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Section 4
The Beginnings of Shi'i
Ijtihad
The
Beginnings of Shi'i Ijtihad
After the demise of the Prophet
(S) in the year 11/632, the need for ijtihad
was felt acutely by the Sunnis, for they thought that the continuity of
Divine guidance in the form of authoritative texts (nass)had ceased with his
(S) demise and the only means of determining the Divine laws that remained was
to search for them in the Book of God and the statements and acts of the
Prophet (S). The Shi'ah, on the other hand, believed in the continuity of
religious authority and nass after
the Prophet (S), and they considered the Infallible Imams of the Ahl al‑Bayt
(A) as embodying the Prophet's authority. Their statements (qawl),
acts (fi'l) and approvals (taqr'ir)were considered by them authoritative
like those of the Holy Prophet (S), and hence as part of the Sunnah.
Accordingly, the Shi'ah did not feel the need for ijtihad contemporaneously with the Sunnis; it was only after the
Greater Occultation (al ghaybat al‑kubra)of the Twelfth Imam (A) that the Shi'ah
came to feel the need to practise ijtihad
on an extensive scale.
Moreover, the Ahl al‑Sunnah
came to face various constrictions in the way of deducing laws of Shari'ah for
contingent issues on account of distancing themselves from the Imams of the Ahl
al‑Bayt (A) after the Prophet's demise. This was because, on the one
hand, about two thirds of Quranic verses were seen to deal with doctrines,
social principles, higher ethical values, historical events relating to past
messengers and their peoples, and accounts of their struggle against the
oppressors and taghuts of their
times; on the other hand, though the remaining one‑third of them relate
to legal matters (such as: salat, sawm,
khums, zakatt, Hajj, jihad, al‑'amr bi al‑maruf wa al‑nahy
an al‑munkar, tawalli, tabari; legal contracts and economic deals,
such as matters relating to marriage, divorce, will and inheritance, sale,
lease and mortgage; penal matters, such as those relating to hudud, diyat and qisas; matters
relating to government, judiciary, judgement, testimony, qualifications for
judgeship; matters relating to the rights of parents, debts, etc.) they deal
mostly with general principles, leaving the details and particulars to the
Sunnah in accordance with the verse:
Take whatever the Apostle brings you, and abstain from whatever he
forbids you from.(59:7)
The Quran as the Source of Law
It may be argued that the Quran
and some traditions expressly state that the Quran contains everything and that
there can be no shortage while we possess the Quran. Accordingly, it may be
said, there is no reason why the Ahl al‑Sunnah should have faced any
difficulty in deducing ahkam after
the Prophet's demise.
In reply to this, we should say
that it is undoubtedly true that: (not
a thing, fresh or withered, but it is in a Book Manifest), but the belief that
everything has been mentioned in the Quran and that nothing has been omitted by
it, in accordance with the verse: (We have not omitted anything in the Book)
does not imply that everyone, regardless of his qualifications, is capable of
obtaining the pearls lying in the depths of its shoreless oceans. The belief
that the Quran contains all the ahkam and
is capable of answering every question that can be raised by man does not conflict
with the view that an extraordinary level of knowledge, effort and learning is
essential for obtaining all the ahkdm of
the Shari'ah from the Quran' and for finding the answer to any question. Thus
we find that some traditions that expressly declare that there is everything in
the Quran also add that it is not possible to understand part of Quranic
meanings without reference to someone who is infallible (Masum). Usul al‑Kafi (vol. I, p. 62)records the following statement of Amir al‑Mu'minin (A) in
this regard:.
There is the Quran: ask it to
speak, but it will never speak to you (because its profound speech is audible
only to the Masum and it is he who
can make it speak unreservedly), yet I will inform you about it; verily, in it
is the knowledge of the past and the future up to the Day of Resurrection. In
it is the judgment touching whatever passes between you and the explanations of
your differences. If you ask me about it, I will inform you.
Difficulty of Utilizing the Sunnah
Some, while admitting that it has
been a difficult task for Islamic scholars to deduce the ahkam from the Quran ‑ i.e. to make the Quran weak, in Imam
'Ali's words, the task lying basically beyond the Power: of ordinary persons ‑
may argue that the Ahl al‑Sunnah did have access to the Prophet's
traditions on legal issues and that such traditions were sufficient to meet
their needs. In reply to this conjecture it must be said that unfortunately
these traditions were very few in comparison to the number of contingent issues
that arose, and therefore they were not sufficient to answer all the questions
that arose.
It was exactly for this reason
that terrible gaps appeared in the Sunni fiqh of this period, and the
inadequacy of the existing sources and foundations led to the invention of
instruments for drawing legal conjectures (such as ijtihad bi al‑ra'y and other instruments as qiyas, istihsan, masalih mursalah, istislah,
madhhab al‑sahabi, sadd al‑dhara'i ; fath al‑dhara'i ;
shariat al‑salaf, 'urf, istidlal, etc.)
The Need for Ijtihad amongst
the Shi'ah
As said above, the Shi'ah did not
face any constriction in respect of legal source for finding answers to
emergent issues after the Prophet's era. They did not face any vacuum in
Islamic law after the prophet's demise because of their belief that Ali (A)
and his descendants had been invested by the Prophet (S) with Imamate, the
authority to expound the Prophet's Sunnah and to perpetuate it, which to them
was an inexhaustible treasure that had been left by the Prophet (S) for the
Ummah. As a result of this belief the Shi'ah referred to the living Imam for
the solution of new problems and obtained the solution in the form of an
exposition of a verse of the Quran or through a tradition of the Prophet (S).
