IJTIHAD IN LEGAL THEORY (usul al-fiqh)

In Islamic legal theory, discovering the law of God was of crucial significance, for it was the law that informed man of the conduct acceptable to Allah. It is exactly for the purpose of finding the rulings decreed by God that the method­ology of usul al-fiqh was established.

The Quran and the Sunna of the Prophet do not, as a rule, specify the law as it might be stated in specialized law manuals, but only contain some rulings (ahkam; pl. of hukm) and indications (dalalat or amarat) that lead to the causes (^c/7a/; pl. of ^cilla) of these rulings. On the basis of these indications and causes the mujtahid may attempt, by employing the procedure of qiyas (analogy) to discover the judgement (hukm) of an unprecedented case (far^Q\ pl. of furu^c). But before embarking on this original task, he must first search for the judgement in the works of renowned jurists. If he fails to find a precedent in these works he may look for a similar case in which legal acts are different but legal facts are the same. Failing this he must turn to the Quran, the Sunna, or ijma^Q (consensus) for a precedent that has a ^cilla identical to that of the far^c. When this is reached he is to apply the principles of qiyas (analogy) in order to reach the ruling of the case in question. This ruling may be one of the following: the obligatory (wajib), the forbidden (mahzur), the recommended (mandub), the permissible (mubah), or the disapproved (makruh).*

The primary objective of legal theory, therefore, was to lay down a coherent system of principles through which a qualified jurist could extract rulings for novel cases. From the third/ninth century onwards this was universally recog­nized by jurists to be the sacred purpose of usul al-fiqh.⁹

Legal theory in all its parts is sanctioned by divine authority, that is, it derives its authority (hujjiyya) from revealed sources.

In theory at least there is certainly nothing to indicate that ijtihad was put out of practice or abrogated. In due course it will become clear that legal theory played a rather significant role in favor of ijtihad. Thus, if the practice of ijtihad was the primary objective of the methodology and theory of usul al-fiqh through­out Islamic history, the question that may be asked is in what way was the gate of ijtihad thought to have been closed? It has been assumed, among other things, that the practice of ijtihad was abandoned because the qualifications required for its practice “were made so immaculate and rigorous and were set so high that they were humanly impossible of fulfillment.”¹¹ This supposition can be refuted through an examination of the writings of jurists on the subject.

The earliest complete published account¹² of usul al-fiqh in which the qualifica­tions of mujtahids are stated is Abu Husayn al-Basri’s (d. 436/1044) al-Mu^ctamad fi Usul al-Fiqh™ Basri’s first requirement for ijtihad entails a knowledge of the Quran, the Sunna of the Prophet and the principles of inference (istidldl), and qiyas. The investigation of the ways of hadith transmission and the trustworthi­ness of transmitters is necessary for verifying the credibility of akhbar (prophetic reports). The overall emphasis of Basri falls especially on qiyas as an indispensible tool in any undertaking of ijtihad, which in turn involves the practical knowledge of all rules related to ^cilla, asl (the legal part in the texts), far^c, and hukm.

Finally, Basri mitigates the rigorousness of these requirements in the law of inheritance. Whenever a jurist is capable of practicing ijtihad in a single case of inheritance and has no access to the above-mentioned skills, he may still be allowed to do so. According to Basri, this is justified on the grounds that method­ical principles and textual subject-matter related to inheritance are independent of, and unconnected with, other parts of the law. Otherwise, the jurist must not attempt ijtihad in any other area of law until he is well equipped with the necessary tools.¹⁵

Shirazi (d.

When discussing the requirements of ijtihad, Ghazali (d. 505/1111) maintained that in order to reach the rank of mujtahid the jurist must:¹⁷

1. Know the 500 verses needed in law; committing them to memory is not a prerequisite.

2. Know the way to relevant hadith literature; he needs only to maintain a reliable copy of Abu Dawud’s or Bayhaqi’s collections rather than memorize their contents.

3. Know the substance of furu^c works and the points subject to ijma^c, so that he does not deviate from the established laws. If he cannot meet this requirement he must ensure that the legal opinion he has arrived at does not contradict any opinion of a renowned jurist.

4. Know the methods by which legal evidence is derived from the texts.

5. Know the Arabic language; complete mastery of its principles is not a prerequisite.

6. Know the rules governing the doctrine of abrogation. However, the jurist need not be thoroughly familiar with the details of this doctrine; it suffices to show that the verse or the hadith in question had not been repealed.

7. Investigate the authenticity of hadith. If the hadith has been accepted by Muslims as reliable, it may not be questioned. If a transmitter was known for probity, all hadiths related through him are to be accepted.

These qualifications, Ghazali remarks, are required from jurists who intend to embark on ijtihad in all areas of substantive law. Those who want to practice ijtihad in one area, e.g., family law, or only in a single case, say a case of divorce, need not fulfill all the conditions but are instead required to know the method­ological principles and the textual material needed to solve that particular prob­lem.¹⁸ Accordingly, a jurist may practice ijtihad in the area of liquor drinking (muskirat) though his knowledge of hadith is limited. He must, however, be proficient in the procedure of qiyas and in the Quran, because muskirat cases depend heavily on the Quran and qiyas.

Apart from a slight emphasis on a few matters of religion and belief with which the mujtahid must be acquainted, and apart from the additional prerequi­site of familiarity with the circumstances under which the Quran was revealed (qsbab al-nuzul), Amidi (d. 632/1234) adds nothing to what others had previously said.¹⁹ Noteworthy only is his emphasis that a less qualified mujtahid is allowed to solve a case without meeting the requirements set forth by Basri, Shirazi, Ghazali, and himself. All that he needs to know are the immediate tools to solve the issue in question.²⁰

Only space here prevents us from discussing later jurists’ writings on this issue, but to be sure, the successors of Ghazali and Amidi, such as Baydawi (d. 685/ 1286), Subki (d. 771/1369), Isnawi (d. 772/1370), Ibn al-Humam (d. 861/1456), Ibn Amir al-Hajj (d. 879/1474), Ansari (d. 1119/1707) and Ibn ^cAbd al-Shakur (d. 1225/1810),²¹ did not depart significantly from the established Sunni legal doctrine propounded by Ghazali. Some of these authors, such as Baydawi, de­manded encompassing knowledge of the Quran and some others like Ibn al- Humam and Ibn Amir al-Hajj reduced the number of hadiths required to l,200.²² The more important point is that the divisibility (tojzPa) of ijtihad was recognized to be lawful in Sunni law and thus a limited knowledge of usul was sufficient to allow a jurist to practice ijtihad in an individual case.²³ Basri and Shirazi are nearly alone in not specifying that the divisibility of ijtihad is permissible in all areas of law.

It would therefore be implausible to maintain that the qualifications for ijtihad as set forth in Muslim legal writings made it impossible for jurists to practice ijtihad. The total knowledge required on the part of lawyers enabled many, as we shall see later, to undertake this practice in one area of law or another. The practice of ijtihad was further facilitated by removing the charge of sin from the mujtahid who commits an error and even made him entitled to one reward in heaven. In the case of a mujtahid whose ijtihad was sound, it was determined that he be doubly rewarded.²⁴ This being so, one can state with a fair amount of confidence that legal theory, including the qualifications required for the practice of ijtihad, can hardly be held responsible for narrowing the scope of ijtihad’s activity, much less closing its gate. Further discussion of the role of ijtihad and mujtahids in Islamic legal history after the second/eighth century will show that ijtihad remained an integral part of the Sunni legal doctrine and that those who opposed it were finally excluded from Sunnism.