Ijtihad

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From wikishia

Ijtihād (Arabic:إجتهاد) is an endeavor to deduce the rules of sharia from the sources of jurisprudence with the use of proper methods. It is a deduction of practical obligations in Islam from sources with the methods elaborated in principles of jurisprudence. For Shi'a scholars, the sources of jurisprudence are restricted to the Qur'an (Arabic: al-Kitab, the Book), the tradition of the infallible (hadith), ijma' (consensus), and intellect. The consensus is not, by itself, a separate source for jurisprudence; it is a source of evidence for tradition. It reveals the traditions of the Prophet (s) and Imams (a). Some Shi'a scholars, including Akhbaris, have only recognized Qur'an and hadith as sources of jurisprudence, and some have only considered the tradition as a source. Sunni scholars have more disagreements with respect to what legitimately counts as sources of jurisprudence.

In order to acquire expertise in jurisprudence (i.e. ijtihad) one needs to master several branches of religious disciplines and Arabic literature, such as sarf and nahw, principles of jurisprudence, logics, Ayat al-Ahkam (verses of the Qur'an regarding a Muslim's practical obligations), al-rijal (knowing the reliability of the narrators of Hadiths), al-diraya (knowing how to understand the texts of hadiths), the views of early scholars of jurisprudence, the exegesis of the Qur'an, and so on. According to Shi'a jurisprudence, ijtihad is a disjunctive obligation ( al-wajib al-takhyiri), that is, every Muslim should either be a mujtahid (an expert in jurisprudence) or discover the rules of sharia through either of the following ways: by following (taqlid) a mujtahid or by acting on the basis of precaution (ihtiyat). Ijtihad is a collective obligation (Al-Wajib al-Kifa'i) —however, at least some Muslims should be mujtahid— in order for people to gain answers to questions regarding jurisprudence and to preserve the rules of sharia.

The words "ijtihad" and "mujtahid" have never occurred in the Qur'an, but some Shi'a researchers maintain that the Qur'anic word "tafaqquh" is very close to the notion of ijtihad.

Notion

In Arabic, the word "ijtihad" literally means trying one's best in order to do something.[1]

In jurisprudence, the notion has been defined in several ways, including:

  • A scholarly and systematic effort to find arguments for sharia obligations with regard to subsidiary affairs on the basis of the principles, rules and sources of sharia and intellect.[2]
  • An effort to find arguments for the laws of sharia.[3]
  • An expertise (malaka) with which one can deduce, or at least make probable statements about, the laws of sharia.[4]
  • A deduction of practical laws and obligations of sharia from sources and principles.

The word "malaka" (expertise) is frequently applied in the capacity of ijtihad. "Malaka" is used to refer to an inherent power to do something, or a power to recognize something quickly through exercises. Thus, the expertise of ijtihad implies that the mujtahid has the potential or power to deduce the rules from sources at his disposal, even if he does not actually exercise it.

Background and History

The history of ijtihad can be examined in various respects. Some people believe that there are three periods in the history of ijtihad:

Period of Legislation

This is the period of the Prophet (s)'s life and the revelation. In this period, divine laws were being expressed through the Qur'an and the tradition. The Qur'anic verse, "they could devote themselves to studies in religion, and admonish the people"[5] implies the permissible existence of ijtihad in this period.[6] However, some people have appealed to the possibility of gaining certainty regarding the laws via the revelation, to show ijtihad as impermissible during this time.[7]

Period of Twelve Imams

This period extends from the Prophet's (s) death to the age of Minor Occultation. According to Shi'a doctrines, Imams (a) are infallible and therefore, do not commit sins and mistakes; thus it is obligatory to follow their tradition. On this view, the Shi'a jurisprudence is rich and dynamic. In this period, however, as in some hadiths, some Shi'as were encouraged by Imams (a) to practice the correct form of ijtihad.[8] In order to preserve the legacy of jurisprudence and principle beliefs, Imams (a) prohibited their followers from confusing personal opinions with hadiths and encouraged them to preserve, write, and correctly quote the hadiths.[9] In the meantime, they rejected forms of ijtihad based on analogy (qiyas), preferences (istihsan), and personal speculations (ijtihad bi-l-ra'y).[10]

Period of Occultation

After the occultation of the last Imam (a), Shi'as needed religious laws for new events they encountered, but there was a void due to the Imam's (a) absence. However, according to hadiths left from Imams (a), they were obliged to refer to Shi'a jurists. Imam al-Mahdi (a), in a hadith, refers Shi'as to the jurists in order to become knowledgeable of religious laws.[11] Thus jurists took over the responsibility of religious authority and leadership in the occultation age.

