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 (2:228): '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 Hanifah 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. Kassab, Adwa', p. 29; Badran, Usul, p. 473.]
2) Ijtihad in regard to the second variety of evidence relates mainly to Hadith material, which may have
a definitive meaning but whose authenticity is open to doubt. To give an example, the Hadith which
provides in regard to zakah on camels that `a goat is to be levied on every five camels.'
(Hasan's trans.), II, 407, Hadith no. 1562.]
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.
Principles of Islamic Jurisprudence ~ Kamali 317
[9. Abu Dawud, Sunan
[10. Kassab, Adwa', p. 30; Badran, Usul, p. 474.]
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 no salah [la salata] without the
recitation of sura al-Fatihah.'
[11. Abu Dawud, Sunan (Hasan's trans.), I, 209, Hadith no. 819.]
Being a solitary Hadith, 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.And finally with regard to such matters on which no evidence can be found in the nusus or ijma`, 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
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 ijtihad becomes a personal obligation (wajib or fard `ayn) 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 mujtahid himself, 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 a mujtahid who is capable of deducing the hukm directly from the sources.
Should there be no urgency over ijtihad, or in the event where other mujtahids 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 ijtihad is forbidden
(haram) when it contradicts the decisive rules of the Qur'an, the Sunnah and a definite ijma'.
Irshad, p.235; Khudari, Usul, p.368; Zuhayr, Usul, IV, 227.]
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 the mujtahid, 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 capable
of ijtihad is allowed to follow the opinion of others.
[13. Ghazali, Mustasfa, II, 121; Amidi, Ihkam, IV, 204; Kassab, Adwa', p. 119.]
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).
Principles of Islamic Jurisprudence ~ Kamali 318
[12. Shawkani,Elsewhere we read in the Qur'an (Muhammad, 47:24): 'Will they not meditate on the Qur'an, or do they
have locks on their heart?'
The same conclusion is sustained in another Qur'anic passage, in sura al-Nisa' (4:59) where the text
requires the judgment 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.
[14. Amidi, Ihkam, IV, 14; Khudari, Usul; p. 380.]
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' (alNahl,
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.
[15. Amidi, Ihkam, IV, 206; Kassab, Adwa', p. 121.]
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.
[16. Amidi, Ihkam, IV, 14; Khudari, Usul, p. 380.]
It is reported that `Umar b. alKhattab
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.
177; Kassab, Adwa', p. 108; Badran, Usul, p. 485.]
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,
Principles of Islamic Jurisprudence ~ Kamali 319
[17. Ibn al-Qayyim, I'lam, I,they were all equal in this respect.
[18. Ibn al-Qayyim, I'lam, I, 177; Kassab, Adwa', p. 108; Badran, Usul, p. 485.]
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 injustice.'
[19. Ghazali, Mustasfa, II, 120; Amidi, Ihkam, IV, 184; Ibn al-Qayyim, I'lam, I, 71-72; Mahmassani, Falsafah (Ziadeh's trans.), p. 97.]
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 la 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.
The Proof (Hujjiyyah) of Ijtihad
Ijtihad is validated by the Qur'an, the Sunnah and the dictates of reason (`aql). Of the first two, the
Sunnah is more specific in validating ijtihad. The Hadith of Mu`adh b. Jabal,
III, 1019, Hadith no 3585. The full version of this Hadith appears at page 218.]
[20. Abu Dawud, Sunan (Hasan's trans.),
as al-Ghazali points out, provides a clear authority
for ijtihad. The same author adds: The claim that this Hadith is mursal (i.e. a Hadith whose chain of
narration is broken at the point when the name of the Companion who heard it from the Prophet is not
mentioned) is of no account. For the ummah has accepted it and has consistently relied on it; no further
dispute over its authenticity is therefore warranted.
[21. Ghazali, Mustasfa, II, 63-64.]
According to another Hadith,
'When a judge exercises ijtihad and gives a right judgment, he will have two rewards, but if he errs in
his judgment, he will still have earned one reward.'
[22. Abu Dawud, Sunan, III, 1013, Hadith no. 3567.]
This Hadith implies that regardless of its results, ijtihad never partakes in sin. When the necessary
requirements of ijtihad are present, the result is always meritorious and never blameworthy.
Mustasfa, II, 105; Amidi, Ihkam, IV, 186.]
In another Hadith, the Prophet is reported to have said: 'Strive and
Principles of Islamic Jurisprudence ~ Kamali 320
[23. Ghazali,endeavour, (ijtahidu), for everyone is ordained to accomplish that which he is created for.'
(Istanbul ed.), VI, 84; Amidi, Ihkam, IV, 209.]
There is also the Hadith which reads: 'When God favours one of His servants, He enables him to
acquire knowledge (tafaqquh) in religion.'
[25. Bukhari, Sahih (Istanbul ed.), I, 25-26.]
The ulema of usul have also quoted in this connection two other ahadith, one of which makes the
pursuit of knowledge an obligation of every Muslim, man or woman, and the other declares the Ulema
to be the successors of the Prophets.
[26. Ibn Majah, Sunan, I, 81, Hadith no. 224; Amidi, Ihkam, IV, 230, 234; Shatibi, Muwafaqat, IV, 140.]
The relevance of the last two ahadith to ijtihad is borne out by the fact that ijtihad is the main
instrument of creativity and knowledge in Islam.
The numerous Qur'anic ayat that relate to ijtihad are all in the nature of probabilities (zawahir). All the
Qur'anic ayat which the ulema have quoted in support of qiyas (see page 217) can also be quoted in
support of ijtihad. In addition, we read, in sura al-Tawbah (9:122): 'Let a contingent from each division
of them devote themselves to the study of religion [li-yatafaqqahu fi'l-din] and warn their people [. . .]'
Devotion to the study of religion is the essence of ijtihad, which should be a continuous feature of the
life of the community. Although the pursuit of knowledge is a duty of every individual, attaining
tafaqquh, or 'erudition in religious disciplines', is necessary for those who guide the community and
warn them against deviation and ignorance. On a similar note, we read in sura al-Ankabut (29:69): 'And
those who strive [wa'l-ladhina jahadu] in Our cause, We will certainly guide them in Our paths.' It is
interesting that in this ayah the word subulana ('Our paths') occurs in the plural form, which might
suggest that there are numerous paths toward the truth, which are all open to those who exert
themselves in its pursuit. Furthermore, we read in sura al-Nisa' (4:59): `If you dispute over something,
then refer it to God and to the Messenger.' The implementation of this ayah would necessitate
knowledge of the Qur'an, the Sunnah and the objectives (maqasid) of the Lawgiver on whose basis
disputed matters could be adjudicated and resolved.
The Companions practiced ijtihad, and their consensus is claimed in support of it.
Mahmassani, Falsafah, p.95; Kassab, Adwa', p. 19.]
Principles of Islamic Jurisprudence ~ Kamali 321
[24. Bukhari, Sahih
[27. Ibn al-Qayyim, I'lam, I, 176;
In their search for solutions to disputed matters, they would base their
judgement on the Qur'an and the Sunnah, but if they failed to find the necessary guidance therein, they
would resort to ijtihad. The fact that the Companions resorted to ijtihad in the absence of a nass is
established by continuous testimony (tawatur).
[28. Ghazali, Mustasfa, II, 106; Ibn al-Qayyim, I'lam, I, 176; Kassab, Adwa', p. 19.]
