Terminology of Islamic Law (Jurisprudence) Fiqh and Usul

Ḥadīth (Arabic: حديث) which is also called “Riwaya” (Arabic: “روایة”; lit.: Narration) is a word in Islamic terminology and religious sciences which refers to sayings quoted from the Prophet (s) and Imams (a) and their conduct.

Beside the Qur’an, hadith also has had a central role in Muslims’ understanding of religion during Islamic history.

Due to its importance, different sciences have been established to study hadiths from different aspects of reference, content, etc. under the general title of hadith sciences. Issues about the sources of the hadiths are studied in Riwayat al-hadith and their content is studied in Dirayat al-hadith. Rijal and Mustalah al-hadith are two branches of Riwayat al-hadith. Different branches have been established under the mentioned disciplines to more specifically analyze and check authenticity of hadiths.

Among the many hadith books, ten books are more important. Four of them are written by Shi’a and other six ones are written by Sunnis. The four most important Shi’a books are al-Kulayni’s al-Kafi, al-Shaykh al-Tusi’s Tahdhib al-ahkam and al-Istibsar fi ma akhtalaf min al-akhbar and al-Shaykh al-Saduq’s Man la yahduruh al-faqih. These books are called Usul al-arba’a.

To Sunnis, most authentic books are Sahih al-Bukhari, Sahih Muslim (which are called Sahihayn), Sunan Abi Davud, Sunan Tirmidhi, Sunan Nasa’i and Sunan Ibn Maja. These books are called Sihhah Sitta.

Meaning

The word “hadith” is an adjective derived from the root ha dal tha’ (Arabic: ح د ث) meaning “new, story and narration”. Hadith and Riwayah are generally different but are used synonymously in most cases in hadith terminology; however, sometimes they are used differently where, Imams’ sayings are called hadith and narrations of any topic from other than Imams (a) are called Riwayah.

Apparently the reason for hadith as Khabar is that it is used beside the Qur’an (both of which explain rulings); since, most Sunnis believe that the Qur’an is ancient and thus call the rulings the Prophet (s) issued hadith (new).

From the aspect of content, hadith is divine and from literal aspect, it is humane.

Relation of Hadith with Athar, Khabar and ‘Ilm

In recent centuries, three concepts of Athar, Khabar and ‘Ilm are in close relation to hadith.

Athar From literal aspect, Athar means “remains and trace”. Among Sunnites, this word refers to any trace remains from religion or religious teachings, whether quoted form the Prophet (s) or quoted through the Followers from the Category:Sahabas about the Prophet’s (s) conduct in Medina. However from Shi’a viewpoint, this term is used similar to the meaning of Riwaya from Imams (a); and some have associated it with what is quoted from the Companions.

Khabar There are different opinions about the definition of Khabar. Some scholars categorize hadith to hadith Marfu’ and called it Khabar and hadith Mawquf and called it Athar.^[1] Some scholars have considered hadith, a saying quoted from Imams (a), Khabar as any general quotation from the past and Athar even more general than the other two.^[2] Some scholars have regarded the three the same to free from disagreements.^[3]

‘Ilm This word is no longer used as a term; however, there are many cases of its usage in the first century and some cases in the second century which show that for what today we call hadith, the first word came to one’s mind at that time has been ‘Ilm.

There are certain quotations from the Companions and the Followers in which they expressed their worries about “abandoning of ‘Ilm” or ” ‘Ilm being worn out” and “abandoning of ‘Ilm” was considered as abandoning of the bearers of ‘Ilm.

Classification

In hadith studies, there are different classifications of hadith in order to better understand their sources or their content:

• Classification based on the number of the narrators of the source: Khabar wahid, Khabar Mustafid and Khabar Mutawatir,
• Classification based on the authenticity of the source: Sahih and its subtypes (Sahih Mudaf, Muttafaq Alayh, A’la, Awsat, Adna), Hasan, Mawthuq, Qawi, Da’if and its subtypes (Mudraj, Mushtarak, Musahhaf, Mu’talaf, and Mukhtalaf),
• Classification based on connection or disconnection of the chain of references: Musnad, Muttasil, Marfu’, Mawquf, Maqtu’, Mursal, Munqati’, Mu’dal or Mushkil, Mudmar, Mu’allaq, Mu’an’an, Muhmal,
• Classification based on text: Nass, Zahir, Mu’awwal, Mutlaq and Muqayyad, ‘Am and Khass, Mujmal and Mubayyan, Mukatab and Mukatiba, Mashhur, Matruk, Matruh, Hadith Qudsi, Shadh, Maqlub, Mutashabih
• Classification based on acting upon the hadith: Hujjat and La Hujjat, Maqbul, Nasikh and Mansukh

Sources

Among Sunnis of the first century, they regarded the hadiths narrated from the Prophet (s) regardless of their narrators. In the second century, after gradually forgers of hadiths emerged, the need for mentioning the chain of references as a preventive means against spread of fake hadiths.^[4] Following the domination of the mentioned approach, baseless narration from the Prophet (s) and the Companions dramatically decreased, however it remained until the end of the second/eighth century, both among scholars from People of Hadith such as Malik b. Anas^[5] and the People of Opinion such as Abu Hanifa^[6] and Shaybani,^[7] his student. At the end of the second/eighth century, Shafi’i made efforts in dominating the discourse of “where you found this from?”.

Among Shi’a, narrators have been important since the beginning and Imams (a) explained their criteria for accepting hadiths for Shi’a.

History

In the time of the Prophet (s), ‘Ali (a) and some Companions wrote hadiths of the Prophet (s). After the Prophet (s) passed away, writing hadiths among Sunnis became different from among Shi’a. From the first Caliph until ‘Umar b. ‘Abd al-‘Aziz the official policy of the government was opposing narrating and recording hadiths of the Prophet (s) so that they burned many hadith collections.

‘Umar b. ‘Abd al-‘Aziz changed the official policy of the government and publishing hadith collections began and Sihah Sitta were written at the end of third/ninth century, but a century of ban on hadith severely affected the authenticity of later sources.

