There is yet a third opinion on this point which, owing to the conflicting nature of the evidence, advises
total suspension. This view is attributed to al-Shafi'i and upheld by al-Baqillani and al-Ghazali. AlShawkani,
however, rejects it by saying that the Qur'an gives us clear indications not only to the effect
that
ijtihad
was permissible for the Prophet but also that he was capable of making errors.
p. 256; Ghazali, Mustasfa, II, 104.]
Nonetheless, the ulema who have maintained this view add that such an error is
not sustained, meaning that any error the Prophet might have made was rectified by the Prophet himself
or through subsequent revelation.
[58. Kassab, Adwa', p. 61.]
Thus we find passages in the Qur'an which reproach
the Prophet for his errors. To give an example, a text in sura al-Anfal (8:67) provide,: `It is not proper
for the Prophet to take prisoners [of war] until he has subdued everyone in the earth: This ayah was
revealed concerning the captives of the battle of Badr. It is reported that seventy persons from the
enemy side were taken prisoner in the battle. The Prophet first consulted Abu Bakr, who suggested that
they should be released against a ransom, whereas `Umar b. al-Khattab held the view that they should
be killed. The Prophet approved of Abu Bakr's view but then the ayah was revealed which disapproved
of taking ransom from the captives. Elsewhere, in sura al-Tawbah (9:43), in an address to the Prophet,
the text provides: `God granted you pardon, but why did you permit them to do so before it became
clear to you who was telling the truth?' This ayah was revealed concerning the exemption that the
Prophet granted, prior to investigating the matter, to those who did not participate in the battle of
Tabuk. These and similar passages in the Qur'an indicate that the Prophet had on occasions acted on his
own ijtihad. For had he acted in pursuance of a divine command, there would have been no occasion for
a reprimand, or the granting of divine pardon for his mistakes.
Kassab, Adwa', p. 61.]
Principles of Islamic Jurisprudence ~ Kamali 329
[57. Shawkani, Irshad,
[59. Shawkani, Irshad, p. 256; Ghazali, Mustasfa, II, 104;
The majority view that the Prophet resorted to ijtihad finds further support in the Sunnah. Thus,
according to one Hadith, the Prophet is reported to have said, `When I do not receive a revelation
(wahy) I adjudicate among you on the basis of my opinion (ra'y).'
no. 3578; Kassab, Adwa', p.58. For other ahadith on this point se Shawkani, Irshad, p.256.]
[60. Abu Dawud, Susan (Hasan's trans.), III, 1017, Hadith
The next point to be raised in this connection is whether ijtihad was lawful for the Companions during
the lifetime of the Prophet. Once again the majority of ulema have held that it was, regardless as to
whether it took place in the presence of the Prophet or in his absence. The ulema have, however,
differed over the details. Ibn Hazm held that such an ijtihad is valid in matters other than the halal and
haram, whereas al-Amidi and Ibn al-Hajib have observed that it is only speculative and does not
establish a definitive ruling. There are still others who have held that ijtihad was lawful for the
Companions only if it took place in the presence of the Prophet, with his permission, or if the Prophet
had approved of it in some way. Those who invalidate ijtihad for the Companions during the lifetime of
the Prophet maintain that the Companions had access to the Prophet in order to obtain the necessary
authority, which would be decisive and final. If one is able to obtain a decisive ruling on a juridical
matter, ijtihad which is merely a speculative exercise is unlawful.
[61. Shawkani, Irshad, p. 257; Zuhayr, Usul, IV, 234.]
This view is, however, considered to be weak as it takes for granted ready access to the Prophet; it also
discounts the possibility that certain decisions had to be made by the Companions without delay. The
correct view is therefore that of the majority, which is supported by the fact that the Companions did,
on numerous occasions, practice ijtihad both in the presence of the Prophet and in his absence. The
Hadith of Mu'adh b. Jabal is quoted as clear authority to the effect that the Prophet authorised Mu'adh to
resort to ijtihad in his absence (i.e. in the Yemen).
[62. Ghazali, Mustasfa, II, 104.]
Numerous other names are
quoted, including those of Abu Bakr, Sa'd b. Mu'adh, Amr b. al-'As and Abu Musa al-Ash'ari, who have
delivered ijtihad in the absence of the Prophet.
[63. Shawkani, Irshad, p.257; Zuhayr, Usul, IV, 237.]
It is also reported in a
Hadith that when the Prophet authorised `Amr b. al-`As to adjudicate in some disputes, he asked the
Prophet, 'Shall I render ijtihad while you are present?' To this the Prophet replied, 'Yes. If you are right
in your judgement, you earn two rewards, but if you err, only one.' It is similarly reported that Sa'd b.
Mu'adh rendered a judgment concerning the Jews of Banu Qurayzah in the presence of the Prophet, and
that he approved of it.
[64. Shawkani, Irshad, p. 257; Kassab, Adwa', p. 80. Ghazali has however expressed some reservations as to the validity of
ijtihad in the presence of the Prophet, as he considers that unless the Prophet granted permission, ijtihad in his presence would be discourteous (Mustasfa, II, 104).]
Truth and Fallacy of Ijtihad
The jurists have differed as to whether every mujtahid can be assumed to be right in his conclusions, or
whether only one of several solutions to a particular problem may be regarded as true to the exclusion
of all others. At the root of this question lies the uncertainty over the unity or plurality of truth in
ijtihad. Has Almighty God predetermined a specific solution to every issue, which alone may be
regarded as right? If the answer to this is in the affirmative then it will follow that there is only one
correct solution to any juridical problem and that all others are erroneous. This would in turn beg the
question of whether it is at all possible for the mujtahid to commit a sin by rendering an erroneous
ijtihad. In the face of the Hadith which promises a spiritual reward to every mujtahid regardless of the
accuracy of his conclusions, plus the fact that he is performing a sacred duty-is it theoretically possible
for a mujtahid to commit a sin?
The ulema are in agreement that in regard to the essentials of dogma, such as the oneness of God
(tawhid), His attributes, the truth of the Prophethood of Muhammad, the hereafter, and so on, there is
only one truth and anyone, whether a mujtahid or otherwise, who takes a different view automatically
renounces Islam.
[65. Shawkani, Irshad, p. 259.]
With regard to juridical or shar'i matters, the majority of ulema, including the Ash'aris and the
Mu`tazilah, recognise two types:
Principles of Islamic Jurisprudence ~
Kamali 330
1) Juridical matters which are determined by a clear and definitive text, such as the obligatoriness of
salah and other pillars of the faith, the prohibition of theft, adultery, and so on. In regard to these
matters, once again, there is only one truth with which the mujtahid may not differ. Anyone who takes
an exception to it commits a sin, and according to some, even heresy and disbelief.
2) Shar'i matters on which no decisive ruling is found in the sources. There is much disagreement on
this. The Ash'aris and the Mu'tazilah have held the view that ijtihad in regard to such matters is always
meritorious and partakes in truth regardless of the nature of its results. But according to the four leading
imams and many other ulema, only one of the several opposing views on a particular issue may be said
to be correct. For it is impossible to say that one and the same thing at the same time regarding the same
person could be both lawful and unlawful.
[66. Shawkani, Irshad, pp. 260-61; Zuhayr, Usul, IV, 238.]