The rational argument in support of ijtihad is to be sought in the fact that while the nusus of Shari'ah
are limited, new experiences in the life of the community continue to give rise to new problems. It is
therefore imperative for the learned members of the community to attempt to find solutions to such
problems through ijtihad.
[29. Cf. Kassab, Adwa', p. 20.]Conditions (Shurut) of Ijtihad
The mujtahid must be a Muslim and a competent person of sound mind who has attained a level of
intellectual competence which enables him to form an independent judgment. In his capacity as a
successor to the Prophet, the mujtahid performs a religious duty, and his verdict is a proof (hujjah) to
those who follow him; he must therefore be a Muslim, and be knowledgeable in the various disciplines
of religious learning. A person who fails to meet one or more of the requirements of ijtihad is
disqualified and may not exercise ijtihad. The requirements which are discussed below contemplate
ijtihad in its unrestricted form, often referred to as ijtihad fi'l-shar`, as opposed to the varieties of ijtihad
that are confined to a particular school, or to particular issues within the confines of a given madhhab.
The earliest complete account of the qualifications of a mujtahid is given in Abu' Husayn al-Basri's (d.
436/1044) al-Mu'tamad fi Usul al-Fiqh. The broad outline of al-Basri's exposition was later accepted,
with minor changes, by al-Shirazi (d. 467/1083), al-Ghazali (d. 505/111 ) and al-Amidi (d. 632/1234).
This does not mean that the requirements of ijtihad received no attention from the ulema who lived
before al-Basri. But it was from then onwards that they were consistently adopted by the ulema of usul
and became a standard feature of ijtihad.
[30. Cf. Hallaq, The Gate, pp. 14-17.]
These requirements are as follows:
(a) Knowledge of Arabic to the extent that enables the scholar to enjoy a correct understanding of the
Qur'an and the Sunnah. A complete command and erudition in Arabic is not a requirement, but the
mujtahid must know the nuances of the language and be able to comprehend the sources accurately and
deduce the ahkam from them with a high level of competence.
[31. Ghazali, Mustasfa, II, 102; Abu Zahrah, Usul, p.302.]
AlShatibi,
however, lays greater emphasis on the knowledge of Arabic: a person who possesses only an
average
knowledge of Arabic cannot aim at the highest level of attainment in ijtihad.
The language of
the
Qur'an and the Sunnah
is the key to their comprehension and the ijtihad
of anyone who is deficient
in
this respect is unacceptable. The same author adds: Since the opinion of the mujtahid
is a proof
(hujjah)
for a layman, this degree of authority necessitates direct access to the sources and full
competence
in Arabic.
[32. Shatibi, Muwafaqat, IV, 60.]
The mujtahid must also be knowledgeable in the Qur'an and the Sunnah, the Makki and the Madinese
contents of the Qur'an, the occasions of its revelation (asbab al-nuzul) and the incidences of abrogation
therein. More specifically, he must have a full grasp of the legal contents, or the ayat al-ahkam, but not
necessarily of the narratives and parables of the Qur'an and its passages relating to the hereafter.
Ghazali, Mustasfa, II, 101.]
According to some ulema, including al-Ghazali, Ibn al-Arabi, and Abu Bakr al-Raza,
the legal ayat of the Qur'an which the mujtahid must know amount to about five hundred. Al-Shawkani,
Principles of Islamic Jurisprudence ~ Kamali 322
[33.however, observes that a specification of this kind cannot be definitive. For a mujtahid may infer a legal
rule from the narratives and parables that are found in the Qur'an. The knowledge of ayat al-ahkam
includes knowledge of the related commentaries (tafasir) with special reference to the Sunnah and the
views of the Companions. Al-Qurtubi's Tafsir al-Qurtubi, and the Ahkam al-Qur'an of Abu Bakr, 'Ali
al-Jesses, are particularly recommended.
[34. Shawkani, Irshad, pp. 250-51; Abu Zahrah, Usul, p.304; Zuhayr, Usul, IV, 226.]
Next, the mujtahid must possess an adequate knowledge of the Sunnah, especially that part of it which
relates to the subject of his ijtihad. This is the view of those who admit the divisibility (tajzi'ah) of
ijtihad (for which see below), but if ijtihad is deemed to be indivisible, then the mujtahid must be
knowledgeable of the Sunnah as a whole, especially with reference to the ahkam texts, often referred to
as ahadith al-ahkam. He must know the incidences of abrogation in the Sunnah, the general and the
specific,
('amm and khass), the absolute and the qualified (mutlaq and muqayyad), and the reliability or
otherwise of the narrators of Hadith. It is not necessary to commit to memory the ahadith al-ahkam or
the names of their narrators, but he must know where to find the ahadith when he needs to refer to
them, and be able to distinguish the reliable from the weak and the authentic from the spurious.
Shawkani, Irshad, p.251 ff; Abu Zahrah, Usul, p. 304.]
Imam Ghazali points out that an adequate familiarity with the
ahadith al-ahkam such as those found in Sunan Abi Dawud, Sunan al-Bayhaqi, or the Musnad of Ibn
Hanbal would suffice. According to another view, which is attributed to Ahmad b. Hanbal, the ahadith
al-ahkam are likely to number in the region of 1200.
[36. Ghazali, Mustasfa, II, 101; Shawkani, Irshad, p. 251.]
The mujtahid must also know the substance of the furu`works and the points on which there is an ijma'.
He should be able to verify the consensus of the Companions, the Successors, and the leading Imams
and mujtahidun of the past so that he is guarded against the possibility of issuing an opinion contrary to
such an ijma`. It would be rare, al-Shawkani observes, for anyone who has attained the rank of a
mujtahid not to be aware of the issues on which there is a conclusive ijma`. By implication, the
mujtahid must also be aware of the opposing views, as it is said, 'the most learned of people is also one
who is most knowledgeable of the differences among people'.
Zahrah, Usul, p. 305.]
[37. Shawkani, Irshad, p. 251; Ghazali, Mustasfa, II, 101; Abu
In their expositions of the qualifications of a mujtahid, the ulema of usul place a special emphasis on
the knowledge of qiyas. The Qur'an and the Sunnah, on the whole, do not completely specify the law as
it might be stated in a juristic manual, but contact general rulings and indications as in the causes of
such rulings. The mujtahid is thus enabled to have recourse to analogical deduction in order to discover
the ruling for an unprecedented case. An adequate knowledge of the rules and procedures of qiyas is
thus essential for the mujtahid. Imam Shafi`i has gone so far as to equate ijtihad with qiyas. Analogy, in
other words, is the main bastion of ijtihad, even if the two are not identical. Al-Ghazali has observed
that notwithstanding the claim by some ulema that qiyas and ijtihad are identical and coextensive,
Principles of Islamic Jurisprudence ~ Kamali 323
[35.ijtihad is wider than qiyas as it comprises methods of reasoning other than analogy.
Shawkani, Irshad, p. 252; Abu Zahrah, Usul, p. 306.]
