Ijtihad is the most important source of Islamic law next to the Quran and the Sunnah. The main difference between ijtihad and the revealed sources of the Shari'ah lies in the fact that ijtihad is a continuous process of development whereas divine revelation and prophetic legislation discontinued upon the demise of the Prophet. In this sense, ijtihad continues to be the main instrument of interpreting the divine message and relating it to the changing conditions of the Muslim community in its aspirations to attain justice, salvation and truth. Since ijtihad derives its validity from divine revelation, its propriety is measured by its harmony with the Quran and the Sunnah. The sources of Islamic law are therefore essentially monolithic, and the commonly accepted division of the roots of jurisprudence into the primary and secondary is somewhat formal rather than real. The essential unity of the Shari'ah lies in the degree of harmony that is achieved between revelation and reason. Ijtihad is the principal instrument of maintaining this harmony. The various sources of Islamic law that feature next to the Quran and the Sunnah are all manifestations of ijtihad, albeit with differences that are largely procedural in character. In this way, consensus of opinion, analogy, juristic preference, considerations of public interest (maslahah), etc., are all interrelated not only under the main heading of ijtihad, but via it to the Quran and the Sunnah.
The subject of ijtihad must be a question of Shari'ah; more specifically, ijtihad is concerned with the practical rules of Shari'ah which usually regulate the conduct of those to whom they apply (i.e. the mukallaf). This would preclude from the scope of ijtihad purely intellectual (`aqli) and customary (urfi) issues, or matters that are perceptible to the senses (hissi) and do not involve the inference of a hukm shar'i from the evidence present in the sources. Thus ijtihad may not be exercised in regard to such issues as the created ness of the universe, the existence of a Creator, the sending of prophets, and so forth, because there is only one correct view in regard to these matters, and any one who differs from it is wrong. Similarly, one may not exercise ijtihad on matters such as the obligatory status of the pillars of the faith, or the prohibition of murder, theft, and adultery. For these are evident truths of the Shari'ah which are determined in the explicit statements of the text.
The detailed evidences found in the Quran and the Sunnah are divided into four types, as follows.
1) Evidence which is decisive both in respect of authenticity and meaning.
2) Evidence which is authentic but speculative in meaning.
3) That which is of doubtful authenticity, but definite in meaning.
4) Evidence which is speculative in respect both of a authenticity and meaning.
An example of ijtihad concerning evidence which is definite of proof but speculative of meaning is the Quranic 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 Quran 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' and Malik have adopted the latter meaning, and their respective ijtihad leads them to correspondingly different results.
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 Quran, the Sunnah and a definite ijma'.
Elsewhere we read in the Quran (Muhammad, 47:24): 'Will they not meditate on the Quran, or do they have locks on their heart?' The same conclusion is sustained in another Quranic 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 Quran lend support to the conclusion that it is the duty of the learned to study and investigate the Quran and the teachings of the Prophet. The correct meaning of the manifest directives (Zawahir) of the Quran 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
The Proof of Ijtihad
Ijtihad is validated by the Quran, the Sunnah and the dictates of reason (`aql). Of the first two, the Sunnah is more specific in validating ijtihad. 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. 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.' 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. In another Hadith, the Prophet is reported to have said: 'Strive and endeavor, (ijtihad), for everyone is ordained to accomplish that which he is created for.
The numerous Quranic ayat that relate to ijtihad are all in the nature of probabilities (zawahir). All the Quranic ayat which the ulema have quoted in support of qiyas 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 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 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 Quran, the Sunnah and the objectives (maqasid) of the Lawgiver on whose basis disputed matters could be adjudicated and resolved.
Conditions 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 religion.
The requirements are as follow:-
Knowledge of Arabic to the extent that enables the scholar to enjoy a correct understanding of the
Quran 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.
Al-Shatibi, 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 Quran 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.
The mujtahid must also be knowledgeable in the Quran and the Sunnah, the Makki and the Madinese contents of the Quran, 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 Quran and its passages relating to the hereafter. 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 Quran. 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. 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.
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 recognized 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.
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 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.
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 self seeking interests. For ijtihad is a sacred trust, and anyone who is tainted with heresy and self indulgence is unworthy of it.
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.
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 vice versa. To say this would be tantamount to a contradiction in terms, as ijtihad and taqlid cannot be combined in one and the same person.
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 Shariah 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.
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.
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 specialization. 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.
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. Al- Ghazali 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.
One might add here that in modern times, in view of the sheer bulk of information and the more rapid pace of its growth, specialization 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 Quran 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 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 Quran, 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 recognized 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.
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).
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 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.
The Ijtihad of the Prophet and his Companions
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.
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
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 Quranic duty upon every Muslim (al- Nisa', 4:14 and 58).
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. Al- Shawkani, 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.
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).'
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.
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 rumors (tawhid), His attributes, the truth of the Prophet hood 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.
With regard to juridical or Shar’I matters, the majority of Ulema recognize two types:
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.
This view has quoted in support the Quranic text where in reference to the two judgments 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 judgments 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 judgments but that then also criticized one another. If all of them were to be right in their ijtihad, there would be no point in their criticizing 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:
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.
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
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 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.
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.
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 al- Sadiq, 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. 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 are 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.
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 recognises `aql as a proof following the Qur'an, the Sunnah, and the rulings of their Imams.
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 al- Jawziyyah 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.
3) 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.
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.
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 al- Din 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.
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.
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 gather wood in the dark of the night.
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 utilize both ijma` and ijtihad (which he refers to as the 'principle of movement') into the fabric of modern government is to institutionalize ijtihad by making it an integral feature of the legislative function of the state
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.
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