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Ijtihad: Concept and Queries

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Mufti Muhammad Taqi Usmani
Translated by Adeel

Abstract

More and more people are looking to ijtihad as a means towards the annulment or relaxation of the rules and restrictions derived from the categorical texts of the Qur’an and the hadiths. They want to ignore the texts by invoking their ‘spirit’, thereby seeking to adjust Islamic rules to accord with what they desire. Such an inclination towards ijtihad is based on a misunderstanding of its meanings, scope, and the reality of its restrictions vis-à-vis the categorical texts of the Qur’an and the Sunnah. This paper will examine the approach of those mistakenly calling for ijtihad, their misapprehensions regarding it, and the true scope of ijtihad in the context of Islamic law.

1. Introduction

These days, we find many people claiming that it is the spirit of the Shari’ah that needs to be considered and the focus should not be too much on the words and the apparent meanings. It is, however, a mystery as to how they can see the spirit [to the oblivion of the words and their apparent meanings]?[1] In Shari’ah, besides the spirit, the words and the apparent meanings are also important. Take, for example, the Islamic salutations. When we meet someone we say assalamu ‘alaikum instead of its translation ‘peace be unto you’. The meaning and the message is the same but it does not convey the same blessing, the reward, the feeling and the fact of being on the Sunnah and getting reward for it.

From this, a fundamental principle to which many people are heedless is established, that [indeed] the meanings and the spirit of the hadiths are intended, but in Shariah, the words used by Allah and His Messenger do also matter. The meaning of ‘alaikum assalam and assalamu ‘alaikum are the same but the Messenger of Allah instructed Jabir bin Sulaym about the right way to do so.[2] Through this, the Prophet (may the peace and blessings of Allah be upon him) gave this important message to the Ummah that the Shari’ah is not making and following one’s own ways, but the Shari’ah is to follow and obey Allah and His Messenger.

2. Applying fourteen-hundred-year-old principles?

A question often raised is how to apply fourteen-hundred-year-old principles [‘usul] to the present times because the requirements of this day and time are different and they keep changing over time? This confusion arises due to lack of acquaintance with Islamic sciences. Islam has divided its teachings into three parts:

i) Where there is definite textual evidence from Qur’an and Sunnah. There can never be a change on these issues. These are non-changing rules transcending the limits of time. Human circumstances may change but these rules remain as such.

ii) Where there is a room for interpretive endeavor [ijtihad] and inference [istanbat] and which does not involve the definite texts like the first case. Here one can see the flexibility of Islamic law.

iii) The third part is where the Qur’an and Sunnah are silent. The silence implies these issues have been left to our intellect and this part is so vast that in every age and time man can always exploit this vast area through his intellect and experience as per the requirements of the day.

The second part, where there is room for ijtihad and inference, there too according to changes over time rulings can change if the underlying causes [‘ilal] change. However, there can never be any change in the rulings that fall in the first category because they are based on the understanding of innate human nature. Human circumstances may change but the nature does not.

In short, where the Shari’ah is flexible we can make free use of that freedom to cater to our needs.

3. When is ijtihad permissible?

The permissibility of ijtihad starts when there is no definite text from the Qur’an or Hadith, and if there is text available then using the intellect to arrive at a ruling that is against the text is actually going out of human jurisdiction which results in tampering with the religion. Here is an example:

The Qur’an has prohibited pork. This is a revelation-based ruling. Employing reason on such issues to question why it has been declared forbidden is actually using it at the wrong place. Some people have used their intellect arguing that the Qur’an has prohibited pork because in those times pigs were really disgusting and used to be kept in filthy conditions where they used to eat filth as well. Now there are clean and hygienic farms for pigs where they are taken care of in very healthy ways, therefore, that instruction of the Qur’an should not be applicable today. This is a case of employing reason where it cannot operate.

Similarly, when Qur’an prohibited riba [usury] it became forbidden whether the human reason can appreciate it or not. Qur’an states about the Arab pagans:

قَالُوا إِنَّمَا الْبَيْعُ مِثْلُ الرِّبَا

They says, “sale is but like riba[3]

Qur’an did not respond with a difference between usury and trade but stated as follows:

وَأَحَلَّ اللَّهُ الْبَيْعَ وَحَرَّمَ الرِّبَا

Allah has permitted sale and prohibited riba.[4]

Now after this order, there is no room for any argument and to try justifying the opposing view through ‘reasoning’ is not right. There was a singer from India who went for Hajj [pilgrimage to Makkah]. There, afterwards while going to Madina, as he had to stop at a place overnight, he came across an Arab Bedouin singer whom he found to be unmelodious, having a coarse voice, and poor with his instruments. When the Indian singer listened to him, he thought that he understood why Prophet Muhammad had prohibited music. He thought it was because the Prophet had heard only the songs of these Bedouins and thought that if the Prophet had heard his songs, he would have not prohibited music. Such kind of logic and mindset is developing and people call it ijtihad when the definite texts are being ignored for one’s whims and wishes.