Furthermore, the mujtahid should know the objectives (maqasid) of the Shari'ah, which consist of the
masalih (considerations of public interest). The most important masalih are those which the Lawgiver
has Himself identified and which must be given priority over others. Thus the protection of the `Five
Principles', namely of his, religion, intellect, lineage and property, are the recognised objectives of the
Lawgiver. These are the essentials (daruriyyat) of the masalih and as such they are distinguished from
the complementary (hajiyyat) and the embellishments (tahsiniyyat). The mujtahid must also know the
general maxims of fiqh such as the removal of hardship (raf`al-haraj), that certainty must prevail over
doubt, and other such principles which are designed to prevent rigidity in the ahkam. He must be able to
distinguish the genuine masalih from those which might be inspired by whimsical desires, and be able
to achieve a correct balance between values.
[38. Ghazali, Mustasfa, II, 54;
[39. Shawkani, Irshad, p. 252; Abu Zahrah, Usul, p.307; Badran, Usul, p. 208.]
Al-Shatibi summarises all the foregoing requirements of ijtihad under two main headings, one of which
is the adequate grasp of the objectives of the Shari'ah, while the other is the knowledge of the sources
and the methods of deduction. The first of these is fundamental, and the second serves as an instrument
of achieving the first.
[40. Shatibi, Muwafaqat, IV, 56; Abu Zahrah, Usul, p. 307.]
It is further suggested in this connection that the mujtahid must be capable of distinguishing strength
and weakness in reasoning and evidence. This requirement has prompted some ulema to say that the
mujtahid should have a knowledge of logic (mantiq). But this is not strictly a requirement. For logic as
a discipline had not even developed during the time of the Companions, but this did not detract from
their ability to practice ijtihad.
[41. Abu Zahrah, Usul, pp. 308-309; Ghazali, (Mustasfa, II, 103), considers a knowledge of Arabic, Hadith and
usul al-fiqh to be essential to ijtihad. However the requirement concerning the knowledge of Usul would seem to be repetitive in view of the separate conditions
that the mujtahid must fulfill, such as the knowledge of qiyas and other such requirements, which fall under the subject of Usul.]
And finally, the mujtahid must be an upright (`adil) person who refrains from committing sins and
whose judgement the people can trust. His sincerity must be beyond question and untainted with selfseeking
interests. For
ijtihad is
a sacred trust, and anyone who is tainted with heresy and selfindulgence
is unworthy of it.
[42. Ghazali, Mustasfa, II, 101; Shawkani, Irshad, p. 252.]
These are the conditions of
independent ijtihad, but a mujtahid on particular issues need only know all the relevant information
concerning those issues and may, at least according to those who admit the `divisibility' of ijtihad,
practice ijtihad in respect of them. His lack of knowledge in matters unrelated to the issues concerned
does not prejudice his competence for ijtihad.
[43. Ghazali, Mustafa, II, 102-103; Kassab, Adwa', p.38.]
Some observers have suggested that the practice of ijtihad was abandoned partly because the
qualifications required for its practice were made 'so immaculate and rigorous and were set so high that
they were humanly impossible of fulfilment'.
[44. Cf. Fazlur Rahman, Islam, p. 78.]
This is, however, an implausible
Principles of Islamic Jurisprudence ~
Kamali 324
supposition which has been advanced mainly by the proponents of taqlid with a view to discouraging
the practice of ijtihad. As for the actual conditions, Abdur Rahim (with many others) has aptly observed
that `the qualifications required of a mujtahid would seem to be extremely moderate, and there can be
no warrant for supposing that men of the present day are unfitted to acquire such qualifications'.
Rahim, Jurisprudence, p. 174.]
There is little evidence to prove that fulfilling the necessary conditions of ijtihad
was beyond the reach of the ulema of later periods. on the contrary, as one observer has pointed out,
`the total knowledge required on the part of the jurist enabled many to undertake ijtihad in one area of
the law or another'.
[46. Hallaq, The Gate, p. 14.]
Their task was further facilitated by the legal theory, in
particular the Hadith which absolved the mujtahid who committed an error from the charge of sin and
even entitled him to a spiritual reward. Furthermore, the recognition in the legal theory of the
divisibility of ijtihad, as we shall presently discuss, enabled the specialist in particular areas of the
Shari`ah to practice ijtihad even if he was not equally knowledgeable in all of its other disciplines.
Divisibility of Ijtihad
The question to be discussed here is whether a person who is learned on a particular subject is qualified
to practice ijtihad in that area, or whether he is required to qualify as a full mujtahid first in order to be
able to carry out any ijtihad at all. The majority of ulema have held the view that once a person has
fulfilled the necessary conditions of ijtihad he is qualified to practice it in all areas of the Shari'ah.
According to this view, the intellectual ability and competence of a mujtahid cannot be divided into
compartments. Ijtihad, in other words, is indivisible, and we cannot say that a person is a mujtahid in
the area of matrimonial law and an imitator (muqallid) in regard to devotional matters (`ibadat) or viceversa.
To say this would be tantamount to a contradiction in terms, as ijtihad
and taqlid
cannot be
combined
in one and the same person.
[47. Shawkani, Irshad, p. 254, Abu Zahrah, Usul, p.318; Badran, Usul, p.486.]
The majority
view is based on the analysis that ijtihad for the most part consists of formulating an opinion, or zann,
concerning a rule of the Shari'ah. A zann of this type occurs only to a fully qualified mujtahid who has
attained the necessary level of intellectual competence. It is further argued that all the branches of the
Shari`ah are interrelated, and ignorance in one may lead to an error or misjudgment in another. The
majority view is further supported by the argument that once a person has attained the rank of mujtahid
he is no longer permitted to follow others in matters where he can exercise ijtihad himself.
IV, 204; Shawkani, Irshad, p.255.]
Among the majority there are some ulema who have allowed an exception to the
indivisibility of ijtihad. This is the area of inheritance, which is considered to be self-contained as a
discipline of Shari'ah law and independent of the knowledge of the other branches. Hence a jurist who
is only knowledgeable in this field may practice ijtihad in isolation from the other branches of Fiqh.
Kassab, Adwa', p. 96.]
Principles of Islamic Jurisprudence ~ Kamali 325
[45. Abdur
[48. Amidi, Ihkam,
[49.Some Maliki, Hanbali and Zahiri ulema have, however, held the view that ijtihad is divisible. Hence
when a person is learned in a particular area of the Shari`ah he may practice ijtihad in that area only.
This would in no way violate any of the accepted principles of ijtihad. There is similarly no objection,
according to this view, to the possibility of a person being both a mujtahid and a muqallid at the same
time. Thus a mujtahid may confine the scope of his ijtihad to the area of his specialisation. This has, in
fact, been the case with many of the prominent Imams who have, on occasions, admitted their lack of
knowledge in regard to particular issues. Imam Malik is said to have admitted in regard to thirty-six
issues at least that he did not know the right answer. But in spite of this, there is no doubt concerning
Malik's competence as a fully-fledged mujtahid.
[50. Shawkani, Irshad. p. 255; Abu Zahrah, Usul, p.318; Badran, Usul, p.486.]
The view that ijtihad is divisible is supported by a number of prominent ulema, including Abu'l-Husayn
al-Basri, al-Ghazali, Ibn al-Humam, Ibn Taymiyyah, his disciple Ibn al-Qayyim and al-Shawkani. AlGhazali
thus observes that a person may be particularly learned in qiyas
and be able to practice ijtihad
in
the form of analogy even if he is not an expert on Hadith. According to the proponents of this view,
if
knowledge of all the disciplines of Shari'ah
were to be a requirement, most ulema would fail to meet
it
and it would impose a heavy restriction on ijtihad.