This view has quoted
in support the Qur'anic text where in reference to the two judgements of David and Solomon on one and
the same issue, God validated only one. The text runs:
And when David and Solomon both passed judgement on the field where some people's sheep had
strayed to pasture there at night, We acted as Witnesses for their decision. We made Solomon
understand it. To each We gave discretion and knowledge [ ...] (al-Anbiya', 21:78-79).
Had there been more than one correct solution to a juridical problem, then this ayah would have upheld
the judgements both of David and Solomon. It is thus suggested that this ayah confirms the unitary
character of truth in ijtihad. Furthermore, when one looks at the practice of the Companions, it will be
obvious that not only did they admit the possibility of error in their own judgements but that then also
criticised one another. If all of them were to be right in their ijtihad, there would be no point in their
criticising one another or in admitting the possibility of error in their own ijtihad. To give an example,
the Caliph Abu Bakr is reported to have said in regard to the issue of kalalah (i.e. when the deceased
leaves no parent or child to inherit him): 'I decided the question of kalalah according to my opinion. If it
is correct, it is an inspiration from God; if it is wrong, then the error is mine and Satan's:
187; Ibn al-Qayyim, I`lam, I, 177.]
It is further reported that when `Umar b. al-Khattab adjudicated a case, one of
the parties to the dispute who was present at the time said, 'By God this is the truth.' To this the caliph
replied that he did not know whether he had attained the truth, but that he had spared no effort in
striving to do so.
[68. Amidi, Ihkam, IV, 187.]
The ahadith and the practice of the Companions on ijtihad clearly entertain the possibility of error in
ijtihad. A mujtahid may be right or may have erred, but in either case, his effort is commendable and
worthy of reward.
The opposite view, which is a minority opinion, maintains that there is no pre-determined truth in
regard to ijtihadi matters. Almighty God has not determined one particular solution as truth to the
exclusion of all others. The result of ijtihad may thus vary and several verdicts may be regarded as truth
Principles of Islamic Jurisprudence ~ Kamali 331
[67. Amidi, Ihkam, IV,on their merit. This view quotes in support the same Qur'anic text, quoted above, which in its latter part
refers to David and Solomon with the words: To each We gave discretion and knowledge.' Had either of
them committed an error, God would not have praised them thus. It is hence implied that both were
right, and that every mujtahid attains the truth in his own way. It is further argued that had there been
only one truth in regard to a particular issue, the mujtahid would not have been bound by the result of
his own ijtihad. His duty to follow his own ijtihad to the exclusion of anyone else's suggests that every
mujtahid attains the truth.
[69. Shawkani, Irshad, p. 262; Zuhayr, Usul, IV, 239; Kassab, Adwa', pp. 102-103.]
This view seeks further
support in the rule of Shari'ah which authorises the Imam or the mujtahid to appoint as judge another
mujtahid who may differ with him in ijtihad. This was, for example, the case when Abu Bakr appointed
Zayd b. Thabit as a judge while it was common knowledge among the Companions that Zayd had
differed with Abu Bakr on many issues. Had a difference of opinion in ijtihadi matters amounted to
divergence from truth and indulgence in error, Abu Bakr would not have appointed Zayd to judicial
office. And lastly, the proponents of this view have referred to the Hadith which reads: `My
Companions are like stars; any one of them that you follow will lead you to the right path.'
Had there been any substance to the idea that truth is unitary, the Prophet would have specified
adherence only to those of his Companions who attained to it.
Usul, IV, 241.]
[70. Shawkani, Irshad, p. 262; Amidi, Ihkam, IV, 152; Zuhayr,
These differences may be resolved, as the majority of ulema suggest, in the light of the celebrated
Hadith, which we quote again: 'When a judge renders ijtihad and gives a right judgement, he will have
two rewards, but if he errs, he will still have earned one reward.' This Hadith clearly shows that the
mujtahid is either right (musib), or in error (mukhti'), that some mujtahidun attain the truth while others
do not; but that sin attaches to neither as they are both rewarded for their efforts. Hence anyone who
maintains that there are as many truths as there are mujtahids is clearly out of line with the purport of
this Hadith. If every mujtahid were supposed to be right, then the division of mujtahids into two types
in this Hadith would have no meaning.
Classification and Restrictions
[71. Shawkani, Irshad, p. 261.]
In their drive to impose restrictions on ijtihad, the ulema of usul of the fifth/eleventh century and the
subsequent period classified ijtihad into several categories. Initially it was divided into two types:
firstly, ijtihad which aims at deducing the law from the evidence in the sources, often referred to as
'independent ijtihad'; and secondly, ijtihad which is concerned mainly with the elaboration and
implementation of the law within the confines of a particular school, known as `limited ijtihad'. During
the first two and a half centuries of Islam, there was never any attempt at denying a scholar the right to
Principles of Islamic Jurisprudence ~
Kamali 332
find his own solutions to legal problems. It was only at a later period that the question of who was
qualified to practice ijtihad was raised. From about the middle of the third/ninth century, the idea began
to gain currency that only the great scholars of the past had enjoyed the right to practice ijtihad.
Schacht, 'Idjtihad', Encyclopedia of Islam, IV, 1029.]
This was the beginning of what came to be known as the `closure of
the gate of ijtihad'. Before the fifth/eleventh century, no trace may be found of any attempt to classify
ijtihad into categories of excellence. Al-Ghazali (d. 505/1111) was the first to divide ijtihad into two
categories, as noted above.
[73. Hallaq, The Gate, p. 18.]
This division was later developed into five, and
eventually into seven classes. While representing the prevailing opinion of his time, al-Ghazali admitted
that independent mujtahids were already extinct.
[74. While quoting Ghazali's statement, Shawkani (Irshad, p. 253) considers it of
questionable validity and adds that Ghazali almost contradicted himself when he said that he did not follow Shafi'i in all his opinions.]
About two
centuries later, the number of the ranks of mujtahidun reached five, and by the tenth/sixteenth century
seven ranks were distinguished, while from the sixth/twelfth century onwards jurists are said to belong
to only the last two categories on the scale of seven.
classification of ijtihad can be found in Hallaq, The Gate, p. 84ff.]
[75. A more detailed account of the historical development concerning the
This is as follows:
1) Full Mujtahid (mujtahid fi'l-shar'). This rank is assigned to chose who fulfilled all the requirements
of ijtihad. They deduced the ahkam from the evidence in the sources, and in so doing were not
restricted by the rules of a particular madhhab. The learned among the Companions, and the leading
jurists of the succeeding generation, like Sa`id b. al-Musayyib and Ibrahim al-Nakha'i, the leading
Imams of the four schools, the leading Imams of the Shi'ah Muhammad al-Baqir and his son ja'far alSadiq,
al-Awza'i and many others were identified as independent mujtahids.
It is by the authority of
these
that consensus of opinion, analogy, juristic preference, maslahah
mursalah,
etc., were formulated
and
established as the secondary proofs of Shari'ah.
Jurisprudence, pp. 182-83.]
[76. Abu Zahrah, Usul, p. 310; Kassab, Adwa', p. 38; Abdur Rahim,
Although Abu Yusuf and al-Shaybani are usually subsumed under the second rank,
Abu Zahrah, who has written extensively on the lives and works of the leading ulema, regards them as
full mujtahids. The criteria of distinguishing the first from the second class of mujtahidun is originality
and independent thought. If this is deemed to be the case the mere fact that a mujtahid has concurred
with the opinion of another is immaterial in the determination of his rank. For many of the leading
mujtahids are known to have concurred with the views of other ulema. For example, it is known that
Abu Hanifah on many occasions agreed with and followed the views of his teacher Ibrahim al-Nakha'i,
but this was only because he was convinced of the accuracy of his reasoning, and not out of imitation
for its own sake.
