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

Critique of the Second Riwayah

The second riwayah is also infirm with respect to its chain of transmission. As Abu Muhammad `Ali ibn Hazm al-Zahiri points out in his book al-'Ihkam li usul al- ahkam (vol. 5, p.1003), there are two chains of transmission through which this Riwayahhas been reported; none of them is trustworthy. In one sanad, one of the narrators is `Abd al-Malik ibn al-Walid ibn Ma'dan. He has not been considered as trust­worthy by the experts of the science of rijal, and no hadith narrated by him has been acted upon. And as for the second sanad, it contains names of persons of unknown identity, thus technically making the riwayahone whose chain of transmission is broken (maqtu` al-sanad).

Critique of the Third Riwayah

This riwayahhas no relation with the issue under discussion, as it is about judgement and adjudication, and not concerned with the privi­lege and right of a jurisprudent to legislate ahkam of the Shari'ah by means of ray and by employing conjectural instruments.

Critique of the Fourth Riwayah

Firstly the fourth Riwayah is mursal (one whose first narrator (S) is not mentioned in the chain of transmission), which deprives it of the requirements for being legally relevant. Secondly, apart from its being mursal, such a riwayahhas no strength to resist the force of the arguments based on definite proofs (adillah) of the Book and the Sunnah, which do not permit tashri` and legislation by means of ray and through instruments for deriving conjec­tures.

Thus, we reach the conclusion that these ahadith are not adequate for vindicating the practice of ijtihad by means of ray and subjective opinion; they lack the requirements of validity and the probability of their being fabricated is strong.

The Emergence of Ijtihad bi al-Ray

The beginnings of the emergence of ijtihad and its general outlines can be traced back to the migration of the Prophet (S) from Makkah to Madinah. But the emergence of ijtihad in the sense of exercising ray was after the conclusion of the era of tashri` with the demise of the Prophet (S). For, as long as the Prophet (S) was alive, with the continuity of the revelation of the Quran and wahy, there was no ground for exercising ra'y; as mentioned earlier, the ahkam could be understood and known easily by referring to the Prophet (S). But after his demise and the termi­nation of wahy, during the reign of the Caliphs, and subsequently during the Umayyad rule and in the early years of the `Abbasids, the fuqaha' were confronted with new issues and subjects for which they had to find answers. If they could not find the solution by referring to the Book and the Sunnah of the Prophet (S), they had to determine a hukm by consulting other fuqaha'. As a result of this they either reached a consensus or each one of them arrived at a separate hukm by exercis­ing ijtihadand his own individual judgement.

The View of al-Dawalibi

Al-Dawalibi, in his book al-Madkhal ila `ilm usul al-fiqh, states in this connection: "Whenever the Companions of the Prophet (S) faced an impediment in such situations or issues for which they could not find an express decree in the Book and the Sunnah, they resorted to ijtihad(identifying in this manner the ahkamfor new situations). They named this practice ray. Abu Bakr and `Umar were among those who used this method". Later on al-Dawalibi cites a Riwayahin which `Umar ibn al-Khattab is reported as having written to Shurayh and Abu Musa al-'Ash'ari: "Companions of the Prophet (S) did not rely in their ijtihad upon fixed laws and established criteria; rather, they relied upon something which they considered as the spirit of the Law".

This statement has also been quoted in different words from `Umar ibn al-Khattab, such as: "Identify similar and analogous cases and use qiyas (analogical method) in matters." (We will elaborate on this topic in the discussion about the historical development of qiyas, which is the fifth source of Sunni ijtihad.)

In any case, it was after the demise of the Prophet (S) that some of the Sahabah raised the issue of ray and opened its doors. In this way, they deduced a certain hukm for every issue and problem for which there was no specific nass. The Tabi'un and a majority of Sunni jurisprudents followed their example. Besides the practice of ray, other instruments for deriving legal presumption (such as qiyas, istihsan, masalih mursalah, etc.) also entered the realm of ijtihadand the Sunni fuqaha' relied upon those sources, although they were not uniform in their reliance on such instruments (this will be elaborated further while discussing the sources of ijtihad).

