, 16:89) and that one part of the Quran verifies another part and that there is no contradiction in it. And the Almighty has said: (
, 4:82).
Abu Muhammad Ali ibn Hazm al‑'Andalusi al‑Zahiri (d.456/1064) in his book al‑ Ihkam li usul al‑'ahkam (vol:5, p.775) writes: "Some ignorant people believe that Mu'adh had the right to make a thing halal or haramby exercising his ray or to make something wajib or otherwise according to his own judgement and taste. Such a notion is preposterous, and no Muslim would believe it."
9. If it is said that by ijtihad bi al‑ray Mu'adh meant to say that whenever he could not find a hukm in the express texts of the Book and the Sunnah of the Prophet (S), he would use his effort in deriving it from the sources of the Shari ah and its general principles, if we interpret the tradition in this way, the term ijtihad conveys the same lexical meaning described earlier (in another article), not a new sense of legislation and tashri. When interpreted in this sense, there will be no problem with it, and it would be acceptable to the Shiah.
But the problem is that the fuqaha' of the Ahl al‑Sunnah have not interpreted this tradition in this manner. The character of their arguments shows that they conceive the term ijtihad in the sense of relying upon ray and subjective opinion; not in the sense of deducing the laws from the principles and basic sources of the Shari'ah.
10. Apart from all the objections raised above, this significant problem still remains that the tradition is about judgement and adjudication; it has nothing to do with the problem at hand, since what we are concerned with is the matter whether a mujtahid has a right to legislate laws and ahkam concerning emergent issues by exercising his ray and employing any of the instruments for deriving legal conjectures. It is evident that there is a clear difference between these two things.
The second riwayah is also infirm with respect to its chain of transmission. As Abu Muhammad Ali ibn Hazm al‑Zahiri points out in his book al‑'Ihkam li usul al‑ ahkam (vol. 5, p.1003), there are two chains of transmission through which this Riwayahhas been reported; none of them is trustworthy. In one sanad, one of the narrators is Abd al‑Malik ibn al‑Walid ibn Ma'dan. He has not been considered as trustworthy by the experts of the science of rijal, and no hadith narrated by him has been acted upon. And as for the second sanad, it contains names of persons of unknown identity, thus technically making the riwayahone whose chain of transmission is broken (maqtu al‑sanad).
This riwayahhas no relation with the issue under discussion, as it is about judgement and adjudication, and not concerned with the privilege and right of a jurisprudent to legislate ahkam of the Shari'ah by means of ray and by employing conjectural instruments.
Firstly the fourth Riwayah is mursal (one whose first narrator (S) is not mentioned in the chain of transmission), which deprives it of the requirements for being legally relevant.
Secondly, apart from its being mursal, such a riwayahhas no strength to resist the force of the arguments based on definite proofs (adillah) of the Book and the Sunnah, which do not permit tashri and legislation by means of ray and through instruments for deriving conjectures.
Thus, we reach the conclusion that these ahadith are not adequate for vindicating the practice of ijtihad by means of ray and subjective opinion; they lack the requirements of validity and the probability of their being fabricated is strong.
The beginnings of the emergence of ijtihad and its general outlines can be traced back to the migration of the Prophet (S) from Makkah to Madinah.
But the emergence of ijtihad in the sense of exercising ray was after the conclusion of the era of tashri with the demise of the Prophet (S). For, as long as the Prophet (S) was alive, with the continuity of the revelation of the Quran and wahy, there was no ground for exercising ra'y; as mentioned earlier, the ahkam could be understood and known easily by referring to the Prophet (S). But after his demise and the termination of wahy, during the reign of the Caliphs, and subsequently during the Umayyad rule and in the early years of the Abbasids, the fuqaha' were confronted with new issues and subjects for which they had to find answers. If they could not find the solution by referring to the Book and the Sunnah of the Prophet (S), they had to determine a hukm by consulting other fuqaha'. As a result of this they either reached a consensus or each one of them arrived at a separate hukm by exercising ijtihadand his own individual judgement.
The View of al‑Dawalibi
Al‑Dawalibi, in his book al‑Madkhal ila ilm usul al‑fiqh, states in this connection: "Whenever the Companions of the Prophet (S) faced an impediment in such situations or issues for which they could not find an express decree in the Book and the Sunnah, they resorted to ijtihad(identifying in this manner the ahkamfor new situations). They named this practice ray. Abu Bakr and Umar were among those who used this method".
Later on al‑Dawalibi cites a Riwayahin which Umar ibn al‑Khattab is reported as having written to Shurayh and Abu Musa al‑'Ash'ari: "Companions of the Prophet (S) did not rely in their ijtihad upon fixed laws and established criteria; rather, they relied upon something which they considered as the spirit of the Law".
This statement has also been quoted in different words from Umar ibn al‑Khattab, such as: "Identify similar and analogous cases and use qiyas (analogical method) in matters." (We will elaborate on this topic in the discussion about the historical development of qiyas, which is the fifth source of Sunni ijtihad.)
In any case, it was after the demise of the Prophet (S) that some of the Sahabah raised the issue of ray and opened its doors. In this way, they deduced a certain hukm for every issue and problem for which there was no specific nass. The Tabi'un and a majority of Sunni jurisprudents followed their example. Besides the practice of ray, other instruments for deriving legal presumption (such as qiyas, istihsan, masalih mursalah, etc.) also entered the realm of ijtihadand the Sunni fuqaha' relied upon those sources, although they were not uniform in their reliance on such instruments (this will be elaborated further while discussing the sources of ijtihad).
