2. Thus We explain the signs for people who think. (10:24)
3. ....Thus We explain the signs for people who ratiocinate. (30:28)
Basing any argument upon these verses for proving the validity of the practice under discussion does not appear to be proper. As the first verse is particularly addressed to the Holy Prophet (S), it does not include anyone else. Moreover, the phrase (by that which God showeth thee) indicates that the Prophet (S) adjudicated among the people of his Ummah according to that which was revealed to him by God in the Holy Quran and not according to his own personal judgement and ray. In fact this verse conveys something contrary to the aims of the believers in the practice of ray, as it acknowledges the presence of definite laws revealed to the Prophet (S) as the only criterion and standard. This issue has no relevance whatsoever to the validity of the practice of ray in ijtihad. As to the second and the third verses, they also are not concerned with the subject of the practice of ray. They specify the significance and value of thinking and reflecting about the Divine verses and the signs of God in creation, for such thought and reflection leads man to the knowledge of God, strengthens faith, and guides him to the cognition of the most fundamental of religious doctrines, which is the knowledge of God.
2. Arguments Based on the Tradition
(A) It is reported in the Musnad of Ahmad ibn Hanbal al‑Shaybani (vo1.5,p.230) that the Prophet (S) while sending Mu'adh as a judge to Yaman asked him: "On what shall you base your judgements?" Mu'adh replied: "On the Book of God". The Prophet (S) asked: "But what if you don't find it there?" Mu'adh said: "(Then I will act) according to the Sunnah of the Apostle of Allah". The Prophet (S) again asked: "What if you don't find it there[ too]?" Mu'adh said: (I will exert my own ray). The Prophet (S) said: "Thanks to God who gave success to, His Messenger".
This tradition sounds to be explicit in confirming the view that the Prophet (S) gave approval to ijtihad by means of exerting personal judgement and ray.
(b) Umar in his letter to Abu Musa al‑'Ash'ari, wrote:
Concentrate your understanding on that which goes on in your mind (i.e. something which is not to be found in the Book and the Sunnah of the Prophet) and draw an analogy between similar matters.
Ibn Qayyim al‑Jawzi has expounded this Riwayahin his book A'lam al‑muqitn (vo1:1, pp. 373‑385).
(c) In the Sahih of al‑Bukhari (Bab ajr al‑hakim, vol. 4, p. 178) it has been reported from Amr ibn al‑As that the Prophet said that whenever a judge gives a verdict according to his ijtihad, he will be given two rewards if his judgement is right, and if it is not, he will be given one reward.
Muhammad ibn Muslim also has recorded this Riwayahin his Sahih (Kitab al‑Aqdiyah, hadith No.150). Ibn Majah has recorded it in his Sunan (Bab al‑hakim, hadith No.2314) and Ahmad ibn Hanbal alShaybani in his Musnad (vol.2,p.187).
(d) Dr. Mahmasani, in his book on the philosophy of legislation in Islam, quotes a tradition in which the Prophet (S) is reported to have said to Ibn Mas'ud:
Judge according to the Book and the Sunnah if you find (the judgement) in the two, but if you don't find it there exert your own ray.
The tradition about Mu'adh is not acceptable for several reasons:
1. From the point of view of sanad (chain of transmission), as it is narrated on the authority of al‑Harith ibn Amr alone. There is no other line of transmission besides this. Moreover, al‑Harith ibn Amr is an unknown narrator (majhul al‑hal) whose character is not known. This objection was also raised by Abu Muhammad Ali ibn Hazm al‑'Andalusi al‑Zahiri (d.456/1064) in his al‑'Ilham li usul al‑'ahkam (vol.5, pp.373‑375). Al‑Bukhari has also, in al‑Ta'rikh al‑'awsat, stated that there is no mention of the name of al‑Harith in any text of tradition or book of rijal except this sole Riwayah. Moreover, his character is also obscure. Therefore, it is not proper to consider the Riwayahreported from him to be reliable.
2. From the point of view of meaning (dalalah), also, the recourse to this tradition for arguing in favour of ray is unjustified. Because, ijtihad in the sense of legislation of laws and determination of ahkam for the new and emergent issues by means of ray and personal judgement was not in vogue during the lifetime of the Prophet (S), as the Prophet (S) himself was alive and there was no need for it. Why would an individual like Mu'adh in spite of having access to the Prophet (S) practise ra'y or exercise his personal opinion, when the ahkam and the precepts regarding the religious duties, in detail and in every aspect, could have been understood very easily and simply by referring to the Prophet (S)? The Prophet's contemporaries could also refer to individuals trained under the guidance of the Prophet (S) who had acquired firsthand learning of the Divine teachings and the wahy, regarding any problem of scientific, religious, ethical; social, economic, penal, commercial, agricultural or some other nature, and get a satisfactory and complete answer to it. In such conditions, there were no grounds for practising ra'y and personal opinion. Moreover, during the course of a long journey when it was not possible to contact the Prophet (S) immediately or anyone trained in Islamic teachings, there was still the possibility for Mu'adh to find out the Divine commandment in a certain case by sending a messenger. Hence distance could not be a justification for exercising ray and personal judgement.
