1- Characterization of Jurisprudence
A Preliminary Word
As a human being who has believed in God, Islam and the Divine law and has recognized a responsibility, by virtue of being a servant to God Most High, to follow His rulings, one becomes obligated to conform one's behavior in the various fields of life to the Islamic divine law and obligated to adopt a practical position which adherence to the divine law imposes. For this reason it is a human being's duty to determine this practical position and to know how to behave in every eventuality.
Had the rulings of the divine law for all events been totally and self-evidently clear to all, then to define the desirable practical position vis-a-vis the divine law would be an easy matter for everyone, and would not require learned investigation and extensive study. But numerous factors, such as our distance in time from the age of legislation, have lead to the lack of clarity of a large number of rulings of the divine law and to their being surrounded by obscurity. Thus it was necessary that a discipline be established that would undertake to remove obscurity concerning the practical position before the divine law in every eventuality by establishing an argument for determining the [practical] position.
Thus the discipline of legal understanding was founded to undertake this task. It includes determining by inference the practical position vis-a-vis the divine law. The jurist [i.e., the specialist in the discipline of legal understanding] undertakes to establish an argument which attempts to specify the practical position in every one of the events of life. This is what we have designated “the procedure of derivation of a divine-law ruling.” For this reason one can say that the discipline of legal understanding is the discipline of the derivation of rulings of the divine law, or, in other words, the discipline of the procedure of such derivation.
To determine the practical position before the divine law through an argument is accomplished in the discipline of legal understanding in two ways. The first way is to determine the practical position by identifying an appropriate divine-law ruling. The second way, which applies when one is quite sure that one can only doubtfully identify the appropriate ruling, is to identify the appropriate duty in practice. The arguments which are used in the first case we call merely “arguments” or substantiating arguments, since the divine-law ruling is substantiated by them. The arguments which are used in the second case are called “procedural arguments” or procedural principles. In both cases the jurist practices the derivation of a divine-law ruling, that is, he determines the practical position in the case at hand with an argument.
The procedures of derivation which the discipline of legal understanding includes, in spite of their number and variety, share common unifying elements and common rules which pertain to all of them. It is these shared elements in the procedure of derivation that required the establishment of a new discipline which specializes in studying them and defining them and adapting them to the existing discipline of legal understanding; and so the discipline of jurisprudence came into existence.
Characterization of Jurisprudence
On this basis we consider it correct to define the discipline of jurisprudence as “knowledge of the shared elements in the procedure of derivation of the divine law.” In order that we comprehend this definition it is necessary for us to characterize the shared elements in the procedure of derivation. Let us mention for this purpose elementary examples of this procedure in brief in order that by study and comparison we may arrive at a definite idea of what the common elements in the procedure of derivation are.
Suppose that the jurist (the specialist in the divine law) faces these questions:
1. When fasting, is it forbidden to immerse oneself in water?
2. Is it obligatory for someone who inherits property from his father to pay the tax of one-fifth on it?
3. Is prayer nullified by laughing out loud in the course of it?
(1) When the jurist wishes to answer these questions, he will for example answer the first question in the affirmative, saying that immersion in water is forbidden to one who fasts. He derives this answer as follows: the account of Ya'qub b. Shu'ayb transmitted from Imam Ja far as-Sadiq has indicated the prohibitedness for the fasting person of immersion in water, since from that account we learn that [Ja'far] said: “Neither the one in a state of ritual consecration required of the pilgrim nor the person fasting should immerse himself in water.” This sentence, given its particular construction, indicates prohibitedness according to common usage. The transmitter of the account is a reliable transmitter, and the Lawgiver has commanded us not to suspect a reliable transmitter of error or lying. Although he may at times make a mistake or relate idiosyncratic accounts, yet we are to consider him as a source of evidence. The conclusion is that immersion in water is prohibited.
(2) The jurist answers the second question in the negative because there has come down to us an account from All b. Mahziyar about the issue of exacdy how to determine on what property the one-fifth tax is payable. It emerges from that account that paying the fifth is firmly established only as regards an unexpected inheritance, sc. in a case that involves neither the son inheriting after the death of the father, nor the father after the death of the son. The common-usage understanding of such a formulation is that the Lawgiver did not impose the one-fifth tax upon a father-son transfer. The transmitter of the account is a reliable source and what comes from a reliable source is evidence. The conclusion is that the son does not owe the fifth on what his father leaves him.
