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

Conclusion

From the nine reasons given above it can be concluded that the practice of ijtihad, in the sense of derivation of ahkam from Shar'i sources, existed during the era of the eleven Imams (S).? The companions of the Imams (A) derived secondary ahkam from the legal sources, for issues for which there existed no nass either in the Book or in the Sunnah of the Prophet (S) or in riwdydt of the Ma'sumun (A), and this practice enjoyed the approval of the Imams (A).

Ijtihad, a Perennial Spring

The essential sources of Islamic law are the Quran, the Prophet's Sunnah, and the traditions of the Infallible Imams (A), which are the most vital source of man's spiritual life. This is because the life and continuity of human societies depends on the existence of proper laws and regulations. These fundamental sources of law are like precious deposits in which the higher, transcendental teachings are kept in the form of general, universal - principles. In order to extract this vital material from the core of general and universal principles and to use it for the fulfilment of multifarious needs of man's spiritual and corporeal existence, there is the need of some instrument and means. Such an instrument is provided by ijtihad.

Ijtihad, on the one hand, gives vigour and viability to legal thought and, on the other, does not allow the ahkam to remain in the outdated moulds of obsolete expressions and terms, by expounding them in the language of every age and in accordance with its needs.

Although the Divine laws are fixed and unchangeable, the mode of their expression and exposition is subject to variation. A part of the function of ijtihad is to recognize the consequences arising from this fact. Hence it has been said that ijtihad is an agent of renovation in fiqh, and that it is a force that operates in history by developing the scope of fiqh with the expansion of its applications. At the same time, ijtihad safeguards the stability of legislation through time. Since the Sacred Lawgiver knew that various aspects of human life are subject to change its multifarious needs are open to variation, He recognized the role role of ijtihdd as a force which should emerge with the emergence of fiqh and remain in its service throughout the course of history in order to enable fiqh to fulfil the human need for law.

The ijtihad which the lawgiver has sanctioned and which is to be employed in the service of fiqh, represents a specific meaning of the term `ijtihad'. In this particular sense it embodies one of the most outstanding characteristics of the spirit of Islam as reflected in Islamic legal studies, and it is in this sense that the Shi`ah have adopted the term.

If the practice of ijtihad is carried on in a correct manner, Islamic fiqh cannot remain static or face any kind of stagnation, nor will there appear any kind of deficiency or vacuum in any of its various branch.

The innate dynamism of Islamic fiqh became apparent when the great Shi`i mujtahid al-Hasan ibn Abi `Aqil al-`Umani, a contemporary of al-Kulayni, gave a scientific structure to fiqh. The practical impact of his work became evident when the great Shi`i legist Shaykh al-Ta'ifah Muhammad ibn al-Hasan al Tusi employed the groundwork prepared by him for deriving ahkam from Shar'i sources for new issues and prob­lems. Thus it was by these two great minds that fiqh was set upon a course upon which it progressed with time and developed with historical change.

The Source of the Inadequacies

That which is sometimes referred to as the inadequacy of fiqh is in fact a result of inadequate research effort undertaken in some of the branches of Islamic legal studies. In other words, the main cause of these inadequacies is the failure to study the general and particular elements relating to some branches of fiqh. The reason for this neglect was the absence of any practical background during the past ages.

Accordingly, these inadequacies do not relate to the essence of Islamic law as such. It is we who have not worked hard enough to explore its hidden treasures. Undoubtedly, had we explored them, there would not have remained any unanswered question in this domain. On this account, the inadequacy pertains to our performance, not to Islamic law.

For instance, some issues of fiqh either totally lacked practical relevance in the past before the establishment of the Islamic Republic, or their relevance was very limited. This was true of matters relating to land, limits of private ownership, anfal, jihad, penal laws, judiciary, qisas, ta`zirat, etc., or issues pertaining to civil, economic and social legislation. As a result of the past irrelevance of these issues, due to the absence of any background necessary for implementation, sufficient work was not done on these topics and whenever some work was done it was sketchy and perfunctory.

On the other hand, other kinds of legal issues, such as matters pertaining to wudu ; ghusl, tayammum, salat, sawm and so on, were studied in extremely meticulous detail due to the existence of a practi­cal background, and now we don't face any kind of inadequacy with regard to the problems pertaining to these topics.

Today, with Divine succour, the background required for the implementation of all the Divine ahkam in society has emerged with the victory of the Islamic Revolution and the realization of the sover­eignty of the Islamic Republic. Now the theological centres should continue their endeavour by giving more attention to those branches of fiqh that were neglected in the past. This author believes that should a one-third of the research effort put formerly into such topics as taharah (ritual purification) and salat be devoted to other branches of fiqh, all the inadequacies would disappear and we would obtain clear and unambiguous ahkam in all the spheres.