Al-Shawkani, Badran and al-Kassab have all
observed
that this is the preferable of the two views.
[51. Ghazali, Mustasfa, II, 103; Shawkani, Irshad, p. 255; Badran, Usul. p.486.]
One might add here that in modern times, in view of the sheer bulk of information and the more rapid
pace of its growth, specialisation in any major area of knowledge would seem to hold the key to
originality and creative ijtihad. Divisibility of ijtihad would thus seem to be in greater harmony with the
conditions of research in modern times. By way of a postscript, one might also remark that the
classification of mujtahids into various ranks, such as mujtahids in a particular school or on particular
issues, takes for granted the idea that ijtihad is divisible.
Procedure of Ijtihad
Since ijtihad occurs in a variety of forms, such as qiyas, istihsan, maslahah mursalah, and so on, each
of these is regulated by its own rules. There is, in other words, no uniform procedure for ijtihad as such.
The ulema have nevertheless suggested that in practicing ijtihad, the jurist must first of all look at the
nusus of the Qur'an and the Hadith, which must be given priority over all other evidences. Should there
be no nass on the matter, then he may resort to the manifest text (zahir) of the Qur'an and Hadith and
interpret it while applying the rules pertaining to the general (`amm) and specific (khass), the absolute
and the qualified, and so forth, as the case may be. Should there be no manifest text on the subject in the
Qur'an and the verbal Sunnah, the mujtahid may resort to the actual (fi'li) and tacitly approved (taqriri)
Sunnah. Failing this, he must find out if there is a ruling of ijma` or qiyas available on the problem in
Principles of Islamic Jurisprudence ~
Kamali 326
the works of the renowned jurists. In the absence of any guidance in these works, he may attempt an
original ijtihad along the lines of qiyas. This would entail a recourse to the Qur'an, the Hadith, or ijma`
for a precedent that has a `illah identical to that of the far' (i.e.. the case for which a solution is
wanting). When this is identified, he is to apply the principles of qiyas in order to deduce the necessary
ruling. In the absence of a textual basis on which an analogy could be founded, the mujtahid may resort
to any of the recognised methods of ijtihad such as istihsan, maslahah mursalah, istishab, etc, and
derive a solution while applying the rules that ensure the proper implementation of these doctrines.
Shirazi, Luma', pp. 83-84.]
The foregoing procedure has essentially been formulated by al-Shafi'i, who is noted to have observed
the following. When an incident occurs, the mujtahid must first check the nusus of the Qur'an, but if he
finds none, he must refer to Mutawatir Hadiths and then to solitary Hadiths. If the necessary guidance is
still not forthcoming, he should postpone recourse to qiyas until he has looked into the manifest (zahir)
text of the Qur'an. If he finds a manifest text which is general, he will need to find out if it can be
specified by means of Hadith or qiyas. But if he finds nothing that would specify the manifest text, he
may apply the latter as it stands. Should he fail to find a manifest text in the Qur'an or the Sunnah, he
must look into the madhahib. If he finds a consensus among them, he applies it, otherwise he resorts to
qiyas, but in doing so, he must pay more attention to the general principles of the Shari'ah than to its
subsidiary detail. If he does not find this possible, and all else fails, then he may apply the principle of
original absence of liability (al-bara'ah al-asliyyah). All this must be in full cognizance of the rules that
apply to the conflict of evidences (al-ta`arud bayn al-adillah), which means that the mujtahid should
know the methods deployed in reconciling such conflicts, or even eliminating one in favour of the
other, should this prove to be necessary. The ruling so arrived at may be that the matter is obligatory
(wajib), forbidden (haram), reprehensible (makruh), or recommended (mandub).
Shawkani, Irshad, p. 258.]
[53. Shafi'i, Risalah, pp. 261-62;
From the viewpoint of the procedure that it employs, ijtihad may occur in any of the following four
varieties. Firstly, there is the form of a juridical analogy (qiyas) which is founded on an effective cause
(`illah). The second variety of ijtihad consists of a probability (zann) without the presence of any `illah,
such as practicing a ijtihad in regard to ascertaining the time of salah or the direction of the qiblah. The
third type of ijtihad
consists of the interpretation of the source materials and the deduction of ahkam from an existing
evidence. This type of ijtihad is called ijtihad bayani, or 'explanatory ijtihad', which takes priority over
'analogical ijtihad', or ijtihad qiyas. The fourth variety of ijtihad, referred to as ijtihad istislahi, is based
on maslahah and seeks to deduce the ahkam
in pursuance of the spirit and purpose of the Shari'ah, which may take the form of istislah, juristic
preference (istihsan), the obstruction of means (sadd al-dhara'i'), or some other technique. Imam
Principles of Islamic Jurisprudence ~ Kamali 327
[52.Shafi`i accepts only the first type, namely analogical ijtihad, but for the majority of ulema, ijtihad is not
confined to qiyas and may take the form of any of the foregoing varieties.
258.]
The Ijtihad of the Prophet and his Companions
[54. Kassab, Adwa', p. 24; Hallaq, The Gate, p.
The question to be discussed here is whether all the rulings of the Prophet should be regarded as having
been divinely inspired or whether they also partake in ijtihad. The ulema are generally in agreement
that the Prophet practiced ijtihad in temporal and military affairs, but they have differed as to whether
his rulings in shar'i matters could properly fall under the rubric of ijtihad. According to the Ash'aris, the
Mu'tazilah, Ibn Hazm al-Zahiri and some Hanbali and Shafi'i ulema, the Qur'an provides clear evidence
that every speech of the Prophet partakes in wahy. A specific reference is thus made to sura al-Najm
(53:3) which provides `He says nothing of his own desire, it is nothing other than revelation [wahy] sent
down to him.' This ayah is quite categorical on the point that the Prophet is guided by divine revelation
and that all his utterances are to be seen in this light. This would mean that all the rulings of the Prophet
consist of divine revelation and that none would occur in the form of ijtihad.
[55. Shawkani, Irshad, p. 255.]
The majority of ulema have, however, held that the Prophet in fact practiced ijtihad just as he was
allowed to do so. This, it is said, is borne out by the numerous ayat of the Qur'an where the Prophet is
invited, along with the rest of the believers, to meditate on the Qur'an and to study and think about the
created world. As for the ayah in sura al-Najm quoted above, the majority of ulema have held that the
reference here is to the Qur'an itself, and not to every word that the Prophet uttered. That this is so is
borne out by the use of the pronoun `it' (huwa) in this ayah, which refers to the Qur'an itself. The
majority view adds that the occasion for the revelation (sha'n al-nuzul) of this ayah supports this
interpretation. (The ayah was revealed in refutation of the unbelievers who claimed that the Qur'an was
the work of the Prophet himself and not the speech of God.) Besides, the Prophet often resorted to
reasoning by way of analogy and ijtihad, and did not postpone all matters until the reception of divine
revelation
[56. Shawkani, Irshad, p. 256; Zuhayr, Usul, IV, 227.]
The minority view on this subject overrules the claim of the practice of ijtihad by the Prophet and
maintains that if it were true that the Prophet practiced ijtihad, then disagreeing with his views would be
permissible. For it is a characteristic of ijtihad to allow disagreement and opposition. Opposing the
Prophet is, however, clearly forbidden, and obedience to him is a Qur'anic duty upon every Muslim (alNisa',
4:14 and 58).