(3) The jurist answers the third question in the affirmative with the [substantiating] argument of an account from Zurara citing Imam Ja'far as-Sadiq as saying “Laughing out loud does not destroy the validity of ablution, but it does destroy the validity of prayer.” Common usage understands from “destroying the validity” that prayer is nullified by laughter out loud. Zurara is a reliable transmitter and the account of a reliable transmitter is evidence. Accordingly, prayer accompanied by laughter out loud is nullified.
In considering these three legal-understanding cases we find that the rulings which the jurist has derived are about entirely unrelated topics of legal understanding. The arguments upon which the jurist relies are varied. We observe that the first ruling relied on the account of Ya'qub b. Shu'ayb, while the second ruling relied upon the account of All b. Mahziyar, and the third ruling upon the account of Zurara. Each of the three accounts has its own exact text and its own exact linguistic construction, which require to be studied with care and the meaning thereof determined. Yet despite all this variety and difference between the three cases, there exist common elements which the jurist has introduced into his derivation in all three cases alike. Among these common elements is the recourse to common usage for understanding speech emanating from an infallible person. That is what is called probativity of the prima-facie under-
standing of common usage. Thus “probativity of the prima-facie understanding” is one element shared by all three of these procedures of derivation. Similarly, another shared element which exists here is “the probativity of the reliable source.”
Thus we conclude that the procedures of derivation include general elements as well as particular elements. By “particular elements” we mean those elements which change from one question to the next. The account of Ya'qub b. Shu'ayb, [for instance,] is an element particular [in its significance] for the procedure of the derivation of the forbidden nature of immersion in water, because it has not entered into other procedures of derivation. Rather, in its place other particular elements such as the account of All b. Mahziyar and the account of Zurarah have been introduced.
By “general elements” we mean the rules which are introduced into procedures of derivation of numerous rulings on various topics. Such shared elements are studied by jurisprudence, whereas the elements particular to each individual question are studied by the discipline of legal understanding.
In this way in each question it is left to the jurist carefully to investigate the particular accounts and sources that are connected with that question. He studies the value of these accounts and tries to understand the utterances in them and their common-usage prima-facie sense and the chains along which they have been transmitted. The specialist in jurisprudence, however, takes up the discussion of the probativity of the prima-facie sense, the probativity of transmitted reports, and so on. The discipline of jurisprudence does not just define the common elements, it also defines both the degrees to which they should be used and the connection between them, as -God Most High willing - we shall see in our coming discussions.
The Subject-Matter of Jurisprudence
Normally, every discipline has a basic subject-matter around which all of its discussions revolve and on which all are based, and you have as your goal to uncover the particularities, conditions and laws that are connected with that subject. Physics, for example, takes nature as its subject-matter and discussions in physics are all connected with nature and attempt to uncover its phenomena and common laws. The subject-matter of grammar is the word because grammar discusses the conditions of its case inflections, the indeclinability of the word, and its declinability with different suffixes. Then what is the subject-matter of jurisprudence around which its discussions revolve?
When we consider the definition of the discipline of jurisprudence which we have put forward, we can grasp that jurisprudence in reality studies the commonly shared arguments [used] in the discipline of legal understanding in order to establish their force as arguments. It is, therefore, correct to say that the subject-matter of the discipline of jurisprudence is the commonly shared arguments in the process of derivation.
The Discipline of Jurisprudence is the Logic of Legal Understanding
Your knowledge of the discipline of logic permits us to use it as an example for the discipline of jurisprudence, since, as you know, the science of logic in reality studies the process of thinking whatever its intellectual scope and field may be. Logic defines the general structure that must be followed in order that thinking be sound. For example, the discipline of logic teaches us how we must proceed by inference in its quality as a procedure of thought in order that the inference be correct. How do we infer that Socrates is a mortal? How do we infer that the fire of the stove placed in front of us is burning? How do we infer that the sum of the angles of a triangle equals one hundred and eighty degrees? How do we infer that a line extended without limit is impossible? The discipline of logic answers all this by establishing general methods of inference like deduction and induction. It is, therefore, a discipline concerned simply with the process of thought as such.
