Second Definition of
Ijtihad
Another group of scholars defines ijtihad as
effort on the part of a faqih for deriving the ahkam of the
Shari'ah. Here we shall cite the views of some of them.
(a) The great scholar Abu Hamid Muhammad al‑Ghazali al‑Shafi`i
says:"Ijtihad is the effort (on the part of the mujtahid) and
employment of one's utmost powers to extract a command (hukm). This
term is not used unless when it involves hardship and strain. Hence it is
said ‘He exerted himself to carry
the millstone’. But it will not be said that: ,’He exerted himself to
carry a grain of mustard seed.’ But in common usage this word is specifically
used for the effort made by the mujtahid in the way of
acquiring the knowledge of the ahkam of the
Shari’ah." [33] Al‑Ghazali
further remarks: “Ijtihad in its complete sense is to make utmost
effort in achieving a goal so that it is not possible for one to do anything
more."[34]
(b) Muhammad Khidri Bek writes: Ijtihad is the
effort made by a faqih for acquiring the knowledge of the ahkam of
the Shari’ah. [35] He
adds: Ijtihad in its complete sense is the utmost effort that
a faqih undertakes for extracting a hukm (of the Shari'ah) in
such a manner that he feels that he has exhausted his capacity. [36]
Critique of the Second Type of Definitions
The above‑mentioned definitions also are incomplete and defective
in spite of their being closer to a technical definition and freedom from the
defects of the former ones. They are still imperfect because the word`waza'if'
(lit. duties) needs to be added; because, besides having to deduce
the ahkam of the Shari`ah, a mujtahid is
supposed to procure the Practical (al usul al‑'amaliyyah) and
the Rational Rules(al‑'ahkam al‑`aqliyyah) ‑ such as Bara'ah,
takhyir and Ihtiyat. Thus the field of operation of
the mujtahid includes the ahkam of the
Shari’ah as well as the Practical and the Rational Rules, whereas the above‑mentioned
definitions focus merely on the former alone. In this sense, it is not a
comprehensive definition.
A third group of scholars of usul defines ijtihad as:
Deduction of theahkam of the Shari'ah from the usul, the adillah, and
their sources in the sacred Shari’ah. It would be appropriate to quote some of
these related views.
(a) Ahmad Mustafa al‑Zarqa', the author of the valuable work al
Madkhal al‑faqhi al‑'amm, says: Ijtihad means
deduction of theahkam of the Shari’ah from their elaborate adillah found
in the Shari'ah. [37]
(b) Al‑`Allamah Abu `Abd Allah Shah Wali al‑Faruqi al‑Dihlawi al‑Hanafi,
in his book Kitab al‑'insaf fi sabab al‑ Ikhtilaf, writes:Ijtihad means
employment of effort and endeavour for the comprehension of the far`i
ahkam of the Shari'ah from their elaborateadillah, which
comprise the Book, the Sunnah, ijma` and qiyas.
(c) Muhammad Amin has also defined ijtihad in his
book Taysir al‑tahrir in similar terms.
(d) Dr. Subhi al‑Mahmasani says: Ijtihad means
exertion and effort for discovering the ahkam and laws of the
Shari'ah from their legal sources.
Critique of the Third Type of Definitions
These definitions are also not free from the defects of the
earlier ones, because, like the previous definitions, they need the word waza'if in
order to include the Practical and the Rational Rules with the ahkam of
the Shari'ah. Another objection against the definition given by al-Dihlawi is
that he has considered qiyas one of the sources of theahkam, a
viewpoint which is rejected by the Shi'ah (this will be dealt in detail while
discussing the sources of ijtihad).
The great thinker and scholar of the Islamic world Muhammad ibn al‑Hasan
ibn `Abd al‑Samad, popularly known as al‑Shaykh al‑Bahai, in his book Zubdat
al‑'usul, writes: Ijtihad is a capacity (malakah) by
means of which one obtains the power of deducing the ahkam of
the Shari'ah.
Some other scholars have also defined ijtihad in
different words that are close in meaning to this definition. Here we shall
quote two of them as specimen.
