IJTIHAD

(Ijtihad is the process practised by a jurisprudent to discover

secondary divine legislation (laws) regarding the organizing of human

life and his diverse relations or endeavouring to discover and deduce

the Islamic laws and regulations from their sources like the laws

concerning worship, possession, business, property, judiciary, politics

and family affairs...etc.)

Ijtihad is a learning (knowing) process and  has a important,

progressive and civil role in the life of an individual and the

society altogether with the state. It also participate in developing

the civil life and opening the legislative prospects before it.

Without the process of Ijtihad, many human activities are difficult

to develop in the sphere of an Islamic life.

Human society is a developing entity. Human actions, relationships and

activities are ever-increasing and ever-expanding. Many things are

invented that were non-existent before. Banks, insurance companies,

radio and television and the other discoveries are new phenomena which

are to be used correctly and in harmony with Islamic teachings. If

there are no fuqaha'(jurisprudents), how could codes and regulations

concerning such institutions be derived at?

This process of Ijtihad is responsible for  catering to all the needs

of the human society and which provides answers to all  questions

which may arise in this field. Without the process of Ijtihad, a

faithful Muslim will find himself in a dilemma.

The First Attitude:  To petrify, solidify and isolate every new

development  in life because he has no knowledge concerning his

legal responsibility or duty and the ambiguity of such special

legislative laws concerning new affairs in human life..

The Second Attitude: To dissolute from any legal responsibility

or obligation and  dissolve absolutely in a non-Islamic civilization

and principles; to take laws and concepts and specify situations and

behaviour by depending on non-Islamic civilizations, principles and

ideologies.

In both cases, the attitude will be a tragedy

against the  dynamic goals of Islam and to stop the spread of  the

ever-lasting Divine Legislation.

Besides these two attitudes, another attitude which is more dangerous

than the two,  the idea that Islam is incapable of establishing a

developed society and international entity for the Muslim nation and

puts obstacles in its path of progress, which in other words would

mean the absence of Divine Mercy and Kindness from the world of

mankind and to leave it in disorder and chaos. All these

are against the aims of Islam and which contradict the spirit of

Shari'ah and the principles of the ever-lasting Islamic Message as the

Holy Qur'an and the Prophetic sunnah.

The Most High says:

"...and We have revealed the Book to you explaining all things,  and  a

guidance and mercy and good news for  those who submit."

                                                    Holy Qur'an (16:89)

A holy tradition (hadith) says:

"Almighty Allah has revealed in the Qur'an the declaration of all

things. He has not left anything needed by His servants unexplained so

that no one would say: if (only) this has been revealed in the Qur'an. Yes

indeed He has revealed it."

Imam al-Sadiq (a.s.) describes the nature of the Islamic

message in these words:

"The Qur'an is certainly alive and does not die. It moves as

the night and the day, and as the sun and moon. Its teachings should

be obeyed by the last man on earth as it had been obeyed by the first

one."

By contemplating on these Islamic texts, one realizes that the Qur'an is

the origin of Islam; the source of its message; a vehicle for its laws,

principles and concepts and a torch which sends the rays of guidance

on the planet more brighter or serene than the sun and the moon.

But it is not in our capability nor any one else to understand (realize)

life perfectly through the Qur'an nor to discover the laws of life and the

Islamic laws from the treasures of this Book (the Qur'anic  verses are

treasuries, whenever a treasury is opened, you should look at it).9

This richness of laws and the large ideological wealth which the Qur'anic

verses contain need scientific efforts and an ideological declaration

capable of drawing from  this inexhaustible spring and meet the future

needs from  these unfathomable treasuries.

It is natural, that to comprehend the deepness of the

Qur'an with its legal proof is not clear nor specified in every

situation and affair and it is not in the capacity of a jurisprudent

(Faqih or Mujtahid i.e. a person who is an expert in Islamic

jurisprudence (fiqh); he is also called faqih. He has a particular

power and religious authority and significance) to take this responsibility in the first grade.