Principles of Islamic Jurisprudence ~ Kamali 328
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 (2:228): '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 Hanifah 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. Kassab, Adwa', p. 29; Badran, Usul, p. 473.]
2) Ijtihad in regard to the second variety of evidence relates mainly to Hadith material, which may have
a definitive meaning but whose authenticity is open to doubt. To give an example, the Hadith which
provides in regard to zakah on camels that `a goat is to be levied on every five camels.'
(Hasan's trans.), II, 407, Hadith no. 1562.]
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.
Principles of Islamic Jurisprudence ~ Kamali 317
[9. Abu Dawud, Sunan
[10. Kassab, Adwa', p. 30; Badran, Usul, p. 474.]
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 no salah [la salata] without the
recitation of sura al-Fatihah.'
[11. Abu Dawud, Sunan (Hasan's trans.), I, 209, Hadith no. 819.]
Being a solitary Hadith, 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.And finally with regard to such matters on which no evidence can be found in the nusus or ijma`, 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
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 ijtihad becomes a personal obligation (wajib or fard `ayn) 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 mujtahid himself, 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 a mujtahid who is capable of deducing the hukm directly from the sources.
Should there be no urgency over ijtihad, or in the event where other mujtahids 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 ijtihad is forbidden
(haram) when it contradicts the decisive rules of the Qur'an, the Sunnah and a definite ijma'.
Irshad, p.235; Khudari, Usul, p.368; Zuhayr, Usul, IV, 227.]
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 the mujtahid, 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 capable
of ijtihad is allowed to follow the opinion of others.
[13. Ghazali, Mustasfa, II, 121; Amidi, Ihkam, IV, 204; Kassab, Adwa', p. 119.]
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).
Principles of Islamic Jurisprudence ~ Kamali 318
[12. Shawkani,Elsewhere we read in the Qur'an (Muhammad, 47:24): 'Will they not meditate on the Qur'an, or do they
have locks on their heart?'
The same conclusion is sustained in another Qur'anic passage, in sura al-Nisa' (4:59) where the text
requires the judgment 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.
[14. Amidi, Ihkam, IV, 14; Khudari, Usul; p. 380.]
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' (alNahl,
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.
[15. Amidi, Ihkam, IV, 206; Kassab, Adwa', p. 121.]
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.
[16. Amidi, Ihkam, IV, 14; Khudari, Usul, p. 380.]
It is reported that `Umar b. alKhattab
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.
177; Kassab, Adwa', p. 108; Badran, Usul, p. 485.]
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,
Principles of Islamic Jurisprudence ~ Kamali 319
[17. Ibn al-Qayyim, I'lam, I,they were all equal in this respect.
[18. Ibn al-Qayyim, I'lam, I, 177; Kassab, Adwa', p. 108; Badran, Usul, p. 485.]
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 injustice.'
[19. Ghazali, Mustasfa, II, 120; Amidi, Ihkam, IV, 184; Ibn al-Qayyim, I'lam, I, 71-72; Mahmassani, Falsafah (Ziadeh's trans.), p. 97.]
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 la 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.
The Proof (Hujjiyyah) of Ijtihad
Ijtihad is validated by the Qur'an, the Sunnah and the dictates of reason (`aql). Of the first two, the
Sunnah is more specific in validating ijtihad. The Hadith of Mu`adh b. Jabal,
III, 1019, Hadith no 3585. The full version of this Hadith appears at page 218.]
[20. Abu Dawud, Sunan (Hasan's trans.),
as al-Ghazali points out, provides a clear authority
for ijtihad. The same author adds: The claim that this Hadith is mursal (i.e. a Hadith whose chain of
narration is broken at the point when the name of the Companion who heard it from the Prophet is not
mentioned) is of no account. For the ummah has accepted it and has consistently relied on it; no further
dispute over its authenticity is therefore warranted.
[21. Ghazali, Mustasfa, II, 63-64.]
According to another Hadith,
'When a judge exercises ijtihad and gives a right judgment, he will have two rewards, but if he errs in
his judgment, he will still have earned one reward.'
[22. Abu Dawud, Sunan, III, 1013, Hadith no. 3567.]
This Hadith implies that regardless of its results, ijtihad never partakes in sin. When the necessary
requirements of ijtihad are present, the result is always meritorious and never blameworthy.
Mustasfa, II, 105; Amidi, Ihkam, IV, 186.]
In another Hadith, the Prophet is reported to have said: 'Strive and
Principles of Islamic Jurisprudence ~ Kamali 320
[23. Ghazali,endeavour, (ijtahidu), for everyone is ordained to accomplish that which he is created for.'
(Istanbul ed.), VI, 84; Amidi, Ihkam, IV, 209.]
There is also the Hadith which reads: 'When God favours one of His servants, He enables him to
acquire knowledge (tafaqquh) in religion.'
[25. Bukhari, Sahih (Istanbul ed.), I, 25-26.]
The ulema of usul have also quoted in this connection two other ahadith, one of which makes the
pursuit of knowledge an obligation of every Muslim, man or woman, and the other declares the Ulema
to be the successors of the Prophets.
[26. Ibn Majah, Sunan, I, 81, Hadith no. 224; Amidi, Ihkam, IV, 230, 234; Shatibi, Muwafaqat, IV, 140.]
The relevance of the last two ahadith to ijtihad is borne out by the fact that ijtihad is the main
instrument of creativity and knowledge in Islam.
The numerous Qur'anic ayat that relate to ijtihad are all in the nature of probabilities (zawahir). All the
Qur'anic ayat which the ulema have quoted in support of qiyas (see page 217) can also be quoted in
support of ijtihad. In addition, we read, in sura al-Tawbah (9:122): 'Let a contingent from each division
of them devote themselves to the study of religion [li-yatafaqqahu fi'l-din] and warn their people [. . .]'
Devotion to the study of religion is the essence of ijtihad, which should be a continuous feature of the
life of the community. Although the pursuit of knowledge is a duty of every individual, attaining
tafaqquh, or 'erudition in religious disciplines', is necessary for those who guide the community and
warn them against deviation and ignorance. On a similar note, we read in sura al-Ankabut (29:69): 'And
those who strive [wa'l-ladhina jahadu] in Our cause, We will certainly guide them in Our paths.' It is
interesting that in this ayah the word subulana ('Our paths') occurs in the plural form, which might
suggest that there are numerous paths toward the truth, which are all open to those who exert
themselves in its pursuit. Furthermore, we read in sura al-Nisa' (4:59): `If you dispute over something,
then refer it to God and to the Messenger.' The implementation of this ayah would necessitate
knowledge of the Qur'an, the Sunnah and the objectives (maqasid) of the Lawgiver on whose basis
disputed matters could be adjudicated and resolved.
The Companions practiced ijtihad, and their consensus is claimed in support of it.
Mahmassani, Falsafah, p.95; Kassab, Adwa', p. 19.]
Principles of Islamic Jurisprudence ~ Kamali 321
[24. Bukhari, Sahih
[27. Ibn al-Qayyim, I'lam, I, 176;
In their search for solutions to disputed matters, they would base their
judgement on the Qur'an and the Sunnah, but if they failed to find the necessary guidance therein, they
would resort to ijtihad. The fact that the Companions resorted to ijtihad in the absence of a nass is
established by continuous testimony (tawatur).
[28. Ghazali, Mustasfa, II, 106; Ibn al-Qayyim, I'lam, I, 176; Kassab, Adwa', p. 19.]
