Alhassanain(p) Network for Heritage and Islamic Thought

Ijtihad: Its Meaning, Sources,Beginnings and the Practice of Ray

Authors(s): Muhammad Ibrahim Jannati

Publisher(s): al-Tawhid Islamic Journal

www.alhassanain.org/english

An Analysis of Ijtihad, including its Meaning, Sources,Beginnings and the Practice of Ra'y. These extractshave been published in several issues of Al-Tawhid Journal: Vol.5 No.2, 3, Vol.6, No.1, Vol.7, No.3,

Notice:

Thisworkis published on behalf of www.alhassanain.org/english

The typing errors are n’t corrected.

Table of Contents

Introduction 6

Main Topics of Discussions 7

The Term Ijtihad 9

‘Ijtihad' in the Utterances of the Prophet (S) 10

‘Ijtihad' In the Utterances of Some Sahabah 10

‘Ijtihad in the Utterances of the Imams (A) 11

Ijtihad as a Technical Term 11

Critique of the Above Definitions 12

Second Definition of Ijtihad 16

Critique of the Second Type of Definitions 16

Third Definition of Ijtihad 17

Critique of the Third Type of Definitions 17

Fourth Definition of Ijtihad 17

Critique of the Fourth Type of Definitions 17

Further Clarification 18

A Misconception 19

Fifth Definition of Ijtihad 20

Critique of the Fifth Definition 20

Objections Against the Definition 21

Note 21

Two Different Conceptions of Ijtihad 22

Ijtihad as an Independent Source in Sunni Fiqh 22

Notes 23

The Holy Qur'an as the First Source of Ijtihad 25

The Sources of Ijtihad 26

An Overview of the Ayat al 'Ahkam 27

Initial Research Concerning the Ayat al‑Ahkam 27

The Works on Qur'anic Fiqh 28

A. Shi’i Works on Fiqh al‑Qur’an 28

B. Zaydi Works on Fiqh al‑Qur’an 29

C. Hanafi Works on Fiqh al‑Qur’an 29

D. Maliki Works on Fiqh al‑Qur'an 30

E. Shafi’i Works on Fiqh al‑Qur’an 31

F. Hanbali Works on Fiqh al‑Qur'an 31

G. Zahiri Works on Fiqh al‑Qur’an 31

Legal Deduction from the Qur'an 32

The Authority of Zawahhir al‑Qur'an 33

Muhkamat and Mutashabihat 33

Why Mutashabih Verses? 34

The Qur'an on Muhkamat and Mutashabihat 36

A‑Shayhh al‑Tusi's Remark 36

Examples of Muhkamat and Mutashabihat 37

The Hidden Meanings of Qur'anic Verses 38

The Qur'an and Khabar al‑Wahid 40

Arguments against the Permissibility of the Takhsis 40

Qur'anic Exegesis Through Khabar al‑Wahid 42

Role of Exegesis in Legal Deduction 43

The Mode of Revelation 43

Makki and Madani Verses 44

The Different Readings 44

a. The Reason Behind Variant Readings 45

b. The Reliable Readings 46

c. The Effect of the Readings on Legal Deduction 48

The Comprehensive Character of the Qur'an 49

Factors Responsible for Emergence of the Practice of Ra'y 52

The Factors Which Generated New, Contingent Issues 52

The Shi'i Encounter With New Problems 53

Different Points of View Among Ahl al‑Sunnah 53

Ra'y and Shi’i Ijtihad 54

Arguments in Defence of Ra'y and Their Refutation 54

1. The Arguments Based on the Qur’an 54

2. Arguments Based on the Tradition 55

Critique of the Tradition Narrated about Mu'adh 56

Consequences of the Tradition About Mu'adh 57

Critique of the Second Riwayah 63

Critique of the Third Riwayah 64

Critique of the Fourth Riwayah 64

The Emergence of Ijtihad bi al‑Ray 64

The View of al‑Dawalibi 64

The Term Ta'wil During the Days of Tabi'un 66

The Usage of Ta'wil by Tabi ‘un 66

The Use of "Ijtihad" in Another Sense 68

The New Denotation of Ijtihad 68

Difference between the Two Conceptions and its Consequences 69

Delimitation of the Meaning of Ijtihad by al‑Muhaqqiq al‑Hilli 69

Notes 70

The Beginnings of Shi’i Ijtihad 71

The Qur’an as the Source of Law 71

Difficulty of Utilizing the Sunnah 72

The Need for Ijtihad amongst the Shi’ah 72

The Difference between Shi'i and Sunni Ijtihad 73

Ijtihad during the Era of the Imams (A) 74