In this respect the discipline of jurisprudence resembles the discipline of logic except that it discusses a particular variety of thought process, that is, the legal-understanding thought process concerning the derivation of rulings. It studies the shared elements that must be introduced into the process in order that the derivation be sound. So it instructs us about how we derive the ruling of the forbidden nature of immersion for someone who fasts, how we derive the impossibility of water above a certain quantity becoming impure, and how we derive the ruling that the liturgical prayer on the Feast of Sacrifice is either obligatory or encouraged. It does so by laying down the shared methods and by defining the common elements for the process of derivation.
On this basis it is correct to call the discipline of jurisprudence “the logic of the discipline of legal understanding,” because jurisprudence stands to the discipline of legal understanding just as logic stands to human thought in general.
The Importance of the Discipline of Jurisprudence in the Practice of Derivation
After this we have no need to emphasize the importance of the science of jurisprudence and the significance of its role in the sphere of derivation because, inasmuch as jurisprudence provides the shared elements for the process of derivation and establishes their general structure, it is the life vein [of derivation]. Without the science of jurisprudence a person would face a scattered heap of texts and arguments without being able to use them and benefit from them in the effort to derive a ruling, like a man who stands before tools of carpentry and is given a saw and an ax and similar tools without possessing general ideas of the procedure of carpentry and the method of using these tools. Just as shared elements are necessary for the process of derivation, similarly there are particular elements which differ from one question to the next such as the individual scriptural verses and the scattered accounts relevant to the question, for they constitute the other part necessary in this process. Therefore, mere knowledge of the shared elements that are described by the science of jurisprudence is not enough. Anyone who tries to perform derivation on the basis of jurisprudential knowledge alone is like one who possesses general theoretical information about the process of carpentry but has no ax or saw or similar carpentry tool. Just as such a person would, for example, be incapable of making a wooden bed, similarly the expert in jurisprudence would be incapable of derivation if he/she did not carefully scrutinize the particular elements that vary from one case to the next. Thus the shared and particular elements are the two poles incorporated in the process of derivation, and both alike are indispensable for the process.
Jurisprudence is to Legal Understanding as Theory is to Application
We fear we may have inspired a mistaken conception in you when we explained that in the discipline of jurisprudence one who derives [rulings] studies shared elements and defines them, whereas in discussions of the discipline of legal understanding such a person avails himself of particular elements in order to complete the process of derivation. Some may suppose that when in jurisprudence we have studied the shared elements in the process of derivation and have, for example, recognized the probativity of the account related and the probativity of the prima-facie meaning and additional jurisprudential elements, no further intellectual effort is incumbent upon us, since, seeing that we have mastered these elements, we need the mere extraction of relevant accounts and prooftexts from their places in the sources in order for them to be added to the shared elements and for the divine-law ruling to be derived from them, and that this is an easy task by its nature which does not involve any intellectual effort.
Yet this conception is erroneous to a great degree because the jurisconsult, when s/he employs the shared elements for the process of derivation and defines them for the science of jurisprudence, is not content after that to gather blindly the elements particular to the case from the books of traditions and accounts. Rather, his/her obligation in the discipline of legal understanding remains the application of those shared elements and general theories to the particular elements, and the application is an intellectual task which, by its nature, requires study and close examination. The intellectual effort expended as a specialist in jurisprudence does not free one from expending a further effort in the application [of jurisprudential principles]. Let us suppose, for example, that in the discipline of jurisprudence the specialist in jurisprudence is convinced of the probativity of the prima-facie meaning as commonly understood. Is it, then, sufficient for him/her to point to the account of All b. Mahziyar which defines the items subject to the one-fifth tax, for example, so that he may add that account to the shared element and thereby derive the ruling that an inheritance from one's father is not taxable since it is not mentioned among the items subject to the one-fifth tax? Does the jurisconsult not need precisely to determine what is signified by the prooftext in the account in order to understand the category of the thing signified according to common usage, and to study everything connected with determining the prima-facie meaning in common usage from contexts and indications internal or external to the prooftext, in order to be able confidendy to apply the shared element which proposes the probativity of the prima-facie meaning in common usage? In this light we understand that legal discussion concerning the particular elements in the process of derivation is not merely an act of gathering, but is the domain of the application of jurisprudential theories. The application of general jurisprudential theories requires its own particular talent and meticulousness. Being meticulous merely about general jurisprudential theories does not free one from the need to be meticulous about their application. How evident it is that one who studies general theories of medicine in depth must, in the domain of their application to a case of illness, exercise meticulousness, total attentiveness and reflectiveness in applying these theories to the patient before him!
