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Ijtihad and The Development of Islamic Legal Theory Posted June 15, 2009 Filed under: Usul al-Fiqh | 1. Introduction: Ijtihad played an important role in the development of Islamic legal theory. However there is a speculation that the gate of Ijtihad has been closed at around the fourth Islamic century. The aim of this essay is to discuss the concept of Ijtihad in the development of the Islamic legal theory. It will also analyze the ‘so-called’ notion of closing the gate of Ijtihad. Before going to the discussion, it will not be out of place to give here a brief introduction of the concept of Ijtihad. 2. Introduction to Ijtihad: The Arabic word Ijtihad is derived from the morpheme ‘juhud’ which means ‘expending of maximum effort in the performance of an act’ (Nyazyy, 2000:263). In Islamic jurisprudence Ijtihad means ‘expending of effort in order to extract the ahkam (rules) of the Shariah from its sources through research’ [1](Abdur Rahim,2003:140). There are numerous types of Ijtihad from different points of view, but in general as it is mentioned by Abdur Rahim, there are three types of Ijtihad such as, 1st: to extract the rules of the cases which do not have any explicitly proved rules from the text. The objectives of this kind of Ijtihad are to understand the evidence of the Shariah, to prefer one meaning of the evidence over others of that, if there is a contradiction between two or more evidences, preferring one of those over others or reconciling those. 2nd: trying to find out the rules of those cases which do not have rules in the texts or there is no Ijma occurred on those cases. This could be done by understanding the indications of Shariah and the indications of the Lawgiver, which He uses in order to let us understand the Shariah, and then applying this understanding to those cases. In other words it could be done through the process of qiyas, istihsan, etc. This kind of Ijtihad is called judgment based Ijtihad (اجتهاد بالرأي (. 3rd: where it is impossible to find out rules through the process of qiyas or istihsan, trying to find out the rule by making harmony with the proposition (تصرفات) of Shariah there. This Ijtihad is more general and wider than qias, because this Ijtihad is applicable to the cases which have rule in the text (implicit or explicit) as well as to the cases which are not mentioned directly of indirectly in the text. This kind of Ijtihad is called maslaha based Ijtihad (اجتهاد بالمصلحة). (2003:141) This is the broad concept of Ijtihad. However, generally the term Ijtihad is used to mean Ijtihad bil ray and Ijtihad bil maslaha. Often both these types are also categorized as Ijtihad bil ray. In this essay we will use the term Ijtihad in its broad sense and we will use the term Ijtihad bil ray to mean both Ijtihad bil ray and Ijtihad bil maslaha. Some time we may also use ‘Ijtihad in its broad sense’ or ‘Ijtihad in its narrow sense’ instead of those two terms. 3. Role of Ijtihad in the development of Islamic legal theory. 3.1. Early notion of Islamic legal theory and the concept of Ijtihad: At the time of the Prophet (SAW) the only source of the The Quran by nature is implicit. It does not provide details of each and every individual case, rather it describes general principles, examples etc. the prophet used to explain and implement those principles and general rules in individual cases, that is Sunnah of the prophet, in that sense the Sunnah is the explanation of the Quran, though as it is mentioned earlier that explanation was also directed by the God. Although as it is mentioned earlier that the only source of law at that time was revelation, but some time the Prophet practiced Ijtihad in its narrow sense in the absence of reveled rule(s) as the Prophet says, ‘when I do not receive a revelation I adjudicate among you on the basis of my opinion’ (Abu Dawud,1984:1017)[3]. However, the difference of that Ijtihad with ordinary Ijtihad bil ray is that whenever, he mistook, a verse would be