USE OF IJTIHAD IN ADRESSING CONTEMPORARY ISLAMIC ISSUES

This project was completed by Bagudu Sherifatu, of the college of Law, University

of Abuja, in partial fulfillment of the requirements for the award of Bachelor of

Law LL. B. Degree.

ABSTRACT

Islam is the total submission to the will of Allah. Simply put Islam is a complete

way of life, which provides rules and regulations which govern the whole of

mankind throughout life. Although Islam covers the totality of mans actions or

deeds, there are issues which the sources of Islam does not particularly cover.

Ijtihad in Islam is thus a concept that has been in existence right from the times of

the Prophet Muhammed (S.A.W) to this day. The word ijtihad is derived from the

same root as jihad. It stands for individual intellectual effort to arrive at an answer

to a question that has no direct answer in the original sources of Islam which are

the Quran and the Hadith. It is the opposite of taqleed (blind following). The

concept of ijtihad emerged out of necessity in a highly eventful period when the

Muslim community was expanding rapidly into new lands and cultures. With

expansion, Islam’s ability to adapt to new environments was tested, and the

community of believers saw the need to develop and formalize methods of

adjusting Islamic regulations to various socio-cultural contexts. While the Qur’an

and Hadith (traditions of the Prophet and his companions) were grounded in a

fixed time, place, and socio-cultural milieu of seventh century Arabia, Islam’s

message and the law it brought was for every time and place. So, scholars sought

to penetrate the principles behind the thousands of rulings made in the time of the

Prophet and his successors in order to build a system of precedent-based law that

would provide a solid foundation for jurists in the future.

This work seeks to expose the meaning of ijtihad as well as its application by a

person so qualified (known as a Mujtahid). This work also gives account of the

closure of the gates of ijtihad in the 10th century and its subsequent effect on the

Muslim or Islamic community. It also gives details relating to issues to which

ijtihad can be applied in its resolution.

GLOSSARY

Ashab those who saw the prophet

Deen faith or religion

Fiqh Islamic jurisprudence

Hadith sayings of the Prophet (S.A.W)

Ijtihad independent reasoning

Jahada struggle
Jihad holy war

Madhabs schools of jurisprudence

Mujtahid person who applies ijtihad, Islamic scholar

Qiyas reasoning by analogy

Sahaba companions of the prophet of Islam (S.A.W)

Shariah law

Taqleed blind imitation

Ulama Islamic scholar

Ummah worldwide Muslim community

Dar-al-harb abode of war

Dar-al-Islam abode of peace

Kufr unbeliever

Ayatollah certified religious scholar

Ray personal opinion

Nass texts

CHAPTER ONE

1.1 INTRODUCTION
Ijtihad is an Islamic concept which literarily means reasoning or mental exertion.

Ijtihad is the process practiced by a Mujtahid (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, health, family affairs, etc. It is a supplementary

process of law making where there is a lacuna in Islamic law.

Islamic law in a word, Shariah is the sacred law of Islam. It is an all-embracing

body of religious rights and duties, the totality of Allah’s commands that regulates

all aspects of a Muslim’s life. The nature of Shariah has been variously conceived.

Is it divinely revealed or socially grounded, Positive or supernatural, Immutable or

adaptive?1 The answer varies from one school of thought to another. Shariah may

thus be defined in wider circles as a system of law which embraces in its orbit all

human actions. Islamic law is defined as a rule of law, the communication of

which is from Allah, the exalted, relating to the act of the subjects through a

demand or option or through a declaration2. Shariah may also be defined as the

express or divine provision of the holy Quran and the accepted Sunnah. Shariah is

usually defined by the Muslim scholars as “the body of those institutions which

1
J.N. Anderson, reflections on law, natural , divine and positive, lecture held 940 ordinary
meeting of Victoria institute at the Caxton hall, Westminster December 10th, 1956 p.14
2
Sadr al-sharia, ubayd-allah ibn mas’ud (1979) al-tawdih fil hall jawamid al-tanqih, Karachi,
vol.1, p.28
Allah has ordained in full or in essence to guide the individual in his relationship

with God, his fellow Muslims, his fellow men, the rest of the world and the rest of

the universe”3.

The original source of Islamic law emanates from the Hakim or the law giver, i.e.

Allah the almighty. In other words, Allah is the ultimate and the true source of all

the laws of Islam 4 . Most jurists have classified Islamic law into primary and

secondary sources. Primary sources are those agreed upon, transmitted, definitive

on the whole and those upon which further extension can be based. The primary

sources are the holy Quran, Sunnah, and ijma while the rest are secondary sources.

The secondary sources are mostly rational, disputed and dependent on the primary

sources for their content5. This thus means that the Shariah has guiding principles

to guide man throughout life. This notwithstanding does not mean that man is

restricted from using his intellect and applying principles blindly. Islam has on all

occasions exhorted its followers and all others to apply their intellect and reason. It

never advises its followers to accept its principles blindly. It is in this light that

ijtihad plays a very important role.

3
Ajijola, A.D (1999) what is Shariah hakda ajijola foundation publishers Kaduna, p.7
4
Nyazee, I.A.K. (2004), Islamic jurisprudence (usul al-Fiqh), Adam publishers and distributors.
New Delhi 2 (India), p.49.
5
Ibid pp 149-150.
The impact of Ijtihad can be felt especially when the sources of Shariah are silent

on issues. It is generally believed that Islam covers the totality of all man’s actions

from birth to death. Although this is true, there are however some issues that the

sources of Islam do not directly cover. For example condemnation of smoking was

not directly touched in the Quran. It was so held through analogical deductions

based on the various views as held by commentators of the Quran.6 This was seen

in the light that anything detrimental to our health is forbidden in Islam. 7 Another

example is that of getting intoxicated of which the taking of alcohol is prohibited.

There are however, other ways of getting intoxicated which could be by taking

narcotics such as marijuana, heroin, Cocaine, Indian hemp, etc. The importance of

ijtihad cannot be underrated. Ijtihad is also a means by which many contemporary

issues affecting Islam can be resolved. These issues range from financial, medical,

international, politics, economics, legislation, Islamic issues generally as well as

social issues amongst others.

6
Suratul Bakarah; Hukmul Islam ala dukhaan wal khamr
7
Sheik Abdulazzez bn Baaz, Hukmul Islam ala dukhaan wal khamr p.
There is also a concept closely related with ijtihad which is known as Taqleed. It

means blind following or imitation. Taqleed involves the blind following of

particular Madhabs.8 It applies only to matters of Shariah.

There were some historical reasons why Taqleed became the rule and ijtihad

became the exception. Some scholars went to the extent of saying that the doors of

ijtihad are closed. This was mainly because they thought that all the possible

questions that can be asked had already been answered and there was no scope for

any more questions that demanded ijtihad. It was this mentality that was

responsible for the stagnation of Muslim societies in most countries. It is however

to be noted that the doors of ijtihad are open but there are some barriers leading up

to it. If ever there were reasons to discourage ijtihad then, those reasons are not

valid any more, especially in the light of the recent fast-paced developments in all

areas of human life.

Taqleed is no longer the a viable option and on account of this, it may then be safe

to say that ijtihad plays the role of an evolutionary and dynamic force in legal

studies; which provides solutions to contingent issues of life and fulfils the needs

of changing times, and the requirements of new phenomena of human civilization.

8
Schools of thought. The most popular being; Hanafi School founded by Abu Hanifah
al-Nu'man ibn Thabit; Maliki School founded by Malik ibn Anas al-'Asbahi; Shafi'i School
founded by Muhammad ibn Idris al-Shafi'i; and Hanbali School Ahmad ibn Hanbal.
This is the reason for the enthusiasm of scholars and jurist alike for the application

of ijtihad in solving imminent Islamic issues.

It is in light of the foregoing that the study of the use of ijtihad in solving

contemporary Islamic issues has been undertaken in this work.

1.2 STATEMENT OF THE PROBLEM

Since about the 10th century CE9, the gates of ijtihad has been closed. This has thus

restricted the use of mental reasoning in a fast paced developing and technological

society or environment today.

The closure of the gates of ijtihad connotes the closure of reasoning. This

particular situation was brought about after the death of the four scholars10, where

it was decided that whatever problem was ever to arise had already been tackled by

these four scholars.

This however is not the situation as evolving issues in the world today are issues

which at the time these scholars were alive, were issues which had not even

9
Christian Era
10
The four scholars are those who founded the four famous schools of thought.
crossed the minds of man. Such issues include cloning, alternative conception such

as artificial insemination, amongst others.

The effect of the closure of the gates have caused stagnation in the Muslim world

as crucial issues which could have bridged the gaps between the ignorant and the

learned and would have indeed solved most Islamic issues threatening the world of

Islam today.

There is thus a great need for laws (as laws are the codes of conduct which guide

the whole of mans affairs from birth to death) to be made to suit Muslims daily life

in recent times.

The major problem as perceived by many scholars is that of ignorance. Due to

ignorance, many Muslims are scared of practicing ijtihad as there is fear of

introducing innovation into Islam thus adulterating it. There is however a cry for

the gates of ijtihad to be opened by most Islamic scholars who are of the view that

the much needed change or progress in Islam can be brought about by ijtihad.

Significantly, there are many issues that require Islamic rulings but because of the

absence of the practice of ijtihad, these issues are not confronted in positive ways.