4. Popular misconceptions about ijtihad

Those who follow such an approach and term it as ijtihad have a misconception that each ayah [verse] or hadith was revealed in a special context for a particular time, and hence the spirit behind it should be seen and applied to our times while ignoring the text. They might consider the text to be irrelevant to our times and hence consider it not worth applying in letter but only in spirit.

Another misconception among people with such an approach is that ijtihad must lead to some sort of relaxation. If something was considered forbidden [haram] previously as per the text(s), then, they believe, through ijtihad the ruling must be relaxed and the thing made lawful [halal]. Therefore, in such cases where an ease is sought, people with such misconceptions look to undertake ijtihad as per their erroneous understanding. However, when the situation demands that [by the logic of ‘change of times’ argument] something previously permissible be stopped, then they do not propose ijtihad. For instance, those who propose ijtihad today, the way they understand it, do not say that rules such as the shortening of prayers for a traveler were for those earlier times and were meant as a relaxation but they are no longer required as travelling has become much easier now. This only shows that this call to ijtihad is actually an attempt to make the religion conform to personal whims and wishes.

5. What is the meaning and scope of ijtihad

The first time the word ijtihad was used is in the following Hadith:

أن رسول الله صلى الله عليه وسلم لما أراد أن يبعث معاذا إلى اليمن قال: «كيف تقضي إذا عرض لك قضاء؟»، قال: أقضي بكتاب الله، قال: «فإن لم تجد في كتاب الله؟»، قال: فبسنة رسول الله صلى الله عليه وسلم، قال: «فإن لم تجد في سنة رسول الله صلى الله عليه وسلم، ولا في كتاب الله؟» قال: أجتهد رأيي، ولا آلو فضرب رسول الله صلى الله عليه وسلم صدره، وقال: «الحمد لله الذي وفق رسول، رسول الله لما يرضي رسول الله»

When the Messenger of Allah intended to send Mu’adh ibn Jabal to Yemen, he asked: “How will you judge when the occasion of deciding a case arises?”

He replied: “I shall judge in accordance with Allah’s Book.” He asked: “[What will you do] if you do not find any guidance in Allah’s Book?” He replied: “[I shall act] in accordance with the Sunnah of the Messenger of Allah.”

He asked: “[What will you do] if you do not find any guidance in the Sunnah of the Messenger of Allah and in Allah’s Book?”

He replied: “I shall do my best to form an opinion [ajtahidu ra’yi] and I shall spare no effort.”

The Messenger of Allah then patted him on the breast and said: “Praise be to Allah who has helped the messenger of the Messenger of Allah to find something which pleases the Messenger of Allah.”[5]

From this Hadith we learn that when a ruling is not found in the Book of Allah or the Sunnah of the Messenger, ijtihad is done and that too in the light of the Qur’an and hadith by those having the knowledge of the Book of Allah and of the sayings of His Messenger. Nowhere did he claim to look for relaxations in the wording of the Qur’an and hadith, but Mu’adh ibn Jabal showed us the correct way which earned the approval of the Prophet that when there is no direct ruling on an issue in the Qur’an and Sunnah he would apply his mind to reach the ruling through analogy or by deducing it from general guidelines on the issue.

Moreover, it is possible that the ruling reached through ijtihad is for the permissibility of something or it may well be for the impermissibility of it. This hadith is itself stating that ijtihad is done where there is no definite textual evidence.

Now, where there is no clear textual evidence, there are two possibilities. Either the ruling that is sought for is not mentioned by the Qur’an and the hadiths at all or it is alluded to in such a way that there remain some questions and the possibility of multiple interpretations. These two situations fall within the ambit of ijtihad. However, where the Qur’an and the Sunnah categorically address an issue it is not within the scope of ijtihad.

Relating this to the abovementioned example of pork, we find that the ijtihad in that example is baseless as even considering the need for ijtihad in such a case is not allowed.