revealed in order to inform him the correct decision. For instance, ones the Prophet was asked by a woman about the rule of dhihar (ظهار ([4]. The Prophet answered her “I don’t think that the rule is different from that of divorce”. Then Allah revealed verses regarding the hukum of dhihar, which was not similar to divorce and then the hukum of dhihar had been corrected. The companion of the prophet used to do Ijtihad at that time also. When the Prophet was not available or when the Prophet sent them to some where, they use to do Ijtihad in the absence of explicit Quranic verse or Sunnah of the Prophet. They use to interpret the verses of the Quran and the Sunnah of the Prophet as well as in cases of completely new issues they use to do Ijtihad on the basis of the principles of Shariah[5]. The advantage of them was if they mistook they could correct themselves by asking the Prophet or Allah would revealed the correct rule(s). Therefore, Shariah was very much based on the revelation at that time, i.e. either Allah would reveal the hukum of a certain mas’ala or He would approve the decision(s) of the Prophet and his companions or He would disapproved and correct their decision(s). Hence, despite the fact that the practice of Ijtihad was started from that time, but it did not get the status of a source of Islamic legal theory then. 3.2. Development of Islamic legal theory and the concept of Ijtihad: After the death of the Prophet, the gate of revelation has been closed for ever. Therefore, in order to deal with new problems[6], the companions of the prophet used to depend on the Ijtihad. However, it did not substitute the Quran and Sunna at all, rather whenever they faced a new phenomenon regarding which they did not know any Quranic verse or Sunnah of the Prophet, they used to ask the other companions whether they knew any Hadith of the prophet concerning that. They used to do Ijtihad in the absence of the revealed rule and whenever they found any Hadith regarding that case they use to abandon their Ijtihad and followed that Hadith. Because of the quick expansion of the Muslim world in first century, a huge number of people embraced Islam. A number of the companions of the Prophet migrated to different places in order to teach the new Muslims the science of Islam. People gathered around them to learn Islam. Through their teaching they created groups of scholars. Those groups were the producers of the different schools of thought (Madhabs). Two distinctive trends of thought emerged at that time,
namely Ahl al-ray and Ahl al-hadith. The trend of Ahl al-ray can be traced back
to the second caliph ‘Umar and a renowned companion Abdullah ibn Mas’ud,
whereas the trend of Ahl al-hadith can be traced back from two renowned
companions and scholars Zaid Bin Thabit and Abdullah Bin ‘Umar (Abdur
Rahim,2003:55). Ahl al-ray are those who depend on personal opinion (Ijtihad
bil ray) in order to solve the problems and analyze the ahkam of Shariah and
extract the major causes (علة) of those in order to draw out
those to new phenomenas. Ahl al-hadith are those who depend on only authentic
evidences. There strategy is to express exactly what is in the authentic
narrations. They do not involve in causation of the Ahkam of Shariah and extend
those to new phenomenas. Nevertheless, the more the Muslims faced new problems
the more the former trend became prominent, because of their wide practice of
Ijtihad they could solve the new phenomenas better than 3.4. Institutionalization of Islamic legal theory and the role of Ijtihad in it: The last companion of the Prophet died in the end of the first hizra. Around that time the process of institutionalization and compilation of Islamic jurisprudence started (Rahim,2003:58). The notion of madhhad -school of thought- emerged at that time in different places. Although there were countless madhhabs, but, apart from four madhhabs others are not existed now a day. We will discuss here the development of those four madhhabs along with the Ahl al-hadith trend and the concept of Ijtihad in those[7]. 