1.3 SCOPE OF THE RESEARCH

The scope of this research is neither restricted to any part of the world nor any

Islamic sect as it borders on Islam generally.

This is more so as the concept of ijtihad is a universal one which is not restricted to

a single sect in Islam. This work will also cover to a limited extent the practice of

ijtihad by the shi’ites as well as that which was practiced by the Sunnis.

1.4 JUSTIFICATION

The need for ijtihad can neither be underrated nor ignored. It is a subject which

should be embedded in the minds of Muslims. The subject of ijtihad is what is

needed in the Islamic or Muslim world today in overcoming the stagnation that is a

major characteristic in the religion now.

Islam is a religion known for its dynamism. Although a religion revealed at a

particular place, time and to a particular sect of people, Islam is a religion revealed

for all Muslims the world over. It is also a truism that the revealed texts cover or

regulate all of man’s actions from birth to death, but there are some of mans acts

that the Quran or Sunnah of the Prophet does not particularly cover. It is thus

through ijtihad which is mental reasoning that these issues are covered.

1.5 ORGANISATIONAL LAYOUT

This project is divided into five chapters. Chapter one gives an outline of the

project work. Chapter two discusses the meaning, the etymology of Ijtihad as well

as concepts closely related to Ijtihad. Chapter three discusses the relationship

between Fiqh and Ijtihad, the practise of ijtihad during the Prophet’s time, the
caliph’s time as well as during the time of the classical jurists. It also discusses the

conditions for practising Ijtihad. Chapter four discusses the use of Ijtihad among

the Sunni and the Shi’ites and also discusses the use of Ijtihad in contemporary

times. Chapter five explains the findings, makes suggestion as well as concludes

the work. The details are as follows:

CHAPTER ONE

1.1 Introduction

1.2 Statement of the problem

1.3 Scope of the research

1.4 Research methodology

1.5 Literature review

1.6 Justification

1.7 Organisational layout

CHAPTER TWO

2.1 Definition and etymology of ijtihad

2.2 Related Concepts

2.3 Basis of ijtihad

2.4 Mujtahid and conditions for a mujtahid

CHAPTER THREE

3.1 Relationship between Fiqh and ijtihad

3.2 Example of the use of ijtihad during Prophet’s era

3.3 Examples of the use of ijtihad during the era of the classical jurists

3.4 Use of ijtihad among the Sunnis

3.5 Use of ijtihad among the Shiite

CHAPTER FOUR

4.1 Taqleed

4.2 Gates of ijtihad; open or closed?

4.3 Ijtihad and contemporary issues

CHAPTER FIVE

5.1 Findings.

5.2 Suggestions.

5.3 Conclusion.

CHAPTER TWO

2.5 Basis of ijtihad

2.1 DEFINITION AND ETYMOLOGY OF IJTIHAD

Islamic law seeks to regulate the whole of mankind’s relationship. These

relationships are as a result of different and ever changing conditions which

characterise human society which is then left to Muslims themselves to define and

organise within the general guidelines of the texts11.

Many definitions of the term ijtihad abound. A close look at the development of

the Shariah will show that ijtihad is the most important secondary source of the

Shariah, as it aids its formulation, systematisation as well as its development over

the years. As early as 1898, the great Egyptian jurist professor Muhammad Abdul

had advocated the reinterpretation of the principles embodied in the divine

revelation as a basis for legal reform, and scholars like Iqbal in India, pursuing the

same theme, had argued that the exercise of ijtihad or independent reasoning/

judgement was not only the right but also the duty of present generations, if Islam

was to adapt itself successfully to the modern world12.

Ijtihad literarily means effort or exertion. It is through ijtihad the spirit of Islamic

law is defined. The practise of ijtihad is thus regarded as a religious duty which

must be fulfilled by a person so qualified.

It is the use of individual reasoning in general. It is also said to be the expanding of

maximum effort in the performance of an act. Technically, it is the effort made by

the Mujtahid (a person qualified to practice ijtihad) in seeking knowledge of the

ahkam (rules or laws) of the Shariah through interpretation.

11
Yahaya Y. Banbale, an outline of Islamic jurisprudence, p.7
12
Ajijola, A.D (1999) what is Shariah hakda ajijola foundation publishers Kaduna, p.27
It is also defined as the total expenditure of effort made by a jurist in order to infer,

with a degree of probability, the rules of Shariah, from their detailed evidence in

the sources. In another vein, ijtihad is defined as the application by a jurist of all

his faculties either in inferring the rules of Shariah from their sources, or in

implementing such rules of Shariah from their sources, or in implementing such

rules and applying them to particular issues13.

Ijtihad is a technical term of Islamic law that describes the process of making a

legal decision by independent interpretation of the legal sources, the Qur'an and the

Sunnah. The opposite of ijtihad is taqleed, Arabic for "imitation14.

Ijtihad therefore is an exercise of one's reasoning to arrive at a logical conclusion

on a legal issue done by jurists to deduce a conclusion as to the effectiveness of a

legal percept in Islam15

Ibn Hazm defined it as the expending of efforts in reaching a ruling concerning a

certain matter; it is a certainty that Allah the Almighty has laid down and

expounded all rules of the Shariah; hence most scholars are assured that they will

reach these rulings. If some people fail to reach such rulings, it is impossible that

others won't manage to come to these judgments. For Allah has not placed on us

13
Kamali, Mohammad Hashim Principles of Islamic Jurisprudence, Islamic Text Society,
Cambridge (1991) ISBN 0-946621-24-1
14
Glassé, Cyril, The Concise Encyclopaedia of Islam, 2nd Edition, Stacey International, London
(1991) ISBN 0-905743-65-2
15
Wikipedia, the free encyclopedia
burdens greater than we can bear; Allah has not commissioned us with performing

impossible missions16.

Ijtihad in the juristic terminology denotes the deduction of general rulings from

religious evidence, or the effort exerted in extracting religious rulings and reaching

a conjecture to religious rules; in the courts' jargon, this term means the set of

judiciary judgments from which general rules may be deduced to settle similar

disputes. The great scholar Abu Hamid Muhammad al-Ghazali al-Shafi`i says:

"Ijtihad is the effort (on the part of the mujtahid) and employment of one's utmost

powers to extract a command (hukm). This term is not used unless when it involves

hardship and strain. Al-Ghazali further remarks: “Ijtihad in its complete sense is to

make utmost effort in achieving a goal so that it is not possible for one to do

anything more." 17

It is worthy of note that the etymology of the word ijtihad is closely related to the

meaning of ijtihad itself. Thus, Ijtihad', according to the lexicographers, is derived

from `juhd', which means employment of effort or endeavour in performing a cer-

tain activity. Here we shall quote some of them:

Ibn al-'Athir defines `ijtihad' as the effort and endeavour undertaken for attaining

some objective.18 He further remarks that the word “jahd” occurs in many ahadith.

16
Al-Ihkam, Ibn Hazm 133/8, p. 347.
17
Al-Mustasfa fi usul al-fiqh, vol. 2, p. 350
18
Al-Nihayah vol. 1, p. 219.
’Juhd’ means employing ones complete strength, and `jahd' means hardship and

difficulty.19

Ibn Manzur al-Misri says: Jahd and juhd mean power and strength. He adds that it

is said that whereas jahd means hardship and difficulty, juhd gives the sense of

power and strength.20 Later on he quotes al-Farra' to the effect that in the verse of

the Quran y walladhina la yajduna illa juhdahum

21
jahd is used in the sense of power and strength.22 In the same work, he states that

ijtihad and tajahud mean exertion of power and strength.23 In the hadith narrated

from Mu'adh the phrase ijhad ra’yal ijtihad was used in

the sense of effort and endeavour to achieve some purpose.

Said al-Khuri says: Ijtihad means undertaking effort and endeavour in performing

some task. For instance it is ajtahidu fi hamlil hajar

`He exerted himself to carry the stone', but

nobody says:ajtahidu fi hamlil khardalah

19
Al-Nihayah vol. 1, p. 219
20
Lisan al-Arab, vol. 3, p. 133
21
Quran 9:79
22
Lisan al-Arab, vol. 3, p. 133
23
Ibid.,p.135.
 (Khardalah=mustard seed). 24 He further adds that jahd

(verbal of jahada) is used in the sense of strength - as in afraga juhdahu

(he did all in his power) as well as in the sense of trying hard, as in is

affraga juhdahu asaba juhda used in the sense of strength.25

Ahmad al-Qayyumi wiites: Juhd in the usage of the people of the Hijaz and jahd in

the non-Hijazi usage means exerting one's strength and power, and it has been said

that juhd means strength and jahd means toil and strain.26 He further adds: ijtahada

fil amri bazala wus’ahu wa taqatahu fi talabihi li yabluga majhudahu wa ya sila ila

nihayatihi (Ijtihada

means: he spent his strength and capacity to attain his goal and his ultimate

objective').27

Al-`Allamah al Turayhi states: It occurs in a hadith that: Afdalus Sadaqahy Jahdul

Muqilli (‘the best of charities is that which is given by one in

indigence’).28

24
Aqrab al-mawarid, vol. 1, p. 144
25
Aqrab al-mawarid, vol. 1, p. 144
26
Al Misbah al-munir, vol. 1, p. 144
27
Al Misbah al-munir, vol. 1, p. 144
28
Majma' al-bahrayn, vol. 3, p. 32.
He also says: means: ijtahada bi yaminihi ay bazala wus’ahu fil yamini wa baalaga

fiha (ijtihada bi yamanih means: He tried hard and

did his utmost in order to fulfil his promise').29 He explains that ijtihad involves

doing one's utmost while striving and making effort.30

Ibn Abi Dhar`ah, quoting al-Mawardi, states that the literal meaning of ijtihad is to

undertake effort and endeavour in accomplishing something that requires strain

and difficulty, and to this is related jihad al-nafs (the struggle against the carnal

self) which involves labour and toil for winning the desired objective and goal.