The Interaction Between Legal-Understanding Thought and Jurisprudential Thought
We have recognized that the discipline of jurisprudence plays the role of logic in respect to the discipline of legal understanding and that the relation between the two is the relation between theory and application. This close interconnectedness between the two explains to us the mutual interaction between the jurisprudential cast of mind on the level of theories on the one hand, and the legal-understanding cast of mind on the level of application on the other, because the expansion of discussions of application impels discussion of theory a step forward. It does so because it stirs up difficulties as it advances and necessitates the establishment of general theories for their solution. Similarly, meticulousness of inquiry into jurisprudential theories is reflected at the level of application since, insofar as the theories become more comprehensive and more precise, the method of their application demands greater precision and depth. This interaction between the two casts of mind, that of jurisprudence and that of legal understanding, is confirmed throughout the history of the two disciplines. A study of the stages which legal-understanding and jurisprudential inquiry have passed through in the history of the disciplines reveals this with great clarity, for the discipline of jurisprudence developed in the midst of the discipline of legal understanding just as legal understanding developed in the midst of the discipline of tradition.
At first, the discipline of jurisprudence was not independent of the discipline of legal understanding. As the discipline of legal understanding grew and the horizons of legal thinking expanded, common threads and shared elements in the process of derivation began to appear and come to light. The practitioners of legal understanding began to observe the participation of these procedures in common elements without which a divine-law ruling could not be derived. This development was a sign of the birth of the discipline of jurisprudence and the adoption by the legal-understanding cast of mind of a jurisprudential orientation. So the discipline of jurisprudence separated from the discipline of legal understanding at the level both of discussion and of writing. It began to broaden and flourish gradually through the growth of jurisprudential thought on the one hand, and due to the expansion of legal inquiry on the other hand, because the expansion of the scope of the application of the law continually directed the attention of practitioners to new difficulties, and appropriate solutions for them were being proposed. These solutions were beginning to take the form of shared elements in the discipline of jurisprudence.
To the degree that the jurist became distant from the age of proof-texts, the aspects of obscurity in derivation from its divine-law sources became more numerous, and as a result of the distance in time, the gaps in the process of derivation became more diverse. And so the need was more and more keenly felt to define some general principles by which to treat these aspects of obscurity and to fill these gaps. In this way the need for the discipline of jurisprudence was a historical matter, in the sense that the need became stronger and more unmistakable the farther the specialists in law became distant historically from the age of the prooftexts, and the more doubts accumulated about the process of derivation that they practiced.
On this basis we can explain the disparity in time between the flourishing of the discipline of jurisprudence in the domain of Sunni legal thought and its flourishing in the domain of Twelver Shi f legal thought, for history indicates that the discipline of jurisprudence matured and flourished earlier in the domain of Sunni law than it matured and flourished in our Twelver Shi”f legal domain. That earlier flourishing occurred because the Sunni school maintained that the age of prooftexts ended with the death of the Prophet. So when Sunni legal thought entered the second Islamic century it had already become distant from the age of prooftexts by a long period of time, a situation which by its nature created breaches and gaps [in legal understanding].
As for the Twelver Shifs, at that point they were still living in the age of prooftexts because the Imam is an extension of the existence of the Prophet. So the problems that concerned the Twelver Shn jurists in derivation were a great deal less troubling, so much so that there was no room to feel a strong need to establish a discipline of jurisprudence. For this reason we find that in Twelver Shnsm, by the mere fact that the age of divinely inspired provision ended for them with the beginning of the Occultation [260/874] or, more particularly, the end of the Lesser Occultation [329/940], the jurisprudential cast of mind only started among them at that time and they embarked upon the study of shared elements. Naturally, this does not mean that the seeds of jurisprudential thought did not exist among the jurists who were companions of the Imams. Rather these seeds had existed from the times of the Imams Muhammad al-Baqir and Ja'far as-Sadiq on a level appropriate for that stage of development. Among the historical evidence for that are those things transmitted in the books of tradition, questions related to a number of shared elements in the process of derivation. A number of transmitters [of traditions] directed such questions to Imam Ja'far as-Sadiq and other Imams and received answers from them. These questions reveal the existence of the seed of jurisprudential thinking among them. Some of the companions of the Imams wrote treatises on certain jurisprudential questions, such as Hisham b. al-Hakam among the companions of Imam [Ja'far] as-Sadiq, about whom [sc. Hisham] it is related that he wrote a treatise on utterances, which strengthens the case [that the seeds of jurisprudential thinking existed among the Shi is in that early period].