It was the result of the difference of opinions between the fuqaha' of the Ahl al-Sunnah regarding the trustworthiness of these sources that diverse legal schools came into being. Among perhaps more than twenty of such schools that emerged, four of them became more popular: the Hanafi school, under the leadership of Abu Hanifah; the Maliki school, under the leadership of Malik ibn Anas al-'Asbahi; the Shafi'i school, under the leadership of Muhammad ibn Idris al-Shafi'i; and the Hanbali school, under the leadership of Ahmad ibn Hanbal al-Shaybani. These schools emerged during the reign of the `Abbasids (132-656/750­1258) (an elaborate discussion about these schools will be done while discussing the various periods in the history of ijtihad). The practice of ra'y was called "ta'wil" during the era of the Sahabah and not "ijtihad bi al-ray". This was true of the early days of the era of the Tabi'un as well.

The term ta'wil was used by Khalid ibn al-Walid, who killed Malik ibn Nuwayrah, and also by Abu Bakr. In order to examine this usage, we will have to go into the details of the episode involving Khalid. [^2]

After the Prophet's demise, a group of people gathered in Saqifat Bani Sa'idah and chose Abu Bakr for the caliphate. Khalid ibn al-Walid was one who had played an active role in the affair. After the event, he was dispatched with a force to collect zakat from the dissidents. During the course of his assignment, he went to a tribe inhabiting the region of Batch and demanded zakat. They declined to pay, stating that they did not acknowledge anybody except `Ali ibn Abi Talib as the Prophet's successor, as the Prophet (S) had nominated `Ali (A) to succeed him at Ghadir Khum while returning from the Last Pilgrimage. They stated that on this ground they would not pay zakat to anybody except some­one appointed by `Ali (A). Khalid ibn al-Walid responded to the position taken by the people of that tribe by committing a horrible crime. He ordered Dirar ibn Azwar al-'Asadi to behead Malik ibn Nuwayrah, the chief of the tribe. Khalid did not stop at this; he slept with the wife of Malik the same night. To celebrate the occasion, he slaughtered a sheep and ordered Malik's head to be put in the fire under the cooking pot.

After his return, in order to justify his inhuman act and to make it appear something legitimate, he said: "Since this tribe had apostatized, I had to treat them in this manner." But within a short time, facts of the case came out. Abu Qatadah and `Abd Allah ibn `Umar gave witnesses in favour of Malik ibn Nuwayrah. Khalid had no alternative except to confess. While apologizing, he said to Abu Bakr: (I exercised ta'wil and made a mistake). `Umar ibn al-Khattab and some of the Companions were of the view that Khalid should be stoned to death for zina (adultery). However, since Khalid had played a significant role in the episode of Saqifah, efforts were made to exonerate him and justify his deed Accordingly. Abu Bakr said: (I would not stone him, for he exercised ta'wil and committed an error). After this incident the term ta'wil was used in such cases by others.

The Term Ta'wil During the Days of Tabi'un

In the era of the Tabi'un, also, the word ta'wil was used in the sense of the practice of ra'y. Al-Zuhri is reported in al-Sahih of al-­Bukhari (vol.1, p.134, Bab taqsir al-salat) as saying that he asked `Urwah ibn al-Zubayr as to why `A'ishah says full prayers during journey(while qasr is specified in riwayat). He replied "She makes ta'wil of the Riwayah, in the same manner as `Uthman used to do."