(a) Ijtihad is the manifestation of the capacity
for discovering the hujaj (pl. of hujjah) and adillah for
deriving the ahkam of the Shari'ah and the Practical Obligations (al‑waza'if
al‑`amaliyyah), whether posited by the Shari'ah or affirmed by reason.
(b) Ijtihad is a capacity by means of which a
faqih becomes able to relate the minor premises with the major premises and
thereby obtains ahukm of the Shari'ah or an answer to a Practical
Obligation.
Critique of the Fourth Type of Definitions
These definitions, also, are controvertible like the previous
ones, because firstly, they do not convey the real meaning of ijtihad, forijtihad
per se is not a capacity; for had ijtihad been a
capacity, its addition would have served an explanatory purpose, and such is
not the case here.
Secondly, the titles that have been mentioned in traditions,
like 'faqih, arif, () nazir, () rawi, ()as in the widely accepted tradition
narrated by `Umar ibn Hanzalah, and other such titles which are mentioned in
other riwayahs ‑ are not applicable to one who merely
possesses the capacity, but apply only to those in whom the capacity has
reached the stage of actualization. Capacity(malakah) is a
potential ability; it may or may not reach the point of actualization. It is
for this very reason that the phrasehas to follow the words above definitions.
Thirdly, the jurisprudential authorities (maraji
taqlid) have set forth three courses by way of al‑wajib al‑takhyiri in
their handbooks of rulings (rasa’il 'amaliyyah) and works of
fiqh for the mukallaf (adult person liable to perform
religious duties); they are: ijtihad, taqlid(imitation) and ihtiyat (caution).
If ijtihad be a capacity, it is not correct to
put it by the side of taqlidand ihtiyat; for taqlid and ihtiyat are
concerned with actual practice, while capacity is an inner psychic state.
Accordingly, there is no doubt that in the above statement about a mukallaf's duty ijtihad is
the de facto knowledge of the ahkam of the
Shari'ah and the Practical Rules derived from the sources of the Shari'ah.
Further Clarification
It is evident that the actual ahkam issued by the
Sacred Lawgiver (like obligatory duties and impermissible acts, etc.) are known
to apply to all the mukallafun. This essential knowledge with
the possibility of chastisement is before every mukallaf. And
since every sane person essentially knows that God Almighty has prescribed
certain duties for him, his rational faculty enjoins him to comply with the
dictates of reason in comprehending his duties, and to obtain the certainty of
their fulfilment; and ‑ as is said in `ilm al‑'usul ‑ the
certainty of execution brings the certainty of fulfilment.
Anyone who is in quest of the certainty of fulfilment (of his
duties) and wants to tread the path which can assure him that he has performed
all the Shari’i duties assigned by the Supreme Lawgiver, will have to perform
one of these three things:
1. He should himself perform ijtihad and
comprehend his duties, according to the criteria, from the sources of the
Shari'ah.
2. He should follow the rulings of an all‑round (jami` al‑shara'it)
mujtahid.
3. He should choose the path of ihtiyat (i.e.,
among other things, refrain from every act that is not known for certain to be
permissible).
In any case, it is essential to take one of the paths; for if one
does not act or abstain from performing a certain act in accordance with one of
these courses, he faces the possibility of Divine chastisement. The rational
faculty of every mukallaf individual considers it essential to
avoid every possible harm and punishment; and to avoid such a danger is not
possible except by following either the path of ijtihad, or taqlid
or ihtiyat.
Thus, we see that ijtihad, as one of the choices,
is de facto comprehension of one's duties from the sources of
the Shari'ah that results in avoiding possible chastisement; mere possession of
the capacity to comprehend one's duties cannot be regarded as ijtihad; rather,
it means: the identification of the ahkam, their deduction,
and acting according to them.
Accordingly, a rnujtahid' who possesses the
capacity of ijtihad alone, but does not employ the usul and
principles for deriving the ahkam is not different from a non‑mujtahid;
for, in the same way as a non-mujtahid faces the possibility of
chastisement in performing of acts and abstaining from them, a mujtahid
who does not use his capacity of ‘ijtihdd is equally
exposed to such a danger.