The Permissibility of the Process of Deriving Divine-Legal Rulings
As long as the discipline of jurisprudence remains bound up with the process of derivation and defines the shared elements in that process, it is necessary that, before anything else, we know the position of the divine law in regard to this process: Does the Lawgiver permit anyone to exercise this process so that scope be created to establish a discipline for the study of the shared elements?
The truth is that the question of the permissibility of derivation, when it is put forward for discussion in the form in which we have put it forward, does not appear to be worthy of debate. For when we ask ourselves whether we are permitted to undertake the procedure of derivation, then the answer that comes spontaneously is positive. It is positive because, as has been said above, the process of derivation consists of defining the practical position before the divine law by the use of inference. It is self-evident that a human by virtue of adherence to the divine law is obligated to define his/her practical position before it. When the rulings of the divine law are not overwhelmingly self-evident and clear to a degree which relieves one of any need to establish an argument, then it is not logical that people be forbidden to define their practical position through inference.
Unfortunately, however, this question happens to have acquired another form not lacking some degree of obscurity and confusion. This form of the question has become the cause of disagreement among the jurists on account of this obscurity and confusion. This situation exists because the word ijtihad has been used to express the idea of a process of derivation. In this way the question has been asked: Is ijtihad permissible in the divine law? When the word ijtihad enters the question - and it is a word which has passed through numerous technical meanings in its history - it results in the shadow of those previous technical meanings being cast upon the discussion. As a result, some have answered the question negatively. This in turn led to the condemnation of the entire discipline of jurisprudence because it was desired only for the sake of ijtihad. If ijtihad was declared invalid, there was not considered to be any need for the discipline of jurisprudence.
In the course of clarifying this it is necessary that we mention the development through which the word ijtihad passed in order to clarify how the dispute which occurred over the permissibility of the process of derivation and the outcry that was aroused against it were the result only of an inexact understanding of the technical vocabulary and of inattention to the transformations through which the word ijtihad passed in the history of the discipline.
Ijtihad is lexically derived from jahd, which means “expending one's utmost effort to carry out some task.” This word had first been used in the legal sphere to express one of the principles which some Sunni legal schools laid down and proceeded with, namely, that the jurist, when he wants to derive a legal ruling and does not find a specific divine injunction indicating the [relevant] ruling in the Qur'an or sunna, has recourse to ijtihad in place of specific divine injunction. Here ijtihad means personal thinking: the jurist when s/he does not find a prooftext has recourse to his/her particular thinking, seeks inspiration from it and builds on the basis of making the law be whatever seems preferable according to his/her personal thought. This is sometimes also called opinion.
Ijtihad in this sense is considered one of the arguments used by the jurist and one of his/her sources. Just as the jurist may rely on Qur'an and sunna and make inferences on the basis of both alike, similarly in situations of the unavailability of a prooftext s/he relies on personal ijtihad and makes legal inferences on the basis of it.
Major schools in Sunni law proclaimed this idea, the leader among them being the school of 'Abu Hanffa. At the same time this idea encountered strenuous opposition from the Imams of the Family of the Prophet [recognized by the Twelver Shifs] and the jurists who adhered to their school.