In the occultation period, ijtihad underwent some stages:

  • Collection of hadiths and the appearance of books regarding Islamic laws in the form of quoting the texts of hadiths (without mentioning their chains of narrators),[12] such as al-Saduq's al-Muqni', al-Mufid's al-Muqni'a, and al-Shaykh al-Tusi's al-Nahaya.
  • The development of ijtihad and appearance of independent books in jurisprudence, such as al-Shaykh al-Tusi's al-Mabsut.
  • The period of stagnation in Shi'a jurisprudence mainly as a result of the fact that jurists were under the shadow of al-Shaykh al-Tusi, and stopped practicing jurisprudence.
  • The period of renewed development of ijtihad.
  • The emergence of Akhbaris leading to the isolation of ijtihad on the basis of 'ilm al-'usul.
  • The revival of ijtihad and the decline of Akhbaris.

Preliminaries

Ijtihad in the period of Islamic legislation (the time of the Prophet (s)) and Imams (a)) was tantamount to directly appealing to the words of the Prophet (s) and Imams (a), and thus it did not require mastery of some literary and other disciplines, but in the period of occultation, ijtihad requires mastery of some disciplines such as sarf (Arabic conjugation), nahw (Arabic grammar), Arabic philology, logic, al-rijal (knowledge of the reliability/unreliability of narrators of hadiths), principles of jurisprudence, familiarity with the Qur'an (exegesis) and the tradition (hadiths), and common Arabic parlance. There is a discussion concerning the extent to which these disciplines should be learned by a mujtahid.[13] However, the nature of ijtihad, which is the extraction of subsidiary laws from the principles, is the same in both periods —those of the time of the Prophet (s) and Imams, and the occultation period.[14]

Types

Ijtihad has been classified into different categories, including:

  • General and particular ijtihad: the particular type of ijtihad is propounded by Sunni scholars. It is a sort of legislation by a jurist when there is no evidence from the Qur'an and the tradition, and its obvious example is qiyas (analogy).[15] Indeed al-Shafi'i takes it to be equivalent to qiyas. In this type of ijtihad, when there is no evidence for a rule of sharia from the Qur'an and the tradition, the mujtahid can appeal to what intuitively seems correct to him. Therefore, in this type of ijtihad, the mujtahid's personal preferences or opinions constitute as a source of Islamic jurisprudence.
Shi'as do not need the particular type of ijtihad, because their sources of jurisprudence are rich with hadiths from Imams (a). What is acceptable for Shi'as, and was common at the age of Imams among their disciples, is the general type of ijtihad, in which the jurist extracts the laws of sharia from the Qur'an and hadiths with an appeal to reasoning and the methodology of principles of jurisprudence, without the need to rely on his personal opinions.[16] In the words of Morteza Motahhari, the legitimate type of ijtihad for Shi'as is the "deployment of reasoning in understanding religious evidence [the Qur'an and hadiths] for the laws of sharia".[17]
  • Actual and potential ijtihad: the potential type of ijtihad is the capacity of the mujtahid for deducing the laws without having actually deduced the laws from their sources. The actual type of ijtihad is the actual deduction of the laws by one's capacity.
  • Absolute (mutlaq) and partial (mutajazzi) ijtihad: the absolute type of ijtihad is the power to deduce the laws in all parts of jurisprudence, but the partial type of ijtihad is the power to deduce in only some parts of jurisprudence. such as, prayers.[18]

Laws

There are some sharia laws for ijtihad, both obligatory or defining (al-hukm al-taklifi) and declaratory (wad'i).

Obligatory Laws

There are two respects in which ijtihad is subject to obligatory laws:

  • Disjunctive obligation (al-wujub al-takhyiri): it is obligatory for any person to be aware of his sharia obligations and duties, in order to practice them in one of the three ways: ijtihad, following (taqlid) a mujtahid, and acting on the basis of precaution (ihtiyat).
  • Collective obligation (al-wujub al-kifayi): since the preservation of sharia laws from distortion and negligence, and the responsiveness to the needs of an Islamic society are obligatory, it is a collective obligation to become a mujtahid in the sense that everybody has to become a mujtahid, unless some people undertake the task —in this case it would not be obligatory for others to become mujtahids.