The term ijtihad, however, was in vogue during the time of the Prophet (S) and even during the time of the Sahabah and Tabiun‑in its literal sense, i.e. striving and making effort in doing something. We find many instances of its use in this sense (some of which were mentioned in our article entitled: "A Study of the Sources of Ijtihad").
The need for ijtihadin the sense of exercising ray and personal opinion given to it by the Ahl al‑Sunnah was felt after the Prophet's demise. This matter will be elaborated under the heading "The Emergence of ijtihad bi al‑ray" later in this article.
3. There appears to be no connection between the lexical meaning of ijtihad and the sense of the practice of ray and reliance upon personal opinion. If the lexical meaning of the term ijtihadas defined by lexicographers is taken into account, the application of the word to the process of extracting a hukm by means of ray and personal opinion gives it another sense, for there is no similarity between the two. The lexicographers define ijtihad as an activity accompanied by endeavour and hard effort. Thus, if any individual formulates his personal judgement and presents it to society as a Divine law merely on account of not finding any dictum in the Quran and the Sunnah, this exercise of his would not be regarded as an ijtihad.
4. The deduction of a law in a legal issue through exercise of ray and subjective judgement, if it is not supported by the principles of the Shari'ah and its general laws, cannot be acknowledged as a hukm of the Shari'ah and a Divine law. Because a hukm of the Shari'ah is a Divine commandment revealed to the Holy Prophet (S) through the agency of Jibrail (A), not a rule that is the product of ray and subjective opinion of a mujtahid. For the personal judgement of an individual cannot be called a Divine injunction and a huhm of the Shari'ah.
5. Approving of the tradition concerning Mu'adh and accepting ijtihad in the sense given to it by the tradition results in such disastrous consequences as no lawgiver would allow.
The repercussions and evil effects of this tradition are as follows:
a) If a hukm formulated by a mujtahid by exercising ray and subjective opinion is regarded a hukm of the Shari'ah and a Divine injunction, it means that all the individuals who exercise ijtihad by ray, each of them occupies the high station of a Divine legislator and lawgiver, whereas it is neither possible nor proper to accept this. Because, the source of legislation and ahkam, in the light of definite shar'i dicta, is God alone, and no other being. No hukm or law except that which is legislated by Him can be given the status of a shar'i hukm. Even the Prophet (S) cannot be considered as a source of legislation of the ahkamof the Shari'ah. The belief cherished by the majority of scholars of the Sunni community that the Prophet (S) himself sometimes exercised ijtihadand himself legislated laws according to his own ray and subjective opinion in some issues and problems, and the traditions narrated in this regard, have no validity whatsoever (an elaborate refutation of this view will be given in the article "The Prophet (S) and Ijtihad").
Accordingly, when the Prophet (S) cannot be considered as the source of the tashri of ahkam, is it possible that subjective views and opinions of human individuals with no links with wahy, and whose character, behaviour and speech are not considered a norm and model for others, be considered laws of God and they themselves as legislators of the ahkam of the Shari'ah?
No doubt, it is possible that occasionally ijtihadmight have figuratively been referred to as tashri and legislation. For instance, the renowned scholar Abu Ishaq Ibrahim al‑Shatibi al‑Gharnati al‑Maliki (d.790/1388), the author of al‑Muwafiqat, has also named the task of a mujtahid as tashri and legislation. No doubt, his usage carries only a figurative sense; for naming the activity of a mujtahid as legislation was for the reason that ijtihad(i.e. application of the usul of the ahkam and the general principles for deriving other ahkam regarding emergent issues and new problems) is an effort to discover a shari hukm, thereby discovering the intent of the Lawgiver and obtaining the hukm of God. Then, in reality, it amounts to calling legislator', in a figurative sense, one who discovers a law. Since in Islamic fiqh there is in fact no provision for anybody except God to lay down laws. Therefore, the Shari'ah is made up of the injunctions and commandments that were revealed to the Prophet (S) by God Almighty through the agency of Jibrail. There are verses in the Quran which confirm this fact; they will be discussed in the article entitled "The Prophet (S) and Ijtihad".
b) Reliance on ijtihad by ray and subjective judgement is a kind of admission of the shortcoming of the Shari'ah, and is an implicit declaration that the Islamic Shari'ah is incapable of answering emergent issues and new problems, whereas anyone acquainted with the spirit of Islam and its comprehensiveness cannot concede this. Because, the process of legislation concerning all the necessary spheres of human life, either in particular detail or in the form of general laws, was completed during the lifetime of the Prophet (S). The following verses of the Quran clearly declare this fact:
...And We revealed the Book unto thee as an exposition of all things.(16:89)
We have neglected nothing in the Book (of Our decrees). (6:38)