6. Was the gate of ijtihad closed after the fourth Islamic century?

In the Islamic legal tradition, various degrees of ijtihad have been recognized such as ijtihad mutlaq [independent and absolute ijtihad], ijtihad fi al-madhhab [ijtihad within a school of law], ijtihad fi al-masail [ijtihad on new issues], etc.[6] The people calling for ijtihad do not consider these different levels of ijtihad, but in their minds they have their own understanding of ijtihad like what has been mentioned. Therefore, when it is said that the door of ijtihad has been closed, they assume it has been said for all these levels. When it is said that ijtihad has not been done after the fourth century, it is intended that the attributes required for ijtihad al-mutlaq, and the conditions for it, are missing. If today someone with these attributes does come along, it is neither intellectually nor legally impossible. What is mentioned is by way of stating a fact, not a rule. It is not that a mujtahid mutlaq[7] cannot be born but the situation has been such that it is difficult for one person to gather in himself all of the qualities and attributes of this level. However, it is theoretically possible and there is nothing against it. In fact, hadiths prove that there will be mujtahids even in the future. In one hadith the Prophet said:

مثل أمتي مثل المطر لا يدرى أوله خير أم آخره

The parable of my Ummah is like rain about which it cannot be determined whether the first part would be better or the last part.[8]

Prophet Muhammad has informed us that in the last part of this Ummah, the Mahdi would emerge and Prophet ‘Isa would descend. Therefore, it cannot be said that the doors of ijtihad has been closed since the fourth century and [that even] these two great men would not have the right to do ijtihad [mutlaq].[9]

If someone comes forth with an opinion on a matter having considered all the evidences, then it shall be considered as ijtihad al-juzai [partial ijtihad]. This and other levels of ijtihad like ijtihad fi al-masail continue to this day. Ijtihad fi al-masail refers to finding answers to newly-arising issues [nawazil], in the light of the principles discussed by scholars of fiqh. Looking for solutions to these new matters which naturally continues to this day is called ijtihad fi al-masail.[10] There are some who have said that partial ijtihad cannot take place alone and even in individual issues [masail] only a mujtahid mutlaq’s ijtihad shall be considered. However, the scholars of juristic theory [‘usul] have not accepted this opinion.

Therefore, to say that the scholars today have closed the doors of ijtihad is actually based on a misunderstanding of the issue of ijtihad. How can anyone close the doors that have been opened by the blessed Prophet? Doors have not been closed but those able to pass through this door have become extinct. Furthermore, this is true only for ijtihad mutlaq and not for other levels of ijtihad.[11]

7. Should the rulings change with the change of time?

Another point that needs to be understood is about the statement of the fuqaha [jurists] that has been misunderstood: “Rulings change with the change of time” (الأحكام تتغير بتغير الزمان). This is a statement of the jurists; however, the people who do not truly understand the idea of ijtihad suggest that change in time means whenever the wisdom and benefits change the rulings must also change. The point to note here is that rulings change with underlying causes [‘ilal] and not the aspects of wisdom attached to it. Whenever the underlying cause [‘illah] of a ruling determined by the Shari’ah changes, the ruling may change, but if that cause remains, the ruling shall not change even if what we assume as its wisdom and benefit is no more there.

7.1 A ruling depends on the underlying cause [‘illah] not some aspect of wisdom [hikmah]

The principle is that the ruling is dependent on the underlying cause and not wisdom.[12] Disregarding this important principle causes many misconceptions. Those who make amateur calls for ijtihad today have this misconception that the underlying cause and the wisdom are one and the same; they confuse aspects of wisdom [hikmah/masalih] with underlying causes [‘ilal], which is why they state that the ruling shall change.

Let us understand this with an example from our daily life.  Red traffic signal means one must stop. Here red signal is the underlying cause [‘illah] of the ruling. The wisdom [hikmah] is to keep order and prevent accidents. Now if the wisdom i.e. prevention of accidents is confused with the underlying cause [‘illah], then one would not consider stopping at a red signal if there is no traffic. However, in reality this is not so and stopping at the red light is a requirement even if there is no traffic. This might not sound wise but the ruling depends on the red signal and not on its wisdom. However, if considered with a bigger picture, then even stopping at the red signal, while there is no other vehicle, is very wise. If everyone is allowed to use his discretion based on his understanding of wisdom that since there is no other vehicle, stopping at the red signal is not prudent, it can risk the lives of many. Someone may decide to continue without stopping and others may halt, [or] one may think there is no one else coming from another direction while there might be someone actually coming. From this small routine example we learn that the rulings are based on underlying causes and not the aspects of wisdom attached to them. The same holds true for Shari’ah rulings as well.