3.4.1. The Maliki School of thought: The Maliki madhhab is based on the jurisprudence of Imam Malik (93-179). He lived in Madina. His magnum work Al-Muwatta is the core book of that school of thought, where he gathered hadiths of the prophet as well as fatawas of some companions of the Prophet and that of Tabis and his own ijtihads. The method of his jurisprudence which is the method of maliki madhhab as well is that, in order to find out the hukum of a certain issue he first used to look in the Quran, if it is not available in the Quran then he used to look it in the Sunnah of the Prophet. Similarly if the Quran describes the principle or indirect hukum of the issue he also used to search the Sunnah in order to find out the details of that. He used to consider the practice of ahl-madina as Mutawatir hadith.[8] If he did not find the solution in the Quran or in Hadith he would refer to the general consensus of the companions who were known as faqih, if there were no general consensus regarding that matter then he would follow the individual opinions of the companions or would do qias. If it was an abstract matter where there is no room for Ijtihad bil ray then he would follow the opinion of a companion, else he would prefer Ijtihad bil ray. (Rahim,2003:67,68) The notion of Ijtihad in the jurisprudence of Imam Malik was in broad sense, very similar to the early notion of Ijtihad, i.e. the Quran is the first priority in extracting the hokum of a given case, then the Sunnah, but considering the opinions of Sahabas as the third source and considering practices of Ahl al Madinah as Mutawatir are two distinguishable characteristics of Maliki jurisprudence[9]. As far as the Ijtihad bil ray is concern like the early jurists Imam Malik significantly applied that in the absence of the explicit text, different types of Ijtihad bil ray can recognize in his discourse such as method of al-istihsan, al-istishab, al-masaleh, al-dharae etc. (Rahim,2003:68). Imam Malik particularly emphasized on al-istihsan since he said that istihsan represents nine tenth of the knowledge(الاستحسان تسعة أعشار العلم). (Kamali,1991:248) 3.4.2. Hanafi school of thought: Hanafi school of thought is based on the jurisprudence of Imam Abu Hanifa[10]. The usul of Imam Abu Hanifa as he describes, which is narrated by Al-Baghdadi(1931:368), Al-Makki(h.1321:89), Al-Zahabi(h.1366:20) was as follow: “If I find any hukum in the Quran, I confined myself with that. If I do not find that there, I accept Sunnah of the Prophet which has come to me through authentic narrators. When I do not find that in the Quran and in the Sunnah, I follow the opinion of the companions meaning their general consensuses. In case of their disagreement with each other I accept or abandon which ever I want, but I do not prefer others opinion over theirs’. In case of the opinion of others, I have the right of Ijtihad as well as they have”. As-Sa’rani mentioned in his ‘Kitab al-Mizan’ that ones the Caliph Al-Mansur wrote to Abu Hanifa, ‘I have hard that you prefer Qias over Hadith’. Abu Hanifa answered that he at first followed the Quran, then the Sunnah, then the verdicts of Abu Bakr, ‘Umar, ‘Uthman and ‘Ali. In case of their difference of opinion he did ‘Qias’.(1925:61) Imam Abu Hanifa established a ‘Private Legislature’ in order to solve judicial problems. In other words he institutionalized the practice of Ijtihad by establishing a fatawa council[11]. Al-Makki mentioned that, that body has solved eighty three thousand judicial problems which included contemporary issues as well as probable issues, those encompasses international affairs, constitutional, civil, criminal, business and witness law, judicial system etc. (h.1321:136). That combined Ijtihad is the base of the Hanafi school of thought. Imam Abu Yousuf and Imam Muhammad, the two students of Imam
Abu Hanifa, contributed most in the establishment of this school of thought.
Imam Abu Yousuf was appointed as the chief justice of the Abbasid Caliphate.