[77. Abu Zahrah, Usul, p. 310; Kassab, Adwa', p. 38; Abdur Rahim, Jurisprudence, pp. 182-83.]
The question arises whether this type of ijtihad is still open or came to an end with the so-called closure
of the gate of ijtihad. With the exception of the Hanbalis who maintain that ijtihad in all of its forms
remains open, the ulema of the other three schools have on the whole acceded to the view that
independent ijtihad has discontinued.
[78. While stating the position of the three Sunni schools on the point, Abu Zahrah (Usul, p. 311) adds
that this is not definite as, for example, some Hanafis have considered Kamal al-Din ibn al-Humam as a mujtahid of the first class.]
Another related
question that has been extensively debated by the ulema is whether the idea of the total extinction of
Principles of Islamic Jurisprudence ~ Kamali 333
[72. Cf.mujtahids at any given period or generation is at all acceptable from the viewpoint of doctrine. Could
the Shari'ah entertain such a possibility and maintain its own continuation , both at the same time? The
majority of the ulema of usul, including al-Amidi, Ibn al-Hajib, Ibn al-Humam, Ibn al-Subki, and
Zakariya al-Ansari have answered this question in the affirmative, whereas the Hanbalis have held
otherwise. The Hanbalis have argued that ijtihad is an obligatory duty of the Muslim community whose
total abandonment would amount to an agreement on deviation/error, which is precluded by the Hadith
which states that 'My community shall never agree on an error.'
Irshad, p. 253; Ghazali, Mustasfa, I, 111.]
[79. Muslim, Sahih, p. 290, Hadith no. 1095; Shawkani,
To say that ijtihad is a wajib, whether `ayni or kafa'i, takes it for granted that it may never be
discontinued. This is also the implication of another Hadith which provides that 'a section of my ummah
will continue to be on the right path; they will be the dominant force and they will not be vanquished till
the Day of Resurrection.'
[80. Muslim, Sahih, p. 290, Hadith no. 1095; Shawkani, Irshad, p. 253; Ghazali, Mustasfa, I, 111.]
Since the successful pursuit of truth is not possible without knowledge, the survival of mujtahidun in
any given age (`asr) is therefore sustained by this Hadith. Furthermore, according to some ulema, the
duty to perform ijtihad is not fulfilled by means of limited ijtihad or by practicing the delivery of fatwa
alone. According to the Hanbalis, the claim that ijtihad has discontinued is to be utterly rejected. Ijtihad
is not only open, but no period may be without a mujtahid. The Shi'ah Imamiyyah have held the same
view. The Shi'ah, however, follow their recognised Imams, in whose absence they may exercise ijtihad
on condition that they adhere, both in principle and in detail, to the rulings of the Imams. In the absence
of any ruling by the Imams, the Shi'ah recognise `aql as a proof following the Qur'an, the Sunnah, and
the rulings of their Imams.
[81. Abu Zahrah, Usul, p.312; Kassab, Adwa', p.112.]
And finally, it may be said that the notion
of the discontinuation of ijtihad would appear to be in conflict with some of the important doctrines of
Shari'ah. The theory of ijma', for example, and the elaborate procedures relating to qiyas all proceed on
the assumption that they are the living proofs of the law and contemplate the existence of mujtahidun in
every age.
[82. Cf. Abdur Rahim, Jurisprudence, p. 174.]
2) Mujtahids within the School. These are jurists who expounded the law within the confines of a
particular school while adhering to the principles laid down by their Imams. Among the prominent
names that feature in this category are Zafar b. al-Hudhayl, Hasan b. Ziyad in the Hanafi school; Isma'il
b. Yahya al-Muzani, 'Uthman Taqi al-Din b. al-Salah and Jalal al-Din al-Suyuti in the Shafi'i; Ibn `Abd
al-Barr and Abu Bakr b. al-`Arabi in the Maliki, and Ibn Taymiyyah and his disciple Ibn Qayyim alJawziyyah
in the Hanbali schools. It is observed that although these ulema all followed the doctrines of
their
respective schools, nevertheless they did not consider themselves bound to follow their masters in
the
implementation of the general principles or in arguments concerning particular issues. This is borne
out
by the fact that they have held opinions that were opposed to those of their leading Imams.
Zahrah, Usul, p. 312; Kassab, Adwa', p. 39; Abdur Rahim, Jurisprudence, p. 183.]
Principles of Islamic Jurisprudence ~ Kamali 334
[83. Abu3) Mujtahids on Particular Issues. These are jurists who were competent to elucidate and apply the law
in particular cases which were not settled by the jurists of the first and second ranks. They did not
oppose the leading mujtahidun and generally followed the established principles of their schools. Their
main pre-occupation was to elaborate the law on fresh points which were not clearly determined by the
higher authorities. Scholars like Abu'l-Hasan al-Karkhi and Abu Ja'far al-Tahawi in the Hanafi school,
Abu al-Fadl al-Marwazi and Abu Ishaq al-Shirazi in the Shafi'i, Abu Bakr al-Abhari in the Maliki and
'Amr b. Husayn al-Khiraqi in the Hanbali schools have been placed it this category.
All the preceding three classes were designated as mujtahids, but the remaining four classes of ulema,
as described below have been classified as imitators.
Theories, p. 95; Mawsu'ah Jamal, I, 253, and VII, 387.]
[84. Abu Zahrah, Usul, p. 314; Kassab, Adwa', p. 40; Aghnides, Muhammedan
4) The so-called ashab al-takhrij, who did not deduce the ahkam but were well conversant in the
doctrine and were able to indicate which view was preferable in cases of ambiguity, or regarding
suitability to prevailing conditions.
[85. Abu Zahrah, Usul, p. 315; Kassab, Adwa', p. 40; Aghnides, Muhammedan Theories, p. 96.]
5) The ashab al-tarjih are those who were competent to make comparisons and distinguish the correct
(sahih) and the preferred (rajih, arjah) and the agreed upon (mufta biha) views from the weak ones.
Authors like 'Ala' al-Din al-Kasani and Burhan al-Din al-Marghinani of the Hanafi school, Muhyi alDin
al-Nawawi of the Shafi'i, Ibn Rushd al-Qurtubi of the Maliki and Muwaffaq al-Din ibn Qudamah of
the
Hanbali schools and their equals have been placed in this category.
40; Aghnides, Muhammedan Theories, p. 96.]
[86. Abu Zahrah, Usul, p. 315; Kassab, Adwa', p.
6) The so-called ashab al-tashih: those who could distinguish between the manifest (zahir al-riwayah)
and the rare and obscure (al-nawadir) views of the schools of their following. Textbook writers whose
works are in use in the various madhahib are said to fall into this category.
Adwa', p. 40; Aghnides, Muhammedan Theories, p. 96.]
[87. Abu Zahrah, Usul, p. 315; Kassab,
It will be noted here that the previous three categories are somewhat overlapping and could be unified
under one category to comprise all those who drew comparisons and evaluated the strengths and
weaknesses of the existing views.