Since the time of Prophet (s) and after him, at the time of the Infallible Imams (a) until the Minor Occultation period Shi’a used to write and compile hadiths. Kitab ‘Ali, Jami’a, etc. and Usul arba’ mi’a from the companions of Imams (a) were products of that period. In later centuries, collecting and compiling hadiths were done. Kutub Arba’a were written by collecting the previous hadith sources before the early 5th/11th century.

Classification

Classification of hadiths has been important to religious scholars to provide an easy access to hadiths. These classification have been followed and developed day by day in early centuries in different ways.

In Middle and Recent Centuries

Forging

As soon as hadith became a source for understanding religion in the first/seventh and second/eighth centuries, abusing it began and some people began forging hadith. The history of forging hadith (Wad’) and falsely quoting from the Prophet (s) and Imams (a) dates back to the origin of hadith.

Hadith scholars benefitted from the two sciences of Rijal and Diraya as the solution for the mentioned problems and though such sciences they could recognize real and fake hadiths.

Studying Source and Content

Criticisms from outside the environment of hadith scholars, made some concerns among them to try to begin professional criticism about hadith themselves. Feeling such a need was not made only from the outside and even existence of some problems such as paradox between different reports made them take the mentioned approach. In such criticisms, even though the general look towards hadith was positive and trustful, but the efforts were towards finding their problems and ways through which readers could remain safe from their harms. The feeling of the need for criticizing hadiths in general made a criticizing system during several centuries which have been studied only in details and a general picture of it has not been studied; a general picture which will be tried to be made below.

Understanding

In order to understand hadith, different issues need to be discussed such as conveying through meaning, language of hadiths, knowing the audience, abrogating and abrogated, different semantic levels of hadiths, interpretation and other topics usually studied in Diraya.

Influence in Islamic Culture and Civilization

Using hadith-derived ideas in the literature of Islamic nations is a phenomenon which has a history as long as the history of the Islamic literature. In addition to usage of hadith-derived ideas in Arabic prose and poetry, examples of using them can be seen in Islamic Iranian literature since its development.

In 6th/12th century, Prophetic hadiths can be frequently seen both implicitly and explicitly in Farsi poetry; such as Amir Mu’izzi’s explicitly quoting a hadith from the Prophet (s) about coming of a king from the West and his spread of justice in an ode.^[8] Sana’i Ghaznawi (d. 545/1150) often uses periphrasis and has implicitly mentioned some hadiths from the Prophet (s) such as Hadith al-Thaqalayn^[9] and the Prophet’s (s) hadith about truthfulness of Abu Dhar.^[10] Also, such periphrasis can be seen in Sa’di’s poems about Hadith Mi’raj and Gabriel’s worry about burning his wings.^[11]

Among Farsi poets, Muhammad Balkhi (d. 672/1273) has widely, implicitly and explicitly benefited from hadiths; some of which are not available in currently available hadith collections. In Ahadith Mathnavi, Furuzanfar has extracted those hadiths and studied their references.^[12]

Some Maxims from the Prophet (s) became so famous and popular among Muslims which turned into proverbs. In al-Amthal fi al-hadith al-Nabawi, Abu al-Shaykh Isfahani made a first step in collecting such famous hadiths.^[13] In addition to Arabic collections, where using Arabic expressions as proverb is very expectable, such a function for hadith can be seen in other collections of Muslims, especially among Farsi speakers.

Some hadiths of the Prophet (s), whether in their original Arabic wording or in Farsi translation, have frequently been used which can be regarded among proverbs.^[14] Sometimes, some short sayings which have been felt harmonious with prophetic teachings have become famous among people; for example, the phrase “al-Nizafa min al-Iman” [“hygiene is part of faith”] is a very frequent proverbial expression among Iranians;^[15] however, it cannot be found in hadith collections and just few hadith scholars including Ibn Hibban al-Busti have mentioned that as a concept derived from hadiths.^[16] There are other cases, where a poetic form of a hadith in Farsi have become a frequently used and practical proverb such as “So said the truthful Prophet (s)/ from cradle to grave, seek for knowledge, a hadith, Arabic origin for which can only be seen in recent sources.^[17]

Different Approaches in Contemporary Period

Akhbaris

Akhbari trend was originated in Safavid era and continued by Mirza Muhammad Akhbari (d. 1232/1817), even though with the efforts of Wahid Bihbahani (d. 1205/1791) and al-Shaykh Ja’far Kashif al-Ghita’ (d. 1228/1813), dominance of Usulis over Akhbaris was established in Iraq and Iran; however, Akhbari thoughts has continued to exist and has had followers even to the present time. In addition to the movement of purification [of religious contents] against what was called innovation (Bid’a), there was another kind of the movement of purification followed by Akhbaris against expansion of fiqh and Usul al-fiqh inspired by Sunni teachings which has no origin or authenticity in teachings of Imams (a). The central idea of this school suggests that teachings of Imams (a) has to be purified from common knowledge and true knowledge is only what received from through hadiths of Imams (a) and mixing it with sciences originated from other roots, particularly philosophy, misguide people.

In this school, the above two movements of purification can be clearly seen; the movement of purification focused on purification of any teachings from the original hadiths received from Imams (a) and the other one focused on rejecting any expansion of religious sciences relying on principles this school does not respect their mixing with teachings of Imams (a).

School of Tafkik

Mirza Mahdi Isfahani introduced some essential issues about the Qur’an being a miracle, validity of the appearance of the Qur’an and distinguished between the Qur’an and Furqan which has been mentioned in the hadiths of Imams (a); then, he mentioned different levels of understanding the Qur’an and introduced the relation between the Qur’an and hadiths. Followers of this school tried to make people familiar with strong verses of the Qur’an and hadiths of Imams (a) regarding different issues a person or the society need. They also tried to provide proper access to the texts to benefit for their goals. Muhammad Rida Hakimi has discussed such issues in his compilation al-Hayat.

Purification Distrusting the hadith heritage of Shi’a and the need to return to the Qur’an to access original teachings of Islam draw another group of contemporary scholars towards a kind of purification of the Qur’an and rejecting distortions and deviations. This group were so close to take the approach of Sayyid Qutb in interpreting the Qur’an by the Qur’an and benefitting Qur’anic thoughts for solving social problems; however, criticisms about hadith are usually cautious and relative.

