لطفا منتظر باشید ...
and that in it is all things
,
16:89) and that one part of the Quran verifies another part and that there is
no contradiction in it. And the Almighty has said: (
if it had been from other than God
they would have found therein much incongruity
, 4:82).
Abu Muhammad Ali ibn Hazm al‑'Andalusi
al‑Zahiri (d.456/1064) in his book al‑
Ihkam li usul al‑'ahkam (vol:5, p.775) writes:
"Some ignorant people believe that Mu'adh had the right to make a thing halal or haramby exercising his ray or to make something wajib
or otherwise according to his own judgement and taste. Such a notion is
preposterous, and no Muslim would believe it."
9. If it is said that by ijtihad bi al‑ray Mu'adh meant to
say that whenever he could not find a hukm
in the express texts of the Book and the Sunnah of the Prophet (S), he
would use his effort in deriving it from the sources of the Shari ah and its
general principles, if we interpret the tradition in this way, the term ijtihad conveys the same lexical meaning
described earlier (in another article), not a new sense of legislation and tashri. When interpreted in this sense,
there will be no problem with it, and it would be acceptable to the Shiah.
But the problem is that the
fuqaha' of the Ahl al‑Sunnah have not interpreted this tradition in this
manner. The character of their arguments shows that they conceive the term ijtihad in the sense of relying upon ray and subjective opinion; not in the
sense of deducing the laws from the principles and basic sources of the
Shari'ah.
10. Apart from all the objections
raised above, this significant problem still remains that the tradition is about
judgement and adjudication; it has nothing to do with the problem at hand,
since what we are concerned with is the matter whether a mujtahid has a right to legislate laws and ahkam concerning emergent issues by exercising his ray and employing any of the instruments
for deriving legal conjectures. It is evident that there is a clear difference
between these two things.
Critique of the Second Riwayah
The second riwayah is also infirm with respect to its chain of transmission.
As Abu Muhammad Ali ibn Hazm al‑Zahiri points out in his book al‑'Ihkam li usul al‑ ahkam
(vol. 5, p.1003), there are two chains of transmission through which this Riwayahhas been reported; none of them is
trustworthy. In one sanad, one of the
narrators is Abd al‑Malik ibn al‑Walid ibn Ma'dan. He has not been
considered as trustworthy by the experts of the science of rijal, and no
hadith narrated by him has been acted upon. And as for the second sanad, it contains names of persons of
unknown identity, thus technically making the riwayahone whose chain of transmission is
broken (maqtu al‑sanad).
Critique of the Third Riwayah
This riwayahhas no relation with the issue under
discussion, as it is about judgement and adjudication, and not concerned with
the privilege and right of a jurisprudent to legislate ahkam of the Shari'ah by means of ray and by employing conjectural instruments.
Critique of the Fourth Riwayah
Firstly the fourth Riwayah is mursal (one whose first narrator (S) is not mentioned in the chain
of transmission), which deprives it of the requirements for being legally
relevant.
Secondly, apart from its being mursal, such a riwayahhas no strength to resist the force of
the arguments based on definite proofs (adillah)
of the Book and the Sunnah, which do not permit tashri and legislation by means of ray and through instruments for
deriving conjectures.
Thus, we reach the conclusion
that these ahadith are not adequate for vindicating the practice of ijtihad by means of ray and subjective opinion; they lack the requirements of validity
and the probability of their being fabricated is strong.
The Emergence of Ijtihad bi
al‑Ray
The beginnings of the emergence
of ijtihad and its general outlines
can be traced back to the migration of the Prophet (S) from Makkah to Madinah.
But the emergence of ijtihad in the sense of exercising ray was after the conclusion of the era
of tashri with the demise of
the Prophet (S). For, as long as the Prophet (S) was alive, with the continuity
of the revelation of the Quran and wahy, there was no ground for exercising ra'y; as mentioned earlier, the ahkam
could be understood and known easily by referring to the Prophet (S). But
after his demise and the termination of wahy, during the reign of the
Caliphs, and subsequently during the Umayyad rule and in the early years of the
Abbasids, the fuqaha' were confronted with new issues and subjects for which
they had to find answers. If they could not find the solution by referring to
the Book and the Sunnah of the Prophet (S), they had to determine a hukm by consulting other fuqaha'. As a
result of this they either reached a consensus or each one of them arrived at a
separate hukm by exercising ijtihadand his own individual judgement.
The View of al‑Dawalibi
Al‑Dawalibi, in his book al‑Madkhal ila ilm usul al‑fiqh, states in
this connection: "Whenever the Companions of the Prophet (S) faced an
impediment in such situations or issues for which they could not find an
express decree in the Book and the Sunnah, they resorted to ijtihad(identifying in this manner the ahkamfor new situations). They named this
practice ray. Abu Bakr and Umar were
among those who used this method".
Later on al‑Dawalibi cites
a Riwayahin which Umar ibn
al‑Khattab is reported as having written to Shurayh and Abu Musa al‑'Ash'ari:
"Companions of the Prophet (S) did not rely in their ijtihad upon fixed laws and established criteria; rather, they
relied upon something which they considered as the spirit of the Law".
This statement has also been
quoted in different words from Umar ibn al‑Khattab, such as:
"Identify similar and analogous cases and use qiyas (analogical method) in matters." (We will elaborate on
this topic in the discussion about the historical development of qiyas, which is the fifth source of
Sunni ijtihad.)
In any case, it was after the
demise of the Prophet (S) that some of the Sahabah
raised the issue of ray and
opened its doors. In this way, they deduced a certain hukm for every issue and problem for which there was no specific nass. The Tabi'un and a majority of Sunni jurisprudents followed their
example. Besides the practice of ray, other
instruments for deriving legal presumption (such as qiyas, istihsan, masalih mursalah, etc.) also entered the realm of ijtihadand the Sunni fuqaha' relied upon those
sources, although they were not uniform in their reliance on such instruments
(this will be elaborated further while discussing the sources of ijtihad).
