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

Second Definition of Ijtihad

Another group of scholars defines ijtihad as effort on the part of a faqih for deriving the ahkam of the Shari'ah. Here we shall cite the views of some of them. (a) The great scholar Abu Hamid Muhammad al-Ghazali al-Shafi`i says: "Ijtihad is the effort (on the part of the mujtahid) and employment of one's utmost powers to extract a command (hukm). This term is not used unless when it involves hardship and strain. Hence it is said ‘He exerted himself to carry the millstone’. But it will not be said that: ,’He exerted himself to carry a grain of mustard seed.’ But in common usage this word is specifically used for the effort made by the mujtahid in the way of acquiring the knowledge of the ahkam of the Shari’ah." [^33] Al-Ghazali further remarks: “Ijtihad in its complete sense is to make utmost effort in achieving a goal so that it is not possible for one to do anything more." [^34]

(b) Muhammad Khidri Bek writes: Ijtihad is the effort made by a faqih for acquiring the knowledge of the ahkam of the Shari’ah. [^35] He adds: Ijtihad in its complete sense is the utmost effort that a faqih undertakes for extracting a hukm (of the Shari'ah) in such a manner that he feels that he has exhausted his capacity. [^36]

Critique of the Second Type of Definitions

The above-mentioned definitions also are incomplete and defective in spite of their being closer to a technical definition and freedom from the defects of the former ones. They are still imperfect because the word `waza'if' (lit. duties) needs to be added; because, besides having to deduce the ahkam of the Shari`ah, a mujtahid is supposed to procure the Practical (al usul al-'amaliyyah) and the Rational Rules (al-'ahkam al-`aqliyyah) - such as Bara'ah, takhyir and Ihtiyat. Thus the field of operation of the mujtahid includes the ahkam of the Shari’ah as well as the Practical and the Rational Rules, whereas the above-mentioned definitions focus merely on the former alone. In this sense, it is not a comprehensive definition.

Third Definition of Ijtihad

A third group of scholars of usul defines ijtihad as: Deduction of the ahkam of the Shari'ah from the usul, the adillah, and their sources in the sacred Shari’ah. It would be appropriate to quote some of these related views. (a) Ahmad Mustafa al-Zarqa', the author of the valuable work al Madkhal al-faqhi al-'amm, says: Ijtihad means deduction of the ahkam of the Shari’ah from their elaborate adillah found in the Shari'ah. [^37]

(b) Al-`Allamah Abu `Abd Allah Shah Wali al-Faruqi al-Dihlawi al-Hanafi, in his book Kitab al-'insaf fi sabab al- Ikhtilaf, writes: Ijtihad means employment of effort and endeavour for the comprehension of the far`i ahkam of the Shari'ah from their elaborate adillah, which comprise the Book, the Sunnah, ijma` and qiyas.

(d) Dr. Subhi al-Mahmasani says: Ijtihad means exertion and effort for discovering the ahkam and laws of the Shari'ah from their legal sources.

Critique of the Third Type of Definitions

These definitions are also not free from the defects of the earlier ones, because, like the previous definitions, they need the word waza'if in order to include the Practical and the Rational Rules with the ahkam of the Shari'ah. Another objection against the definition given by al-Dihlawi is that he has considered qiyas one of the sources of the ahkam, a viewpoint which is rejected by the Shi'ah (this will be dealt in detail while discussing the sources of ijtihad).

Fourth Definition of Ijtihad

The great thinker and scholar of the Islamic world Muhammad ibn al-Hasan ibn `Abd al-Samad, popularly known as al-Shaykh al-Bahai, in his book Zubdat al-'usul, writes: Ijtihad is a capacity (malakah) by means of which one obtains the power of deducing the ahkam of the Shari'ah. Some other scholars have also defined ijtihad in different words that are close in meaning to this definition. Here we shall quote two of them as specimen.

(a) Ijtihad is the manifestation of the capacity for discovering the hujaj (pl. of hujjah) and adillah for deriving the ahkam of the Shari'ah and the Practical Obligations (al-waza'if al-`amaliyyah), whether posited by the Shari'ah or affirmed by reason.

(b) Ijtihad is a capacity by means of which a faqih becomes able to relate the minor premises with the major premises and thereby obtains a hukm of the Shari'ah or an answer to a Practical Obligation.

Critique of the Fourth Type of Definitions

These definitions, also, are controvertible like the previous ones, because firstly, they do not convey the real meaning of ijtihad, for ijtihad per se is not a capacity; for had ijtihad been a capacity, its addition would have served an explanatory purpose, and such is not the case here. Secondly, the titles that have been mentioned in traditions, like 'faqih, arif, () nazir, () rawi, ()as in the widely accepted tradition narrated by `Umar ibn Hanzalah, and other such titles which are mentioned in other riwayahs - are not applicable to one who merely possesses the capacity, but apply only to those in whom the capacity has reached the stage of actualization. Capacity (malakah) is a potential ability; it may or may not reach the point of actualization. It is for this very reason that the phrasehas to follow the words above definitions.

