(To be sure, he was a mujtahid and a muta'awwil)!
Ahmad ibn Ali al‑Shafi'i, famous as Ibn Hajar al‑Asqalani, while describing the Sahabah, says that they exercised ta'wil and that in cases that the mujtahid errs he is not only not liable to any censure and punishment but deserves one reward.
What is more interesting is that some who claim to be Muslims consider even such a vicious character like Yazid with his irremediable crime, which has no parallel in history, as a khalifah of the Prophet (S). Moreover, they justify his heinous crime and say that he exercised ijtihadand erred in his ta'wil; therefore, he cannot be blamed!
In Ibn Kathir's history (vo1.13,p.9), Abu al‑Khayr Ahmad ibn Isma'il ibn Yusuf al‑Shafii al‑'Ash'ari is reported as having made this statement about Yazid: (He was an imam and mujtahid). Ibn Kathir himself writes (Vol .8, p.223) that some people justify the evil and heinous deeds of Yazid and state the he erred in exercising ta'wil and ijtihad. In another place (vo1.6, p.323) he says: "Khalid continued to hold his office with the approval of Abu Bakr ( and therefore his assignment was legitimate), though he took part in the killing of Malik ibn Nuwayrah. But since he exercised ijtihad and erred, he cannot be blamed."
In the above‑mentioned cases, the exercise of ray is referred to with the name of ta'wil, and this usage continued until the Sunni community gave it the name of ijtihad, developing special rules and terms for it and opening new chapters in the realm of ilm al‑'usul. Consequently, the act of deriving a hukm by this means was called "ijtihad", and it practitioner "mujtahid".
As stated, the practice of ray emerged after the demise of the Prophet (S) and the term continued to be in use for ijtihad in the writings of the Sunni fuqaha' until the early years of the 6th/12th century. Abu Hanifah al‑Nu'man ibn Thabit (80‑150/699‑767) and his followers used the term ijtihad in the same sense. Their approach met with the outright rejection of the Shi'i Imams (A) and fuqaha; who denounced it in the strongest terms (details will come in the discussion about the sources of ijtihad). The use of this term however continued through centuries, till the time when it underwent a change.
From the 6th/12th century till the beginning of the 7th/13th, the term ijtihad underwent a change in the writings and statements of Sunni scholars; they now gave it a wider and more comprehensive meaning. It will be proper to quote here some of them.
Abu Hamid Muhammad al‑Ghazzali al‑Shafi'i (450‑505/10581111) has defined the term ijtihad in his book, al‑Mustasfa fi usul al‑fiqh (vo1.2,p.350): "Ijtihad means the effort and endeavour on the part of the mujtahid in acquiring the knowledge of the ahkam of the Shari'ah."
Muhammad Khidri Bek has defined ijtihad in his history of Islamic legislation (p.87) as: "The endeavour and effort undertaken for deducing a hukm of the Shariah through means and sources (adillah) which the Shari (Lawgiver) considers as valid proofs."
Ahmad Mustafa Zarqa' al‑Suri, the author of al‑Madkhal al‑fiqhi alamm, defines the term ijtihadin these words: "Ijtihad means deduction of ahkamof the Shariah by means of their elaborate adillah from the Shariah."
There were other fuqaha' at that time who used the term ijtihad in the aforementioned sense. Though the term ijtihadacquired a wider and more comprehensive denotation, nevertheless, the Shii fuqaha' still did not approve of the kind of ijtihadpractised by the Ahl al‑Sunnah as a reliable source from which ahkam of the Shariah could be derived. They rejected it and considered it invalid. As in the previous ages, to them the term ijtihaddenoted an undesirable and forbidden practice; they discussed it in their writings and expressly rejected it as invalid.
This antagonism continued until the 7th/13th century, and the writings of the original researcher and mujtahid Muhammad ibn Ahmad ibn Idris al‑Hilli (555 or 558‑598/1160 or 1163‑1201) bear evidence to this. He writes in his precious book al‑Sara'ir that "qiyas, istihsan and ijtihadare from our viewpoint invalid practices". These words of Ibn Idris indicate that the word ijtihadwas still current at the time in the sense of the practice of subjective opinion and ra'y as a source of law, like the Book and the Sunnah.
The New Denotation of Ijtihad
In the 7th/13th century the term ijtihadwas used in a new sense by Imamiyyah fuqaha' which afterwards, with a little ammendment, assumed its genuine and desirable form: the sense of referring new furu to the fundamental principles, the usul. In this way, the term ijtihad came to be accepted by the Shi'ah.
The oldest texts which throw light on this matter are the writings of the great al‑Muhaqqiq al‑Hilli (d.676 or 680/1277 or 1281) and his Ma'arij al‑'usul (p.117). In it, while defining ijtihad, he states: "In the vocabulary of the fuqaha', ijtihadmeans making effort and endeavour in order to deduce ahkamof the Shariah from its valid (shar'i) sources (adillah)."