Tracing the word ijtihad indicates that the word carried this meaning and was used to express it from the time of the Imams until the seventh Islamic [13th C.E.] century. The accounts transmitted from the Shfi Imams condemn ijtihad, meaning by it that legal principle which adopts personal thinking as one of the sources of a ruling. The attack on this legal principle had also entered the realm of writing in the age of the Imams and in the age of the transmitters who conveyed what the Imams left behind. The attack usually made use of the word ijtihad to express that principle in a way that agrees with the technical use which occurs elsewhere in the accounts of the Imams. Abd Allah b. Abd ar-Rahman az-Zubayr [floruit c. 250/870] wrote a book entided The Benefit: Concerning the Attacks on the first Caliphs and a Rejection of the Users o/”Ijtihad and Analogy. Hilal b. Ibrahim b. 'Abf 1-Fath al-Madanf wrote a book on the subject entitled A Refutation of Those -who Reject the Reports of the Prophet and Rely on the Results of Intellects. In the period of the Lesser Occultation [260/874 - 329/941] or near to that time, 'Isma'fl b. 'All b. 'Ishaq b. 'Abf Sahl an-Nawbakhtf [died 311/923] wrote a book refuting lsa~ b. 'Aban on ijtihad. All of this is set down by an-Najashf [died 450/1058], the author of Ar-Rijal, in his biographical notices of each of the above.
In the period succeeding the Lesser Occultation we find [Ibn Babawayh al-Qumf] as-Sadduq in the mid-fourth [eleventh] century continuing this attack. As an example we mention his comment on the story of Moses and al-Khidr, when he wrote:
Moses, in spite of the perfection of his intellect and his excellence and his position [as a prophet] in relation to God Most High, failed to comprehend the meaning of the actions of al-Khidr with his powers of inference and deriving conclusions, so much so that Moses became confused as to the nature of the situation. If analogy and derivation and inference are not permissible for the Prophets of God and His Messengers, then how much more so must those below them among the religious communities not be permitted them! If the option to choose [an interpretation] was not correct for Moses, in spite of his excellence and his position, then how can a religious community be fit to have the option of choosing the Imam, and how are they fit to derive divine-law rulings and infer them with their imperfect intellects and differing opinions?
In the latter part of the fourth century Shaykh al-Muffd [died 413/1022] came and followed the same line and attacked ijtihad, referring by this word to the above-mentioned legal principle [of private judgment]. He wrote a book on this subject entitled A Refutation of All b. al-Junayd [al-'Iskdfi] Concerning the Ijtihad of Individual Opinion.
We find the term itself in the works of as-Sayyid al-Murtada [died 436/1034] in the early part of the fifth century, when he wrote in adh-Dharta condemning ijtihad, saying “Ijtihad is invalid, and the Imamiyya do not consider it permissible to proceed according to supposition or individual opinion or ijtihad.” In his legal book al-Intisdr he wrote, referring to Ibn al-Junayd, “It is a kind of individual opinion and ijtihad that Ibn al-Junayd relied upon in this question and his error is evident.” And on the question of wiping the top of both feet clean in ablution, he says in the chapter on purity of al-Intisar, “We do not consider ijtihad correct and do not advocate it.”
This particular use of the word ijtihad also continued after that time. Thus ash-Shaykh at-Tusi w ho died in the middle of the fifth century A.H. writes in his book al-Udda, “As for analogy and ijtihad, in our school they are not arguments; rather, their use is prohibited.” In the latter part of the sixth century Ibn 'Idrfs [died 598/1202] in his book as-Sara'ir in his discussion of the question of the contradiction of two oral testimonies reviews a number of the reasons for preferring one testimony over another, then comments “According to the followers of our school there is no other reason for giving preference [to one testimony over another]; analogy, discretionary opinion and ijtihad are invalid in our school.”
These texts in their continuous historical sequence indicate that the word ijtihad was an expression of that legal principle down to the beginning of the seventh century A.H. On this basis the word acquired an odious coloration and a character of despicability and loathsomeness in the Twelver Shu legal mind as a result of the opposition to that principle and faith in its invalidity.
Yet the word ijtihad underwent developments thereafter in the technical vocabulary of our jurists. We do not at present have a Shfi text reflecting that development historically earlier than Kitab al-Ma'drij by al-Muhaqqiq al-Hillf (who died in 676 A.H. [1277 C.E.]) when under the heading “The True Nature of Ijtihad” al-Muhaqqiq wrote:
[Ijtihad] in the common usage of the jurists is the expending one's utmost effort to extract legal rulings. In this sense extracting legal rulings from the arguments of the law is a kind of ijtihad, because these rulings are constructed on theoretical considerations which have in most part not been derived from the prima-facie meanings of the prooftexts, whether the argument [for these rulings] be analogy or something else. So, according to this account, analogy is a kind of ijtihad. If it is said - on this basis - that the Imamiyya must be among the partisans of ijtihad, we agree that such is the case. Yet there is something confusing about it since analogy is part of ijtihad. Setting aside analogy, however, we are among the partisans of ijtihad in obtaining rulings by theoretical means, of which analogy is not one.
