Ijtihad, Taqlid & The Closing Of The Doors Of Ijtihad
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 the shari’ah from their detailed evidences in the sources. It has also been defined as “the effort made by the mujtahid in seeking knowledge of the ahkam (rules) of the shari’ah through interpretation”
Both these definitions exclude the layman from practicing ijtihad. Scholars have laid down fairly stringent conditions for the mujtahid including knowledge of the Arabic language, knowledge of the legal texts of the Qur’an, knowledge of h,adith and the science of h,adith, knowledge of ijma, and knowledge of the maqas,id al-shari’ah. Ijtihad is limited to the practical rules of the Shari’ah. for example the rules and regulations regarding acts of worship as well as the muamalat such as marriage, divorce and trade. Issues of belief are not subject to ijtihad.
Ijtihad is clearly sanctioned in Islam. The Prophet (salahu alaihi wa sallam). said: “When a judge exercises ijtihad and gives a right judgement, he will have two rewards, but if he errs in his judgement, he will still have one reward1”
The process of ijtihad began in the time of the Prophet (salahu alaihi wa sallam). He performed ijtihad on a number of issues including taking ransom from the captives of Badr. That the latter was the ijtihad of the Prophet and not wahy, is borne out by Allah’s rebuke of the Prophet for this decision.
The Prophet (salahu alaihi wa sallam) said that if two disputing parties ask him to adjudicate between them, he may incorrectly judge in favour of the more eloquent one (due to his eloquence). In this case, the Prophet would only be giving him a piece of the Hell Fire2. This shows that the Prophet’s ijtihad did not guarantee a correct result. If the Prophet, being the most knowledgeable regarding religious matters, was unable to guarantee a correct result from his ijtihad, then it follows that those who came after him, were even less likely to guarantee that their ijtihad was correct. Ibn Masood said, after giving a ruling: “I am giving my opinion about her. If it is correct, then it is from Allah, but if it is incorrect, then it is from me and Satan”
The Prophet encouraged his Companions to make ijtihad in particular situations. For example, he delegated the decision regarding the fate of the Jewish tribe, Banu Qurayzah to Sa’d ibn Mu’ad. He also acknowledged the decision of Amr bin Al ‘As to perform tayammum when in a state of janaba due to the intense coldness of the water.
After the death of the Prophet, the Islamic empire expanded rapidly, and with it came a host of issues which were not specifically covered by the Shari’ah. Abu Bakr was appointed as Caliph based upon an analogy with his appointment by the Prophet to lead the people in prayer. If his leadership in religious affairs were sanctioned by the Prophet, then his leadership in worldly affairs had even more right to be accepted. Abu Bakr’s war against the non-payers of zakat, and the collection of the Qur’an in one mushaf were based on his ijtihad. Likewise, ‘Umar’s suspension of hadd for theft during drought, and his suspension of giving zakat to the ‘mu’allafat al qulub3’ were all based on ijtihad. The likelihood of mistakes in ijtihad of the first two rightly guided caliphs was very small. Whenever the caliph could not find a solution to a problem in the nass, he would gather together the major companions, many of whom had been forbidden from leaving Madinah for this very purpose, to arrive at a solution. If there was unanimity, it was known as ijma‘. Hence ijtihad that led to an ijma‘ was free from the possibility of error. However when no unanimity was reached, the Caliph would make his own ijtihad binding, which then became law. The Caliphs encouraged their governors to exercise ijtihad if they failed to find an answer in the Qur’an or Sunnah. In his letter to Abu Musa’ al-Ash’ari, ‘Umar al Khattaab said: “Try to understand matters that perplex you and for which you do not find explicit instructions in the Qur’an or Sunnah of the Prophet. Acknowledge precedents and similar cases and apply analogy to them, and take the decision which is most pleasing to Allah and most corresponding to justice so far as you see”
Some reasons why scholars differed in their ijtihad
There are a number of reasons why rules arrived at by means of ijtihad will differ. A word in the Qurj’an or Sunnah may take more than one literal meaning, for example the word ‘qur’ in the verse ‘divorced women should wait three quroo’, can mean ‘menses’ as well as the ‘purity between menses’. Scholars have hence differed as to when the divorce becomes finalised due to their differing in the understanding of the word ‘qur’.
Some words in the Qur’an can have both literal and figurative meanings. The Qur’an orders those who have ‘touched’ women to renew their ablution. The word touch (lams) can literally mean touching by the hand. It can also have the figurative meaning of sexual intercourse. The jurists differed in their interpretation and hence differed in their ruling of the necessity of ablution for a man who literally touches a woman.