Thus, anyone possessing the capacity of ijtihad should
be either amujtahid who has derived the ahkam of
the Shari’ah from its sources, or he should be a muqallid or muhtat; otherwise,
he shall not be secure from chastisement. Anyone who is endowed with the
capacity of‘ijtihad but has not reached the practical stage of
deriving the ahkamof the Shari'ah may be called a `mujtahid';
but as far as practice is concerned he is not different from a non‑mujtahid.
In any case,ijtihad should be defined in a manner that is
free from such flaws.
A Misconception
Some people believe that the capacity of ijtihad is
similar to some other traits (like generosity, justice, valour, etc.), which is
acquired after practice and exercise in deriving the ahkam of
the Shari'ah, in the same way as other qualities reach the stage of
actualization after repetition and practice.
They reason that, as in the case of some qualities and traits
which are not separable from action (generosity is not separable from acts of
generosity, justice is not separable from acts of justice, valour is not
separable from deeds of valour) ijtihad also is not separable
from deduction of the ahkam of the Shari'ah. Accordingly,
whosoever possesses the capacity of ijtihad has inevitably
derived the ahkam of the Shari'ah from its sources, and this
necessarily makes him secure from chastisement. Hence the above definition is
correct.
This argument is not valid, for the capacity of ijtihad is
not similar to other qualities. Other qualities cannot be actualized without
many attempts and persistent repetition, but the capacity of ijtihad can
be acquired without deducing any hukm. For instance, the
quality of valour is acquired by repeatedly exposing oneself to danger and
through performance of acts involving danger, because their continuation gradually
drives out fear from the heart, to the extent that one can take part in big
battles without any fear and nervousness in his heart. Similar is the case with
generosity and self‑denial: repeated performance of the act of generosity leads
man to such a point when he can bear to be thirsty and hungry in order to feed
others.
Therefore, the realization of these qualities needs repeated performance,
whereas the capacity of ijtihad does not need any such practice.
On the contrary, unless one possesses the capacity of ijtihadand
the ability to derive the ahkam, he cannot perform ijtihad and
derive ahkam of the Shari'ah. Hence it is the exercise of deriving
which is dependent upon the capacity, not the capacity on repeated derivation.
It is possible for a person to possess the capacity of deriving the ahkam without
having derived even a single hukm; as the capacity of ijtihad depends
upon learning certain sciences like Arabic grammar and syntax, vocabulary,
tafsir, rijal and `ilm: al‑'usul, etc., whose knowledge enables one to derive
the ahkam of the Shari'ah. Therefore, the act of derivation
from the viewpoint of realization is posterior to the capacity ‑ contrary to
other qualities whose realization follows performance.
It is true that extensive derivation and repeated employment of
the capacity of ijtihad. can enhance this faculty, but this
has nothing to do with its actual realization and existence.
In short, ijtihad in the sense of faculty does
not guarantee security from Divine chastisement, or repel its potential danger
from the mukallaf. It cannot be placed in the category
of taqlid and ihtiyat either, for that which
is equivalent to taqlid and ihtiyat is the
knowledge of theahkam from the Shar'i sources. Hence ijtihad should
be defined in a way which is not open to such objections.
Some other scholars have defined ijtihad in yet
another way. `Abd al‑Wahid al‑Khallaf says: Ijtihad means
employment of effort and endeavour for understanding the ahkam of
the Shari'ah for issues for which there is no specific express text (in the
Book and the Sunnah), by exercising ray and subjective judgement, as well as by
using other methods for deriving the laws of the Shari'ah. [38]
Critique of the Fifth Definition
This definition is also objectionable like other definitions, but,
as we shall see in the discussion about ijtihad bi al‑ray and
subjective judgement, in Islamic fiqh valid ijtihad means
employment of effort for deriving the ahkam of the Shari'ah
for emergent and contingent issues from the Shar`i sources (the Book, the
Sunnah, ijma` and `aql), not the exercise of
one's subjective opinion and judgement. We shall elaborate on this matter later
on and there we shall see that no individual ‑ even the Prophet (S) ‑ may
legislate laws by exercising personal judgement; for legislation is exclusively
a Divine prerogative.
