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Section 2
The Holy Qur'an as the
First Source of Ijtihad
The
Holy Qur'an as the First Source of Ijtihad
Jurisprudents of the various
Islamic sects have expressed different views concerning the sources of ijtihad. Before these are examined in
detail, their brief description will be in order.
1. The first view pertains to the
majority of Imamiyyah jurisprudents of the Ja'fari school. They maintain that
the Book, the Sunnah, ijma (consensus), and aql (reason) constitute the
sources of ijtihad.
2. However, some, like the
Akhbaris, who follow Mulla Muhammad Amin al‑'Astarabadi (d. 1033/1623)
accept only the Sunnah as the source for derivation of ahkam.
3. Some, like the jurisprudents
of the Hanafi school, regard the Book, the mutawatir Sunnah, statements of the
Companions, the Companions' consensus, qiyas, istihsan and urf (custom) as
the sources of ijtihad ‑ as mentioned
by Abu Zuhrah in his Ta'rikh al‑madhahib al‑ 'arbaah.
4. Some others, like the ulama'
of the Maliki school, followers of Malik ibn Anas al‑'Asbahi, believe
these sources to be the Book, the Sunnah, consensus of the jurists of Madinah,
masalih mursalah (a kind of qiyas), such statements of the Companions as are not
based on ray, and qiyas mansus al‑illah. This is according to Dr.
Subhi Mahmasani, in his book entitled Falsafat al‑tashri Al al‑'Islam.
5. Another group, like the
Shafi'i jurisprudents, followers of Muhammad ibn Idris al‑Shafi'i, regard
the Book,the Sunnah, ijma, and qiyas mustanbat al‑illah as the sources
of ijtihad. This too has been mentioned in Falsafat al‑tashri fi al‑ Islam.
6. According to some others, like
the ulama' of the Hanbali school, followers of Ahmad ibn Hanbal al‑Shaybani,
the sources of ijtihad are: the Book,
the Sunnah and the fatwas of the Sahabah when these do not contradict the Book
and the Sunnah ‑ even mursal and daif traditions.
7. Some others, like the ulama'
of the Zahiri school, followers of Dawud ibn 'All al‑Zahiri al‑Isfahani,
restrict themselves to the Book, the Sunnah, and ijma . Furthermore, they see no scope for ijma after the
era of the Caliphs. In the words of the second leader of this school,
Ibn Hazm al‑'Andalusi al‑Zahiri,
anyone who claims ijma on questions
arising after the period of the Caliphs makes a false statement.
It is notable that whatever has
been mentioned above on the subject are not the only viewpoints; there are many
others as well. For example, Ustadh Mubammad al‑Dawalibi in his book al‑Madkhal ila ilm usul al‑fiqh, describes the sources for inference of ahkam as: (1) the Book, (2) the Sunnah,
(3) ijma and (4) ijtihad. This view has been accepted by
Muhammad Rashid Rida, the renowned author of al‑Wahy al‑Muhammadi. Furthermore, according to that
which has been ascribed to Malik ibn Anas al‑'Asbahi the sources of ijtihad comprise: (1) the
Book (2) the Sunnah (3) ijma (4) qiyas, (5) istihsan (6) the principle of istislah, (7) al‑madhhab al‑Sahabi,
(8) sadd al‑dhara'i (9)
fath 'al‑dhara'i, (10) qanun al‑salaf, (11) istishab, (12) istiqra' (13) bara'ah asliyyah, (14) urf, (15) istidlal, etc.
However, we will confine
ourselves to the above views, proceeding to examine the impact of these
different views of ijtihad and legal
deduction.
It is evident that the
theoretical differences about the sources of ijtihad should lead the jurisprudents, in the process of legal
deduction vis‑a‑vis new problems and developments, to adopt
different courses resulting in divergent fatawa.
Hence we find different schools of thought in the history of jurisprudence
and ijtihad.
However, of the many schools of
thought, only five came to be officially recognized, namely, the Ja'fari, the
Hanafi, the Maliki, the Shafi'i, and the Hanbali. With the passage of time the
others have been abandoned and forgotten.
The Sources of Ijtihad:
We will now discuss and examine
the sources of ijtihad, one by
one, in order to gain a better acquaintance with the basic sources for
inferring and deducing the ahkam.
As indicated earlier in our
discussion, the very first source of ijtihad
is the Book. Accordingly, the subject of discussion in this article will be
the Qur'an, held in common accord by jurisprudents of all schools of thought in
Islam (including, besides the well‑known five, the Zahiri, Jariri,
Tamimi, Nakhi, Awza'i, Thawri, Laythi, Kalbi, and other schools now extinct)
as the primary source of reference for identifying the ahkam of the Shari'ah.
