Ijtihad, or Personal Reasoning

59. Ijtihad is the most important source of Islamic law next to the Qur'an and the Sunnah. The main difference between ijtihad and the revealed sources of theShari`ah lies in the fact that ijtihad is a continuous process of development whereas divine revelation and Prophetic legislation discontinued upon the demise of the Prophet. In this sense, ijtihad continues to be the main instrument of interpreting the divine message and relating it to the changing conditions of the Muslim community in its aspirations to attain justice, salvation and truth.

60. Since ijtihad derives its validity from divine revelation, its propriety is measured by its harmony with the Qur'an and the Sunnah. The sources of Islamic law are therefore essentially monolithic, and the commonly accepted division of the roots of jurisprudence into the primary and secondary is somewhat formal rather than real. The essential unity of the Shari`ah lies in the degree of harmony that is achieved between revelation and reason. Ijtihad is the principal instrument of maintaining this harmony. The various sources of Islamic law that feature next to the Qur'an and the Sunnah are all manifestations of ijtihad, albeit with differences that are largely procedural in character. In this way, consensus of opinion, analogy, juristic preference, considerations of public interest (maslahah), etc., are all inter-related not only under the main heading of ijtihad, but via it to the Qur'an and the Sunnah. It is partly due to the formalistic character of these sub-divisions that they are often found to be overlapping and concurrent. Thus a ruling of ijma` is often based on analogy, maslahah or istihsan, and so on, despite its being designated as ijma`. Similarly,qiyas and istihsan are closely related to one another in the sense that one of the two main varieties of istihsan consists of a selection between two analogies on the same issue. The difference between maslahah and istihsan is largely procedural, for they are essentially the same, the one being reflective of the Maliki and the other of the Hanafi approach to ijtihad. It is thus evident that all the non-revealed proofs of Shari`ah are an embodiment of the single phenomenon of ijtihad.

61. Being a derivation from the root word jahada, ijtihad literally means striving, or self-exertion in any activity which entails a measure of hardship. It would thus be in order to use jahada in respect of one who carries a heavy load, but not so if he carries only a trivial weight. Juridically, however, ijtihad mainly consists not of physical, but of intellectual exertion on the part of the jurist. Ijtihad is defined as the total expenditure of effort made by a jurist in order to infer, with a degree of probability, the rules of Shari`ah from their detailed evidence in the sources. Some ulema have defined ijtihad as the application by a jurist of all his faculties either in inferring the rules of Shari`ah from their sources, or in implementing such rules and applying them to particular issues. ijtihad essentially consists of an inference(istinbat) that amounts to a probability (zann), thereby excluding the extraction of a ruling from a clear text. It also excludes the discovery of a hukm by asking a learned person or by consulting the relevant literature without the exercise of one's own opinion and judgement. Thus a person who knows the rules of Shari`ah in detail but is unable to exercise his judgement in the inference of the ahkam direct from their sources is not a mujtahid. Ijtihad, in other words, consists of the formulation of an opinion in regard to a hukm shar`i. The presence of an element of speculation in ijtihad implies that the result arrived at is probably correct, while the possibility of its being erroneous is not excluded. Zann in this context is distinguished from `ilm, which implies positive knowledge. Since the decisive rules ofShari`ah impart positive knowledge, they are excluded from the scope of ijtihad. Essential to the meaning of ijtihad is also the concept that the endeavour of the jurist involves a total expenditure of effort in such a manner that the jurist feels an inability to exert himself further. If the jurist has failed to discover the evidence which he was capable of discovering, his opinion is void. And lastly, the definition of ijtihad is explicit on the point that only a jurist (faqih) may practice ijtihad. This is explained by the requirements of ijtihad, namely the qualifications that must be fulfilled for attainment to the rank of mujtahid. When these requirements are met, it is inevitable that the mujtahid must also be a faqih. Thus the definition of ijtihad precludes self-exertion by a layman in the inference of ahkam.