7) And finally the muqallidun, or the `imitators', who lack the abilities of the above and comprise all
who do not fall in any of the preceding classes. It is said concerning them that, They do not distinguish
between the lean and the fat, right and left, but get together whatever they find, like the one who gathers
wood in the dark of the night.
[88. Abu Zahrah, Usul, p.316.]
Principles of Islamic Jurisprudence ~
Kamali 335
While referring to this classification, Aghnides is probably right in observing that `It implies a
gratuitous assumption that the latter mujtahids could not show greater independence of thought.'
Aghnides, Muhammedan Theories, p. 96.]
The restrictions that were imposed on ijtihad and the ensuing phenomenon
of the 'closing of its gate' are, in the most part, an historical development which could find little if any
support in the legal theory of ijtihad. Similarly, the notion that the ulema, at around the beginning of the
fourth century, reached such an immutable consensus of opinion that further ijtihad was unnecessary is
ill-conceived and untenable.
[90. Cf. Weiss, 'Interpretation', p. 208.]
The mendacity of such a claim is attested by the
rejection on the part of numerous ulema, including those of the Hanbali and the Shi'ah Imamiyyah, of
the validity of such a consensus.
Authors throughout the Muslim world have begun to criticise taqlid and advocate the continued validity
of ijtihad as a divinely prescribed legal principle. A number of most prominent ulema, including Shah
Wali Allah, Muhammad b. Isma'il al-San'ani, Muhammad bin `Ali al-Shawkani and Ibn 'Ali al-Sanusi
led the call for the revival of ijtihad.
[91. Further details on developments in the Hijaz and in the Indian subcontinent can be found in Fazlur
Rahman, Islam, p.197 ff; Enayat, Modern Islamic Political Thought, p. 63 ff.]
The nineteenth century Salafiyyah movement in
Egypt advocated the renovation of Islam in the light of modern conditions and the total rejection of
taqlid.
AI-Shawkani (d.1255/1839) vehemently denies the claim that independent mujtahidun have become
extinct, a claim which smacks of 'crass ignorance and is utterly to be rejected'. The same author goes on
to name a number of prominent ulema who have achieved the highest rank of erudition in Shari'ah.
Among the Shafi`is, for example, at least six such ulema can be named who have fulfilled, in an
uninterrupted chain of scholarship, all the requirements of ijtihad. These are 'Izz al-Din ibn 'Abd alSalem
and his disciple, Ibn Daqiq al-`Id, then the latter's disciple Muhammad ibn Sayyid al-Nas, then
his
disciple Zayn al-Din al-'Iraqi, his disciple Ibn Hajar al-`Asqalani, and his disciple, Jalal al-Din alSuyuti.
That they were all full mujtahids
is attested by the calibre of their works and the significant
contributions
they have made to the Shari'ah.
The first two of these are particularly prominent. In his
well-recognised
juristic work. At-Bahr al-Muhit, Muhammad b. `Abd Allah al-Zarkashi has
acknowledged
that they had both attained the rank of mujtahid.
'It is utter nonsense' writes al-Shawkani,
`to
say that God Almighty bestowed the capacity for knowledge and ijtihad
on the bygone generations
of
ulema but denied it to the later generations.' What the proponents of taqlid
are saying to us is that we
must
know the Qur'an and the Sunnah
through the words of other men while we still have the guidance
in
our hands. Praise be to God, this is the greatest lie (buhtanun
'azim)
and there is no reason in the
world
to vindicate it.
[92. Shawkani, Irshad, p. 254]
Iqbal Lahori considers the alleged closure of the gate of ijtihad to be 'a pure fiction' suggested partly by
the crystallization of legal thought in Islam, and partly by that intellectual laziness which, especially in
periods of spiritual decay, turns great thinkers into idols. Iqbal continues: if some of the later doctors
Principles of Islamic Jurisprudence ~ Kamali 336
[89.have upheld this fiction, 'modern Islam is not bound by this voluntary surrender of intellectual
independence'.
[93. Iqbal, Reconstruction, p. 178.]
Abu Zahrah is equally critical of the alleged closure of the door of ijtihad. How could anyone be right
in closing the door that God Almighty has opened for the exertion of the human intellect? Anyone who
has advanced this claim could surely have no convincing argument to prove it. Abu Zahrah continues:
the fact that ijtihad has not been actively pursued has had the chilling effect of moving the people
further away from the sources of the Shari'ah. The tide of taqlid has carried some so far as to say that
there is no further need to interpret the Qur'an and Hadith now that the door of ijtihad is closed. In Abu
Zahrah's phrase, 'nothing is further from the truth - and we seek refuge in God from such excesses'.
Abu Zahrah, Usul, p. 318.]
Conclusion
The conditions under which ijtihad was formerly practiced by the ulema of the early periods are no
longer what they were. For one thing, the prevalence of statutory legislation as the main instrument of
government in modern times has led to the imposition of further restrictions on ijtihad. The fact that the
law of the land in the majority of Islamic countries has been confined to the statute book, and the
parallel development whereby the role of interpreting the statute has also been assigned to the courts of
law, has had, all in all, a discouraging effect on ijtihad. The mujtahid is given no recognised status, nor
is he required to play a definite role in legislation or the administration of justice in the courts. This is
confirmed by the fact that many modern constitutions in Islamic countries are totally silent on ijtihad. It
was this total neglect of ijtihad which prompted Iqbal to propose, in his well-known work 'The
Reconstruction of Religious Thought in Islam, that the only way to utilise both ijma` and ijtihad (which
he refers to as the 'principle of movement') into the fabric of modern government is to institutionalise
ijtihad by making it an integral feature of the legislative function of the state (P. 174).
Essentially the same view has been put forward by al-Tamawi, who points out that ijtihad by
individuals in the manner that was practiced by the fuqaha' of the past is no longer suitable to modern
conditions. The revival of ijtihad in our times would necessitate efforts which the government must
undertake. Since education is the business and responsibility of modern governments, it should be
possible to provide the necessary education and training that a mujtahid would need to possess, and to
make attainment to this rank dependent on special qualifications. Al-Tamawi further recommends the
setting up of a council of qualified mujtahids to advise in the preparation and approval of statutory law
so as to ensure its harmony with Shari'ah principles.
[95. Tamawi, Al-Sulutat, p. 307.]
Principles of Islamic Jurisprudence ~ Kamali 337
[94.This is, of course, not to say that the traditional forms of learning in the Shari`ah disciplines, or of the
practice of ijtihad, are obsolete. On the contrary, the contribution that the ulema and scholars can make,
in their individual capacities, to the incessant search for better solutions and more refined alternatives
should never be underestimated. It is further hoped that, for its part, government will also play a
positive role in preserving the best heritage of the traditional modes of learning, and encourage the
ulema to enhance their contribution to law and development. The universities and legal professions in
many Islamic countries are currently committed to the training of lawyers and barristers in the modern
law stream. To initiate a comprehensive and well-defined programme of education for prospective
mujtahids, which would combine training in both the traditional and modern legal disciplines, would
not seem to be beyond the combined capabilities of universities and legal professions possessed of
long-standing experience in Islamic legal education.
Furthermore, in a Shari'ah-oriented government it would seem desirable that the range of selection to
senior advisory, educational and judicial posts would include the qualified mujtahidun. This would
hopefully provide the basis for healthy competition and incentives for high performance among the
candidates, and help to create a definite role for them in the various spheres of government.
