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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 exist such as itjihad fi'l madhhab In recent times, muslim scholars like Jamal ad-Din al- Afghani wrote and talked about 're-opening the door of itjihad', a door which has not been closed according to Abd Ar Rahman. They were a part of a movement that claimed to be salafi. Abd Ar Rahman in his book concludes that the door of itjihad has never been closed and that the Shariah retains the flexibility that itjihad has always given it. He says to his mind, Shaykh al- Afghani simply overplayed their hand.
Chapter 19 principles of Islamic jurisprudence by Professor Kamali- Ijtihad: Ijtihad is the most important source of Islamic law next to the Qur'an and the Sunnah. The main difference between ijtihad and the revealed sources of the Shari'ah lies in the fact that ijtihad is a continuous process of development whereas divine revelation and prophetic legislation discontinued upon the demise of the Prophet. In this sense, ijtihad continues to be the main instrument of interpreting the divine message and relating it to the changing conditions of the Muslim community in its aspirations to attain justice, salvation and truth.
The essential unity of the Shari'ah lies in the degree of harmony that is achieved between revelation and reason. Ijtihad is the principal instrument of maintaining this harmony. The various sources of Islamic law that feature next to the Qur'an and the Sunnah are all manifestations of ijtihad, albeit with differences that are largely procedural in character. In this way, consensus of opinion, analogy, juristic preference, considerations of public interest (maslahah), etc., are all interrelated not only under the main heading of ijtihad, but via it to the Qur'an and the Sunnah. Kamali states, being a derivation from the root word jahada, ijtihad literally means striving, or self-exertion in any activity which entails a measure of hardship. It would thus be in order to use jahada in respect of one who carries a heavy load, but not so if he carries only a trivial weight. Juridically, however, ijtihad mainly consists not of physical, but of intellectual exertion on the part of the jurist. Ijtihad is defined as the total expenditure of effort made by a jurist in order to infer, with a degree of probability, the rules of Shari'ah from their detailed evidence in the sources. Ijtihad essentially consists of an inference (istinbat) that amounts to a probability (zann), thereby excluding the extraction of a ruling from a clear text. A person who knows the rules of Shari'ah in detail but is unable to exercise his judgment in the inference of the ahkam direct from their sources is not a mujtahid. Ijtihad, in other words, consists of the formulation
of an opinion in regard to a hukm shar'ii. Essential to the meaning of ijtihad, it is also the concept that the exertion of the jurist involves a total expenditure of effort in such a manner that the jurist feels an inability to exert himself further. And lastly, the definition of ijtihad is explicit on the point that only a jurist (faqih) may practice ijtihad. Ijtihad is concerned with the practical rules of Shari'ah which usually regulate the conduct of those to whom they apply (i.e. the mukallaf). Ijtihad may not be exercised in regard to such issues as the createdness of the universe, the existence of a Creator, the sending of prophets, and so forth, because there is only one correct view in regard to these matters, and anyone who differs from it is wrong. Similarly, one may not exercise ijtihad on matters such as the obligatory status of the pillars of the faith, or the prohibition of murder, theft, and adultery. For these are evident truths of the Shari'ah which are determined in the explicit statements of the text. Kamali mentions that with regard to such matters on which no evidence can be found in the ijma`, ijtihad may take the form of analogical deduction, juristic preference (istihsan), or the consideration of public interest (maslahah), and so on.
The ulama are in agreement that ijtihad is the collective obligation (fard kafa'i) of all qualified jurists in the event where an issue arises but no urgency is encountered over its ruling. But ijtihad becomes a personal obligation (wajib or fard `ayn) of the qualified mujtahid in urgent cases, that is, when there is fear that the cause of justice or truth may be lost if ijtihad is not immediately attempted. Should there be no urgency over ijtihad, or in the event where other mujtahids are available, then the duty remains as a fard kafa'i only. Furthermore, ijtihad is recommended (mandub) in all cases where no particular issue has been referred to the mujtahid. And finally ijtihad is forbidden (haram) when it contradicts the decisive rules of the Qur'an, the Sunnah and a definite ijma. The ulema of usul are in agreement that the mujtahid is bound by the result of his own ijtihad. Once the Mujtahid has deducted a hukm on a particular issue, he may not imitate other Mujtahids. The conclusion that he reaches is equal to a divine command which he must observe. It is therefore unlawful for him to abandon it or to follow anyone else in respect of it. Ijtihad on issues which are not urgent, and time has been spent in deriving a hukm, then some ulema say taqlid for the mujtahid is permissible. However, the preferred view is that he must avoid taqlid, even of one who might be more learned than him. This is considered to be the purport of the Qur'anic command, addressed to all those who have the capacity and knowledge, to exert themselves in the cause of justice and truth (al-Hashr, (59:2). Ayahs like this indicate that it is the duty of the learned to study and investigate the Qur'an and the teachings of the Prophet
