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IJTIHAD
IN ISLAMIC JURISPRUDENCE
What
does ijtihad mean?
Ijtihad
means, after acquiring the required
knowledge and competence, deducing rules
of law through juristic reasoning from
original sources (The Qur’an and Sunna,
the pronouncements and practices of the
Prophet, upon him be peace and
blessings, if the authentic sources
available are not decisive on the
particular question in hand.]
In
order to put in their place those who
overstep the limits in this matter, the
following treatise may be useful:
In
the Name of God, the Merciful, the
Compassionate.
If
they had only referred it to the
Prophet, or to those having the
authority among them, certainly those
who are capable of deductions among them
would have known it.
Is
the door to ijtihad open?
The
door to ijtihad is open but there
are six obstacles which block up the way
to it.
The
first:
Just as in winter when storms are
violent even the small holes are closed
up and to open new ones is in no way
reasonable, and just as under the
onslaught of a mighty flood to make
openings in the wall to repair it leads
to being drowned, so too, at this time
of the invasion of hideous sins and
customs from Europe and the legion of
religious innovations, and the
destructions of misguidance, to open in
the name of ijtihad new breaches
and routes of infiltrations in the walls
of the citadel of Islam, is a crime
against Islam and a help to the ‘enemy’.
The
second:
Religion is primarily based on certain
essentials which are not subject to
ijtihad. They are specified and
definite, and are like basic food and
sustenance without which life is not
possible. At present they are abandoned
and not given due care and importance.
While we must therefore spend all our
efforts in restoring and revitalizing
them, abandoning the rules which the
first generations of Islam deduced for
the theoretical matters of Islam from
the main sources of the law with perfect
authority and purity of intention, and
which are adequate for the needs of all
times, to seek new rules in an indulgent
and fanciful fashion is a harmful
innovation and betrayal of Islam.
The
third:
Just as in the market various goods,
foods and fruits are sought after
according to season, and are in demand
one after the other according to the
change of time, so too in the market of
the social life of mankind and human
civilization, certain ‘goods’ are in
demand in a particular epoch. They are
displayed in the market, attention is
drawn to them and minds are preoccupied
with them. For example, while at this
time politics, securing the worldly life
and philosophy are in more demand, in
the time and market of the righteous
early generations of Islam the most
sought-after ‘goods’ were to learn
from the Word of the Creator of the
heavens and earth the things of which He
approves and what He wants of us, and to
obtain the means of gaining eternal
happiness in the world of the Hereafter,
the doors of which were opened by the
light of Prophethood and the Qur’an so
wide that they can no longer be closed.
Since
at that time all the minds, hearts and
souls were bent with all their strength
on understanding the things the Lord of
the heavens and earth approves of, the
conversations, discussions,
correspondences and events were all
devoted to that point. Therefore,
whoever had the capacity was naturally
and automatically taught by the ethos of
the time. It was as if everything was a
teacher to prepare his mind and soul and
develop his capacity to do ijtihad.
This natural and automatic kind of
teaching was so enlightening that one
was almost capable of doing ijtihad
without the acquisition of necessary
knowledge. With a match-like capacity
ready to ignite, one who had that
natural education displayed the meaning
of light upon light, and became a mujtahid,
one who is able to do ijtihad, in
a short time.
At
this time, however, due to the
domination of European civilization and
the heavy pressure of naturalistic
philosophy, and due to the conditions of
modern life growing unbearable, minds
and hearts are scattered, and efforts
and cares divided. Minds have become
estranged from spiritual issues. It is
because of this that, supposing one was
as intelligent as Sufyan ibn Uyayna, a
great mujtahid who memorized the
Qur’an at the age of four and held
discussions with scholars, in contrast
with the time of Sufyan, one would now
need ten times longer to become a mujtahid.
If Sufyan became qualified to do ijtihad
in ten years, that man would now need a
hundred years. This is because the
period of Sufyan’s natural study began
at the age of reason. His capacity
gradually developed, was sharpened, and
reached the degree to take lessons from
everything, becoming like a match in the
end. As for his counterpart at this
time, since his thought is absorbed in
philosophy, his mind preoccupied with
politics, and his heart is giddy at the
worldly life, his capacity has grown too
dull to acquire the qualifications of
become a mujtahid. For sure, his
faculties have become removed from
exerting themselves to be qualified to
do ijtihad to the degree of his
preoccupation with modern sciences, and
have remained backward in regard to it
to the extent that he has become learned
in physical and worldly matters.
Therefore, he may not say: “I am as
intelligent as him. Why can’t I be on
a level with him?” He has no right to
say this, and he cannot be on a level
with him.