Because of that the Dehlovi argues that both Imam Muhammad and Abu Yousuf were independent mujtahid. They had their own ijtihads which often contradicted with Imam Abu Hanifa. However the reasons of considering them as Hanafi jurists are as Dehlovi mentioned, There is a common thing in their discourses that is all of them followed the jurisprudence of Ibrahim Nakhyee. In Mabsut and Jamiul Kabir books their fatawas are compiled together. (Dehlovi,1971:19) The Hanafi concept of Ijtihad in broad sense is very similar to that of Maliki Jurisprudence, i.e. the Quran is the first priority in extracting the hukum of a given case, then the Sunnah, then the opinions of the companions and in case of their difference of opinion or new issues doing Ijtihad bil ray. However, there are some differences between their methodologies such as, As Dehlovi (1971) mentioned that they developed their fiqh on the basis of different sources, i.e. Imam malik took the Hadiths and Athar from famous seven jurists of Madina namely Sayd ibn Musayyeb, Urwa ibn Jubair, Qasim ibn Muhammad, Abu Bakr ibn Abd al-Rahman al-makhjumi, kharija ibn Jaid ibn Thabith, Ubaidullah ibn Abdullah, Sulaiman ibn Yasar, whereas, Hanafi jurists took the Hadiths and Athars from the channel of Abdullah ibn Masud. Imam Malik considered practices of Ahl al-Madinah as Khabr Mutawatir, whereas Hanafi jurists did not considered it as a source of law. Because of the comparatively small collection of Hadiths and Athars, Hanafi Jurists mostly depended on Ijtihad bil ray, whereas, because of vast collecting of Hadiths and Athars and because of consideration of the practice of Ahl al-Madinah as Khabr mutawatir the scope of practicing Ijtihad bil ray was limited. 3.4.3. Imam Al-Shafi emerged during the period of the compilation of the above mentioned two school of thought’s jurisprudence(Dehlovi,1971:19). He is credited as the inventor of Usul al fiqh. However, Kamali argues that the Usul al-fiqh was existed before but until the time of Al-Shafi it was not in a form of science (1991:3,4). Imam Al-Shafi authored a book regarding the principles and rules of jurisprudence namely Al-Risalah, which is considered as the first book on Usul al-fiqh (Kamali,1991:3,4). The motivations which prompted Al-Shafi to introduce the usul al-fiqh are some inconsistencies which he observed in the discourses of his predecessors. He mentioned those in the beginning of his book kitabul Umm. In brief those are as followed: He observed that Maliki and Hanafi schools of thought accepted mursal and munkati traditions. Therefore, there are some shortcomings appear in their discourses. Most of those traditions are baseless, even some of those are contradictory with authentic traditions. Thus Imam Al-Shafi denied accepting unconditionally any mursal tradition. He observed that his predecessors did not set any consistent rule for reconciliation of apparently contradictory evidences following of which might secure Ijtihad from errors[13]. Therefore, Imam Al-Shafi gave particular attention on that subject in his work. He saw that some authentic Hadiths were not known to the Tabein jurists, therefore, their Ijtihad often contradicted with authentic Hadiths. However, even when the later jurists came to know the authentic hadiths which is contradictory with the fatawas of early jurists, they did not abandon the fatawas of their predecessors, arguing that those traditions are contradictory with their Madhhab, there must be some shortcomings of those for that those were rejected by their predecessors. In response of that, Al-Shafi argues that we should follow the principles of our predecessors rather than blindly imitating them. Their principle was whenever they faced a new issue they used to looking for traditions regarding that, if they did not find any tradition then they would accept other kinds of sources and logics. However, they never closed the gate of accepting Hadiths for them, rather if they came to know any Hadith which contradicts their Ijtihad bil ray, they used to abandon that and follow the Hadith. Therefore, Al-Shafi argues that unless they explicitly describe shortcomings of a Hadith it would not be fare to assume that they did not accept that because of some faults of that. During the time of Shafi almost all statements of Shahabis (Athars) was compiled. He observed that those are vastly self contradictory. He analyzed those and found that a large number of those are contradictory with authentic traditions. The reason of that is those traditions were unknown to them. He farther observed that in that situation the early jurists used to abandon the athars and follow the authentic Hadith. Al-Shafi followed the same principle. He said that Shabis were human being and we are also human being. He observed that some jurists are mixing up ray with qias, whereas Shariah forbids ray and legitimizes qias. He says that he means by ray considering a corrupted or logic based speculation or assumption as the basis of a rule of Shariah and according to him qias is reasoning the hukum of an issue which exists in the text and on the basis of that settling the hukums of other issues. He completely rejected ray and says about istihsan, which is to him one kind of ray that who he do istihsan, wants to be lawgiver.