Isma'il al-Jawharil31 and other lexicographers have also defined the word ijtihad in

similar terms.

Thus, in conclusion, in the light of the definitions given by the lexicographers’

ijtihad means employment of effort and endeavour to one's utmost capacity, and it

does not make any difference whether it is derived from juhd or jahd, as effort and

endeavour are not without strain and toil and accompany each other. In other

words, an act of studying the Shariah evidences with a view to finding the truth as

a way of solution to legal problem is ijtihad. It is significant in building up the

29
Majma' al-bahrayn, vol. 3, p. 32
30
Majma' al-bahrayn, vol. 3, p. 32
31
www.al-Islam.org/al-tawhid/ijtijad/1.htm
society for promotion and progress of the law and for that reason; it should be

performed thoroughly and earnestly.32

2.2 RELATED CONCEPTS.

Ijtihad, as earlier noted is a secondary source of Islamic law. Its concept is closely

related to other secondary sources of Islamic law. These include among others,

Ijma, Qiyas, istihsan, Istislah, etc. these concepts shall be briefly discussed below.

IJMA (CONSENSUS OF OPINION)

Ijma literally means to determine, resolve, and to agree upon something 33.

Technically, ijma is defined as the unanimous agreement of the Mujtahids

(independent jurists) of the Muslim community of any period 34 , after the

demise of the Prophet Muhammad (S.A.W) upon a rule of Shariah 35. IJMA'

means consensus of opinion, i.e. the unanimous acceptance of a matter by a

32
Anwar A. Qadri, Islamic jurisprudence in the modern world,(New Delhi 2002). P.251
33
Al-Amidi, Sayf al-Din Ali b. Muhammad (1982), al-ihkam fi Usul al-Ahkam, Ed. Abd al-
Razzaq Afifi, al-maktab al-islami Beirut,2nd ed., vol. 1, p. 195.
34
Ibid,p.196.
35
Ibid.
 specified group of people. In Islamic jurisprudence (fiqh), the matter on

which ijma' is of interest is understood in one of the two following ways:

1. Any matter related to Shari'ah36

2. Any matter (of interest to Muslims)37

The group involved in the consensus is understood in the following ways, in

which an exception is made for children and those who suffer from mental

disorder:

1. All Muslims of all times38

2. All mujtahidin who are just, righteous and who avoid bid'a (innovation)39

3. All Muslims of a particular time40

4. All mujtahidin who avoid innovation including those who may not be

muttaqin (righteous and God-fearing)41

5. Majority of all mujtahidin42

36
Sadr al-Shari'ah 'Ubayd Allah, Tanqih wa Sharh al-Tawdih (Egypt, 1957), II, 211.
37
'Abd al-Wahhab Taj al-Din ibn al-Subki, Jam' al-Jawani' (Cairo: Mustafa al Babi al-Halbi),
second edition, II, 176
38
Abu 'Abd al-Rahman al-Shafi'i according to Muhammad al-Shawkani, Irshad al-Fahul ila
Tahqiq al-Haqq min 'Ilm al-Usul (Cairo: Mustafa al-Babi al-Halbi, 1356H/1937), first edition, 83
39
Ibid.
40
. Qadi Abu Bakr Baqalani according to: 'Abd al-'Aziz al-Bukhari, Kashf al-Israr Sharh Bazdwi
(Egypt), iii, 237-239.
41
Ibid, III, 238.
 6. All mu'minin43

7. All companions of the Prophet44

8. Mujtahidin of Makka and Madina (or Kufa and Basra)45

9. Mujtahidin of Madina46

10.The first four khulafa or the first two khulafa47

There are basically four types if ijma namely:

 Explicit (ijma' 'azima or ijma' qawli). This type of ijma' takes place as

follows: A question arises and people express their different views.

Then there is discussion on these views and finally a common position

48
is agreed upon.

42
al-Tabari and Abu Bakr Razi according to: Sayf al-Din al-Amdi, Ahkam al-Ahkam (Egypt:
Muhammad Ali Sabih, 1347H), I, i20.
43
This view is held by Khawarij who consider themselves as mu'minin. See Jamal al-Din al-
Asmawi, Nihaya al-Sawal fi Sharh Minhaj (Egypt: al-Maktaba al-Mahmudiyya al-Tijara,
1340H), II, 233-234.
44
Da' ud Zahiri according to: al-Amdi, op. cit. I, 117.
45
al-Amdi, op. cit., I, 125 and Muhammad Yahya ibn Shaykh Aman, Nuzha al-Mushtaq (Egypt:
Matba' Hijazi, 1370H/195), 598.
46
. al-Amdi, op. cit., I, 124
47
al-Amdi, op. cit., I, 127.
48
Shah Wali Allah, Qura al-'aynayn fi Tafsil al-Shaykhayn (Dheli: Mujtaba'i, 1310H) 251-255.
Also see: Muhammad Abu Zahra, Imam Ahmad bin Hambal, 267-268.
  Silent (ijma' rukhsat or ijma' sakt). If an opinion is expressed by some

and their contemporaries, after learning about it, have made no

comments either in favor or against, then we have what is known as

49
silent ijma'.

 Unknown opposition ('adam al-ilm bi al-mukhalif). This situation

occurs when a view generally held but it is not known whether or not
50
there are experts who disagree with it.

 Absolute (ijma' qat'i). This is ijma' on a matter in which there never has

been any sustained difference (ikhtilaf mustaqar) and which is

established with tawatur (continuity), that is, we can show that all

generations of Muslims or Muslim mujtahidin agreed on the matter.51

After the attainment of an ijma on a point, further controversy on that point is

barred, and the point becomes acquired forever, unless it is abrogated in

accordance with approved methods.

49
al-Shawkani, op. cit., 84.
50
. Abu Zahra, op. cit., 267-268
51
'Abn al-'Ala, Fawatih al-Rahmuwat, (Bulaq, 1325H), II, 143.
QIYAS (ANALOGY)

If all the three sources of Islam (Quran, sunnah, and ijma) should fail to solve the

problem in hand, jurists must strive by deep and devoted thinking to arrive at a

conclusion by logical inferences and analogy. This act of logical reasoning is

known as qiyas. Qiyas is one of the most important secondary sources and it is the

one which has almost a universal sanction. Qiyas literally means measuring by or

comparing with, or judging by comparing with, a thing. It also means measuring,

equating, estimating, or ascertaining the length, weight, or quality of something.52

The jurists apply it to “a process of deduction by which the law of a text is applied

to cases which, though not covered with the language, are governed by the reason

of the text”53. Briefly it may be described as reasoning based on analogy. A case

might come up for decision, which is not expressly provided for either in the Holy

Quran or in the Hadith. The jurist looks for a case resembling it in the Holy Quran

or in the Hadith, and by reasoning on the basis of analogy, arrives at a decision. An

example of qiyas is the prohibition of marijuana based on the Prophet’s statement”

Every intoxicant is khamr and every form of khamr is haram.” Since marijuana has

Al bukhari, abd al-aziz (1997) kashf al- Asrar (commentary on al- bazdawi’s kanz al-wusul ila
52

ma’rifat al-usul), Dar al-kutib al-ilmiyyah, Beirut, vol.3, p. 395.

53
“Al Maqâlâtul-Islâmiya”, by Isma’il Al-Ash’ari
an intoxicating effect, it can be classified as khamr and thus haram(prohibited). A

common trend among youths of today is the avoidance of alcohol in the strict sense

of the word. They resort to drugs or medication made with an active ingredients

which when taken in overdose intoxicates. These drugs include parkalin, tutolyn,

and benilyn with codeine amongst others. This can be equated by analogy to strong

drinks in general, since the cause of prohibition is the effect of intoxication to

which both give rise. Similarly, if there is no intoxication, there is no prohibition. 54

Thus, it is an extension of the law as met with in the Holy Quran and Hadith, but it

is not of equal authority with them, for no jurist has ever claimed infallibility for

decisions based on analogical deduction. It is a recognized principle of ijtihad that

the mujtahid may err in his judgment. From its very nature the qiyas of one

generation ijma’ is in all cases binding on the community.

Therefore, a recourse to qiyas is only required if the solution of a new case cannot

be found in the holy Quran, the sunnah or the ijma. It will be futile to resort to

qiyas if the new case could be resolved under a ruling of the existing law. It is only

in matters which are not covered by the holy Quran, sunnah, and ijma that the law

may be deduced from any of the primary sources through the application of

qiyas.55

THE ESSENTIAL ELEMENTS OF QIYAS (ANALOGY)

54
Qarafi, al-Furuq (Cairo 1344-6), p.35
55
Rahim, abdur(1911), principles of Muhammadan jurisprudence, Luzac and co. London, p. 138
From the various definitions given, it is concluded that the essential elements or

ingredients of qiyas are four56:

(a) The original case(Asl)

Is the case that has been mentioned in the text (i.e., the holy Quran or

sunnah). It is regarded as the root or the base; or the case upon which

analogy is constructed.

