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Thus, anyone possessing the
capacity of ijtihad should be either
a mujtahid who has derived the ahkam of the Shari'ah from its sources,
or he should be a muqallid or muhtat; otherwise, he shall not be
secure from chastisement. Anyone who is endowed with the capacity of ijtihad but has not reached the
practical stage of deriving the ahkam of
the Shari'ah may be called a mujtahid';
but as far as practice is concerned he is not different from a non‑mujtahid. In any case, ijtihad should be defined in a manner
that is free from such flaws.
A Misconception
Some people believe that the
capacity of ijtihad is similar to
some other traits (like generosity, justice, valour, etc.), which is acquired
after practice and exercise in deriving the ahkam
of the Shari'ah, in the same way as other qualities reach the stage of
actualization after repetition and practice.
They reason that, as in the case
of some qualities and traits which are not separable from action (generosity is
not separable from acts of generosity, justice is not separable from acts of
justice, valour is not separable from deeds of valour) ijtihad also is not separable from deduction of the ahkam of the Shari'ah. Accordingly,
whosoever possesses the capacity of ijtihad
has inevitably derived the ahkam of
the Shari'ah from its sources, and this necessarily makes him secure from
chastisement. Hence the above definition is correct.
This argument is not valid, for
the capacity of ijtihad is not similar
to other qualities. Other qualities cannot be actualized without many attempts
and persistent repetition, but the capacity of ijtihad can be acquired without deducing any hukm. For instance, the quality of valour is acquired by repeatedly
exposing oneself to danger and through performance of acts involving danger,
because their continuation gradually drives out fear from the heart, to the
extent that one can take part in big battles without any fear and nervousness
in his heart. Similar is the case with generosity and self‑denial:
repeated performance of the act of generosity leads man to such a point when he
can bear to be thirsty and hungry in order to feed others.
Therefore, the realization of
these qualities needs repeated performance, whereas the capacity of ijtihad does not need any such practice.
On the contrary, unless one possesses the capacity of ijtihad and the ability to derive the ahkam, he cannot perform ijtihad
and derive ahkam of the Shari'ah.
Hence it is the exercise of deriving
which is dependent upon the capacity, not the capacity on repeated derivation.
It is possible for a person to possess the capacity of deriving the ahkam without having derived even a single hukm; as the capacity of ijtihad depends upon learning certain
sciences like Arabic grammar and syntax, vocabulary, tafsir, rijal and ilm: al‑'usul,
etc., whose knowledge enables one to derive the ahkam of the Shari'ah. Therefore, the act of derivation from the
viewpoint of realization is posterior to the capacity ‑ contrary to other
qualities whose realization follows performance.
It is true that extensive
derivation and repeated employment of the capacity of ijtihad. can enhance this faculty, but this has nothing to do with
its actual realization and existence.
In short, ijtihad in the sense of faculty does not guarantee security from
Divine chastisement, or repel its potential danger from the mukallaf. It cannot be placed in the
category of taqlid and ihtiyat either, for that which is
equivalent to taqlid and ihtiyat is the knowledge of the ahkam from the Shar'i sources. Hence ijtihad should be defined in a way which
is not open to such objections.
Some other scholars have defined ijtihad in yet another way. Abd al‑Wahid
al‑Khallaf says: Ijtihad means
employment of effort and endeavour for understanding the ahkam of the Shari'ah for issues for which there is no specific
express text (in the Book and the Sunnah), by exercising ray and subjective
judgement, as well as by using other methods for deriving the laws of the
Shari'ah. [38]
Critique of the Fifth Definition
This definition is also
objectionable like other definitions, but, as we shall see in the discussion
about ijtihad bi al‑ray and
subjective judgement, in Islamic fiqh valid ijtihad
means employment of effort for deriving the ahkam of the Shari'ah for emergent and contingent issues from the
Shari sources (the Book, the Sunnah, ijma
and aql), not the exercise of
one's subjective opinion and judgement. We shall elaborate on this matter later
on and there we shall see that no individual ‑ even the Prophet (S) ‑
may legislate laws by exercising personal judgement; for legislation is
exclusively a Divine prerogative.