With regards to the verse that is ‘amm4, the Hanafis considered it to be qat’i5 , whereas the other three madahibs considered it to be zanni6. In the event of an ‘amm verse conflicting with the khass, the jamhu7r would use the latter to specify the former.
For example the hadith, ‘Whatever is watered from the sky is subject to charity’ is ‘amm. However, another hadith states: ‘There is no charity on less than five awsaq (a measure of weight)’ which is khass8. The jamhur would specify the first hadith with the second, resulting in the ruling that zakat is payable on whatever is watered from the sky, provided that the amount is more than five awsaq. However the Hanifis state that the ‘amm hadith, being of later origin, abrogates the ‘khass, and therefore there is no nisab on zakat on agricultural produce. Hence, due to different methodologies in reconciling apparently conflicting textual evidence, jurists arrived at different rulings on the same issue. When making ijtihad on a new issue, the jurists would always first look into the Qur’an and Sunnah, if nothing was found in these texts, they would look to see if an ijma‘ existed on the issue. Failing this, they would employ qiyas. With regards to the primary sources however, jurists did not always have access to the all of the hadith pertinent to the issue. For example, Abu H,anifa ruled that there was no congregational prayer for rain, as he was not aware of the relevant hadith. In some cases, the jurists were aware of the hadith, but due to their different criteria for the acceptability of hadith, some jurists would use it as a basis for their ijtihad, whereas others would reject it. This led to different rulings on the same issue. Malik would reject any hadith that conflicted with the customs of the people of Madina, Abu H,anifa stipulated that the hadith had to be mashoor9. Shafi’i rejected most mursal10 hadith, whereas Ahmed bin Hanbal accepted them.
With regarding to the secondary sources of the shari’ah, jurists differed on which principles were admissible in making rulings. Shafi’i rejected the use of ist+hsan11 (used by the Hanafis), and the custom of the people of Madinah. Jurists also differed on the validity of ijma‘ after the Companions.
Forbiddance of Taqlid
Imaam Shafi’i states in his Risalah that “[knowledge obtained through ijtihad] is binding only on the one who exercised qiyas12 and not on other men of knowledge”. This point is further emphasised in Al-Umm in which Shafi’i argues that the scholar is only bound by his own ijtihad, and that he may not abandon that which he considers to be true in order to blindly follow another scholar. This statement is in direct contradiction to those who state that it is binding upon a person to follow one scholar in all matters of the religion. When a scholar makes a ijtihad, he is either right or wrong. If he is right then he has correctly interpreted the will of the Law Giver. If he is wrong in his ijtihad, he has (inadvertently) contradicted the will of the Law Giver, although he still receives one reward for his sincere ijtihad.
If one believes that the ijtihad of a scholar contradicts textual evidence, then he has no choice but to follow the clear textual evidence, irrespective of the status of this scholar. In other words, he follows the One who never errs; Allah (and His Messenger). To do otherwise would be to abandon the infallible sayings of Allah and His Messenger in favour of one who is fallible. Taqi-ud-Deen Subki said: “For me, the best thing is to follow the hadith. A person should imagine himself in front of the Prophet just having heard it from him, would there be leeway for him to delay acting on it? No by Allah!” Taqi-ud-Deen Ibn Taymiyyah said that following one Imam in all that he says is tantamount to associating partners with Allah in the Shari’ah.
No-one from the first three generations considered the statement of a single man to be binding unless it agreed with the truth13. Shanqiti stated that the laymen after the death of the Prophet, when faced with a new issue would ask a knowledgeable companion for a ruling without specifying anyone in particular. If a new situation arose, he would not necessarily go back to the original companion, but would ask whoever he wished from the knowledgeable companions. In other words, he would ask one mufti on one occasion, and another mufti on a different occasion; the notion of just restricting oneself to one mufti did not exist in the first three generations. Hence a ruling arrived at by ijtihad is not binding on anyone other than those who consider them to be the truth.”
Were the Gates of Ijtihad Closed?
It is a common belief among many Muslims that the gates of ijtihad were closed at the end of the third century. However ijtihad clearly continued well after the end of the third century. Until the sixth century, there was no mention in the book of usul al fiqh about the closure of the gates of ijtihad. As we shall show, the alleged closure of gates of ijtihad was a fallacy; it never occurred.