The
fourth:
There is in a body the inclination to
expand for its growth and development.
Since this inclination is inherent in
the body and comes from within, it
functions for the perfection of the
body. Whereas if the inclination was in
the form of intervention from outside,
then it would cause rips in the body's
skin and therefore not be expansion.
Likewise, if the inclination to expand
and desire to do ijtihad are
present in those who, like the righteous
early generations, have entered the
sphere of Islam through the door of
perfect taqwa-utmost care in
living according to Divine rules of
religion and laws of the creation and
operation of the universe--and through
the way of conforming to the essentials
of Islam, that is a virtue and
perfection. But if such an inclination
and desire come from those who abandon
the essentials of religion, prefer the
worldly life to that of the Hereafter,
and are preoccupied with materialistic
philosophy, then it is the means of
destroying the body of Islam and
breaking away from the Shari‘a.
The
fifth:
The Law of Islam is heavenly, revealed,
and since ijtihad is to uncover
its hidden rules and commandments, it is
also heavenly. However, there are three
factors which prevent the present desire
for ijtihad from being heavenly
and make it worldly:
The
factors which prevent the present
desires for ijtihad from being
heavenly and make them worldly
The
first:
The cause for the establishment of a
rule is different from the wisdom and
benefit expected of it. Wisdom or
benefit is the reason of its preference,
while the cause requires its existence.
For example, when a Muslim is on a
journey, he shortens his prescribed
prayers--he performs the prayers of four
units or cycles (rak‘a) to two.
The cause for this Divine dispensation
in respect to the lightening of the duty
of the prayer is travelling, and the
wisdom lying in it is the hardships of
travelling. A Muslim shortens his
prayers as long as he is on a journey,
even though he meets no hardships during
it, because the cause exists. If he is
not on a journey and yet meets hundreds
of hardships, he cannot shorten the
prayers, because wisdom or benefit
cannot be the cause for this
dispensation. However, contrary to this
precept, the present viewpoint
substitutes wisdom or benefit for the
cause and judges accordingly. Certainly,
this type of ijtihad is worldly
and cannot be heavenly.
The
second:
The present viewpoint of people
considers the worldly happiness in the
first place and gives it priority in its
judgements. Whereas, in the view of the
Islamic Shari(a the otherworldly eternal
happiness has absolute precedence, and
the happiness in the world has a
secondary place and is considered from
the perspective of its being a means of
eternal happiness. Therefore, since the
present viewpoint is strange to the
spirit of the Shari(a, it has no right
to exercise ijtihad in the Name
of the Shari(a.
The
third:
The principle that an absolute necessity
makes permissible what is forbidden by
the Shari(a, does not have validity at
all times and in all circumstances. If
the necessity does not arise from a
forbidden act, it may be the cause for a
permission. If, by contrast, it arises
from a misuse of will-power and unlawful
acts, it cannot be the means or an
excuse for any dispensation.
For
example, if a man voluntarily drinks
alcohol and becomes drunk, he cannot be
excused for the crimes he commits. If he
divorces his wife, the divorce is in
force. If he commits a murder, he is
punished. Whereas, if his drunkenness
has not arisen from his misuse of
will-power - if he has been forced or
threatened to do that, for example -
then neither the divorce is in force nor
is he punished. But one who has
voluntarily been addicted to alcohol and
can no longer give it up, cannot make
the excuse: ‘I am obliged to drink it,
and therefore it is lawful for me.’
Thus,
at this time there are many things which
have become generally ‘necessary’
and people are unable to renounce them.
However, since they have all arisen from
voluntary misuse of will-power, unlawful
inclinations, and forbidden acts, they
can be the means for neither a
dispensation nor making the unlawful
lawful. Whereas, since those who are in
favour of exercising ijtihad in
the present circumstances, build their
reasoning on such sorts of necessities,
their ijtihad is worldly, the
product of their fancies, and under the
influence of modern trends of thought,
and therefore is not heavenly and in
accordance with the Shari‘a. If any
exercise of authority in the Divine
ordinances of the Creator of the heavens
and earth, and interference in the
worship of His servants does not depend
on that Creator's permission, that
exercise of authority and interference
are rejected.
The
sixth:
Since the respected mujtahids
among the righteous early generations of
Islam were close in time to the age of
the Companions, which was the age of
light and truth, they were purified by
that light and exercised ijtihad
with pure intentions. But those who
claim today to have the necessary
qualifications for ijtihad look
at the ‘book of truth’ from so great
a distance and from behind so many veils
that they can see with great difficulty
even the clearest letter of it.
Question
Were
all the Companions free of lying?
If
you argue that the Companions were
also human beings like us and not
free of errors and contradictions.
