The Role of Ijtihad in Legislation

Martyr Ayatullah Murtada Mutahhari
The terms 'mujtahid' and 'ijtihad' are nowadays among those which have acquired great currency, even sanctity, among the Shi'ah. One would be surprised to know that the term ijtihad was formerly, from the times of the Prophet (S) and for several successive centuries, a Sunni term. It became Shia after undergoing a change of meaning, or what would be more precise to say, the term remained specifically Sunni for several centuries and became 'Muslim', in the wider sense, that is, after undergoing a change of meaning and dissociating itself from its earlier particular sense.
As to its not being a Shi'i term formerly, there is no doubt; if there is any uncertainty, it is about the date of its acceptance by the Shi'ah. It is not improbable that this term like several groups of people in the seventh century was converted to Shi'ism at the hands of the absolute Ayatullah, al-'Allamah al-Hilli. However, as we shall presently explain, the conversion came after its undergoing a change of meaning.
Apparently, there seems to be no doubt that this term was never used by any of the Imams of the Ahl al-Bayt (A). The terms ijtihad and mujtahid, in the sense in which they are used by Shi'ah and Sunni fuqaha', have not been used in any of their ahadith. Neither they themselves were ever known by the epithet 'mujtahid' nor did they ever use it for the scholars and legists from among their companions. Otherwise the root relating to such terms as fatwa and ifta, which convey approximately the modern sense of ijtihad, and its derivatives do occur in the ahadith. For instance, al-'Imam al-Baqir (A) is reported to have said to Aban ibn Taghlib:
Sit in the mosque of al-Madinah and give fatwas for the people . Indeed I love more like you to be seen amongst my Shi'ah.
And in a famous hadith, al-'Imam al-Sadiq (A) is reported to have said to 'Unwan al-Basri: Avoid giving fatwa in the way you would run away from a lion; do not make your neck a bridge for the people.
The reason for the former unpopularity of the word is that during the early centuries of the Islamic era - that is also the period in which the Imams of the Ahl al-Bayt (A) lived - the word, due to the specific meaning it carried, was not acceptable to the Imams (A). Naturally, it could not have played any role in their teachings. However, after undergoing a gradual change of meaning, when it came to be used in a different sense by Sunni fuqaha' themselves, it was also adopted by Shi'ite fiqh. Now we shall briefly describe the background of the Sunni usage of this term.
'Ijtihad' in the Sunni Tradition:
Sunni scholars narrate a hadith that the Prophet (S), while sending Mu'adh to Yemen, asked him as to on what he would base his judgement. "In accordance with the Book of Allah", replied Mu'adh, "But what if you don't find it there?" inquired the Prophet (S). "According to the Sunnah of the Apostle of Allah", replied Mu'adh. "But what if you don't find it there too?" asked the Prophet (S) again. 'I will exert my own opinion', replied Mu'adh.
The Prophet (S) put his hand on Mu'adh's chest and said: "Thank God for assisting His Apostle with what he loves." They have narrated other traditions on the subject to the effect that either the Prophet (S) directly commanded his Companions to exercise ijtihad in case they could not find a rule in the Book and the Sunnah, or to the effect that he approved of the practice of his Companions that practised ijtihad. To the Sunnis, this is something definite, confirmed by consensus (ijma').
About the Holy Prophet (S) himself, they have said that some of his injunctions were purely based on personal ijtihad not on revelation. Even in their works on jurisprudence ('ilm al-'usul) the problem is raised whether or not the Prophet (S) could make errors in his personal ijtihad. They have narrated traditions in this regard and transmitted reports of the Companions as to how they justified their own actions or those of others on the basis of ijtihad. We abstain from quoting any of them here for the sake of brevity.
It is evident that in all the above instances the term ijtihad is not used in its current sense, that is, making the utmost effort in deducing rules of the Shari'ah from the related sources (adillah). The meaning of ijtihad there is 'exercising of one's opinion or judgement' (al-'amal bi al-ra'y). It means that in a case where the Divine dicta are absent or implicit, one should see what would be more acceptable to one's intelligence and taste, or nearer to truth and justice, or analogous to other Islamic laws, and to adopt it for his judgement. Accordingly, ijtihad is also accounted as one of the sources of Islamic legislation, like the Quran and the Sunnah, although not as a source parallel to these two. So long as a rule is to be found in the Quran and the Sunnah, the need for ijtihad does not arise. However, in absence of relevant dicta in the Quran, the Sunnah or ijma', ijtihad becomes a source of legislation. On this basis, they have said that the sources of legislation are four: the Book, the Sunnah, ijma', and ijtihad (i.e. qiyas).