62. The subject of ijtihad must be a question of Shari`ah; more specifically, ijtihad is concerned with the practical rules of Shari`ah which usually regulate the conduct of those to whom they apply (i.e. the mukallaf). This would preclude from the scope of ijtihad purely intellectual `aqli) and customary (`urfi) issues, or matters that are perceptible to the senses (hissi) and do not involve the inference of a hukm shar`i from the evidence present in the sources. Thus ijtihad may not be exercised in regard to such issues as the createdness of the universe, the existence of a Creator, the sending of prophets, and so forth, because there is only one correct view in regard to these matters, and any one who differs from it is wrong. Similarly, one may not exercise ijtihad on matters such as the obligatory status of the pillars of the faith, or the prohibition of murder, theft, and adultery. For these are evident truths of the Shari`ah which are determined in the explicit statements of the text.

63. The detailed evidences found in the Qur'an and the Sunnah are divided into four types, as follows.

1. Evidence which is decisive both in respect of authenticity and meaning.
2. Evidence which is authentic but speculative in meaning.
3. That which is of doubtful authenticity, but definite in meaning.
4. Evidence which is speculative in respect both of authenticity and meaning.

Ijtihad does not apply to the first of the foregoing categories, such as the clear nusus concerning the prescribed penalties (hudud). But ijtihad can validly operate in regard to any of the remaining three types of evidence, as the following illustrations will show:

1. An example of ijtihad concerning evidence which is definite of proof but speculative of meaning is the Qur'anic text in sura al-Baqarah (2 :2.28): 'The divorced women must observe three courses (quru') upon themselves. There is no doubt concerning the authenticity of this text, as the Qur'an is authentic throughout. However its meaning, in particular the precise meaning of the word quru', is open to speculation. Quru' is a homonym meaning both 'menstruations' and 'the clean periods between menstruations'. Whereas Imam Abu Hanlfah and Ibn Hanbal have adopted the former, Imam Shafi`i and Malik have adopted the latter meaning, and their respective ijtihad leads them to correspondingly different results.8
2. Ijtihad in regard to the second variety of evidence relates mainly to Hadlth material, which may have a definitive meaning but whose authenticity is open to doubt. To give an example, the Hadlth which provides in regard to zakah on camels that 'a goat is to be levied on every five camels' has a clear meaning, which is why the jurists are in agreement that there is no zakah on less than five camels. But since this is a solitary Hadith, its authenticity remains speculative.Ijtihad concerning this Hadith may take the form of an investigation into the authenticity of its transmission and the reliability of its narrators, matters on which the jurists are not unanimous due to the different criteria that they apply.
   This would in turn lead them to different conclusions. Should the differences of ijtihad and the rulings so arrived at be conflicting to the point that no reliance can be placed on any, they are all to be abandoned and no obligation may be established on their basis.
3. To give an example of ijtihad concerning evidence that is speculative in both authenticity and meaning, we may refer to the Hadith which provides: 'There is nosalah [la salata] without the recitation of Sura al-Fatihah.' Being a solitary Hadlth, its authenticity is not proven with certainty. Similarly it is open to different interpretations in the sense that it could mean either that salah without the Fatihah is invalid, or that it is merely incomplete. The Hanafis have held the latter, whereas the Shafi`is have adopted the former meaning of the Hadith.

64. And finally with regard to such matters on which no evidence can be found in the nusus or ijmd`, ijtihad may take the form of analogical deduction, juristic preference (istihsan), or the consideration of public interest (maslahah), and so on.

