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

Section 3 : Factors Responsible For Emergence of the Practice of Ra'y

Factors Responsible for Emergence of the Practice of Ra'y

At the most sensitive juncture in the history of Islam when the Muhammadan Shari ah was in the course of expansion, the process of wahy (revelation) was terminated and with it the epoch of tashri` (legislation). The losing of the era of tashri’ and the demise of the Prophet (S) coincided with the emergence of diverse changes in the world of Islam. These changes were the result of the spread of Islam in new territories and alien soils, followed by new situations and problems each one of which required an answer.

The passage of time did not offer any solution to the problems; rather it added to their intricacy and their number as well. For, with time, sometimes even the problems that had received exposition during the period of tashri` were lost in the mazes of ambiguity arising from different narrations and riwayat (traditions), thus giving rise to new obstacles in the way of determining the laws (ahkam). At this point, while the Islamic Ummah had no access to wahyand had lost the biggest source towards which they looked for the solution of their problems, much greater problems cropped up, and this vacuum was felt more acutely than ever before. Two different outlooks emerged in order to confront this difficult situation in the newly-born Islamic society:

(a) The point of view that the authority for determining the Divine ahkam and expounding the Quranic meanings belonged to the House of the Prophet (S) after him, and that they alone, in accordance with the Prophet's express decree, should be referred to for solution of the problems and determination of the ahkam of the Almighty. Those who believed in this outlook did not face any insoluble problem in the wake of the cessation of wahy, as they knew well that their duty was to refer to the Ma`sumun (A). [^1]

(b) The view that there was no specified person after the Prophet to interpret and determine the Divine commandments. Its proponents maintained that the Book and the Sunnah of the Prophet (S) were the only sources from which the ahkam regarding the new legal issues could be derived.

Those who subscribed to this view-later to be known as "Ahl al­ Sunnah" turned to solve their problems by referring to the Quran and the Sunnah; but they soon realized that it is not at all an easy task to extract all the ahkam of the Shari'ah from express Quranic texts(nusus) and the Sunnah of the Prophet, and that they are not adequate to answer many of the new issues.

This led the Ahl al-Sunnah into finding other ways and sources of ijtihad and to put their trust in the practice of ray and personal judge­ment and to rely on such sources for basing legal conjectures as qiyas (analogy), istihsan, masalih mursalah, istislah, sadd al-dhara'i`, fath al­dhara'i; madhhab al-sahabi, shari`at al-salaf, `urf, istidlal and so on as hujjah (possessing legal validity).

This was a sketchy description of what we shall discuss in detail below.

The Factors Which Generated New, Contingent Issues

The emergence of new issues after the termination of the period of tashri` depended upon various factors:

  1. Natural and ordinary factors related to the day-to-day life of the Muslims.

  2. Exceptional or extraordinary factors, like wars.

  3. Islamic conquests and victories extended Islamic influence in Asia, Africa and some European regions, and, in this way, diverse cultural traditions stepped into the vast domain of Islam. On account of this, new requirements and needs were felt in the same proportion, and Islamic fiqh was bound to answer all of them, in addition to presenting appropriate ahkam which could suit different environmental and social conditions.

All these factors put strains on ijtihad and made deduction of the laws of Shari ah more difficult for the Sunni community. This caused the Ahl al-Ray-those who believed in the practice of ray- the Iraqi school of jurisprudence, whose founder was Abu Hanifah al-Nu'man ibn Thabit (80-150/699-767), and a large group of Sunni fuqaha' to reach the conclusion that the express texts (nusus) of the Quran and the Sunnah of the Prophet (S) alone, being limited, cannot provide an answer to the new issues and problems, while the issues of daily life are countless and ever-increasing. Accordingly, they were forced to rely on an ijtihad based on ray and other such conjectural instruments that were devised before him. This topic will be discussed in the article "Sayr-e ta'rikhi-ye qiyas dar manabi-ye ijtihad" (the Historical development of Qiyas as a Source of Ijtihad).

In the same period, the Shi'ah, who formed a section of the Islamic society, also encountered the new problems that faced the society. They also considered it essential to find solutions to the new problems. But due to their particular point of view, they never came across the above-mentioned strains when facing diverse situations, because, during the days of accessibility to an Imam (A) they went to him for solving their problems, and during the days when they could not find an access to him or during his occultation they could solve the problems of daily life by means of the usul and by using them in deriving the ahkam of the Shari'ah. They never felt the need for having recourse to ijtihad by ray and depending upon conjectural legal sources.

According to Ahl al-Sunnah, in instances where the nass of the Quran and the Sunnah was not available, the mujtahid can legislate laws by exerting his own personal judgement and ray and set them forth as divine laws. But according to the Shi'i point of view, in Islamic law a mujtahid has no right to legislate laws regarding new situations and issues, as there is no need for a mujtahid to resort to tashri` in presence of the general juristic principles which already exist.