Thirdly, the jurisprudential authorities (maraji taqlid) have set forth three courses by way of al-wajib al-takhyiri in their handbooks of rulings (rasa’il 'amaliyyah) and works of fiqh for the mukallaf (adult person liable to perform religious duties); they are: ijtihad, taqlid (imitation) and ihtiyat (caution).

If ijtihad be a capacity, it is not correct to put it by the side of taqlid and ihtiyat; for taqlid and ihtiyat are concerned with actual practice, while capacity is an inner psychic state. Accordingly, there is no doubt that in the above statement about a mukallaf's duty ijtihad is the de facto knowledge of the ahkam of the Shari'ah and the Practical Rules derived from the sources of the Shari'ah.

Further Clarification

It is evident that the actual ahkam issued by the Sacred Lawgiver (like obligatory duties and impermissible acts, etc.) are known to apply to all the mukallafun. This essential knowledge with the possibility of chastisement is before every mukallaf. And since every sane person essentially knows that God Almighty has prescribed certain duties for him, his rational faculty enjoins him to comply with the dictates of reason in comprehending his duties, and to obtain the certainty of their fulfilment; and - as is said in `ilm al-'usul - the certainty of execution brings the certainty of fulfilment.

Anyone who is in quest of the certainty of fulfilment (of his duties) and wants to tread the path which can assure him that he has performed all the Shari’i duties assigned by the Supreme Lawgiver, will have to perform one of these three things:

He should himself perform ijtihad and comprehend his duties, according to the criteria, from the sources of the Shari'ah.
He should follow the rulings of an all-round (jami` al-shara'it) mujtahid.
He should choose the path of ihtiyat (i.e., among other things, refrain from every act that is not known for certain to be permissible).

In any case, it is essential to take one of the paths; for if one does not act or abstain from performing a certain act in accordance with one of these courses, he faces the possibility of Divine chastisement. The rational faculty of every mukallaf individual considers it essential to avoid every possible harm and punishment; and to avoid such a danger is not possible except by following either the path of ijtihad, or taqlid or ihtiyat. Thus, we see that ijtihad, as one of the choices, is de facto comprehension of one's duties from the sources of the Shari'ah that results in avoiding possible chastisement; mere possession of the capacity to comprehend one's duties cannot be regarded as ijtihad; rather, it means: the identification of the ahkam, their deduction, and acting according to them.

Accordingly, a rnujtahid' who possesses the capacity of ijtihad alone, but does not employ the usul and principles for deriving the ahkam is not different from a non-mujtahid; for, in the same way as a non-mujtahid faces the possibility of chastisement in performing of acts and abstaining from them, a mujtahid who does not use his capacity of ‘ijtihdd is equally exposed to such a danger.

Thus, anyone possessing the capacity of ijtihad should be either a mujtahid who has derived the ahkam of the Shari’ah from its sources, or he should be a muqallid or muhtat; otherwise, he shall not be secure from chastisement. Anyone who is endowed with the capacity of ‘ijtihad but has not reached the practical stage of deriving the ahkam of the Shari'ah may be called a `mujtahid'; but as far as practice is concerned he is not different from a non-mujtahid. In any case, ijtihad should be defined in a manner that is free from such flaws.

A Misconception

Some people believe that the capacity of ijtihad is similar to some other traits (like generosity, justice, valour, etc.), which is acquired after practice and exercise in deriving the ahkam of the Shari'ah, in the same way as other qualities reach the stage of actualization after repetition and practice.

They reason that, as in the case of some qualities and traits which are not separable from action (generosity is not separable from acts of generosity, justice is not separable from acts of justice, valour is not separable from deeds of valour) ijtihad also is not separable from deduction of the ahkam of the Shari'ah. Accordingly, whosoever possesses the capacity of ijtihad has inevitably derived the ahkam of the Shari'ah from its sources, and this necessarily makes him secure from chastisement. Hence the above definition is correct.

This argument is not valid, for the capacity of ijtihad is not similar to other qualities. Other qualities cannot be actualized without many attempts and persistent repetition, but the capacity of ijtihad can be acquired without deducing any hukm. For instance, the quality of valour is acquired by repeatedly exposing oneself to danger and through performance of acts involving danger, because their continuation gradually drives out fear from the heart, to the extent that one can take part in big battles without any fear and nervousness in his heart. Similar is the case with generosity and self-denial: repeated performance of the act of generosity leads man to such a point when he can bear to be thirsty and hungry in order to feed others.

