The concept of

Ijtihad in the history of Islamic Jurisprudence

In Islamic law the use of individual reasoning in general is called Ijtihad or Ijtihad al-ra'y, and Mujtahid is the qualified lawyer who uses it. "Exertion" is the literal meaning of Ijtihad. In general usage, this Arabic word denotes the utmost effort, physical or mental, expended in a particular activity. In its Islamic and technical legal connotation, it denotes the thorough exertion of the jurist's mental faculty in finding a solution for a case of law. Ijtihad therefore is 'the logical deduction on a legal or theological question by a Mujtahid or learned and enlightened doctor, as distinguished from Ijma, which is the collective opinion of a council of divines.'1

The principle of Ijtihad by jurists is considered to have roots in a Hadith, in a discourse between the Prophet and Muadh Ibn Jabl, a qadi, on his way to al-Yaman as judge. The Prophet asked him how he would decide matters coming up before him. "I will judge matters according to the Qur'an", said Muadh. "If the Book of God contains nothing to guide me, I will acts on the precedents of the Prophet of God, and if it is not in that either, then I will make a personal effort [Ijtihad] and judge according to that". The Prophet is said to have been most pleased at the reply.2

The History of Ijtihad

Muslims claim that some of the companions of the Prophet had the good fortune to acquire proficiency in jurisprudence and legislation under his guidance and they had recourse to the process or exercise of Ijtihad when a need arose in his absence. This practice continued in issuing fatwas after his death during the Khulafa Rashidun3 and the Ummayad period and was known as Ijtihad al-ra'y,4 an expression that occurs frequently in this early period. Ijtihad was linked with ra'y and was treated as a legitimate activity. The term carried the connotation of exerting one's efforts on behalf of the Muslim community and its interests (al-Ijtihad fi sabil al-Muslimin).

From the second century onward (eighth century CE) Ijtihad was gradually dissociated from ra'y. Muhammad Ibn idris al-Shafi (d. 821), the founder of the Shafi fiqh (school of jurisprudence), was the first to make a break from ra'y and adopted Ijtihad as a methodology synonymous with qiyas, analogical deduction.5 His Risala 6 was the first book to be written on the principles of Islamic jurisprudence.7 Other Sunni fuqaha, judges, did not recognise Ijtihad al-ra'y as being exclusively qiyas.8 However, his ideas were further developed by others. To explain and define Ijtihad further terms and categories like Istihsan (finding the good by one's own deliberation) and Istislah were introduced (determining what is in the interests of human welfare by one's own deliberations). Another option, tawwul, also came to the fore under which one could give priority to his own independent opinion.9

It is believed that by the beginning of the fourth century (10th century CE), a number of outstanding Muslim lawyers had effectively completed the construction of a complete systematic legal thought. They had studied carefully the groundwork of legal principles in the Qur'an, and the precedents established by the Prophet, and the jurist Sahaba, companions, and had evolved, on the basis of the vast knowledge thus gathered, what they believed to be all-embracing fundamental principles of legislation in Islam.

They tried to frame laws for situations and circumstances not distinctly defined by the Qur'an and the Sunna nor the companions' pronouncements. This constituted the systemisation and the codification of Sharia, Islamic law. Several schools of law and jurisprudence appeared during this formative period of intense activity. Although there have been 'conflicts of opinions and doctrines' four of the schools continued to command respect, namely those of Imam Abu Hanifa (d. 767), al-Shafi (d. 820), Malik b. Anas (d. 795) and Ahmad b. Hanbal (d. 855) perhaps because of their methodical approaches and comprehensiveness.10

The closing of the gate of independent Ijtihad

Towards the tenth century some wanted to put a stop to further eleboration and controversies that were becoming prevalent, some claimed that the need for Ijtihad and Tafsir had been exhausted. Around 1305 some jurists in Iraq even decided to close the door of Ijtihad.11 Although the power of absolute Ijtihad was completely abolished, a relative Ijtihad was allowed, giving a scope for limited expansion in details. There are others who accept that direct Ijtihad on the matters which are not touched upon by earlier Mujtahidun can still be considered by a Muslim who has all the qualifications of a Mujtahid. Thus within the Sunni world of Islam the decisions of Judges in certain domains over the years represent small increments of Ijtihad in the body of knowledge held by the Schools of Law.12

Ijtihad was further restricted to exclude those cases that had become the subject of consensus, Ijma. Such cases were not subject to further juristic interpretation. Thus Ijtihad in legal matters was confined to the grey areas of the law, where textual certainty was absent but where human reasoning on the basis of the texts might uncover the law as intended by God.

