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

Section 2 : the Holy Qur'an As the First Source of Ijtihad

The Holy Qur'an as the First Source of Ijtihad

Jurisprudents of the various Islamic sects have expressed different views concerning the sources of ijtihad. Before these are examined in detail, their brief description will be in order.

1. The first view pertains to the majority of Imamiyyah jurispru­dents of the Ja'fari school. They maintain that the Book, the Sunnah, ijma ` (consensus), and `aql (reason) constitute the sources of ijtihad.

2. However, some, like the Akhbaris, who follow Mulla Muhammad Amin al-'Astarabadi (d. 1033/1623) accept only the Sunnah as the source for derivation of ahkam.

3. Some, like the jurisprudents of the Hanafi school, regard the Book, the mutawatir Sunnah, statements of the Companions, the Com­panions' consensus, qiyas, istihsan and ‘urf (custom) as the sources of ijtihad - as mentioned by Abu Zuhrah in his Ta'rikh al-madhahib al- 'arba`ah.

4. Some others, like the `ulama' of the Maliki school, followers of Malik ibn Anas al-'Asbahi, believe these sources to be the Book, the Sunnah, consensus of the jurists of Madinah, masalih mursalah (a kind of qiyas), such statements of the Companions as are not based on ray, and qiyas mansus al-illah. This is according to Dr. Subhi Mahmasani, in his book entitled Falsafat al-tashri` Al al-'Islam.

5. Another group, like the Shafi'i jurisprudents, followers of Muhammad ibn Idris al-Shafi'i, regard the Book,the Sunnah, ijma`, and qiyas mustanbat al-illah as the sources of ijtihad. This too has been men­tioned in Falsafat al-tashri` fi al- Islam.

6. According to some others, like the `ulama' of the Hanbali school, followers of Ahmad ibn Hanbal al-Shaybani, the sources of ijtihad are: the Book, the Sunnah and the fatwas of the Sahabah when these do not contradict the Book and the Sunnah - even mursal and daif traditions.

7. Some others, like the `ulama' of the Zahiri school, followers of Dawud ibn 'All al-Zahiri al-Isfahani, restrict themselves to the Book, the Sunnah, and ijma `. Furthermore, they see no scope for ijma ` after the era of the Caliphs. In the words of the second leader of this school, Ibn Hazm al-'Andalusi al-Zahiri, anyone who claims ijma` on questions arising after the period of the Caliphs makes a false statement.

It is notable that whatever has been mentioned above on the subject are not the only viewpoints; there are many others as well. For example, Ustadh Mubammad al-Dawalibi in his book al-Madkhal ila `ilm usul al-fiqh, describes the sources for inference of ahkam as: (1) the Book, (2) the Sunnah, (3) ijma` and (4) ijtihad. This view has been accepted by Muhammad Rashid Rida, the renowned author of al-Wahy al-Muhammadi. Furthermore, according to that which has been ascribed to Malik ibn Anas al-'Asbahi the sources of ijtihad comprise: (1) the Book (2) the Sunnah (3) ijma` (4) qiyas, (5) istihsan (6) the principle of istislah, (7) al-madhhab al-Sahabi, (8) sadd al-dhara’i (9) fath 'al-dhara’i, (10) qanun al-salaf, (11) istishab, (12) istiqra' (13) bara'ah asliyyah, (14) `urf, (15) istidlal, etc.

However, we will confine ourselves to the above views, proceeding to examine the impact of these different views of ijtihad and legal deduction.

It is evident that the theoretical differences about the sources of ijtihad should lead the jurisprudents, in the process of legal deduction vis-a-vis new problems and developments, to adopt different courses resulting in divergent fatawa. Hence we find different schools of thought in the history of jurisprudence and ijtihad.

However, of the many schools of thought, only five came to be officially recognized, namely, the Ja'fari, the Hanafi, the Maliki, the Shafi'i, and the Hanbali. With the passage of time the others have been abandoned and forgotten.

The Sources of Ijtihad:

We will now discuss and examine the sources of ijtihad, one by one, in order to gain a better acquaintance with the basic sources for inferring and deducing the ahkam. As indicated earlier in our discussion, the very first source of ijtihad is the Book. Accordingly, the subject of discussion in this article will be the Qur'an, held in common accord by jurisprudents of all schools of thought in Islam (including, besides the well-known five, the Zahiri, Jariri, Tamimi, Nakh`i, Awza’i, Thawri, Laythi, Kalbi, and other schools now extinct) as the primary source of reference for identifying the ahkam of the Shari'ah.