Declaratory Laws

Reliability of fatwas: fatwas issued by a mujtahid are reliable, and it is obligatory for others to follow the laws that the mujtahid has deduced from the sources. Many other issues are included below, such as:

  • The reliability of a mujtahid's fatwa for himself: a mujtahid's fatwa is reliable for himself, regardless of whether they are an absolute mujtahid or a partial one, and it is not permissible for a mujtahid to follow others in the laws of sharia.[19]
  • The reliability of a mujtahid's fatwas for others: an absolute mujtahid's fatwas are reliable for others —they can follow him— but it is a matter of controversy whether it is permissible for people to follow the fatwas of a partial mujtahid.[20]
  • Legitimacy of judgeship: it is permissible for a mujtahid to be a judge, though this is controversial with respect to a partial mujtahid.[21]
  • Fallibility (takhti'a) and infallibility or factivity (taswib): according to Shi'a doctrines, laws of sharia exist as matters of facts, and a mujtahid should seek to discover them —sometimes he reaches them and sometimes he misses them. This is why Shi'as are called 'mukhti'a', since they take mujtahids to be fallible. But Sunnis are 'musawwiba' in that they take mujtahids to be infallible.[22]
  • Adequacy (ijza'): what if a mujtahid makes a mistake about the rules of sharia and then discovers his mistake? What should he and his followers do? If a mujtahid changes his fatwa, should he and his followers do what they did again? Or is the previous action adequate (mujzi)?

Reliability of Fatwas

Faqihs (Islamic jurists) have appealed to some verses of the Qur'an for the reliability of a mujtahid's fatwas, including:

1- "And it does not beseem the believers that they should go forth all together; why should not then a company from every party from among them go forth that they may apply themselves to obtain understanding in religion, and that they may warn their people when they come back to them that they may be cautious?"[23]. The phrase "why should not" (Arabic: لولا, lawla) invites or motivates the believers to obtain understanding in religion and warn their people when they return to them. The purpose of warning is that people should be cautious.

The argument for the obligation of ijtihad, is as follows: if the purpose of an obligatory action (understanding in religion and warning people) is a volitional action of humans (being cautious), it ordinarily implies that the action is also obligatory; therefore it is obligatory for people to follow mujtahids (those who have gained an understanding in religion), since it is obligatory for them to be cautious, therefore this is done by following the warnings of mujtahids. Thus issuing a fatwa is a sort of warning, and the caution that is obligatory for people is to follow the fatwas. Therefore, the above verse implies the obligation of following a mujtahid, and this implies the reliability of a mujtahid's fatwa.[24]

Some scholars have doubts about the implications of the above verse in connection with the reliability of a mujtahid's fatwas, because they claim that the caution is obligatory only when the person in question is certain or assured of the warning. However, there have been responses to show that the verse is not qualified by the certainty of warned people. Others have proposed that the warning obliges the laymen to reflect on the evidence of the laws by themselves. Nonetheless, this is said to be against the consensus of the jurists to the effect that the laymen do not have such an obligation; otherwise their ordinary lives would be disturbed.[25] Muhammad Husayn Isfahani has claimed that if the understanding in religion depends on reasoning and reflection, then the verse implies the reliability of fatwas, and if it amounts to knowing a law of sharia by hearing it from the Prophet (s) or Imams (a), it does not imply the reliability of fatwas; rather it implies the reliability of the mujtahid's reports of a law of sharia. For God has obliged people to understand religion, and at the age of the Prophet (s), such understanding was nothing but hearing the laws from the Prophet (s). Therefore, 'warning' means a report of a law of sharia from the Prophet (s) or Imams (a), rather than a rule that is deduced through reasoning. Thus the verse does not imply the reliability of fatwas.[26]

Statements have shown it is true, that at the time of the Prophet (s), understanding in religion consisted in hearing the laws from the Prophet (s) and Imams (a) and reporting them to others. However, since the narrators were native Arabic speakers and sufficiently mastered the language, they were mujtahids about what they heard from the Prophet (s) and Imams (a). In other words, they did not need any preliminaries in order to be mujtahids. And since understanding in religion (tafaqquh fi l-din) is not qualified in the verse, it includes all its variations, such as ijtihad on the basis of reasoning.[27] 2- Another verse that has been appealed to in order to show the reliability of fatwas, is the following: "and we did not send before you any but men to whom we sent revelation —so ask the followers of the reminder if you do not know".[28]

It has been argued that the "reminder" in the verse is what reminds one of God, therefore the followers of the reminder are those familiar with the rules of God. The verse implies that it is obligatory to ask from the followers of the reminder, and it is clear that asking is not desirable by itself; it is just desirable in that it is to be practiced. Hence, the obligation of asking, implies the reliability of what the followers of the reminder say.[29] According to some scholars, the verse guides us to the general rational principle of the necessity of consulting the experts. In other words, it is rationally necessary for laymen to consult experts, and the verse guides us to this rational principle.[30]

Some people have raised objections to the appeal to this verse in order to show the reliability of mujtahids:

a. The context of the verse implies that the "followers of the reminder" are the scholars of Jews and Christians (People of the Book).[31] Therefore, it does not include mujtahids. It has been mentioned that since the verse states a general principle, the particular features of the case do not restrict it to the scholars of Jews and Christians; it also includes Imams (a) and mujtahids.[32]

b. In some hadiths "the followers of the reminder" has been interpreted as Imams (a). Therefore it does not include mujtahids.[33] It has been argued that such interpretations do not restrict the verse, since they only mention one instance of the verse without ruling out other instances.[34]

c. The verse apparently shows that the purpose of asking is to gain knowledge, rather than being obliged to follow the answers. What reinforces this interpretation is the story in which the verse has been revealed: the verse refers the 'People of the Book' to consult their scholars with respect to the prophecy of the Prophet (s). It is obvious that prophecy is a principle of beliefs that requires knowledge, rather than practice.[35] However, it has been argued that since the verse involves a reason that helps generalize it to other cases: the verse says that you should consult the experts (people who know) in whatever you do not know —whether it be principles of beliefs or rules of sharia.