But it was the task of the Minister of Revelation (Prophet

Muhammad (s.a.w.) to comprehend and expound the spirit of the Book;

to interpret its meanings and to formulate its laws and practical

legislation in life under Divine Guidance.

Thus the relation between the two - the Book and the sunnah - looks

like a great extent the relation between a constitution and a law.

The constitution makes clear the essential origin of legislation and

prescription of law. For instance, the clause speaks of the right to

own property, but it is the law-maker clarifies its details, and drafts

the laws necessary for practical execution of this constitutional

article and declaration of its details.

In like manner, the task of the Prophetic traditions (sunnah) is to

translate the contents of the Qur'an and formulate them as  practical

laws for life.

For more details, it is worth mentioning that the sunnah is not a Prophetic

judgement for formulating the Qur'anic spirit and  explaining its contents

through laws as the case in the relation between the constitution and law.

The sunnah is a Divine revelation and instruction both in its meaning and

contents save that its literary pronunciation and form is said by the Messenger

of Allah (s.a.w.) himself.

For example, the Holy Qur'an ascribes (determines) that the paying of the

poor-dues (zakat) is obligatory but without clarifying its amounts  or quantities

nor the things on which it should be paid. But it is the Prophetic

Tradition (sunnah) which looks after it by explaining it in detail.

This explanation and detail has come through the utterance and

practise of the Noble Messenger and his human normal speech.

In order to continue the advantageous role of the sunnah, Allah

willed that it should have leaders (Imams) after the Prophet who

represent the conscious side and comprehend the spirit of the Qur'an

and its contents in accordance with the Prophet's practice.

Therefore, the Imams of the Prophet's infallible Household, the

Ahlul-Bait (peace be upon them all) represent the blessed path of

guidance for the ummah. After them comes the role of the Jurisprudents

(mujtahid or faqah) who undertake the task of judgement by

reasoning in the light of the Qur'an and the sunnah to meet the

changing needs of the human society. Thus, the dynamism of

Ijtihad which is wide open till our present day, was necessary to

expand the horizons of the Shari'ah and to enrich the human society

with concepts and laws which are necessary for organizing  the

progress of mankind.

Therefore, Ijtihad is necessary (wajib kifa'I i.e.An action which remains obligatory upon the Muslims as long as it remains unfulfilled, but if some individuals carried it out, other Muslims are absolved from the responsibility, like the profession of medicine, judiciary, agriculture, bidding for what is

right and bathing the corpse and praying for him...etc) and  there should at

least be a Mujtahid, in every age and era, to whom Muslims refer and

upon whom they depend for understanding the Shari'ah and discovering

its  laws.

Islam has two main sources:

 

It is only in the light of these two sources that laws should be

made. The tragedy of Muslims, is, certain persons took fallible

sources besides these two, and on the basis of their cohims and

personal opinions (giyas) imposed themselves on unsuspecting and

simple-minded Muslims as Imams or leaders of schools of Jurisprudence.

Later on, the ruling Abbasid Caliphs, who were total strangers to

Islam and its teachings arbitrarily sanctioned the legitimacy   of

four self-contradictory schools of jurisprudence  on the Muslims,

ruling that the door of Ijtihad was closed.

But in Islamic Shari'ah, it is not necessary to accept these sources

(the sources of qiyas and the like to which certains Mujtahids  and

depend other than the Book and the Sunnah) except what tallies  with

the spirit of the Book and the sunnah. However, the followers of the

schools of the Prophet's Ahlul-Bait, have always stayed clear of these

innovations and kept the dynamism of Ijtihad open on the basis of the

Book and sunnah. Therefore, it is the duty of a rightly guided

mujtahid or faqih cancel in all periods any of these sources which

contradict the Book and the Sunnah or hold no water before a

scientific justification.