Principles of Islamic Jurisprudence ~ Kamali 338
total suspension. This view is attributed to al-Shafi'i and upheld by al-Baqillani and al-Ghazali. AlShawkani,
however, rejects it by saying that the Qur'an gives us clear indications not only to the effect
that
ijtihad
was permissible for the Prophet but also that he was capable of making errors.
p. 256; Ghazali, Mustasfa, II, 104.]
Nonetheless, the ulema who have maintained this view add that such an error is
not sustained, meaning that any error the Prophet might have made was rectified by the Prophet himself
or through subsequent revelation.
[58. Kassab, Adwa', p. 61.]
Thus we find passages in the Qur'an which reproach
the Prophet for his errors. To give an example, a text in sura al-Anfal (8:67) provide,: `It is not proper
for the Prophet to take prisoners [of war] until he has subdued everyone in the earth: This ayah was
revealed concerning the captives of the battle of Badr. It is reported that seventy persons from the
enemy side were taken prisoner in the battle. The Prophet first consulted Abu Bakr, who suggested that
they should be released against a ransom, whereas `Umar b. al-Khattab held the view that they should
be killed. The Prophet approved of Abu Bakr's view but then the ayah was revealed which disapproved
of taking ransom from the captives. Elsewhere, in sura al-Tawbah (9:43), in an address to the Prophet,
the text provides: `God granted you pardon, but why did you permit them to do so before it became
clear to you who was telling the truth?' This ayah was revealed concerning the exemption that the
Prophet granted, prior to investigating the matter, to those who did not participate in the battle of
Tabuk. These and similar passages in the Qur'an indicate that the Prophet had on occasions acted on his
own ijtihad. For had he acted in pursuance of a divine command, there would have been no occasion for
a reprimand, or the granting of divine pardon for his mistakes.
Kassab, Adwa', p. 61.]
Principles of Islamic Jurisprudence ~ Kamali 329
[57. Shawkani, Irshad,
[59. Shawkani, Irshad, p. 256; Ghazali, Mustasfa, II, 104;
The majority view that the Prophet resorted to ijtihad finds further support in the Sunnah. Thus,
according to one Hadith, the Prophet is reported to have said, `When I do not receive a revelation
(wahy) I adjudicate among you on the basis of my opinion (ra'y).'
no. 3578; Kassab, Adwa', p.58. For other ahadith on this point se Shawkani, Irshad, p.256.]
[60. Abu Dawud, Susan (Hasan's trans.), III, 1017, Hadith
The next point to be raised in this connection is whether ijtihad was lawful for the Companions during
the lifetime of the Prophet. Once again the majority of ulema have held that it was, regardless as to
whether it took place in the presence of the Prophet or in his absence. The ulema have, however,
differed over the details. Ibn Hazm held that such an ijtihad is valid in matters other than the halal and
haram, whereas al-Amidi and Ibn al-Hajib have observed that it is only speculative and does not
establish a definitive ruling. There are still others who have held that ijtihad was lawful for the
Companions only if it took place in the presence of the Prophet, with his permission, or if the Prophet
had approved of it in some way. Those who invalidate ijtihad for the Companions during the lifetime of
the Prophet maintain that the Companions had access to the Prophet in order to obtain the necessary
authority, which would be decisive and final. If one is able to obtain a decisive ruling on a juridical
matter, ijtihad which is merely a speculative exercise is unlawful.
[61. Shawkani, Irshad, p. 257; Zuhayr, Usul, IV, 234.]
This view is, however, considered to be weak as it takes for granted ready access to the Prophet; it also
discounts the possibility that certain decisions had to be made by the Companions without delay. The
correct view is therefore that of the majority, which is supported by the fact that the Companions did,
on numerous occasions, practice ijtihad both in the presence of the Prophet and in his absence. The
Hadith of Mu'adh b. Jabal is quoted as clear authority to the effect that the Prophet authorised Mu'adh to
resort to ijtihad in his absence (i.e. in the Yemen).
[62. Ghazali, Mustasfa, II, 104.]
Numerous other names are
quoted, including those of Abu Bakr, Sa'd b. Mu'adh, Amr b. al-'As and Abu Musa al-Ash'ari, who have
delivered ijtihad in the absence of the Prophet.
[63. Shawkani, Irshad, p.257; Zuhayr, Usul, IV, 237.]
It is also reported in a
Hadith that when the Prophet authorised `Amr b. al-`As to adjudicate in some disputes, he asked the
Prophet, 'Shall I render ijtihad while you are present?' To this the Prophet replied, 'Yes. If you are right
in your judgement, you earn two rewards, but if you err, only one.' It is similarly reported that Sa'd b.
Mu'adh rendered a judgment concerning the Jews of Banu Qurayzah in the presence of the Prophet, and
that he approved of it.
[64. Shawkani, Irshad, p. 257; Kassab, Adwa', p. 80. Ghazali has however expressed some reservations as to the validity of
ijtihad in the presence of the Prophet, as he considers that unless the Prophet granted permission, ijtihad in his presence would be discourteous (Mustasfa, II, 104).]
Truth and Fallacy of Ijtihad
The jurists have differed as to whether every mujtahid can be assumed to be right in his conclusions, or
whether only one of several solutions to a particular problem may be regarded as true to the exclusion
of all others. At the root of this question lies the uncertainty over the unity or plurality of truth in
ijtihad. Has Almighty God predetermined a specific solution to every issue, which alone may be
regarded as right? If the answer to this is in the affirmative then it will follow that there is only one
correct solution to any juridical problem and that all others are erroneous. This would in turn beg the
question of whether it is at all possible for the mujtahid to commit a sin by rendering an erroneous
ijtihad. In the face of the Hadith which promises a spiritual reward to every mujtahid regardless of the
accuracy of his conclusions, plus the fact that he is performing a sacred duty-is it theoretically possible
for a mujtahid to commit a sin?
The ulema are in agreement that in regard to the essentials of dogma, such as the oneness of God
(tawhid), His attributes, the truth of the Prophethood of Muhammad, the hereafter, and so on, there is
only one truth and anyone, whether a mujtahid or otherwise, who takes a different view automatically
renounces Islam.
[65. Shawkani, Irshad, p. 259.]
With regard to juridical or shar'i matters, the majority of ulema, including the Ash'aris and the
Mu`tazilah, recognise two types:
Principles of Islamic Jurisprudence ~
Kamali 330
1) Juridical matters which are determined by a clear and definitive text, such as the obligatoriness of
salah and other pillars of the faith, the prohibition of theft, adultery, and so on. In regard to these
matters, once again, there is only one truth with which the mujtahid may not differ. Anyone who takes
an exception to it commits a sin, and according to some, even heresy and disbelief.
2) Shar'i matters on which no decisive ruling is found in the sources. There is much disagreement on
this. The Ash'aris and the Mu'tazilah have held the view that ijtihad in regard to such matters is always
meritorious and partakes in truth regardless of the nature of its results. But according to the four leading
imams and many other ulema, only one of the several opposing views on a particular issue may be said
to be correct. For it is impossible to say that one and the same thing at the same time regarding the same
person could be both lawful and unlawful.
[66. Shawkani, Irshad, pp. 260-61; Zuhayr, Usul, IV, 238.]