The rational argument in support of ijtihad is to be sought in the fact that while the nusus of Shari'ah
are limited, new experiences in the life of the community continue to give rise to new problems. It is
therefore imperative for the learned members of the community to attempt to find solutions to such
problems through ijtihad.
[29. Cf. Kassab, Adwa', p. 20.]Conditions (Shurut) of Ijtihad
The mujtahid must be a Muslim and a competent person of sound mind who has attained a level of
intellectual competence which enables him to form an independent judgment. In his capacity as a
successor to the Prophet, the mujtahid performs a religious duty, and his verdict is a proof (hujjah) to
those who follow him; he must therefore be a Muslim, and be knowledgeable in the various disciplines
of religious learning. A person who fails to meet one or more of the requirements of ijtihad is
disqualified and may not exercise ijtihad. The requirements which are discussed below contemplate
ijtihad in its unrestricted form, often referred to as ijtihad fi'l-shar`, as opposed to the varieties of ijtihad
that are confined to a particular school, or to particular issues within the confines of a given madhhab.
The earliest complete account of the qualifications of a mujtahid is given in Abu' Husayn al-Basri's (d.
436/1044) al-Mu'tamad fi Usul al-Fiqh. The broad outline of al-Basri's exposition was later accepted,
with minor changes, by al-Shirazi (d. 467/1083), al-Ghazali (d. 505/111 ) and al-Amidi (d. 632/1234).
This does not mean that the requirements of ijtihad received no attention from the ulema who lived
before al-Basri. But it was from then onwards that they were consistently adopted by the ulema of usul
and became a standard feature of ijtihad.
[30. Cf. Hallaq, The Gate, pp. 14-17.]
These requirements are as follows:
(a) Knowledge of Arabic to the extent that enables the scholar to enjoy a correct understanding of the
Qur'an and the Sunnah. A complete command and erudition in Arabic is not a requirement, but the
mujtahid must know the nuances of the language and be able to comprehend the sources accurately and
deduce the ahkam from them with a high level of competence.
[31. Ghazali, Mustasfa, II, 102; Abu Zahrah, Usul, p.302.]
AlShatibi,
however, lays greater emphasis on the knowledge of Arabic: a person who possesses only an
average
knowledge of Arabic cannot aim at the highest level of attainment in ijtihad.
The language of
the
Qur'an and the Sunnah
is the key to their comprehension and the ijtihad
of anyone who is deficient
in
this respect is unacceptable. The same author adds: Since the opinion of the mujtahid
is a proof
(hujjah)
for a layman, this degree of authority necessitates direct access to the sources and full
competence
in Arabic.
[32. Shatibi, Muwafaqat, IV, 60.]
The mujtahid must also be knowledgeable in the Qur'an and the Sunnah, the Makki and the Madinese
contents of the Qur'an, the occasions of its revelation (asbab al-nuzul) and the incidences of abrogation
therein. More specifically, he must have a full grasp of the legal contents, or the ayat al-ahkam, but not
necessarily of the narratives and parables of the Qur'an and its passages relating to the hereafter.
Ghazali, Mustasfa, II, 101.]
According to some ulema, including al-Ghazali, Ibn al-Arabi, and Abu Bakr al-Raza,
the legal ayat of the Qur'an which the mujtahid must know amount to about five hundred. Al-Shawkani,
Principles of Islamic Jurisprudence ~ Kamali 322
[33.however, observes that a specification of this kind cannot be definitive. For a mujtahid may infer a legal
rule from the narratives and parables that are found in the Qur'an. The knowledge of ayat al-ahkam
includes knowledge of the related commentaries (tafasir) with special reference to the Sunnah and the
views of the Companions. Al-Qurtubi's Tafsir al-Qurtubi, and the Ahkam al-Qur'an of Abu Bakr, 'Ali
al-Jesses, are particularly recommended.
[34. Shawkani, Irshad, pp. 250-51; Abu Zahrah, Usul, p.304; Zuhayr, Usul, IV, 226.]
Next, the mujtahid must possess an adequate knowledge of the Sunnah, especially that part of it which
relates to the subject of his ijtihad. This is the view of those who admit the divisibility (tajzi'ah) of
ijtihad (for which see below), but if ijtihad is deemed to be indivisible, then the mujtahid must be
knowledgeable of the Sunnah as a whole, especially with reference to the ahkam texts, often referred to
as ahadith al-ahkam. He must know the incidences of abrogation in the Sunnah, the general and the
specific,
('amm and khass), the absolute and the qualified (mutlaq and muqayyad), and the reliability or
otherwise of the narrators of Hadith. It is not necessary to commit to memory the ahadith al-ahkam or
the names of their narrators, but he must know where to find the ahadith when he needs to refer to
them, and be able to distinguish the reliable from the weak and the authentic from the spurious.
Shawkani, Irshad, p.251 ff; Abu Zahrah, Usul, p. 304.]
Imam Ghazali points out that an adequate familiarity with the
ahadith al-ahkam such as those found in Sunan Abi Dawud, Sunan al-Bayhaqi, or the Musnad of Ibn
Hanbal would suffice. According to another view, which is attributed to Ahmad b. Hanbal, the ahadith
al-ahkam are likely to number in the region of 1200.
[36. Ghazali, Mustasfa, II, 101; Shawkani, Irshad, p. 251.]
The mujtahid must also know the substance of the furu`works and the points on which there is an ijma'.
He should be able to verify the consensus of the Companions, the Successors, and the leading Imams
and mujtahidun of the past so that he is guarded against the possibility of issuing an opinion contrary to
such an ijma`. It would be rare, al-Shawkani observes, for anyone who has attained the rank of a
mujtahid not to be aware of the issues on which there is a conclusive ijma`. By implication, the
mujtahid must also be aware of the opposing views, as it is said, 'the most learned of people is also one
who is most knowledgeable of the differences among people'.
Zahrah, Usul, p. 305.]
[37. Shawkani, Irshad, p. 251; Ghazali, Mustasfa, II, 101; Abu
In their expositions of the qualifications of a mujtahid, the ulema of usul place a special emphasis on
the knowledge of qiyas. The Qur'an and the Sunnah, on the whole, do not completely specify the law as
it might be stated in a juristic manual, but contact general rulings and indications as in the causes of
such rulings. The mujtahid is thus enabled to have recourse to analogical deduction in order to discover
the ruling for an unprecedented case. An adequate knowledge of the rules and procedures of qiyas is
thus essential for the mujtahid. Imam Shafi`i has gone so far as to equate ijtihad with qiyas. Analogy, in
other words, is the main bastion of ijtihad, even if the two are not identical. Al-Ghazali has observed
that notwithstanding the claim by some ulema that qiyas and ijtihad are identical and coextensive,
Principles of Islamic Jurisprudence ~ Kamali 323
[35.ijtihad is wider than qiyas as it comprises methods of reasoning other than analogy.
Shawkani, Irshad, p. 252; Abu Zahrah, Usul, p. 306.]
