لطفا منتظر باشید ...
(To be sure, he was a mujtahid and a muta'awwil)!
Ahmad ibn Ali al‑Shafi'i,
famous as Ibn Hajar al‑Asqalani, while describing the Sahabah, says that they exercised ta'wil and that in cases that the mujtahid errs he is not only not liable
to any censure and punishment but deserves one reward.
What is more interesting is that
some who claim to be Muslims consider even such a vicious character like Yazid
with his irremediable crime, which has no parallel in history, as a khalifah of the Prophet (S). Moreover,
they justify his heinous crime and say that he exercised ijtihadand erred in his ta'wil; therefore, he cannot be blamed!
In Ibn Kathir's history
(vo1.13,p.9), Abu al‑Khayr Ahmad ibn Isma'il ibn Yusuf al‑Shafii
al‑'Ash'ari is reported as having made this statement about Yazid: (He was an imam and mujtahid). Ibn
Kathir himself writes (Vol .8, p.223) that some people justify the evil and
heinous deeds of Yazid and state the he erred in exercising ta'wil and ijtihad. In another place (vo1.6, p.323) he says: "Khalid
continued to hold his office with the approval of Abu Bakr ( and therefore his
assignment was legitimate), though he took part in the killing of Malik ibn
Nuwayrah. But since he exercised ijtihad and
erred, he cannot be blamed."
In the above‑mentioned
cases, the exercise of ray is
referred to with the name of ta'wil, and
this usage continued until the Sunni community gave it the name of ijtihad, developing special rules and
terms for it and opening new chapters in the realm of ilm al‑'usul.
Consequently, the act of deriving a hukm
by this means was called "ijtihad",
and it practitioner "mujtahid".
As stated, the practice of ray emerged after the demise of the
Prophet (S) and the term continued to be in use for ijtihad in the writings of the Sunni fuqaha' until the early years
of the 6th/12th century. Abu Hanifah al‑Nu'man ibn Thabit (80‑150/699‑767)
and his followers used the term ijtihad in
the same sense. Their approach met with the outright rejection of the Shi'i
Imams (A) and fuqaha; who denounced it in the strongest terms (details will
come in the discussion about the sources of ijtihad). The use of this term however continued through centuries, till
the time when it underwent a change.
The Use of "Ijtihad"
in Another Sense
From the 6th/12th century till
the beginning of the 7th/13th, the term ijtihad
underwent a change in the writings and statements of Sunni scholars; they
now gave it a wider and more comprehensive meaning. It will be proper to quote
here some of them.
Abu Hamid Muhammad al‑Ghazzali
al‑Shafi'i (450‑505/10581111) has defined the term ijtihad in his book, al‑Mustasfa fi usul al‑fiqh
(vo1.2,p.350): "Ijtihad means
the effort and endeavour on the part of the mujtahid
in acquiring the knowledge of the ahkam
of the Shari'ah."
Muhammad Khidri Bek has defined ijtihad in his history of Islamic
legislation (p.87) as: "The endeavour and effort undertaken for deducing a
hukm of the Shariah through means
and sources (adillah) which the Shari (Lawgiver) considers as valid proofs."
Ahmad Mustafa Zarqa' al‑Suri,
the author of al‑Madkhal al‑fiqhi
alamm, defines the term ijtihadin these words: "Ijtihad means deduction of ahkamof the Shariah by means of their
elaborate adillah from the
Shariah."
There were other fuqaha' at that
time who used the term ijtihad in the
aforementioned sense. Though the term ijtihadacquired a wider and more comprehensive denotation, nevertheless,
the Shii fuqaha' still did not approve of the kind of ijtihadpractised by the Ahl al‑Sunnah as
a reliable source from which ahkam of
the Shariah could be derived. They rejected it and considered it invalid. As
in the previous ages, to them the term ijtihaddenoted an undesirable and forbidden practice; they discussed it
in their writings and expressly rejected it as invalid.
This antagonism continued until
the 7th/13th century, and the writings of the original researcher and mujtahid Muhammad ibn Ahmad ibn Idris al‑Hilli
(555 or 558‑598/1160 or 1163‑1201) bear evidence to this. He writes
in his precious book al‑Sara'ir that
"qiyas, istihsan and ijtihadare from our viewpoint invalid practices".
These words of Ibn Idris indicate that the word ijtihadwas still current at the time in the
sense of the practice of subjective opinion and ra'y as a source of law, like the Book and the Sunnah.
The New Denotation of Ijtihad
In the 7th/13th century the term ijtihadwas used in a new sense by Imamiyyah
fuqaha' which afterwards, with a little ammendment, assumed its genuine and
desirable form: the sense of referring new furu
to the fundamental principles, the usul. In this way, the term ijtihad came to be accepted by the
Shi'ah.
The oldest texts which throw
light on this matter are the writings of the great al‑Muhaqqiq al‑Hilli
(d.676 or 680/1277 or 1281) and his Ma'arij
al‑'usul (p.117). In
it, while defining ijtihad, he
states: "In the vocabulary of the fuqaha', ijtihadmeans making effort and endeavour in
order to deduce ahkamof the
Shariah from its valid (shar'i) sources
(adillah)."