 

How does the Jurisprudent (faqih) practise the Process of Extrapolation:

Most Muslims are ignorant with the meaning of Ijtihad and some even believe

that the process of Ijtihad is related to a certain class of religious men

(scholars) because of their religious position as is the case with

the post of a pope in a church. Some also think that all laws of

jurisprudence and legal opinions are only personal views of a faqih

(jurisprudent) who decides and appreciates laws according to his  own

judgements or justifies the events  and accidents and an answer for

certain considerations at random.

Certainly this kind of understanding represents the ignorance with Islamic law

(Shari'ah), Jurisprudence  and Ijtihad.

In Islam, both Jurisprudence (fiqh) and Ijtihad have no relation with any

personal opinion or qiyas.

Ijtihad  is a complete scientific practice as defined before and has own

its sources, proofs, principles, methods and precisions like all other fields

of science and human knowledge such as logics, physics, mathematics...etc.

As the logician, physicist and mathematician, in their respective

fields, cannot coin laws or devise formulas from themselves at random,

so does the true jurisprudent (faqih) who is also not able to draft or

frame any law from himself because the nature of Shari'ah and its

lawful and ideological structure (constitution) not only does not

allow him to do that but also stands against those who forge or

play with its laws.

Thus, any law  which lacks proofs and principles from the Book and

the sunnah and contradicts these scientific regulations is not an

Islamic law, but is simply the low desire of that law maker against

the spirit of the Shari'ah in order to deceive simple people.

 

Why do the Mujtahids differ at times?

Many people wonder why it is that the mujtahids differ at times in their

fatwas, when the basis of their Ijtihad are the same. It should

be observed that difference in scientific opinions is not to be

taken as a sign of a substantial defect in the quest for knowledge. It

is rather, a sign that knowledge moves in progressive steps towards

perfection. Differences of opinions are to be found in all sciences,

not just in fiqh. There may, for example, be more that one

opinion about the therapy for a particular patient's ailment, and all

of these opinions   may be superseded later on by the development of

new methods of dealing with that malady. Thus, this difference can be

seen  in the light of difference between scientists and should be regarded

as stages to be passed in its route to perfection.

It should be remembered that the mujtahid formulates his opinions after

pushing his research and study as far as he can; that is all that is

expected of him, for he is neither  infallible nor the knower of the unseen.

The most important and dangerous question which remains unanswered is

that why do the mujtahids differ among themselves in their religious

opinions concerning an issue while there is one Shari'ah and its laws

are one? Or why do the mujtahids' religious opinions differ concerning

one subject?

To answer the question, we should differentiate between the two cases: the

case in which the differences are founded on sound bases and lawful

practice.

The second case is that the differences are made out of extemporaneous Ijtihad

which does is not founded on a  sound base nor is scientific according

to the spirit of Shari'ah and its sources.

The first difference is a natural result of a sound scientific

reasoning and the mujtahids are excused for any short comings nor

could they be punished on the day of resurrection because their

intention was sincere. It is the second case or difference which is

neither Ijtihad nor Fiqh but it is a haphazard act against the spirit

of Shari'ah and its principles, and the person responsible and his

blind followers will be held responsible on the day of Resurrection.

The science of jurisprudence - as we explained - is similar to other

sciences and human knowledges. As each of these sciences has its

own rules, principles, the Islamic Shari'ah has its own principles and laws

too.

As the physicist,  in the previous example, tries to spend all his

scientific efforts to discover laws related to physics within the

framework of its nature, existence; or the logician who devotes all

his efforts to discover the laws of thinking according to its intellectual

basis, and it is not for them to coin laws of their own on mere fancy;

so does a mujtahid (faqih), who has no ability or right to make laws and

principles in a haphazard manner, and then try to legitimatize them. If

anyone has dared to do this, then his laws should scientifically

analyzed on the basis of the Qur'an and the sunnah.

The same idea is applied to a physicist and logician who sometimes makes

a mistake in discovering scientific laws and rules and that this wrong

discovery does not represent the true law of physics and logics but it

represents the understanding of a scientist who made a mistake in  identifying

the law. The case is the same concerning the faqih who may sometimes

make a mistake while practising the act of deriving Islamic laws from

their original sources - the Book and the sunnah - but his mistake is not

done blindly and at random but due to  his insufficiency or inadequacy in

his scientific tools or his self capacity which causes him to be unable in

deriving legal law as it is formulated in the world of law and a divine

Shari'ah.