A different aspect of purification in Twelver Shi’a seminaries is presented in critical works of Muhammad Taqi Shushtari discussing hadiths and reviewing what he called Ahadith Dakhil meaning “unauthentic hadiths”. He also had criticisms about authenticity or recording some words and expressions in Nahj al-balagha. Regarding the authenticity of Nahj al-balagha among Shi’a and criticisms made by Sunnites at that time, such a critical approach was very risky. Regarding the price which had to be paid for such criticisms and their organization in the works of Shushtari, they were the product of a movement of purification and could not be only the result of scholarly and curious efforts.

‘Orientalists Also, among orientalists, there was a pessimistic look towards hadith. Until the end of 19th century, orientalists were distrustful both about the sources and validity of text; however, Ignác (Yitzhaq Yehuda) Goldziher (1850 – 1921) made a comprehensive and direct study about hadith and presented a somehow integrated approach about it, which was later completed by others such as Joseph Schacht and was the common approach of orientalists until the end of 20th century. In general, it can be said that orientalists’ criticisms of hadith as an important part of Islamic tradition on the one hand and emergence of new needs inside the Islamic world for reconstructing religious institutions on the other hand required Muslims’ attention towards this part of their religious tradition and made the positive approach replace the negative one.

Revival of Attention to Hadith This movement was not yet seriously begun, when Ayatullah Burujirdi (d. 1961) called the Twelver Shi’a seminary to study and research about hadith and prepared the ground for compiling the encyclopedia-like collection of Jami’ al-ahadith al-Shi’a. That was when Ahmad Muhammad Shakir (d. 1377/1957), who was the chief of Ahl al-hadith (the People of Hadith) of Egypt and one of the pioneers of this movement of reviving hadiths in Egypt and himself had studied hadith in the old Sunni tradition, made great efforts for reviewing and correcting and interpreting most important works of the People of Hadith which resulted in publication of tens of books. His al-Kitab wa al-sunna was a declaration, which although had a Salafi Approach, tried to note the significance of hadith beside tradition for acquiring laws and managing society and criticized those who overlooked hadiths.

Usage for Solving Modern Issues

In recent decades, factors including inclination towards using Islamic teachings more in different levels of life including establishing rules, regulating social and family relations and paying more attention to religious principles in different areas of humanities expanded the grounds for drawing Muslims attention towards hadiths. Answering newly issued problems in the modern era such as problems of women, relation between science and religion, globalization, etc. need to be added to above-mentioned grounds. Issuing such discussions made even intellectuals, social activists and scientist movements who previously did not pay attention to hadith interested. However, one must note that their usage of hadiths is usually very selective and they sometimes pay attention to those texts and hadiths which have great problems of authenticity in the eyes of hadiths scholars.

ʾIjmaʿ (الإجماع) (consensus) refers to an unanimous agreement among scholars and religious figures regarding a religious ruling. In Sunni tradition, ijma’ is extremely important and is regarded as one of the sources for deriving shari’a (Islamic law). In political matters, Sunnis deem the ijma’ of elite (ijma’ ahl al-hill wa al-‘aqd) as a proof for legitimacy of the first caliph’s rule. However according to Imamiyya (Shi’a), ijma’ does not hold independent authority on its own right; rather, it is only legitimate as a manifestation of the infallible Imam’s opinion. Some establish its legitimacy in the framework of the principle of lutf and some lay it on the basis of hads (surmise). There are various types of ijma’ and the most important of which are: ijma’ al-manqul (reported ijma’), muhassal (acquired ijma’) and murakkab (twofold ijma’).

Lexicology and Terminology

Lexically, ijma’ denotes resolution, consensus and gathering; However, terminologically, Muslim Scholars have defined it in several fashions

1. The consensus among Muslim jurists (faqihs) on a particular ruling
2. The consensus of elite (ijma’ ahl al-hill wa al-‘aqd) on a particular ruling
3. The consensus among the umma (nation) of the Prophet Muhammad (s) on a particular ruling

Position

Ijma’ is regarded as one of the four sources for deriving shari’a law and has been thoroughly discussed in a particular section of the principles of jurisprudence (‘ilm al-Usul) as a subdivision of the chapter of “proofs and evidences”. Sunnis hold it as one the three or four independent sources for driving shari’a law and because of such importance in their view, they are called “Ahl al-Sunna wa al-Jama’a” (the people of sunna and congregation).

However Shi’a jurists do not regard ijma’ as an independent source in the same level as the Holy Qur’an and the Prophetic sunna, rather it is only reliable on the account of its signification of the infallible Imam’s opinion.

How does ijma’ signify the opinion of the Imam (a)

Several basis for the representation of Imam’s opinion through ijma’ have been propounded:

1. The Ijma’ of Lutf (benign), according to the principle of lutf, the Divine attentive benign toward creation necessitates providing means of guidance and protection from falling astray. Based on this, if the scholars of the whole Islamic nation unanimously agree on a wrong ruling, it is obligatory upon the infallibility Imam to inform them about their mistake even if it is only possible by creating an opposite opinion through one of the scholars. In this sense, the consensus of all scholars on a particular ruling without any opposition, is a sign of its correctness. This explanation of ijma’ is referred to as the “ijma’ of lutf” and its foundations were set out by al-Shaykh al-Tusi.

2. The Ijma’ al-Hissi (intuitive) or al-Dukhuli (inclusion) what is meant by the word intuitive here is the state where the presence of Imam’s opinion among the opinion of scholars, becomes certain. This is possible in three ways:

• When some of the scholars within the body of ijma’, visit the the Imam and narrate his opinion under the title of ijma’.
• When faqihs (scholars) reach an agreement over a particular ruling at the presence of the Imam and he validates their opinion.
• The ijma’ of faqihs on a religious ruling is in such a way that the presence of the infallible Imam among them become known; although he is not recognizable among them. This kind of ijma’ is named “ijma’ al-dukhuli” (inclusion), al-Sayyid al-Murtada accepts this expression.

3. The Ijma’ al-Hadsi (the surmised consensus): Since scholars have different opinions in many rulings, their consensus on a certain ruling shows that their opinion is based on the opinion of the Imam. As the knowledge about such agreement is acquired through hads (surmise), such ijma’ is called “ijma’ al-hadsi”. Most of Ijma’s which were claimed by later scholars are of this type; contrary to those reported by early scholars that are mostly Ijma’ al-Hissi.

