IJTIHAD

By:
ALI HUSSNAIN BHALLI
Research Officer,
LL.M. (Aus) M.A., Punjab

1. Introduction:

Ijtihad played an important role in the development of Islamic legal theory. The aim of this essay is to discuss the concept of Ijtihad in the development of the Islamic legal theory. Thus it will not be out of place to give a brief introduction of the concept of Ijtihad.

2. Ijtihad:

The Arabic word Ijtihad is derived from the 'Juhud' which means 'expending of maximum effort in the performance of an act'. In Islamic jurisprudence Ijtihad means the effort made by the Mujtahid in seeking knowledge of the Ahkam (Rules) of the Sharia'ah through interpretation. (Nyazyee, Ch. 14: P. 263).

This definition implies the following:

· That the Mujtahid should expend the maximum effort, that is, he should work to the limits of his ability so much so that he realize his inability to go any further.

· That, the person expending the effort should be a Mujtahid. An effort expended by non-Mujtahid is of no consequence, because he is not qualified to do so.

· The effort should be directed towards the discovery of the Rules of the Sharia'ah that pertain to the conduct.

· The method of discovery of the Rules should be through interpretation of the texts with the help of other sources. This excludes the memorization of such Rules from the books of Fiqh or their identification by the Mufti. Thus, the activity of the Faqih and the Mufti cannot be called Ijtihad.

3. The Three Modes of Ijtihad:

The Jurists in general practice three types or modes of Ijtihad. In reality, the activity of the jurist cannot be split up into separate modes. Ijtihad is single seamless process, but for simplification and ease of understanding this activity is divided into three types as follows:

· In the first mode, the Jurist stay as close to the text as he can. He focuses on the literal meaning of the texts, that is, he follows the plain meaning Rule.

· When the first mode of literal construction is exhausted by the Jurists, he turns to syllogism, which is Qiyas. This mode is confined to strict types of analogy. These are called Qiyas Al-Ma'na and Qiyas Al.illah.

· The second mode of Ijtihad is confine to the extension of the law from individual texts, while in the third mode the reliance is on all the texts considered collectively. This means legal reasoning is undertaken more in the line with the spirit of the law and its purposes rather than the confines of the individual texts.

4. Role of Ijtihad in the development of Islamic legal theory.

Early notion of Islamic legal theory and the concept of Ijtihad:

At the time of the Holy Prophet (SAW) the only source of the Sharia'ah was revelation. That revelation had two types, one was the direct speech of ALLAH, namely the Holy Quran, and the other was indirect speech of ALLAH which the Holy Prophet (SAW) expressed in his own words, that is termed as Sunnah of the Holy Prophet (SAW).

The Holy Quran by nature is implicit. It does not provide details of each and every individual case, rather it describes general principles, examples etc. the Holy Prophet (SAW) used to explain and implement those principles and general rules in individual cases, that is Sunnah of the Holy Prophet (SAW), in that sense the Sunnah is the explanation of the Holy Quran, though as it is mentioned earlier that explanation was also directed by the ALLAH.

Although as it is mentioned earlier that the only source of law at that time was revelation, but some time the Holy Prophet (SAW) practiced Ijtihad in its narrow sense in the absence of reveled rule as the Holy Prophet (SAW) said, 'when I do not receive a revelation I adjudicate among you on the basis of my opinion'. However, the difference of that Ijtihad with ordinary Ijtihad bil ray is that whenever. He (SAW) mistook, a verse would be revealed in order to inform him the correct decision. For instance, once the Hojy Prophet (SAW) was asked by a woman about the rule of dhihar. The Holy Prophet (SAW) answered her "I don't think that the rule is different from that of divorce". Then ALLAH revealed verses regarding the hukum of "Dhihar", which was not similar to divorce and then the hukum of dhihar had been corrected.

The companion of the Holy Prophet (SAW) used to do Ijtihad at that time also. When the Holy Prophet (SAW) was not available or when the Prophet sent them to somewhere, they use to do Ijtihad in the absence of explicit Qur'anic verse or Sunnah of the Holy Prophet (SAW). They use to interpret the verses of the Quran and the Sunnah of the Holy Prophet (SAW) as well as in cases of completely new issues they use to do Ijtihad on the basis of the principles of Sharia'ah. The advantage of them was if they mistook they could correct themselves by asking the Holy Prophet (SAW) or ALLAH would revealed the correct rule. Therefore, Sharia'ah was very much based on the revelation at that time, i.e. either ALLAH would reveal the hukum of a certain mas'ala or He would approve the decision of the Holy Prophet (SAW) and his companions or He would disapproved and correct their decision(s). Hence, despite the fact that the practice of Ijtihad was started from that time, but it did not get the status of a source of Islamic legal theory then.

Development of Islamic legal theory and the concept of Ijtihad:

After the death of the Holy Prophet (SAW), the gate of revelation has been closed for ever. Therefore, in order to deal with new problems, the companions of the Holy Prophet (SAW) used to depend on the Ijtihad. However, it did not substitute the Holy Quran and Sunna at all, rather whenever they faced a new phenomenon regarding which they did not know any Qur'anic verse or Sunnah of the Holy Prophet (SAW), they used to ask the other companions whether they knew any Hadith of the Holy Prophet (SAW) concerning that. They used to do Ijtihad in the absence of the revealed rule and whenever they found any Hadith regarding that case they use to abandon their Ijtihad and followed that Hadith.