They never felt any need to turn to ijtihad
bi al‑ra'y or to resort to conjectural methods.
The only time the Shi'ah met with
any difficulty in this regard with the beginning of the Minor Occultation of
the Twelfth Imam (A), a period of 69 years
from 260/874 to 328/940. During this period the Shi'ah could obtain replies to
their queries through the deputies (nuwwab) of the hidden Imam (A) who served as
intermediaries. These deputies, one after another, were four: Abu Amr Uthman
ibn Said, Abu Ja'far Muhammad ibn Uthman (d. 304 or 5/916 or 7), Abu al-Qasim
Husayn ibn Ruh al‑Nawbakhti (d. 326/938), and Abu al‑Hasan Ali ibn
Muhammad al‑Samari (d. 329/941). With the end of the Minor Occultation and the beginning of the
Major Occultation in the year 329/941, in the absence of access to the Imam (A)
or his deputies, the Shi'ah were confronted with greater difficulty in regard
to obtaining ahkam for new issues,
which increased with the passage of time and the growing distance from
the era of nass, together with the growing variety of the emergent issues and
problems created by new conditions of life. Moreover, with the passage of time,
increasing number of doubts took the place of the previous certainty about the
meaning and import of the texts which served as the bases of legal deductions.
It was at this time that the Shi'ah began to search for ways to solve this
problem by deducing the ahkam for new
issues from the available legal sources.
This new path was that of "ijtihad " whose pioneer was
the treat mujtahid and creative
jurisprudent al‑Hasan ibn Abi Aqil al Umani. After him, we can name al‑Shaykh
al-Tusi, the great scholar and highly original mujtahid who employed the
foundations built by Ibn Abi Aqil for extensive deduction of ahkam of the Shari'ah. In this way the
difficulties living in the way of Shi'i jurisprudence were removed and it
overcame its hurdles.
The Difference between Shi'i and
Sunni Ijtihad
Ijtihad' is a familiar term both in Shii and Sunni fiqh, but its
meaning and characteristics are different in the contexts of the two. Whereas ijtihad in the Shi'i sense means
deduction of ahkam from the sources
and through the principles of the Shari'ah, the same term in Sunni fiqh means
deduction of ahkam through such means
as ray, qiyas, istihsan, masalih
mursalah, etc. Therefore, it has been said that Shi'i ijtihad does not involve legislation (tashr'i') of new laws as
Divine commands regarding emergent issues and events; it confines itself to
applying the unchanging general principles to emergent, changing particulars (tafri).The Shi'ah do not
look upon ijtihad as an independent
source of ahkam but as the meant of
their identification through a study of the sources of the Shari'ah. The Ahl al‑Sunnah,
on the contrary, consider ijtihad as
an independent source of legislation.
Ijtihad during the Era of the
Imams (A)
Though, it would appear that the
Shi'ah had no need of ijtihad during
the era of accessibility to the Infallible Imams (A), the fact is that some
Shi'i jurists did confront the need to perform ijtihad occasionally under some special circumstances, and the
path of deducing secondary ahkam from the basic sources was
open to them. The evidence of it is as follows:
1. There are traditions in which
mention is made of certain common elements pertaining to the general principles
of legal deduction. In these traditions, the Imams ‑‑ particularly‑
al‑'Imam al‑Sadiq (A) are reported to have been questioned about
such principles (usul) and roles (qawa'id), and they gave replies to
suck questions. These traditions by themselves indicate that issues related to ijtihad were relevant for the Shi'ah
during that period. The Imams (A) propounded such usul as that of Bara'ah, Ihtiyat, Istishab, and Takhyir, and such aqaid as that of taharah,
yad, ibadah, hilliyah, sihhah, tajawuz, faragh, la darar, la haraj, etc. These usul and qawaid provide effective assistance‑ to the
faqih in his effort to deduce the hukm of
the Shari'ah about any contingent issue.
Historical accounts reveal that
whenever the companions of the Imams (A) came across the texts of their ahadith
‑ which differed from one another in respect to 'amm and khass, mutlaq and
muqayyad, mujmal and mubin, zahir
and azhar, zahir and nass ‑
they would try, to reconcile them according to the rules of objective
reconciliation (jam mawdu'i) so
far as it was possible (such as between amm and khass, mutlaq and
muqayyad, mujmal and mubin). But if objective reconciliation was not possible (such as between
zahir and azhar, zahir and nass) they would
reconcile the tradition in accordance with the rule of jam hukmi and
remove their apparent conflict. When none of these two methods of
reconciliation worked (such as when there were totally divergent narrations
regarding a certain issue), the narrators would ask the Imams (A) to suggest
some criterion for distinguishing between reliable and unreliable traditions.
In this relation numerous traditions have been reported from the Imams (A)
which are termed in ilm al 'usul as akhbar
ilajiyyah (remedial traditions). In Usul al-Kafi(vol. I), Awali al‑la'ali,
and other works, there are chapters related to this topic and here we shall
cite one tradition as an example.