If any occasional difference among the schools of thought is dis­cernible concerning the Qur'an, it relates to opinions concerning the interpretation of the verses, and other problems like naskh (abrogation), tahr'if, the criteria of amr and nahy, `amm, mutlaq, etc. However, this procedural aspect does not affect the purpose of our present discussion. The Holy Qur'an represents the primary source of Divine laws and, as such, the Book has precedence over the other sources to be consulted for obtaining the ahkam of the Shari'ah. The Qur'an has been, and will remain - in addition to being the comprehensive source of Divine laws - the criterion for judging traditions and ahadith.

It is on this very basis that from the time of the Holy Prophet (S) till now and for ever, the Book remains the primary source of reference for Islamic jurisprudents. The history of jurisprudence and ijtihad testifies to this fact. However, when this basic source is examined from the standpoint of ijtihad and legal deduction, certain noteworthy issues arise. It is invariably essential to pay due attention to such matters as fiqh al-Qur'an (juristic study of the Qur'an), the determination of the Qur'anic verses having a bearing on legal deduction, the determination of the muhkamat and the mutash­abihdt, the problem of restriction (takhsis) of the general import (`amm) of the verses by khabar al-wahid, the legitimacy of interpreting the Qur'an in the light of khabar al-wahid, etc. These are issues that simply cannot be ignored. Their effect on the derivation of ahkam from the Qur'an, too, cannot be overlooked.

An Overview of the Ayat al 'Ahkam:

A significant number of Qur'anic verses constitute ayat al-'ahkam (legally relevant verses). These verses have been, and are, the basis for deriving ahkam. Their number totals approximately five hundred. These were gradually revealed on various occasions during the years following the Prophet's Hijrah. Accordingly, the ayat al-'ahkam are to be sought in the Madani verses. The ayat al-'ahkam lay down the Islamic laws and rules concerning social, penal and economic matters. In contrast, the Makkan verses mostly describe and prescribe doctrinal and ethical principles.

Over the centuries, the great Islamic jurisprudents have painstak­ingly carried out continuous research concerning the ayat al-'ahkam, and in the course of their deductive endeavour have discovered many points of juristic and scientific interest. Many of the results of their efforts are now available to us.

Initial Research Concerning the Ayat al-Ahkam:

To know when and by whom the first investigation into the ayat al-'ahkam was conducted is essential for familiarity with the history and development of ijtihad. Although there is no consensus in this regard, it is worthwhile that we recall what some scholars have opined in this connection. 1. `Allamah Sayyid Hasan al-Sadr, in his esteemed work Ta'sis al. Shi'ah li al-`ulum al-'Islamiyyah (p. 321), writes that the first book con­cerning ayat al- ahkam was written by Muhammad ibn Sa'ib al-Kalbi (d. 146/763). This view has been endorsed by Ibn al-Nadim in his al-­Fihrist (p. 57), wherein he writes: "Al-Kalbi's Kitab ahkam al-Quran has been narrated by `Abbas ...."

2. According to some the first research in this regard was conducted by Muhammad ibn Idris al-Shafi'i (d. 204/819), the founder of the Shafi`i school. `Allamah Jalal al-Din `Abd al-Rahman al-Suyuti (d.911/ 1505) in his Kitab al- awa'il accepts this, and writes: "Al-'Imam al-­Shafi'i was the first writer on the subject of ayat al-'ahkam."

3. According to Tabaqat al-nuhat, some scholars are of the view that the first to write on ahkam al-Qur’an was `Allamah al-Qasim ibn Asbagh ibn Muhammad al-Bayyati al-Qurtubi al-'Andalusi (304/916).

Among the aforementioned claims, the one in regard to the great Shi'i scholar Muhammad ibn Sa'ib al-Kalbi has greater validity, since his time precedes that of al-Shafi'i and al-Qasim ibn Asbagh al-Bayyati. That which has been claimed by al-Suyuti appears to signify his inten­tion to mention the first Sunni writer on ayat al- ahkam. . From among the Sunni `ulama', 'Ali ibn Mush al-Qummi (d. 305/ 917) from the Hanafi school, Abu Ishaq Isma'il ibn Ishaq (d. 282/895) from the Maliki, and Abu Ya`la Kabir (d. 458/1066) from the Hanbali, appear to be the first researchers in this field.

The Works on Qur'anic Fiqh:

For acquainting ourselves further with the historical background of the subject under discussion, it seems appropriate that we list the important writings on ayat al- ahkam by `ulama' of Islam.

A. Shi’i Works on Fiqh al-Qur an:

1. Ayat al- ahkam by Muhammad ibn Sa'ib al-Kalbi (d. 146/763). Be­sides this book, he had written a complete tafsir of the Qur’an.