[14] It is appear from the reform activity of Al-Shafi that the objective of that was to make the Ijtihad systematic and to demolish the tendency of unconditional imitation of the predecessors fatawas and hence to reopen and widen the scope of Ijtihad. Although, he excluded ray from the category of Ijtihad, specially he was critical about istihsan, and emphasized more on qias but he made the point clear that he is against ‘the following of ones personal whim and amounts to unjustified legislations’ (2000:236)[15]. Apart from that point there is not that much distinguishable difference between the principles of Al-Shafi and that of his predecessors. Nevertheless, as it is mentioned by Fazlur Rahman that unlike the early jurists who made a distinction between ilm namely the Quran and Sunnah, and fiqh or understanding of those primary sources, the later jurists mixed up fiqh with ilm(1979:103). In other words they started to consider fiqh of their predecessors as ilm. Al-Shafis put particular emphasis on that point and asserted that unlike ilm, fiqh or Ijtihad of men never guarantees the accurate hukum and hence it does not have the parallel status of ilm and it is not obligatory over anyone except who he considers that as a correct understanding (Ramadhan,1970:86). 3.4.4. Hanbali School of thought: Dehlovi argues that the Hanboli school of thought is a branch of Al-shafi school of thought in a sense that there is no such big difference between the usul of Shafi school of thought and that of Hanbalite(1971:55,56), although Imam Ahmad bin Hanbol is considered by some scholars[16] as traditionist (muhaddith) rather than a jurist. The distinguishable character of his usul is that unlike his predecessors, he emphasized more on knowing the traditions as a qualification of a mujtahid. He says that a mujtahid should know at least five hundred thousand traditions (Dehlovi,1971:31). 3.4.5. The trend of Ahl Al-Hadith: It is mentioned earlier that the trend of Ahl Al-Hadith
developed from the time of the companion of the Prophet. There were some
companions of the Prophet who were not in favor of doing Ijtihad bil ray. During
the era of tabin that trend farther developed particularly in the Madina
through Sayed Musayyeb, We stated earlier that although the Ahl Al-Hadith trend was against Ijtihad bil ray but they also did Ijtihad. They research the Hadiths in order to separate authentic Hadithes from fabricated Hadithes and developed the Hadith methodology so mach so that, as Dehlovi mentioned, the early jurists struggled to have only thousand authentic Hadithes, whereas some of the traditionists succeed to collect and authenticate more than hundred thousand Hadiths (). For instance, it is narrated by Imam Bukhari that after examining six hundred thousand traditions he compiled his book of Hadith. Imam Abu Dawd Sigistani narrated that he compiled his book of authentic traditions from five hundred thousand traditions(). There is no doubt about that examining the Hadith, i.e. whether its chain of narration is consistent or not, how reliable the narrators are, what is the quality of the Matan (text) and finally accepting or rejecting that, is one kind of Ijtihad. Therefore it could be argued that the trend of Ahl Al-Hadith was not against the Ijtihad itself rather there notion of Ijtihad was deferent from that of Ahl Al-Ray. Particular point of difference between them was about the Ijtihad bil ray. Ahl Al-Hadith school of thought was against that. The say of Abu Salama to Hasan Basri would farther assert this point, he told to Hasan Basri, do not solve the issues of Shariah by your personal opinion but give fatawa on the basis of the Quran and Sunnah (Dehlovi). 4. Does the door of Ijtihad ever been closed? There are two ways of practicing Shariah, either doing Ijtihad means practicing own understanding or doing taqlid means imitating or following that of someone else. Therefore, In order to judge the possibility of closing the gate of Ijtihad it is necessary to understand the hokum of taqlid. 