On the basis of this text it is clearly observable that the word ijtihad continued to be burdened in the basic mental outlook of jurists with the consequence of its first technical use. This is why al-Hillfs text alludes to the existence of those who hold themselves aloof from this description and for whom it is difficult to describe the jurists of the Twelver Shfis as practitioners of ijtihad.
However, al-Muhaqqiq al-Hillf himself did not stand aloof from the word ijtihad after he developed its meaning - or it evolved in the common usage of jurists - in a way that would allow it to agree with the methods of legal derivation used in Twelver Shu legal understanding, since, while ijtihad was a source for the jurist on which s/he drew and an argument with which s/he made inferences just as s/he draws on a Qur'anic verse or a tradition, ijtihad came in its new technical meaning to express the effort jahd, as above] which the jurist expends in extracting a divine-law ruling from its arguments and sources. Thus [ ijtihad] was not considered one of the sources of derivation, but rather the process which the jurist practices of deriving a ruling from its sources.
The difference between the two meanings is essential in the utmost degree, since, according to the first technical use of ijtihad, it was the jurist's obligation to derive rulings from his personal thinking and his particular inclination in a case in which no prooftext is available. If the jurist is asked “What is your argument and the source of this ruling of yours?,” he will offer ijtihad as the basis on which he drew conclusions and say “The argument is my ijtihad and my particular thinking.” But the new technical meaning does not permit the jurist to bring forward any ruling on the basis of ijtihad, because ijtihad in the second sense is not a source of the ruling but rather the process of derivation of rulings from their sources. If the jurist should say “This is my ijtihad” his meaning would be “This is what I have derived from the sources and arguments.” And then we would have the right to ask questions and demand that he indicate to us those sources and arguments from which he derived the ruling.
This new meaning for the word ijtihad also passed through a certain amount of development. Al-Muhaqqiq al-Hilh had confined it to the area of processes of derivation that do not rely on the prima-facie meanings of prooftexts. So any process of legal derivation that does not rely on the prima-facie senses of prooftexts is called ijtihad, to the exclusion of what does depend on such prima-facie meanings. Perhaps the impulse to this confinement of the meaning [of ijtihad] is that the derivation of a ruling from the prima-facie sense of a prooftext does not involve such a great deal of effort jahd again] or intellectual strain that it should be called [any sort of] ijtihad.
Then the scope of ijtihad subsequendy widened. It came to include the process of derivation from the prima-facie sense of a prooftext as well, because the specialists in jurisprudence subsequently observed correcdy that the process of derivation from the prima-facie sense of a prooftext absorbs a great deal of intellectual effort as one proceeds to gain knowledge of that prima-facie sense and determine what it is and establish the probativity of the prima-facie sense in common usage. The extension of the meaning of ijtihad as a technical term did not stop at this limit. Rather, in a new development it came to include all aspects of the process of derivation. Every process which the jurist practices to determine one's practical position before the divine law, whether by way of establishing an argument for the divine-law ruling or by direcdy specifying the practical position, enters into the realm of ijtihad.
In this way ijtihad became synonymous with the process of derivation. Subsequently the discipline of jurisprudence became the discipline necessary for ijtihad because it is knowledge of the shared elements in the process of derivation.
In this light we can explain the position of a group of our outstanding scholars who opposed the word ijtihad because of the heritage it bore from its first technical use against which [the Imams,] the people of the House [of the Prophet,] launched a severe attack. It differs from ijtihad in the second meaning. Seeing that we have now distinguished between the two meanings of ijtihad, we can restore to the matter its self-evidential nature and see with great clarity the permissibility of ijtihad in the meaning synonymous with the procedure of derivation, and from that follows the necessity of preserving the discipline of jurisprudence in order to study the shared elements in the process of derivation.
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Author: Ayatullah Muhammad Baqir as-Sadr