(b) The new case(far’)

It is the new case to which the original case (Asl) is sought and extended and

constructed upon. It is regarded as the offshoot.

(c) The effective cause(illah)

It is the underlying cause of the hukm (rule) which is determined by the

jurists.

(d) The rule (hukm)

It is the rule that is to be passed as a result of the new case57.

For qiyas to be applied there are some essential conditions to be met. These

conditions are required to ensure accuracy and propriety in its application. They

are as follows:

(a) The original case must have its base on the Holy Quran and Sunnah.

56
Hassan, H.H. (2005), An introduction to the study of Islamic law, Adam publishers &
Distributors, New Delhi(India), p. 173.
57
Yahaya Y. Bambale(2007), on outline of Islamic Jurisprudence, malthouse press ltd p.73
 Majority of jurist are of the opinion that qiyas must be founded or based on a

rule that is established by ijma. These jurists cited the example of how ijma

validates the guardianship over the property of minors, and how compulsory

guardianship is authorised for minors in marriage 58 . There are however

minority of jurist that disagree that ijma constitutes a valid basis for the

exercise of qiyas, they rely on the fact that the rules of consensus do not

require that there should be a basis for ijma. This is due to the fact that ijma

does not always explain its own justification or rationale and without

information, it is difficult to exercise analogy59.

(b) The rule or Hukm must be of general application.

The rule to which qiyas is to be applied must be one of general application.

Where it is a specific rule, then qiyas cannot be applied to such a rule.

(c) The effective cause in the new case must be the same as that in the original

case.

Should there be no uniformity, the analogy is invalid. For example, the illah

(effective cause) in the prohibition of wine is intoxication, then the beverage

which only causes a lapse of memory would differ with wine in respect of

the application of illah, and this would render the analogy invalid60.

58
Abu Zahra, Muhammed (1958), Usul al-fiqh, Dar al-fikr al-Arabi, Cairo, p.181.
59
Khallaf, Abd al-wahab (1978), Usul al-fiqh, 12th ed; Dar al-Qalam, Kuwait, p.53.
60
Kamali, Muhammad Hashim (1991), ibid., p.206.
 (d) Then application of qiyas to a new case must not result in altering in the

Quran or sunnah, as this would result in overruling the texts by means of

qiyas.

(e) The illah (effective cause) must be an apparent cause.

An apparent cause is one that can easily be perceived by the senses, an

outward attribute and not one internally concealed. This apparent attribute

can be easily identified by both the asl and far’. For instance, in contracts,

the cause that makes it valid is the ‘outward’ expression of offer and

acceptance. Therefore, offer and acceptance are the illah(effective cause).61

The hukm of validity is tied to the effective cause, offer and acceptance.

The importance of the concept of qiyas lies in its necessity and use as is found with

ijma. It is a technique in the shape of recourse of legal development to bring the

law in relation to its application to the changing needs of the human society. Its

bases are furnished in the fundamental Shariah evidences themselves.

SITIHSAN

Istihsan is an Arabic term for juristic “preference”. Muslim scholars may use it to

express their preference for particular judgements in Islamic law over other

possibilities. It is one of the principles of legal thought underlying personal

61
Nyazee I.A.K. (2004), ibid., pp.228-229.
interpretation or ijtihad. Istihsan literally means to deem something preferable.

In its juristic sense, Istihsan is a method of exercising personal opinion (ray) in

order to avoid any rigidity and unfairness that might result from literal application

of law. Istihsan as a concept is close to equity in western law. However equity in

western law is based on natural law, whereas Istihsan is essentially based on divine

law.

Although Some see Istihsan as being equivalent to the concept of equity in English

law, others see it as being equivalent to the "reasoned distinction of precedent" in

the Law of the United States, in which case Istihsan may be referred to as the

"reasoned distinction of Qiyas (reasoning by analogy)". Istihsan is not independent

of Shariah; it is integral part of Shariah. Istihsan is an important branch of Ijtihad,

and has played a prominent role in adaptation of Islamic law to the changing needs

of society.

Istihsan has been validated by Hanafi, Maliki and Hanbali jurists. Imam Shafii,

Shii and Zahiri Ulama have rejected it as a method of deduction. However, in

effect Majority have accepted Istihsan. A major jurist, Al-Sarakhsi considers

Istihsan as a method of seeking facility and eases in legal injunctions and is in

accord with the Quran (2:185). Kamali says that companions (Sahabi) and

successors (Tabiun) were not merely literalist. On the contrary, their rulings were

often based on their understanding of the spirit and purpose of Shariah. Dr. Hashim
Kamali gives a new example. Oral testimony was the standard form of evidence in

Islamic law. However, now in some cases photography, sound recording and

laboratory analysis have become more reliable means of proof. Here is a case of

Istihsan by which method we can prefer these means of proofs over oral testimony

in many cases62.

Hanafi jurist Abul Hasan al Karkhi defines Istihsan as a principle which authorizes

departure from an established precedent in favor of a different ruling for a stronger

reason. The Maliki jurists are more concerned with Istislah (consideration of public

interest) than Istihsan. They validate Istihsan as more or less similar to Istislah or

as a part of Istislah. There is no definitive authority for Istihsan in the Quran and

the Sunnah. However, verses 34:18 and 39:55 of the Quran have been quoted in

support. Similarly a very famous Hadith: "La darara wa la dirara fil Islam" [no

harm shall be inflicted or tolerated in Islam] has been quoted in support. Istihsan is

closely related to 'ray' (opinion) and Qiyas (analogical deduction). Al-Shafii has

criticized Istihsan on the basis of Quranic verses 4:59 and 75:36. However, these

verses are not categorical on the issue of Istihsan. Al-Ghazali has criticised

Istihsan but stated that Shafii's recognize Istihsan based on the Quran and the

Sunnah. Al-Amidi (a Shafii jurist) has stated that Al-Shafii also resorted to

62
Dr. Hashim Kamali, Principles of Islamic Jurisprudence, Islamic Texts Society, Cambridge,
UK.
Istihsan. Modern jurists have stated that the essential validity of Istihsan is

undeniable. Progress of Islamic law largely depends in the modern times on this

source63.

Istihsan is “a desire for beauty” or symmetry for removal of discrepancies or

inequities in law.

ISTISLAH

Istislah, originally introduced by imam Malik, istislah, is a name given to the

methodology of law contained in the maslahah (useful purpose). It consists of

prohibiting or permitting a thing simply because it serves a useful purpose. 64

Istislah means determining what is in the interests of human welfare by one's own

deliberations, which means the seeming of one thing as more expedient than

another. Istislah is also known as Public Good.

Istislah is a method which has a similar rule to that of Istihsân. This method is

adopted by Imâm Mâlik 65 and the Mâlik School at large, and is viewed as a

deduction of the law based on consideration of public good. It is known that

63
Shah Abdul Hannan Islamic Jurisprudence (Usul Al Fiqh): Istihsan

64
Anwar A. Qadri, Islamic jurisprudence in the modern world. P.225
65
Scholar of the maliki school of thought
istislah has as a subject-matter public interest which is in line with the objectives of

Islamic law, and that is the fact that interests of individuals are the ultimate goal of

legislation and underlie all its rules. The vast majority of jurists agree that Islamic

fiqh gives due consideration to the public interest. In this regard, it maintains that

every interest has to be given priority unless it conveys personal desires or bears

inherent contradictions to the aims of the Shari'ah.

Istidlal or Inference

Istidlâl is striving after a basis for a rule. The term connotes a special source of

law derived from reason and logic, not from the textual side of the law. It has two

chief sources recognized for inference. These are customs and usages which

prevailed in Arabia at the advent of Islam, and which were not abrogated by Islam;

they have the force of law. On the same principle, customs and usages prevailing

anywhere, when not opposed to the spirit of the Quranic teachings or not expressly

forbidden by the Sunnah, would be admissible, because according to a well-known

maxim of the jurists, “permissibility is the original principle,” and, therefore, what

has not been declared unlawful is permissible. In fact, as a custom is recognized by

a vast majority of the people, it is looked upon as having analogy. The only

condition required is that it must not be opposed to a clear text of the Quran or a
reliable hadith. For example, a sale is a contract;the basis of every contract is

consent; it is necessary, therefore, that consent be the basis of sale. 66 In the

ordinary sense, the term means an inference for a thing from another, but in the

legal sense, it is a form of ratiocination or legal reasoning not covered by qiyas. 67

BASIS FOR IJTIHAD

Ijtihad has served as the medium for deduction of rules from the Quran, sunnah

and ijma and the means by which transactions and social needs were provided the

necessary flexibility. Thus, ijtihad is an essential element in the growth of the

Shariah law.

The foundation of the doctrine and technique of ijtihad lie in many verses of the

Quran. The holy Quran declares: “so learn a lesson, O ye who have minds. 68 The

method was explained in Suratul Nisa thus: “those to whom We gave the book,

recite it (i.e. obey its orders and follow its teachings) as it should be recite(i.e.

followed)…”69 the study is to be performed under a condition of earnestness. For

in suratul Muhammad Allah says: “do they not then think deeply in the Quran, or

66
Adad al-Din, Sharh, I, 17-35
67
Abdur Rahim, Mohammadan Jurisprudence, 166-168.
68
Quran 59:2
69
Quran 2:121
are their hearts locked up (from understanding it)?” 70 It is also provided in the

Quran that the study should follow a path thus: “O you who believe! Obey Allah

and obey the messenger (Muhammad pbuh), and those of you who are in authority.