To apply this principle to an Islamic legal ruling, we consider the case of shortening the prayers while traveling. The journey is the underlying cause while ease of difficulty is an aspect of wisdom behind this ruling. Whenever there is journey, the allowance for shortening the prayers will come into effect whether the journey causes any real inconvenience or not. While travelling by air, staying at comfortable hotels and using convenient road vehicles might not cause physical inconvenience, the allowance of shortening the prayers will remain. It could be that a person who is not travelling gets too busy with his work and daily life that he gets more exhausted than the fatigue he would have faced on a journey, yet it does not give the allowance for shortening of prayers. If rulings depended on aspects of wisdom, then travelling in our times would not permit us the allowance of shortened prayers and each person might have his own definition of convenience leading to much confusion on Shari’ah rulings.

To take another example, the wisdom behind the prohibition of alcohol is mentioned in the Qur’an:

إِنَّمَا يُرِيدُ الشَّيْطَانُ أَنْ يُوقِعَ بَيْنَكُمُ الْعَدَاوَةَ وَالْبَغْضَاءَ فِي الْخَمْرِ وَالْمَيْسِرِ وَيَصُدَّكُمْ عَنْ ذِكْرِ اللَّهِ وَعَنِ الصَّلَاةِ فَهَلْ أَنْتُمْ مُنْتَهُونَ

Satan only wants to cause between you animosity and hatred through intoxicants and gambling and to avert you from the remembrance of Allah and from prayer. So will you not desist?[13]

Today someone could say that alcohol does not cause hatred and hostility but causes friendship and love. Such a statement would not be accepted because it refers to wisdom and not the underlying cause.

The underlying cause of prohibition is not the fact of getting intoxicated. Had it been the cause of prohibition, the quantity of intoxicants that does not really intoxicate would not have been prohibited.[14] Many drinkers do not really get intoxicated. The underlying cause of prohibition is the ability to intoxicate. This is why something that can intoxicate in any quantity is prohibited even if it is taken in a quantity that does not intoxicate or cause enmity and hatred.

The difference between underlying cause [‘illah] and aspects of wisdom [hikmah] must be kept in mind. Underlying cause is something on which there are no two opinions and it can be determined very easily. For example, if this particular thing has the ability to intoxicate or not, whether this particular movement is journey or not are points one can determine very easily and without any ambiguity. Aspects of wisdom, on the other hand, are not as objective. In fact they are relative like a substance taken in a particular quantity may intoxicate one person while it may not intoxicate another, traveling some distance may make one person truly tired and it may not cause any fatigue to another.

Qur’an mentions about usury, interest, as follows:

وَإِنْ تُبْتُمْ فَلَكُمْ رُءُوسُ أَمْوَالِكُمْ

If you repent, you are entitled to (receive) the principal amount lent. You should do no wrong.[15]

The wisdom behind the prohibition of riba is to avoid injustice; that you do not cause someone harm and others do not cause you harm. Some people confused this wisdom with the underlying cause and argued that in the modern banking system, there is no injustice (as things are mutually agreed upon), therefore it is permissible. If reason alone was the source of law what then was the need for revelation? Every person can and will argue differently whether the particular transaction was unjust or not. Remember, the underlying cause is always definite and unambiguous. Here the underlying cause of prohibition is being riba. If the difference between the underlying cause and wisdom is understood, several misconceptions will be addressed.

8. Summary

To sum it all up, it can be said that the misconceptions among those proposing ijtihad are as follows:

i) People think that the purpose of ijtihad is to seek relaxation in rules derived from the categorical texts. Where there is no seeking of relaxation, they do not consider it ijtihad.

ii) The proper meaning of ‘the doors of ijtihad have been closed’ is not understood and it gives rise to misgivings.

iii) The immature callers of ijtihad confuse wisdom with underlying cause and, therefore, miss the point and seek changes in rulings where they are not valid.

If these three points are kept in mind all the misconceptions and misgivings about ijtihad can be answered.

.
Notes & References (by Waqar Akbar Cheema):

[1] Some people may claim that based on the misapplication of the theory of Maqasid al-Shari’ah. For a cogent treatment of the issue see, “Maqasid al-Shari‘ah Theory: Between Use & Misuse

[2] Al-Sajistani, Abu Dawud, al-Sunan, trans.  by Yaser Qadhi and Nasiruddin al-Khattab, Riyadh: Maktabat Dar-us-Salam, 2008; Hadith 4084; classified as sahih by al-Albani

[3] Qur’an 2:275

[4] Qur’an 2:275

[5] Al-Sajistani, Abu Dawud, al-Sunan, Hadith 3592; though al-Albani and others have mentioned that it is weak, a large number of scholars have authenticated it based on the multiple chains for it.

