IJTIHAD AS A SOURCE OF LAW

IJTIHAD AS A SOURCE OF LAW

Introduction

The Holy Quran is a code of conduct, not a code of law.Although it gives the sanction for framing of subsidiary and procedural law to the Muslim community at large, down the ages to meet particular situation and regulate the affairs of the day to day within the scope of holy Quran and Sunnah.

History of Ijtihad

The basic principle of Islamic law requires effort on every individual’s part to try and ascertain God’s will. To fulfil this expectation a great number of Muslim scholars emerged who private persons were striving to understand God’s words for their own. Salvation and for the guidance of their fellow Muslims. The efforts of these Muslim scholars came to be known as Ijtihadwhere they individually exerted themselves in study of traditional sources and applied reasoning in the process of ascertaining God’s will.

Meanings of Ijtihad

a. Literal Meanings

Literally Ijtihad means ‘the expanding of the maximum effort in performance of an act or job.’

b. Linguistic Meanings

Linguistically, the word Ijtihad has been derived from an Arabic word “jehid” which means to strike hard or to struggle.

c. Technical Sense

Technically, Ijtihad, means “maximum effort to ascertain in a given problem or issue, the injunction of Islam and its real intent”

Definition

The word ‘Ijtihad’ has been derived from the root JEHID, and literally means "striving with full exertion." In Islamic legal terminology, it denotes an attempt to choose, in the light of the Qur’an and the Sunnah, between two or more differing legal interpretations and to deduce, from the Qur’an and the Sunnah, any new rulings in order to address new legal situations. One who performs "Ijtihad" is called "Mujtahid".

Jurist View

Jurisprudentially the word Ijtihad means the application by a jurist of all his faculties to the consideration of authorities of law which are Quran, Sunnah and Ijma.

Concept of Ijtihad

The concept of Ijtihad in Islam, which Faruki defines as “Systematic Reasoning and disciplined striving”. Involved more than just interpretative actives. It demanded a fontal expenditure of effort. The centres of this great process of learning were Medina and Makka on one hand, and Basra and Kufaon the other hand. These are the cities which produced the Great founders of four Sunni School of Thoughts who contributed immensely to the development of the Muslim legal system.

Quranic Perspective on Ijtihad

a. “This is clear insights from your lord, guidance and a mercy for people who have.

b. “If there is any difference among you over any matter, refer it to Allah (the Holy Quran) and the Holy Prophet Muhammad (PBUH)Sunnah.

Ijtihad in the Light of Ahadith

a. “Resolve the matters in the light of Holy Quran and Sunnah and Exercise Ijtihad with your own reason”.

b. “Exercise Ijtihad because God makes that task easy for a person for which he is born or sent down in the world.”

Limitations on Ijtihad

a. Explicit and Clear rule

There is no Ijtihad where the rule in text is explicit. In the other words, when the rule in the text is so clear that more than one meaning cannot be derived from it, the jurists is prohibited from under taking Ijtihad on that.

b. Interpretations

While arguing from the Quran it is imperative to interpret the meaning of a verse in accordance with the requirements of the languages.

c. Single citation

No single citation (Khabr-e-whad) is allowed to hold its own against a Sunnah that has been well established on the strength of authentic sources.

Therefore the application of Ijtihad is subject to a few limitations. It cannot be exercised on the following topics.

i.      Versus of Holy Quran

ii.    Mutawatir Sunnah

iii.  Five Pillars of Islam

iv.    Moral Truths

v.      All definitive rules of Islam

Types of Ijtihad

The Jurists in general Practice three types or modes of Ijtihad for implication and case of understanding this activity, but Ijtihad is a single seamless process.

i.      Type(Mode) 1

In the first type of Ijtihad the jurist stays as closed as he can to the texts. He focuses on the literal meaning of the texts i.e. he follows the plain meaning and he tries to find from the texts of Holy Quran and Sunnah. He also looks up their meaning from other sources like literature etc.

ii.    Type(Mode) 2

In the second type of Ijtihad the Jurist extend the law to new cases that may be similar to the cases found in the texts but cannot be covered through literal method. This process is called analogy or Qiyas.

iii.  Type (Mode) 3

In the third type of Ijtihad the jurist relies on all the texts collectively. Thus the third type of Ijtihad provides the opportunity to generate new principles, provided he observes a prescribed methodology and fulfils the conditions imposed for such legal reasoning.

Complete Process of Ijtihad

The process Ijtihad is a single seamless process. The following activities and stages collectively depict the process of Ijtihad.

i.      Mujtahid acquires the qualifications necessary for Ijtihad.

ii.    Mujtahid understands the different forms of “Bayan” or elaboration of the text given by the lawgiver himself.

iii.  Mujtahid identifies the occasions on which such Bayan were invoked.

iv.    Mujtahid exercises effort to derive the law from the sources.

v.      Mujtahid understands abrogation and identifies occasions on which these rules have been repealed by the lawgiver.

vi.    Mujtahid exercises Tarjih or Preference and jam or reconciliation among apparently conflicting sources.

The Qualifications of a Mujtahid

The learned men of Islam have laid down certain qualifications, in the light of the Qur’an and the Sunnah, which a person must possess for acting and for being accepted as a Mujtahid.  Allama Shah Waliullah of Delhi (on whom be God's Mercy!) has mentioned those qualifications in detail in his celebrated book: Hujjatullahil-baligha.

I may summarise them here in their minimum form for the benefit, especially, of those simple-minded brothers and sisters of mine who have been misled into the belief that they can act as Mujtahidsin their independent capacities. Let those whom the promptings of personal fancies lead them into posing as Mujtahids without right (and who condemn the great services rendered by the Imams simply because their hearts are gripped by un-Islamic things and they cannot bear the Islamic discipline systematised and codified by the latter) pause for a while momentarily and consider the following, which are the minimum reasonable qualifications, in their Islamic side, which a Mujtahidshould possess: