Ijtihad: Its Meaning, Sources, Beginnings and the Practice of Ra'y

Critique of the Tradition Narrated About Mu'adh

The tradition about Mu'adh is not acceptable for several reasons:

  1. From the point of view of sanad (chain of transmission), as it is narrated on the authority of al-Harith ibn `Amr alone. There is no other line of transmission besides this. Moreover, al-Harith ibn `Amr is an unknown narrator (majhul al-hal) whose character is not known. This objection was also raised by Abu Muhammad `Ali ibn Hazm al-'Andalusi al-Zahiri (d.456/1064) in his al-'Ilham li usul al-'ahkam (vol.5, pp.373-375). Al-Bukhari has also, in al-Ta'rikh al-'awsat, stated that there is no mention of the name of al-Harith in any text of tradition or book of rijal except this sole Riwayah. Moreover, his character is also obscure. Therefore, it is not proper to consider the Riwayahreported from him to be reliable.

  2. From the point of view of meaning (dalalah), also, the recourse to this tradition for arguing in favour of ray is unjustified. Because, ijtihad in the sense of legislation of laws and determination of ahkam for the new and emergent issues by means of ray and personal judgement was not in vogue during the lifetime of the Prophet (S), as the Prophet (S) him­self was alive and there was no need for it. Why would an individual like Mu'adh in spite of having access to the Prophet (S) practise ra’y or exercise his personal opinion, when the ahkam and the precepts regarding the religious duties, in detail and in every aspect, could have been understood very easily and simply by referring to the Prophet (S)? The Prophet's contemporaries could also refer to individuals trained under the guidance of the Prophet (S) who had acquired firsthand learning of the Divine teachings and the wahy, regarding any problem of scientific, religious, ethical; social, economic, penal, commercial, agricultural or some other nature, and get a satisfactory and complete answer to it. In such conditions, there were no grounds for practising ra'y and personal opinion.

Moreover, during the course of a long journey when it was not possible to contact the Prophet (S) immediately or anyone trained in Islamic teachings, there was still the possibility for Mu'adh to find out the Divine commandment in a certain case by sending a messenger. Hence distance could not be a justification for exercising ray and personal judgement.

The term ijtihad, however, was in vogue during the time of the Prophet (S) and even during the time of the Sahabah and Tabi`un-in its literal sense, i.e. striving and making effort in doing something. We find many instances of its use in this sense (some of which were men­tioned in our article entitled: "A Study of the Sources of Ijtihad").

The need for ijtihadin the sense of exercising ray and personal opinion given to it by the Ahl al-Sunnah was felt after the Prophet's demise. This matter will be elaborated under the heading "The Emer­gence of ijtihad bi al-ray" later in this article.

  1. There appears to be no connection between the lexical meaning of ijtihad and the sense of the practice of ray and reliance upon personal opinion. If the lexical meaning of the term ijtihadas defined by lexi­cographers is taken into account, the application of the word to the process of extracting a hukm by means of ray and personal opinion gives it another sense, for there is no similarity between the two. The lexicographers define ijtihad as an activity accompanied by endeavour and hard effort. Thus, if any individual formulates his personal judge­ment and presents it to society as a Divine law merely on account of not finding any dictum in the Quran and the Sunnah, this exercise of his would not be regarded as an ijtihad.

  2. The deduction of a law in a legal issue through exercise of ray and subjective judgement, if it is not supported by the principles of the Shari'ah and its general laws, cannot be acknowledged as a hukm of the Shari'ah and a Divine law. Because a hukm of the Shari'ah is a Divine commandment revealed to the Holy Prophet (S) through the agency of Jibrail (A), not a rule that is the product of ray and subjective opinion of a mujtahid. For the personal judgement of an individual cannot be called a Divine injunction and a huhm of the Shari'ah.

  3. Approving of the tradition concerning Mu'adh and accepting ijtihad in the sense given to it by the tradition results in such disastrous consequences as no lawgiver would allow.

The repercussions and evil effects of this tradition are as follows:

a) If a hukm formulated by a mujtahid by exercising ray and subjective opinion is regarded a hukm of the Shari'ah and a Divine injunction, it means that all the individuals who exercise ijtihad by ray, each of them occupies the high station of a Divine legislator and lawgiver, whereas it is neither possible nor proper to accept this. Because, the source of legislation and ahkam, in the light of definite shar'i dicta, is God alone, and no other being. No hukm or law except that which is legislated by Him can be given the status of a shar'i hukm. Even the Prophet (S) can­not be considered as a source of legislation of the ahkamof the Shari'ah. The belief cherished by the majority of scholars of the Sunni communi­ty that the Prophet (S) himself sometimes exercised ijtihadand himself legislated laws according to his own ray and subjective opinion in some issues and problems, and the traditions narrated in this regard, have no validity whatsoever (an elaborate refutation of this view will be given in the article "The Prophet (S) and Ijtihad").

Accordingly, when the Prophet (S) cannot be considered as the source of the tashri` of ahkam, is it possible that subjective views and opinions of human individuals with no links with wahy, and whose character, behaviour and speech are not considered a norm and model for others, be considered laws of God and they themselves as legislators of the ahkam of the Shari'ah?

No doubt, it is possible that occasionally ijtihadmight have figuratively been referred to as tashri` and legislation. For instance, the renowned scholar Abu Ishaq Ibrahim al-Shatibi al-Gharnati al-Maliki (d.790/1388), the author of al-Muwafiqat, has also named the task of a mujtahid as tashri` and legislation. No doubt, his usage carries only a figurative sense; for naming the activity of a mujtahid as legislation was for the reason that ijtihad(i.e. application of the usul of the ahkam and the general principles for deriving other ahkam regarding emergent issues and new problems) is an effort to discover a shar`i hukm, there­by discovering the intent of the Lawgiver and obtaining the hukm of God. Then, in reality, it amounts to calling `legislator', in a figurative sense, one who discovers a law. Since in Islamic fiqh there is in fact no provision for anybody except God to lay down laws. Therefore, the Shari'ah is made up of the injunctions and commandments that were revealed to the Prophet (S) by God Almighty through the agency of Jibrail. There are verses in the Quran which confirm this fact; they will be discussed in the article entitled "The Prophet (S) and Ijtihad".

b) Reliance on ijtihad by ray and subjective judgement is a kind of admission of the shortcoming of the Shari'ah, and is an implicit decla­ration that the Islamic Shari'ah is incapable of answering emergent issues and new problems, whereas anyone acquainted with the spirit of Islam and its comprehensiveness cannot concede this. Because, the pro­cess of legislation concerning all the necessary spheres of human life, either in particular detail or in the form of general laws, was completed during the lifetime of the Prophet (S). The following verses of the Quran clearly declare this fact:

...And We revealed the Book unto thee as an exposition of all things.(16:89) We have neglected nothing in the Book (of Our decrees). (6:38) And in whatsoever ye differ, the verdict therein belongeth to God.(42:10) This day We have perfected your religion for you and completed Our favour unto you and have chosen for you as religion al-islam...(5:3)

With the revelation of the last verse, the Din of God attained its perfect form in all aspects: political, ritual, social, economic and ethical. Following that, the process of wahyconcluded. As such, it does not seem possible that the Prophet (S) of God should have said to Mu'adh: "By what rule will you act, if you find no direction in the Book of God and the Sunnah?" The verse affirming the perfecting of the Din was revealed approximately three months prior to the demise of the Prophet (S), during the journey of the Last Pilgrimage. After that no other verses concerning ahkam were revealed to him.

During the span of the ten years that the Prophet (S) resided in Madinah, all the ahkamof God were revealed by means of approxi­mately 500 verses-the ayat al-'ahkam (the verses containing the rules and laws of the Shari'ah) which make approximately one-third of the Quran (as to their volume) and were already communicated and ex­pounded by the Prophet (S). Not a single issue, small or big, was left without a hukm in any of the diverse spheres of human life, not even the hukm regarding the diyah of a scratch on the skin.

During his journey of the Last Pilgrimage, the Prophet (S) had declared:

O people, whatsoever takes you nearer to Paradise and away from Hellfire, I enjoined upon you. And whatever brings you nearer to Hellfire and removes you away from Paradise, I forbade you to do.