This is the reason why the faqih is excused when he makes a mistake

in  arriving at the right law.

The main differences, whether being among the mujtahids of various Islamic

schools of jurisprudence such as Hanafi, Shafi'i, Shi'ah, Maliki ...etc. or

among the mujtahids of one school, belong to the following reasons:

1- Linguistic difference concerning some texts of the Holy Qur'an and

Prophetic traditions due to the difference in grammar, meaning or in reading

which leads to the difference in understanding and formulating laws. For

example, their difference in the following verse of ablution when the

Almighty Allah says:

"O you who believe, when you rise up for prayer, wash your faces, and your

hands up to the elbows, and wipe your heads, and (wash) your feet up to the

ankles. And if your under an obligation, then wash (yourselves)..."

Holy Qur'an (5:6)

Whoever among the scholars considers the word `feet' grammatically is joined to

`faces', makes washing it obligatory and whoever considers the word

`feet' as joined to `heads' makes its wiping obligatory.

 

Or their difference in the meaning of `quru'' in the Almighty's saying:

"And the divorced women should keep themselves in waiting for three monthly

courses (quru');..."                                    Holy Qur'an (2:228)

Scholars (faqihs) differ among themselves concerning the linguistic meaning

of the word `quru''; some consider it as the period of cleanness (tuhur) while

others explain it as period of menstruation (haydh). Each of these two opinions depend

on their own linguistic interpretation or understanding because  the word

`quru'' in Arabic language is called for both the period of cleanness (tuhur)

and the period of menstruation (haydh).

In accordance with this linguistic difference, scholars differ among

themselves in waiting period of a divorced woman; is it three periods of

cleanness - after divorce - or is it three complete months because what is

meant by `quru'' is the period of menstruation (haydh)  because the word

`haydh' is a symbolic name for woman's monthly period by considering it as a

monthly period which occurs once every month.

Another example,  is their difference in reading the Almighty's saying `hata

yatharna'(until they have become clean)  in the

following verse:

"And they ask you about menstruation. Say it is a discomfort; therefore, keep

aloof from the women during the menstruation and do not go near them until they

have become clean; then when they have cleansed themselves, go in them  as

Allah has commanded you; Surely Allah loves those who turn much (to Him), and

He loves those who purify themselves."             Holy Qur'an (2:222)

Whoever reads the Arabic word `yathuna’ which means `they have become

clean' as stressed,  does not allow to make sexual intercourse with

women during the period of menstruation until they have become clean

(i.e. to take the ritual bath) but whoever reads it (yathurna)

without stress allows to make sexual intercourse with her

whenever cleanness is achieved (i.e. the stopping of blood).

Or their difference concerning whether the command denotes

(signifies) obligation or permission; whether a prohibition

indicates prohibition or reprehensibility; whether the word

denotes reality or figurative or their difference among the texts

like generalization, restriction, universality or specification...etc.

 

2. The difference concerning the meaning of a text (of the Book (Qur'an) and

the Prophet's sunnah). Indeed scholars may differ in their understanding the

signification of a text and its meaning like their difference in the following

saying of Allah, the Most High:

"Divorce may be (pronounced) twice; then keep  (them) in good fellowship or

let (them) go with kindness..."                         Holy Qur'an (2:229)

 

"So if he divorces her (the third time), she shall not be lawful to him

afterwards until she marries another husband. If he divorces her, there is no

blame on them both if they return to each other (by marriage),..."

Holy Qur'an (2:230)

Surely the reason of difference in understanding Allah's saying (divorce is

twice) is the appearance of jurisprudential laws based on personal

opinions, with some ruling prohibition of a wife to her husband if he

divorces her three times by simply saying that `you are divorced';

depending on his understanding of the above

mentioned verse (divorce is twice). At the third time, after passing a

greater separation, he has no right to marry her until she marries

another husband and if the new husband divorces her, then only the

first husband has the right to marry her after completion of her

monthly waiting period.