Ijtihad in the Fourth Century
According to Subki, a number of fourth century scholars including Ibn Surayj, Tabari, Ibn Khuzayma, and Ibn Mundhir were mujtahids who differed on many issues with the Shafi’i school. Tabari (d310) even founded his own madhab. Abu H,asan al-Dariki (d375) differed substantially from the Shafi’i school, often making rulings that differed from both Shafi’i and Abu H,anifa. Hence we have five scholars, (mentioned above) who exercised ijtihad, after the alleged closure of the gates of ijtihad.
Ijtihad in the Fifth Century
In the fifth century, a number of scholars condemned taqlid and hence implicitly supported the use of ijtihad. For example Ibn ‘Abd al-Barr (d463) wrote an entire chapter in refutation of taqlid. Al-Khatib al-Baghdadi and Juwayni (d478) considered the ability to perform ijtihad as an essential requirement for the head of state to be able to discharge is duties effectively. In the event of his inability to perform ijtihad, Juwayni suggested that the task be delegated to the jurists. Likewise, al-Mawardi (d450) considered it essential that the mufti and the qadi be able to perform ijtihad Juwayni is described by Subki as someone who uses his own independent reasoning and ijtihad as opposed to following the principles of Shafi’i. Hence it is clear that ijtihad was flourishing in the fifth century. Many
scholars, although not all, ascribed themselves to a madhab, however a number of scholars did not restrict themselves to the principles of their madhab.
As well as ijtihad in fiqh, many scholars who came in the later centuries made important contributions to the development of the legal principles of their madhab. Ibn Qudama, a seventh century jurist, made important contributions to the development of Hanbali fiqh. Likewise Sarakhsi (d490) contributed original material to Hanafi thought. The belief that the founder of each of the four madhabs developed all of the legal principles of their madhab and that later scholars based all of their legal decisions on the basis of these founding principles, does not stand up to historical reality. The madhab of Imam Ahmed for example was developed by Abu Bakr al-Khallal and some of his contemporaries.
Now that we have established that the gates of ijtihad did not close at the end of the third century, and that ijtihad flourished in the fourth and fifth centuries, we examine the question: did the gates of ijtihad close at a later period?
The discussion of the closing of the gates of ijtihad is inextricably linked with the discussion regarding the possibility of the extinction of mujtahids although the latter preceded the former by at least two centuries. For if there were no mujtahids, there would be no ijtihad. This discussion concerning the possible extinction of mujtahids was first raised by Ibn Aqil and then his opponent Amidi (d632) and was initially a theological rather than a juristic discussion. However, the term mujtahid has more than one meaning. When al-Rafi’i concluded that Muslims “seemed to agree” there were no mujtahids in his era, it is likely that he was referring to what is known as mujtahid mutlaq – or an independent founder of a school of law. Up to the end of the eighth century, other similar claims regarding the absence of mujtahids were vague, and did not imply ijma‘on the issue.
Jalaluddin Al-Suyuti’s (d 911) claim that he was a mujtahid, shows that ijtihad continued into the tenth century. The proponents of ‘closing the gates’ had another problem; they were unable to reconcile the Prophetic h,adith regarding the appearance of a mujaddid14 in every century, (who by default had to be a mujtahid) with their belief of disappearance of mujtahids.
The tenth century and after saw a decline in the number of jurists exercising ijtihad. The seven fold categories of jurists, in which the latter four categories were all muqallids, was rigorously promoted by Hanafis to argue their view that mujtahids were now extinct. This claim was strongly denied by the Hanbalis and many Shafi’i’s – hence there was no ijma‘ on the alleged closure of the gates of ijtihad. Such an ijma‘, even if it was to occur within only the Hanafi madhab, is still problematic given that ijma‘ is defined as the consensus of the mujtahids of the time. Now would the mujtahids of a particular era all agree that there were no more mujtahids left?
Subsequent centuries saw a number of scholars strongly condemning taqlid, and re-affirming the existence of ijtihad. Such scholars included Ibn ‘Abd al-Wahhab (d1202) and Shawkaani (d1255).
Hence we can conclude that the closing of the gates of ijtihad was a pure fiction. No evidence has ever been presented as to the exact date when the scholars agreed to the closure of the gate, nor have the names of the scholars who agreed to close the gate ever been mentioned.
Usool al –Fiqh. The Methodology of Islamic Law Made Easy. Al- ‘Abbaad, ‘Abdul- Muhsin.
The Evolution of Fiqh (Islamic Law and the Madh-habs) Phillips, Abu Ameenah Bilal.