This view has quoted
in support the Qur'anic text where in reference to the two judgements of David and Solomon on one and
the same issue, God validated only one. The text runs:
And when David and Solomon both passed judgement on the field where some people's sheep had
strayed to pasture there at night, We acted as Witnesses for their decision. We made Solomon
understand it. To each We gave discretion and knowledge [ ...] (al-Anbiya', 21:78-79).
Had there been more than one correct solution to a juridical problem, then this ayah would have upheld
the judgements both of David and Solomon. It is thus suggested that this ayah confirms the unitary
character of truth in ijtihad. Furthermore, when one looks at the practice of the Companions, it will be
obvious that not only did they admit the possibility of error in their own judgements but that then also
criticised one another. If all of them were to be right in their ijtihad, there would be no point in their
criticising one another or in admitting the possibility of error in their own ijtihad. To give an example,
the Caliph Abu Bakr is reported to have said in regard to the issue of kalalah (i.e. when the deceased
leaves no parent or child to inherit him): 'I decided the question of kalalah according to my opinion. If it
is correct, it is an inspiration from God; if it is wrong, then the error is mine and Satan's:
187; Ibn al-Qayyim, I`lam, I, 177.]
It is further reported that when `Umar b. al-Khattab adjudicated a case, one of
the parties to the dispute who was present at the time said, 'By God this is the truth.' To this the caliph
replied that he did not know whether he had attained the truth, but that he had spared no effort in
striving to do so.
[68. Amidi, Ihkam, IV, 187.]
The ahadith and the practice of the Companions on ijtihad clearly entertain the possibility of error in
ijtihad. A mujtahid may be right or may have erred, but in either case, his effort is commendable and
worthy of reward.
The opposite view, which is a minority opinion, maintains that there is no pre-determined truth in
regard to ijtihadi matters. Almighty God has not determined one particular solution as truth to the
exclusion of all others. The result of ijtihad may thus vary and several verdicts may be regarded as truth
Principles of Islamic Jurisprudence ~ Kamali 331
[67. Amidi, Ihkam, IV,on their merit. This view quotes in support the same Qur'anic text, quoted above, which in its latter part
refers to David and Solomon with the words: To each We gave discretion and knowledge.' Had either of
them committed an error, God would not have praised them thus. It is hence implied that both were
right, and that every mujtahid attains the truth in his own way. It is further argued that had there been
only one truth in regard to a particular issue, the mujtahid would not have been bound by the result of
his own ijtihad. His duty to follow his own ijtihad to the exclusion of anyone else's suggests that every
mujtahid attains the truth.
[69. Shawkani, Irshad, p. 262; Zuhayr, Usul, IV, 239; Kassab, Adwa', pp. 102-103.]
This view seeks further
support in the rule of Shari'ah which authorises the Imam or the mujtahid to appoint as judge another
mujtahid who may differ with him in ijtihad. This was, for example, the case when Abu Bakr appointed
Zayd b. Thabit as a judge while it was common knowledge among the Companions that Zayd had
differed with Abu Bakr on many issues. Had a difference of opinion in ijtihadi matters amounted to
divergence from truth and indulgence in error, Abu Bakr would not have appointed Zayd to judicial
office. And lastly, the proponents of this view have referred to the Hadith which reads: `My
Companions are like stars; any one of them that you follow will lead you to the right path.'
Had there been any substance to the idea that truth is unitary, the Prophet would have specified
adherence only to those of his Companions who attained to it.
Usul, IV, 241.]
[70. Shawkani, Irshad, p. 262; Amidi, Ihkam, IV, 152; Zuhayr,
These differences may be resolved, as the majority of ulema suggest, in the light of the celebrated
Hadith, which we quote again: 'When a judge renders ijtihad and gives a right judgement, he will have
two rewards, but if he errs, he will still have earned one reward.' This Hadith clearly shows that the
mujtahid is either right (musib), or in error (mukhti'), that some mujtahidun attain the truth while others
do not; but that sin attaches to neither as they are both rewarded for their efforts. Hence anyone who
maintains that there are as many truths as there are mujtahids is clearly out of line with the purport of
this Hadith. If every mujtahid were supposed to be right, then the division of mujtahids into two types
in this Hadith would have no meaning.
Classification and Restrictions
[71. Shawkani, Irshad, p. 261.]
In their drive to impose restrictions on ijtihad, the ulema of usul of the fifth/eleventh century and the
subsequent period classified ijtihad into several categories. Initially it was divided into two types:
firstly, ijtihad which aims at deducing the law from the evidence in the sources, often referred to as
'independent ijtihad'; and secondly, ijtihad which is concerned mainly with the elaboration and
implementation of the law within the confines of a particular school, known as `limited ijtihad'. During
the first two and a half centuries of Islam, there was never any attempt at denying a scholar the right to
Principles of Islamic Jurisprudence ~
Kamali 332
find his own solutions to legal problems. It was only at a later period that the question of who was
qualified to practice ijtihad was raised. From about the middle of the third/ninth century, the idea began
to gain currency that only the great scholars of the past had enjoyed the right to practice ijtihad.
Schacht, 'Idjtihad', Encyclopedia of Islam, IV, 1029.]
This was the beginning of what came to be known as the `closure of
the gate of ijtihad'. Before the fifth/eleventh century, no trace may be found of any attempt to classify
ijtihad into categories of excellence. Al-Ghazali (d. 505/1111) was the first to divide ijtihad into two
categories, as noted above.
[73. Hallaq, The Gate, p. 18.]
This division was later developed into five, and
eventually into seven classes. While representing the prevailing opinion of his time, al-Ghazali admitted
that independent mujtahids were already extinct.
[74. While quoting Ghazali's statement, Shawkani (Irshad, p. 253) considers it of
questionable validity and adds that Ghazali almost contradicted himself when he said that he did not follow Shafi'i in all his opinions.]
About two
centuries later, the number of the ranks of mujtahidun reached five, and by the tenth/sixteenth century
seven ranks were distinguished, while from the sixth/twelfth century onwards jurists are said to belong
to only the last two categories on the scale of seven.
classification of ijtihad can be found in Hallaq, The Gate, p. 84ff.]
[75. A more detailed account of the historical development concerning the
This is as follows:
1) Full Mujtahid (mujtahid fi'l-shar'). This rank is assigned to chose who fulfilled all the requirements
of ijtihad. They deduced the ahkam from the evidence in the sources, and in so doing were not
restricted by the rules of a particular madhhab. The learned among the Companions, and the leading
jurists of the succeeding generation, like Sa`id b. al-Musayyib and Ibrahim al-Nakha'i, the leading
Imams of the four schools, the leading Imams of the Shi'ah Muhammad al-Baqir and his son ja'far alSadiq,
al-Awza'i and many others were identified as independent mujtahids.
It is by the authority of
these
that consensus of opinion, analogy, juristic preference, maslahah
mursalah,
etc., were formulated
and
established as the secondary proofs of Shari'ah.
Jurisprudence, pp. 182-83.]
[76. Abu Zahrah, Usul, p. 310; Kassab, Adwa', p. 38; Abdur Rahim,
Although Abu Yusuf and al-Shaybani are usually subsumed under the second rank,
Abu Zahrah, who has written extensively on the lives and works of the leading ulema, regards them as
full mujtahids. The criteria of distinguishing the first from the second class of mujtahidun is originality
and independent thought. If this is deemed to be the case the mere fact that a mujtahid has concurred
with the opinion of another is immaterial in the determination of his rank. For many of the leading
mujtahids are known to have concurred with the views of other ulema. For example, it is known that
Abu Hanifah on many occasions agreed with and followed the views of his teacher Ibrahim al-Nakha'i,
but this was only because he was convinced of the accuracy of his reasoning, and not out of imitation
for its own sake.