Ibn ‘Abd al-Barr said it is “sahih mashhur” See,  Jami’ Bayan al-‘Ilm wa Fadlihi, KSA: Dar Ibn al-Jawzi, 1994, Vol.2, 894; Ibn Taymiyyah said its chain is good (jayyid.) See, Majmu’a al-Fatawa, (Madina: King Fahd Qur’an Printing Complex, 1995) Vol.13, 364; Ibn Kathir also said its chain is good (jayyid.) See, Tafsir Qur’an al-‘Azim, Beirut: Dar al-Kotob al-‘Ilmiyya, 1419 AH, Vol.1, 24. Others who authenticated it include Ibn al-‘Arabi al-Maliki, al-Dhahabi, al-Shawkani, etc. See, ‘Awwamah, Muhammad (editor), Musannaf Ibn Abi Shaibah, (Beirut: Dar Qurtaba, 2006) Vol.11, 603-606

[6] For an explanation of these different levels of ijtihad and the people qualified to do it see, ‘Uthmani, Muhammad Taqi, Usul al-Ifta wa Adabuhu, (Karachi: Qur’anic Studies Publishers, 2011) 85-112

[7] Mujtahid is someone who undertakes ijtihad. Mujtahid mutlaq, therefore, is someone who can do ijtihad in absolute terms and independent of any existing schools of law.

[8] Al-Tirmidhi, Abu ‘Isa, al-Sunan, Hadith 2869; classified as hasan sahih by al-Albani

[9] It may be pointed out that some overzealous people even claimed that Mahdi and ‘Isa would follow the Hanafi school. Yes, some did say that but the major authorities in the Hanafi school have rejected such extremism. For a critique of such claims see, Loharwi, ‘Umar Faruq, “Kia Hazrat ‘Isa ‘alaih al-salam Hanafi honge?”, Monthly Dar al- ‘Ulum, (Deoband:  June 2007) 7-13

[10] In this context documentary evidence for the contributions of the scholars of the Subcontinent has appeared in Khan, ‘Abdul Basit, Jadid Fiqhi Masa’il aur Fuqaha-i-Pak-o-Hind kay Ijtihadat, (Lahore: Sh. Zaid Islamic Centre – Punjab University, 2012)

[11] It is pertinent to mention here a paper titled, “Was the Gate of Ijtihad closed?“, (International Journal of Middle East Studies, Vol. 16, No. 1, March 1984, 3-41)  by a Christian Arab Islamicist Wael B. Hallaq wherein he argues that “the idea of closing the gate of ijtihad or the notion of the extinction of mujtahids did not appear during the first five centuries,” and that “the controversy about ijtihad and the existence of mujtahids started, in its primitive form, only in the beginning of the sixth/twelfth century.” (p.33) Moreover, he highlights the fact that even in later centuries there was no consensus on the idea of the non-existence of mujtahids. “In practice,” he says even in the later centuries, “therefore, the methodology of ijtihad continued to be employed but mostly without being recognized under its proper name.” (p.32)

Elsewhere Hallaq writes, “[The] stultifying stagnation was branded with the catch-all epithet “The Closure of the Gate of Ijtihad,” a phrase designed to sum up Islamic legal history since the tenth century. That there was an extensive causal relation between, on the one hand, a colonial will to manage and rule the native populations and, on the other, the claim that Islamic “public law” had lost touch with reality was a matter noted only during the last half century, when direct colonial exploitation had exhausted both itself and colonies – or appeared to have done so. Roughly the same time-frame can be assigned to the discovery that the closure of the famous Gate was nothing more than a myth, and a central one at that.” See, Hallaq, Wael B., Shari’a: Theory, Practice, Transformations (New Delhi, Cambridge University Press, 2009) 445

[12] Shah Wali Ullah al-Dehlawi has dedicated a chapter to elaborate upon this issue, See his Hujjat Allah al-Balighah- The Conclusive Argument from God. Trans. Marcia K. Hermansen, Islamabad: Islamic Research Institute, 2003, 376-382

[13] Qur’an 5:91

[14] This is a reference to the saying of the Messenger of Allah: “Whatever intoxicates in large amounts, a small amount of it is (also) Haram.” (Al-Sajistani, Abu Dawud, al-Sunan, Hadith 3681; classified as hasan sahih by al-Albani)

[15] Qur’an 2:279

Published : May 30, 2015                 Last modified : July 3rd, 2016

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