SAW and that it is the duty of the learned to study and investigate the Qur'an and the teachings of the Prophet according to Kamali. The mujtahid is thus the authority (hujjah) for himself. His is the duty to provide guidance to those who do not know, but he himself must remain in close contact with the sources. Surah An Nahl surah 16, ayah 43 indicates only those who do not know may seek guidance from others, not those who have the ability and knowledge to deduce the correct answer themselves, in the view of Kamali. When a mujtahid exerts himself and derives the ruling of a particular issue on the basis of probability, but after a period of time changes his opinion on the same issue, he may set aside or change his initial ruling if this would only affect him personally. But if his ijtihad affects others when, for example, he acts as a judge and issues a decision on the basis of his own ijtihad, and then changes his views, he may not, according to the majority of ulema, set aside his earlier decision. For if one ruling of ijtihad could be set aside by another, then the latter must be equally subject to reversal, and this would lead to uncertainty and loss of credibility in the ahkam. To this the man replied, 'Then why don't you, as you are the Caliph?' `Umar b. al-Khattab replied that had it been a matter of applying the Qur'an or the Sunnah, he would have intervened, but since the decision was based in ra'y. Consequently, unless the judge and the mujtahid is convinced that his previous ijtihad was mistaken, he must not attempt to reverse it. It is further suggested that the issuing judge himself may change his initial decision which was based on ijtihad in a subsequent case if he is convinced that this is a preferable course to take. But the credibility of judicial decisions is a factor that would discourage the issuing judge to change his initial decision unless it proves to have been manifestly oppressive. The Proof (Hujjiyyah) of Ijtihad Ijtihad is validated by the Qur'an, the Sunnah and the dictates of reason (`aql). Of the first two, the Sunnah is more specific in validating ijtihad. The Hadith of Mu`adh b. Jabal as al-Ghazali points out, provides a clear authority for ijtihad. For the ummah has accepted it and has consistently relied on it; no further dispute over its authenticity is therefore warranted. According to another Hadith, 'When a judge exercises ijtihad and gives a right judgment, he will have two rewards, but if he errs in his judgment, he will still have earned one reward.' Al Ghazali states that This Hadith implies that regardless of its results, ijtihad never partakes in sin. When the necessary requirements of ijtihad are present, the result is always meritorious and never blameworthy. The numerous Qur'anic ayat that relate to ijtihad are all in the nature of probabilities (zawahir). All the Qur'anic ayat which the ulema have quoted in support of qiyas (see page 217) can also be quoted in support of ijtihad. In addition, we read, in sura al-Tawbah (9:122): 'Let a contingent from each division of them devote themselves to the study of religion [li-yatafaqqahu fi'l-din] and
warn their people [. . .]' Devotion to the study of religion is the essence of ijtihad, which should be a continuous feature of the life of the community. Although the pursuit of knowledge is a duty of every individual, attaining tafaqquh, or 'erudition in religious disciplines', is necessary for those who guide the community and warn them against deviation and ignorance. The Companions practiced ijtihad, and their consensus is claimed in support of it. (Ibn Al Qayyim) In their search for solutions to disputed matters, they would base their judgement on the Qur'an and the Sunnah, but if they failed to find the necessary guidance therein, they would resort to ijtihad. The fact that the Companions resorted to ijtihad in the absence of a nass is established by continuous testimony (tawatur). (Ghazali) The rational argument in support of ijtihad is to be sought in the fact that while the nusus of Shari'ah are limited, new experiences in the life of the community continue to give rise to new problems. It is therefore imperative for the learned members of the community to attempt to find solutions to such problems through ijtihad. (Kassab) Conditions (Shurut) of Ijtihad A person who exercises Ijtihad is known as a Mujtahid. A person who fails to meet one or more of the requirements of ijtihad is disqualified and may not exercise ijtihad. The earliest complete account of the qualifications of a mujtahid is given in Abu' Husayn al-Basri's (d. 436/1044) al-Mu'tamad fi Usul al-Fiqh and were accepted by later scholars with minor modification. The requirements are as follows: Al-Shatibi summarises all the foregoing requirements of ijtihad under two main headings, one of which is the adequate grasp of the objectives of the Shari'ah, while the other is the knowledge of the sources and the methods of deduction.
1. Knowledge of Arabic to the extent that enables the scholar to enjoy a correct understanding of the Qur'an and the Sunnah. According to Al Ghazali A complete command and erudition in Arabic is not a requirement, Al-Shatibi, however, lays greater emphasis on the knowledge of Arabic, since the opinion of the mujtahid is a proof (hujjah) for a layman, this degree of authority necessitates direct access to the sources and full competence in Arabic.
2. The mujtahid must also be knowledgeable in the Qur'an and the Sunnah, the Makki and the Madinese contents of the Qur'an, the occasions of its revelation (asbab al-nuzul) and the incidences of abrogation therein. Al Ghazali states that More specifically, he must have a full grasp of the legal contents, or the ayat al-ahkam, whicih are around the 500 mark, but not necessarily of the narratives and parables of the Qur'an and its passages relating to the hereafter. Although, Al Shawkani writes that a specification of this kind cannot be definitive. The knowledge of ayat al-ahkam includes knowledge of the related commentaries (tafasir) with special reference to the Sunnah and the views of the Companions.
3. Next, the mujtahid must possess an adequate knowledge of the Sunnah. For those that argue that ijtihad is indivisible, only the knowledge of
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