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Section 1
Introduction
Introduction
The sources of ijtihad according to Shi'ah and the Ahl
al‑Sunnah, put together, are: the Book, the Sunnah, ijma (consensus), aql (reason),
qiyas (analogy), istihsan, masalih mursalah, istislah, sadd al‑dhara'i, fath al‑dhara'i;
madhhab al‑sahabi, shariat al‑salaf, urf, istidlal, and so
on.
In this series of articles we
shall try to discuss and study these topics in detail from the Shii and the
Sunni points of view.
We expect writers and scholars
who have specialty in this field to contribute to the soundness and validity of
these studies through constructive criticism relevant to the subject studied
here. Any constructive criticism is very useful for correcting errors and
removing shortcomings, and effective in eliminating ambiguities and omissions.
Besides rendering vital service to scholarship, it is beneficial to the author,
who is forced to be more careful in his statements and precise in his research.
The intellectual history of Islam is indicative of the debt that the
development and expansion of legal and other scientific studies owe to diverse
viewpoints and competent criticism.
This commendable and beneficial
tradition has been in vogue in its most desirable form throughout the seven
epochs of ijtihad among all the
scholars and mujtahidun, and
especially in the sixth and the seventh periods, whose fore‑runners were
Wahid Behbahani and the great al Shaykh al‑'Ansari respectively, this
tradition reached its zenith.
Also, the very force of ijtihad, from the era of tashri (legislation) to the present (as
discussed in detail in the article on the epochs of ijtihad), as a legitimate activity is derived from criticism and
debate. Because, in Islamic fiqh, ijtihad
has had the meaning of a free and independent effort of the mujtahidun, undertaken for the purpose
of advancement and expansion of the Islamic sciences. This development was not
possible except through freedom of scholarly research, free expression of
different views and clash between views of the mujtahidun, scholars and thinkers.
By practising ijtihad, a mujtahid deduces the ahkam (laws)
of the Shari'ah for issues and problems regarding which there is no specific
express text (nass), by relying on
legal sources and principles and by benefiting from the ideas of other mujtahidun. On account of this, it may
be said that ijtihad plays the role
of an evolutionary and dynamic force in legal studies which provides solutions
to contingent issues of life and fulfils the needs of changing times and the
requirements of new phenomena of human civilization. Therefore, Islamic fiqh
does not suffer with inertia, stagnation and passivity vis‑a‑vis
the demands of the times, of life and its manifestations; it also advances
along with them. It is for this reason that it has been said that ijtihad has been throughout Islamic
history the force which has been constantly developing and expanding the
boundaries of fiqh with respect to its applications, while maintaining the
stability of legislation. Thus, ijtihad
is essential for Islamic fiqh, without which it cannot be dynamic and
progressive.
On the basis of this, closing of
the gates of ijtihad is contrary to
the perennial mission of Islam in all ages, and, most certainly, alien elements
have played an active role in promoting this ominous venture. For the enemies
of Islam, it has been, and still is, the best weapon to strike Islamic law
with, and the most effective instrument for eliminating it from scientific,
cultural, economic, social and political arenas. Because, closing of the gates
of ijtihad renders fiqh ineffective
and incapable of providing answers to emergent and contingent issues of life
The present deficiencies in the
world of Islam, the failure to confront the contingent issues in a proper way,
the issuing of baseless and irrational fatawa,
the improper attitude towards new ideas ‑ all these are consequencies
of the closing of the gates of ijtihad by
the Ahl al-Sunnah. It has been instrumental in allowing dubious hands, with
the aid of taghuti governments, to
instil unhealthy ideas into the people's minds and to insinuate the feeling
that Islamic fiqh cannot fulfil the demands of the present age and the modern
civilization.
These insinuations have left
undesirable effects on the minds of short‑sighted and self‑alienated
persons unaware of the spirit of Islam, to the extent that they servilely
follow the aliens and prefer Western laws to the laws of Islam (we shall have
more to say about this matter in the article "The Era of the Decline of
Sunni Ijtihad").