The Value (Hukm) of Ijtihad

65. Legal theory in all of its parts derives its validity from the revealed sources. It is partly for this reason and partly for the reason of man's duty to worship his Creator that the practice of ijtihad is a religious duty. The ulema are in agreement that ijtihad is the collective obligation (fard kafa'i) of all qualified jurists in the event where an issue arises but no urgency is encountered over its ruling. The duty remains unfulfilled until it is performed by at least one mujtahid. If a question is addressed to two mujtahids, or to two judges for that matter, and one of them exerts himself to formulate a response, the other is absolved of his duty. But ijtihadbecomes a personal obligation (wajib or fard cayni) of the qualified mujtahid in urgent cases, that is, when there is fear that the cause of justice or truth may be lost if ijtihad is not immediately attempted. This is particularly the case when no other qualified person can be found to attempt ijtihad. With regard to the mujtahidhimself, ijtihad is a wajib 'ayni he must practice ijtihad in order to find the ruling for an issue that affects him personally. This is so because imitation (taqlid) is forbidden to mujtahid who is capable of deducing the hukm directly from the sources. Should there be no urgency over ijtihad, or in the event where othermujtahids are available, then the duty remains as a fard kafa'i only. Furthermore, ijtihad is recommended (mandub) in all cases where no particular issue has been referred to the mujtahid, or when it is attempted in the absence of an issue by way of theoretical construction at the initiative of the jurist himself. And finally ijtihadis forbidden (haram) when it contradicts the decisive rules of the Qur'an, the Sunnah and a definite ijma`.

66. The ulema of usul are in agreement that the mujtahid is bound by the result of his own ijtihad. Once he has deduced the ruling on a particular issue which is founded in his true conviction and belief, he may not imitate other mujtahids on that matter regardless as to whether they agree with him or otherwise. For themujtahid, the conclusion that he reaches is tantamount to a divine command which he must observe. It is therefore unlawful for him to abandon it or to follow anyone else in respect of it. But if he had not rendered his own ijtihad on an issue which is not urgent, and he has time to investigate, then according to some ulema he may imitate other mujtahids. However, the preferred view is that he must avoid taqlid, even of one who might be more learned than him. Only a `ammi (layman) who is incapable of ijtihad is allowed to follow the opinion of others. This is considered to be the purport of the Qur'anic command, addressed to all those who have the capacity and knowledge, to exert themselves in the cause of justice and truth (al-Hashr, 59:2.). Elsewhere we read in the Qur'an (Muhammad, 47: 14): 'Will they not meditate on the Qur'an, or do they have locks on their hearts?'

67. The same conclusion is sustained in another Qur'anic passage, in Sura al-Nisa' (4:59) where the text requires the judgement of all disputes to be referred to God and to His Messenger. These and many similar ayat in the Qur'an lend support to the conclusion that it is the duty of the learned to study and investigate the Qur'an and the teachings of the Prophet. The correct meaning of the manifest directives (zawahir) of the Qur'an is also understood from the practice of the Companions who used to investigate matters, and each would formulate their own ijtihad, in which case they would not imitate anyone else. The mujtahid is thus the authority(hujjah) for himself. His is the duty to provide guidance to those who do not know, but he himself must remain in close contact with the sources. This is also the purport of another Qur'anic ayah which enjoins those who do not possess knowledge: 'Then ask those who have knowledge (ahl al-dhikr) if you yourselves do not know' (al-Nahl, 16: 43). Thus only those who do not know may seek guidance from others, not those who have the ability and knowledge to deduce the correct answer themselves. The ahl al-dhikr in this ayah refers to the ulema, regardless as to whether they actually know the correct ruling of an issue or not, provided they have the capacity to investigate and find out.

