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

Difference of Viewpoints, a Bounty

There is no doubt that disagreement in the sense of quarrel and hostility is an undesirable thing which has been prohibited by the sacred Shari`ah. But disagreement in the sense of difference of opinion is, in many cases, good and valuable, because the conflict of ideas leads to greater research and deeper investigation. Some have interpreted the following statement of the Prophet (S) in this sense:

The difference of my Ummah is a mercy. [^1]

In any case, ijtihad and undertaking of investigation for identifica­tion of Divine laws is considered a desirable thing by the Lawgiver. The tradition:

The mujtahid who succeeds (in identifying the true law) gets two rewards and the one who errs gets one, aims to encourage ijtihad as it leads to the development of thought and taps the resources of the intellect. This admirable practice has been in vogue in Shi`i academies for ages, and throughout the seven epochs of the history of ijtihad, muj­tahidun welcomed the expression of diverse viewpoints regarding various issues. This is the reason why Shi'i fiqh has achieved its remarkable development in various fields and preserved the capacity to answer the problems and satisfy the diverse wants of man in every age. Farid al­Wajdi, writing in Da'irat al-ma`arif, III, 197, under j-h-d, says:

The Islamic Shari'ah contains sufficient amount of primary principles suitable for legal deduction and which can meet the emergent wants and solve the problems of life. Therefore, in every age there should be mujtahids capable of making legal deductions. From the beginning of the Islamic era to the third/ninth century there did exit mujtahids who deduced the hukm for every event and eventuality through ijtihad from the primary principles of the Shari'ah. They were not afraid of divergence of viewpoints, which to them was not only something ordinary and natural but a mercy of God, because diversity is one of the laws of nature and there is no community without divergence in some matters of religion, with the followers on every side defending their own viewpoint. But when the Muslims became rigid with regard to the understanding of the secrets and subtleties of their law, inade­quacy and neglect became their lot. As a result they did not permit them­selves to think about new realities. They would say that it was on account of the closure of the gates of ijtihad. But the fact is that according to the express texts of the Book and the Sunnah, the gates of ijtihad are open for all until the Judgement's Day.

In brief, social stagnation and intellectual decadence cast their shadow on Islamic communities when the road of ijtihad and thought was blocked and Muslims did not permit themselves to reflect. about new realities and problems. As a consequence, their legal studies remained at the same point that they had reached twelve centuries ago.

Traditional Fiqh or Progressive Fiqh?

Nowadays some persons want to draw a distinction between `tradi­tional fiqh' and `progressive fiqh'. However, if we set aside the specific views and objectives of some groups and see things as they really are, we will see that there can be no distinction between `traditional fiqh' and `progressive fiqh' in Shi'i context.

This is so because traditional fiqh, when dealt. with on the basis of ijtihad with all its conditions and criteria, has the capacity to solve all emergent problems and to march in step with all the manifestations of progress. However, if by 'progressive fiqh' be meant recognition of the right to violate Shar'i norms and requirements of ijtihad and the non­specialist's right to interfere in this discipline, and the exercise of ijtihad through the use of qiyas, istihsan and masalih mursalah, it can­not be called Islamic firth. for say nothing of its being `progressive'. This is so because 'fiqh' means the commands revealed by God to His Apostle, not laws determined by human thought and speculation. So also if traditional fiqh is taken to mean rigid adherence to the literal meanings of the texts (zawahir al-nusus) and the fatwas of predecessors and indifference to contemporary realities, such a static ‘ijtihad cannot answer the diverse problems of life in every age and keep pace with changing times.

Ijtihad, Legislation and Tajdid

Ijtihad from the Shi-i view point is not a kind of legislation or something based solely on human thought, subjective judgement or provincial social, economic, cultural or political perceptions. Ijtihad is also not a kind of taqlid in the sense of a passive acceptance of ahkam, in whose determination the mujtahid has no role. Ijtihad in Shi’i view means intellectual effort based on the recognition of certain canonical sources and juristic principles and aimed at understanding and dis­covering the laws of God. Although a dynamic force in fiqh, ijtihad does not diminish the sanctity and stability of the legal content of the Shari'ah. Rather, throughout the seven epochs of its development ijtihad has always guarded the principal content of the ahkam while at the same time extending its scope and application to the most. distant horizons of human life on the basis of its general laws and principles. Ijtihad, it may be said, is making intelligent use of God's general grace whereby He has placed the laws of the Shari'ah in the bounteous domain of the intellect.