In Awali al‑la'ali
(vol. IV, p. 133) a tradition is recorded from Zurarah ibn A'yan:
Zurarah says: "I said to Abu
Ja'far, 'May I be your ransom, if two conflicting traditions are narrated from
you which one of them are we to accept?' The Imam (A) said, Take the one which
is well‑known among your companions (i.e. the Shi'is) and leave the one
which is unfamiliar: I said, What should we do if both of the traditions are
equally well‑known?' The Imam (A) replied, Take the one which seems more
balanced (a'dal)and more reliable (awthaq)to you.' I said, What if both of them
are equally balanced, acceptable and reliable?' The Imam (A) said, See which
of them is in accordance with the standpoint of the Ammah (i.e. non‑Shii
Muslims); leave it, and take the opposite of what the Amman hold, for the
truth lies in that which contradicts them.' I said, Sometimes we come across
two traditions both of which are in agreement with the Amman or both of them
contradict with their standpoint; what are we to do in such cases?' The Imam‑(A)
replied, Select the tradition which is nearer to caution and leave the other
one.' I said, What is our duty if both the traditions are in accordance with
caution or if both of them are opposed to it?' The Imam (A) replied, In such a
case, take anyone of the two and leave the other."'
The traditions which deal with
the resolution of conflict between traditions are great many and there is no
need to cite them here. The aim of quoting the above tradition was to show that
the principles of jurisprudence were often discussed during the era of the
Imams (A) and that these principles were generally employed for the practice of
ijtihad. On this basis, the practice
of ijtihad was not limited to the
period of inaccessibility to the Imams (A).
2. The presence of books dealing
with some issues of ilm al‑'usul among the writings of the
contemporaries of the Imams (A) is indicative of the fact that the practice of ijtihad was current and the principles
of jurisprudence were relevant during the era of accessibility. We shall
discuss this matter in detail while studying the various periods in the history
of ijtihad; here we shall cite few
instances of it for the sake of example:
(a) Hisham ibn al‑Hakam, a
pupil of al‑'Imam al‑Sadiq (A), compiled a treatise on word usage (alfad ).
(b) Yunus ibn Abd al‑Rahman,
a pupil of al‑'Imam al‑Rida (A) , wrote a short treatise on usul al‑fiqh.
(c) Al‑Fadl ibn Shadhan al‑'Azdi
al‑Nishaburi, a pupil of al‑'Imam al‑Hadi (A), was the author
of a number of fatawa issued on the
basis of jurisprudential principles. For instance, he gave a fatwa upholding the validity of prayers
offered in an usurped place, in accordance with his belief in the permissibility
of the concurrence of amr and nahy. Apparently he was the first to
believe in the permissibility of the concurrence of amr and nahy in matters
of primary significance.
3. During the era of
accessibility to the Imams (A), the Shiis who lived in distant lands, such as
Khurasan and Ray, could not easily contact the Imam (A) and question him about
the problems they came across. Although historical accounts show that the
Shiis sent their queries to the Imams (A) through travellers and pilgrims, who
brought them the Imam's answers on returning, it should be noted that this
method was not followed in respect to all the problems encountered. Secondly,
the replies in such cases arrived after the passage of considerable time
during which we cannot say that they remained without any obligation to
fulfill. Thirdly, the travellers and the messengers sent were not always
successful in getting access to the Imams (A), because most of the time the
Imams (A) were either under surveillance or in the prisons of tyrannical
caliphs, so that the Shiis could not contact their Imam. For instance, al‑'Imam
al‑Sadiq (A) was under such strict and oppressive surveillance of the
Abbasid caliph al‑Mansur that no one could easily approach the Imam (A).
The Shi'‑is had to resort to various kinds of tactics to approach the
Imam's house in the garb of peddlers or tradesmen to ask questions while
observing intense caution.
After al‑'Imam al‑Sadiq
(A), the next Imam, Musa ibn Ja'far (A), spent long years in the prisons of
Basrah and Baghdad until his martyrdom. During such periods, eminent Shi'i
fuqaha', such as Zurarah, Muhammad ibn Muslim, al‑Fadl ibn Shadhan,
Safwan ibn Yahya and others fulfilled the legal needs of the Shiis through
their own ijtihad.
4. There are traditions which
indicate that the Imams' companions and pupils were required to apply the
general juristic principles to particular instances. The following tradition
of Safinat al‑Bihar(vol. I, p.22) is an
example:
Al‑'Imam al‑Sadiq (A)
said: "Our duty is to teach you the principles and your duty is to
ramify."
Ayan al‑Shiah records the following tradition of al‑'Imam
al‑Rida (A):
From the book of Ahmad ibn
Muhammad ibn Muhammad ibn Abi Nasr al-Bizanti from al‑Rida (A):
"Our duty is to teach the principles and yours to ramify."
5. Another evidence of the
existence of ijtihad during the era
of accessibility to the Imam are the fatwas
issued by the legists among the Imams' contemporaries, and the Imams'
approval of their verdicts. The following tradition narrated by Mu'adh ibn
Muslim is recorded in Wasa'il al‑Shi'ah
(vol. 18, 11th of the chapters on
sifat al‑qadi, hadith 37):
Mu'idh ibn Muslim said: "Al‑'Imam
al‑Sadiq (A) said to me, I have ‑been told that you sit in the
mosque and give fatwa to the people'. I said, Yes, I am doing it.' Then
I said, Before I leave you I have to ask you a question: (My practice is that)
When I sit in the mosque (giving fatwas) a man comes and asks me a certain
question. If I know that he is one of your opponents and does not act according
to your views, I narrate to him a fatwa which is acceptable in his legal
school. If I know that he is one of your followers, I give a fatwa in
accordance with the Shi'i school. But if I cannot find out to which group he
belongs I explain to him various fatwas putting in your views amongst them.'
The Imam (A) replied, Carry on in the same fashion, for such is also my
method."'
6. Some traditions show that the
Imams (A) ordered the outstanding among their companions to give fatwas to the
people. In Usd al-ghabah (vol. 4, p.197) it is reported that Imam Ali
(A), while appointing his cousin Qutham ibn al‑'Abbas as governor of
Makkah, said to him:
Give fatwa to the initiated and teach the ignorant.