The Qualifications Required for Ijitihad

There are certain requirements which must be met in order to exercise ijtihad in economic, political, social, cultural, ethical and legal spheres. These are as follows: 1. The mujtahid should have sufficient knowledge and expertise in the field of ijtihad and must be thoroughly familiar with the statements of the Prophet (‘a)and the Imams (A). Otherwise he cannot be called a mujtahid or a faqih:

One is not a faqih unless he understands the meaning of our statements. In a tradition recorded in Misbah al-Shari`ah (p. 355, bab 63), al-'Imam al-Sadiq (A) is reported to have said:

The mufti (one who gives fatwa) stands in need of knowledge of the meanings of the Quran, understanding of the real meaning of ahadith and the inward meaning of signs and indications, and familiarity with matters relating to etiquette and conduct. He should have thorough knowledge of the points of consensus and disagreement and be well-informed about the essentials of what they have agreed or disagreed about. Then he should possess the capacity to make a proper choice. Then he needs to be righteous in his actions, wise and pious. After possessing all these qualities, he may give fatwa if he has the capacity to do so.

Fiqh is like an ocean which does not yield its pearls and treasures to those divers who lack discrimination, knowledge, experience and exper­tise. Those who try to fathom it without possessing these qualities are drowned and destroyed.

2. The exercise of ijtihad should be in accordance with the criteria and principles of ‘ilm al-'usul; otherwise any claims to ijtihad cannot be recognized.

3.Perpetual research about the factors that relate to the process of ramification (tafr’i)of the principles and their application to particular cases. These elements are as follows:

(a) The usul (fundamental principles) of ahkam, in whose light the ahkam for new furu` are obtained. (b) The general rules of ahkam, which are applicable to individual instances in external reality.

4. Perpetual research about the elements relevant to derivation of ahkam, such as:

(a) The common (mushtarak)usuli elments of derivation. (b) The specific elements (traditions) related to derivation that do not contain the causes (‘ilal)behind the ahkam. (c) The specific elements that do contain the cause underlying a hukm and which can be used for extending it to other cases. This extension of a law to similar cases is called qiya mansus al-illah, extension of the jurisdiction of a law in cases where the cause under­lying it has been stated by the Lawgiver), However, the qiyas based on analogy and similarity, which is considered valid by Ahl al-Sunnah with the exception of Hanbalis and Zahiris, is rejected by the Shi'ah. (d) Extraction of definite criteria of ahkam from tradition through reason, as a result of which a hukm can be extended beyond the appli­cation mentioned in hadith. In the terminology of fiqh this is called tanqih al-manat al-qat’i (isolation of the definite cause) and is considered valid by the Shi'ah. That which is considered invalid by the Shi'ah is deducing of the pre­sumed cause of a hukm by rational means, which is termed tanqih ul ­manat al-zanni (isolation of the presumed cause). (e) The isolation (tanqih)of general subjects (mawdu’ay)through the triple means of the Shar` (canon), 'aql (reason) and `urf (custom).

This tanqih is directed towards two things: (1) content (muhtawa), (2) the legal application of the subject isolated to other general heads (anawin kulliyah)-- such as the application of the subject of cooperation (taa`awun)to the matter of ithm and 'udwan as a primary considera­tion and its secondary legal application to the use of tobacco (as during the Tobacco Movement), for instance. This kind of application is one of the special functions of the mujtahid (that is why we said `isolation of general subjects', for isolation of particular subjects is not the mujtahid's duty).

(f) The primary laws (al-'ahkam al-'awwaliyyah). (g) The secondary laws (al-'ahkam al-thanawiyyah). (h) The provision of legislative assistance to the ruler or al-wali al-­faqih within the framework of the sources.

If ijtihad is exercised in various branches of law in the light. of these conditions, no law pertaining to any subject will remain un­identified nor there will remain any kind of legal inadequacy. Now it is up to the committed mujtahids and scholars to exercise ijtihad in these fields of law, wherein the way has been prepared for implementa­tion through the establishment of the Islamic Republic, and thus satisfy the needs of Muslim communities.

Some persons, on account of their ignorance, think that in order to meet the diverse needs of changed conditions of life we should either turn to the use of conjectural instruments (such as qiyas, istihsan and masalih mursalah)or to the legal systems of other countries of the east and the west. The above discussion shows the baselessness of such a suggestion.

Unfortunately, there is a group which on its first encounter with an inadequacy in some branch of law goes to the extreme and proposes such methods of legal deduction' as are neither sanctioned by the Shari'ah nor agree with the rational criteria, and compromise the reputation of Islam in the eyes of non-Muslims.

The Closure of the Gates of Ijtihad, a Conspiracy

The issue of closing the gates of ijtihad emerged during the reign of the `Abbasids, and undoubtedly the enemies of Islam played an effective part in raising it. This was because the giving up of ijtihad meant blocking the source of dynamism and perpetual vitality of Islam and its law, which in turn implied the expulsion of Islam from the arena of temporal affairs and, following it, its elimination from the intellectual and spiritual spheres. Evidently, this was what the enemies of Islam aimed at.

The cause of the present inadequacies of Sunni fiqh in most of the branches of law, as well as the issuance of incorrect fatwas, is the Sunni belief in the end of ijtihad. However, the committed and aware scholars among the Ahl al-Sunnah should endeavour to reopen the gates of ‘ijtihadand bring Islam out of its current state of isolation and decadence, so that a spirit of vitality and dynamism is infused into Muslim com­munities. This is because so long as the taqlid of the four Imams is considered binding, and new research, study and expression of views is regarded as impermissible, there appears to be little hope of any effective change.