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'.
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.
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.