Some believe that restriction was needed to put a stop to the 'conflicts of opinions and doctrines' through which Islam had passed during the preceding three centuries and 'had finally attained stability, through the emergence of an orthodoxy, only towards the beginning of the 10th century (CE).'13 However, nowadays some say that such a decision pushed Muslim intellectual activity 'towards stagnation.'14 Others believe that the reason for the curtailment of Ijtihad was 'the difficulty which occurred in practice: for if such a right were to continue [for any great length of time], especially if ta'awwul and the precedence of something over the texts were to be permitted, and everyone were permitted to change or interpret according to his own opinion, nothing would remain of the way of Islam.'15 Perhaps it was for this reason that the right of independent Ijtihad was gradually withdrawn, and people were instructed to practice only taqlid of the four schools.

The Qualification of a Mujtahid (jurist)

To protect Islamic law from the dangers of innovation and distortion the great scholars of usul laid down rigorous conditions to be fulfilled by anyone wishing to claim the right of Ijtihad for himself. A jurist must be a master of the Arabic language. He must have proficient knowledge of theology, the revealed texts and the four schools of thought. A jurist must have a comprehensive knowledge of legal theory, usul al-fiqh, which governs the interpretative principles of legal language and the method of investigating the texts, the asbab al-Nuzul and the asbab alwarud, the naskh wal mansukh etc. He should have thorough knowledge of the Qur'an and Hadith and in the exegesis. He must know what parts of the law have become subject to consensus. He must be a pious and practising Muslim. He should first seek the solution of a legal problem in the specific terms of the Qur'an and the Sunna, applying the accepted methods of interpretations and construction, including, the doctrine of Naskh, asbab etc., before considering Ijtihad.16

Conditions of Ijtihad

A Mujtahid must not seek for Ijtihad about the existence of God, the prophethood of Muhammad and the authenticity of the Qur'an.17 Ijtihad does not arise in respect of matters that have already been dealt with in the Qur'an and the Traditions. However, sometimes, there occur situations which have been left undetermined by the first two sources, when jurists are called upon to make use of Ijtihad and determine laws applicable to them, or formulate new ones if necessary, in the light of the fundamental principles of Islamic jurisprudence and legislation.

Ranks of Mujtahids and categories of Ijtihad

Study shows that by eleventh and twelfth century Sunni legal practice had evolved to the point at which jurists were ranked according to their ability to practice Ijtihad. To make the matter simple we may say that both the Mujtahid and their Ijtihad are of three kinds.

1. Mujtahid mutlaq: This category is also known as Ijtihad fi'sh-Shar, absolute independence in legislation.18 The first four caliphs are considered to be in this category but it is principally the great masters of the four schools who are recognised as the Mujtahidun Mutlaq.19 They are known as such because of their laying down a methodology of the law and deriving from it doctrines that were to dominate their respective schools. Of course, the founders of these schools were not the only workers in this field. There were others like the Zaahiri school who held their own legal opinions and were not dependent on anyone. 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. 922), who although famous for his work on history, is considered by some a Mujtahid of the first rank.

2. Mujtahid muntasib: A jurist who operates within each school following its methodology but producing new solutions for new legal cases. Such a jurist is also known as Mujtahid fi al-madhab. The work of a Mujtahid in this category is known as Ijtihad fil Madhab. Such a Mujtahid who is attached to one of the well-known schools and follows its juristic approach, may formulate his own independent legal opinions which may be different from the legal opinions of the founder. This degree has been granted to the immediate disciples of the great Imams who elaborated the systems of their Imams and added their own opinions. The most famous of these, for example in Hanafi fiqh, are the two disciples of Abu Hanifah, Abu Yusuf and Muhammad Ibn al- Hassan. In secondary matters their opinion carries great weight. "It is laid down as a rule that a Mufti may follow the unanimous opinion of these two even when it goes against that of Abu Hanifah."20 Others that one may add to this class are: Imam al-Haramayn al-Juwaym, Abu Hamid al- Ghazali21 and Ibn al-Sabbagh.

3. Mujtahid muqallid:22 A jurist who merely follows the rulings arrived at by the mujtahids previously. However in issues in which he does not find an opinion of the founder, he exercises his own Ijtihad and issues a judgement. Such a Mujtahid must have a perfect knowledge of all the branches of jurisprudence according to the four schools and of the rulings that followed. His decision must always be in uniformity with the Mujtahadun of first and second classes and with the principles which guided them. Such an Ijtihad within the framework of the juristic and legal positions of a school is known as Ijtihad al- fatwa.