And if you differ in anything, refer it to Allah and His Messenger (pbuh) if you

believe in Allah and in the Last Day. That is better and more suitable for final

determination.”71

The importance of ijtihad in constructing up a society and promoting the progress

of law becomes evident when it is found that the prophet himself exercised and

encouraged the performance of ijtihad. In practicing ijtihad, he is reported to have

said: “if a judge interprets and gives a right judgment he will have earned two

rewards; if he interprets but errs in his judgment he will still have earned one

reward.” Further, the prophet said: “If God favours one of His creatures, He gets

him to study the law and make him a lawyer”.72 In encouraging the performance of

ijtihad, it is narrated in a hadith that when the Prophet sent Mu`adh b. Jabal to

Yemen, he asked him how he would issue commands there. He replied: "In

conformity with the Book." "And if it is not to be found in the book?" "I will make

use of the Sunna of the Prophet." "And if it is not to be found in the Sunnah of the

Prophet?" "Ajtahidu ra' yi," he replied, which means: I will employ my own

70
Quran 47:24
71
Quran 4:59
72
Anwar A. Qadri, Islamic jurisprudence in the modern world. P.253
thought, ability and tact. The prophet was reported to have been very happy ,

impressed and prayed for him.

The companions of the prophet continued to develop the concept of law by the

exercise of ijtihad. They companions of the prophet continued to develop the

concepts of law by the exercise of ijtihad. Caliph Abu Bakr said: “ I decide

question of kalalah (a deceased leaving no parent or child to inherit) according to

my opinion; if it be correct, then it is an inspiration from God if it be wrong, then

the error is mine and satan’s ; God and His Prophat are innocent of such error.”

Caliph Umar said; “I do not know whether I have attained the truth but I spare no

effort in striving to do so.” 73

The companions, however who were closely connected to the prophet and

transmitted immediately to them the treasures of law are looked upon as

mujtahidin of much higher authority than those of the second and third centuries.

Usually from the time of the companions, the first degree of ijtihad has only been

conferred on the great imams. Any Muslim can attain to this degree, but it is one of

the principles of the Shariah jurisprudence that confirmation of this rank is

dependent on many conditions.

73
Ibid, p.253
Since ijtihad is putting forth every effort in order to determine with a degree of

probability a question of Shariah, it follows that it would not amount to ijtihad if a

person arrived at an opinion while he felt that he could exert himself some more in

the investigation he is carrying out. This is based upon the rule that an ijtihad

should be thorough and most sincere.

Since ijtihad is an exertion on a question of Shariah, it follows that intellectual

problems such as the creation of the universe, existence of the creator, the sending

of the prophet, etc are subjects beyond the power of the Mujtahid. These subjects

are regarded as being beyond his scope. Ijtihad cannot be exercised on explicit

evidences of the Shariah. This leads to the conclusion that ijtihad on Islamic

fundamentals is an outright sin. In questions where there remains no positive

evidence; ijtihad exercised even if wrong is not a sin. One who exercises ijtihad is

rewarded for his exertion or is excused, but if the Mujtahid is wrong

notwithstanding the fact that the evidence is clear, he is not excused for he is

wrong obviously by reason of his fault and because he did not do his best in

exerting. As regards the Mujtahid who is wrong in the fundamentals of religion, his

failure may be a case of simple error or of unbelief or of kufr. According to

Ghazali, an error in the fundamentals of religion may not result in sin, if the person

exercising such ijtihad is a bonafide Mujtahid.74

3.2 MUJTAHID AND CONDITIONS OR QUALIFICATIONS FOR A

MUJTAHID

MUJTAHID

Mujtahid is derived from the word ijtihad. It refers to a person who is qualified to

practice ijtihad. A mujtahid can be said to be an expert in ijtihad, a performer of

ijtihad, one who is highly knowledgeable about the secrets of the Qur’an, is

capable of ‘ijtihad’, and is the scholar of fiqh (Islamic Jurisprudence) who is the

authority on all the Islamic sciences. These are gifted people capable of knowing

the secrets of the Qur’an and the Hadiths. Delving into the realms of both the

mental and divine sciences, they have presented what they have discovered to the

benefit of humanity. It is an honorable and high rank to be a mujtahid. This rank

cannot be achieved through claim but through gaining ability in sciences and with

the help and guidance of God. It is not possible for everyone to compete with them.

According to Wikipedia the free encyclopedia, a mujtahid is an Islamic scholar,

competent to interpret divine law (shariah) in practical situations using ijtihad

74
Ghazali, in Husul al-Ma’mul min Ilm-al-Usul, 354.
(independent thought). In some, but not all, Islamic traditions, a mujtahid can

specialize in a branch of shariah - economic or family law for example.

QUALIFICATIONS OF A MUJTAHID

A mujtahid is an Islamic scholar , competent to interpret divine law (shariah) in

practical situations using ijtihad (independent thought). In some, but not all,

Islamic traditions, a mujtahid can specialise in a branch of shariah. The

qualifications for a mujtahid were set out by Abu’l Husayn al-BasriAbu’l Husayn

al-Basri (died 467 AH / 1083 CE ) in “al Mu’tamad fi Usul al-Fiqh” and accepted

by later Sunni scholars, including al-Ghazali. These qualifications can be summed

up as:

(I) An understanding of the objectives of the shariah and

(II) The knowledge of its sources and methods of deduction.

To ensure correct decision in the progress of Ijtihad and prevent the non-qualified

from exercising it, the ‘Ulama’ have prescribed certain conditions. These

conditions shall be examined below in the context of present times. They include:

1. Piety (At-Taqwa)
This has been considered the most basic condition for a mujtahid (one who is

qualified for Ijtihad). Since Ijtihad is a sacred duty and religious responsibility,

qualities like honesty, integrity and piety must be found in a person who exercises

Ijtihad. But piety is a matter of the heart, as once the Prophet (peace and blessings

be upon him) said, “Piety is here” (Pointing to his chest). One cannot measure the

piety of another except by knowing that a person is apparently regular in

performing the obligations of Shariah: he avoids sins, and does not get involved in

temptation that tarnishes his reputation.

2. Knowledge of the spirit and objectives of Shariah

It is also important in making a decision and forming an opinion to understand the

spirit of Shariah, and have the knowledge of its objectives. This can be achieved by

a thorough study of the rules and injunctions of the Shariah and analysis of it. It is

easy now to know more as a number of studies have appeared on the subject. After

the survey of Islamic injunctions some of the leading scholars have classified the

objectives of Shariah into five categories: protection of religion, protection of

75
reason, protection of life, protection of property and protection of progeny.

75
Taqi al-Din b. Taymiya, Raf' al-malam 'an al-a`immat al-a'lam, Damascus 1383/1964, 84 pp.
It covers pp. 9-36 in the Iqaz
No doubt, the list is very comprehensive, but, as Ibn Taymiyah says, the objectives

are not confined to these only. Anything islamically desirable becomes an

objective of the Shariah. Promotion of the spirit of Ijtihad may also be included in

the list of Shariah objectives, or it may be put under the objective of protection of

reason, as only then Islam can properly respond to the changes and challenges
76
faced in any period.

3. Knowledge of the Qur'an and the Sunnah

The Qur'an and the Sunnah are the basic sources of Islam. Therefore no Ijtihad can

be conceived without having their knowledge. There are five hundred verses of the

Qur’an which consist of different rules (Ahkam). In the opinion of some scholars,

they must be known to a mujtahid. But it is better that the inference of rules is not

limited to those verses only. A mujtahid must have a general perception of the

whole Qur’an.

As far as Hadith are concerned, their number is in the thousands and various

authentic collections have been prepared. A mujtahid must have studied at least

one of the collections thoroughly. He should be aware of different collections, their

authors, their characteristics, styles and categorization. He should be able to

76
ibid
consult them on the issue he is dealing with.

At present, it has become very easy to go through all verses, Hadith and opinions

of earlier scholars on a topic as rules and principles have been formulated and

indexes have been prepared to facilitate their consultation.

Principles of jurisprudence are tools for deriving rules (Ahkam) from the Qur’an

and Sunnah, and the jurisprudence is the sum total of such rules. The knowledge of

these two is always helpful with respect to inference of rules from the Qur’an and

Sunnah. The principles of jurisprudence are easily accessible as they are available

in a well-organized form. We also have the fiqh of every school of jurisprudence

available with their evidence and arguments. Now it is possible to decide the most

relevant and suitable opinion through an unbiased comparative study of different

rules.

A mujtahid should have the knowledge of nasikh and mansukh (abrogating and

abrogated), i.e., which one out of two contradictory and opposite texts is later in

revelation. This might have occurred due to change of a rule, replacement,

withdrawal or omission. It is not necessary to remember all such texts. But one

must enquire the text related to the concerned issue. Past scholars have done a lot
of work about an-Nasikh, and have listed all such verses and hadiths. Now it is not

difficult to find it out anytime.