The Usage of Ta'wil by Tabi `un

The history of the term taw’il indicates that it started by the Sahabah and continued to be in use until the middle of the 5th/11th century, as can be seen from the writings of some Sunni scholars. But after this date the term taw’il was gradually replaced by other terms. Abu Muhammad `Ali ibn Ahmad, known as Ibn Hazm al-Zahiri (384-456/994-1064), in his book al-Fasl fi al milal wa al-'ahwa' wa al­-nihal (vol.4, p.161), has this to say about Abu al-`Adiyah, the killer of `Ammar ibn Yasir: He was an errant muta’awwil (one who exercises ta'wil) and mujtahid, and committed a wrong against `Ammar ibn Yasir (because of the hukm that he derived and the ijtihad that he made). He deserves reward, but only one.

In another place, he writes in his book that the killer of `Ammar was not similar to the killer of `Uthman, as the latter's killer did not have any ground for ijtihad. He further says that Mu'awiyah and those who were with him were men of ijtihad, although in error, and they deserved one reward. Taqi al-Din Ahmad ibn `Abd al-Hakim ibn `Abd al-Salam (661-728/ 1263-1328) known as Ibn Taymiyyah, while justifying the acts of Mu'awiyah, writes that he was a mujtahid.

Ibn Kathir, in his history (Vol. 7, p.297), writes that Mu'awiyah was a mujtahid and deserved reward. In the same volume of the book (p:283) he writes that ijtihadsometimes leads to error and sometimes to the truth and: For the mujtahid who is right, there are two rewards, and for the mujtahid who errs, one reward.

Ibn Hazm in al-Muhalla (vol.l,p.484), Shaykh `Ala' al-Din 'Ali ibn `Uthman al-Hanafi, known as Ibn al-Turkumani (d.750/1349),in his al-Jawhar al-naqi, as stated in footnotes of al-Bayhaqi's Sunan (vo1.8, pp.58-59), describe the assassin of Ali ibn Abi Talib (To be sure, he was a mujtahid and a muta'awwil)! Ahmad ibn Ali al-Shafi’i, famous as Ibn Hajar al-`Asqalani, while describing the Sahabah, says that they exercised ta'wil and that in cases that the mujtahid errs he is not only not liable to any censure and punishment but deserves one reward.

What is more interesting is that some who claim to be Muslims consider even such a vicious character like Yazid with his irremediable crime, which has no parallel in history, as a khalifah of the Prophet (S). Moreover, they justify his heinous crime and say that he exercised ijtihadand erred in his ta'wil; therefore, he cannot be blamed!

In Ibn Kathir's history (vo1.13,p.9), Abu al-Khayr Ahmad ibn Isma'il ibn Yusuf al-Shafi`i al-'Ash'ari is reported as having made this statement about Yazid: (He was an imam and mujtahid). Ibn Kathir himself writes (Vol .8, p.223) that some people justify the evil and heinous deeds of Yazid and state the he erred in exercising ta'wil and ijtihad. In another place (vo1.6, p.323) he says: "Khalid continued to hold his office with the approval of Abu Bakr ( and therefore his assignment was legitimate), though he took part in the killing of Malik ibn Nuwayrah. But since he exercised ijtihad and erred, he cannot be blamed."

In the above-mentioned cases, the exercise of ray is referred to with the name of ta'wil, and this usage continued until the Sunni com­munity gave it the name of ijtihad, developing special rules and terms for it and opening new chapters in the realm of ‘ilm al-'usul. Conse­quently, the act of deriving a hukm by this means was called "ijtihad", and it practitioner "mujtahid".

As stated, the practice of ray emerged after the demise of the Prophet (S) and the term continued to be in use for ijtihad in the writ­ings of the Sunni fuqaha' until the early years of the 6th/12th century. Abu Hanifah al-Nu'man ibn Thabit (80-150/699-767) and his followers used the term ijtihad in the same sense. Their approach met with the outright rejection of the Shi'i Imams (A) and fuqaha; who denounced it in the strongest terms (details will come in the discussion about the sources of ijtihad). The use of this term however continued through centuries, till the time when it underwent a change.