It was the result of the
difference of opinions between the fuqaha' of the Ahl al‑Sunnah regarding
the trustworthiness of these sources that diverse legal schools came into
being. Among perhaps more than twenty of such schools that emerged, four of
them became more popular: the Hanafi school, under the leadership of Abu
Hanifah; the Maliki school, under the leadership of Malik ibn Anas al‑'Asbahi;
the Shafi'i school, under the leadership of Muhammad ibn Idris al‑Shafi'i;
and the Hanbali school, under the leadership of Ahmad ibn Hanbal al‑Shaybani.
These schools emerged during the reign of the Abbasids (132‑656/7501258)
(an elaborate discussion about these schools will be done while discussing the
various periods in the history of ijtihad). The practice of ra'y was called "ta'wil" during the era of the Sahabah and not "ijtihad bi al‑ray". This
was true of the early days of the era of the Tabi'un as well.
The term ta'wil was used by Khalid ibn al‑Walid, who killed Malik ibn
Nuwayrah, and also by Abu Bakr. In order to examine this usage, we will have to
go into the details of the episode involving Khalid. [2]
After the Prophet's demise, a
group of people gathered in Saqifat Bani Sa'idah and chose Abu Bakr for the
caliphate. Khalid ibn al‑Walid was one who had played an active role in
the affair. After the event, he was dispatched with a force to collect zakat from the dissidents. During the
course of his assignment, he went to a tribe inhabiting the region of Batch and
demanded zakat. They declined to pay,
stating that they did not acknowledge anybody except Ali ibn Abi Talib as the
Prophet's successor, as the Prophet (S) had nominated Ali (A) to succeed him
at Ghadir Khum while returning from the Last Pilgrimage. They stated that on
this ground they would not pay zakat to
anybody except someone appointed by Ali (A). Khalid ibn al‑Walid
responded to the position taken by the people of that tribe by committing a
horrible crime. He ordered Dirar ibn Azwar al‑'Asadi to behead Malik ibn
Nuwayrah, the chief of the tribe. Khalid did not stop at this; he slept with
the wife of Malik the same night. To celebrate the occasion, he slaughtered a
sheep and ordered Malik's head to be put in the fire under the cooking pot.
After his return, in order to
justify his inhuman act and to make it appear something legitimate, he said:
"Since this tribe had apostatized, I had to treat them in this
manner." But within a short time, facts of the case came out. Abu Qatadah
and Abd Allah ibn Umar gave witnesses in favour of Malik ibn Nuwayrah. Khalid
had no alternative except to confess. While apologizing, he said to Abu Bakr: (I exercised ta'wil and made a mistake). Umar ibn al‑Khattab and some of
the Companions were of the view that Khalid should be stoned to death for zina (adultery). However, since Khalid
had played a significant role in the episode of Saqifah, efforts were made to
exonerate him and justify his deed Accordingly. Abu Bakr said: (I would not stone him, for he exercised ta'wil and committed an error). After
this incident the term ta'wil was
used in such cases by others.
The Term Ta'wil During the
Days of Tabi'un
In the era of the Tabi'un, also, the word ta'wil was used in the sense of the
practice of ra'y. Al‑Zuhri is
reported in al‑Sahih of al-Bukhari
(vol.1, p.134, Bab taqsir al‑salat)
as saying that he asked Urwah ibn al‑Zubayr as to why A'ishah says
full prayers during journey(while qasr is
specified in riwayat). He replied
"She makes ta'wil of the Riwayah, in the same manner as Uthman used to
do."
The Usage of Ta'wil by Tabi un
The history of the term taw'il
indicates that it started by the Sahabah and
continued to be in use until the middle of the 5th/11th century, as can be seen
from the writings of some Sunni scholars. But after this date the term taw'il was gradually replaced by other
terms.
Abu Muhammad Ali ibn Ahmad,
known as Ibn Hazm al‑Zahiri (384‑456/994‑1064), in his book al‑Fasl fi al milal wa al‑'ahwa'
wa al-nihal (vol.4, p.161), has this to say about Abu al‑Adiyah,
the killer of Ammar ibn Yasir:
He was an errant muta'awwil (one who exercises ta'wil) and mujtahid, and committed a wrong against Ammar ibn Yasir (because
of the hukm that he derived and the ijtihad that he made). He deserves
reward, but only one.
In another place, he writes in
his book that the killer of Ammar was not similar to the killer of Uthman, as
the latter's killer did not have any ground for ijtihad. He further says that Mu'awiyah and
those who were with him were men of ijtihad,
although in error, and they deserved one reward.
Taqi al‑Din Ahmad ibn Abd
al‑Hakim ibn Abd al‑Salam (661‑728/ 1263‑1328) known
as Ibn Taymiyyah, while justifying the acts of Mu'awiyah, writes that he was a mujtahid.
Ibn Kathir, in his history (Vol.
7, p.297), writes that Mu'awiyah was a mujtahid
and deserved reward. In the same volume of the book (p:283) he writes that ijtihadsometimes leads to error and sometimes
to the truth and:
For the mujtahid who is right, there are two rewards, and for the mujtahid who errs, one reward.
Ibn Hazm in al‑Muhalla (vol.l,p.484), Shaykh Ala' al‑Din 'Ali ibn
Uthman al‑Hanafi, known as Ibn al‑Turkumani (d.750/1349),in his al‑Jawhar al‑naqi, as stated
in footnotes of al‑Bayhaqi's Sunan (vo1.8,
pp.58‑59), describe the assassin of Ali ibn Abi Talib