The consensus of the Ulama or the experts of Shariah is in its own right a Shariah

source based on Ijtihad (by inference). There are differences in opinions in its

details. On this topic too, various reference works are available. One can easily

refer to them.

Along with the knowledge of the Qur’an and Sunnah, Ijma, Nasikh, opinions of the

companions of the Prophet and followers, and principles of jurisprudence, one has

to acquire sufficient knowledge of every aspect of the issue about which Ijtihad is

required. It has become more important especially in this age as the development

in the field of science, economy, politics and society in general has created

complex problems that can only be understood by experts. One may not be an

expert in every field. To fulfill this condition, a mujtahid must take the help of a

specialist of the concerned field and get the problem fully explained.

Over and above all the aforementioned requirements, one must possess a natural

skill of Ijtihad — sharp intellect and penetrating insight - to analyze and infer the

rule. This instinct is not particular to any age. However the methodology of

research and tools of investigation developed in the modern age may help enhance
this quality.

4. Skill in the Arabic language.

The reason for this is clear. Original sources of Shariah are in Arabic. Any Ijtihad

without the working knowledge of Arabic cannot enjoy authenticity and

confidence. It may not receive the approval of others. This is so because a very

small portion of the tools of knowledge required for Ijtihad is available in

translation form. Moreover, very often the translation cannot fully convey the letter

and spirit of the text.

At present we find very advanced and scientific institutions teaching this official

language of Islam. New techniques have been developed to impart maximum

knowledge in a minimum period. In fact, hardly any original work can be done on

Islam without the knowledge of Arabic. One who is an aspirant to Ijtihad must

begin with this.77

CHAPTER THREE

3.5 Relationship between Fiqh and Ijtihad

77
. Abdul Azim Islahi, Associate Professor, Department of Economics, Aligarh Muslim
University, Aligarh, India.
3.6 Example of the use of Ijtihad during Prophet’s era

3.7 Examples of the use of Ijtihad during the era of the classical jurists

3.8 Use of Ijtihad among the Sunnis and the Shiites

3.1 RELATIONSHIP BETWEEN FIQH AND IJTIHAD.

3.1.1 FIQH

The term ‘Fiqh’ is used in its literal sense to mean ‘understanding’ and

‘discernment’. It refers to the true understanding of what is intended. 78 An example

of this usage can be found in Prophet Muhammad’s statement: “to whomsoever

Allah wishes good, He gives the fiqh (true understanding) of the religion”. 79 It

implies an understanding of Islam in a general way. It also implies what a prudent

person is likely to discern or conclude from obvious evidences. 80 Technically, Fiqh

is exclusively used for knowledge of the law. Abu Hanifa defined Fiqh thus: “a

person’s knowledge of his rights and duties”. 81 Imam Shafii defines Fiqh as

78
Dr Abu Ameenah Bilal Phillips, the evolution of fiqh. International Islamic publishing house.
P.1.
79
Reported by Mu,aawiyah and collected by al-Bukhari (sahih Al-Bukhari), vol.4, pp.223-4, no.
346.
80
Nyazee, I.A.K. (2004), Islamic jurisprudence (usul al-Fiqh), Adam publishers and distributors.
New Delhi 2 (India), p. 18
81
-sharia, ubayd-allah ibn mas’ud (1979) al-tawdih fil hall jawamid al-tanqih, Karachi, vol.1,
p.22
follows: “it is the knowledge of legal rules, pertaining to conduct, that have been

derived from their specific evidences.”82

3.1.2 IJTIHAD

Ijtihad has had the meaning of a free and independent effort of the Mujtahidun,

undertaken for the purpose of advancement and expansion of the Islamic sciences.

By practising Ijtihad, a Mujtahid deduces the ahkam83 of the Shari'ah for issues and

problems regarding which there is no specific express text (nass), by relying on

legal sources and principles and by benefiting from the ideas of other mujahidin.

On account of this, it may be said that Ijtihad plays the role of an evolutionary and

dynamic force in legal studies which provides solutions to contingent issues of life

and fulfils the needs of changing times and the requirements of new phenomena of

human civilization.

Islamic Fiqh does not suffer with inertia, stagnation and passivity vis-à-vis the

demands of the times, of life and its manifestations; it also advances along with

them. It is for this reason that it has been said that Ijtihad has been throughout

Islamic history the force which has been constantly developing and expanding the

boundaries of Fiqh with respect to its applications, while maintaining the stability

82
Baydawi, Nasir al-Din (n.d), Minhaj al-Wusul ila ilm al-usul, matba’at Kurdistan al-Ilmiyyah,
Cairo, p.3.
83
Laws
of legislation. Thus, Ijtihad is essential for Islamic fiqh, without which it cannot be

dynamic and progressive.

Simply put, the relationship between Fiqh and Ijtihad lies in the fact that Ijtihad is

the instrument or mechanism used in bringing out principles in Fiqh.

3.3 EXAMPLES OF THE USE OF IJTIHAD DURING THE PROPHET’S

ERA.

The use and practise of Ijtihad followed by earlier leaders of jurisprudence and was

prescribed by the Prophet (peace and blessings be upon him) himself. Once when

the Prophet was deputing his companion Mu`adh to Yemen, he asked the latter,

"What will you do if you have to decide a matter faced by you?" He replied, "I will

decide it according to the Book of Allah." The Prophet further asked, "If you do

not find anything about it in the Book of Allah, then what?" He answered, "In that

case I’ll decide according to the Sunnah of the Prophet of Allah." At this the

Prophet asked, "If you do not find anything in the Sunnah of the Prophet?" He said,

"I’ll decide it with my own opinion (i.e. apply the reasoning power) and leave no

stone unturned." Hearing this, the Prophet applauded, "Praise be to Allah who
guided the apostle of the Prophet the methodology which the Prophet himself

likes."84

3.2.1 THE SCOPE OF PROPHET MUHAMMAD’S IJTIHAD

Islamic scholars have mostly agreed that the Prophet might have made some

decisions based solely on his own judgment in matters of technical, i.e.

administrative, political and economic affairs or in matters that belonged entirely

to worldly affairs. They disagree more on whether or not he had the authority over

purely religious matters such as faith, prayers and rituals. According to the

majority view, Prophet Muhammad did have the Ijtihad authority in matters about

which there was no divine revelation, regardless of which domain they belonged

to.85

Examples of the Prophet’s Ijtihad in terms of their essential characteristics are as

follows:

 Those that pertain to worship and rituals

 Those that concern judicial matters

 Those that are related to matters of war

 Those that pertain to worldly affairs

84
Reported by Al-Bukhari
85
Adem Yerinde, the question of Prophet Muhammad’s Ijtihad in
3.2.2 Worship (Rituals)

Prophet Muhammad sometimes made decisions based on his Ijtihad on matters of

prayers and worship. One of the best-known examples of this is the matter of the

adhan86. The Prophet made a decision that this call should be made to specify the

exact times of prayer preventing the damage to people’s worldly interests should

they attend a prayer too early as well as avoiding the loss of the other worldly

gains in being late to the prayer.

3.2.3 Judicial Matters

Prophet Muhammad himself stated that in matters that pertained to judgments he

had made decisions based on his Ijtihad taking into consideration the defenses of

the two parties and the evidence presented to him for and against a given case. A

Hadith on this point particularly emphasizes his human side:

“I am only a human being. When a case is presented to me, I might rule in favor of

the party who presents his case in a better way, wrongly leading me to think that he

is right. In this case, if I gave someone something that in fact belongs to his brother

rather than himself, he should not accept it. For the thing that I give him is nothing

but a piece of fire”87.

86
call to prayer and one of the most important signs of Islam
87
Al-Bukhari, “Mazalim” 16, “Ahkam” 29, 31; Muslim, “Aqdiya” 5, 6
Emphasizing the human side of the Prophet, this Hadith clearly indicates that

Prophet Muhammad was no different from any other human being in resolving

problems judicially. This is because the Prophet could not access the knowledge in

the realm of the ghaib88 unless Allah wanted him to; therefore he had to make

decisions based on the apparent and circumstantial evidence presented to him.

3.2.4 Matters of War

There are many examples of how Prophet Muhammad used to make a decision on

the basis of his Ijtihad after consulting with his companions and taking existing

conditions into account on matters and strategies of war. An example of such

Ijtihad is the fact that the Prophet accepted the offer of the companion Sa’d ibn

Mu’az to command the army in the Battle of Badr. Salman al faaris: battle of

trenches

3.2.5 Worldly Affairs

It is also a historical fact that from time to time Prophet Muhammad declared his

own opinions based on his own experience and judgment on some worldly affairs

and that he even made a mistake in some of his Ijtihad. The best example of this is

the inoculation of date palms in Medina. According to a report when the Prophet

went to Medina, he saw that in order to have a better harvest the residents fertilized

88
unknown
the date palms by conjoining male and female pollens. He then said that in his

opinion this would not work; upon hearing this, the residents of Medina gave up

the practice. However, that year the produce turned out to be less than in earlier

years. Then the Prophet said that although they should follow him strictly when he

made a decision on matters of faith and religion, he was like any one of them when

it came to worldly affairs, making decisions based on his own judgment, and

added, “You know your worldly affairs better than I do, and I know your religious

matters better than you do”89.