4.1. Hukum of taqlid: Ibn Hazam says that according to the Qur’an and the general consensus of early scholars, taqlid is prohibited (haram). All Mujtahid Imams forbade their disciples to do taqlid. a tradition of the Prophet can be cited regarding that. Muslim narrates on the authority of ‘Adi bin Hatim that the Prophet says about the verse of the Quran, they (Jews) made their ‘Ulama their God instead of Allah (8:31), that they (Jews) did not worship their ‘Ulama rather when their ‘Ulama legitimized something they accepted that as legal and when they forbade that they also accepted that as forbidden. All Imams discouraged their student to imitate them. It is narrated in ‘Yaqut wa Jawahir’ that Imam Abu Hanifa says, ‘he, who does not know the evidences of my opinions, should not give legal opinion according to those’. Ones his student Imam Abu Yusuf was asked that why he deffared with Imam Abu Hanifa in numerous cases, he answered, ‘Imam Abu Hanifa definitely knew better than us, therefore we might not understand all of his opinions and giving fatawa on the basis of what we do not understand is not right’. Imam Malik says that apart from the Prophet there is no one else who’s opinion is completely accepted, i.e. all other’s opinions are partially accepted and partially rejected. Imam Al-Shafi ones told to Mujni, ‘do not blindly follow each and every opinion of mine, rather do Ijtihad also, because it is the matter of Din’. Imam Ahmad bin Hanbal says, ‘do not imitate me, not also Malik, Awjayee, Ibrahim Nakhyee and others, rather like them take ahkam from the Quran and Sunnah’. However, Dehlovi argues that the statement of Ibn Hajm is applicable for those who are qualified for doing Ijtihad even if in one issue. He farther added that there is no harm in if someone follows a Mujtahid because of his lack of knowledge in Shariah. However, if he hold the view that, that mujtahid can not do mistake, whatever he says is right and no matter how weak the position of that mujtahid is from the point of view of evidence or no matter how strong the opposite opinions are, confining with that mujtahid, then that is not only prohibited but also, according to Dehlovi, very similar to the position of Jews regarding their ‘Ulama, which is apparently contradictory with the main principle of Islam namely tawhid and similar to Shirk, as it is mentioned in above mentioned Hadith. 4.2. Continuation of Ijtihad: From above discussion it is clear that all jurist agreed that Ijtihad is obligatory at lest for those who are qualified for that. Nawi in his book ‘Sharh al Muhazzab’ mentioned that Ijtihad is fard kifaya meaning if the Muslim of any era neglect or discontinue the practice of that then all of them would be guilty for that. In other words there must be a group of mujtahid in every age, who will carry on the practice of Ijtihad. The same view is expressed by Al-Mawardy in his book ‘Al-Hawi’, Al-Bagbi in his book ‘Al-Tahzib’, Ruyani in his book ‘Al-Bahar’, Dehlovi in his book ‘Al-Raddu Ala Man Akhlada Ilal Ardi Wa Jahala Annal Ijtihada Fi kulli Asrin Fardun’ ( refutation of those who tend towards the world and ignorant about the obligation of Ijtihad in every era). Shatibi in his book ‘Al- Muwafiqat fi Usul Al Shariah’ describes four types of Ijtihad from the point of view the importance of continuity of it. 1st: identification of general anchor point: in this type, the rule is already established. The function of the mujtahid is to identify the anchor point of law in general terms in a given case. Shatibi illustrates this point by an example of the ruling that requires a witness to be ‘adle (just). The general and broad meanings of ‘adl are known, but to determine the characteristics and qualifications on the basis of which a witness can be typically described as ‘adle is matter of Ijtihad. There are two levels of inquiry here, first, to define the characteristics of ‘adl and the second, to verify whether the witness in question possesses those characteristics. The first level belongs to this type. 2nd: identification of particular anchor point: this type of Ijtihad focuses on identification of the persons, acts or facts in a given case that correspond with these characteristics, e.g. the term faqir covers a wide range of persons as its referents. To define faqir with particular reference to a specific point of law is identification of general anchor point, because the inquiry is still general. However, to identify a particular person whether he answers that definition is called identification of specific anchor point. 