Yet, the commandments of the Shari‘a
established by the Sunna and the
conclusions the early mujtahids
drew through ijtihad are founded
upon the general belief and
unanimous agreement of the Muslim
community that All of the
Companions are just and truthful;
they are free of lying.
Answer:
It is true that the absolute majority of
the Companions were lovers of truth,
passionately devoted to truthfulness and
desirous of justice. For in that age,
the ugliness of lying and deception was
demonstrated in all its ugliness, and
the beauty of truth and truthfulness in
all its beauty, in such a manner that
the distance between them was as great
as that between the ground and the
Supreme Throne of God. They were
separated from each other to the extent
of the distance between the degree of
the truthfulness of the Prophet
Muhammad, upon him be peace and
blessings, who is at the highest of the
high, and the deceptiveness of Musaylima
the Liar, who is at the lowest of the
low. Indeed, while lying caused
Musaylima to fall to the lowest of the
law, it is truthfulness which caused
Muhammad the Trustworthy, upon him be
peace and blessings, to rise to the
highest of the high.
The
Companions, who were illumined by the
light of companionship with the Sun of
Prophethood, had lofty emotions and
sentiments and adored good morals. It is
certain, doubtless, and undeniable that
they never inclined to lying
voluntarily, an act which is infinitely
ugly and the cause of utmost
degradation, which is found in the ‘shops’
of Musaylima-like liars, full of filth
and disgracing objects of ridicule.
Also, as much they avoided unbelief,
they also avoided lying to the same
degree, which is a companion of
unbelief. Particularly in the narration
and communication of the commandments of
the Shari‘a, they were as careful as
possible in seeking truth and being
truthful, and conforming to truth, which
is infinitely beautiful and a means of
pride and glory, and a stairway to
spiritual perfection, which is in
greater demand than the other ‘gems’
in the elevated treasury of the Pride of
Messengership, and illuminates the
social life of mankind with the splendor
of its beauty.
By
contrast, at this time, the distance
between truth and lying has become so
narrow that they stand side by side. It
is extremely easy to pass from truth to
lying. Political propaganda has even
made lying preferable to truth. Thus, if
the ugliest thing is sold in a shop
together with most beautiful things for
the same price, for sure the brilliance
of truth, which is infinitely sublime
and priceless, is not to be bought in
blind reliance on the skills and word of
the shopkeeper.
Conclusion:
Why
there are more than one school of
jurisprudence
Laws
change according to ages. Prior to the
Seal of the Prophets, at times it
happened that in one age different
Prophets came to different peoples with
different laws. After the Seal of the
Prophets, upon him be peace and
blessings, however, since his most
comprehensive Shari(ah is sufficient for
all the peoples in every age, no need
has remained for other laws.
Nevertheless, in secondary matters of
the Shari(a, the need for different
schools has remained to a degree. Just
as clothes change according to seasons
and cures may differ according to
temperaments, so too with the change of
ages and according to the characters and
capacities of peoples, the rules for the
secondary matters of the Shari(a may
differ. Because those secondary matters
are concerned with human temperaments
and the prevailing conditions of the
time, they come according to them and
become like cures.
At
the time of the early Prophets, peoples
were distant from one another both
physically and with respect to the level
of education, and their characters were
somewhat coarse and violent, and their
minds, primitive. For this reason, the
Laws which came at that time were all
different and appropriate to their
conditions. There were even different
Prophets and Laws in the same region in
the same age.
Then,
since the Last Prophet came with an
all-comprehensive religion to lead
mankind to pass to the secondary and
further stages in science, education and
civilization, and to enable them,
through numerous revolutions and
upheavals, to reach a position at which
all peoples could receive a single
lesson and listen to a single teacher
and act in accordance with a single law,
no need remained for different Laws,
neither was there any need for different
teachers. But because they have never
been all at completely the same level
and led the same sort of social life,
there have been different schools of
conduct. If, like the students of a
school of higher education at almost the
same level with one another, the
absolute majority of mankind were to
lead the same sort of social life and
attain the same level, then all the
schools could be united. But since the
conditions of the world do not allow
that, the schools of law cannot be the
same.
Question
The
truth is one; how then can the different
ordinances of four, or, as there were
once, twelve schools be true?
Answer:
The
same water functions in five different
ways in five ill people of different
dispositions. For one, the water is cure
for his illness, and according to the
science of medicine, necessary. For
another, it is like poison for his
illness and harmful, and medically
forbidden. For the third one, the water
is a bit harmful and therefore should be
avoided. For the fourth one, the water
is beneficial and without harm, and
medicine advises it. And for the last
one, it is neither harmful nor
beneficial; he can drink it with good
health, and for him it is medically
permissible. Thus, here the truth has
become numerous; all five approaches are
valid. Can you argue that the water is
only a cure, functioning in no other
way, so it must be drunk regardless?