The Use of "Ijtihad" in Another Sense

From the 6th/12th century till the beginning of the 7th/13th, the term ijtihad underwent a change in the writings and statements of Sunni scholars; they now gave it a wider and more comprehensive meaning. It will be proper to quote here some of them. Abu Hamid Muhammad al-Ghazzali al-Shafi'i (450-505/1058­1111) has defined the term ijtihad in his book, al-Mustasfa fi usul al-fiqh (vo1.2,p.350): "Ijtihad means the effort and endeavour on the part of the mujtahid in acquiring the knowledge of the ahkam of the Shari'ah."

Muhammad Khidri Bek has defined ijtihad in his history of Islamic legislation (p.87) as: "The endeavour and effort undertaken for deducing a hukm of the Shari`ah through means and sources (adillah) which the Shari` (Lawgiver) considers as valid proofs." Ahmad Mustafa Zarqa' al-Suri, the author of al-Madkhal al-fiqhi al­`amm, defines the term ijtihadin these words: "Ijtihad means deduction of ahkamof the Shari`ah by means of their elaborate adillah from the Shari`ah."

There were other fuqaha' at that time who used the term ijtihad in the aforementioned sense. Though the term ijtihadacquired a wider and more comprehensive denotation, nevertheless, the Shi`i fuqaha' still did not approve of the kind of ijtihadpractised by the Ahl al-Sunnah as a reliable source from which ahkam of the Shari`ah could be derived. They rejected it and considered it invalid. As in the previous ages, to them the term ijtihaddenoted an undesirable and forbidden practice; they discussed it in their writings and expressly rejected it as invalid.

This antagonism continued until the 7th/13th century, and the writings of the original researcher and mujtahid Muhammad ibn Ahmad ibn Idris al-Hilli (555 or 558-598/1160 or 1163-1201) bear evidence to this. He writes in his precious book al-Sara'ir that "qiyas, istihsan and ijtihadare from our viewpoint invalid practices". These words of Ibn Idris indicate that the word ijtihadwas still current at the time in the sense of the practice of subjective opinion and ra'y as a source of law, like the Book and the Sunnah.

The New Denotation of Ijtihad

In the 7th/13th century the term ijtihadwas used in a new sense by Imamiyyah fuqaha' which afterwards, with a little ammendment, assumed its genuine and desirable form: the sense of referring new furu ` to the fundamental principles, the usul. In this way, the term ijtihad came to be accepted by the Shi'ah. The oldest texts which throw light on this matter are the writings of the great al-Muhaqqiq al-Hilli (d.676 or 680/1277 or 1281) and his Ma'arij al-'usul (p.117). In it, while defining ijtihad, he states: "In the vocabulary of the fuqaha', ijtihadmeans making effort and endeavour in order to deduce ahkamof the Shari`ah from its valid (shar'i) sources (adillah)."

He continues to say that since the deduction of ahkamand their determination is conceptually a theoretical activity, and in most of the cases they cannot be derived from the apparent meaning of the texts, there was drawn no line of demarcation in the definition between qiyas and other adillah. Therefore, on this basis, qiyas can also be considered to be one of the types of ijtihad. He further says that it is possible that some may say that it means that the Shi`ah also practise ijtihad. The answer is m the affirmative, with the qualification that ijtihadto them has never meant, nor does it mean, the practice of qiyas.

A study of the views expressed by al-Muhaqqiq al-Hill! in Ma`arij al­-usul reveals that in those days the term ijtihadwas not yet fully accepted by the Shi`ah due to its former connotations. The writings of al-Muhaqqiq al-Hilli show that there were still certain individuals in those days who could not digest the term. They were not inclined to assign the appellation `mujtahid' to any of the Shi`i fuqaha'. According­ly, al-Muhaqqiq al-Hilli decided to draw a line between the two con­cepts of qiyas and ijtihadand declared that ijtihadas a new term adopted by the Shi'ah possessed a meaning acceptable to them, that its use did not have any harm-for the term ijtihadmeant to making an effort for deriving a hukm from shar'i sources (i.e. the Book, the Sunnah, ijma` and `aql)-and that it does not have any connection with the ijtihadpractised by the Ahl al-Sunnah.