4. Taqriri Ijma’: refers to an agreement which was formed during the time of Imam’s presence and Imam being aware of such agreement, did not show any disapproval.

Types of Ijma’

Faqihs (jurists) and usulis (experts in the principles of jurisprudence) have counted several types of Ijma’:

• Al-Muhassal (Acquired) Ijma’: the state when a scholar, after searching the opinions of other scholars from the past to present day in their books and sayings, finds out that they anonymously agree on a certain ruling.
• Al-Manqul (reported) Ijma’: when a scholar does not search the opinions of other scholars himself, rather he relies on the report of another scholar about the existence of a consensus among jurists on a certain ruling.
• Basit (simple) Ijma’: refers to the general type of Ijma’ as a consensus among scholars on a ruling. This title is given to a certain Ijma’ in order to avoid confusion with the following Ijma’.
• Murakkab (complex) Ijma’: refers to a two-fold agreement in which the third opinion is automatically excluded. Simply put, when the scholars of an era agree on two or more opinions with respect to a certain ruling, tacitly they agree on the exclusion of other opinions; like the time when a group of scholars regard a certain act as forbidden and some other deem the same act as merely disliked, combination of these opinions, excludes the state of obligation or recommendation of that act. Such an ijma’ that is acquired with combination of different opinions is referred to as Ijma’ al-Murakkab (complex). Now if a scholar introduces another opinion to this two-fold Ijma’, it will be said that he has broken the two-fold Ijma’ and created a third opinion. Permissibility or impermissibility of making such a break in a combined ijma’ depends on the authoritative basis of such ijma’. This ijma’ and its authority are discussed in the Chapter of Evidences and Proofs, in ‘ilm al-usul (the principles of jurisprudence).
• Ta’abbudi (external obedience) Ijma’: where the base and origin of ijma’ are not available anymore. This is the famous ijma’ which is relied upon in jurisprudence when there is no other clear evidence at hand.
• Madraki (with known origins) Ijma’: is a type of ijma’ whose origins are currently available in other jurisprudential sources i.e. Qur’an and Prophetic narrations. As the base of such agreement is available to scholars today, they can assess its origins and the process of its derivation in a better and clearer way.
• Practical (al-‘amali) Ijma’: practical agreement among Muslim scholars over an usul issue or a sira (lifestyle). This kind of ijma’ is only functional in the principles of jurisprudence (usul) or jurisprudential formulas, which are relied upon in the process of inferring shari’a law, not the shari’a law itself.
• The verbal (al-Qawli) Ijma’: the unison of the jurists’ fatwas on a particular issue.
• Practical (al-Fi’li) Ijma’: the practical agreement among Muslims which is referred to as al-sira al-mutasharri’a (the lifestyle of the religious).
• Categorical (al-Qat’i) Ijma’: denotes the ijma’ that has reached the level of absolute certainty and is not acquired based on assumptions and conjectures.
• Unconditional (al-Mutlaq) Ijma’: when the subject of ijma’ has been ruled upon generally. For example it is said that the ihram in hajj must take place inside Mecca according to unconditional ijma’; this means there is no additional condition within the subject of ijma’ and further conditions are matters of different opinions among jurists.

Evidentiality and Authority

• General Ijma’: although it is regarded as one of the four main sources for deriving shari’a law, ijma’ does not hold authoritative merits in its own right, according to Shi’a usul al-fiqh (principles of jurisprudence). What is authoritative, is the opinion of the Imam which is represented in the ijma’. Therefore, counting ijma’ as one of the sources of jurisprudence, along the holy Qur’an and hadith (narration), is merely nominal and formal in Shi’a perspective. On the contrary, Sunnis deem ijma’ as independently authoritative and count it among Sunni jurisprudential evidences, even if it goes against the infallible Imam.
• Complex Ijma’: this type of ijma’ has two forms:

1. Both groups clearly reject the third opinion. As an instance, the ruling of a particular action is either recommendation or obligation, in addition to this, they both agree that it is neither disliked nor forbidden. In such a case, the agreement over the exclusion of the third or fourth opinion, shouldn’t be broken according to all definitions of ijma’.
2. Neither of the two groups explicitly reject the third opinion, however the exclusion of the third opinion is its tacit implication. For example, the belief in the obligation of an action, postulates its permissibility; since it is logically impossible for something to be both obligatory and forbidden in the same time. In this case and based on the principle of lutf (benign), which indicates the presence of the infallible Imam, the ijma’ is authoritative and must be observed. However based on other bases of ijma’ in Shi’a fiqh (jurisprudence), this form of Complex Ijma’ does not hold any authority and the third opinion can be introduced.

• Ijma’ with known origins: this type of ijma’ does not have any authority. Since the authority of ijma’ is merely based on its representation of the Imam’s opinion and in ijma’ al- Madraki the origins of ijma’, i.e. the related narrations, are available, any jurist can directly refer to those origins himself and after evaluating their reliability, issue his own fatwa based on them, or disregard them.
• Aquired Ijma’: this ijma’ is only evidential for the one acquiring it and with one condition: they should have reached consensus on the basis that are legitimate according to him.
• Reported Ijma’: this type of ijma’ is only reliable when reported through mutawatir (frequent) accounts; that is several jurists must have acquired it and reported it. In cases where it is only acquired by few jurists or has been reported through single report, its authority is questionable. in its general use, the reported ijma’ indicates one which has been reported by only one reporter.