Also, according to this approach, ijtihad is not synonymous with expertise in Islamic law (faqahah), nor is the term mujtahid synonymous with faqih. Rather, ijtihad is one of the functions of the faqih. The faqih should have knowledge of the Quran and the hadith corpus; he should be able to distinguish the nasikh from the mansukh, the 'amm from the khass, the mujmal from the mubayyan, and the muhkam from the mutashabih. He should be familiar with the Quranic vocabulary and terminology, know the circumstances in which a particular verse was revealed (sha'n al-nuzul), and have knowledge of the successive generations of narrators and transmitters of hadith. He should also be able to reconcile the apparently conflicting traditions. In addition to all that, he should practise ijtihad and exercise his personal judgements in particular cases.
What was the character and basis of that ijtihad? Did the term ijtihad found in hadith mean exercising qiyas? Did the Prophet (S) and his Companions practise ijtihad in this sense. Did it also apply to other practices such as istihsan? Al-Shafi'i, in his famous Risalah, has a chapter on ijtihad, which follows the one on ijma', and is itself followed by one on istihsan. In his discussion of the subject, al-Shafi'i draws the conclusion that the ijtihad prescribed by the Shari'ah is confined to qiyas and that other types of ijtihad, such as istihsan, do not have any canonical grounds. Al-Shafi'i believes that the canonical grounds for qiyas are identical with those for ijtihad.
There were other questions that were debated by Sunni fuqaha', such as: Are ijtihad and al-'amal bi al-ra'y confined to cases where there is no express text (nass) or whether one may do ijtihad (called ta'awwul in this case) and exercise his judgement despite the presence of express texts? What are the conditions applicable to Sunnah if it is to preponderate ijtihad? Are all traditions narrated from the Prophet (S) to be relied upon and given precedence over ijtihad? Is reliable hadith confined to those which are mashhur and mustafid, as Abu Hanifah believed? Who are those who had the right of ijtihad and whose ijtihad was binding (hujjah) for the others? On what grounds have the others no right to go against their ijtihad? Evidently, to go into the details of each of these questions is outside the scope of this paper. However, it is necessary to mention some relevant points here:
1. The position of the fuqaha' and imams of the Ahl al-Sunnah with respect to the acceptability of ijtihad, in the above-mentioned sense, is not the same. Some of them give a wider scope to ijtihad and qiyas and some restrict it. Some altogether reject qiyas and ijtihad.
Abu Hanifah, who lived in Iraq and was considered the jurist of the Iraqis, because of the many conditions he required for a tradition to be acceptable, and also on account of being distant from the centre of hadith, which was the Hijaz, had lesser knowledge of hadith. Also due to other reasons, including his background of kalam and logic, he took greater recourse to qiyas and on this account was strongly opposed by the Sunni jurists of his time and those who came after him.
Malik ibn Anas spent his life in al-Madinah and made lesser use of qiyas. Reportedly, he did not use qiyas except in a few cases, and, according to a report of Ibn Khallikan, was greatly repentant at the time of his death of having taken recourse to qiyas in his fatwas even in those few cases.
Al-Shafi'i, who belonged to the Iraqi school and had studied under Abu Hanifah's pupils and had as well studied under Malik in al-Madinah, took a middle road between Malik and Abu Hanifah.
Ahmad ibn Hanbal was more a muhaddith than a faqih and avoided qiyas even to a greater extent than Malik Ibn Anas.
Dawud ibn Ali al-Zahiri al-'Isfahani, the founder of the Zahiri school, was altogether opposed to the practice of qiyas and regarded it as an innovation (bid'ah) in the faith.
As a consequence of these differences there emerged among the Ahl al-Sunnah two general trends: one of them was represented by the Ahl al-Hadith and the other by the Ahl al-Ra'y. The Ahl al-Hadith, or the Traditionists, attached lesser or no significance to qiyas and ra'y and the Ahl al-Ra'y in turn relied to a lesser extent on ahadith.
2. Concurrently with the emergence of the Ahl al-Ra'y and the Ahl al-Hadith, a problem that arose among the contemporary circles of kalam was that of the rational basis of legal judgements (al-husn wa al-qubh al-'aqliyyan). Although at first sight there seems to be no link between these two developments, because one of them belonged to fiqh and took place in juristic circles and the other belonged to the circles of kalam, but, as pointed by some historians, the theory of rational basis of judgement - which was raised by the Mu'tazilah and who staunchly defended it - was also intended to find some kind of basis for ijtihad, i.e. qiyas and the practice of ra'y. According to this theory, the laws of the Shari'ah were based on a series of real benefits and harms and that human reason was capable of independently discovering those benefits and harms inherent in things; therefore reason was capable of discovering the purposes and criteria of the laws of religion through ijtihad and ra'y.