Therefore, the realization of these qualities needs repeated performance, whereas the capacity of ijtihad does not need any such practice. On the contrary, unless one possesses the capacity of ijtihad and the ability to derive the ahkam, he cannot perform ijtihad and derive ahkam of the Shari'ah. Hence it is the exercise of deriving which is dependent upon the capacity, not the capacity on repeated derivation. It is possible for a person to possess the capacity of deriving the ahkam without having derived even a single hukm; as the capacity of ijtihad depends upon learning certain sciences like Arabic grammar and syntax, vocabulary, tafsir, rijal and `ilm: al-'usul, etc., whose knowledge enables one to derive the ahkam of the Shari'ah. Therefore, the act of derivation from the viewpoint of realization is posterior to the capacity - contrary to other qualities whose realization follows performance.

It is true that extensive derivation and repeated employment of the capacity of ijtihad. can enhance this faculty, but this has nothing to do with its actual realization and existence.

In short, ijtihad in the sense of faculty does not guarantee security from Divine chastisement, or repel its potential danger from the mukallaf. It cannot be placed in the category of taqlid and ihtiyat either, for that which is equivalent to taqlid and ihtiyat is the knowledge of the ahkam from the Shar'i sources. Hence ijtihad should be defined in a way which is not open to such objections.

Some other scholars have defined ijtihad in yet another way. `Abd al-Wahid al-Khallaf says: Ijtihad means employment of effort and endeavour for understanding the ahkam of the Shari'ah for issues for which there is no specific express text (in the Book and the Sunnah), by exercising ray and subjective judgement, as well as by using other methods for deriving the laws of the Shari'ah. [^38]

Critique of the Fifth Definition

This definition is also objectionable like other definitions, but, as we shall see in the discussion about ijtihad bi al-ray and subjective judgement, in Islamic fiqh valid ijtihad means employment of effort for deriving the ahkam of the Shari'ah for emergent and contingent issues from the Shar`i sources (the Book, the Sunnah, ijma` and `aql), not the exercise of one's subjective opinion and judgement. We shall elaborate on this matter later on and there we shall see that no individual - even the Prophet (S) - may legislate laws by exercising personal judgement; for legislation is exclusively a Divine prerogative.

In Islamic law there is a hukm for every issue, either as a particular or a general law. As for the issues for which no express text exists, a mujtahid can derive laws by applying to them the general laws of the Book or the Sunnah. Therefore, in emergent issues a mujtahid is required to discover an express Shar'i text, and whenever he is unable to discover such a proof or express text, he has to secure an `apparent' hukm (al-hukm al-zahiri) for the mukallaf from such Practical Rules as Bara'ah, Takhyir, Istishab, etc.

According to Abu Bakr al-Razi, the term ijtihad has been applied to the following three meanings: (1) Qiyas, when the cause (`illah) does not lead to the hukm, for it may not possibly contain the hukm (on account of its being an incomplete and not a complete cause). As a result, the cause does not lead to certainty about the desired hukm, which has to be based on ijtihad and derivation through ray. (2) Anything that gives rise to presumption without the existence of a cause, like ijtihad regarding time, direction of Qiblah, price of a commodity, etc. (3) Argument based on usul for positing a hukm of the Shari`ah. [^39]

This statement is also objectionable; for, of the three points that which can relate to the technical sense of ijtihad, the first one - i.e., derivation of ahkam by means of qiyas - is invalid from the Shi'i point of view. The second meaning also is not right, as giving judgments about ordinary external details is not the duty of the mujtahid. In the third point, ijtihad is used in a general, non-specific sense, as it includes qiyas and other things also.

The great jurist Akhund al-Kurasani has defined ijtihad as employment of one's powers for acquisition of hujjah regarding the ahkam of the Shari`ah. [^40]

Another scholar has defined ijtihad as effort and endeavour made in deriving the far’i ahkam of the Shari'ah, or securing legal validity through (the study of) its elaborate adillah. If the criterion of the validity of an act is considered acquisition of hujjah, the above given definition is safe from the objections raised against the earlier definitions, as hujjah is inclusive of: certainty; the adillah that lead to certainty (such as reliable usul and dicta); and presumption, in accordance with the Sunni outlook. Similarly the term hujjah covers presumption during the period of closure of doors of certainty, in accordance with the belief of those who believe in such a closure.

Accordingly, employment of effort for securing legal validity in regard to the ahkam of the Shari'ah is no doubt regarded as ijtihad, whether the hujjah leads to certainty or is based on a dalil; and it does not make any difference whether it gives rise to presumption or not. Accordingly, the earlier objections cannot be raised against this definition.