In Islamic law there is a hukm for every issue, either as a
particular or a general law. As for the issues for which no express text
exists, a mujtahid can derive laws by
applying to them the general laws of the Book or the Sunnah. Therefore, in
emergent issues a mujtahid is required
to discover an express Shar'i text, and whenever he is unable to discover such
a proof or express text, he has to secure an apparent' hukm (al‑hukm al‑zahiri) for the
mukallaf from such Practical Rules as Bara'ah, Takhyir, Istishab, etc.
According to Abu Bakr al‑Razi,
the term ijtihad has been applied to
the following three meanings: (1) Qiyas, when
the cause (illah) does not lead to
the hukm, for it may not possibly
contain the hukm (on account of its
being an incomplete and not a complete cause). As a result, the cause does not
lead to certainty about the desired hukm,
which has to be based on ijtihad and
derivation through ray. (2) Anything that gives rise to presumption without
the existence of a cause, like ijtihad regarding
time, direction of Qiblah, price of a
commodity, etc. (3) Argument based on usul for positing a hukm of the Shariah. [39]
This statement is also
objectionable; for, of the three points that which can relate to the technical
sense of ijtihad, the first one ‑
i.e., derivation of ahkam by means of
qiyas ‑ is invalid from the
Shi'i point of view. The second meaning also is not right, as giving judgments
about ordinary external details is not the duty of the mujtahid. In the third point, ijtihad
is used in a general, non‑specific sense, as it includes qiyas and other things also.
The great jurist Akhund al‑Kurasani
has defined ijtihad as employment of
one's powers for acquisition of hujjah regarding
the ahkam of the Shariah. [40]
Another scholar has defined ijtihad as effort and endeavour made in
deriving the far'i ahkam of the
Shari'ah, or securing legal validity through (the study of) its elaborate adillah. If the criterion of the
validity of an act is considered acquisition of hujjah, the above given definition is safe from the objections
raised against the earlier definitions, as hujjah
is inclusive of: certainty; the adillah
that lead to certainty (such as reliable usul and dicta); and presumption,
in accordance with the Sunni outlook. Similarly the term hujjah covers presumption during the period of closure of doors of
certainty, in accordance with the belief of those who believe in such a
closure.
Accordingly, employment of effort
for securing legal validity in regard to the ahkam of the Shari'ah is no doubt regarded as ijtihad, whether the hujjah leads
to certainty or is based on a dalil; and
it does not make any difference whether it gives rise to presumption or not.
Accordingly, the earlier objections cannot be raised against this definition.
Objections Against the Definition
It may be objected that the above
definition is not logical or technical, for a technically and logically
correct definition should closely correspond to the thing defined, whereas the
said definition is rather loose. It states that ijtihad is to derive and determine ahkam from the sources; it does not specify that the person
performing derivation should also possess the capacity, whereas the mujtahid is one who possesses the
capacity of ijtihad. This objection
is valid, unless it is said that ijtihad depends
on the capacity and it is not possible to derive ahkam from reliable sources except through that capacity, and here
possession of the capacity is taken for granted.
Note
It is appropriate here to clarify
one thing about the capacity of ijtihad: it
is a capacity acquired through the knowledge of ten types of disciplines on
which derivation and understanding of the ahkam
of the Shari'ah depends. In this regard, the requirement of another faculty
‑ the so‑called quwwah
qudsiyyah ‑ is not essential, for the‑ijtihad which is acceptable
to all means derivation of the Shar'i ahkam
from the sources, and in the same way as a just' (adil) mujtahid can perform this task, it can also be performed by
a mujtahid who is not just'.
Two Different Conceptions of
Ijtihad
The term ijtihad as used in the writings of scholars of different Islamic
sects conveys two different meanings, each of which gives rise to different
viewpoints regarding the sources of Shar'i ahkam.
In the first conception ijtihad means
derivation of Shari hukm through
personal judgement and ray for an issue for which the mujtahid does not find any express text in the Quran or the Sunnah.