Ijtihād (Arabic: اجتهاد) is an endeavor to deduce the rules of Sharia from the sources of Fiqh with proper methods. It is a deduction of practical obligations in Islam from sources with the methods elaborated in ‘Ilm al-‘Usul. For Shi’a scholars, the sources of Fiqh are restricted to the Qur’an (Arabic: al-Kitab, the Book), the tradition of the infallible (Hadith), Ijma’ (consensus), and intellect. The consensus is not, by itself, a separate source for Fiqh; it is a source of evidence for the traditions. It reveals the traditions of the Prophet (s) and Imams (a). Some Shi’a scholars, including Akhbaris, have only recognized Qur’an and Hadith as sources of Fiqh, and some have just considered the tradition as such a source. Sunni scholars have more disagreements with respect to what legitimately counts as sources of Fiqh. In order to acquire expertise in Fiqh (i.e. Ijtihad) one needs to master several branches of religious disciplines and Arabic literature, such as al-Sarf and al-Nahw, Usul al-Fiqh (methodological principles of the Islamic jurisprudence), logics, Ayat al-Ahkam (verses of the Qur’an regarding a Muslim’s practical obligations), al-Rijal (knowing the reliability of the narrators of Hadiths), al-Diraya (knowing how to understand the texts of hadiths), the views of early scholars of Fiqh, the exegesis of the Qur’an, and so on. According to Shi’a Fiqh, Ijtihad is an optional obligation (al-Wajib al-Takhyiri), that is, every Muslim should either be a Mujtahid (an expert in Fiqh) or discover the rules of Sharia through either of the following ways: by following (Taqlid) a Mujtahid or by acting on the basis of precaution (Ihtiyat). Ijtihad is a collective obligation (al-Wajib al-Kifayi) — however, at least some Muslims should be Mujtahid— in order for people to gain answers to questions regarding Fiqh and to preserve the rules of Sharia.

The words “Ijtihad” and “Mujtahid” have never occurred in the Qur’an, but some Shi’a researchers maintain that the Qur’anic word “Tafaqquh” is very close to the notion of Ijtihad.

The Notion

In Arabic, the word “Ijtihad” literally means trying one’s best in order to do something.

In Fiqh, the notion has been defined in several ways, including:

• A scholarly and systematic effort to find arguments for Sharia obligations with regard to subsidiary affairs on the basis of the principles, rules and sources of Sharia and intellect.
• An effort to find arguments for the laws of Sharia.
• An expertise (Malaka) with which one can deduce, or at least make probable statements about, the laws of Sharia.
• A deduction of practical laws and obligations of Sharia from sources and principles.

The word “Malaka” (expertise) is frequently applied in the capacity of Ijtihad. “Malaka” is used to refer to an inherent power to do something, or a power to recognize something quickly through exercises. Thus, the expertise of Ijtihad implies that the Mujtahid has the potential or power to deduce the rules from sources at his disposal, even if he does not actually exercise it.

Background and History

The history of Ijtihad can be examined in various respects. Some people believe that there are three periods in the history of Ijtihad:

Period of Legislation

This is the period of the Prophet (s)’s life and the revelation. In this period, divine laws were being expressed through the Qur’an and the tradition. The Qur’anic verse, “they could devote themselves to studies in religion, and admonish the people” (9:122) implies the permissible existence of Ijtihad in this period. However, some people have appealed to the possibility of gaining certainty regarding the laws via the revelation to show Ijtihad as impermissible during this time.

Period of Twelve Imams

This period extends from the Prophet’s (s) death to the age of Major Occultation (al-Ghayba al-Kubra). According to Shi’a doctrines, Imams (a) are infallible and therefore, do not commit sins and mistakes; thus it is obligatory to follow their tradition. On this view, the Shi’a Fiqh is rich and dynamic. In this period, however, as in some hadiths, some Shi’as were encouraged by Imams (a) to practice the correct form of Ijtihad. In order to preserve the legacy of Fiqh and principle beliefs, Imams (a) prohibited their followers from confusing personal opinions with hadiths and encouraged them to preserve, write, and correctly quote the hadiths. In the meantime, they rejected forms of Ijtihad based on analogy (Qiyas), preferences (Istihsan), and personal speculations (Ijtihad bi-al-Ra’y).

Period of Occultation

After the occultation of the last Imam (a), Shi’as needed religious laws for new events they encountered, but there was a void due to the Imam’s (a) absence. However, according to hadiths left from Imams (a), they were obliged to refer to Shi’a jurists (Fuqaha). Imam al-Mahdi (a), in a hadith, refers Shi’as to the jurists in order to become knowledgeable of religious laws. Thus jurists took over the responsibility of religious authority and leadership in the Occultation age.

In the Occultation period, Ijtihad underwent some stages:

• Collection of hadiths and the appearance of books regarding Islamic laws in the form of quoting the texts of hadiths (without mentioning their chains of narrators), such as al-Saduq’s al-Muqni’, al-Mufid’s al-Muqni’a, and al-Shaykh al-Tusi’s al-Nahaya.
• The development of Ijtihad and appearance of independent books in Fiqh, such as al-Shaykh al-Tusi’s al-Mabsut.
• The period of stagnation in Shi’a Fiqh mainly as a result of the fact that jurists were under the shadow of al-Shaykh al-Tusi, and stopped practicing Fiqh.
• The period of renewed development of Ijtihad.
• The emergence of Akhbaris leading to the isolation of Ijtihad on the basis of ‘Ilm al-‘Usul.
• The revival of Ijtihad and the decline of Akhbaris.

Preliminaries of Ijtihad

Ijtihad in the period of Islamic legislation (the time of the Prophet (s)) and Imams (a)) was tantamount to directly appealing to the words of the Prophet (s) and Imams (a), and thus it did not require mastery of some literary and other disciplines, but in the period of Occultation, Ijtihad requires mastery of some disciplines such as al-Sarf (Arabic conjugation), al-Nahw (Arabic grammar), Arabic philology, logic, al-Rijal (knowledge of the reliability/unreliability of narrators of hadiths), ‘Usul al-Fiqh (principles of Islamic jurisprudence), familiarity with the Qur’an (exegesis) and the tradition (hadiths), and common Arabic parlance. There is a discussion concerning the extent to which these disciplines should be learned by a Mujtahid. However, the nature of Ijtihad, which is the extraction of subsidiary laws from the principles, is the same in both periods —those of the time of the Prophet (s) and Imams, and the Occultation period.

Types of Ijtihad

Ijtihad has been classified into different categories, including:

• General and Particular Ijtihad: the particular type of Ijtihad is propounded by Sunni scholars. It is a sort of legislation by a jurist when there is no evidence from the Qur’an and the tradition, and its obvious example is Qiyas (analogy). Indeed al-Shafi’i takes it to be equivalent to Qiyas. In this type of Ijtihad, when there is no evidence for a rule of Sharia from the Qur’an and the tradition, the Mujtahid can appeal to what intuitively seems correct to him. Therefore, in this type of Ijtihad, the Mujtahid’s personal preferences or opinions constitute as a source of Islamic jurisprudence.