Different Points of View Among Ahl al-Sunnah

It is essential to mention this point here that the practice of ray was not accepted by the Sunni community without any resistance, and the different Sunni sects were not uniform in this regard. The Ahl al-Hadith (the Hijaz school of fiqh), whose founder was Malik ibn Anas al-'Asbahi (93-179/711-795), were a section of the Sunni community who forbade every kind of ijtihad that crossed the limits of the Quran and the Sunnah. Others who held this outlook were the Hanbalis, the followers of Ahmad ibn Hanbal al-Shaybani (164-241/780-855), and the Zahiris, the followers of Da'ud ibn 'Ali al-'Isfahani, knownas Abu Sulayman Zahiri (200 or 202-270/815 or 817-883). In the beginning, however, Malik did not subscribe to this outlook and approved the practice of ray.

Ijtihad, as accepted by the Shi'ah, involves the application of certain essential and fundamental principles (usul) to secondary issues (furu`). This results in expansion of fiqh and the laws of Shari'ah in the sense of development and emergence of new instances and diversity of legal applications, and not through legislation of new laws.

But ijtihadin the Sunni sense implies tashri` or legislation of laws, which forms the part of the mujtahid's activity. In other words, in Sunni fiqh, ahkamor the laws of Shari'ah also expand along with the expansion and multiplication of the issues. The variety and number of the issues and applications and their external and objective diversity requires variety and diversity of the relevant ahkam. Many a time, the general laws that cover those applications are not to be found in the Book and the Sunnah, as if those ahkamhave no relationship with the wahy. Like laws and regulations formulated by non-Muslim nations of the world for their societies, they are also the product of the mind and intellect of human individuals. On account of this, it is not legitimate to acknowledge them as Divine commands and the laws of Islam. We shall discuss this matter in detail later in this article-in the critique of the Riwayahof Mu'adh. However, before that, we shall examine the arguments advanced by believers in the practice of ray and its support­ers.

Arguments in Defence of Ra'y and Their Refutation

The arguments extended by Sunni fuqaha' in favour of ijtihadby means of ray can be divided into two main parts:

(1) the arguments derived from the Quran, and (2) the arguments pro­duced from the tradition and Sunnah.

  1. The Arguments Based on the Quran

In order to prove the validity of the practice of ra’y, the fuqaha' of the Ahl al-Sunnah advance certain arguments from Quranic verses. Some of them are the following.

  1. Verily, We revealed unto thee the Book with the truth, that thou mayest judge between mankind by that which God showeth thee (araka, from the same root as ray) .... (4:105)

  2. Thus We explain the signs for people who think. (10:24)

  3. ....Thus We explain the signs for people who ratiocinate. (30:28)

Basing any argument upon these verses for proving the validity of the practice under discussion does not appear to be proper. As the first verse is particularly addressed to the Holy Prophet (S), it does not include anyone else. Moreover, the phrase (by that which God showeth thee) indicates that the Prophet (S) adjudicated among the people of his Ummah according to that which was revealed to him by God in the Holy Quran and not according to his own person­al judgement and ray. In fact this verse conveys something contrary to the aims of the believers in the practice of ray, as it acknowledges the presence of definite laws revealed to the Prophet (S) as the only criteri­on and standard. This issue has no relevance whatsoever to the validity of the practice of ray in ijtihad. As to the second and the third verses, they also are not concerned with the subject of the practice of ray. They specify the significance and value of thinking and reflecting about the Divine verses and the signs of God in creation, for such thought and reflection leads man to the knowledge of God, strengthens faith, and guides him to the cognition of the most fundamental of religious doctrines, which is the knowledge of God.

2. Arguments Based on the Tradition

(A) It is reported in the Musnad of Ahmad ibn Hanbal al-Shaybani (vo1.5,p.230) that the Prophet (S) while sending Mu’adh as a judge to Yaman asked him: "On what shall you base your judgements?" Mu'adh replied: "On the Book of God". The Prophet (S) asked: "But what if you don't find it there?" Mu’adh said: "(Then I will act) according to the Sunnah of the Apostle of Allah". The Prophet (S) again asked: "What if you don't find it there[ too]?" Mu’adh said: (I will exert my own ray). The Prophet (S) said: "Thanks to God who gave success to, His Messenger". This tradition sounds to be explicit in confirming the view that the Prophet (S) gave approval to ijtihad by means of exerting personal judgement and ray.

(b) `Umar in his letter to Abu Musa al-'Ash'ari, wrote:

Concentrate your understanding on that which goes on in your mind (i.e. something which is not to be found in the Book and the Sunnah of the Prophet) and draw an analogy between similar matters. Ibn Qayyim al-Jawzi has expounded this Riwayahin his book A'lam al-muqi`tn (vo1:1, pp. 373-385).

(c) In the Sahih of al-Bukhari (Bab ajr al-hakim, vol. 4, p. 178) it has been reported from `Amr ibn al-`As that the Prophet said that whenever a judge gives a verdict according to his ijtihad, he will be given two rewards if his judgement is right, and if it is not, he will be given one reward.

Muhammad ibn Muslim also has recorded this Riwayahin his Sahih (Kitab al-Aqdiyah, hadith No.150). Ibn Majah has recorded it in his Sunan (Bab al-hakim, hadith No.2314) and Ahmad ibn Hanbal al­Shaybani in his Musnad (vol.2,p.187).

(d) Dr. Mahmasani, in his book on the philosophy of legislation in Islam, quotes a tradition in which the Prophet (S) is reported to have said to Ibn Mas'ud:

Judge according to the Book and the Sunnah if you find (the judgement) in the two, but if you don't find it there exert your own ray.