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

Objections Against the Definition

It may be objected that the above definition is not logical or tech­nical, for a technically and logically correct definition should closely correspond to the thing defined, whereas the said definition is rather loose. It states that ijtihad is to derive and determine ahkam from the sources; it does not specify that the person performing derivation should also possess the capacity, whereas the mujtahid is one who possesses the capacity of ijtihad. This objection is valid, unless it is said that ijtihad depends on the capacity and it is not possible to derive ahkam from reliable sources except through that capacity, and here possession of the capacity is taken for granted.

Note

It is appropriate here to clarify one thing about the capacity of ijtihad: it is a capacity acquired through the knowledge of ten types of disciplines on which derivation and understanding of the ahkam of the Shari'ah depends. In this regard, the requirement of another faculty - the so-called quwwah qudsiyyah - is not essential, for the-ijtihad which is acceptable to all means derivation of the Shar'i ahkam from the sources, and in the same way as a just' (`adil) mujtahid can perform this task, it can also be performed by a mujtahid who is not `just'.

Two Different Conceptions of Ijtihad

The term ijtihad as used in the writings of scholars of different Islamic sects conveys two different meanings, each of which gives rise to different viewpoints regarding the sources of Shar'i ahkam. In the first conception ijtihad means derivation of Shar`i hukm through personal judgement and ray for an issue for which the mujtahid does not find any express text in the Quran or the Sunnah. Such a meaning of ijtihad is found in the writings of `Abd al-Wahhab al-Khallaf and most of Sunni fuqaha' also subscribe to this view.

Ijtihad in this sense is. considered by most of Sunni scholars as an independent source parallel to the Quran, the Sunnah, ijma` and `aql, and is acknowledged as one of the bases for determining the ahkam.

It means that in the same manner as a mujtahid relies on sources like the Quran, the Sunnah, `aql and ijma` for deriving ahkam, he can also rely on ray and subjective opinion by taking recourse to instruments of presumption (like qiyas, istihsan, masalih mursalah, istislah, madhhab al-Sahabi, fath al-dhara'i`, sadd al-dhara'i`, etc.) for issues on which there is no express text in the Quran and the Sunnah.

In the second conception ijtihad means deduction of the fari ahkam from the reliable sources (the Quran, the Sunnah, ijma` and `aql). Ijtihad in this sense occurs in the writings of Ahmad Mustafa al-Zarqa', the author of al-Madkhal al-fiqhi al-`amm, and Shi'i fuqaha' have sub­scribed to this view long since. According to this conception, the activity of the mujtahid involves deduction of the laws of the Shari'ah for emergent issues and new phenomena of life by employing general principles and rules. Thereby the mujtahid refers new secondary issues to the general principles and applies the general laws to their particular instances in external reality, thus obtaining the ahkam governing them. According to this conception, ijtihad is not counted as an independent source of law parallel to the Quran and the Sunnah, but merely as a means for deriving and determining the ahkam from the sources.

Ijtihad as an Independent Source in Sunni Fiqh

Leading Sunni jurists have chosen the first conception of ijtihad, as an independent source parallel to the Book of God and the Sunnah of the Prophet (S). They have included ijtihad itself, besides the four sources of fiqh, as the fifth one. Accordingly, they have specified for it a separate section in their books of usul such as Usul al-fiqh, al­ Mustaqfa, al-Ahkam and other works - and have undertaken diverse discussions about it. In accordance with this conception, al-Shafi`i considers qiyas to be same as ijtihad in his Risalah. He writes: What is qiyas? Is qiyas the same as ijtihad, or are they different'? I say, qiyas and ‘ijtihad are two terms which convey the same meaning like `man' and `human being’. [^41]

In Risalah he rejects the opinions of most of Sunni fuqaha' who believe istihsan to be one of the sources of ijtihad, [^42]for the majority of them believe ‘ijtihad to be synonymous with ray, qiyas, istihsan and istinbat. Mustafa `Abd al-Razzaq is one of them; he writes: The ray of which we speak is the mujtahid's reliance on his subjective opinion and judgement for obtaining a law of the Shari'ah. This is what we mean by ijtihad and qiyas, which are synonymous with istinbat and istihsan. [^43]

This statement appears to be strange, for ijtihad, istinbat, ray, qiyas and istihsan are terms which are different from one another regarding their meaning. How can they be considered synonymous and equivalent terms, and how can it be said that these words convey the same meaning when there is nothing common either between the words or their meanings?

