Ijmaa` And Qiyas As Outcome Of Ijtihad

By Atta ur Rehman Khilji (Deputy Secretary, Balochistan)

Literally the Arabic word Ijtihad means to strive or struggle and in legal terminology it is a juristic exercise in which a Muslim jurist utilises his intellectual and legal expertise for finding solution to those matters that are not directly covered by the two primary sources of Shariah, namely the Quran and Sunnah. After carrying out Ijtihad when the jurists agree upon some way-out it becomes Ijmaa` or consensus of opinion. So basically Ijtihad is an exercise the net result of which may be either in the form of Ijmaa`/ consensus of opinion or Qiyas/analogical deduction.

Ijmaa` is the third source of Islamic Shariah that literally means to agree upon something or to gather. If at any time there arises some problem or legal issue which is having no direct solution/answer in the Holy Quran and Sunnah of Holy Prophet (PBUH), then it becomes the responsibility of Muslim jurists to find a solution to that issue that must be in consonance with the teachings of the Holy Quran and Sunnah and when they reach and agree upon some solution, it becomes binding upon all the Muslims and in terms of Islamic Jurisprudence or fiqh, it is known as Ijmaa` or consensus of opinion. The most important essence of a valid Ijmaa` or consensus of opinion is that it must not be in derogation of a Quranic verse or Sunnah/tradition of Holy Prophet (PBUH). Ijmaa` is closely associated with Ijtihad which is the name of a process. Literally, the Arabic word Ijtihad means to strive or struggle and in legal terminology it is a juristic exercise in which a Muslim jurist utilises his intellectual and legal expertise for finding solution to those matters that are not directly covered by the two primary sources of Shariah, namely the Quran and Sunnah. After carrying out Ijtihad when the jurists agree upon some way-out it becomes Ijmaa` or consensus of opinion. So basically Ijtihad is an exercise the net result of which may be either in the form of Ijmaa`/ consensus of opinion or Qiyaas/analogical deduction.

Each and every Muslim is not authorised to perform Ijtihad and to reach upon Ijmaa` and Qiyas in religious issues. It is the considered view of Muslim Scholars that only qualified Muslim jurists or mujtahids are competent to do Ijtihad and reach upon Ijmaa` and Qiyas. For becoming a qualified jurist or mujtahids it is mandatory that one is well conversant with Arabic language and Islamic legal science, i.e. fiqh. In addition to it he/she must be having command upon the translation and exegesis of the Holy Quran and the ability to distinguish between authentic and non-authentic traditions. He must be fully aware of the methods of Qiyas or analogical deduction. He/she must be a person who is famous for piety and not the one who is notorious for his/her immoral activities. On account of their authority, the mujtahids or jurists have been divided into three categories, namely Mujtahideen fil-Shara, Mujtahideen fil Madhab and Mujtahideen fil-Massail.

Mujtahideen fil-Shara are the founders of four Sunni schools of jurisprudence namely Imam Abu Hanifa, Imam Malik, Imam Shafei` and Imam Ahmed Ibn Hanbal. They have been given absolute authority to expound law on account of their enormous services in Islamic fiqh.

Mujtahideen fil Madhab are the students of the founders of four sunni Schools. They explained/ enunciated the law according to their respective school. Abu Yousuf and Muhammad of Hanafi school, Suyuti of Shafei` school and Abu Bakr ibn-ul-Arabi of the Maliki school are very prominent in this category.

Mujtahideen fil-Massail are those jurists who expound the law on those fresh issue that have not been settled by the jurists of first two categories. The modern Muslim jurists fall in this category.

On account of Ijtihad Islamic laws retains the capacity to develop and are free from stagnation. Ijtihad enables the Muslims to solve any complicated legal issue in the light of teachings of Islam that may arise at any moment of time. No doubt, there is great scope of Ijtihad in this modern age but two points are worth considering in this regard. Firstly, those issues which are clear in the Holy Quran and Sunnah or about which there is an absolute Ijmaa` do not come under the purview of Ijtihad. For example, Ijtihad cannot be made for exempting Muslims from Salat, Zakat, Fasting and Hajj or for permitting and legalising interest, drinking, obscenity lewdness, corruption etc. Secondly, people belonging to other professions who do not fulfil the requirements needed for becoming jurists have no authority to do Ijtihad. Unfortunately, in our country each and every one feels liberty in expounding Islamic laws according to his/her whims and wishes in print and electronic media which is an un-Islamic, unhealthy and unwarranted practice. There is a common Arabic maxim “Each field is having its own people.” Therefore, Ijtihad is the field of qualified Muslim jurists and legal experts.

The basic principles of Ijtihad and Ijmaa` are based on explicit Quranic verses and traditions of Holy Prophet (PBUH). When Hazrat Ma’az bin Jabbal was appointed as governor of Yemen, the Holy Prophet (PBUH) said to him “How are you going to decide cases?” He replied “He would decide cases according to the Holy Quran.” The Holy Prophet (PBUH) then asked “If there is no such thing in the Holy Quran then?” He stated that then he would resort to the way of Holy Prophet (PBUH). The Holy Prophet (PBUH) again asked “If there is no such thing in Sunnah too then?” He stated that he would exercise his judgment. The Holy Prophet (PBUH) was very pleased with his answer, which clearly exhibits the authority and importance of Ijtihad.