Furthermore, the mujtahid should know the objectives (maqasid) of the Shari'ah, which consist of the
masalih (considerations of public interest). The most important masalih are those which the Lawgiver
has Himself identified and which must be given priority over others. Thus the protection of the `Five
Principles', namely of his, religion, intellect, lineage and property, are the recognised objectives of the
Lawgiver. These are the essentials (daruriyyat) of the masalih and as such they are distinguished from
the complementary (hajiyyat) and the embellishments (tahsiniyyat). The mujtahid must also know the
general maxims of fiqh such as the removal of hardship (raf`al-haraj), that certainty must prevail over
doubt, and other such principles which are designed to prevent rigidity in the ahkam. He must be able to
distinguish the genuine masalih from those which might be inspired by whimsical desires, and be able
to achieve a correct balance between values.
[38. Ghazali, Mustasfa, II, 54;
[39. Shawkani, Irshad, p. 252; Abu Zahrah, Usul, p.307; Badran, Usul, p. 208.]
Al-Shatibi summarises all the foregoing requirements of ijtihad under two main headings, one of which
is the adequate grasp of the objectives of the Shari'ah, while the other is the knowledge of the sources
and the methods of deduction. The first of these is fundamental, and the second serves as an instrument
of achieving the first.
[40. Shatibi, Muwafaqat, IV, 56; Abu Zahrah, Usul, p. 307.]
It is further suggested in this connection that the mujtahid must be capable of distinguishing strength
and weakness in reasoning and evidence. This requirement has prompted some ulema to say that the
mujtahid should have a knowledge of logic (mantiq). But this is not strictly a requirement. For logic as
a discipline had not even developed during the time of the Companions, but this did not detract from
their ability to practice ijtihad.
[41. Abu Zahrah, Usul, pp. 308-309; Ghazali, (Mustasfa, II, 103), considers a knowledge of Arabic, Hadith and
usul al-fiqh to be essential to ijtihad. However the requirement concerning the knowledge of Usul would seem to be repetitive in view of the separate conditions
that the mujtahid must fulfill, such as the knowledge of qiyas and other such requirements, which fall under the subject of Usul.]
And finally, the mujtahid must be an upright (`adil) person who refrains from committing sins and
whose judgement the people can trust. His sincerity must be beyond question and untainted with selfseeking
interests. For
ijtihad is
a sacred trust, and anyone who is tainted with heresy and selfindulgence
is unworthy of it.
[42. Ghazali, Mustasfa, II, 101; Shawkani, Irshad, p. 252.]
These are the conditions of
independent ijtihad, but a mujtahid on particular issues need only know all the relevant information
concerning those issues and may, at least according to those who admit the `divisibility' of ijtihad,
practice ijtihad in respect of them. His lack of knowledge in matters unrelated to the issues concerned
does not prejudice his competence for ijtihad.
[43. Ghazali, Mustafa, II, 102-103; Kassab, Adwa', p.38.]
Some observers have suggested that the practice of ijtihad was abandoned partly because the
qualifications required for its practice were made 'so immaculate and rigorous and were set so high that
they were humanly impossible of fulfilment'.
[44. Cf. Fazlur Rahman, Islam, p. 78.]
This is, however, an implausible
Principles of Islamic Jurisprudence ~
Kamali 324
supposition which has been advanced mainly by the proponents of taqlid with a view to discouraging
the practice of ijtihad. As for the actual conditions, Abdur Rahim (with many others) has aptly observed
that `the qualifications required of a mujtahid would seem to be extremely moderate, and there can be
no warrant for supposing that men of the present day are unfitted to acquire such qualifications'.
Rahim, Jurisprudence, p. 174.]
There is little evidence to prove that fulfilling the necessary conditions of ijtihad
was beyond the reach of the ulema of later periods. on the contrary, as one observer has pointed out,
`the total knowledge required on the part of the jurist enabled many to undertake ijtihad in one area of
the law or another'.
[46. Hallaq, The Gate, p. 14.]
Their task was further facilitated by the legal theory, in
particular the Hadith which absolved the mujtahid who committed an error from the charge of sin and
even entitled him to a spiritual reward. Furthermore, the recognition in the legal theory of the
divisibility of ijtihad, as we shall presently discuss, enabled the specialist in particular areas of the
Shari`ah to practice ijtihad even if he was not equally knowledgeable in all of its other disciplines.
Divisibility of Ijtihad
The question to be discussed here is whether a person who is learned on a particular subject is qualified
to practice ijtihad in that area, or whether he is required to qualify as a full mujtahid first in order to be
able to carry out any ijtihad at all. The majority of ulema have held the view that once a person has
fulfilled the necessary conditions of ijtihad he is qualified to practice it in all areas of the Shari'ah.
According to this view, the intellectual ability and competence of a mujtahid cannot be divided into
compartments. Ijtihad, in other words, is indivisible, and we cannot say that a person is a mujtahid in
the area of matrimonial law and an imitator (muqallid) in regard to devotional matters (`ibadat) or viceversa.
To say this would be tantamount to a contradiction in terms, as ijtihad
and taqlid
cannot be
combined
in one and the same person.
[47. Shawkani, Irshad, p. 254, Abu Zahrah, Usul, p.318; Badran, Usul, p.486.]
The majority
view is based on the analysis that ijtihad for the most part consists of formulating an opinion, or zann,
concerning a rule of the Shari'ah. A zann of this type occurs only to a fully qualified mujtahid who has
attained the necessary level of intellectual competence. It is further argued that all the branches of the
Shari`ah are interrelated, and ignorance in one may lead to an error or misjudgment in another. The
majority view is further supported by the argument that once a person has attained the rank of mujtahid
he is no longer permitted to follow others in matters where he can exercise ijtihad himself.
IV, 204; Shawkani, Irshad, p.255.]
Among the majority there are some ulema who have allowed an exception to the
indivisibility of ijtihad. This is the area of inheritance, which is considered to be self-contained as a
discipline of Shari'ah law and independent of the knowledge of the other branches. Hence a jurist who
is only knowledgeable in this field may practice ijtihad in isolation from the other branches of Fiqh.
Kassab, Adwa', p. 96.]
Principles of Islamic Jurisprudence ~ Kamali 325
[45. Abdur
[48. Amidi, Ihkam,
[49.Some Maliki, Hanbali and Zahiri ulema have, however, held the view that ijtihad is divisible. Hence
when a person is learned in a particular area of the Shari`ah he may practice ijtihad in that area only.
This would in no way violate any of the accepted principles of ijtihad. There is similarly no objection,
according to this view, to the possibility of a person being both a mujtahid and a muqallid at the same
time. Thus a mujtahid may confine the scope of his ijtihad to the area of his specialisation. This has, in
fact, been the case with many of the prominent Imams who have, on occasions, admitted their lack of
knowledge in regard to particular issues. Imam Malik is said to have admitted in regard to thirty-six
issues at least that he did not know the right answer. But in spite of this, there is no doubt concerning
Malik's competence as a fully-fledged mujtahid.
[50. Shawkani, Irshad. p. 255; Abu Zahrah, Usul, p.318; Badran, Usul, p.486.]
The view that ijtihad is divisible is supported by a number of prominent ulema, including Abu'l-Husayn
al-Basri, al-Ghazali, Ibn al-Humam, Ibn Taymiyyah, his disciple Ibn al-Qayyim and al-Shawkani. AlGhazali
thus observes that a person may be particularly learned in qiyas
and be able to practice ijtihad
in
the form of analogy even if he is not an expert on Hadith. According to the proponents of this view,
if
knowledge of all the disciplines of Shari'ah
were to be a requirement, most ulema would fail to meet
it
and it would impose a heavy restriction on ijtihad.