2. Tafsir al-khamsimi'at ayah fl al-'ahkam, by Muqatil ibn Sulayman al-Khurashni al-Balkhi (d. 150/767).

3. Tafsir ayat al- ahkam, by Hisham ibn Muhammad ibn Sa'ib al-Kalbi al-Kufi (d. 204 or 206/819 or 821).

4. Ahkam al- ahkam, by `Abbad ibn al-`Abbas al-Taliqani (d. 385/995).

5. Sharh ayat al-'ahkam, by Isma'il ibn `Abbad (d. 385/995).

6. Al-Ibanah `an ma’ani al-qira at, by Makki ibn Abi Talib al-Qaysi (d. 437/1045).

7. Fiqh al-Qur'an fi ayat al-'ahkam, by Qutb al-Din al-Rawandi (d. 573/ 1177).

8. Tafsir ayat al- ahkam, by Muhammad ibn al-Husayn al-Bayhaqi al-­Nishaburi (d.c. 576/1180).

9. Al-Nihayah fi tafsir al-khamsimi'at ayah fi al-'ahkam, by Ahmad ibn `Abd Allah Mutawwaj al-Bahrayni (dc. 771/1369).

10. Kanz al-`irfan fi fiqh al-Qur’an, by Fadil Miqdad ibn `Abd Allah al ­Suyuri al-'Asadi al-Hilli (d. 826/1423). This book has been trans­lated into Persian.

11. Minhaj al-hidayah fi tafsir ayat al-ahkam, by Ahmad ibn `Abd Allah, known as Ibn al-Mutawwaj (d.c. 836/1432).

12. Ayat al-'ahkam, by Nasir ibn Jamal al-Din (d.c. 860/1456).

13. Ma`arfal-sa'ul wa madarij al-ma'mul fi tafsir ayat al- ahkam, by al­ Hasan ibn Shams al-Din al-'Astarabadi (d.c. 900/1494).

14. Ayat al- ahkam, by `Ali ibn Muhammad al-Shahaftiki (?) al-Mash­hadi (d.907/1501).

15. Tafsir shahi fi ayat al-'ahkam, by Abu al-Fath ibn Amir al-Husayni (d. 986/1578). This book has been written in Persian.

16. Zubdat al-bayan fi sharh ayat ahkam al-Qur'an and Tafsir ayat ahkam al-Qur'an, by Ahmad ibn Muhammad, known as al-Muq­addas al-'Ardabili (d. 993/1585).

17. Ayat al-'ahkam by Muhammad ibn 'Ali al-Husayni al-Mar`ashi (d. during the reign of Shah Tahmhsib I).

18. Ayat al-'ahkam, by Muhammad ibn 'Ali al-'Astarabadi (d. 1026/ 1617).

19. Tafsir ayat al-'ahkam, by Rafi` al-Din Muhammad Husayn al­ Mar'ashi (d. 1034/1625).

20. Tafsir shahi fi sharh ayat al- ahkam, by Muhammad Yazdi, known as Shah Qadi (d.c. 1040/1630).

21. Masalik al-'ifham fi tafsir ayat al-'ahkam, by Fadil Jawad al-Kazimi (d. mid 11th century).

22. Fath abwab al jinan fi tafsir ayat ahkam al-Quran by Muhammad ibn Husayn al-`Amili (d.c. 1080/1669).

23. Mafatih al-'ihkam fi sharh ayat al- ahkam al-Qur'aniyyah, by Muh­ammad Said ibn Siraj al-Din al-Tabataba’i (d. 1092/1681). This book represents an exposition of Zubdat al-bayan by al-Muqaddas al-'Ardabili

24. Inas al-mu'minin bi iqtibas `ulum al-Din `an al-nibras al-mujiz al ­mubin fi tafsir al-'ayat al-Quraniyyat al-lati hiya al- ahkam al-'asliy­yah- wa al-far`iyyah, compiled by Muhammad ibn `Ali al-Musawi al-`Amili (d. 1139/1726).

25. Tahsil al-itminan fi sharh Zubdat al-bayan fi tafsir ayat al-'ahkam min al-Qur'an, by Muhammad Ibrahim, known as Mir Ibrahim al­-Husayni al-Tabrizi (d. 1149/1736).

26. Qalayid al-durar fi ayat al- ahkam bi al-'athar, by Ahmad ibn Isma’il al-Jaza'iri (d. 1150 or 1151/1737 or 1738).

27. Dala'il al-maram fi tafsir ayat al-ahkam, by Muhammad Ja'far ibn Sayf al-Din al-'Astarabadi, known as Shari'atmadar (d. 1263/ 1847).

28. Al- Wajiz Al tafsir ayat al-'ahkam, by `Abd al-Husayn ibn Ibrahim al-Makhzumi (d. 1279/1862).

29. Nathr al-duraral-'aytam fl sharh ayat al-'ahkam and al-Durar al-'aytam fi Tafsir ayat al-'ahkam, by `All ibn ja'far al-'Astarabadi (d. 1315/1897).