Difference between the Two Conceptions and its Consequences

There is an obvious difference between the two conceptions of ijtihad, because the first sense implies that whenever there is no express statement in the text of the Quran and the Sunnah the mujtahid can innovate and legislate a law according to his own ray and subjective opinion, and if he is asked as to the source on which he has based this hukm, he will answer: "On my own personal ray". But in the second sense (accepted by the Imamiyyah), ijtihadis an endeavour and effort on the part of the mujtahid in deriving a hukm of God from the sources of the Shari'ah. When asked as to the sources from which the hukm is derived, he answers: "The sources whose validity and reliability is pos­ited by the Lawgiver."

Accordingly, the role of the mujtahid in deducing the ahkam regarding new issues and furu` involves reverting the new furu ` to the basic principles of the Shari'ah and applying its general laws to corre­sponding particular cases. There is an essential and real difference between these two meanings of the term, since ijtihadin the Sunni sense of practising ray means invention (ibda`) of ahkamand legislation. And the Shi`i ijtihadis a means of discovering the Divine ahkam through the valid sources of the Shari`ah (the Book, the Sunnah, ijma` and `aql).

Delimitation o f the Meaning of Ijtihad by al-Muhaqqiq al-Hilli

As mentioned earlier, al-Muhaqqiq al-Hilli delimited the new sense of the term ijtihad to research effort in deducing ahkamfrom the sources, so that the hukm derived is not based on the literal meanings (zawahir) of the texts of the Quran and the Sunnah. Accordingly the deduction of a hukm from zawahir of the Book and the Sunnah was not a part of ijtihadto him. Perhaps this restriction in the meaning of ijtihadhad to do with its original lexical background, which carried the sense of hard effort and labour. Thus, the derivation of a huhm from zawahir of the Book and the Sunnah, which did not involve any great effort, was not counted by him as part of ijtihad.

However, after his era, the meaning of ijtihadgrew in scope and came to include deduction of ahkam from zawahir of the nusus (texts) of the Quran and the Sunnah. This was because the scholars of `ilm al­-usul came to recognize that even deduction from the zawahir required a lot of scholarly effort; that it could not be done without the knowl­edge of the principle of hujjiyyat al-zawahir (the legal validity of literal meanings) and the mode of its application and the related prob­lems.

The meaning of ijtihaddid not remain within these limits; it under­went a further development until it came to include all the forms of legal deduction and every kind of endeavour and effort on the part of the mujtahid to determine and define practical obligations vis a vis the Shari'ah on the basis of valid proofs. Accordingly, in latter times, some scholars have defined ijtihadas effort and endeavour for establishing the legal basis of real ahkam or attainment of legal evidence for deter­mining the apparent obligation in a case, or something to that effect. Other definitions have also been advanced, but since they are close in meaning and content to the one mentioned above, we shall refrain from citing them in order not to prolong this discussion any further. [^3]

Notes:

[^1]. Of course, it doesn't mean that ijtihadwas not practised during this era, for in its authentic and legitimate form ijtihadexisted even during the Prophet's life­time, as discussed by us in another article.

[^2]. For further information regarding the incident relating to Khalid ibn al­-Walid, see: al-Isabah, III, 337; Tarikh al-Ya`qubi, II, 110; Kanz al-`ummal, III, 132; Wafayat al-'a`yan, V, 66; Fawat al-wafayat, II, 627; Abu al-Fida', Ta'rikh, 158.

[^3]. Editor's Note: This is a translation of "Ra'y gera'i dar ijtihad", published in the Persian bimonthly journal Kayhan-e Andisheh No. 9, Adhar & Day) and is second of a series of articles by the author.