[77. Abu Zahrah, Usul, p. 310; Kassab, Adwa', p. 38; Abdur Rahim, Jurisprudence, pp. 182-83.]
The question arises whether this type of ijtihad is still open or came to an end with the so-called closure
of the gate of ijtihad. With the exception of the Hanbalis who maintain that ijtihad in all of its forms
remains open, the ulema of the other three schools have on the whole acceded to the view that
independent ijtihad has discontinued.
[78. While stating the position of the three Sunni schools on the point, Abu Zahrah (Usul, p. 311) adds
that this is not definite as, for example, some Hanafis have considered Kamal al-Din ibn al-Humam as a mujtahid of the first class.]
Another related
question that has been extensively debated by the ulema is whether the idea of the total extinction of
Principles of Islamic Jurisprudence ~ Kamali 333
[72. Cf.mujtahids at any given period or generation is at all acceptable from the viewpoint of doctrine. Could
the Shari'ah entertain such a possibility and maintain its own continuation , both at the same time? The
majority of the ulema of usul, including al-Amidi, Ibn al-Hajib, Ibn al-Humam, Ibn al-Subki, and
Zakariya al-Ansari have answered this question in the affirmative, whereas the Hanbalis have held
otherwise. The Hanbalis have argued that ijtihad is an obligatory duty of the Muslim community whose
total abandonment would amount to an agreement on deviation/error, which is precluded by the Hadith
which states that 'My community shall never agree on an error.'
Irshad, p. 253; Ghazali, Mustasfa, I, 111.]
[79. Muslim, Sahih, p. 290, Hadith no. 1095; Shawkani,
To say that ijtihad is a wajib, whether `ayni or kafa'i, takes it for granted that it may never be
discontinued. This is also the implication of another Hadith which provides that 'a section of my ummah
will continue to be on the right path; they will be the dominant force and they will not be vanquished till
the Day of Resurrection.'
[80. Muslim, Sahih, p. 290, Hadith no. 1095; Shawkani, Irshad, p. 253; Ghazali, Mustasfa, I, 111.]
Since the successful pursuit of truth is not possible without knowledge, the survival of mujtahidun in
any given age (`asr) is therefore sustained by this Hadith. Furthermore, according to some ulema, the
duty to perform ijtihad is not fulfilled by means of limited ijtihad or by practicing the delivery of fatwa
alone. According to the Hanbalis, the claim that ijtihad has discontinued is to be utterly rejected. Ijtihad
is not only open, but no period may be without a mujtahid. The Shi'ah Imamiyyah have held the same
view. The Shi'ah, however, follow their recognised Imams, in whose absence they may exercise ijtihad
on condition that they adhere, both in principle and in detail, to the rulings of the Imams. In the absence
of any ruling by the Imams, the Shi'ah recognise `aql as a proof following the Qur'an, the Sunnah, and
the rulings of their Imams.
[81. Abu Zahrah, Usul, p.312; Kassab, Adwa', p.112.]
And finally, it may be said that the notion
of the discontinuation of ijtihad would appear to be in conflict with some of the important doctrines of
Shari'ah. The theory of ijma', for example, and the elaborate procedures relating to qiyas all proceed on
the assumption that they are the living proofs of the law and contemplate the existence of mujtahidun in
every age.
[82. Cf. Abdur Rahim, Jurisprudence, p. 174.]
2) Mujtahids within the School. These are jurists who expounded the law within the confines of a
particular school while adhering to the principles laid down by their Imams. Among the prominent
names that feature in this category are Zafar b. al-Hudhayl, Hasan b. Ziyad in the Hanafi school; Isma'il
b. Yahya al-Muzani, 'Uthman Taqi al-Din b. al-Salah and Jalal al-Din al-Suyuti in the Shafi'i; Ibn `Abd
al-Barr and Abu Bakr b. al-`Arabi in the Maliki, and Ibn Taymiyyah and his disciple Ibn Qayyim alJawziyyah
in the Hanbali schools. It is observed that although these ulema all followed the doctrines of
their
respective schools, nevertheless they did not consider themselves bound to follow their masters in
the
implementation of the general principles or in arguments concerning particular issues. This is borne
out
by the fact that they have held opinions that were opposed to those of their leading Imams.
Zahrah, Usul, p. 312; Kassab, Adwa', p. 39; Abdur Rahim, Jurisprudence, p. 183.]
Principles of Islamic Jurisprudence ~ Kamali 334
[83. Abu3) Mujtahids on Particular Issues. These are jurists who were competent to elucidate and apply the law
in particular cases which were not settled by the jurists of the first and second ranks. They did not
oppose the leading mujtahidun and generally followed the established principles of their schools. Their
main pre-occupation was to elaborate the law on fresh points which were not clearly determined by the
higher authorities. Scholars like Abu'l-Hasan al-Karkhi and Abu Ja'far al-Tahawi in the Hanafi school,
Abu al-Fadl al-Marwazi and Abu Ishaq al-Shirazi in the Shafi'i, Abu Bakr al-Abhari in the Maliki and
'Amr b. Husayn al-Khiraqi in the Hanbali schools have been placed it this category.
All the preceding three classes were designated as mujtahids, but the remaining four classes of ulema,
as described below have been classified as imitators.
Theories, p. 95; Mawsu'ah Jamal, I, 253, and VII, 387.]
[84. Abu Zahrah, Usul, p. 314; Kassab, Adwa', p. 40; Aghnides, Muhammedan
4) The so-called ashab al-takhrij, who did not deduce the ahkam but were well conversant in the
doctrine and were able to indicate which view was preferable in cases of ambiguity, or regarding
suitability to prevailing conditions.
[85. Abu Zahrah, Usul, p. 315; Kassab, Adwa', p. 40; Aghnides, Muhammedan Theories, p. 96.]
5) The ashab al-tarjih are those who were competent to make comparisons and distinguish the correct
(sahih) and the preferred (rajih, arjah) and the agreed upon (mufta biha) views from the weak ones.
Authors like 'Ala' al-Din al-Kasani and Burhan al-Din al-Marghinani of the Hanafi school, Muhyi alDin
al-Nawawi of the Shafi'i, Ibn Rushd al-Qurtubi of the Maliki and Muwaffaq al-Din ibn Qudamah of
the
Hanbali schools and their equals have been placed in this category.
40; Aghnides, Muhammedan Theories, p. 96.]
[86. Abu Zahrah, Usul, p. 315; Kassab, Adwa', p.
6) The so-called ashab al-tashih: those who could distinguish between the manifest (zahir al-riwayah)
and the rare and obscure (al-nawadir) views of the schools of their following. Textbook writers whose
works are in use in the various madhahib are said to fall into this category.
Adwa', p. 40; Aghnides, Muhammedan Theories, p. 96.]
[87. Abu Zahrah, Usul, p. 315; Kassab,
It will be noted here that the previous three categories are somewhat overlapping and could be unified
under one category to comprise all those who drew comparisons and evaluated the strengths and
weaknesses of the existing views.