Al‑'Imam al‑Sadiq (A)
is reported to have said to Aban ibn Taghlib (Jami' al‑ruwat, vol.
I, p.9):
Sit in the Mosque of Madinah and
give fatwas to the people, for I love
the like of you to be seen amongst my Shi'ah.
7. Some traditions indicate that
the Imams (A) referred some of their followers to some of their outstanding
pupils in matters relating to hadith and fatwa.
'Abd al‑'Aziz ibn Muhtadi
said: "I asked Aba al‑Hasan al‑Rida (A), 'I am unable to meet
you every time, so from whom should I take my religious instruction?" 'Take if
from Yunus ibn 'Abd al‑Rahman,' said the Imam (A)." (Wasa'il al‑Shi'ah, vol. 18,eleventh of the chapters on sifatal‑qadi,
hadith 34)
Shu'ayb says: "I said to al‑'Imam
al‑Sadiq (A), Often we have to ask about something; whom should we ask?
'The Imam said, Ask al‑'Asadi (Abu Basir)."' (Ibid.)
'Ali ibn Musayyab al‑Hamadani says, "I said to al‑Rida
(A), 'I have to come a long distance and I cannot reach you every time
(when I have to ask you something). From whom should I take the teachings of my
faith?' The Iman (A) said, From Zakariyya ibn Adam; he is my trustee in regard
to religious and secular matters."' 'Ali ibn Musayyab adds, "On
returning I went to Zakariyya ibn Adam and asked him whatever I needed to
ask." (Usul al‑Kafi, vol:
1, p.67 )
Al‑'Imam al‑Sadiq (A)
said: "The two (Shi'i disputants) should look for one who narrates our
traditions and has in view our halal and
haram and who as well understands our
ahkam. Then (having found such a
person) they should accept him as a judge."(Ibid.)
Al‑'Imam al‑'Askari
(A) said:..."As to the faqih who preserves the integrity of his self,
defends his faith, opposes his lust and obeys the command of his Master (mawla), then it is for the laymen ('awamm)to imitate him."(al‑Tabarsi,
al‑ Ihtijaj)
8. The traditions quoted above
expressly indicate the permissibility of giving fatwa in accordance with the
principles of Shi'i jurisprudence. There are other traditions which, though
they do not expressly state such a sanction, are relevant in that we can infer
such a permissibility from them.
Al‑'Imam al‑Baqir (A)
said: "Anyone who gives fatwa without
knowledge or guidance is cursed by the angels of Divine wrath and mercy. The
sins of those who act upon his fatwas also
lie upon him." (Wasa'il al‑Shi'ah,
vol. 18, fourth of the chapters of sifat
al‑qadi, a sahih tradition
narrated on the authority of Abu 'Ubaydah)
Al 'Imam al‑Sadiq (A) said:
"Anyone who acts upon qiyas destroys
himself and others who act upon his verdict. Whoever gives fatwa without knowledge and without knowing nasikh and mansukh or muhkam and mutashabih, brings perdition upon himself and others." (Usul al‑Kafi, vol. 1, bab al‑nahy
'an al‑qawl bi ghayr al‑ilm, hadith 9)
The Prophet (S) said:
"Whoever gives fatwa without
knowledge or learning, his abode shall be hellfire." (Tuhaf al‑'uqul, the riwayah
of al‑Hasan ibn 'Ali ibn Shu'bah)
9. In regard to the books of
certain Shi'i groups (such as Banu Faddall and individuals (such as al‑Shalamghani),
the Imams (A) are reported to have said: Take their narrations and leave their
conclusions.' It can be inferred from this tradition that ijtihad was practised by the Shi'is of that era. Banu Faddal and
al-Shalamghani had diverted from the right path, and, therefore, the Imams (A)
forbade the Shiis from acting upon their verdicts, judgements and opinions.
Conclusion
From the nine reasons given above
it can be concluded that the practice of ijtihad,
in the sense of derivation of ahkam from
Shar'i sources, existed during the era of the eleven Imams (S).? The companions
of the Imams (A) derived secondary ahkam from
the legal sources, for issues for which there existed no nass either in the Book or in the Sunnah of the Prophet (S) or in riwdydt of the Ma'sumun (A), and this practice enjoyed the approval of the Imams
(A).
Ijtihad, a Perennial Spring
The essential sources of Islamic
law are the Quran, the Prophet's Sunnah, and the traditions of the Infallible
Imams (A), which are the most vital source of man's spiritual life. This is
because the life and continuity of human societies depends on the existence of
proper laws and regulations. These fundamental sources of law are like precious
deposits in which the higher, transcendental teachings are kept in the form of
general, universal ‑ principles. In order to extract this vital material
from the core of general and universal principles and to use it for the
fulfilment of multifarious needs of man's spiritual and corporeal existence,
there is the need of some instrument and means. Such an instrument is provided
by ijtihad.
Ijtihad, on the one hand, gives vigour and viability to legal
thought and, on the other, does not allow the ahkam to remain in the outdated moulds of obsolete expressions and
terms, by expounding them in the language of every age and in accordance with
its needs.