This conjecture is further strengthened if we remember that the Ahl al-Hadith, who later, in the fourth/tenth century, came to be known as Asha'riah, represented the chief opposition to the Mu'tazilah.
3. Right from the first century, from the time when groups of people gathered in mosques for the purpose of study and debate, some persons debated about the issues of halal and haram. They gathered around them pupils and adherents from among the common people, who regarded their fatwas as authoritative and referred to them their questions about halal and haram. Such was the beginning of the gradual development of a class of scholars who later came to be called fuqaha'. Every region, city and group followed a certain individual, and the rulers had not yet adopted the policy of following the fatwas of a certain jurist as official law.
The emergence of this class of jurists did not require any special conditions. Occasionally, social conditions demanded that one prominent individual should be recognized by the people and followed in religious precepts. Gradually, this resulted in the emergence of diverse legal approaches and schools, which in turn were preserved and perpetuated by the pupils of the originator after his death. In this way, various legal schools and sects emerged amongst the Sunnis, the most famous of them being the Hanafi, the Shafi'i, the Maliki, the Hanbali and the Zahiri schools. Of course, the founders of these schools were not the only early jurists and mujtahidun that were there. There were others who held their own legal opinions and were not followers of anyone. However, this independence gradually disappeared after the fourth/tenth century and no independent mujtahid emerged after this time in the Sunni tradition. Apparently, the last person to have been an independent mujtahid with his own independent approach in legal issues was the well-known historian and exegete Muhammad ibn Jarir al-Tabari (d. 310/922), who although famous for his work on history, is considered a Sunni faqih of the first rank.
The later Sunni mujtahids were either al-mujtahid al-mutlaq al-muntasib or mujtahid al-fatwa (also occasionally known as mujtahid al-madhhab). 'Al-mujtahid al-mutlaq al-muntasib' means a mujtahid who is attached to one of the well-known schools and follows the juristic approach of its founder but in deducing legal rules, on the basis of the school's juristic principles, he may formulate his own independent legal opinions which may be different from the legal opinions of the founder. For instance, while being a Shafi'i or a Hanafi in jurisprudence, he may differ with al-Shafi'is or Abu Hanifah's express fatwas in legal matters. A number of eminent Sunni jurists are considered to belong to this class, such as: Imam al-Haramayn al-Juwaym, Abu Hamid Muhammad al-Ghazali, Ibn al-Sabbagh, and others.
Mujtahid al-madhhab' or 'mujtahid al-fatwa' is someone who follows the founder of the school in all matters in which the founder has expressly given his views. However in issues in which he does find an opinion of the founder, he may exercise his own Ijtihad and give fatwa.
Accordingly, Ijtihad is of three kinds: independent Ijtihad, semi-independent Ijtihad (al-'ijtihad al-mutlaq al-muntasib), and Ijtihad within the framework of the juristic and legal positions of a school (Ijtihad al-fatwa).
In any case, the mujtahids who came after the fourth century did not find any followers. On the other hand the mujtahids who came before this period were not limited to the four imams of the popular schools; there were nine other eminent jurists of whom some lived before the four imams - such as al-Hasan al-Basri - some were their contemporaries - such as Sufyan al-Thawri - and some who came after them - such as Dawud al-Zahiri and Muhammad Ibn Jarir al-Tabari - and all of them had more or less followers among the people. However, there was a gradual rise in the followers of the four imams, for, according to al-Maqfizi in al-Khitat, al-Malik al-Zahir, the ruler of Egypt, officially declared in the year 665/1257 that except the four schools - Shafi'i Maliki, Hanafi and Hanbali - other schools had no official recognition and that no judge had the right to give judgement except on the basis of the four schools. The people were also strictly forbidden to follow any except the four schools. This was the beginning of the restriction of the official schools to four.'
This brief description shows that when we talk of the closure of the door of Ijtihad in the Sunni tradition, we refer to the Ijtihad of the first kind, i.e. independent ijtihad. As to the second kind (al-Ijtihad al-mutlaq al-muntasib) and the third kind (ijtihad al-madhhab), their doors have remained open.