68. When a mujtahid exerts himself and derives the ruling of a particular issue on the basis of probability, but after a period of time changes his opinion on the same issue, he may set aside or change his initial ruling if this would only affect him personally. For example, when he enters a contract of marriage with a woman without the consent of her guardian (wali) and later changes his opinion on the validity of such a marriage, he must annul the nikah. But if his ijtihad affects others when, for example, he acts as a judge and issues a decision on the basis of his own ijtihad, and then changes his views, he may not, according to the majority of ulema, set aside his earlier decision. For if one ruling of ijtihad could be set aside by another, then the latter must be equally subject to reversal, and this would lead to uncertainty and loss of credibility in the ahkam. It is reported that `Umar b. al-Khattab adjudicated a case, known as Hajariyyah, in which the deceased, a woman, was survived by her husband, mother, two consanguine and two uterine brothers. `Umar b. al-Khattab entitled all the brothers to a share in one-third of the estate, but was told by one of the parties that the previous year, he (`Umar) had not entitled all the brothers to share the portion of one-third. To this the caliph replied, 'That was my decision then, but today I have decided it differently.' Thus the Caliph `Umar upheld both his decisions and did not allow his latter decision to affect the validity of the former. Similarly, the decision of one judge may not be set aside by another merely because the latter happens to have a different opinion on the matter. It is reported that a man whose case was adjudicated by `Ali and Zayd informed `Umar b. al-Khattab of their decision, to which the latter replied that he would have ruled differently if he were the judge. To this the man replied, 'Then why don't you, as you are the Caliph?' `Umar b. al-Khattab replied that had it been a matter of applying the Qur'an or the Sunnah, he would have intervened, but since the decision was based in ra'y, they were all equal in this respect. Since in matters of juristic opinion no-one can be certain that a particular view is wrong, the view that has already been embodied in a judicial decree has a greater claim to validity than the opposite view. The position is, however, different if the initial decision is found to be in violation of the law, in which case it must be set aside. This is the purport of the ruling of `Umar ibn al-Khattab which he conveyed in his well-known letter to Abu Musa al-Ash`ari as follows: 'After giving a judgment, if upon reconsideration you arrive at a different opinion, do not let the judgment stand in the way of retraction. For justice may not be disregarded, and you are to know that it is better to retract than to persist in-injustice.

69. The precedent of the Companions on this issue has led to the formulation of a legal maxim which provides that 'ijtihad may not be overruled by its equivalent'(al-ijtihad Ia yunqad bi-mithlih). Consequently, unless the judge and the mujtahid is convinced that his previous ijtihad was erroneous, he must not attempt to reverse it. Thus a judicial decision which is based on the personal opinion and ijtihad of a particular judge-cum-mujtahid is irreversible on the basis of a mere difference of opinion by another judge. It is further suggested that the issuing judge himself may change his initial decision which was based on ijtihad in a subsequent case if he is convinced that this is a preferable course to take. But the credibility of judicial decisions is a factor that would discourage the issuing judge to change his initial decision unless it proves to have been manifestly oppressive.

Questions

1. We have studied the Quran and the hadith previously in this course. What is the difference between how we treated it and how Nyazee and Kamali treat it? Illustrate what you are claim by identifying three to five places in the articles of each author which bring out the difference in perspective.
2. Make a comprehensive list of all the things a person needs in order to know usul al-fiqh. Explain the role of each thing.
3. What is Kamali trying to say when he says that to define Usul al-Fiqh as methodology of law is "accurate but incomplete" (para 35)?
4. Does knowledge of the rules of "fiqh" make one a faqih? If not, what else does one need?
5. What is the difference in the role of reason as the source of authority for ijma and its role as source of authority for qiyas?
6. Express in your own words the things that go in to making evidence (and, hence, the thing proved by evidence) definite (you could also say "certain," or "established beyond any doubt") or speculative.
7. What is the difference between qiyas and interpretation according to Nyazee? Do you think it is justified? If not, why not?
8. In what sense is "qiyas" NOT a source of law?
9. In what sense is qyas "a rationalist principle" (i.e. based on reason) and in what sense is it not "a rationalist principle"?
10. Scholars have said that if an issue is covered by clear Qur'anic injunction or hadith, then there is nor room for qiyas and if not, then one cannot know for sure whether the case considered "similar" in qiyas is actually similar: so it is uncertain and unreliable. What is Kamali's response to this objection?
11. What is the relationship between ijtihad and qiyas? What is the relationship between ijtihad and the Quran/hadith?
12. What is the purpose of Kamali's discussion of the etymology of the word "ijtihad" in para 61?