Ways of Discovering that Someone is a Mujtahid

There are three ways to find out if someone is a mujtahid:

  • The follower gains certainty about someone's ijtihad.
  • The mujtahid is so well-known that yields certainty about his ijtihad.
  • The testimony of two informed and fair experts, provided that two other fair experts do not testify otherwise.[36]

See also

Notes

  1. ↑ Fayyūmī, Miṣbāḥ al-munīr, vol. 1, p. 112.
  2. ↑ Motahhari, Āshnāyī bā ʿulūm-i Islāmī, vol. 3, p. 18.
  3. ↑ Najafī, Jawāhir al-kalām, vol. 1, p. 289-290, 320.
  4. ↑ Najafī, Jawāhir al-kalām, vol. 1, p. 289.
  5. ↑ Qurʾān, 9:122.
  6. ↑ See: Ālūsī, rawḥ al-maʿānī, vol. 6, p. 45-46.
  7. ↑ Bustānī, Tafsīr al-Banāʾī, vol. 2, p. 386-387.
  8. ↑ Ḥurr al-ʿĀmilī, Wasāʾil al-Shīʿa, vol. 27, p. 61-63.
  9. ↑ Ḥurr al-ʿĀmilī, Wasāʾil al-Shīʿa, vol. 27, p. 79, 81.
  10. ↑ Ḥurr al-ʿĀmilī, Wasāʾil al-Shīʿa, vol. 27, p. 41.
  11. ↑ Ḥurr al-ʿĀmilī, Wasāʾil al-Shīʿa, vol. 27, p. 41.
  12. ↑ Gurjī, Tārikh-i fiqh wa fuqahā, p. 128-140, 223, 227, 240-242; Khomeini, Minhāj al-wuṣūl, vol. 1, p. 12-15.
  13. ↑ ʿArāqī, Nihāyat al-afkār, vol. 4, p.227; Khoei, Miṣbāḥ al-uṣūl, vol. 3, p. 443-444; Khomeini, al-Ijtihād wa l-taglīd, p. 10-17.
  14. ↑ Khomeini, al-Ijtihād wa l-taglīd, p. 71-72.
  15. ↑ Ḥakīm, al-Uṣūl al-ʿāmma, p. 385.
  16. ↑ Ḥillī, Maʿārij al-Uṣūl, p. 179-180.
  17. ↑ Motahhari, Majmūʿa-yi āthār, vol. 20, p. 164-167.
  18. ↑ Khoei, al-Tanqīḥ, p. 28.
  19. ↑ Khoei, al-Tanqīḥ, p. 29-32.
  20. ↑ Khurāsānī, Kifāyat al-uṣūl, p. 467; Khoei, al-Tanqīḥ, p. 35-36.
  21. ↑ Najafī, Jawāhir al-kalām, vol. 21, p. 399-400.
  22. ↑ Khoei, al-Tanqīḥ, p. 36-40.
  23. ↑ Qurʾān, 9: 122.
  24. ↑ ʿArāqī, Nihāyat al-afkār, vol. 4, p.244; Khurāsānī, Kifāyat al-uṣūl, p. 467.
  25. ↑ Ḥillī, Maʿārij al-Uṣūl, p. 179-198.
  26. ↑ Iṣfahānī, Nihāyat al-dirāya, vol. 3, p. 210.
  27. ↑ Khoei, al-Tanqīḥ, p. 86-87.
  28. ↑ Qurʾān, 16: 43.
  29. ↑ Khoei, al-Tanqīḥ, p. 28.
  30. ↑ Ṭabāṭabāyī, al-Mīzān, vol. 12, p. 259.
  31. ↑ Khurāsānī, Kifāyat al-uṣūl, p. 473.
  32. ↑ Khoei, al-Tanqīḥ, p. 28.
  33. ↑ Khurāsānī, Kifāyat al-uṣūl, p. 473.
  34. ↑ Khurāsānī, Kifāyat al-uṣūl, p. 473.
  35. ↑ Khurāsānī, Kifāyat al-uṣūl, p. 473.
  36. ↑ Ḥakīm, Mustamsak al-ʿUrwa, vol. 1, p. 38.

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