In summary, Prophet Muhammad was a prophet who acted first and foremost

under the guidance of divine revelation. Despite this, it is also true that there are

some verses in the Quran that emphasize his human features as well as those

indicating he might make mistakes on some issues. In addition, he made decisions

based on his own judgment and was wrong (at least was not able to choose the

better option) in some of these decisions. As such, it is clear that not all of his

sayings and practices were a product of divine revelation. Islamic scholars and

jurists have discussed this matter extensively, particularly in books on the

Methodology of Islamic jurisprudence. The majority of the ulema (religious

scholars) have argued with sound evidence that Prophet Muhammad, like any other

89
Sahih Muslim “Fadail” 139 – 141
Muslim scholar, had the authority of Ijtihad and occasionally he actually used it

within the limits of his human capacity.

Moreover, as a prophet who was compelled by divine revelation, the Prophet was

mostly right in his Ijtihad based decisions. Although few, in such cases where he

was mistaken, he was often warned by divine revelation and quickly corrected by

Allah the Almighty. On the other hand, it is not possible to argue that all the

mistakes the Prophet made regarding the purely worldly affairs were corrected by

divine revelation, or that such corrections were even necessary. In other words,

Allah might not have corrected those related to purely worldly affairs based on

expertise and experience like medicine, agriculture and technology. 90 However,

this does not affect his status as the Messenger of Allah.

However Ijtihad is desirable and commendable in Islam can be seen from the fact

that according to a tradition of the Prophet (peace and blessings be upon him) a

person applying Ijtihad will receive a reward even though his decision is wrong,

while if it is right, he receives a double reward. Had the Ijtihad been something

dangerous as the adherents of absolute imitation think or show by their action, the

Shariah would have warned against it and have never promised a reward on

90
Adem Yerinde op cit. in www.Al-islam.com/Ijtihad/questions on the prophet’s Ijtihad
 91
error."

3.3 EXAMPLES OF THE USE OF IIJTIHAD DURING THE TIME OF THE

CALIPHS.

The exercise of judgment to meet the new circumstances had already begun in the

Prophet’s lifetime, since it was impossible to refer every case to him. After the

Prophet’s death, the principle of Ijtihad obtained a wider prevalence, and as new

areas of population were added to the material and spiritual realm of Islam, the

need of resorting to Ijtihad became greater.

Who is a caliph?

A caliph is any one amongst the first four sahabis92 who ruled after the death of the

Prophet Shiites. The Arabic word Sahabi literally means a companion or a friend.

As a religious term it means, “a person who saw Prophet Muhammad Shiites,

believed in him, acted along with him, and retained his belief until the moment of

his death”. The following examples illustrate the use of Ijtihad during the time of

the caliph.

91
ibid
92
companions
During the reign of Abû-Bakr, when a case came before him, he used to consult the

Book of Allah (the Koran); if he found anything in it by which he could decide, he

did so; if he did not find it in the Book, and he knew of a Sunnah of the Messenger

of Allah, he decided according to it; and if he was unable to find anything there, he

used to question the Muslims around him If they knew of any decision of the

Prophet in a matter of the kind, and everyone them stated what he knew from the

Prophet, and Abû-Bakr would say ‘praise be to Allah who had kept among us those

who remembered what the Prophet had said’ ; but if he was unable to find anything

in the Sunnah of the Prophet, he gathered together the heads of the companions and

consulted them, and if they agreed upon one opinion (by a majority) he decided

accordingly.93

Fifteen years after the death of Prophet Muhammad, Caliph Omar ibn-al-Khattab

stopped cutting off the hands of thieves because most of them were stealing out of

necessity due to hunger, poverty, and drought. While this seems to contradict a

verse from the Qur'an, he justified his decision by stating that the principles of

justice and fairness were supreme in the light of Islam.

As regards caliphs Othman and Ali, the former followed the rulings of caliph Umar

during his reign however, it is to be noted that advancement in the compilation of

93
) Vide “Tarikhul – Khulafa” (History of the Khalifas), by Iman Jalalud-Din Al-Sayûti, Chapter
relating to Abu-Bskr (see his knowledge) in www.ask.com/Ijtihad/caliphs.
the Quran was made under his reign based on Ijtihad. While the latter’s reign was

riddled with lots of controversies and restlessness.

3.4 Examples of the use of Ijtihad during time of classical jurists

In the second century of Hijra arose the great four Imams of jurisprudence who

codified the Islamic Law according to the needs of their time. These Imams are

also known as the classical jurists. They are:

Imâm Abû-Hanîfa

The first of these was Imâm Abû-Hanîfa Al Nu’mân ibn Thâbit, born at Basra (80

A.H.) (A.D. 699) – died A.D. 767 – His centre of activity was at Kufa.94 The basis

of his analogical reasoning, known by qiyâs (analogy) was the Holy Quran, and he

accepted hâdîth only when he was fully satisfied as to its authenticity. The great

collector of hâdîth had not yet commenced their work of collection, and Kûfa itself

was not a great centre of the branch of learning. It was Imâm Abû-Hanîfa who first

directed attention to the great value of qiyâs or analogical reasoning in legislation

which was held by Muslims to be fourth foundation of the Islamic jurisprudence

after the source of Ijma. The principle of Qiyas has already been dealt with. Imâm

Abâ Hanîfa had two renowned disciples, Imâm Muhammad and Imâm Abû-Yûsuf,

94
Present day Iraq
and it is mostly their view of the great master’s teaching that now forms the basis

of the Hanafi School of thought.

Imâm Mâlik

Next is Imâm Mâlik ibn Anas, the second great jurist. He was born at Medîna in

the year 93 A.H. (A.D. 713), and worked and died there at the age of 82. He

limited himself almost entirely to the Hadith which he found and collected at

Medina, relating more especially to the practice which prevailed there, and his

system of jurisprudence is based entirely on the traditions and practices of the

people of Medina. His book, known as Muwatta, is the first collection of Hadith

and one of the most authoritative books of tradition and Sunnah.

Imâm Shâfi’i

The third jurist is Imâm Muhammad ibn Idris Alshâf’I was born in Palestine in the

year 150 A.H. (A.D. 767). He passed his youth at Mecca but he worked for the

most part in Egypt, where he died in 204 A.H. In his day, he was unrivalled for his

knowledge of the Holy Quran, and took immense pains in studying the Sunnah,

travelling from one place to another in search of information. His school was based
chiefly on Sunnah. Over the Mâliki system, which is also based on Sunnah, the

Shâf’i system has the advantage that the Hadith made use of by Imâm Shâf’i was

more extensive, and was collected from different centres, while Imâm Mâlik

contented himself only with what he found at Medina.

Another example is a case in which Imam Muhammad Ibn Idris al-Shafi'i, one of

the founders of Islamic jurisprudence, gave a certain legal opinion in Baghdad.

One year later he moved to Cairo, and in response to the same question he gave a

very different opinion. Someone questioned him, "Oh Imam, last year in Baghdad

you gave a different answer," and he replied, "That was in Baghdad and this is in

Cairo. That was last year and this is now." When employing Ijtihad, scholars

considered the time, place, norms, and prevailing conditions when they rendered

their religious advice and opinions.

Imâm Ahmad Ibn Hanbal

Last of the four great Imâm was Ahmad ibn Hanbal who was born at Baghdâd in

the year 164 A.H. and died there in 241 A.H. he too made a very extensive study of

hadîth. His famous work on the subject is known as Musnad of Ahmad ibn Hanbal,

containing thousands of Hadith. This monumental compilation is based on the

material collected by the Imâm himself. His collection of Hadith is not arranged

according to subject matter but under the name of the companion to whom a

Hadith is ultimately traced.

While the system of Abû-Hanîfa applied reasoning very freely and sought to

deduce all questions from the Holy Quran by the help of reason, the system of Ibn

Hanbal is distinguished by the fact that it makes reserved use of reason and

judgment.

3.5 USE OF IJTIHAD AMONG THE SUNNIS AND THE SHIIITES.

3.4.1 INTRODUCTION.

The sources of Ijtihad according to Shiites and the Ahl al-Sunnah, put together,

are: the Book, the Sunnah, ijma` (consensus), `aql (reason), qiyas (analogy),

istihsan, masalih mursalah, istislah, sadd al-dhara'i`, fath al-dhara'i; madhhab

al-sahabi, shari`at al-salaf, `urf, istidlal, and so on. By practising Ijtihad, a

Mujtahid deduces the ahkam (laws) of the Shariah for issues and problems

regarding which there is no specific express text (nass), by relying on legal sources

and principles and by benefiting from the ideas of other Mujtahidun. On account of

this, it may be said that Ijtihad plays the role of an evolutionary and dynamic force

in legal studies which provides solutions to contingent issues of life and fulfils the
needs of changing times and the requirements of new phenomena of human

civilization. Ijtihad was practised by both the Sunnis as well as the Shiites. The

ways in which Ijtihad was and still is practised by both the Sunnis and the Shiites

will be discussed below.