Such a meaning of ijtihad is found in
the writings of Abd al‑Wahhab al‑Khallaf and most of Sunni fuqaha'
also subscribe to this view.
Ijtihad in this sense is. considered by most of Sunni scholars as
an independent source parallel to the Quran, the Sunnah, ijma and aql,
and is acknowledged as one of the bases for determining the ahkam.
It means that in the same manner
as a mujtahid relies on sources like
the Quran, the Sunnah, aql and ijma for deriving ahkam, he can also rely on ray
and subjective opinion by taking recourse to instruments of presumption
(like qiyas, istihsan, masalih mursalah,
istislah, madhhab al‑Sahabi, fath al‑dhara'i, sadd al‑dhara'i,
etc.) for issues on which there is no express text in the Quran and the
Sunnah.
In the second conception ijtihad means deduction of the fari ahkam from the reliable sources
(the Quran, the Sunnah, ijma and aql). Ijtihad in this sense occurs in
the writings of Ahmad Mustafa al‑Zarqa', the author of al‑Madkhal al‑fiqhi al‑amm,
and Shi'i fuqaha' have subscribed to this view long since. According to
this conception, the activity of the mujtahid
involves deduction of the laws of the Shari'ah for emergent issues and new
phenomena of life by employing general principles and rules. Thereby the mujtahid refers new secondary issues to
the general principles and applies the general laws to their particular
instances in external reality, thus obtaining the ahkam governing them. According to this conception, ijtihad is not counted as an independent
source of law parallel to the Quran and the Sunnah, but merely as a means for
deriving and determining the ahkam from
the sources.
Ijtihad as an Independent Source in Sunni Fiqh
Leading Sunni jurists have chosen
the first conception of ijtihad, as
an independent source parallel to the Book of God and the Sunnah of the Prophet
(S). They have included ijtihad itself,
besides the four sources of fiqh, as the fifth one. Accordingly, they have
specified for it a separate section in their books of usul such as Usul al‑fiqh, al Mustaqfa, al‑Ahkam
and other works ‑ and have undertaken diverse discussions about it.
In accordance with this
conception, al‑Shafii considers qiyas
to be same as ijtihad in his Risalah. He writes:
What is qiyas? Is qiyas the same as ijtihad,
or are they different'? I say, qiyas and
ijtihad are two terms which
convey the same meaning like man' and human being'. [41]
In Risalah he rejects the opinions of most of Sunni fuqaha' who
believe istihsan to be one of the
sources of ijtihad, [42]for the majority of them believe ijtihad to be synonymous with ray,
qiyas, istihsan and istinbat.
Mustafa Abd al‑Razzaq is
one of them; he writes: The ray of
which we speak is the mujtahid's reliance
on his subjective opinion and judgement for obtaining a law of the Shari'ah.
This is what we mean by ijtihad and qiyas, which are synonymous with istinbat and istihsan. [43]
This statement appears to be
strange, for ijtihad, istinbat, ray,
qiyas and istihsan are terms
which are different from one another regarding their meaning. How can they be
considered synonymous and equivalent terms, and how can it be said that thesewords convey the same meaning when there is nothing common either between the
words or their meanings?
It may be said in justification
of the above‑mentioned statement that the equating of ray with ijtihad is for the reason that the
personal judgement of a mujtahid in
the event of absence of any express text of the Quran and the Sunnah is
synonymous with ijtihhd bi al‑ray and
hence this sort of istinbat has been
named ray as well. But other practices like qiyas,
istihsan, masalih mursalah, istislah, sadd al‑dhara'i, fath al‑dhara'i,
madhhab al‑Sahabi, Shariat al‑salaf, urf, etc. (which shall
be discussed in detail) each one of them is considered an instance of ijtihad, but is not equivalent to or
synonymous with ijtihad bi al-ra'y. The reason for the error in
equating ijtihad with ijtihad bi al‑ray is that the
meaning of ijtihad has been confused
with that of one of its elements.