Why should the doors of independent ijtihad have been closed after the fourth century and no one should have right to complete independence and be bound to follow one of the imams in jurisprudence? Why and for what reason is it not permissible today to follow anyone except the four imams? Why should one who follows any one of the imams follow him in all issues and have no right to follow the other three by exercising discretion in some issues? Sunni scholars have given various answers to all of these questions and none of them is convincing.
Shah Wali Allah Dehlawi (d. 1180/1765), in a treatise (risalah) called "al-'Insaf fi bayan sabab al-'ikhtilaf" - which has been quoted by Farid al-Wajdi under jahada in the Da'irat al-Ma'arif, with the remark that it is the best treatise written on the topic - acclaims the closure of the door of independent ijtihad and the latter scholars' imitation of one of the early imams and says: that is, 'It is a secret that God Almighty has inspired in the scholars with' to safeguard Islam and protect the religion from disintegration. Farid al-Wajdi himself does not approve of the prohibition on Ijtihad and does not confirm those words of Shah Wali Allah.
Two years ago, according to what we have read in papers and have heard, the great 'Allamah Shaykh Mahmud Shaltut, the mufti and rector of Al-'Azhar University, with great courage characteristic of great reformers, broke this thousand-year-old spell and officially announced that the door of ijthad is open and that there is nothing objectionable about a follower of one school referring to the judgements of another school in case they are supported by firmer arguments. He also announced in an official fatwa that it is correct to follow the Ja'fari school of fiqh, just like the other schools. Subsequently, a chair of comparative legal studies was established at al-'Azhar. Undoubtedly this was the greatest step that was taken since the beginnings of Islamic jurisprudence for the sake of the benefit and general welfare of Muslims. Its worth will be better recognized in the future.
4. Another problem related to the subject of Ijtihad is that of takhti'ah (admission of the possibility of error in the judgements of the mujtahid) and taswib (confirmation of the mujtahid's infallibility and denial of any possibility of error), which has throughout been a topic of debate in books on kalam and usul al-fiqh. Generally, it is mentioned in books on usul that the Shi'ah fuqaha' admit possibility of error in the mujtahid's fatwas and are accordingly called mukhatti'ah (derived from khata': error), whereas the Sunni fuqaha' believe that the mujtahid is always right in his judgements, and are hence called musawwibah (derived from sawab: that which is right). However, it is not the case that all the Sunni fuqaha' support taswib; rather, only a small number of them have accepted this view. In any case, for the Shi'ah, who define Ijtihad as 'the effort to deduce the real law from the sources of the Shari'ah', it is difficult to imagine that every mujtahid should be always right. It is not possible that whatever any mujtahid may judge should be correct and his judgement should be the real law; for it is possible that different mujtahids may hold divergent opinions simultaneously about a certain subject and the same mujtahid may hold different opinions at different times about the same issue. How is it possible that he should always be right?
The roots of the theory of taswib lie in a certain theory of Ijtihad which is held by those who define ijtihad as the practice of qiyas and ra'y . They claim that the laws received by the Prophet (S) through revelation are limited, whereas issues and problems which require legislation are unlimited in number. Therefore, the laws given by the Divine Lawgiver are not adequate to meet the requirements. Accordingly, God has given the right to the scholars of the Ummah, or a group of them, to employ their personal taste and intelligence in cases where there are no religious dicta and select something which resembles other Islamic laws and is closer to the criteria of justice and truth. In accordance with this reasoning, they accept the theory of taswib, for, according to this view of ijtihad, it is itself one of the sources of the Divine Law.
The idea of taswib was unimaginable to the minds of Shi'ah jurisprudents, because they had taken for granted the principle that every event or problem should have a real Divine law related to it. Ijtihad, to them, meant inquiry and effort to discover that law with the help of reliable canonical sources. Of course, in the light of such an outlook of ijtihad it is impossible that every mujtahid should be right.
The theory of taswib, however, does not rest on such an outlook of Ijtihad. It rests on an outlook which regards it as impossible that God should have legislated laws regarding every kind of situation. Because, if such were the case, they should have been set forth in the Book and the Sunnah; but the laws given in the Book and the Sunnah are limited in number, whereas situations are innumerable and unlimited. Hence God has given the 'ulama' of the Ummah the right to legislate through Ijtihad such laws as have not been given through revelation. Since this right is God-given, the judgements of the mujtahid are the actual laws of God.
The problem of taswib and takhti'ah has been debated a lot in books on kalam and usul, and here our purpose was just to refer to the abovementioned point. The above discussion related to the Sunni background of the term ijtihad; now we shall turn to the change of meaning that this term underwent, which resulted in its acceptance by the Shi'ah.