3.4.2 Ijtihad as practised by the shia.

After the demise of the Prophet Shiites in the year 11/632, the Shiites believed in

the continuity of religious authority and nass after the Prophet Shiites, and they

considered the Infallible Imams of the Ahl al-Bayt as embodying the Prophet's

authority. Their statements (qawl), acts (fi’l) and approvals (taqr'ir) were

considered by them authoritative like those of the Holy Prophet Shiites, and hence

as part of the Sunnah. Accordingly, the Shiites did not feel the need for Ijtihad

contemporaneously with the Sunnis; it was only after the Greater Occultation (al

ghaybat al-kubra) of the Twelfth Imam that the Shiites came to feel the need to

practise Ijtihad on an extensive scale. They did not face any vacuum in Islamic law

after the prophet's demise because of their belief that `Ali (AS) and his descendants

had been invested by the Prophet Shiites with Imamate, the authority to expound

the Prophet's Sunnah and to perpetuate it, which to them was an inexhaustible

treasure that had been left by the Prophet Shiites for the Ummah. As a result of this

belief the Shiites referred to the living Imam for the solution of new problems and

obtained the solution in the form of an exposition of a verse of the Quran or

through a tradition of the Prophet. They never felt any need to turn to Ijtihad bi

al-ra’y or to resort to conjectural methods.

The only time the Shiites met with any difficulty in this regard with the beginning

of the Minor Occultation of the Twelfth Imam, a period of 69 years from 260/874

to 328/940. During this period, the Shiites could obtain replies to their queries

through the deputies95 of the hidden Imam who served as intermediaries. These

deputies, one after another, were four.96 With the end of the Minor Occultation and

the beginning of the Major Occultation in the year 329/941, in the absence of

access to the Imam or his deputies, the Shiites were confronted with greater

difficulty in regard to obtaining ahkam for new issues, which increased with the

passage of time and the growing distance from the era of nass, together with the

growing variety of the emergent issues and problems created by new conditions of

life. Moreover, with the passage of time, increasing number of doubts took the

place of the previous certainty about the meaning and import of the texts which

served as the bases of legal deductions. It was at this time that the Shiites began to

search for ways to solve this problem by deducing the ahkam for new issues from

the available legal sources.

95
nuwwab
96
Abu `Amr `Uthman ibn Sa`id, Abu Ja'far Muhammad ibn `Uthman (d. 304 or 5/916 or 7), Abu
al-Qasim Husayn ibn Ruh al-Nawbakhti (d. 326/938), and Abu al-Hasan `Ali ibn Muhammad
al-Samari (d. 329/941).
This new path was that of "Ijtihad" whose pioneer was the treat Mujtahid and

creative jurisprudent al-Hasan ibn Abi `Aqil al Umani. After him, we can name

al-Shaykh al-Tusi, the great scholar and highly original Mujtahid who employed

the foundations built by Ibn Abi `Aqil for extensive deduction of ahkam of the

Shari'ah. In this way the difficulties living in the way of Shi’i jurisprudence were

removed and it overcame its hurdles.

3.4.3 IJTIHAD AS PRACTISED BY THE SUNNIS

After the demise of the Prophet Shiites in the year 11/632, the need for Ijtihad was

felt acutely by the Sunnis, for they thought that the continuity of Divine guidance

in the form of authoritative texts (nass) had ceased with his demise and the only

means of determining the Divine laws that remained was to search for them in the

Book of God and the statements and acts of the Prophet. the Ahl al-Sunnah97 came

to face various constrictions in the way of deducing laws of Shari'ah for contingent

issues on account of distancing themselves from the Imams of the Ahl al-Bayt

97
Strict followers of the prophet’s teachings
98
(A) after the Prophet's demise. This was because, on the one hand, about two

thirds of Quranic verses were seen to deal with doctrines, social principles, higher

ethical values, historical events relating to past messengers and their peoples, and

accounts of their struggle against the oppressors and taghuts99 of their times; on the

other hand, though the remaining one-third of them relate to legal matters (such as:

salat, sawm, zakatt, Hajj, jihad, al-'amr bi al-maruf wa al-nahy `an al-munkar100;

legal contracts and economic deals, such as matters relating to marriage, divorce,

will and inheritance, sale, lease and mortgage; penal matters, such as those relating

to hudud, diyat and qisas; matters relating to government, judiciary, judgement,

testimony, qualifications for judgeship; matters relating to the rights of parents,

debts, etc.) they deal mostly with general principles, leaving the details and

particulars to the Sunnah in accordance with the verse:

wamaa ataakumu rasuulu fakhudhuu’ wa maa nahaakum an’hu fantahu

Meaning: Take whatever the Apostle brings you, and abstain from whatever he

forbids you from.101

In the case of the Shiites there is slight difference. During the time of the Holy

Prophet (PBUH) he was the supreme authority on Islamic law. After him the
98
Families or descendants of Ali
99
falsehood
100
Commanding of righteousness and preaching against vices
101
59:7
position was transferred to Amirul Mo’mineen Ali (a.s.) and in succession the

Holy Imams of Ahle Bayt (a.s.) till the major occultation of Imam Mahdi (a.s.).

Till that time whenever any Shiites had a religious problem he used to contact the

Imam of his time and obtain the solution. Since the Major Occultation became a

barrier between the twelfth Imam (a.s.) and the Shiites in the sense they could not

meet him at will, the Imam told them:

"And as for the future occurrences, refer to the narrators of our traditions because

they are my proof upon you and I am the proof of Allah."

The above command of Imam Mahdi (a.s.) became the foundation of Ijtihad and

Taqleed among the Shiites.

3.4.4 The Difference between Shi'i and Sunni Ijtihad

`Ijtihad' is a familiar term both in Shi`i and Sunni fiqh, but its meaning and

characteristics are different in the contexts of the two. Whereas Ijtihad in the Shi'i

sense means deduction of ahkam102 from the sources and through the principles of

the Shariah, the same term in Sunni Fiqh means deduction of ahkam through such

means as ra’y, qiyas, istihsan, masalih mursalah, etc. Therefore, it has been said

that Shi'i Ijtihad does not involve legislation (tashr'i') of new laws as Divine

commands regarding emergent issues and events; it confines itself to applying the

102
Rules(laws)
unchanging general principles to emergent, changing particulars (tafri`).The Shiites

do not look upon Ijtihad as an independent source of ahkam but as the means of

their identification through a study of the sources of the Shariah. The Ahl

al-Sunnah, on the contrary, consider Ijtihad as an independent source of legislation.

In a nut shell the Sunni orthodox Mujtahids103 said that where any Ijtihad is carried

out and contradicts their personal opinion, the recent Ijtihad should take

precedence as long as it does not contradict the asl.104

CHAPTER FOUR

4.1Taqleed

4.2 Gates of ijtihad; open or closed?

4.3 Ijtihad and contemporary issues

CHAPTER FOUR

IJTIHAD AND MODERNITY

What Issues Should Be Subjected to Ijtihad?

103
The four great imams
104
Primary source of Islamic law, i.e. Quran and Hadith
Many issues facing Muslims today require ijtihad, and the following ones,

according to Siddiqi, require urgent attention:

 The role of women. The role of women in Islam needs to be reviewed by

carefully examining the original texts.

 Sunnis and Shiites. The gap in doctrine between various Islamic madhahib

(schools and sectarian positions) should be narrowed.

 The spirit of globalization. Using modern ijtihad, Muslims should reinterpret

the classical division of the world into darul Islam (the world of Islam) and

darul Harb (the world of non-Muslims). Emphasis should be placed on a

one-world view and responsible citizenship in our global village. Ijtihad

should also be used to foster better relations between people of diverse faiths

and cultures by promoting dialogue among various groups rather than

encouraging the notion of a clash of cultures and civilizations.

 Economics. There is a need to radically rethink Islamic economic theories, in

the process incorporating elements of modern economic theories. Why is the

Muslim world impoverished and how can this be changed? What kind of

collaboration is possible between Muslims and world economic bodies

without compromising authentic Islamic values and principles of justice,

equity, and fairness?

  Unity among Muslim states. Islamic political thinking and statecraft should

also be reviewed. How can Muslim states be brought together to collaborate

more closely, and what new structures are needed to promote unity among

Muslim states? Ethical and moral standards of the Islamic state need to be

examined, as does the promotion of individual freedom, especially that of

religious minorities.

 Muslims in non-Muslim countries. Ijtihad should be used to guide the almost

one-third of the umma (the worldwide Muslim community) that is living as

minorities in non-Muslim countries. What Islamic rules and guidelines

should these Muslims follow to be good citizens of their native or adopted

land? How can they become active and responsible participants in the life of

these countries while not neglecting their Islamic beliefs and values?

According to Qazwini, other major obstacles facing Muslims and the practice of

ijtihad today include prejudice, intellectual stagnation, political dictatorship,

rejection of others, lack of democracy and freedom, factionalism, and extremism.

Regrettably, these illnesses pervasive in Muslim societies are worsening, reaching

a point where they may spiral out of control.

Noting that the panelists involved in the discussion on March 19, 2004, represented

the entire Muslim spectrum—men and women, Shiites and Sunnis, religious
scholars and academic scholars—Qazwini proposed that the panel could present

the Muslim world with an ideal image of Islam's tolerance and openness. There is

no doubt that living in the United States gives one a sense of appreciation for

pluralism. Muslims in the United States also enjoy more freedom, even religious

freedom, than exists in most Muslim countries. Muslim Americans could project

this positive perspective, including their openness with one another, mutual

tolerance, and participation in interfaith dialogue, to the greater Muslim world,

becoming a model for millions of Muslims around the globe.

Conclusion

Ijtihad should be encouraged and scholars should be trained for it. Those who have

instinct for it must acquire the tools necessary for it."