Shi’as do not need the particular type of Ijtihad, because their sources of Fiqh are rich with hadiths from Imams (a). What is acceptable for Shi’as, and was common at the age of Imams among their disciples, is the general type of Ijtihad, in which the jurist extracts the laws of Sharia from the Qur’an and hadiths with an appeal to reasoning and the methodology of ‘Usul al-Fiqh, without the need to rely on his personal opinions. In the words of Ayatollah Murtada Mutahhari, the legitimate type of Ijtihad for Shi’as is the “deployment of reasoning in understanding religious evidence [the Qur’an and hadiths] for the laws of Sharia”.

• Actual and Potential Ijtihad: the potential type of Ijtihad is the capacity of the Mujtahid for deducing the laws without having actually deduced the laws from their sources. The actual type of Ijtihad is the actual deduction of the laws by one’s capacity.

• Absolute (Mutlaq) and Partial (Mutajazzi) Ijtihad: the absolute type of Ijtihad is the power to deduce the laws in all parts of Fiqh (from prayers to Hajj to Jihad and heritage and so on), but the partial type of Ijtihad is the power to deduce in only some parts of Fiqh, such as, prayers.

Laws of Ijtihad

There are some Sharia laws for Ijtihad, both obligatory or defining (al-Hukm al-Taklifi) and declaratory (Wad’i).

Obligatory Laws

There are two respects in which Ijithad is subject to obligatory laws:

• Optional obligation (al-Wujub al-Takhyiri): it is obligatory for any person to be aware of his Sharia obligations and duties, in order to practice them in one of the three ways: Ijtihad, following (Taqlid) a Mujtahid, and acting on the basis of precaution (Ihtiyat).
• Collective obligation (al-Wujub al-Kifayi): since the preservation of Sharia laws from distortion and negligence, and the responsiveness to the needs of an Islamic society are obligatory, it is a collective obligation to become a Mujtahid in the sense that everybody has to become a Mujtahid, unless some people undertake the task —in this case it would not be obligatory for others to become Mujtahids.

Declaratory Laws

Reliability of Fatwas: Fatwas issued by a Mujtahid are reliable, and it is obligatory for others to follow the laws that the Mujtahid has deduced from the sources. Many other issues are included below, such as:

• The reliability of a Mujtahid’s Fatwa for himself: a Mujtahid’s Fatwa is reliable for himself, regardless of whether they are an absolute Mujtahid or a partial one, and it is not permissible for a Mujtahid to follow others in the laws of Sharia.
• The reliability of a Mujtahid’s Fatwas for others: an absolute Mujtahid’s Fatwas are reliable for others —they can follow him— but it is a matter of controversy whether it is permissible for people to follow the Fatwas of a partial Mujtahid.
• Legitimacy of judgeship: it is permissible for a Mujtahid to be a judge, though this is controversial with respect to a partial Mujtahid.
• Fallibilism (Takhta’a) and infallibilism (Taswib): according to Shi’a doctrines, laws of Sharia exist as matters of facts, and a Mujtahid should seek to discover them —sometimes he reaches them and sometimes he misses them. This is why Shi’as are called fallibilists (Mukhti’a), since they take Mujtahids to be fallible. But Sunnis are infallibilists (Musawwiba) in that they take Mujtahids to be infallible.`
• Adequacy (Ijza’): what if a Mujtahid makes a mistake about the rules of Sharia and then discovers his mistake? What should he and his followers do? If a Mujtahid changes his Fatwa, should he and his followers do what they did again? Or is the previous action adequate (Mujzi)?

Reliability of a Mujtahid’s Fatwas

Faqihs (Islamic jurists) have appealed to some verses of the Qur’an for the reliability of a Mujtahid’s Fatwas, including: 1- “And it does not beseem the believers that they should go forth all together; why should not then a company from every party from among them go forth that they may apply themselves to obtain understanding in religion, and that they may warn their people when they come back to them that they may be cautious?” (9: 122). The phrase “why should not” (Arabic: لولا, lawla) invites or motivates the believers to obtain understanding in religion and warn their people when they return to them. The purpose of warning is that people should be cautious. The argument for the obligation of Ijtihad, is as follows: if the purpose of an obligatory action (understanding in religion and warning people) is a volitional action of humans (being cautious), it ordinarily implies that the action is also obligatory; therefore it is obligatory for people to follow Mujtahids (those who have gained an understanding in religion), since it is obligatory for them to be cautious, therefore this is done by following the warnings of Mujtahids. Thus issuing a Fatwa is a sort of warning, and the caution that is obligatory for people is to follow the Fatwas. Therefore, the above verse implies the obligation of following a Mujtahid, and this implies the reliability of a Mujtahid’s Fatwa. Some scholars have doubts about the implications of the above verse in connection with the reliability of a Mujtahid’s Fatwas, because they claim that the caution is obligatory only when the person in question is certain or assured of the warning. However, there have been responses to show that the verse is not qualified by the certainty of warned people. Others have proposed that the warning obliges the laymen to reflect on the evidence of the laws by themselves. However, this is said to be against the consensus of the jurists to the effect that the laymen do not have such an obligation; otherwise their ordinary lives would be disturbed. Muhammad Husayn Isfahani has claimed that if the understanding in religion depends on reasoning and reflection, then the verse implies the reliability of Fatwas, and if it amounts to knowing a law of Sharia by hearing it from the Prophet (s) or Imams (a), it does not imply the reliability of Fatwas; rather it implies the reliability of the Mujtahid’s reports of a law of Sharia. For God has obliged people to understand religion, and at the age of the Prophet (s), such understanding was nothing but hearing the laws from the Prophet (s). Therefore, ‘warning’ means a report of a law of Sharia from the Prophet (s) or Imams (a), rather than a rule that is deduced through reasoning. Thus the verse does not imply the reliability of Fatwas. Statements have shown it is true, that at the time of the Prophet (s), understanding in religion consisted in hearing the laws from the Prophet (s) and Imams (a) and reporting them to others. However, since the narrators were native Arabic speakers and sufficiently mastered the language, they were Mujtahids about what they heard from the Prophet (s) and Imams (a). In other words, they did not need any preliminaries in order to be Mujtahids. And since understanding in religion (tafaqquh fi al-din) is not qualified in the verse, it includes all its variations, such as Ijtihad on the basis of reasoning. 2- Another verse that has been appealed to in order to show the reliability of Fatwas, is the following: “and we did not send before you any but men to whom we sent revelation —so ask the followers of the reminder if you do not know” (16: 43). It has been argued that the “reminder” in the verse is what reminds one of God, therefore the followers of the reminder are those familiar with the rules of God. The verse implies that it is obligatory to ask from the followers of the reminder, and it is clear that asking is not desirable by itself; it is just desirable in that it is to be practiced. Hence, the obligation of asking, implies the reliability of what the followers of the reminder say. According to some scholars, the verse guides us to the general rational principle of the necessity of consulting the experts. In other words, it is rationally necessary for laymen to consult experts, and the verse guides us to this rational principle. Some people have raised objections to the appeal to this verse in order to show the reliability of Mujtahids:

a. The context of the verse implies that the “followers of the reminder” are the scholars of Jews and Christians (People of the Book). Therefore, it does not include Mujtahids. It has been mentioned that since the verse states a general principle, the particular features of the case do not restrict it to the scholars of Jews and Christians; it also includes Imams (a) and Mujtahids.

b. In some hadiths “the followers of the reminder” has been interpreted as Imams (a). Therefore it does not include Mujtahids. It has been argued that such interpretations do not restrict the verse, since they only mention one instance of the verse without ruling out other instances.

c. The verse apparently shows that the purpose of asking is to gain knowledge, rather than being obliged to follow the answers. What reinforces this interpretation is the story in which the verse has been revealed: the verse refers the ‘People of the Book’ to consult their scholars with respect to the prophecy of the Prophet (s). It is obvious that prophecy is a principle of beliefs that requires knowledge, rather than practice. However, it has been argued that since the verse involves a reason that helps generalize it to other cases: the verse says that you should consult the experts (people who know) in whatever you do not know —whether the principles of beliefs or rules of Sharia.

Ways of Discovering that Someone is a Mujtahid

There are three ways to find out that someone is a Mujtahid:

• The follower gains certainty about someone’s Ijtihad.
• The Mujtahid is so well-known that yields certainty about his Ijtihad.
• The testimony of two informed and fair experts, provided that two other fair experts do not testify otherwise.

Taqlīd (Arabic:التقلید) is an Islamic jurisprudential term which means to follow a Mujtahid (an Islamic scholar who is competent in understanding the religion) in practical rulings of the religion. Taqild is not permissible in Usul al-Din (Principle of the Religion) and one must accept them by research, study and inquiry. However, in Ahkam (Islamic Rulings) one can be either Mujtahid or act according to Ihtiyat (caution) or follow an expert in Islamic jurisprudence – who is called Mujtahid al-Jami’ al-Shara’it(qualified Mujtahid) or Marja’ al-Taqlid. This term is also used by other meanings in jurisprudential texts.

Lexicological and Terminological Meaning

Taqlid is an Arabic word derived from “Q-L-D” which means putting something along with another thing or a person, submission to do something or to follow. Terminologically, it means to follow a Mujtahid’s fatwas about the practical ruling of Islam i.e. acting according to the jurisprudential opinion and deduction of a qualified Mujtahid in Furu’ al-Din (Ancillaries of the Religion) such as Salat and Hajj.

The term “Taqlid” is also used in other meanings. One of which is “Taqlid al-Hady” in Hajj which means marking a camel, cow or sheep (by putting a rope or belt or … around its neck) which was prepared for sacrificing in Hajj al-Qiran. According to majority of Faqihs (jurists) this action is Wajib al-Takhyiri (Elective Compulsion).

History of Taqlid in Shi’a

In Shi’a, Taqlid started from the time of the Infallible Imams (a). They referred their followers to the narrators of hadiths or their close companions such as Zurara b. A’yan, Yunus b. ‘Abd al-Rahman, Aban b. Taghlib, Zakariyya b. Adam, Muhammad b. Muslim and Abu Basir. Sometimes, Imams (a) encouraged their companions to go to mosques and public places for guiding people, answering their questions and issuing fatwas. Difficulty of having access to Imam, because of the long distance between the cities and lack of proper facilities for traveling, Taqiyya in most of the cases and causing difficulties for Imams resulted in emergence of Taqlid in their time. On that time, deducing religious rulings from the sources were not difficult for Imams’ companions as they were close to the time of the Prophet (s) and the method of deduction was not complicated. During the Minor Occultation, the need to Taqlid arose more. Therefore, Imam al-Mahdi (a), in his famous Tawqi’, introduced narrators of hadiths (Faqihs) with certain qualifications as references for Shi’a. The topic of Taqlid continued to exist among Shi’a during Major Occultation as well; although there were some disagreement between Usulis and Akhbaris in its conditions and rules.

Taqlid’s Rulings in Islamic Practical Laws

Apparently, studies about Ijtihad and Taqlid began from the time of emergence of Usul al-Fiqh (Principles of Jurisprudence). This topic has been discussed in early books of Usul al-Fiqh such as al-Dhari’a ila usul al-Shari’a (written by Sayyid al-Murtada, d.436) and continued to contemporary books. Moreover, in inferential jurisprudential texts, issues about Taqlid and the qualifications of Marja’ al-Taqlid were sometimes discussed in chapters such as al-Amr bi al-Ma’ruf wa al-Nahy ‘an al-Munkar (enjoining the good and forbidding the evil) and Qada’ (judgment). From the 10th century, independent works about this topic were written. After al-Shaykh al-Ansari it became common for the books of Islamic Practical Laws (Tawdih al-Masa’il) to start with a chapter about rulings of Taqlid. Likewise, the topic of Ijtihad and Taqlid was discussed at the beginning of jurisprudential books after the book “al-‘Urwat al-wuthqa” written by Sayyid Muhammad Kazim Tabataba’i Yazdi (d. 1918).