He continues to say that since
the deduction of ahkamand
their determination is conceptually a theoretical activity, and in most of the
cases they cannot be derived from the apparent meaning of the texts, there was
drawn no line of demarcation in the definition between qiyas and other adillah. Therefore,
on this basis, qiyas can also be
considered to be one of the types of ijtihad. He further says that it is possible that some may say that it
means that the Shiah also practise ijtihad. The answer is m the affirmative, with the qualification that ijtihadto them has never meant, nor does it
mean, the practice of qiyas.
A study of the views expressed by
al‑Muhaqqiq al‑Hill! in Maarij
al-usul reveals that in those days the term ijtihadwas not yet fully accepted by the
Shiah due to its former connotations. The writings of al‑Muhaqqiq al‑Hilli
show that there were still certain individuals in those days who could not
digest the term. They were not inclined to assign the appellation mujtahid' to any of the Shii fuqaha'.
Accordingly, al‑Muhaqqiq al‑Hilli decided to draw a line between
the two concepts of qiyas and ijtihadand declared that ijtihadas a new term adopted by the Shi'ah
possessed a meaning acceptable to them, that its use did not have any harm‑for
the term ijtihadmeant to
making an effort for deriving a hukm from
shar'i sources (i.e. the Book, the
Sunnah, ijma and aql)‑and
that it does not have any connection with the ijtihadpractised by the Ahl al‑Sunnah.
Difference between the Two Conceptions and its Consequences
There is an obvious difference
between the two conceptions of ijtihad, because the first sense implies that whenever there is no express
statement in the text of the Quran and the Sunnah the mujtahid can innovate and legislate a law according to his own ray and subjective opinion, and if he is
asked as to the source on which he has based this hukm, he will answer: "On my own personal ray". But in the second sense (accepted by the Imamiyyah), ijtihadis an endeavour and effort on the part
of the mujtahid in deriving a hukm of God from the sources of the
Shari'ah. When asked as to the sources from which the hukm is derived, he answers: "The sources whose validity and
reliability is posited by the Lawgiver."
Accordingly, the role of the mujtahid in deducing the ahkam regarding
new issues and furu involves reverting the new furu to the basic principles of the Shari'ah and applying its
general laws to corresponding particular cases. There is an essential and real
difference between these two meanings of the term, since ijtihadin the Sunni sense of practising ray means invention (ibda) of ahkamand
legislation. And the Shii ijtihadis a means of discovering the Divine ahkam
through the valid sources of the Shariah (the Book, the Sunnah, ijma and aql).
Delimitation o f the Meaning of Ijtihad by al‑Muhaqqiq al‑Hilli
As mentioned earlier, al‑Muhaqqiq
al‑Hilli delimited the new sense of the term ijtihad to research effort in deducing ahkamfrom the sources, so that the hukm derived is not based on the literal
meanings (zawahir) of the texts of
the Quran and the Sunnah. Accordingly the deduction of a hukm from zawahir of the
Book and the Sunnah was not a part of ijtihadto him. Perhaps this restriction in the meaning of ijtihadhad to do with its original lexical
background, which carried the sense of hard effort and labour. Thus, the
derivation of a huhm from zawahir of the Book and the Sunnah,
which did not involve any great effort, was not counted by him as part of ijtihad.
However, after his era, the
meaning of ijtihadgrew in
scope and came to include deduction of ahkam
from zawahir of the nusus
(texts) of the Quran and the Sunnah. This was because the scholars of ilm
al-usul came to recognize that even deduction from the zawahir required a lot of scholarly
effort; that it could not be done without the knowledge of the principle of hujjiyyat al‑zawahir (the legal
validity of literal meanings) and the mode of its application and the related
problems.
The meaning of ijtihaddid not remain within these limits; it
underwent a further development until it came to include all the forms of
legal deduction and every kind of endeavour and effort on the part of the mujtahid to determine and define
practical obligations vis a vis the Shari'ah on the basis of valid proofs.
Accordingly, in latter times, some scholars have defined ijtihadas effort and endeavour for
establishing the legal basis of real ahkam
or attainment of legal evidence for determining the apparent obligation in
a case, or something to that effect. Other definitions have also been advanced,
but since they are close in meaning and content to the one mentioned above, we
shall refrain from citing them in order not to prolong this discussion any
further. [3]
Notes:
[1]. Of course, it doesn't meanthat ijtihadwas not practised
during this era, for in its authentic and legitimate form ijtihadexisted even during the Prophet's lifetime,
as discussed by us in another article.
[2]. For further information
regarding the incident relating to Khalid ibn al-Walid, see: al-Isabah, III, 337; Tarikh al‑Yaqubi,
II, 110; Kanz al‑ummal, III, 132; Wafayat al‑'ayan, V,
66; Fawat al‑wafayat, II,
627; Abu al‑Fida', Ta'rikh, 158.
[3]. Editor's Note: This is a translation of "Ra'y gera'i dar ijtihad",
published in the Persian bimonthly journal Kayhan‑e Andisheh
No. 9, Adhar & Day) and is second of a series of articles by the
author.