Conclusion 78

Ijtihad, a Perennial Spring 78

The Source of the Inadequacies 79

The Qualifications Required for Ijitihad 80

The Closure of the Gates of Ijtihad, a Conspiracy 82

Difference of Viewpoints, a Bounty 82

Ijtihad, Legislation and Tajdid 84

A Clarification 85

The Practice of Ijtihad 85

The Development of the Theory of Ijtihad 86

Note 87

Introduction

The sources of ijtihad according to Shi'ah and the Ahl al‑Sunnah, put together, are: the Book, the Sunnah, ijma’ (consensus), ‘aql (reason), qiyas (analogy), istihsan, masalih mursalah, istislah, sadd al‑dhara'i’, fath al‑dhara'i; madhhab al‑sahabi, shari’at al‑salaf, ‘urf, istidlal, and so on.

In this series ofarticles we shall try to discuss and study these topics in detail from the Shi’i and the Sunni points of view.

We expect writers and scholars who have specialty in this field to contribute to the soundness and validity of these studies through con­structive criticism relevant to the subject studied here. Any constructive criticism is very useful for correcting errors and removing shortcomings, and effective in eliminating ambiguities and omissions.

Besides rendering vital service to scholarship, it is beneficial to the author, whois forced to be more careful in his statements and precise in his research. The intellectual history of Islam is indicative of the debt that the development and expansion of legal and other scientific studies owe to diverse viewpoints and competent criticism.

This commendable and beneficial tradition has been in vogue in its most desirable form throughout the seven epochs of ijtihad among all the scholars and mujtahidun, and especially in the sixth and the seventh periods, whose fore‑runners were Wahid Behbahani and the great al­ Shaykh al-’Ansari respectively, this tradition reached its zenith.

Also, the very force of ijtihad, from the era of tashri’ (legislation) to the present (as discussed in detail in the article on the epochs of ijtihad), as a legitimate activity is derived from criticism and debate.

Be­cause, in Islamic fiqh, ijtihad has had the meaning of a free and indepen­dent effort of the mujtahidun, undertaken for the purpose of advance­ment and expansion of the Islamic sciences. This development was not possible except through freedom of scholarly research, free expression of different views and clash between views of the mujtahidun,scholars and thinkers.

By practising ijtihad, a mujtahid deduces the ahkam (laws) of the Shari'ah for issues and problems regarding which there is no specific express text (nass), by relying on legal sources and principles and by benefiting from the ideas of other mujtahidun.On account of this, it may be said that ijtihad plays the role of an evolutionary and dynamic force in legal studies which provides solutions to contingent issues of life and fulfils the needs of changing times and the requirements of new phenomena of human civilization.

Therefore, Islamic fiqh does not suf­fer with inertia,stagnation and passivity vis-à-vis the demands of the times, of life and its manifestations; it also advances along with them. It is for this reason that it has been said that ijtihad has been through­out Islamic history theforce which has been constantly developing and expanding the boundaries of fiqh with respect to its applications, while maintaining the stability of legislation. Thus, ijtihad is essential for Islamic fiqh, without which it cannot be dynamic and progressive.

On the basis of this, closing of the gates of ijtihad is contrary to the perennial mission of Islam in all ages, and, most certainly, alien elements have played an active role in promoting this ominous venture.