It was the result of the difference of opinions between the fuqaha' of the Ahl al‑Sunnah regarding the trustworthiness of these sources that diverse legal schools came into being. Among perhaps more than twenty of such schools that emerged, four of them became more popular: the Hanafi school, under the leadership of Abu Hanifah; the Maliki school, under the leadership of Malik ibn Anas al‑'Asbahi; the Shafi'i school, under the leadership of Muhammad ibn Idris al‑Shafi'i; and the Hanbali school, under the leadership of Ahmad ibn Hanbal al‑Shaybani. These schools emerged during the reign of the Abbasids (132‑656/7501258) (an elaborate discussion about these schools will be done while discussing the various periods in the history of ijtihad). The practice of ra'y was called "ta'wil" during the era of the Sahabah and not "ijtihad bi al‑ray". This was true of the early days of the era of the Tabi'un as well.
The term ta'wil was used by Khalid ibn al‑Walid, who killed Malik ibn Nuwayrah, and also by Abu Bakr. In order to examine this usage, we will have to go into the details of the episode involving Khalid. [2]
After the Prophet's demise, a group of people gathered in Saqifat Bani Sa'idah and chose Abu Bakr for the caliphate. Khalid ibn al‑Walid was one who had played an active role in the affair. After the event, he was dispatched with a force to collect zakat from the dissidents. During the course of his assignment, he went to a tribe inhabiting the region of Batch and demanded zakat. They declined to pay, stating that they did not acknowledge anybody except Ali ibn Abi Talib as the Prophet's successor, as the Prophet (S) had nominated Ali (A) to succeed him at Ghadir Khum while returning from the Last Pilgrimage. They stated that on this ground they would not pay zakat to anybody except someone appointed by Ali (A). Khalid ibn al‑Walid responded to the position taken by the people of that tribe by committing a horrible crime. He ordered Dirar ibn Azwar al‑'Asadi to behead Malik ibn Nuwayrah, the chief of the tribe. Khalid did not stop at this; he slept with the wife of Malik the same night. To celebrate the occasion, he slaughtered a sheep and ordered Malik's head to be put in the fire under the cooking pot.
After his return, in order to justify his inhuman act and to make it appear something legitimate, he said: "Since this tribe had apostatized, I had to treat them in this manner." But within a short time, facts of the case came out. Abu Qatadah and Abd Allah ibn Umar gave witnesses in favour of Malik ibn Nuwayrah. Khalid had no alternative except to confess. While apologizing, he said to Abu Bakr: (I exercised ta'wil and made a mistake). Umar ibn al‑Khattab and some of the Companions were of the view that Khalid should be stoned to death for zina (adultery). However, since Khalid had played a significant role in the episode of Saqifah, efforts were made to exonerate him and justify his deed Accordingly. Abu Bakr said: (I would not stone him, for he exercised ta'wil and committed an error). After this incident the term ta'wil was used in such cases by others.
In the era of the Tabi'un, also, the word ta'wil was used in the sense of the practice of ra'y. Al‑Zuhri is reported in al‑Sahih of al-Bukhari (vol.1, p.134, Bab taqsir al‑salat) as saying that he asked Urwah ibn al‑Zubayr as to why A'ishah says full prayers during journey(while qasr is specified in riwayat). He replied "She makes ta'wil of the Riwayah, in the same manner as Uthman used to do."
The Usage of Ta'wil by Tabi un
The history of the term taw'il indicates that it started by the Sahabah and continued to be in use until the middle of the 5th/11th century, as can be seen from the writings of some Sunni scholars. But after this date the term taw'il was gradually replaced by other terms.
Abu Muhammad Ali ibn Ahmad, known as Ibn Hazm al‑Zahiri (384‑456/994‑1064), in his book al‑Fasl fi al milal wa al‑'ahwa' wa al-nihal (vol.4, p.161), has this to say about Abu al‑Adiyah, the killer of Ammar ibn Yasir:
He was an errant muta'awwil (one who exercises ta'wil) and mujtahid, and committed a wrong against Ammar ibn Yasir (because of the hukm that he derived and the ijtihad that he made). He deserves reward, but only one.
In another place, he writes in his book that the killer of Ammar was not similar to the killer of Uthman, as the latter's killer did not have any ground for ijtihad. He further says that Mu'awiyah and those who were with him were men of ijtihad, although in error, and they deserved one reward.
Taqi al‑Din Ahmad ibn Abd al‑Hakim ibn Abd al‑Salam (661‑728/ 1263‑1328) known as Ibn Taymiyyah, while justifying the acts of Mu'awiyah, writes that he was a mujtahid.
Ibn Kathir, in his history (Vol. 7, p.297), writes that Mu'awiyah was a mujtahid and deserved reward. In the same volume of the book (p:283) he writes that ijtihadsometimes leads to error and sometimes to the truth and:
For the mujtahid who is right, there are two rewards, and for the mujtahid who errs, one reward.
Ibn Hazm in al‑Muhalla (vol.l,p.484), Shaykh Ala' al‑Din 'Ali ibn Uthman al‑Hanafi, known as Ibn al‑Turkumani (d.750/1349),in his al‑Jawhar al‑naqi, as stated in footnotes of al‑Bayhaqi's Sunan (vo1.8, pp.58‑59), describe the assassin of Ali ibn Abi Talib