In Islamic law there is a hukm for every issue,
either as a particular or a general law. As for the issues for which no express
text exists, amujtahid can derive laws by applying to them the
general laws of the Book or the Sunnah. Therefore, in emergent issues a mujtahid
isrequired to discover an express Shar'i text, and whenever he is unable to
discover such a proof or express text, he has to secure an `apparent'
hukm (al‑hukm al‑zahiri) for the mukallaf from such Practical
Rules asBara'ah, Takhyir, Istishab, etc.
According to Abu Bakr al‑Razi, the term ijtihad has
been applied to the following three meanings: (1) Qiyas, when
the cause (`illah) does not lead to the hukm, for
it may not possibly contain the hukm (on account of its being
an incomplete and not a complete cause). As a result, the cause does not lead
to certainty about the desired hukm,which has to be based on ijtihad and
derivation through ray. (2) Anything that gives rise to presumption without
the existence of a cause, likeijtihad regarding time, direction
of Qiblah, price of a commodity, etc. (3) Argument based on
usul for positing a hukm of the Shari`ah. [39]
This statement is also objectionable; for, of the three points
that which can relate to the technical sense of ijtihad, the
first one ‑ i.e., derivation of ahkam by means of qiyas
‑ is invalid from the Shi'i point of view. The second meaning also is
not right, as giving judgments about ordinary external details is not the duty
of the mujtahid. In the third point, ijtihad is
used in a general, non‑specific sense, as it includesqiyas and
other things also.
The great jurist Akhund al‑Kurasani has defined ijtihad as
employment of one's powers for acquisition of hujjah regarding
the ahkam of the Shari`ah. [40]
Another scholar has defined ijtihad as effort and
endeavour made in deriving the far’i ahkam of the Shari'ah, or
securing legal validity through (the study of) its elaborate adillah. If
the criterion of the validity of an act is considered acquisition of hujjah, the
above given definition is safe from the objections raised against the earlier
definitions, ashujjah is inclusive of: certainty; the adillah that
lead to certainty (such as reliable usul and dicta); and presumption, in
accordance with the Sunni outlook. Similarly the term hujjah covers
presumption during the period of closure of doors of certainty, in accordance
with the belief of those who believe in such a closure.
Accordingly, employment of effort for securing legal validity in
regard to the ahkam of the Shari'ah is no doubt regarded
as ijtihad, whether thehujjah leads to certainty
or is based on a dalil; and it does not make any difference
whether it gives rise to presumption or not. Accordingly, the earlier
objections cannot be raised against this definition.
Objections Against the Definition
It may be objected that the above definition is not logical or
technical, for a technically and logically correct definition should closely
correspond to the thing defined, whereas the said definition is rather loose.
It states that ijtihad is to derive and determine ahkam from
the sources; it does not specify that the person performing derivation should also
possess the capacity, whereas the mujtahid is one who
possesses the capacity of ijtihad. This objection is valid,
unless it is said that ijtihad depends on the capacity and it
is not possible to deriveahkam from reliable sources except through
that capacity, and here possession of the capacity is taken for granted.
Note
It is appropriate here to clarify one thing about the capacity
of ijtihad:it is a capacity acquired through the knowledge of ten
types of disciplines on which derivation and understanding of the ahkam of
the Shari'ah depends. In this regard, the requirement of another faculty ‑ the
so‑called quwwah qudsiyyah ‑ is not essential, for the‑ijtihad
which is acceptable to all means derivation of the Shar'i ahkam from
the sources, and in the same way as a just' (`adil) mujtahid can
perform this task, it can also be performed by a mujtahid who
is not `just'.