For the enemies of Islam, it has been, and still is, the best weapon to strike Islamic law with, and the most effective instrument for eliminat­ing it from scientific, cultural, economic,social and political arenas. Be­cause, closing of the gates of ijtihad renders fiqh ineffective and incapa­ble of providing answers to emergent and contingent issues of life

The present deficiencies in the world of Islam, the failure to con­front the contingent issues in a proper way, the issuing of baseless and ir­rational fatawa, the improper attitude towards new ideas ‑ all these are consequences of the closing of the gates of ijtihad by the Ahl al-­Sunnah. It has been instrumental in allowing dubious hands, with the aid of taghuti governments, to instill unhealthy ideas into the people's minds and to insinuate the feeling that Islamic fiqh cannot fulfill the demands of the present age and the modern civilization.

These insinuations have left undesirable effects on the minds of short‑sighted and self‑alienated persons unaware of the spirit of Islam, to the extent that they servility follow the aliens and prefer Western laws to the laws of Islam (we shall have more to say about this matter in the article "The Era of the Decline of Sunni Ijtihad").

The most outstanding achievement of Shi'i fiqh has been to keep open the gates of ijtihad throughout the course of history. Its superiori­ty over other schools of fiqh, whose doors were closed after the death of their founders (namely, Abu Hanifah al-Nu’man ibn Thabit, the founder of Hanafi School; Malik ibn Anas al‑'Asbahi, the founder of the Maliki School; Muhammad ibn Idris al-Shafi’i,the founder of the Shafi'i School; and Ahmad ibn Hanbal, the founder of the Hanbali School), lies here.

(An exposition of this issue from various aspects and a critique of the speech of the editor of the Kuwaiti journal al-Mujtama’, Isma'il al-Shatti, delivered at the U.A.E. university on Nov. 1, 1982, wherein he denounced the claim about the continuity of ijtihad as a ‘conspiracy against the faith,' will come in our article on the epochs of ijtihad.)

Main Topics of Discussions

We shall deal with the following topics in this study:

• The lexical meaning of the word ‘ijtihad'.

• The meaning of ijtihad in the utterances of the Prophet (S).

• The technical meaning of the term ijtihad.

• Two different meanings of ijtihad as a technical term used by Muslim fuqaha'.

• Acceptance of ijtihad as an independent source of law in Sunni fiqh.

• Causes of the emergence of ijtihad bi al‑ray and other conjectural in­struments among the Ahl al‑Sunnah.

• Arguments offered in favour of ijtihad bi al‑ray and their refutation.

• The beginnings of ijtihad in the sense of ray.

• The period during which ijtihad bi al‑raywas known as tawil.

• The continued use of the term ijtihad in the sense of ray.

• Change in the meaning of ijtihad from its original sense of ray.

• The meaning of the term ijtihad.

• The difference between the two meanings of ijtihad from the point of view of the effects and consequences of each of them.

• Delimiting of the new meaning of ijtihad by al‑Muhaqqiq al‑Hilli.

• The times since when the Shi'ah and the Ahl al‑Sunnah felt the need for ijtihad.

• Ijtihad in the days of the Imams (A).

• Ijtihad, a perennial spring of Islamic fiqh.

• The first legistwho opened the doors of Shi'i ijtihad.

• The difference between the styles of ijtihad during the period of the Major Occultation and afterwards.

• The development of ijtihad in Sunni fiqh.

• The decline of ijtihad in Sunni fiqh.

• The impact of the backwardness of Sunni fiqh on the Sunni society.

• The Akhbari stand against ijtihad.

• The factors and causes behind the Akhbari rejection of ijtihad.

• Wahid al‑Behbahani's crusade against Akhbarism.

• The factors and causes behind al‑Behbahani's success and advancement.

• The synthesis of Akhbari and Usuli outlooks regarding ijtihad.

• The Prophet (S) and ijtihad.

• The place of ijtihad.