The following tradition has been reported in Usul al-Kafi (`Ilmiy­yah Islamiyyah, Tehran, vol:1, p:80) from Sama'ah:

(Al-Kulayni says): From a number of our companions, from Ahmad ibn Muhammad ibn Khalid, from Isma'il ibn Mihran, from Sayf ibn `Amirah, from Abu al-Maghra, from Sama'ah from (al-Imam al-Kazim), Abu al-Hasan Musa (A); (Sama'ah) said: "I said to him: `Is everything in the Book of God and the Sunnah of His Apostle (S), or you have something to say (in addi­tion)?' He said: `(No); rather, everything is in the Book of God and the Sunnah of His Apostle (S)'." Also in Usul al-Kafi (op. cit. vol:l,p:77), the following tradition is reported on the authority of Sulayman ibn Harun from al-'Imam al ­Sadiq (A). There, the Imam (A) states:

God has not created any halal (that which is permissible) or any haram (that which is forbidden) except that He has determined a boundary for it like the limits and boundaries of a house. That which belongs to the limits of the road is reckoned as the road, and whatever that comes within the boundaries of the house is considered as a part of the house. [This is true] even of a scratch on the skin, a full lash or half a lash. The following tradition is reported in Basa'ir al-darajat (Qumm, 1404 H., p. 143) on the authority of Muhammad ibn Muslim:

(Muhammad ibn al-Hasan ibn Farrukh al-Saffar al-Qummi says): Narrated to us Ahmad ibn Muhammad (al-Barqi), from al-Husayn ibn Said (al-'Ahwazi), from Fadalah ibn Ayyub, from al-Qasim, from Burayd ibn Mu'awiyah al­`Ijli, from Muhammad ibn Muslim, who said: "Abu Ja'far (the Fifth Imam) (A) said:`We have the Sahifah written by `Ali (A), whose length is seventy cubits. We study its contents, not going beyond them'. I asked him about the inheritance of knowledge that had been transferred (to the Imams), whether it consisted of generalities or of detailed exposition of such things as the peo­ple talk about, such as divorce and religious duties. He said: `Ali (A) wrote down all knowledge, including all judicial laws (al-qada') and duties (al­-fara'id). When our sovereignty is established, we will act according to it in regard to every matter.' "

In Furu' al-Kafi (Dar al-Kutub al-'Islamiyyah, Tehran, vo1:7, Kitab al-hudud, Bab 1, hadith 12) a Riwayah is reported on the authority of Dawud ibn Farqad from al-'Imam al-Sadiq (A). In it, the Prophet (S) is reported as having said to Sa'd ibn `Ubadah:

Verily, God Almighty has determined a hadd (limit, punishment) for every thing, and for whomsoever that crosses that hadd He has prescribed a certain hadd.

In another tradition of the same volume (Bab 1, hadith 6), it is reported on the authority of a reliable narrator, Sama'ah, that he heard this statement from al-'Imam al-Sadiq (A):

Indeed there is a hadd for every thing, and whoever transgresses it will be subjected to a certain hadd. And the Quran declares:

And whosoever transgresses the bounds of God--those are the evildoers. (2:229) Therefore, Islamic law prescribes punishment for those who violate the limits prescribed by God. Accordingly, all the ahkamhave been described in the Book and the Sunnah of the Prophet (S); the period of legislation closed with the demise of the Prophet of God and nothing was omitted. Thus, we need not rely upon practices like ijtihad by ray and other conjectural instru­ments (such as qiyas, istihsan, masalih mursalah, madhhab Sahabi, etc.) for deriving the ahkam for emergent issues (we have discussed this matter in elaborate detail in another article).

It is true that the ahkam have not been laid down in a uniform way in the Book and the Sunnah of the Prophet (S). Some of them have been set forth as special cases, while some others have been stated in a general way, in such a manner that by applying the general laws to particular cases all the ahkamof the Shari'ah regarding emergent issues and events can be derived. Therefore, those who imagine that there are no ahkam in the Shari'ah for modern issues and contemporary prob­lems indeed commit a great mistake; such a notion is contrary to the express statements of the Quran and conclusive dicta. The conclusive­ness of these proofs is so certain that if a tradition attributed to the Prophet (S) counters their import, it should be discarded in accordance with the criteria and standards of the science of hadith and dirayah. This, because a statement whose origin from the Prophet (S) is not certain can never contest express texts of the Book, or reliable tradi­tions of the Ma'qumun (A) whose authenticity of origin as well as im­port are definite. This, undoubtedly, holds true in the case of the pres­ent tradition which is of doubtful authenticity and is opposed to the express text of the Quran.

c) Above all, this tradition implies a confession on the part of the Prophet (S) of the insufficiency of law regarding the religious and non­religious needs of mankind. How can we accept such a thing when the verse stating the perfection of the religion was revealed to him?