Although the Divine laws are
fixed and unchangeable, the mode of their expression and exposition is subject
to variation. A part of the function of ijtihad
is to recognize the consequences arising from this fact. Hence it has been
said that ijtihad is an agent of
renovation in fiqh, and that it is a force that operates in history by
developing the scope of fiqh with the expansion of its applications. At the
same time, ijtihad safeguards the
stability of legislation through time. Since the Sacred Lawgiver knew that
various aspects of human life are subject to change its multifarious needs are
open to variation, He recognized the role role of ijtihdd as a
force which should emerge with the emergence of fiqh and remain in its service
throughout the course of history in order to enable fiqh to fulfil the human
need for law. The ijtihad which the
lawgiver has sanctioned and which is to be employed in the service of fiqh,
represents a specific meaning of the term ijtihad'.
In this particular sense it embodies one of the most outstanding
characteristics of the spirit of Islam as reflected in Islamic legal studies,
and it is in this sense that the Shiah have adopted the term.
If the practice of ijtihad is carried on in a correct
manner, Islamic fiqh cannot remain static or face any kind of stagnation, nor
will there appear any kind of deficiency or vacuum in any of its various
branch.
The innate dynamism of Islamic
fiqh became apparent when the great Shii mujtahid
al‑Hasan ibn Abi Aqil al‑Umani, a contemporary of al‑Kulayni,
gave a scientific structure to fiqh. The practical impact of his work became
evident when the great Shii legist Shaykh al‑Ta'ifah Muhammad ibn al‑Hasan
al Tusi employed the groundwork prepared by him for deriving ahkam from Shar'i sources for new issues
and problems. Thus it was by these two great minds that fiqh was set upon a
course upon which it progressed with time and developed with historical change.
The Source of the Inadequacies
That which is sometimes referred
to as the inadequacy of fiqh is in fact a result of inadequate research effort
undertaken in some of the branches of Islamic legal studies. In other words,
the main cause of these inadequacies is the failure to study the general and
particular elements relating to some branches of fiqh. The reason for this
neglect was the absence of any practical background during the past ages.
Accordingly, these inadequacies
do not relate to the essence of Islamic law as such. It is we who have not
worked hard enough to explore its hidden treasures. Undoubtedly, had we
explored them, there would not have remained any unanswered question in this
domain. On this account, the inadequacy pertains to our performance, not to
Islamic law.
For instance, some issues of fiqh
either totally lacked practical relevance in the past before the establishment
of the Islamic Republic, or their relevance was very limited. This was true of
matters relating to land, limits of private ownership, anfal, jihad, penal laws, judiciary, qisas,
tazirat, etc., or issues pertaining to civil, economic and social
legislation. As a result of the past irrelevance of these issues, due to the
absence of any background necessary for implementation, sufficient work was not
done on these topics and whenever some work was done it was sketchy and
perfunctory.
On the other hand, other kinds of
legal issues, such as matters pertaining to wudu ; ghusl, tayammum, salat, sawm and so on, were studied in extremely
meticulous detail due to the existence of a practical background, and now we
don't face any kind of inadequacy with regard to the problems pertaining to
these topics.
Today, with Divine succour, the
background required for the implementation of all the Divine ahkam in society has emerged with the
victory of the Islamic Revolution and the realization of the sovereignty of
the Islamic Republic. Now the theological centres should continue their
endeavour by giving more attention to those branches of fiqh that were
neglected in the past. This author believes that should a one‑third of
the research effort put formerly into such topics as taharah (ritual purification) and salat be devoted to other branches of fiqh, all the inadequacies
would disappear and we would obtain clear and unambiguous ahkam in all the spheres.
The Qualifications Required for
Ijitihad
There are certain requirements
which must be met in order to exercise ijtihad
in economic, political, social, cultural, ethical and legal spheres. These
are as follows:
1. The mujtahid should have sufficient knowledge and expertise in the
field of ijtihad and must be
thoroughly familiar with the statements of the Prophet (a)and the Imams (A).
Otherwise he cannot be called a mujtahid or
a faqih:
One is not a faqih unless he
understands the meaning of our statements.
In a tradition recorded in Misbah al‑Shariah (p. 355, bab 63), al‑'Imam al‑Sadiq (A)
is reported to have said:
The mufti (one who gives fatwa)
stands in need of knowledge of the meanings of the Quran, understanding of the
real meaning of ahadith and the inward meaning of signs and indications, and
familiarity with matters relating to etiquette and conduct. He should have
thorough knowledge of the points of consensus and disagreement and be well‑informed
about the essentials of what they have agreed or disagreed about. Then he
should possess the capacity to make a proper choice. Then he needs to be
righteous in his actions, wise and pious. After possessing all these qualities,
he may give fatwa if he has the capacity to do so.
Fiqh is like an ocean which does
not yield its pearls and treasures to those divers who lack discrimination,
knowledge, experience and expertise. Those who try to fathom it without
possessing these qualities are drowned and destroyed.
2. The exercise of ijtihad should be in accordance with the
criteria and principles of ilm al‑'usul; otherwise any claims to ijtihad cannot be recognized.
3.Perpetual research
about the factors that relate to the process of ramification (tafr'i)of the principles and their application to particular cases. These
elements are as follows:
(a) The usul (fundamental
principles) of ahkam, in whose light
the ahkam for new furu are obtained.
(b) The general rules of ahkam, which are applicable to
individual instances in external reality.
4. Perpetual research about the
elements relevant to derivation of ahkam,
such as:
(a) The common (mushtarak)usuli elments of
derivation.
(b) The specific elements
(traditions) related to derivation that do not contain the causes (ilal)behind the ahkam.
(c) The specific elements that do
contain the cause underlying a hukm and
which can be used for extending it to other cases. This extension of a law to
similar cases is called qiya mansus al‑illah,
extension of the jurisdiction of a law in cases where the cause underlying it
has been stated by the Lawgiver), However, the qiyas based on analogy
and similarity, which is considered valid by Ahl al‑Sunnah with the
exception of Hanbalis and Zahiris, is
rejected by the Shi'ah.