But another group explains the Almighty's saying (divorce is twice) that

divorce should be achieved practically but not simply orally in order that

a wife becomes forbidden to her husband. The Holy Qur'an does not

mean merely the repetition of word (verbal) but it means the

real occurrence of the permitted divorce in which the wife returns to

her husband's house twice. As a result, if a third  divorce occurs,

she becomes haram (forbidden) for him to remarry. For more explanation,

if the husband divorces his wife, he has the right to marry her again;

if she returns and he divorces her the second time, he also has the

right to take her back but if she returns and he divorces her for

the third time, she becomes haram for him to remarry unless all the

following conditions are fulfilled:

a. She permanently remarries another man.

b. The wife and her second husband have sexual intercourse.

c. The second husband either divorces her or dies.

d. She completes her waiting period (iddah) for the second husband.

3. The difference whether some laws are repealed or not, for example their

difference regarding the law of temporary marriage (mut'ah).

4. The difference caused by accepting or rejecting certain narrations or

traditions. Scholars after a thorough scientific analysis of chain of

transmitters, accept or reject a tradition, traditions which

contradict the Qur'anic concept or a proved Prophetic tradition, are

normally discarded as spurious. If the sources or the chain of

transmitters are sound and the wordings in conformity with the Qur'an

and the sunnah, then the tradition is as accepted as satisfactory.

5. The difference in considering the validity and invalidity of some

of these sources and how to make use of them, such as: analogy,

approbation, intellectual proofs, and consensus of opinions.

Some scholars depend on some of these sources in formulating laws

while others refuse to do so pointing out the drawbacks of these

sources.

Thus, this is the main reason behind the difference among the scholars

of Islamic schools and the followers of opinion. Therefore, it is

necessary to submit all disputed independent reasoning

opinions  among the Muslims to a thorough scientific criticism in

order to remove the clouds of personal fanaticism and

bigotry, and arrive at the ultimate truth keeping in the mind the aims

of Islamic Shari'ah in reforming and uniting the Muslim communities.

 

Necessary Conditions:

At the end of this research, it is useful to point out the main principles

which serve as necessary conditions in the process of juristic

reasoning (Ijtihad). Among them are the following:

1- Certainly, the Book (Qur'an) and the Prophet's tradition (sunnah) are two main sources in formulating Islamic laws.

2- No one has the right to give his own Ijtihad in any case whenever

there is a legal law in the Book of Allah and the Prophet's sunnah.

"...And whatever the Messenger gives you accept it, and whatever he

forbids you, abstain (therefrom);...)"           Holy Qur'an (59:7)

 

3- Only one  judgement for one subject falling under the same

circumstances and conditions, and which represents the pure legal opinion.

Therefore, in the process of juristic reasoning (Ijtihad), one should

distinguish between aim and its result. The aim is to arrive at the

truth and discover true law. i.e. one law for the same subject but

sometimes one finds the jurists having more than one law for the same

subject.

This does not mean the correctness of all ideas. Thus the truth of

formulating of law depends on the soundness of the juristic reasoning

or the system of Ijtihad and its sources. Therefore, not every source

or method  of reasoning is sound or has the capacity to formulate the

right law.

4- The laws discovered by the faqih are only estimated but not final

and should therefore be subjected to scientific discussion and strict legal

scrutiny.

5- As a result of the previous point, we should understand that the

process of juristic reasoning is a critical one in which discovered

opinion undergoes a thorough accurate criticism, and

evaluation in order to arrive at the correct law. No juristic

reasoning could be considered sound if it is not subjected to

criticism and scientific discussion.

6- Juristic reasoning should be pure and free from any fanaticism

or internal  and external factors such as political and sectarian

tendencies and should be capable of withstanding scientific analysis

and criticism. Therefore, Ijtihad is a scientific process based on

research and inquiry.