Ijtihad

Posted on 04/03/2012 by marina

IJTIHAD اجتهاد
Lit. “Exertion.” The logical deduction on a legal or theological question by a Mujtahid or learned and enlightened doctors, as distinguished from Ijma’, which is the collective opinion of a council of divines.
This method of attaining to a certain degree of authority in searching into the principles of jurisprudence is sanction by the Tradition: –
“The Prophet wished to send a man named Mu’az to al-Yaman to receive some money collected for alms, which he was then to distribute to the poor. On appointing him he said: ‘O Mu’az, by what rule will you act?’ He replied, ‘By the Law of the Qur’an.’ ‘But if you find no direction therein?’ ‘Then I will act according to the Sunnah of the Prophet.’ ‘ but what if that fails?’ ‘Then I will make an Ijtidhad, and act on that.’ The Prophet raised his hands and said, ‘Praise be to God who guides the messenger of His Prophet in what He pleases.’”
The growth of this system of divinity is traced by a Sunni writer, Mirza Qasim Beg, Professor in the University of St. Petersburg (extract from which are given in Sell’s Faith of Islam), as follows: –
1. God, the only legislator, has shown the way of felicity to the people whom He has chosen, and in order to enable them to walk in that way He has shown to them the precepts which are found partly in the eternal Qur’an, and partly in the sayings of the Prophet transmitted to posterity by the Companions and preserved in the Sunnah. That way is called the Sharia’ah (law). The rules thereof are called Ahkam (commandments).
2. The Qur’an and the Sunnah, which since their manifestation are the primitive sources of the orders of the Law, form two branches of study, viz. ‘Ilm-i-Tafsir, or the interpretation of the Qur’an, and ‘Ilm-i-Hadi, or the study of Tradition.
3. All the orders of the Law have regard either to the actions (Din), or to the belief (Iman) of the faithful (Mukallif).
4. As the Qur’an and the Sunnah are the principal sources from whence the precepts of the Sahri’ah have been drawn, so the rules recognized as the principal elements of actual jurisprudence are the subject of ‘Ilm-i-Fiqh, or the science of Law.
Fiqh in its root signifies “conception, comprehension.” Thus Muhammad prayed for Ibn Mas’ud: “May God make him comprehend (Faqqaha-hu), and make him know the interpretation of the Qur’an.” Muhammad in his quality of Judge and chief of the Believers decided, without appeal or contradiction, all affairs of the people. His sayings served as a guide to the Companions. After the death of the Prophet the first Khalifahs acted on the authority of the Traditions, meanwhile the Qur’an and the Sunnah, the principal elements of religion and legislation, became little by little the subject of controversy. It was then that men applied themselves vigorously to the task of learning by heart the Qur’an and Traditions, and then that jurisprudence became a separate science. No science had as yet been systematically taught, and the early Musalmans did not possess books which would serve for such teaching. A change soon, however, took place. In the year in which the great jurisconsult of Syria died (A.H. 80), Nu’man ibn Sabit, surnamed Abu Hanifah, was born. He is the most celebrated of the founder of the schools of jurisprudence, a science which ranks first in all Muslim seats of learning. Until that time and for thirty years later the learned doctors had all their knowledge by heart, and those who possessed good memories were highly esteemed. Many of them knew by heart the whole Qur’an with the comments made on it by the Prophet and by the Companions; they also knew the Traditions and their explanations, and all the commands which proceed from the Qur’an and the Sunnah. Such men enjoyed the right of Mujtahidun. They transmitted their knowledge to their scholars orally. It was not till towards the middle of the second century of the Hijrah that treatises on the different branches of the Law were written, after which six schools (Mazhabs) of jurisprudence were formed. The founders (all Imams of the first class) were Abu Hanifah, the Imamu ‘l-A’zam or greatest Imam (A.H. 150), Sufyan as-Sauri (A.H. 161), Malik (A.H. 179), ash-Shagi’i (A.H. 204), Ibn Hanbal (A.H. 241), and the Imam Dawud az-Zahiri (A.H. 270). The two sects founded by as-Sauri and az-Zahiri became extinct in the eighth century of the Hijrah. The other four still remain. These men venerated one another. The younger ones speak with great respect of the elder. Thus ash-Shafi’i says: “No one in the world was so well versed in jurisprudence as Abu Hanifah was, and he who has read neither his works nor those of his disciples knows nothing of jurisprudence.” Ibn Hanbal, when sick, wore a shirt which had belonged to ash-Shafi’i, in order that he might be cured of his malady; but all this did not prevent them starting schools of their own, for the right of Ijtihad is granted to those who are real Mujtahidun.
There are three degrees of Ijtihad:
1. Ijtihad f i’sh-Shar’, absolute independence in legislation.
2. Ijtihad f i ‘l-Mazhab, authority in the judicial systems founded by the Mujtahidun of the first class.
3. Ijtihad f i’l-Masa il, authority in cases which have not been decided by the authors of the four systems of jurisprudence.
The first is called a complete and absolute authority, the second relative, the third special.