(d) Extraction of definite
criteria of ahkam from tradition
through reason, as a result of which a hukm
can be extended beyond the application mentioned in hadith.
In the terminology of fiqh this
is called tanqih al‑manat al‑qat'i
(isolation of the definite cause) and is considered valid by the Shi'ah.
That which is considered invalid by the Shi'ah is deducing of the presumed
cause of a hukm by rational means,
which is termed tanqih ul manat al‑zanni
(isolation of the presumed cause).
(e) The isolation (tanqih)of general subjects (mawdu'ay)through the triple means of the Shar
(canon), 'aql (reason) and urf (custom).
This tanqih is directed towards two things: (1) content (muhtawa), (2) the legal application of the subject isolated to other
general heads (anawin kulliyah)‑‑ such as the application of the subject of
cooperation (taaawun)to the matter of ithm and 'udwan as a
primary consideration and its secondary legal application to the use of
tobacco (as during the Tobacco Movement), for instance. This kind of
application is one of the special functions of the mujtahid (that is why we said isolation of general subjects', for
isolation of particular subjects is not the mujtahid's
duty).
(f) The primary laws (al‑'ahkam al‑'awwaliyyah).
(g) The secondary laws (al‑'ahkam al‑thanawiyyah).
(h) The provision of legislative
assistance to the ruler or al‑wali
al-faqih within the framework of the sources.
If ijtihad is exercised in various branches of law in the light. of
these conditions, no law pertaining to any subject will remain unidentified
nor there will remain any kind of legal inadequacy. Now it is up to the
committed mujtahids and scholars to exercise
ijtihad in these fields of law,
wherein the way has been prepared for implementation through the establishment
of the Islamic Republic, and thus satisfy the needs of Muslim communities.
Some persons, on account of their
ignorance, think that in order to meet the diverse needs of changed conditions
of life we should either turn to the use of conjectural instruments (such as qiyas, istihsan and masalih mursalah)or to
the legal systems of other countries of the east and the west. The above
discussion shows the baselessness of such a suggestion.
Unfortunately, there is a group
which on its first encounter with an inadequacy in some branch of law goes to
the extreme and proposes such methods of legal deduction' as are neither
sanctioned by the Shari'ah nor agree with the rational criteria, and compromise
the reputation of Islam in the eyes of non‑Muslims.
The Closure of the Gates of
Ijtihad, a Conspiracy
The issue of closing the gates of
ijtihad emerged during the reign of
the Abbasids, and undoubtedly the enemies of Islam played an effective part in
raising it. This was because the giving up of ijtihad meant blocking the source of dynamism and perpetual
vitality of Islam and its law, which in turn implied the expulsion of Islam
from the arena of temporal affairs and, following it, its elimination from the
intellectual and spiritual spheres. Evidently, this was what the enemies of
Islam aimed at.
The cause of the present
inadequacies of Sunni fiqh in most of the branches of law, as well as the
issuance of incorrect fatwas, is the
Sunni belief in the end of ijtihad. However,
the committed and aware scholars among the Ahl al‑Sunnah should endeavour
to reopen the gates of ijtihadand
bring Islam out of its current state of isolation and decadence, so that a
spirit of vitality and dynamism is infused into Muslim communities. This is
because so long as the taqlid of the
four Imams is considered binding, and new research, study and expression of
views is regarded as impermissible, there appears to be little hope of any
effective change.
Difference of Viewpoints, a Bounty
There is no doubt that
disagreement in the sense of quarrel and hostility is an undesirable thing
which has been prohibited by the sacred Shariah. But disagreement in the sense
of difference of opinion is, in many cases, good and valuable, because the
conflict of ideas leads to greater research and deeper investigation. Some have
interpreted the following statement of the Prophet (S) in this sense:
The difference of my Ummah is a
mercy. [1]
In any case, ijtihad and undertaking of investigation for identification of
Divine laws is considered a desirable thing by the Lawgiver. The tradition:
The mujtahid who succeeds (in identifying the true law) gets two
rewards and the one who errs gets one,
aims to encourage ijtihad as it leads to the development
of thought and taps the resources of the intellect. This admirable practice has
been in vogue in Shii academies for ages, and throughout the seven epochs of
the history of ijtihad, mujtahidun
welcomed the expression of diverse viewpoints regarding various issues.
This is the reason why Shi'i fiqh has achieved its remarkable development in
various fields and preserved the capacity to answer the problems and satisfy
the diverse wants of man in every age. Farid alWajdi, writing in Da'irat al‑maarif, III, 197, under j‑h‑d, says:
The Islamic Shari'ah contains
sufficient amount of primary principles suitable for legal deduction and which
can meet the emergent wants and solve the problems of life. Therefore, in every
age there should be mujtahids capable
of making legal deductions. From the beginning of the Islamic era to the
third/ninth century there did exit mujtahids
who deduced the hukm for every
event and eventuality through ijtihad from
the primary principles of the Shari'ah. They were not afraid of divergence of
viewpoints, which to them was not only something ordinary and natural but a
mercy of God, because diversity is one of the laws of nature and there is no
community without divergence in some matters of religion, with the followers on
every side defending their own viewpoint. But when the Muslims became rigid
with regard to the understanding of the secrets and subtleties of their law,
inadequacy and neglect became their lot. As a result they did not permit themselves
to think about new realities. They would say that it was on account of the
closure of the gates of ijtihad. But
the fact is that according to the express texts of the Book and the Sunnah, the
gates of ijtihad are open for all
until the Judgement's Day.