  1. This tradition also implies that Mu'adh possessed the knowledge of all the ahkampresent in the Book of God and the Sunnah of the Prophet (S), whereas neither the Shi'ah nor the Sunnis believe this. Nobody among the Prophet's Companions was known to possess such a merit except Imam `Ali (A); he was the only person who had perfect knowledge of the Divine Law. It was for this reason that the Holy Prophet (S) enjoined upon the Ummah to follow him and to take their knowledge from the Ahl al-Bayt (A). The Prophet instructed them to consider the traditions of the Ahl al-Bayt (A) as their guide and to follow them as a model of practice and behaviour in all the modes of life. No doubt, Amir al-Mu'minin's source of knowledge and information was no other than the wahyrevealed to the Prophet (S) and taught to `Ali (A) by himself. The leading and profound thinkers among Sunni scholars acknowledge this distinction of Imam `Ali (A).

  2. This tradition implies that at the time when Mu'adh was being sent to Yemen, the process of tashri` was already complete and all the Divine ahkamhad been set forth. However, the verse pronouncing the perfection of the Din counters this presumption and indicates that the perfection of the Din was declared three months prior to the demise of the Prophet (S), on the occasion of Hajjat al-Wada`.

  3. If it is said that ijtihad (in the sense of exercising ra'y and personal judgement) was permissible for Mu'adh alone and others should not follow him, it is evident that nobody has held such an opinion.

And if it is presumed that this style of ijtihadwas permissible for everyone, it means that every mujtahid has a right to legislate laws by means of ray and personal judgement whenever he fails to find a hukm in the text of the Book and the Sunnah. Moreover, laws thus legislated should be accepted and acknowledged as the real (waqi't) Divine laws in accordance with the doctrine of taswib. This means that whenever mujtahidun express a number of contradictory and conflicting opinions in a case, all of them should be recognized and given the status of the real hukm. Evidently, no one would be ready to accept this, as it will necessitate that the real hukm be identified simultaneously with a number of contradictory views and opinions, reducing Islamic law to a mass of contradictions.

Here, it will be appropriate to cite a tradition reported from Amir al-Mu'minin in Bihar al-'Anwar (vo1.2, chapter 34, p.284; also see Nahj al-balaghah, Khutbah No.18):

When a case relating to one of the ahkam is put before any one of them he passes judgement on it according to his ray. Afterwards, when the same problem is placed before another of them, he passes an opposite verdict. Then these judges go to the chief who had appointed them and he confirms all the verdicts, although their God is One, their prophet is one and the same and their scripture is one and the same. Was it God-subhanahu-who enjoined them to differ (while laying down the ahkam), and they obeyed Him`? Or He forbade them from it and they disobeyed Him? Or, did God Almighty send His Din in a defective and imperfect form and asked for their help and assist­ance in order to make it perfect? Or, were they His partners and assistants (in performing legislation) so that He has to concede to whatever judgement they pronounce? Or is it that God Almighty made His Din perfect, but the Prophet (S) fell short of communicating it (to the people)? The fact is that God states in the Quran (We have not neglected anything in the Book, 6:38) (and that in it is all things, 16:89) and that one part of the Quran verifies another part and that there is no contradiction in it. And the Almighty has said: (if it had been from other than God they would have found therein much incongruity, 4:82).

Abu Muhammad `Ali ibn Hazm al-'Andalusi al-Zahiri (d.456/1064) in his book al- Ihkam li usul al-'ahkam (vol:5, p.775) writes: "Some ignorant people believe that Mu'adh had the right to make a thing halal or haramby exercising his ray or to make something wajib or other­wise according to his own judgement and taste. Such a notion is pre­posterous, and no Muslim would believe it."

  1. If it is said that by ijtihad bi al-ray Mu'adh meant to say that when­ever he could not find a hukm in the express texts of the Book and the Sunnah of the Prophet (S), he would use his effort in deriving it from the sources of the Shari `ah and its general principles, if we interpret the tradition in this way, the term ijtihad conveys the same lexical meaning described earlier (in another article), not a new sense of legislation and tashri`. When interpreted in this sense, there will be no problem with it, and it would be acceptable to the Shi`ah.

But the problem is that the fuqaha' of the Ahl al-Sunnah have not interpreted this tradition in this manner. The character of their argu­ments shows that they conceive the term ijtihad in the sense of relying upon ray and subjective opinion; not in the sense of deducing the laws from the principles and basic sources of the Shari'ah.

  1. Apart from all the objections raised above, this significant problem still remains that the tradition is about judgement and adjudication; it has nothing to do with the problem at hand, since what we are con­cerned with is the matter whether a mujtahid has a right to legislate laws and ahkam concerning emergent issues by exercising his ray and employing any of the instruments for deriving legal conjectures. It is evident that there is a clear difference between these two things.