The term ijtihad as used in the writings of
scholars of different Islamic sects conveys two different meanings, each of
which gives rise to different viewpoints regarding the sources of Shar'i ahkam. In
the first conception ijtihad means derivation of Shar`i hukm through
personal judgement and ray for an issue for which the mujtahid does
not find any express text in the Quran or the Sunnah. Such a meaning of ijtihadis
found in the writings of `Abd al‑Wahhab al‑Khallaf and most of Sunni fuqaha'
also subscribe to this view.
Ijtihad in
this sense is. considered by most of Sunni scholars as an independent source
parallel to the Quran, the Sunnah, ijma` and `aql,
and is acknowledged as one of the bases for determining the ahkam.
It means that in the same manner as a mujtahid relies
on sources like the Quran, the Sunnah, `aql and ijma` for
deriving ahkam, he can also rely on ray and
subjective opinion by taking recourse to instruments of presumption (like qiyas,
istihsan, masalih mursalah, istislah, madhhab al‑Sahabi, fath al‑dhara'i`, sadd
al‑dhara'i`, etc.) for issues on which there is no express text in the
Quran and the Sunnah.
In the second conception ijtihad means deduction
of the fari ahkamfrom the reliable sources (the Quran, the
Sunnah, ijma` and `aql). Ijtihad in this
sense occurs in the writings of Ahmad Mustafa al‑Zarqa', the author of al‑Madkhal
al‑fiqhi al‑`amm, and Shi'i fuqaha' have subscribed to this view long
since. According to this conception, the activity of the mujtahid involves
deduction of the laws of the Shari'ah for emergent issues and new phenomena of
life by employing general principles and rules. Thereby the mujtahid refers
new secondary issues to the general principles and applies the general laws to
their particular instances in external reality, thus obtaining the ahkam governing
them. According to this conception, ijtihad is not counted as
an independent source of law parallel to the Quran and the Sunnah, but merely
as a means for deriving and determining the ahkam from the
sources.
Leading Sunni jurists have chosen the first conception of ijtihad, as
an independent source parallel to the Book of God and the Sunnah of the Prophet
(S). They have included ijtihad itself, besides the four
sources of fiqh, as the fifth one. Accordingly, they have specified for it a
separate section in their books of usul such as Usul al‑fiqh, al
Mustaqfa, al‑Ahkam and other works ‑ and have undertaken diverse
discussions about it.
In accordance with this conception, al‑Shafi`i considers qiyas to
be same as ijtihad in his Risalah. He writes:
What is qiyas? Is qiyas the same as ijtihad, or
are they different'? I say, qiyas and ‘ijtihad are
two terms which convey the same meaning like `man' and `human being’. [41]
In Risalah he rejects the opinions of most of
Sunni fuqaha' who believeistihsan to be one of the sources of ijtihad, [42]for
the majority of them believe ‘ijtihad to be synonymous
with ray, qiyas, istihsan andistinbat.
Mustafa `Abd al‑Razzaq is one of them; he writes: The ray of
which we speak is the mujtahid's reliance on his subjective
opinion and judgement for obtaining a law of the Shari'ah. This is what we mean
byijtihad and qiyas, which are synonymous
with istinbat and istihsan.[43]
This statement appears to be strange, for ijtihad,
istinbat, ray, qiyasand istihsan are terms which are
different from one another regarding their meaning. How can they be considered
synonymous and equivalent terms, and how can it be said that these words convey
the same meaning when there is nothing common either between the words or their
meanings?
It may be said in justification of the above‑mentioned statement
that the equating of ray with ijtihad is for the reason that
the personal judgement of a mujtahid in the event of absence
of any express text of the Quran and the Sunnah is synonymous with ijtihhd
bi al‑ray and hence this sort of istinbat has been
named ray as well. But other practices like qiyas, istihsan, masalih
mursalah, istislah, sadd al‑dhara'i`, fath al‑dhara'i`, madhhab al‑Sahabi,
Shari`at al‑salaf, `urf, etc. (which shall be discussed in detail)
each one of them is considered an instance of ijtihad, but is
not equivalent to or synonymous with ijtihad bi al-ra'y. The
reason for the error in equatingijtihad with ijtihad bi al‑ray is
that the meaning of ijtihad has been confused with that of one
of its elements.
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