Because of the quick expansion of the Muslim world in first century, a huge number of people embraced Islam. A number of the companions of the Holy Prophet (SAW) migrated to different places in order to teach the new Muslims the science of Islam. People gathered around them to learn Islam. Through their teaching they created groups of scholars. Those groups were the producers of the different schools of thought.

Two distinctive trends of thought emerged at that time, namely Ahl al-Ray and Ahl al-Hadith. The trend of Ahl al-ray can be traced back to the second caliph Hazrat Umar (RA) and a renowned companion Hazrat Abdullah ibn Mas'ud (RA), whereas the trend of Ahl al-Hadith can be traced back from two renowned companions and scholars Hazrat Zaid Bin Thabit and Hazrat Abdullah Bin 'Umar (RA). Ahl al-ray are those who depend on personal opinion (Ijtihad bil ray) in order to solve the problems and analyze the Ahkam of Sharia'ah and extract the major causes of those in order to draw out those to new phenomena's. Ahl al-Hadiths are those who depend on only authentic evidences. There strategy is to express exactly what is in the authentic narrations. They do not involve in causation of the Ahkam of Sharia'ah and extend those to new phenomena's. Nevertheless, the more the Muslims faced new problems the more the former trend became prominent because of their wide practice of Ijtihad they could solve the new phenomena's better than Ahl al-Hadith School of thought. However, Ahl al-Hadith school of thought did not completely deny or overlook the concept of Ijtihad. Ijtihad also played a big role in the development of that school of thought. However, their concept of Ijtihad was narrower than that of Ahl al-Ray as discussed in the following section of the essay. Hence, it could be said that by the end of first century, Ijtihad became an important source of Islamic jurisprudence through the practice of it by the companions of the Holy Prophet (SAW) and their followers, although there were difference of opinion among them about the definition, scope and way of practice of it.

Institutionalization of Islamic legal theory and the role of Ijtihad in it:

The last companion of the Holy Prophet (SAW) died in the end of the first hijra. Around that time the process of institutionalization and compilation of Islamic jurisprudence started. The notion of Madhhad (School of thought) emerged at that time in different places. Although there were countless Madhhabs, but, apart from four Madhhabs others are not existed now a day. We will discuss here the development of those four Madhhabs and the concept of Ijtihad in those.

Hanafi school of thought: Hanafi school of thought is based on the jurisprudence of Imam Abu Hanifa. The Usul of Imam Abu Hanifa as he describes, is as follow:

"If I find any hukum in the Holy Quran, I confined myself with that. If I do not find that there, I accept Sunnah of the Holy Prophet (SAW) which has come to me through authentic narrators. When I do not find that in the Holy Quran and in the Sunnah, I follow the opinion of the companions meaning their general consensuses. In case of their disagreement with each other I accept or abandon which ever I want, but I do not prefer others opinion over theirs'. In case of the opinion of others, I have the right of Ijtihad as well as they have".

The Maliki School of thought: The Maliki Madhhad is based on the jurisprudence of Imam Malik (93-179 A.H.). The method of his jurisprudence which is the method of Maliki Madhhad as well is that, in order to find out the hukum of a certain issue he first used to look in the Holy Quran, if it is not available in the Holy Quran then he used to look it in the Sunnah of the Holy Prophet (SAW). Similarly if the Quran describes the principle or indirect hukum of the issue he also used to search the Sunnah in order to find out the details of that. He used to consider the practice of Ahl-Medina as Mutawatir Hadith. If he did not find the solution in the Holy Quran or in Hadith he would refer to the general consensus of the companions who were known as faqih, if there were no general consensus regarding that matter then he would follow the individual opinions of the companions or would do Qiyas. If it was an abstract matter where there is no room for Ijtihad bil ray then he would follow the opinion of a companion, else he would prefer Ijtihad bil ray.

Al-Shafi School of thought: Imam Al-Shafi emerged during the period of the compilation of the above mentioned two school of thought's jurisprudence. He is credited as the inventor of Usul al Fiqh. However, Kamali argues that the Usul al-Fiqh was existed before but until the time of Al-Shafi it was not in a form of science. Imam Al-Shafi authored a book regarding the principles and rules of jurisprudence namely Al-Risalah, which is considered as the first book on Usul al-Fiqh. The motivations which prompted Al-Shafi to introduce the usul al-Fiqh are some inconsistencies which he observed in the discourses of his predecessors. He mentioned those in the beginning of his book kitabul Umm.

It is appear from the reform activity of Al-Shafi that the objective of that was to make the Ijtihad systematic and to demolish the tendency of unconditional imitation of the predecessors Fatwas and hence to reopen and widen the scope of Ijtihad. Although, he excluded Ray from the category of Ijtihad, especially he was critical about Istihsan, and emphasized more on qias but he made the point clear that he is against 'the following of one's personal whim and amounts to unjustified legislations.

Conclusion:

In conclusion, it can be argued that Ijtihad played an important role in the development of Islamic legal theory. It appears from the essay that some of the school of thought emerged as a reaction against Taqlid or blind imitation of predecessors and the objective of them was to reopen and widen the gate of Ijtihad.