The first Shi`i faqih to open the gates of ijtihad as a comprehensive scientific discipline was Abu Muhammad al-Hasan ibn 'Ali al-'Umiini, known as Ibn Abi `Aqil. He wrote a book on this subject entitled al­-ustamsik bi habl Al al-Rasul which is mentioned by al-Najashi as being one of the most famous and well-known Shi`i works. In this book Ibn Abi `Aqil examined all the various aspects of the principles of ahkam and the rules of ijtihad as well as the common elements related to the process of legal deduction. Although he wrote many books, in almost all the fields of Islamic sciences, his fame rests mostly on his studies of ijtihad. He wrote his above-mentioned book during the era of the Minor Occultation of the Twelfth Imam (A). He is considered the pioneer in the field because no one before him had written such a work that treated Shi'i fiqh in such a comprehensive manner with an approach based on ijtihad.

We do not know of any legist to have undertaken such a task before Ibn Abi `Aqil. Before him Shi`i fiqh did not have the ability of enter­ing the phase of tafri` (i.e. the application of usul for deriving answers to new furu` or secondary issues) on account of the absence of an elaborate and scientific method, without which ijtihad as a technique was not possible. This great legist filled this vacuum through his indefatigable efforts.

After Ibn Abi `Aqil, the next person to set forth fiqh in a scientific perspective based on ijtihad was Abu 'Ali Muhmmad ibn Ahmad al. Katib al-'Iskafi (d.381=991), known as Ibn Junayd. In his endeavour to establish legal studies on the principles and rules of ijtihad, he wrote a number of books on the subject. Two of them are: Tahdhib al-Shi`ah li ahkam al-Shari`ah and al-Mukhtasar al-Ahmadi li al-fiqh al-Muhammadi. Abu Ja'far ibn Ma'd al-Musawi, who claims to have seen Ibn Junayd's work, says that he had not seen a better-written book among Shi'i works. He adds that al-Mukhtasasr al-'Ahmadi was popular as a textbook during the days of the late 'Allamah.

A Clarification

Here it is essential to clarify two points. It appears from the statements of some scholars that Ibn Abi `Aqil was the first to open the gate of practical ijtihadand to lay the foundations of tafri`. This is not correct, because he was the founder of ijtihad as theory and not as practice. Secondly, some scholars are of the opinion that Ibn Junayd was the pioneer of the theory and practice of ijtihad and Ibn Abi `Aqil continued his work. This is opposite of what we believe to be the case, because Ibn Abi `Aqil was a contemporary of al-Kulayni (d.328 or 329/ 940 or 941) and lived during the era of the Minor Occultation. Although we don't know the exact date of Ibn Abi `Aqil's death, some indications lead us to believe that-he died before or about the same time as al-Kul­ayni. Ibn Junayd al-'Isksfi died in the year 381/991, about 52 (lunar) years after Ibn Abi `Aqil's death.

The Practice of Ijtihad

The first legist to open the gate of practical ijtihad was the great legist and the unique scholar of his era Shaykh al-Ta'ifah Muhammad ibn al-Hasan al-Tusi (385-460/995-1068), who applied the general principles of jurisprudence to new and emergent furu’. We don't know of any Shi’i mujtahid before him to have practically applied ijtihad in his manner to answer the multiplying needs of the Shi`i world of the time. With his work he extended the scope of Islamic fiqh in a remark­able manner, for he fully utilized the theoretical foundations which had been laid by his predecessors in the field, such as Ibn Abi `Aqil and Ibn Junayd. Al-Tusi commenced this project in his precious work al-Mabsut. In the preface to this work, while explaining his motives for writing it, he says. "Our opponents believe that the Imamiyyah do not have the capacity to refer the furu` to usul, and they confine themselves to the texts (nusus)related by their traditionists". Such a view stimulated the Shaykh al-Ta'ifah to rise to prove the Shi'i prowess in the field of ijtihad and to fill the existing vacuum. Juristic thought and the theory of ijtihad made great advancement during his era, breathing a new life into the body of fiqh. Al-Mabsut emancipated the studies of fiqh from their restricted confines - wherein their sole reliance was on the direct, literal interpretation of traditions - and brought them into a wide and open field. Al-Tusi's al-Mabsut represents the point of departure in the expansion of Shi'i fiqh and usul which was made possible by the pre­liminary work done by Ibn Abi `Aqil and Ibn Junayd.

