ray and reliance upon personal opinion. If
the lexical meaning of the term ijtihadas defined by lexicographers is taken into account, the
application of the word to the process of extracting a hukm by means of ray and
personal opinion gives it another sense, for there is no similarity between the
two. The lexicographers define ijtihad as
an activity accompanied by endeavour and hard effort. Thus, if any individual
formulates his personal judgement and presents it to society as a Divine law
merely on account of not finding any dictum in the Quran and the Sunnah, this
exercise of his would not be regarded as an ijtihad.
4. The deduction of a law in a
legal issue through exercise of ray and
subjective judgement, if it is not supported by the principles of the Shari'ah
and its general laws, cannot be acknowledged as a hukm of the Shari'ah and a Divine law. Because a hukm of the Shari'ah is a Divine
commandment revealed to the Holy Prophet (S) through the agency of Jibrail (A), not a rule that is
the product of ray and subjective
opinion of a mujtahid. For the
personal judgement of an individual cannot be called a Divine injunction and a huhm of the Shari'ah.
5. Approving of the tradition
concerning Mu'adh and accepting ijtihad in
the sense given to it by the tradition results in such disastrous consequences
as no lawgiver would allow.
The repercussions and evil
effects of this tradition are as follows:
a) If a hukm formulated by a mujtahid
by exercising ray and subjective
opinion is regarded a hukm of the
Shari'ah and a Divine injunction, it means that all the individuals who
exercise ijtihad by ray, each
of them occupies the high station of a Divine legislator and lawgiver, whereas
it is neither possible nor proper to accept this. Because, the source of
legislation and ahkam, in the
light of definite shar'i dicta, is
God alone, and no other being. No hukm or
law except that which is legislated by Him can be given the status of a shar'i hukm. Even the Prophet (S) cannot
be considered as a source of legislation of the ahkamof the Shari'ah. The belief cherished
by the majority of scholars of the Sunni community that the Prophet (S)
himself sometimes exercised ijtihadand himself legislated laws according to his own ray and subjective opinion
in some issues and problems, and the traditions narrated in this regard, have
no validity whatsoever (an elaborate refutation of this view will be given in
the article "The Prophet (S) and Ijtihad").
Accordingly, when the Prophet (S)
cannot be considered as the source of the tashri
of ahkam, is it possible
that subjective views and opinions of human individuals with no links with wahy, and whose character, behaviour and
speech are not considered a norm and model for others, be considered laws of
God and they themselves as legislators of the ahkam of the Shari'ah?
No doubt, it is possible that
occasionally ijtihadmight
have figuratively been referred to as tashri
and legislation. For instance, the renowned scholar Abu Ishaq Ibrahim al‑Shatibi
al‑Gharnati al‑Maliki (d.790/1388), the author of al‑Muwafiqat, has also named the
task of a mujtahid as tashri and legislation. No doubt, his
usage carries only a figurative sense; for naming the activity of a mujtahid as legislation was for the
reason that ijtihad(i.e.
application of the usul of the ahkam
and the general principles for deriving other ahkam regarding emergent issues and new problems) is an effort to
discover a shari hukm, thereby
discovering the intent of the Lawgiver and obtaining the hukm of God. Then, in reality, it amounts to calling legislator',
in a figurative sense, one who discovers a law. Since in Islamic fiqh there is
in fact no provision for anybody except God to lay down laws. Therefore, the
Shari'ah is made up of the injunctions and commandments that were revealed to
the Prophet (S) by God Almighty through the agency of Jibrail. There are verses
in the Quran which confirm this fact; they will be discussed in the article
entitled "The Prophet (S) and Ijtihad".
b) Reliance on ijtihad by ray and subjective judgement is a kind of admission of the
shortcoming of the Shari'ah, and is an implicit declaration that the Islamic
Shari'ah is incapable of answering emergent issues and new problems, whereas
anyone acquainted with the spirit of Islam and its comprehensiveness cannot concede
this. Because, the process of legislation concerning all the necessary spheres
of human life, either in particular detail or in the form of general laws, was
completed during the lifetime of the Prophet (S). The following verses of the
Quran clearly declare this fact:
...And We revealed the Book unto thee as an exposition of all things.(16:89)
We have neglected nothing in the Book (of Our decrees). (6:38)
