THE RULES ON IJTIHAD

Ijtihad in Islamic law can be defined simply as ‘interpretation’. It is the most important source of Islamic law next to the Qur’an and the Sunnah. The main difference between ijtihad and both the Qur’an and the Sunnah is that ijtihad is a continuous process of development whereas the Qur’an and the Sunnah, as mentioned above, are fixed sources of authority and were not altered or added to after the death of the Prophet.^[1074]

Ijtihad literally means ‘striving, or self-exertion in any activity which entails a measure of hardship’.^[1075] According to a classical Muslim scholar al-Amidi, ijtihad is defined as ‘the total expenditure of effort made by a jurist to infer, with a degree of probability, the rules of Islamic law’.^[1076] In this sense, al-Ghazali defined ijtihad as ‘the expending, on the part of a Mujtahid, of all that he is capable of in order to seek knowledge of the injunctions of Islamic law’.^[1077]

Interpretation the Quran and the Sunna is not a new concept in Islamic law and is used to overcome the abovementioned limitations of the texts.

What will you do if a matter is referred to you for judgement?’ Mua’dh said, ‘I will judge according to the Book of Allah’. The Prophet asked, ‘What if you find no solution in the Book of Allah?’ Mua’dh said, ‘Then I will judge by the Sunnah of the Prophet’. The Prophet asked: ‘And what if you do not find it in the Sunnah of the Prophet?’ Mua’dh said: ‘Then I will make ijtihad to formulate my own judgement’. The Prophet patted Mua’dh’s chest and said: ‘Praise be to Allah Who has guided the messenger of His prophet to that which pleases him and His Messenger.^[1078]

However, it should be stressed that the concept and the meaning of ijtihad, as used in the conversation above, is different to ijtihad in its current context.

In the period of the leaders of Maddhab (school of thoughts), Abu Hanifah (d. 150 AH/767 CE) was reported as having said:

I follow the book of Allah, and if I find no solution there, I follow the Sunnah of the Prophet, peace be upon him, If I find no solution in either the Qur’an or the Sunnah, I follow whichever of the pronouncements of the Sahabah (the Prophet’s companions) I prefer, and leave whichever I wish. If there is a pronouncement on a particular matter by any of the Sahabah, I would not adopt any other opinion made by any other scholar. But if I found a solution only in the opinions of Ibrahim, al-Shu’bi, Ibn Sirrin, al-Hasan, or Sa’id ibn al-Musayyab [all were Muslim scholars in the era of Tabi’un, or after companions’ era] I would make ijtihad, just as they did.^[1079]

Abu Hanifah, the founder of the Hanafi school, here not only describes his method of issuing fatwa and the procedure to be adopted in the case of ijtihad, but also defines the procedure of ijtihad.

It is instructive to explore the meaning of ijtihad in the Muwatta’ of Imam Malik (d. 179 AH/795 CE), since this book is usually considered to be amongst the earliest of Islamic juristic works.^[1080] Ahmad Hasan explained that Malik used the term ijtihad generally, for cases where he could find no definite answer from the Prophet or in commonly agreed practice and, therefore, left the matter to the discretion of the Imam to decide.^[1081] An examination of the term ijtihad in Muwatta’ lends support to Hasan’s opinion. Several examples of how ijtihad is used in Muwatta’ are outlined below:

1. Malik was asked about bonuses and whether they were taken from the first of the spoils, and he said, ‘That is only decided according to the ijtihad of the Imam [the leader].

2. Yahya said that Malik was asked whether someone who killed one of the enemy could keep the man’s effects without the permission of the Imam. He said, ‘No one can do that without the permission of the Imam. Only the Imam can make ijtihad. I have not heard that the Messenger of Allah, may Allah bless him and grant him peace, ever said, “Whoever kills someone can have his effects”, on any other day than the day of Hunayn.’^[1083]

At the time of Malik who lived in Madinah, according to Ahmad Hasan, scholars of Iraq used the term hukumah ‘adl (fair arbitration) in cases where Malik used the term ijtihad. Hasan believed that the term ijtihad was not in frequent use in the Iraqis’ writings, except for Al-Shaybani, who wrote Kitab Ijtihad al-Ra’y.^[1084]

In the second century (eighth century CE), after the era of Malik, ijtihad was gradually dissociated from ra’y (opinion) as the latter (ra’y) increasingly fell into the category of objectionable practices.^[1085] Muham­mad bin Idris al-Shafi’i (d. 204 AH) was the first to make a clean break from ra’y and to adopt ijtihad as a methodology synonymous with qiyas (analogy). He said, ‘They (ijtihad and qiyas) are two names for the same thing (innahuma ismani li ma’na wahid).’^[1086]

Defining ijtihad, Shafi’i says that if a Muslim is faced with a given situation, he/she should follow the express binding injunction, if avail­able; otherwise he/she should try to seek by ijtihad the indications that lead to truth. Shafi’i says that ijtihad is nothing but qiyas.^[1087]

One of Shafi’i’s followers, two centuries after the Shafi’i era, al-Mawardi (d.

Despite the fact that several of his followers took the point that qiyas is not the same as ijtihad, but is a part of ijtihad, since the Shafi'i era the word ijtihad has come to mean more than an abstract concept. At that stage, ijtihad was used as a technical word in Islamic law which required method and procedure in order to be performed. As Wael B. Hallaq explains:

In the eight century ijtihad was also used in the sense of ‘technical estimate’ or ‘fair judgment’, particularly ‘an effort at setting the value of a thing’, as in estimating due compensation or damages. This meaning of the term was to persist for centuries in the realm of substantive law. With the elaboration of legal theory (usul al-fiqh) toward the beginning of the tenth century, the meaning and scope of ijtihad finally became defined. Ijtihad now came to signify the utmost intellectual effort of the Mujtahid to reach a solution or a rule (hukm) on a religious matter.^[1089]

The forming of schools in Islamic law launched the issue of whether anyone at all could perform ijtihad, or only a limited number of people. Al-Amidi (d. 631 AH/1233 CE) and al-Baydawi (d. 685 AH/1286 CE) agreed that only people who satisfy specific requirements can apply ijtihad. According to them, there were two main conditions of Mujtahid: firstly, to be an adult and believer in Allah and the Prophet; secondly, to be an expert in all aspects of Islamic law (al-ahkam al-syar’iyah wa aqsamuha).^[1090]

Furthermore, when discussing the requirements of ijtihad, Imam al-Ghazali maintained that in order to reach the rank of Mujtahid, additionally to the two conditions mentioned above, the individual jurist must:

1.

2. know the way to relevant Hadith literature; the jurist needs only to maintain a reliable copy of Abu Dawud’s or Bayhaqi’s collection rather than memorise their contents;

3. know the substance of furu’ works and the points subject to ijma’, so that the jurist does not deviate from the established laws. If he/she cannot meet this requirement, he/she must ensure that the legal opinion 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 (naskh). 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; and

7. investigate the authenticity of the Hadith. If Muslims have accepted the Hadith as reliable, it may not be questioned. If a transmitter was known for probity, all Hadith related through him/her are to be accepted. Full knowledge of the sciences of Hadith criticism is not required.

Al-Ghazali concluded that the jurist must have expertise in the science of Hadith, the Arabic language (‘ilm al-lugah) and Islamic legal theory (usul al-fiqh).^[1091] The question is: do we still have scholars who can meet all the requirements above? I have briefly examined the historical term and concept of ijtihad. We now move to our main discussion on collective ijtihad.

III.