3rd: distinguishing between two anchor points: this type concerns those cases where the proper qualification of the ruling is mentioned in the text but in conjunction with another matter; the task of separating and distinguishing this qualification is done by this type of Ijtihad. 4th: locating the anchor point: this type refers to the text of a ruling where the anchor point(s) is/are not mentioned. The anchor point(s) is/are found through the process of deduction. This method is also called reasoning by analogy (Ijtihad al-qiyasi). Shatibi argues that first two types of Ijtihad are ever continuing. The discontinuity of those would cause the application and extension of the rules of the Shariah impossible and hence Shariah would become a set of non-practicing principles which would only exist in books. As far as the last two types of Ijtihad are concerns according to Shatibi the continuity of those depends on the situation and need of those (p. 64-76). In the discussion of continuation of Ijtihad Dehlovi divided mujtahids into three categories such as mjtihad mutlaq mustaqil, mujtahid mutlaq muntasib, mujtahid muqyyad Dehlovi, (1971:51-54). Mujtahid mutlaq mustaqil is that mujtahid who fulfills following three conditions, 1st: he set the maxims (qawaid) and principles (usul) of extracting ahkam from the sources, 2nd: he has to have a reach collection of hadiths and athars, 3rd: he would able to solve the masael of his time on the basis of his method of Ijtihad. mujtahid mutlaq muntasib is that mujtahid who follows a mujtahid mutlaq mustaqil in above mention 1st condition. However, he has the rest of the characteristics of mujtahid mutlaq mustaqil, i.e. he contributes independently in those two fields. mujtahid muqayyad or mujtahid fil madhhab is the one who follows a mujtahid mutlaq mustaqil in above mentioned first two conditions and contribute separately in the third condition. In other words he extracts (istinbat) ahkams by following the rules and principles of a mujtahid mutlaq mustaqil and relies on the collections of him (Dehlovi, 1971:51-54). Dehlovi argues that the door of becoming a mujtahid mutlaq mustaqil closed forever after the fourth century of hizrah (Dehlovi, 1971:46)[19], but the door of Ijtihad mutlaq muntasib and Ijtihad fil madhab is open and will open until the day of Qiyamah. In other words, door of inventing or setting new usul of practicing Ijtihad is closed but practicing Ijtihad on the basis of a well established usul is open. It must not be stopped in any age because as it is mentioned earlier it is fard kifaya. Dehlovi’s view of closing the gate of setting new usul is based on his argument that all jurist agreed about the following of the usuls of mujtahid (mustaqil) Imams namely usuls of four madhhabs (Dehlovi, 1971:45). In other word there is a tacit general consensus occurred on that. However, there are some other opinions regarding that. Some argue that usuls of Imams are also one kind of Ijtihad and like other ijtihads it is also a human product therefore it is not unchangeable and obligatory to follow. Conclusion: In conclusion, it can be argued that Ijtihad played an important role in the development of Islamic legal theory. It appears from the essay that some of the school of thought emerged as a reaction against taqlid or blind imitation of predecessors and the objective of them was to reopen and widen the gate of Ijtihad. Al-Shafi’s reform activity and emergence of neo-Ahl al hadith trend[20] are examples of that. The practice of Ijtihad started by the Prophet and his companions and it is still continuing and as Shatibi mentions discontinuation of it would make the Shariah a set of non-practicing principles which would only exist in books. Nonetheless, the debate regarding the scope of it meaning possibility of completely independent Ijtihad, i.e. setting a new usul and practicing Ijtihad on the basis of that is irrelevant here. If we accept even the argument of Dehlovi that the gate of reforming a well established usul or the possibility of setting a new usul is closed for ever, it would not close the gate of Ijtihad since, usul is not actually the subject matter of Ijtihad itself, rather it is the methodology of Ijtihad which objective ‘is to regulate Ijtihad and to guide the jurist in his effort (Ijtihad) at deducing the law from its sources’ (Kamali,1991:3). By Ustadh Muhammad Nazibur Rahman -------------------------------------------------------------------------------- [1] بذل الجهد في استنبات الأحكام من أدلتها بالنظر المؤدي إليها [2] [3] There are two schools of thought