In brief, social stagnation and
intellectual decadence cast their shadow on Islamic communities when the road
of ijtihad and thought was blocked
and Muslims did not permit themselves to reflect. about new realities and
problems. As a consequence, their legal studies remained at the same point that
they had reached twelve centuries ago.
Traditional Fiqh or Progressive
Fiqh?
Nowadays some persons want to
draw a distinction between traditional fiqh' and progressive fiqh'. However,
if we set aside the specific views and objectives of some groups and see things
as they really are, we will see that there can be no distinction between
traditional fiqh' and progressive fiqh' in Shi'i context.
This is so because traditional
fiqh, when dealt. with on the basis of ijtihad
with all its conditions and criteria, has the capacity to solve all
emergent problems and to march in step with all the manifestations of progress.
However, if by 'progressive fiqh' be meant recognition of the right to violate
Shar'i norms and requirements of ijtihad and
the nonspecialist's right to interfere in this discipline, and the exercise of
ijtihad through the use of qiyas,
istihsan and masalih mursalah, it cannot be called Islamic
firth. for say nothing of its being progressive'. This is so because 'fiqh'
means the commands revealed by God to His Apostle, not laws determined by human
thought and speculation. So also if traditional fiqh is taken to mean rigid
adherence to the literal meanings of the texts (zawahir al‑nusus)
and the fatwas of predecessors and indifference to contemporary realities, such
a static ijtihad cannot answer the diverse problems of life in every
age and keep pace with changing times.
Ijtihad, Legislation and Tajdid
Ijtihad from the Shi‑i view point is not a kind of
legislation or something based solely on human thought, subjective judgement or
provincial social, economic, cultural or political perceptions. Ijtihad is also not a kind of taqlid in the sense of a passive acceptance of ahkam, in whose
determination the mujtahid has no
role. Ijtihad in Shi'i view means
intellectual effort based on the recognition of certain canonical sources and
juristic principles and aimed at understanding and discovering the laws of
God. Although a dynamic force in fiqh, ijtihad
does not diminish the sanctity and stability of the legal content of the
Shari'ah. Rather, throughout the seven epochs of its development ijtihad has always guarded the principal
content of the ahkam while at the
same time extending its scope and application to the most. distant horizons of
human life on the basis of its general laws and principles. Ijtihad, it may be said, is making
intelligent use of God's general grace whereby He has placed the laws of the
Shari'ah in the bounteous domain of the intellect.
The first Shii faqih to open the
gates of ijtihad as a comprehensive
scientific discipline was Abu Muhammad al‑Hasan ibn 'Ali al‑'Umiini,
known as Ibn Abi Aqil. He wrote a book on this subject entitled al-ustamsik bi habl Al al‑Rasul which
is mentioned by al‑Najashi as being one of the most famous and well‑known
Shii works. In this book Ibn Abi Aqil examined all the various aspects of the
principles of ahkam and the
rules of ijtihad as well as the
common elements related to the process of legal deduction. Although he wrote
many books, in almost all the fields of Islamic sciences, his fame rests mostly
on his studies of ijtihad. He wrote
his above‑mentioned book during the era of the Minor Occultation of the
Twelfth Imam (A). He is considered the pioneer in the field because no one
before him had written such a work that treated Shi'i fiqh in such a
comprehensive manner with an approach based on ijtihad.
We do not know of any legist to
have undertaken such a task before Ibn Abi Aqil. Before him Shii fiqh did not
have the ability of entering the phase of tafri
(i.e. the application of usul for deriving answers to new furu or
secondary issues) on account of the absence of an elaborate and scientific
method, without which ijtihad as a
technique was not possible. This great legist filled this vacuum through his
indefatigable efforts.
After Ibn Abi Aqil, the next
person to set forth fiqh in a scientific perspective based on ijtihad
was Abu 'Ali Muhmmad ibn Ahmad al. Katib al‑'Iskafi (d.381=991), known as
Ibn Junayd. In his endeavour to establish legal studies on the principles and
rules of ijtihad, he wrote a number
of books on the subject. Two of them are: Tahdhib
al‑Shiah li ahkam al‑Shariah and al‑Mukhtasar al‑Ahmadi li al‑fiqh al‑Muhammadi.
Abu Ja'far ibn Ma'd al‑Musawi, who claims to have seen Ibn Junayd's
work, says that he had not seen a better‑written book among Shi'i works.
He adds that al‑Mukhtasasr al‑'Ahmadi was popular as a textbook during the days
of the late 'Allamah.
A Clarification
Here it is essential to clarify
two points. It appears from the statements of some scholars that Ibn Abi Aqil
was the first to open the gate of practical ijtihadand to lay the foundations of tafri.
This is not correct, because he was the founder of ijtihad as theory and not as practice.
Secondly, some scholars are of
the opinion that Ibn Junayd was the pioneer of the theory and practice of ijtihad and Ibn Abi Aqil continued his
work. This is opposite of what we believe to be the case, because Ibn Abi Aqil
was a contemporary of al‑Kulayni (d.328 or 329/ 940 or 941) and lived
during the era of the Minor Occultation. Although we don't know the exact date
of Ibn Abi Aqil's death, some indications lead us to believe that‑he
died before or about the same time as al‑Kulayni. Ibn Junayd al‑'Isksfi
died in the year 381/991, about 52 (lunar) years after Ibn Abi Aqil's death.