So,
in a similar way, Divine Wisdom requires
that the Divine ordinances of the
secondary degree should differ according
to the people following them, and this
results in the emergence of different
schools, all of which are in the right.
For example, since, in accordance with
Divine Wisdom, the majority of those who
follow the School of Imam Shafi‘i are
rather closer to village life than the
Hanafis, and are somewhat lacking in
social life, which makes the community
like a single body, each recites the Fatiha
behind the prayer-leader so as to
unburden himself at the Court of the
Dispenser of Needs and utter his private
wishes. This is right and pure wisdom.
However, the majority of the people
living under the Islamic governments
having favored the School of Imam Abu
Hanifa, are closer to civilization and
city life and more inclined to social
life. Thus, the community becomes like a
single individual and one man may speak
on behalf of all; since all affirm and
support him with their hearts, and his
word becomes the word of all, according
to the Hanafi School, the congregation
do not recite the Fatiha behind
the prayer-leader. This is also right
and pure wisdom.
Again,
for example, since through forming a
barrier against the assaults of man's
nature, the Shari‘a modifies it and
trains the evil-commanding self,
according to the Shafi‘i School, the
majority of whose followers are usually
villagers and those occupied in manual
labor, ablution--the canonical
purification--becomes invalid by
touching the naked skin of a woman who
can lawfully be taken in marriage; also,
a small amount of filth on the body or
clothes invalidates the canonical purity
for worship. While according to the
Hanafi School, most of whose followers
have entered the social life and become
somewhat civilized, neither touching
women nor filth less than about three
grams invalidates ablution.
Here
we shall consider a manual worker and a
gentleman. Due to his occupation and the
manner of his livelihood, a worker is
afflicted with being in near contact
with unclean things and mixing with and
being together with women who are by law
strangers to him. Making use of this
opportunity, his nature and
evil-commanding self may impel him to
transgress the bounds of decency.
Therefore, in order to form a barrier
against such transgressions and protect
him against much dirt, the Shari‘a
warns them with a heavenly tune: “You
will lose your ritual purity, do not
touch the women! Your prayers will be
invalid, do not be tainted!” Whereas,
in accordance with social custom and in
the name of common morality, the Muslim
gentleman who remains within the limits
of modesty is not burdened with mixing
and being together with women who are
lawful for him to marry, and in the name
of cleanliness of civilization, he
refrains from dirt as much as possible.
Therefore, in the Hanafi School, the
Shari‘a has not shown him the same
strictness; rather, it has shown him its
permissive side, and lightened it. It
says, “If you simply touch her with
your hand, it will not invalidate your
ablution. And if it is not possible for
you to clean the dirt from your body or
clothes, any dirt less than three grams
of weight is permitted, so you do not
have to renew your ablution,” and
saves him from scruples on that account.
These
are like two drops from the ocean as
examples for you. If you can, try to
judge in this way the ordinances of the
Shari(a according to the criteria
discovered by Imam Sha‘rani.
O
God! Bestow blessings and peace on him
who, on account of being a comprehensive
mirror to the manifestations of Your
Most Beautiful Names, embodied the
lights of Your love for the beauty of
Your Attributes and Names,
and,
on account of being the most perfect and
wonderful of Your creatures, and the
sample of the perfections of Your art
and the index of the beauties of Your
inscriptions, in whose being were
focused the rays of Your love for Your
inscriptions;
and
who, on account of being the most
elevated herald of the beauties of Your
art, and the one who proclaimed in the
loudest voice admiration for the beauty
of Your inscriptions, and is the most
unique in praising the perfections of
Your art, displayed in his being the
subtleties of Your love and desire for
the appreciation of Your art;
and
who, on account of having all good
morality through Your favor and all
beautiful attributes through Your grace,
gathered together in his being the
varieties of Your love and appreciation
of You for the good morals of Your
creatures and the beauties of the
attributes of Your creatures;
and
who is the most exact criterion and
superior standard for all whom You
mention in the Qur’an-Your Criterion
of Truth and Falsehood--You love from
among those who always do good, who are
the patient, the believers, the
God-fearing, those who turn to You in
penitence and submission, and all the
classes of those whom You love and have
honored with love of You in Your
Criterion of Truth and Falsehood, so he
became the leader of those who love You
and the master of those whom You love;
and
bestow blessings and peace on his family
and Companions and brethren. Amen,
through Your Mercy, O Most Merciful of
the Merciful!
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