Taqlid in Shi’a Jurisprudence

According to majority of Shi’a faqihs (jurists) Taqlid is Wajib al-Takhyiri (Elective Compulsion) which means either Taqlid or Ijtihad or Ihtiyat (caution) is compulsory (Wajib) for a Muslim, i.e. for gaining the Islamic rulings one must be even Mujtahid, who can deduce the rulings from jurisprudential sources, or acts according to caution or refer to a qualified Mujtahid and acts according to his fatwas.

Permissibility of Taqlid

Shi’a faqihs believe that following a Mujtahid in Practical rulings is permissible in Islam. For proving the permissibility and even compulsion of Taqlid they have adduced the four sources of Shi’a jurisprudence – Qur’an, Hadith, ‘Aql (reason) and Ijma’ (consensus).

Reason

Every Muslim knew that if he commit a Haram (forbidden acts in Islam) or leaves a Wajib (compulsory acts in Islam) he will be punished in the Hereafter; so he must have an excuse for what he does in this world that saves him from the punishment. This immunity is gained through Ijtihad or Ihtiyat or Taqlid. So if he is not a Mujtahid nor acts according to caution; he must choose Taqlid.

Qur’an

Qur’an talked about two kinds of Taqlid (following): liked and disliked. In various verses of Qur’an following the leaders of polytheism, the arrogant and the ancestors based on bias and ignorance were disliked. In addition, it counted the slavish imitation in Usul al-Din (Principle of Religion) as an act of ignorance and against reasoning. In the verse 31st of Sura al-Tawba, Qur’an criticized the Jews who blindly follow their Rabbis. Exegetes of Qur’an and Faqihs mentioned other verses in relation with permissible and liked Taqlid. For instance, they said the 122nd verse of Sura al-Tawba, which denote the compulsion of traveling for learning the teachings of the religion and then letting the other Muslims knew them, is one of the Qur’anic evidences for Taqlid. Moreover, exegetes of Qur’an perceived the necessity of Taqlid and referring to scholars and Mujtahids from the 43rd verse of Sura al-Nahl and the 7th verse of Sura al-Anbiya’. ‘Allama Tabataba’i believed that the 43rd verse of Sura al-Nahl mentions a general and rational principle which is referring to experts in every field.

Hadiths

Shi’a faqihs used several hadiths for proving the permissibility of Taqlid.

• 1. A hadith narrated from Imam al-Hasan al-‘Askari (a) in which a derivative of the word “Taqlid” is used. It reads, “… and whoever from Faqihs is preserving his soul, protecting his faith, opposing his whims, obeying his master; the ordinary people must follow him.” However, some scholars mentioned that some of the narrators of this hadith are not reliable.
• 2. Hadiths in which Shi’a infallible Imams (a) referred Shi’a to the narrators of hadiths such as Imam al-Mahdi’s Tawqi’.
• 3. Hadiths in which Shi’a infallible Imams (a) referred Shi’a to some certain narrators by mentioning their names.
• 4. Hadiths in which Shi’a infallible Imams (a) encouraged their companions to issue fatwas or approved their fatwas.
• 5. Hadiths in which issuing fatwa without proper knowledge or based on Ra’y (personal opinion) or Qiyas (deductive analogy) was forbidden which shows issuing fatwa based on reliable religious source is permissible.
• 6. Hadiths which imply Shi’a infallible Imams (a) approved following a person who issues fatwas based on accepted conditions and rules.

Consensus

Ijma’ or “consensus of Faqihs” is another proof of permissibility of Taqlid in practical rulings of Islam. All Shi’a Faqihs believe that a Muslim, even who do not know anything about practical laws of Islam, can take all the [[Islamic practical rulings from a Mujtahid and act according to his fatwas.

Acts or Worship without Taqlid

Taqlid is not the condition of validity of an act; rather the method for finding the correct way of performing that act. Therefore, if the deeds of someone, who is not a Mujtahid nor follows a Mujtahid (or has chosen his Marja’ based on wrong criteria) are coincidentally accordant to the fatwas of a qualified Marja’, his acts of worships are valid. Thus, for knowing whether his acts were valid in past or not, he must choose an alive qualified Marja’ according to accepted criteria and check the consonance of his acts with the Marja’’s fatwas. And if his acts does not match the fatwas of the Marja’ whom he has chosen, he must asked his Marja’ about his duty toward his past actions.

Prohibited Taqlid

Taqlid in Furu’ al-Din is prohibited for a Mujtahid. Likewise, Taqlid is prohibited for non-Mujtahids in following cases: 1- Taqlid is prohibited for a person to whom the rulings are axiomatically clear (e.g. he has heard it from the Prophet (s)); because according to the reason, the subject of Taqlid is ignorance or not having knowledge, so when someone is certain about a ruling he is not allowed to follow others.

2- Taqlid is prohibited in topics that one has to have absolute faith about them, such as Usul al-Din; because Taqlid does not lead to absolute certainty. Although sometimes referring to a knowledgeable person may lead to certainty, like referring to the Prophet (s) for appointing the Imam (a), but this is not terminological Taqlid. Sunnis, also, do not allow Taqlid in Theology, as in this kind of issues thinking and finding the truth is desirable and Taqlid is undesirable. The 22th verse of Sura al-Zukhruf disliked following ancestors without any reason. Furthermore, the Prophet (s) told us to think about the signs of God.

Taqlid among Sunni

The topic of Taqlid had many ups and downs among Sunnis. During a period of time several jurisprudential schools appeared among Sunnis which led to disputes and conflicts. Thus, the idea of “closure of the gate of Ijtihad” and limitation of jurisprudential schools were introduced. Eventually in the 7th century, only four jurisprudential school were announced official and following the other ones was forbidden. However, some early Sunni scholars, such as Abu al-Futuh al-Shahristani (d. 1153) and Abu Ishaq al-Shatibi (d. 1388) opposed the idea of “closure of the gate of Ijtihad” and demanded the opening of it. In recent centuries some Sunni scholars including those of al-Azhar refuted the limitation of jurisprudential schools in four arguing that all Muslims unanimously agree that following any of the Companions of the Prophet (s) was permissible in the early period of Islam; therefore, the process of Ijtihad has become prevalent among Sunnis again.