The Practice of Ijtihad
The first legist to open the gate
of practical ijtihad was the great legist and the unique scholar of his
era Shaykh al‑Ta'ifah Muhammad ibn al‑Hasan al‑Tusi (385‑460/995‑1068),
who applied the general principles of jurisprudence to new and emergent furu'. We don't know of any Shi'i mujtahid before him to have practically
applied ijtihad in his manner to
answer the multiplying needs of the Shii world of the time. With his work he
extended the scope of Islamic fiqh in a remarkable manner, for he fully
utilized the theoretical foundations which had been laid by his predecessors in
the field, such as Ibn Abi Aqil and Ibn Junayd.
Al‑Tusi commenced this
project in his precious work al‑Mabsut.
In the preface to this work, while explaining his motives for writing it,
he says. "Our opponents believe that the Imamiyyah do not have the
capacity to refer the furu to usul,
and they confine themselves to the texts (nusus)related by their traditionists".
Such a view stimulated the Shaykh al‑Ta'ifah to rise to prove the Shi'i
prowess in the field of ijtihad and
to fill the existing vacuum. Juristic thought and the theory of ijtihad made great advancement during
his era, breathing a new life into the body of fiqh. Al‑Mabsut emancipated the studies of fiqh from their
restricted confines ‑ wherein their sole reliance was on the direct,
literal interpretation of traditions ‑ and brought them into a wide and
open field. Al‑Tusi's al‑Mabsut
represents the point of departure in the expansion of Shi'i fiqh and usul
which was made possible by the preliminary work done by Ibn Abi Aqil and Ibn
Junayd.
The Development of the Theory of
Ijtihad
Shi'i ijtihad at the outset of the Minor Occultation did not come across
the kind of difficulty faced during later eras with regard to the deduction of ahkam regarding new issues and problems.
This was because, firstly, the Muslims of that time did not face the problems
which emerged later. Secondly, due to the proximity with the era of nass, the availability of the Four
Hundred Usul (which contained the records of the statements of al‑'Imam
al‑Baqir (A), al‑'Imam al‑Sadiq (A) and the other Imams made,
made by their pupils), and the understanding of the actual context in which
those statements were made, the need for ijtihad
was not felt as acutely as during the later times. Ijtihad and legal deduction was a simpler affair, free of the later
technical complexities, because the legists of that period did not face any
great difficulty with regard to the identification of trustworthy traditions,
the literal and legal meanings and significance of words used in traditions,
and the specific features relating to them. However, the passage of time and
the emergence of new issues with the advancement of civilization, on the one
hand, and the obliteration of signs and indications which were instrumental in
understanding the import and purpose of traditions as well as the complications
arising from changes in general and legal usage of words, on the other ‑
all these together made the task of deduction more difficult for the later mujtahids and jurists. To these must be
added the difficulty arising from the forgeries and fabrications made by
interested persons, which had affected the trustworthiness of many traditions.
Due to these causes, the practice
of ijtihad for the deduction and
discovery of the real ahkam was not
so simple a matter as before, and it was necessary to study various sciences
for the purposes of (1) determining the meanings of words, (2) understanding
of the literal meanings of the Book and the Sunnah, (3) determining the
reliability of narrators by studying their biographies for evaluating the asnad of traditions as sahih, da'if, muwaththaq, mursal etc.,
and (4) determining the traditional and rational criteria for giving
precedence to a tradition and the rules for reconciling conflicting traditions
(on the basis of amm and khass, mutlaq and muqayyad, mujmal and mubin,
zahir and azhar, zahir and nass).
The causes behind the conflict
between traditions of legal significance were the following:
1. The loss of certain
indications accompanying the texts of hadith, caused at times due to the
dismemberment (taqti)of traditions and asnad, and at times due to the negligence of narrators.
2. The narration of traditions in
reworded form by the narrator, in words different from that of the Imam.
3. The making of statements contrary
to the real Shii position on account of taqiyyah,
which the Shiis were forced to practise as a safety measure to protect the
Shari'ah and their lives, property and honour.
4. The graded approach of the
Imams in the exposition and communication of the ahkam to the people, for the sake of the consideration of specific
conditions of a certain inquirer or certain special circumstances.
5. The treacherous interference
of some anti‑Islamic elements and mercenaries, against whose fabrications
the Imams (A) warned their Shi'ah.
Accordingly, anyone who engages
in the deduction of Divine ahkam from
the traditions should have the capacity to reconcile various kinds of
contradictions arising from the above‑mentioned causes.
Notes:
[1]. This interpretation of the tradition
is correct if ikhtilaf' is taken to
mean difference of opinion'. However, in some traditions a different meaning
is given to the word.
One of these traditions is the
following from al‑Shaykh al‑Saduq's Ma'ani al‑'akhbar, Qumm, 1361 H.Sh., p.157:
...Abd al ‑Mu'min al‑'Ansari
says: "I said to Abu 'Abd Allah: The people narrate the Prophet (S) to
have said: "The ikhtilaf of my ummah
is mercy". (Is that true?)' He replied: What they say is true.' I said,
If their difference is mercy, then their consensus should be a scourge?!' He
said, it is not as you or they understand it. Indeed, what the Prophet (S)
meant is the import of this utterance of God
Almighty: "..
.But
why should not a party of every section of them go forth, to become learned in
the Din, and to warn their people when they return to them, that haply they may
beware?"(
9:122) (In this verse) God has commanded them to go forth
(yanfiru) towards the Messenger of Allah (S) and to frequent (yukhtalifu)him so that they may learn and then return to their people to
teach them. Indeed he (S) meant their departure from their places, not their
divergence in the Din of Allah, For, verily, the Din is one."