(1.) Ijtihad f i ‘sh-Shar’
Absolute independence in legislation is the gift of God. He to whom it is given when seeking to discover the meaning of the Divine Law is not bound to follow any other teacher. He can use his own judgment. This gift was bestowed on the jurisconsults of the first, and to some of the second and third centuries. The Companions, however, who were closely connected with the Prophet, having transmitted immediately to their posterity the treasure of legislation, are looked upon as Mujtahidun of much higher authority than those of the second and third centuries. Thus Abu Hanifah says: “That which comes to us from the Companions is on our head and eyes (i.e. to be received with respect); as to that which comes from the Tabi’un, they are men and we are men.”
Since the time of the Tabi’un this degree of Mujtahid has only been conferred on the six great Imams before mentioned. Theoretically any Muslim can attain to this degree, but it is one of the principles of jurisprudence that the confirmation of this rank is dependent on many conditions, and so no one now gains the honor. These conditions are: –
1. The knowledge of the Qur’an and all that is related to it; that is to say, a complete knowledge of Arabic literature, a profound acquaintance with the orders of the Qur’an and all they sub-divisions, their relationship to each other and their connection with the orders of the Sunnah. The candidate should know when and why each verse of the Qur’an was written, he should have a perfect acquaintance with the literal meaning of the words, the speciality or generality of each clause, the abrogating and abrogated sentences. He should be able to make clear the meaning of the “obscure” passages (Mutashabih), to discriminate between the literal and the allegorical, the universal and the particular.
2. He must know the Qur’an by heart with all the Traditions, or at least of three thousand of them.
3. He must have a perfect knowledge of the Traditions, or at least of three thousand of them.
He must know their source, history, object, and their connection with the laws of the Qur’an. He should know by heart the most important Traditions.
4. A pious and austere life.
5. A profound knowledge of all the sciences of the Law.
Should anyone now aspire to such a degree another condition would be added, viz.:-
6. A complete knowledge of the four schools of jurisprudence.
The obstacles, then, are almost insurmountable. On the one hand, there is the severity of the ‘Ulama’, which requires from the candidate things almost impossible; on the other, there is the attachment of the ‘Ulama’ to their own Imams, for should such a man arise no one is bound not to listen to him. The Imam Ibn Hanbal said: “Draw your knowledge from whence the Imams drew theirs, and do not content yourself with following others, for that is certainly blindness of sight.” Thus the schools of the four Imams remain intact after a thousand years have passed, and so the ‘Ulama’ recognize since the time of these Imams no Mujtahid of the first degree. Ibn Hanbal was the last.
The rights of the man who attained to this degree were very important. He was not bound to be a disciple of another , he was a mediator between the Law and his followers, for whom he established a system of legislation, without anyone having the right to make any objection. He had the right to explain the Qur’an, the Sunnah, and the Ijma’, according as he understood them. He used the Prophet’s words, whilst his disciples only used his. Should a disciple find some discrepancy between a decision of his own Imam and the Qur’an or Traditions, he must abide by the decision of the Imam. The Law does not permit him to interpret after his own fashion. When once the disciple has entered the sect of one Imam he cannot leave it an join another. He loses the right of private judgment, for only a Mujtahid of the first class can dispute the decisions of one of the Imams. Theoretically, such Mujtahidun may still arise; but, as we have already shown, practically they do not.

(2.) Ijtihad f i’l-Mazhab.
This degree has been granted to the immediate disciples of the great Imams who have elaborated the systems of their masters. They enjoyed the special consideration of the contemporary ‘Ulama’, and of their respective Imams who in some cases have allowed them to retain their own opinion. The most famous of these men are the two disciples of Abu Hanifah, Abu Yusuf, and Muhammad ibn al-Hasan. In a secondary matter their opinion carries great weight. It is laid down as a rule that a Muftu may follow the unanimous opinion of these two even when it goes against that of Abu Hanifah.

(3.) Ijtihad f i’l-Masa’il
This is the degree of special independence. The candidates for it should have a perfect knowledge of all the branches of jurisprudence according to the four schools of the Arabic language and literature. They can solve case which come before them, giving reasons for their judgment, or decide on cases which have not been settled by previous Muhtahidun; but in either case their decisions must always be in absolute accordance with the opinions of the Mujtahidun of the first and second classes, and with the principles which guided them. Many of these men attained great celebrity during their lifetime, but to most of them this rank is not accorded till after their death. Since their Imam Qazi Khan died (A.H. 592), no one has been recognized by the Sunnis as a Mujtahid even of the third class.
There are three other inferior classes of jurist, called Muqallidun, or followers of the Mujtahidun; but all that the highest in rank amongst them can do is to explain obscure passages in the writings of the older juriconsults. By some of the ‘Ulama’, they are considered to be equal to the Mujtahiun of the third class. If there are several conflicting legal opinions on any point, they can select one opinion on which to base their decision. This a mere Qazi cannot do. In such a case he would have to refer to these men or to their writings for guidance. They seem to have written commentaries on the legal systems without originating anything new. The author of the Hidayah, who lived at the end of the sixth century, was a Muqallid.

Based on Hughes, Dictionary of Islam