Al-Shawkani, Badran and al-Kassab have all
observed
that this is the preferable of the two views.
[51. Ghazali, Mustasfa, II, 103; Shawkani, Irshad, p. 255; Badran, Usul. p.486.]
One might add here that in modern times, in view of the sheer bulk of information and the more rapid
pace of its growth, specialisation in any major area of knowledge would seem to hold the key to
originality and creative ijtihad. Divisibility of ijtihad would thus seem to be in greater harmony with the
conditions of research in modern times. By way of a postscript, one might also remark that the
classification of mujtahids into various ranks, such as mujtahids in a particular school or on particular
issues, takes for granted the idea that ijtihad is divisible.
Procedure of Ijtihad
Since ijtihad occurs in a variety of forms, such as qiyas, istihsan, maslahah mursalah, and so on, each
of these is regulated by its own rules. There is, in other words, no uniform procedure for ijtihad as such.
The ulema have nevertheless suggested that in practicing ijtihad, the jurist must first of all look at the
nusus of the Qur'an and the Hadith, which must be given priority over all other evidences. Should there
be no nass on the matter, then he may resort to the manifest text (zahir) of the Qur'an and Hadith and
interpret it while applying the rules pertaining to the general (`amm) and specific (khass), the absolute
and the qualified, and so forth, as the case may be. Should there be no manifest text on the subject in the
Qur'an and the verbal Sunnah, the mujtahid may resort to the actual (fi'li) and tacitly approved (taqriri)
Sunnah. Failing this, he must find out if there is a ruling of ijma` or qiyas available on the problem in
Principles of Islamic Jurisprudence ~
Kamali 326
the works of the renowned jurists. In the absence of any guidance in these works, he may attempt an
original ijtihad along the lines of qiyas. This would entail a recourse to the Qur'an, the Hadith, or ijma`
for a precedent that has a `illah identical to that of the far' (i.e.. the case for which a solution is
wanting). When this is identified, he is to apply the principles of qiyas in order to deduce the necessary
ruling. In the absence of a textual basis on which an analogy could be founded, the mujtahid may resort
to any of the recognised methods of ijtihad such as istihsan, maslahah mursalah, istishab, etc, and
derive a solution while applying the rules that ensure the proper implementation of these doctrines.
Shirazi, Luma', pp. 83-84.]
The foregoing procedure has essentially been formulated by al-Shafi'i, who is noted to have observed
the following. When an incident occurs, the mujtahid must first check the nusus of the Qur'an, but if he
finds none, he must refer to Mutawatir Hadiths and then to solitary Hadiths. If the necessary guidance is
still not forthcoming, he should postpone recourse to qiyas until he has looked into the manifest (zahir)
text of the Qur'an. If he finds a manifest text which is general, he will need to find out if it can be
specified by means of Hadith or qiyas. But if he finds nothing that would specify the manifest text, he
may apply the latter as it stands. Should he fail to find a manifest text in the Qur'an or the Sunnah, he
must look into the madhahib. If he finds a consensus among them, he applies it, otherwise he resorts to
qiyas, but in doing so, he must pay more attention to the general principles of the Shari'ah than to its
subsidiary detail. If he does not find this possible, and all else fails, then he may apply the principle of
original absence of liability (al-bara'ah al-asliyyah). All this must be in full cognizance of the rules that
apply to the conflict of evidences (al-ta`arud bayn al-adillah), which means that the mujtahid should
know the methods deployed in reconciling such conflicts, or even eliminating one in favour of the
other, should this prove to be necessary. The ruling so arrived at may be that the matter is obligatory
(wajib), forbidden (haram), reprehensible (makruh), or recommended (mandub).
Shawkani, Irshad, p. 258.]
[53. Shafi'i, Risalah, pp. 261-62;
From the viewpoint of the procedure that it employs, ijtihad may occur in any of the following four
varieties. Firstly, there is the form of a juridical analogy (qiyas) which is founded on an effective cause
(`illah). The second variety of ijtihad consists of a probability (zann) without the presence of any `illah,
such as practicing a ijtihad in regard to ascertaining the time of salah or the direction of the qiblah. The
third type of ijtihad
consists of the interpretation of the source materials and the deduction of ahkam from an existing
evidence. This type of ijtihad is called ijtihad bayani, or 'explanatory ijtihad', which takes priority over
'analogical ijtihad', or ijtihad qiyas. The fourth variety of ijtihad, referred to as ijtihad istislahi, is based
on maslahah and seeks to deduce the ahkam
in pursuance of the spirit and purpose of the Shari'ah, which may take the form of istislah, juristic
preference (istihsan), the obstruction of means (sadd al-dhara'i'), or some other technique. Imam
Principles of Islamic Jurisprudence ~ Kamali 327
[52.Shafi`i accepts only the first type, namely analogical ijtihad, but for the majority of ulema, ijtihad is not
confined to qiyas and may take the form of any of the foregoing varieties.
258.]
The Ijtihad of the Prophet and his Companions
[54. Kassab, Adwa', p. 24; Hallaq, The Gate, p.
The question to be discussed here is whether all the rulings of the Prophet should be regarded as having
been divinely inspired or whether they also partake in ijtihad. The ulema are generally in agreement
that the Prophet practiced ijtihad in temporal and military affairs, but they have differed as to whether
his rulings in shar'i matters could properly fall under the rubric of ijtihad. According to the Ash'aris, the
Mu'tazilah, Ibn Hazm al-Zahiri and some Hanbali and Shafi'i ulema, the Qur'an provides clear evidence
that every speech of the Prophet partakes in wahy. A specific reference is thus made to sura al-Najm
(53:3) which provides `He says nothing of his own desire, it is nothing other than revelation [wahy] sent
down to him.' This ayah is quite categorical on the point that the Prophet is guided by divine revelation
and that all his utterances are to be seen in this light. This would mean that all the rulings of the Prophet
consist of divine revelation and that none would occur in the form of ijtihad.
[55. Shawkani, Irshad, p. 255.]
The majority of ulema have, however, held that the Prophet in fact practiced ijtihad just as he was
allowed to do so. This, it is said, is borne out by the numerous ayat of the Qur'an where the Prophet is
invited, along with the rest of the believers, to meditate on the Qur'an and to study and think about the
created world. As for the ayah in sura al-Najm quoted above, the majority of ulema have held that the
reference here is to the Qur'an itself, and not to every word that the Prophet uttered. That this is so is
borne out by the use of the pronoun `it' (huwa) in this ayah, which refers to the Qur'an itself. The
majority view adds that the occasion for the revelation (sha'n al-nuzul) of this ayah supports this
interpretation. (The ayah was revealed in refutation of the unbelievers who claimed that the Qur'an was
the work of the Prophet himself and not the speech of God.) Besides, the Prophet often resorted to
reasoning by way of analogy and ijtihad, and did not postpone all matters until the reception of divine
revelation
[56. Shawkani, Irshad, p. 256; Zuhayr, Usul, IV, 227.]
The minority view on this subject overrules the claim of the practice of ijtihad by the Prophet and
maintains that if it were true that the Prophet practiced ijtihad, then disagreeing with his views would be
permissible. For it is a characteristic of ijtihad to allow disagreement and opposition. Opposing the
Prophet is, however, clearly forbidden, and obedience to him is a Qur'anic duty upon every Muslim (alNisa',
4:14 and 58).
Principles of Islamic Jurisprudence ~ Kamali 328
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