7) And finally the muqallidun, or the `imitators', who lack the abilities of the above and comprise all
who do not fall in any of the preceding classes. It is said concerning them that, They do not distinguish
between the lean and the fat, right and left, but get together whatever they find, like the one who gathers
wood in the dark of the night.
[88. Abu Zahrah, Usul, p.316.]
Principles of Islamic Jurisprudence ~
Kamali 335
While referring to this classification, Aghnides is probably right in observing that `It implies a
gratuitous assumption that the latter mujtahids could not show greater independence of thought.'
Aghnides, Muhammedan Theories, p. 96.]
The restrictions that were imposed on ijtihad and the ensuing phenomenon
of the 'closing of its gate' are, in the most part, an historical development which could find little if any
support in the legal theory of ijtihad. Similarly, the notion that the ulema, at around the beginning of the
fourth century, reached such an immutable consensus of opinion that further ijtihad was unnecessary is
ill-conceived and untenable.
[90. Cf. Weiss, 'Interpretation', p. 208.]
The mendacity of such a claim is attested by the
rejection on the part of numerous ulema, including those of the Hanbali and the Shi'ah Imamiyyah, of
the validity of such a consensus.
Authors throughout the Muslim world have begun to criticise taqlid and advocate the continued validity
of ijtihad as a divinely prescribed legal principle. A number of most prominent ulema, including Shah
Wali Allah, Muhammad b. Isma'il al-San'ani, Muhammad bin `Ali al-Shawkani and Ibn 'Ali al-Sanusi
led the call for the revival of ijtihad.
[91. Further details on developments in the Hijaz and in the Indian subcontinent can be found in Fazlur
Rahman, Islam, p.197 ff; Enayat, Modern Islamic Political Thought, p. 63 ff.]
The nineteenth century Salafiyyah movement in
Egypt advocated the renovation of Islam in the light of modern conditions and the total rejection of
taqlid.
AI-Shawkani (d.1255/1839) vehemently denies the claim that independent mujtahidun have become
extinct, a claim which smacks of 'crass ignorance and is utterly to be rejected'. The same author goes on
to name a number of prominent ulema who have achieved the highest rank of erudition in Shari'ah.
Among the Shafi`is, for example, at least six such ulema can be named who have fulfilled, in an
uninterrupted chain of scholarship, all the requirements of ijtihad. These are 'Izz al-Din ibn 'Abd alSalem
and his disciple, Ibn Daqiq al-`Id, then the latter's disciple Muhammad ibn Sayyid al-Nas, then
his
disciple Zayn al-Din al-'Iraqi, his disciple Ibn Hajar al-`Asqalani, and his disciple, Jalal al-Din alSuyuti.
That they were all full mujtahids
is attested by the calibre of their works and the significant
contributions
they have made to the Shari'ah.
The first two of these are particularly prominent. In his
well-recognised
juristic work. At-Bahr al-Muhit, Muhammad b. `Abd Allah al-Zarkashi has
acknowledged
that they had both attained the rank of mujtahid.
'It is utter nonsense' writes al-Shawkani,
`to
say that God Almighty bestowed the capacity for knowledge and ijtihad
on the bygone generations
of
ulema but denied it to the later generations.' What the proponents of taqlid
are saying to us is that we
must
know the Qur'an and the Sunnah
through the words of other men while we still have the guidance
in
our hands. Praise be to God, this is the greatest lie (buhtanun
'azim)
and there is no reason in the
world
to vindicate it.
[92. Shawkani, Irshad, p. 254]
Iqbal Lahori considers the alleged closure of the gate of ijtihad to be 'a pure fiction' suggested partly by
the crystallization of legal thought in Islam, and partly by that intellectual laziness which, especially in
periods of spiritual decay, turns great thinkers into idols. Iqbal continues: if some of the later doctors
Principles of Islamic Jurisprudence ~ Kamali 336
[89.have upheld this fiction, 'modern Islam is not bound by this voluntary surrender of intellectual
independence'.
[93. Iqbal, Reconstruction, p. 178.]
Abu Zahrah is equally critical of the alleged closure of the door of ijtihad. How could anyone be right
in closing the door that God Almighty has opened for the exertion of the human intellect? Anyone who
has advanced this claim could surely have no convincing argument to prove it. Abu Zahrah continues:
the fact that ijtihad has not been actively pursued has had the chilling effect of moving the people
further away from the sources of the Shari'ah. The tide of taqlid has carried some so far as to say that
there is no further need to interpret the Qur'an and Hadith now that the door of ijtihad is closed. In Abu
Zahrah's phrase, 'nothing is further from the truth - and we seek refuge in God from such excesses'.
Abu Zahrah, Usul, p. 318.]
Conclusion
The conditions under which ijtihad was formerly practiced by the ulema of the early periods are no
longer what they were. For one thing, the prevalence of statutory legislation as the main instrument of
government in modern times has led to the imposition of further restrictions on ijtihad. The fact that the
law of the land in the majority of Islamic countries has been confined to the statute book, and the
parallel development whereby the role of interpreting the statute has also been assigned to the courts of
law, has had, all in all, a discouraging effect on ijtihad. The mujtahid is given no recognised status, nor
is he required to play a definite role in legislation or the administration of justice in the courts. This is
confirmed by the fact that many modern constitutions in Islamic countries are totally silent on ijtihad. It
was this total neglect of ijtihad which prompted Iqbal to propose, in his well-known work 'The
Reconstruction of Religious Thought in Islam, that the only way to utilise both ijma` and ijtihad (which
he refers to as the 'principle of movement') into the fabric of modern government is to institutionalise
ijtihad by making it an integral feature of the legislative function of the state (P. 174).
Essentially the same view has been put forward by al-Tamawi, who points out that ijtihad by
individuals in the manner that was practiced by the fuqaha' of the past is no longer suitable to modern
conditions. The revival of ijtihad in our times would necessitate efforts which the government must
undertake. Since education is the business and responsibility of modern governments, it should be
possible to provide the necessary education and training that a mujtahid would need to possess, and to
make attainment to this rank dependent on special qualifications. Al-Tamawi further recommends the
setting up of a council of qualified mujtahids to advise in the preparation and approval of statutory law
so as to ensure its harmony with Shari'ah principles.
[95. Tamawi, Al-Sulutat, p. 307.]
Principles of Islamic Jurisprudence ~ Kamali 337
[94.This is, of course, not to say that the traditional forms of learning in the Shari`ah disciplines, or of the
practice of ijtihad, are obsolete. On the contrary, the contribution that the ulema and scholars can make,
in their individual capacities, to the incessant search for better solutions and more refined alternatives
should never be underestimated. It is further hoped that, for its part, government will also play a
positive role in preserving the best heritage of the traditional modes of learning, and encourage the
ulema to enhance their contribution to law and development. The universities and legal professions in
many Islamic countries are currently committed to the training of lawyers and barristers in the modern
law stream. To initiate a comprehensive and well-defined programme of education for prospective
mujtahids, which would combine training in both the traditional and modern legal disciplines, would
not seem to be beyond the combined capabilities of universities and legal professions possessed of
long-standing experience in Islamic legal education.
Furthermore, in a Shari'ah-oriented government it would seem desirable that the range of selection to
senior advisory, educational and judicial posts would include the qualified mujtahidun. This would
hopefully provide the basis for healthy competition and incentives for high performance among the
candidates, and help to create a definite role for them in the various spheres of government.
Principles of Islamic Jurisprudence ~ Kamali 338
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