The most outstanding achievement
of Shi'i fiqh has been to keep open the gates of ijtihad throughout the course of history. Its superiority over
other schools of fiqh, whose doors were closed after the death of their
founders (namely, Abu Hanifah al‑Nu'man ibn Thabit, the founder of Hanafi
School; Malik ibn Anas al‑'Asbahi, the founder of the Maliki School;
Muhammad ibn Idris al‑Shafi'i,the founder of the Shafi'i School; and
Ahmad ibn Hanbal, the founder of the Hanbali School), lies here. (An exposition
of this issue from various aspects and a critique of the speech of the editor
of the Kuwaiti journal al‑Mujtama,
Isma'il al‑Shatti, delivered at the U.A.E. university on Nov. 1,
1982, wherein he denounced the claim about the continuity of ijtihad as a conspiracy against the
faith,' will come in our article on the epochs of ijtihad.)
Main Topics of Discussions
We shall deal with the following
topics in this study:
The lexical meaning of the word ijtihad'.
The meaning of ijtihad in the utterances of the Prophet
(S).
The technical meaning of the term
ijtihad.
Two different meanings of ijtihad as a technical term used by
Muslim fuqaha'.
Acceptance of ijtihad as an independent source of law
in Sunni fiqh.
Causes of the emergence of ijtihad bi al‑ray and other
conjectural instruments among the Ahl a1‑Sunnah.
Arguments offered in favour of ijtihad bi al‑ray and their
refutation.
The beginnings of ijtihad in the sense of ray.
The period during which ijtihad bi al‑ray was known as tawil.
The continued use of the term ijtihad in the sense of ray.
Change in the meaning of ijtihad from its original sense of ray.
The meaning of the term ijtihad.
The difference between the two
meanings of ijtihad from the point of
view of the effects and consequences of each of them.
Delimiting of the new meaning of ijtihad by al‑Muhaqqiq al‑Hilli.
The times since when the Shi'ah
and the Ahl al‑Sunnah felt the need for ijtihad.
Ijtihad in the days of the Imams (A).
Ijtihad, a perennial spring of Islamic fiqh.
The first legist who opened the
doors of Shi'i ijtihad.
The difference between the styles
of ijtihad during the period of the
Major Occultation and afterwards.
The development of ijtihad in Sunni fiqh.
The decline of ijtihad in Sunni fiqh.
The impact of the backwardness of
Sunni fiqh on the Sunni society.
The Akhbari stand against ijtihad.
The factors and causes behind the
Akhbari rejection of ijtihad.
Wahid al‑Behbahani's
crusade against Akhbarism.
The factors and causes behind al‑Behbahani's
success and advancement.
The synthesis of Akhbari and
Usuli outlooks regarding ijtihad.
The Prophet (S) and ijtihad.
The place of ijtihad.
The Term Ijtihad
Ijtihad', according to the lexicographers, is derived from juhd', which means employment of effort
or endeavour in performing a certain activity. Here we shall quote some of
them:
Ibn al‑'Athir defines ijtihad' as the effort and endeavour
undertaken for attaining some objective. [1] He further remarks that the word
()
occurs in many ahdith. 'Juhd' means employing ones complete strength,
and jahd' means hardship and
difficulty. [2]
Ibn Manzur al‑Misri says: Jahd and juhd mean power and strength. He adds that it is said that whereas jahd means hardship and difficulty, juhd gives the sense of power and
strength. [3] Later on he quotes al‑Farra' to the effect that in the
verse of the Quran [4] jahd
is used in the sense of power and strength. [5] In the same work, he states
that ijtihad and tajahud mean exertion of power and strength. [6] In the hadith
narrated from Mu'adh the phrase used in the sense of effort and endeavour to
achieve some purpose.
Said al‑Khuri says: Ijtihad means undertaking effort and
endeavour in performing some task. For instance it is He exerted himself to carry the stone', but
nobody says: (Khardalah=mustard
seed). [7] He further adds that jahd (verbal
of jahada) is used in the sense of
strength ‑ as in