Between the ranks of Mujtahids and muqallids there are other levels of jurists who have combined Ijtihad with taqlid and while it is acknowledged that the absolute Mujtahid is something that cannot be attained now, other levels are probably attainable.23 Countless jurists from the tenth century to the early nineteenth century have been considered to have attained the rank of Mujtahid within their own schools. In later years all that the highest in rank have done is to explain obscure passages in the writings of the older jurists. If they found several conflicting opinions on any point, they selected one opinion on which to base their own opinion. Many of these have written commentaries on the legal systems without originating anything new. The author of the Al- Hidayah, who lived at the end of the sixth century is one example of a Mujtahid Muqallid.

Neo ijtihadism

The discussion above shows that when we talk of the closure of the door of Ijtihad, we refer to the Ijtihad of the first kind, i.e. Independent Ijtihad. As to the other two their doors have remained open. There are, as ever, Muslims who ask: Why should the doors of independent Ijtihad have been closed after the fourth century? Does no one have the right to complete independence, rather than be bound to follow one of the Imams in jurisprudence? Why and for what reason is it not permissible today to follow any one 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, exercising his own discretion in some issues? Scholars have given various answers to these questions.

Strangely to some, one of the response is that' it was God Almighty who inspired the scholars to close the door of Ijtihad to safeguard Islam and protect the religion from disintegration.24 On the other hand there are others who have stressed again and again the need to reopen this practice. In the late nineteenth century and early decades of the twentieth, some individuals and reformist religious movements were stimulated to reconsider Ijtihad by the massive introduction of European codes in place of Shariah.25 New ideas from the West, new educational systems and the Salafi movement for example stressed the need to reinterpret Islamic teachings with direct reference to the Qur'an and Ahadith leaving aside the accumulated scholarship of the Mujtahids through centuries. They particularly called for abandoning taqlid in favour of Ijtihad.

From the 17th century on wards, discourses on Ijtihad versus Ijtihad taqlidi gained notable significance in Sunni Islam. Among the traditional reformers who argued to renew Ijtihad were Shah Wali Allah (d. 1765), Ibn Mu'mar (d. 1810), Muhammad ibn Ali al-Shawkani (d. 1832), and Muhammad ibn Ali al-Sanusi (d. 1859). Their emphasis on the centrality of Ijtihad amounted to a criticism of taqlid. They maintained that taqlid "is lawful only when applied on behalf of laymen who need the guidance of legal scholars in running their mundane and religious affairs."26 They argued that for the learned jurists the ultimate authorities did not lie in the doctrines of past masters but rather in the Qur'an and the Sunnah.

Muslim scholars like Jamal al-Din Afghani (d. 1893) and his disciple Shaykh Muhammad Abduh27 (d. 1905) wrote about reopening of the door of Ijtihad.28 A similar stance was adopted by Shaykh Rashid Ridda (d. 1935). They claimed that to perceive the true essence of Islam one must free oneself from taqlid and blind dependence on the traditional interpretations of the four classical schools of thought and return to the religion of the forefathers (Salaf). 29It was argued that the Ijma of a few scholars to close the gate of Ijtihad was merely the result of fear of disunity among Muslims in a period of political instability and above all the decision was made in a period of 'intellectual stagnation' and now fresh Ijtihad is needed. There are other Muslims who ask: Was the door of Ijtihad ever closed? Allama Shaykh Mahmud Shaltut (d. 1963), the mufti and rector of Al-Azhar University claimed that the door of Ijtihad 'is open and that there is nothing objectionable about a follower of one school referring to the judgements of another school.' In one of his fatwa he went so far as to say that it 'is correct to follow the Ja'fari school of fiqh, just like the other schools.'30 Subsequently, a chair of comparative legal studies was established at Al-Azhar.

Some of the advocates of neo-Ijtihadism reinterpret some of the key terms and concepts like taqlid,31 talfiq32 and takhayyur. 33However those who reject the modern view of Ijtihad say: 'Any attempt of Ijtihad to re- interpret Islamic legal principles with the use of takhayyur and talfiq to suit the changed social conditions of our time will not be objected to, but mere change and departure from the Qur'an and Sunnah in order to import French, English or Italian law and call it Neo-Ijtihad will amount to disbelief.'34

During the past decade a number of voices calling for a reformation of usul al-fiqh with a view toward fashioning a neo-ijtihad methodology have been raised. These include the Salafiah movement(s) which started in the 18-19th century. However, such movements and reformers still remain without methodological and philosophical foundations. Those who oppose neo Ijtihadism conclude that there 'only exists the process of Ijtihad which was employed by the Sahabah, Tabiun and Tab'Tabiun35 who solely depended on the exercise based on the Qur'an, Sunnah and the Conduct of the Prophet.'36 In their view it is not appropriate to throw away a thousand years of scholarship and reinvent the wheel.37