30. Muwaddih al-'ahkam fi sharhiha, by Muhammad ibn Fadl Allah al-Musawi al-Sarawi (Pahne Kolayi) (d. 1342/1923).

31. Miqlad al-rashad fi sharh Ayat al-'ahkam, by Muhammad Mahdi al­Banabi al-Maraghehi (d.c. 1345/1926).

32. Ayat al- ahkam, by Muhammad Baqir ibn Muhammad Hasan Qayini (d. 1352/1933).

Of course, there are many other books and treatises written by Shi'i scholars that have been omitted from the above list, which repre­sents only a selection.

B. Zaydi Works on Fiqh al-Qur an:

Some `ulama' among the Zaydis who have acquired well-deserved fame have compiled books on ayat al- ahkam. Following are some of their works:

1. Sharh ayat al- ahkam, by Yahya ibn Hamzah al-Yamani (d. 749/1348).

2. Ayat al- ahkam, by Ahmad ibn Yahya al-Yamani (San'a') (d. 840/ 1436), not printed.

3. Sharh ayat al- ahkam; by Muhammad ibn Yahya Sa'di al-Yamani (d. 957/1550).

4. Ayat al- ahkam, by Husayn al-`Amri al-Yamani (d.c. 1380/1960).

5. Sharh Ayat al- ahkam, by Yahya ibn Muhammad al-Hasani, not printed.

C. Hanafi Works on Fiqh al-Qur an:

Among the Hanafi `ulama', too, several have attained fame as contributors to the development of fiqh al-Qur'an. Some of their works are noted below:

1. Ahkam al-Qur an, by 'Ali ibn Hajar Sa'di al-Maruzi al-Khurasani (d. 244/858)

2. Ayat al- ahkam, compiled by 'Ali ibn Musa (d. 305/917). He be­longed to Qumm, and was the leader of Hanafis in his time.

3. Ahkam al-Qur'an, by Ahmad ibn Muhammad al-'Azdi al-Tahawi al-­Misri (d. 370/933).

4. Sharh ahkam al-Qur'an, compiled by Ahmad ibn `Ali al-Razi, known as al-Jassas (d. 370/980).

5. Mukhtasar ahkam al-Qur’an by Makki ibn Abi Talib al-Qaysi al-Qayr­awani (d. 437/1045).

6. Anwar al-Qur'an fl ahkam al-Qur'an, by Muhammad Kafi ibn Hasan al-Basandi al-'Iqhisari (?) (d. 1025/1616).

7. Anwar al-Qur'an fi ahkam al-Qur'an, by Muhammad Shams al-Din al­-Harawi al-Bukhari (d. 1109/1697), apparently not printed.

8. Ahkam al-Qur'an, by Isma'il Haqqi (d. 1127/1715).

9. Madarik al-'ahkam and Anwar al-Qur'an by `Abd Allah al-Balkhi (d. -1189/1775), not printed.

10. Ayahkam al-Quran by `Abd Allah al-Husayni al-Hindi (d. 1270/ 1853).

11. Nayl al-murad min tafsir ayat al-'ahkam, by Muhammad Siddiq al-­Bukhari (d. 1307/1889).

D. Maliki Works on Fiqh al-Qur'an:

Several among the Maliki `ulama', as well, have been noted for their substantial research and contributions to fiqh al-Qur'an. Some of these are noted below:

1. Ahkam al-Qur’an, by Abmad ibn Mu'dhal (d. 240/854).

2. Ahkam al-Qur'an, by Muhammad ibn `Abd Allah, known as Ibn al­Hakam (d. 268/881).

3. Ayat al-'ahkam, by Isma'iI ibn Ishaq al-'Azdi (d. 282/895).

4. Ayat al- ahkam, by al-Qasim ibn Asbagh al-Qurtubi al-'Andalusi (d. 304/916).

5. Ahkam al-Qur'an, by Muhammad ibn Ahmad al-Tamimi (d. 305/917).

6. Ahkam al-Qur’an, by Musa ibn `Abd al-Rahman, known as Qattan (d. 306/918).

7. Ahkam al-Qur'an, by Muhammad ibn al-Qasim, known as Ibn al­-Qurtubi (d. 355/966).

8. Ahkam al-Qur’an, by Ahmad ibn `Ali, known as al-Baghati (d. 401/1010).

9. Ayat al-'ahkam, by Muhammad ibn `Abd Allah al-Andalusi, known as Ibn al-`Arabi (d. 542 or 543/1147 or 1148).

10. Ahkam al-Qur'an, by `Abd al-Mun'im ibn Muhammad al-'Andalusi al-Gharnati (d. 597/1200).

11. Ayat al- ahkam, by Yahya ibn Sa'dun al-'Azdi al-'Andalusi (d. 670/ 1271).

12. Jami ` ahkam al-Qur’an al-mubin, by Muhammad ibn Ahmad al­'AnsAri al-Khazraji(d. 671/1272).

Of course, there are other Maliki works on the subject besides those mentioned.