regarding the Ijtihad of the Prophet. The majority holds the view that the Prophet practiced Ijtihad as he was allowed to do so, whereas some Hanbali, Shafi scholars, Ibn Hazm Zahiri hold the view that the Quran provides clear evidence in chapter 53, verse n.3 that every speech of the Prophet partakes from wahy (Kamali,1991:381). We would argue in this essay that both of them are right in their own argument. As the evidences shows, there is no doubt that the Prophet practiced Ijtihad. However, as we argued in the main section that the Ijtihad of him was different from that of others meaning if he did mistake Allah would correct him by revealing an ayah as we would showed in the essay. Therefore, it would not be wrong to say that the ijtihads of the Prophet is either approved by the God or corrected by Him and thereby have the status of reveled ordinance. [4] [5] The famous example of that is the tradition of Muadh Ibn Jabal. That is when he was appointed by the Prophet as a judge in Yamane. On the eve of his departure to assume his office there, the Prophet asked him: ‘according to what shall you judge?’ He replied: ‘according to the Book of God.’ The Prophet asked him again: if you do not find that in the Book?’ he replied: ‘according to the Sunnah of the Prophet of the God.’ The Prophet asked him again: ‘and if you do not find it even in the Sunnah?’ he replied: then I will judge by my own opinion (أجتهد برأيي).’ Then the Prophet said, ‘praise be to God, who has guide the messenger of his prophet to that which pleases His messenger.’(Musa,1957:18) [6] Because of the quick expansion of the Islamic state after the death of the prophet (saw), the companions of the Prophet faced a number of new problems. [7] The reason behind choosing those madhabs is that the discussion and controversy around Ijtihad is mostly among those. [8] [9] In fact every school of thought preferred the opinions of Sahabas over other opinions. The reason of considering the opinion of the Sahabas as a source is probably because they knew the proposition of the Shariah better than the later generations because of their closeness of the Prophet. There are also numerous traditions regarding their higher position. Nevertheless, the practice of Ahl al-Madinah is a unique source of Maliki Jurisprudence which is not recognized by other schools of thought. [10] Although, Dehlovi argues that Imam Abu Hanifa along with his two students Abu Yusuf and Muhammad strictly followed the usul of Ibrahim Nakhi who was a follower of Abdullah ibn Masud, but the fact is that this school of thought is ascribed to Imam Abu Hanifa and his jurisprudence (1971:18). [11] He says about the members of that council, ‘they are thirty six, among them twenty two have the quality of being judge, six of them are qualified for giving legal opinion (fatwa) and two of them have that high qualification that they can produce judge and mufti’(Al-Makki, h.1321:246). [12] Imam Muhammad also authored and compiled most of the core
books of [13] example [14] taken from Dehlovi, 1971, pp.20-23. [15] Nyazee argues that the dispute is around the literal meaning of the word istihsan rather than its technical meaning since many of hukum deducted through the process of that are similar to the fatawas of Shafi(2000:236). [16] Al-Tabari describes him as Muhaddith and denied to categorize him as a jurist (Mawdudi,2001:256). [17] [18] According to Dehlovi the new usul was as follows, if there is a Quranic verse regarding a give issue, it is not allowed to deduce hokum from other sources. If the verse of the Quran indicates numbers of meaning then it should be determined by an well established Hadith. In case of those issues for which there is no Quranic verse, they follow the authentic Hadiths of the prophet, regardless from which source those are narrated or whether those are practiced by the early Muslims or not. If the hokum is not even found in Hadiths then they follow the Athars means opinions of the companions without distinguishing between them on the basis of region, rather they distinguish between them on the basis of piety. If that is not even found in Athars then they solve that on the basis of general proposition (تصرفات)of Shariah. [19] Ibn Silah in his book ‘Kitab Al-Fatawa’ and Nawi in his book ‘Sharh al-Tahjib’ expressed the same view. [20] By the term neo-Ahl- hadith trend we mean the trend which engages in fiqh on the basis of the ‘new usul’ as it is described in this essay. http://maqasid.wordpress.com/2009/06/15/ijtihad-and-the-development-of-islamic-legal-theory/ |
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