If any occasional difference
among the schools of thought is discernible concerning the Qur'an, it relates
to opinions concerning the interpretation of the verses, and other problems
like naskh (abrogation), tahr'if, the criteria of amr and nahy, amm, mutlaq, etc. However, this procedural aspect does not
affect the purpose of our present discussion. The Holy Qur'an represents the
primary source of Divine laws and, as such, the Book has precedence over the
other sources to be consulted for obtaining the ahkam of the Shari'ah. The Qur'an has been, and will remain ‑
in addition to being the comprehensive source of Divine laws ‑ the
criterion for judging traditions and ahadith. It is on this very basis that
from the time of the Holy Prophet (S) till now and for ever, the Book remains
the primary source of reference for Islamic jurisprudents. The history of
jurisprudence and ijtihad testifies
to this fact. However, when this basic source is examined from the standpoint
of ijtihad and legal deduction,
certain noteworthy issues arise. It is invariably essential to pay due
attention to such matters as fiqh al‑Qur'an (juristic study of the
Qur'an), the determination of the Qur'anic verses having a bearing on legal
deduction, the determination of the muhkamat
and the mutashabihdt, the
problem of restriction (takhsis) of
the general import (amm) of the
verses by khabar al‑wahid, the
legitimacy of interpreting the Qur'an in the light of khabar al‑wahid, etc. These are issues that simply cannot be
ignored. Their effect on the derivation of ahkam
from the Qur'an, too, cannot be overlooked.
An Overview of the Ayat al
'Ahkam:
A significant number of Qur'anic
verses constitute ayat al‑'ahkam
(legally relevant verses). These verses have been, and are, the basis for
deriving ahkam. Their number totals
approximately five hundred. These were gradually revealed on various occasions
during the years following the Prophet's Hijrah. Accordingly, the ayat al‑'ahkam are to be sought in
the Madani verses.
The ayat al‑'ahkam lay down the Islamic
laws and rules concerning social, penal and economic matters. In contrast, the
Makkan verses mostly describe and prescribe doctrinal and ethical principles.
Over the centuries, the great
Islamic jurisprudents have painstakingly carried out continuous research
concerning the ayat al‑'ahkam, and
in the course of their deductive endeavour have discovered many points of
juristic and scientific interest. Many of the results of their efforts are now
available to us.
Initial Research Concerning the Ayat al‑Ahkam:
To know when and by whom the
first investigation into the ayat al‑'ahkam
was conducted is essential for familiarity with the history and development
of ijtihad. Although there is no
consensus in this regard, it is worthwhile that we recall what some scholars
have opined in this connection.
1. Allamah Sayyid Hasan al‑Sadr,
in his esteemed work Ta'sis al. Shi'ah li
al‑ulum al‑'Islamiyyah (p. 321), writes that the first book
concerning ayat al‑ ahkam was
written by Muhammad ibn Sa'ib al‑Kalbi (d. 146/763). This view has been
endorsed by Ibn al‑Nadim in his al-Fihrist (p. 57), wherein he writes: "Al‑Kalbi's Kitab ahkam al‑Quran has been
narrated by Abbas ...."
2. According to some the first
research in this regard was conducted by Muhammad ibn Idris al‑Shafi'i
(d. 204/819), the founder of the Shafii school. Allamah Jalal al‑Din
Abd al‑Rahman al‑Suyuti (d.911/ 1505) in his Kitab al‑ awa'il accepts this, and writes: "Al‑'Imam
al-Shafi'i was the first writer on the subject of ayat al‑'ahkam."
3. According to Tabaqat al‑nuhat, some scholars
are of the view that the first to write on ahkam
al‑Qur'an was
Allamah al‑Qasim ibn Asbagh ibn Muhammad al‑Bayyati al‑Qurtubi
al‑'Andalusi (304/916).
Among the aforementioned claims,
the one in regard to the great Shi'i scholar Muhammad ibn Sa'ib al‑Kalbi
has greater validity, since his time precedes that of al‑Shafi'i and al‑Qasim
ibn Asbagh al‑Bayyati. That which has been claimed by al‑Suyuti
appears to signify his intention to mention the first Sunni writer on ayat al‑ ahkam. .
From among the Sunni ulama',
'Ali ibn Mush al‑Qummi (d. 305/ 917) from the Hanafi school, Abu Ishaq
Isma'il ibn Ishaq (d. 282/895) from the Maliki, and Abu Yala Kabir (d.
458/1066) from the Hanbali, appear to be the first researchers in this field.
The Works on Qur'anic Fiqh:
For acquainting ourselves further
with the historical background of the subject under discussion, it seems
appropriate that we list the important writings on ayat al‑ ahkam by ulama' of Islam.