The Development of the Theory of Ijtihad

Shi’i ijtihad at the outset of the Minor Occultation did not come across the kind of difficulty faced during later eras with regard to the deduction of ahkam regarding new issues and problems. This was because, firstly, the Muslims of that time did not face the problems which emerged later. Secondly, due to the proximity with the era of nass, the availability of the Four Hundred Usul (which contained the records of the statements of al-'Imam al-Baqir (A), al-'Imam al-Sadiq (A) and the other Imams made, made by their pupils), and the under­standing of the actual context in which those statements were made, the need for ijtihad was not felt as acutely as during the later times.

Ijtihad and legal deduction was a simpler affair, free of the later tech­nical complexities, because the legists of that period did not face any great difficulty with regard to the identification of trustworthy tradi­tions, the literal and legal meanings and significance of words used in traditions, and the specific features relating to them. However, the pas­sage of time and the emergence of new issues with the advancement of civilization, on the one hand, and the obliteration of signs and indica­tions which were instrumental in understanding the import and purpose of traditions as well as the complications arising from changes in general and legal usage of words, on the other - all these together made the task of deduction more difficult for the later mujtahids and jurists. To these must be added the difficulty arising from the forgeries and fabrications made by interested persons, which had affected the trust­worthiness of many traditions.

Due to these causes, the practice of ijtihad for the deduction and discovery of the real ahkam was not so simple a matter as before, and it was necessary to study various sciences for the purposes of (1) deter­mining the meanings of words, (2) understanding of the literal meanings of the Book and the Sunnah, (3) determining the reliability of narrators by studying their biographies for evaluating the asnad of traditions as sahih, da’if, muwaththaq, mursal etc., and (4) determining the tradi­tional and rational criteria for giving precedence to a tradition and the rules for reconciling conflicting traditions (on the basis of `amm and khass, mutlaq and muqayyad, mujmal and mubin, zahir and azhar, zahir and nass).

The causes behind the conflict between traditions of legal signifi­cance were the following:

1. The loss of certain indications accompanying the texts of hadith, caused at times due to the dismemberment (taqti`)of traditions and asnad, and at times due to the negligence of narrators.

2. The narration of traditions in reworded form by the narrator, in words different from that of the Imam.

3. The making of statements contrary to the real Shi`i position on account of taqiyyah, which the Shi`is were forced to practise as a safety measure to protect the Shari'ah and their lives, property and honour.

4. The graded approach of the Imams in the exposition and com­munication of the ahkam to the people, for the sake of the considera­tion of specific conditions of a certain inquirer or certain special cir­cumstances.

5. The treacherous interference of some anti-Islamic elements and mercenaries, against whose fabrications the Imams (A) warned their Shi'ah.

Accordingly, anyone who engages in the deduction of Divine ahkam from the traditions should have the capacity to reconcile various kinds of contradictions arising from the above-mentioned causes.

Notes:

[^1]. This interpretation of the tradition is correct if `ikhtilaf' is taken to mean `difference of opinion'. However, in some traditions a different meaning is given to the word.

One of these traditions is the following from al-Shaykh al-Saduq's Ma'ani al-'akhbar, Qumm, 1361 H.Sh., p.157:

...`Abd al -Mu'min al-'Ansari says: "I said to Abu 'Abd Allah: `The people narrate the Prophet (S) to have said: "The ikhtilaf of my ummah is mercy". (Is that true?)' He replied: `What they say is true.' I said, If their difference is mercy, then their consensus should be a scourge?!' He said, `it is not as you or they understand it. Indeed, what the Prophet (S) meant is the import of this utterance of God Almighty: "...But why should not a party of every section of them go forth, to become learned in the Din, and to warn their people when they return to them, that haply they may beware?"(9:122) (In this verse) God has commanded them to go forth (yanfiru) towards the Messenger of Allah (S) and to frequent (yukhtalifu)him so that they may learn and then return to their people to teach them. Indeed he (S) meant their departure from their places, not their divergence in the Din of Allah, For, verily, the Din is one."