It may be said in justification of the above-mentioned statement that the equating of ray with ijtihad is for the reason that the personal judgement of a mujtahid in the event of absence of any express text of the Quran and the Sunnah is synonymous with ijtihhd bi al-ray and hence this sort of istinbat has been named ray as well. But other practices like qiyas, istihsan, masalih mursalah, istislah, sadd al-dhara'i`, fath al-dhara'i`, madhhab al-Sahabi, Shari`at al-salaf, `urf, etc. (which shall be discussed in detail) each one of them is considered an instance of ijtihad, but is not equivalent to or synonymous with ijtihad bi al­-ra'y. The reason for the error in equating ijtihad with ijtihad bi al-ray is that the meaning of ijtihad has been confused with that of one of its elements.

Notes:

[^1] Al-Nihayah vol. 1, p. 219. [^2] Al-Nihayah vol. 1, p. 219. [^3] Lisan al-Arab, vol. 3, p. 133. [^4] 9:79 [^5] Lisan al-Arab, vol. 3, p. 133. [^6] Ibid.,p.135. [^7] Aqrab al-mawarid, vol. 1, p. 144. [^8] Aqrab al-mawarid, vol. 1, p. 144. [^9] Al Misbah al-munir, vol. 1, p. 144. [^10] Al Misbah al-munir, vol. 1, p. 144. [^11] Majma' al-bahrayn, vol. 3, p. 32. [^12] Majma' al-bahrayn, vol. 3, p. 32. [^13] Majma' al-bahrayn, vol. 3, p. 32. [^14]. Sihah al-lughah, vol.1, p. 457. [^15]. Ma'alim al- usul, p. 232. [^16]. Kifayat al-'usul, vol. 2, p. 42. [^17]. Sunan al-Nasa’i, the chapter on the command to pronounce benedictions on the Prophet (S), vo1.1, p.90; see also the Musnad Ahmad ibn Hanbal, vol. 1, p.199. [^18]. Sahih Muslim, kitab al-salat, hadith 207; Musnad Ahmad ibn Hanbal, vol. 1, p.219. [^19]. Muqaddimah of Sunan al-Darimi, vol. 1, p.100. [^20]. Sahih Muslim, kitab al-itikaf, hadith 8;see also Sunan Ibn Majah„ kitab al-sawm, hadith 1767. [^21]. Sunan Ibn Majah, kitab al-ru'ya ; hadith 3925; Musnad Ahmad ibn Hanbal, vol. 3, p.163. [^22]. Musnad Ahmad ibn Hanbal, vol. 3, pp. 33,138. [^23]. Sahih al-Bukhari, vo1.3, p.136. [^24]. Sahih al-Bukhari, kitab al jihad, vo1.2, p. 93; Musnad Ahmad ibn Hanbal, vol. 3, pp. 260, 283. [^25] Wasa'il al-Shi ah, vol. l,twentieth of abwab muqaddamat al-­ibadat, ahadith 1, 11, 20. [^26] Wasa'il al-Shi ah, vol. l,twentieth of abwab muqaddamat al-­ibadat, ahadith 1, 11, 20. [^27] Wasa'il al-Shi ah, vol. l,twentieth of abwab muqaddamat al-­ibadat, ahadith 1, 11, 20. [^28]. Al-'Ihkam fi usul al-'ahkam, vol. 4, p. 218.18. [^29]. Al-Mustusfa fi usul al-fiqh, p. 55. [^30]. Al-Madkhal ila `ilm usul al-fiqh, p. 55. [^31]. Majma' al-bahrayn, vol. 3, p. 32. [^32]. Ma'alim al-'usul p. 232. [^33] Al-Mustasfa fi usul al-fiqh, vol. 2, p. 350. [^34] Al-Mustasfa fi usul al-fiqh, vol. 2, p. 350. [^35] Usul al-fiqh, p. 357. [^36] Usul al-fiqh, p. 357. [^37]. The journal Hadarat al-Islam, No. 2, p. 2. [^38]. Masadir al-tashri`, p. 7. [^39]. Irshad al-fuhul, p. 250. [^40]. Kifayat al-'usul, vol. 2, p. 422. [^41]. Al-Risalah, p. 477. [^42]. Ibid., p. 504. [^43].Tamhid-e ta'rikh-e falsafeh-ye Islami, p. 138.