He continues to say that since the deduction of ahkamand their determination is conceptually a theoretical activity, and in most of the cases they cannot be derived from the apparent meaning of the texts, there was drawn no line of demarcation in the definition between qiyas and other adillah. Therefore, on this basis, qiyas can also be considered to be one of the types of ijtihad. He further says that it is possible that some may say that it means that the Shiah also practise ijtihad. The answer is m the affirmative, with the qualification that ijtihadto them has never meant, nor does it mean, the practice of qiyas.
A study of the views expressed by al‑Muhaqqiq al‑Hill! in Maarij al-usul reveals that in those days the term ijtihadwas not yet fully accepted by the Shiah due to its former connotations. The writings of al‑Muhaqqiq al‑Hilli show that there were still certain individuals in those days who could not digest the term. They were not inclined to assign the appellation mujtahid' to any of the Shii fuqaha'. Accordingly, al‑Muhaqqiq al‑Hilli decided to draw a line between the two concepts of qiyas and ijtihadand declared that ijtihadas a new term adopted by the Shi'ah possessed a meaning acceptable to them, that its use did not have any harm‑for the term ijtihadmeant to making an effort for deriving a hukm from shar'i sources (i.e. the Book, the Sunnah, ijma and aql)‑and that it does not have any connection with the ijtihadpractised by the Ahl al‑Sunnah.
Difference between the Two Conceptions and its Consequences
There is an obvious difference between the two conceptions of ijtihad, because the first sense implies that whenever there is no express statement in the text of the Quran and the Sunnah the mujtahid can innovate and legislate a law according to his own ray and subjective opinion, and if he is asked as to the source on which he has based this hukm, he will answer: "On my own personal ray". But in the second sense (accepted by the Imamiyyah), ijtihadis an endeavour and effort on the part of the mujtahid in deriving a hukm of God from the sources of the Shari'ah. When asked as to the sources from which the hukm is derived, he answers: "The sources whose validity and reliability is posited by the Lawgiver."
Accordingly, the role of the mujtahid in deducing the ahkam regarding new issues and furu involves reverting the new furu to the basic principles of the Shari'ah and applying its general laws to corresponding particular cases. There is an essential and real difference between these two meanings of the term, since ijtihadin the Sunni sense of practising ray means invention (ibda) of ahkamand legislation. And the Shii ijtihadis a means of discovering the Divine ahkam through the valid sources of the Shariah (the Book, the Sunnah, ijma and aql).
Delimitation o f the Meaning of Ijtihad by al‑Muhaqqiq al‑Hilli
As mentioned earlier, al‑Muhaqqiq al‑Hilli delimited the new sense of the term ijtihad to research effort in deducing ahkamfrom the sources, so that the hukm derived is not based on the literal meanings (zawahir) of the texts of the Quran and the Sunnah. Accordingly the deduction of a hukm from zawahir of the Book and the Sunnah was not a part of ijtihadto him. Perhaps this restriction in the meaning of ijtihadhad to do with its original lexical background, which carried the sense of hard effort and labour. Thus, the derivation of a huhm from zawahir of the Book and the Sunnah, which did not involve any great effort, was not counted by him as part of ijtihad.
However, after his era, the meaning of ijtihadgrew in scope and came to include deduction of ahkam from zawahir of the nusus (texts) of the Quran and the Sunnah. This was because the scholars of ilm al-usul came to recognize that even deduction from the zawahir required a lot of scholarly effort; that it could not be done without the knowledge of the principle of hujjiyyat al‑zawahir (the legal validity of literal meanings) and the mode of its application and the related problems.
The meaning of ijtihaddid not remain within these limits; it underwent a further development until it came to include all the forms of legal deduction and every kind of endeavour and effort on the part of the mujtahid to determine and define practical obligations vis a vis the Shari'ah on the basis of valid proofs. Accordingly, in latter times, some scholars have defined ijtihadas effort and endeavour for establishing the legal basis of real ahkam or attainment of legal evidence for determining the apparent obligation in a case, or something to that effect. Other definitions have also been advanced, but since they are close in meaning and content to the one mentioned above, we shall refrain from citing them in order not to prolong this discussion any further. [3]
[1]. Of course, it doesn't mean that ijtihadwas not practised during this era, for in its authentic and legitimate form ijtihadexisted even during the Prophet's lifetime, as discussed by us in another article.
[2]. For further information regarding the incident relating to Khalid ibn al-Walid, see: al-Isabah, III, 337; Tarikh al‑Yaqubi, II, 110; Kanz al‑ummal, III, 132; Wafayat al‑'ayan, V, 66; Fawat al‑wafayat, II, 627; Abu al‑Fida', Ta'rikh, 158.
[3]. Editor's Note: This is a translation of "Ra'y gera'i dar ijtihad", published in the Persian bimonthly journal Kayhan‑e Andisheh No. 9, Adhar & Day) and is second of a series of articles by the author.