The Sources Of Islamic Law Itjihad Notes

The sources of Islamic law: - ITJIHAD

Muslim family law by David Pearl and Werner Menski: -

• Itjihad is defined literally as ‘striving, exerting’, in an effort to find the right path. Though it has been described as the most important source next to the Quran and the Sunnah, it is not strictly a source of law at all, in the sense that itjihad is a continuous process of development, whereas divine revelation and prophetic tradition discontinued upon the death of the prophet.

• Itjihad can be seen as a method by which the will of Allah is discovered. After the mutjahid exercises itjihad, the consensus of opinion will either reject or accept the theory or finding. If it is accepted by ijma, it becomes an incorporated part of the sharia. Ijma as a doctrine carries within it, the idea of ‘no contradiction.

• There is in in-built recognition of plurality because of the well-known saying to the effect that ‘’Difference among my community is a sign of the bounty of Allah’’ - if one finds two or more variant opinions, they can all be accepted as equally legitimate attempts to express a particular rule.

• Some historians refer to the early tenth century as the date of the ‘closing of the gates of itjihad’. However writers such as Wael Hallaq deny both the closure or the narrowing of the ‘gates of itjihad’ and, arguing on the basis of historical examples, show that in practice, itjihad was continuously exercised. Hallaq contends that jurists who were capable of itjihad have existed at nearly all times, that the qualifications required were relatively easy to attain, and that the controversy about the closure of the gates prevented the jurists from reaching a consensus to that effect. There are a large number of varying opinions held by commentators on this matter but it is possible to glean trends from their writings. First, early writers are in general not nearly as clear on the closure of the gates as those who wrote from 1930 onwards. Secondly, some are explicitly dismissive of the notion that itjihad ever came to an end at all. It would appear that in the late nineteenth century and early twentieth century, writers were either confused, unclear or undecided about the issue and this would imply that the concept itself was not universally accepted until much later when writers such as Ostrorog, seemed to have seized on the aforementioned phrase and rendered it into vogue. From then onwards, with each new utterance, the concept became more simplified, undisputed and almost cast in stone.

Shariah Islamic law by Abd Ar Rahman, revised and expanded by Abdassamad Clarke: -

• Itjihad literally means an effort or an exercise of one’s intellect to arrive at one’s own judgment.

• Ibn Juzayy al-Kalbi said there is no disagreement over the permissibility of itjihad after the death of the messenger of Allah.

• Itjihad in its widest sense means the use of human reason in the elaboration and explanation of the Shari’ah. It covers a variety of processes, ranging from the interpretation of the text of the Quran and the assessment of the authenticity of hadith.

• Qiyas or analogical reasoning, is a particular form of itjihad.

• Itjihad is exercise of reasoning by a jurist to arrive at a logical conclusion to a legal issue, and to deduce the conclusion as to the effectiveness of a legal precept in Islam.

• Imam Shafi supported the idea of itjihad by quoting a verse of the Quran: ‘Wherever you come from, turn your face to the Masjid al-Haram. Wherever you are, turn your face towards it. (Surat al-Baqara 2:144) – Imam shafi maintained that, in certain cases, if someone does not exercise his intellect then he will not be able to know in what direction the Masjid al- Haram is and therefore Allah himself indirectly encourages us to exercise our reasoning.

• Ibn Juzayy al-Kalbi said the preconditions for the exercise of itjihad are that the person:

1. Be mukallaf (legally responsible before Allah)

2. Have adalah (be a person of probity whose standing in knowledge)

3. Be possessed of an excellent memory and understanding

4. Be possessed of knowledge of the sciences – such as the book of Allah; which he must memorise and recite excellently well with tajwid and must know its meanings and must have knowledge of which ayat was revealed in Makkah and which in Medina – however some of those who study the sciences of the principles of fiqh said that it is not a precondition that he memorise the Quran, not even the ayat on legal rulings, but rather he know where they are so that he can investigate them – But Abd Ar Rahman tells us that this is wrong for the reason that someone who does without memorising the book of Allah ought not to be an imam in the din of Allah. Another knowledge of the sciences includes memorisation of the hadith of the messenger of Allah and the hadith of his companions and he must distinguish the sahih hadith from others – some people said that it is not stipulated that the mujtahid must memorise hadith and Abr Ar Rahman in his book tells us that this is also mistaken because if one does not know the hadith, one will give fatwa. Knowledge of fiqh and knowledge of principles (usul) of fiqh should also be possessed.

• Most forms of itjihad must have their starting points in a principle of the Quran, Sunnah or consensus – however the schools of imam Malik and imam Hanbal consider considerations of public interest a valid part of the usul.

• Itjihad cannot be used to achieve a result which contradicts a ruling established by any of the three fundamental sources.

• Majority of Muslims including the four major schools accept qiyas and itjihad to determine the juristic basis for reasoning on an issue.

• Much controversy has been aroused around subjects such as the ‘closure of the door of itjihad’ – this only refers to one type of itjihad, that known as mutlaq ‘absoute’, which is itjihad of those who derive rulings directly from the primary sources. – muslim scholars agree that this door has been closed however other types of itjihad still...

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