The Allah says in verse No. 59 of Surah Nisa/Chapter the Women, “Believers! Obey Allay and obey the Prophet and those invested with authority among you; and then if you were to dispute among yourselves about anything refer it to Allah and the messenger if you indeed believe in Allah and the Last Day; that is better and more commendable in the end.” Similarly, in verse No.43 of Surah Nahl/Chapter the Bee, the Allah Almighty directs the Muslims, “(O Muham mad!), whenever We raised any Messengers before you, they were no other than human beings; to them We sent revelation. So ask those who possess knowledge if you do not know.” About the authority of Ijmaa` the Holy Prophet (PBUH) said, “My people will never agree in an error.” Similarly, he stated, “Whatever the Muslims hold to be good is good before Allah.”

After the demise of the Holy Prophet (PBUH) the election of the first Caliph of Muslims Hazrat Abu Bakr (may Allah be pleased with him) was on the basis of Ijmaa`, when the absolute majority of companions of the Holy Prophet (PBUH) chose him as the first rightly-guided Caliph of Muslims. The Ijmaa` of one age can be repealed or modified by an Ijmaa` of any subsequent age with one exception that is the Ijmaa` of the companions of the Holy Prophet (PBUH) cannot be altered by the Ijmaa` of other ages. According to majority of Muslim scholars, at least three jurists are required for a valid Ijmaa`.

In religious issues, the opinion of National Assembly of Pakistan cannot be declared as Ijmaa` as its members do not fulfill the requirements prescribed for becoming jurists. However, there is another constitutional body, namely Council of Islamic Ideology constituted under Article 228 of Constitution of 1973 of Islamic Republic of Pakistan, whose considered opinion can be termed as Ijmaa` subject to the condition that its members are selected on merit and not on political grounds.

According to the Constitution of 1973, Council of Islamic Ideology is comprised of qualified religious scholars belonging to different schools of thought and legal experts, and its function is to advise the government on religious issues. The government can refer any matter to Council of Islamic Ideology for advice but constitutionally the government is not bound to implement its recommendations, that is why a number of recommendations of Council of Islamic Ideology failed to receive attention of different governments in our country.

Qiyas
Qiyas or analogical deduction is the fourth source of Shariah that literally means to measure accord or equality. Those issues which have not been dealt with directly by the Holy Quran and Sunnah, nor determined by Ijmaa` or consensus of opinion may be resolved through Qiyas or analogical deduction.

The Oxford dictionary of Islam says, “According to the method of Qiyas the ruling of the Quran or Sunnah may be extended to a new problem provided that the precedent and the new problem share the same operative or effective cause (illat).

The illat is the specific set of circumstances that trigger a certain law into action.”

There is technical difference between Qiyas and Interpretation.

In interpretation, the law is applied to those cases that are governed by the language of text whereas in Qiyas, law is applied to those cases which though not covered by the language of the text are governed by the reason of the text. For example, the operative cause for prohibition against alcohol is that it intoxicates the mind. Therefore any thing that intoxicates the mind such as narcotics is also prohibited by the use of analogy.

Similarly, Abu Huraira (may Allah be pleased with him) reported that the talaq/divorce pronounced by an idiot and a mentally deranged person is not valid. Therefore, on account of analogy, it was declared that a talaq/divorce pronounced by a minor is also defective having no legal effect.

The Holy Prophet (PBUH) also used Qiyas during his life time on several occasions which verifies its authority. For example, once a companion told the Holy Prophet (PBUH) that his father was having all means needed for performing Hajj but failed to perform Hajj during his life. He inquired from the Holy Prophet (PBUH) if he could perform Hajj on behalf of his deceased father. The Holy Prophet (PBUH) resorted to Qiyas and said, “What would have you done if your father had died leaving a debt?” So it was a consent through Qiyas or analogical deduction.

Analogical deduction was also used during the reign of four orthodox Caliphs. For example the 2nd Caliph of Muslims Hazrat Umar-e-Farooq (May Allah be pleased with him) through Qiyaas suspended the punishment of amputation of hand for theft during a serious famine. For reaching upon an analogical induction, it is mandatory that the jurists apply his/her intellectual capacity by pondering over the nitty-gritty of the issue that is having no direct solution in Holy Quran, Hadith and Ijmaa. So like Ijmaa, Qiyaas is also made through Ijtihaad by qualified Muslim jurists only and not by all and sundry. When an Analogical deduction is recognized by a large number of qualified jurists, it becomes Ijmaa or consensus of opinion. The modern Muslim jurists are frequently resorting to Ijtihaad for finding solution of issues of modern age and this practice would continue till doomsday.

Source: Ijma and Qiyas

I haven't found ijtehad explained anywhere with such a clarity. thanks a lot.