End notes

1 Hughes, Dictionary of Islam, p. 197

2 Glassse, The Concise Encyclopaedia of Islam, p. 182

3 Minhajuddin, Islami Fiqh, p. 23

4 Schacht, An Introduction to Islamic Law, p. 37

5 According to others it was Imam Abu Hanifa, when he started to work on Usul al-fiqh, first found that there were matters on which there were no Hadith nor any comment from the Sahaba. He adopted the method of Qiyas. (Minhajuddin, Islami Fiqh , p. 25)

6 Shafi, Muhammad ibn Idris. Al- Risala. Editied by Ahmad Shakir (Cairo: 1892). English translation by Majid Khadduri, Al-Imam Muhammad ibn Idris al-Shafi's al-Risala fi Usul al-Fiqh. 2d ed. (Cambridge: 1987). It has chapters on Ijtihad, ijma, istihsan. In his discussion on the subject al-Shafi draws the conclusion that the Ijtihad prescribed by the Shariah is confined to qiyas and that other types of Ijtihad, such as istihsan, do not have any canonical grounds.

7 Al Shafi supported the idea of Ijtihad by quoting a verse of the Qur'an to substantiate his conviction: 'Wherever you go, face the Mosque of Haram, and wherever you are, turn your face towards it.' Shafi maintained that if 'one does not exercise his intellect, he would not be able to know where Masjidal-Haram is. Therefore, Allah himself indirectly encourages us to exercise our faculty of reasoning, a great gift to mankind, to derive a logical conclusion on certain matters.' (Doi, Shariah: The Islamic Law, p. 78)

8 Some schools of fiqh which supported qiyas, especially the Hanafi, believed in the role of reason in Ijtihad, which in their interpretation took the form of qiyas and Ijtihad al-ray. But the other schools opposed to qiyas, especially the Zahiri school, did not approve of any role for reason, neither in the form of qiyas nor in any other. On the other hand the mutakallimun, the Mutazilah believed in the independent role of reason, in Divine justice and the rational basis of moral and legal judgements. However groups like the Ashar'iah did not believe in Divine justice or the rational basis of moral and legal as mentioned by the Mutazilah.

9 Although a ruling may have been reached in one of the nusus (the textual bases for a precept of the Sharia) i.e. in a verse from the Qur'an or Hadith but one still has the right to dispense with the contents of the nass and give priority to one's own independent opinion.

10 Shia sect of Islam has its own jurisprudence. Both non-Zaydi and the Twelvers in particular consider Ijtihad to be an ongoing process. After the Qur'an and their own prophetic traditions known as Akhbar, they take their guidance from the pronouncements of the twelve Imams. They also acknowledge human reasoning and intellect as one of the legal sources that perfectly supplement the revealed text. Their doctors claim the right to be the interpreters of the hidden Imam and in that capacity they share his infallibility. Thus 'Ijtihad al-ray' own thought and one's own opinion is forbidden. They in fact accuse Sunnis placing their Ijtihad on the same level as the Qur'an and Sunnah (Murtada Mutahhari, The Principle of Ijtihad in Islam, (tr. John Cooper), Vol. 10: No. 1 (http://www.al- islam.org/al-seraat/Ijtihad.htm).

11 Doi, Shaiah, The Islamic Law, p.68-69

12 Glassse, The Concise Encyclopaedia of Islam, p. 182

13 Rahman, Islam, pp.77-78

14 Ahmad . S, Ahmad, Discovering Islam, p.24

15 Murtada Mutahhari, The Principle of Ijtihad in Islam, (tr. John Cooper), Vol. 10: No. 1 (http://www.al-islam.org/al-seraat/Ijtihad.htm)

16 Coulson, A History of Islamic Law, p.76

17 Doi, Shari'ah: The Islamic Law, p. 78

18 Hughes, Dictionary of Islam, p. 198

19 Glassse, The Concise Encyclopaedia of Islam, p. 182

20 Hughes, Dictionary of Islam, p. 199

21 "Al-Ghazali employed dialectical methods in presenting his theology and also claimed for himself the right of independent Ijtihad which had been curtailed by the orthodoxy" (Gatje, The Qur'an and its exegesis, p.21)

22 Also known as Mujtahid al- fatwa

23 for example Mujtahid fil masa'il (particular issue) is a scholar who remains within a school, but is competent to exercise Ijtihad on certain aspects within it which he knows thoroughly. Others may be called Ashab al-Takhrij (resolvers of ambiguity), who are competent to indicate which view was preferable in cases of ambiguity. There are others called Ashab al Tarjih (people of assessment); Ashab al-Tashih (people of correction) and Muqallidun (the emulators). [Abdul Hakim Murad, Understanding the four Madhabs, p.23]