An Introduction to Islamic Jurisprudence (fiqh), Part 1

Fiqh is briefly defined as “the knowledge of inferring (istinbāṭ) aḥkām sharʻī”. The term istinbāṭ (inference) literally means appearing after being hidden, so extracting water from the depth of a well is called nibṭ. Therefore extracting and discovering aḥkām sharʻī from authoritative sources, which needs deliberation and presenting arguments, is named istinbāṭ.

Lesson 1

Literal and Technical Meaning of Fiqh and Ijtihad

Fiqh literally means understanding. In Islamic terminology, it is the science of Islamic subsidiary legal rulings derived from Islamic main and detailed sources.[1] This is the most famous definition of fiqh that includes some points and features such as:

The first point is that there are two types of rulings. Sometimes it is legislated by God, and sometimes it is codified by a person or group of people. The first type is called ḥukm sharʻī (religious verdict; a particular ruling in a given case; plural: aḥkām sharʻī) like wujūb (obligation) and ḥurmah (prohibition). Legislation initially and in the first place is only God’s right, who is omniscient of all advantages and disadvantages of human life, and His rules guarantee human’s salvation and well-being in this world and the Hereafter. The rules legislated by God, which are practical guidelines for human being and encompass all aspects of our life, are called Sharia[2], and God is called Shāriʻ[3]in this respect. On the other side, the rules that are codified by a person or group of people based on their own reasoning and without considering Sharia, are called qawānīn mawḍūʻa[4] (statute), whose best examples are the laws passed by parliaments in different countries.

Qawānīn mawḍūʻah could be in accordance or in conflict with Sharia. These rules are not supposed to be stable and the factors like the development of human life, the growth of knowledge, and intellectual revolution sex pose them to change. In contrast, Sharia is stable and immutable, and changes are perceived only in particulars while adjusting them with general rules.

The word “legal”[5] in the definition is added to the exclusion of the rulings of other kinds such as rational, philosophical, lexical, literary, and even juridical.

The second point is that the word “subsidiary”[6] excludes the legal rulings that are concerned to the principles of beliefs and the principles of jurisprudence, such as the obligation to believe in God and the holy Prophet (s.a.w), and the necessity of acting on reliable narrations. Such matters are discussed in theology and uṣūl al-fiqh (the science of the principles of jurisprudence).

The third point is that, our knowledge about subsidiary legal rulings is sometimes on the strength of ijtihad and obtained from main sources, that are, the Holy Quran, Sunna, Ijmāʻ, and Intellect (Aql); and sometimes it is based on taqlīd (imitation) and acquired from the fatwas of a mujtahid (the qualified person to exercise ijtihad). However a mujtahid’s fatwas somehow considered as a source of legal rulings for a muqallid (one performing taqlid of a mujtahid), but it is the undetailed source, while the Holy Quran, Sunna, Ijmāʻ, and Intellect are called detailed sources. Thus, an ordinary person who is knowledgeable about subsidiary aḥkām sharʻī (legal rulings)is not considered as a faqīh (jurist, a person trained in fiqh) because his knowledge is not on the ground of detailed source.

Fiqh is briefly defined as “the knowledge of inferring (istinbāṭ) aḥkām sharʻī”[7]. The term istinbāṭ (inference)derives from three-letter Arabic verbal root of ن- ب- ط (N-B-T, nibṭ) which literally means appearing after being hidden, so extracting water from the depth of a well is called nibṭ. Therefore extracting and discovering aḥkām sharʻī from authoritative sources, which needs deliberation and presenting arguments, is named istinbāṭ.

The term ijtihad is a derivation from the Arabic verbal root of ج – ه – د (J-H-D, jahada) which in its literal meaning refers to an effort, and expending thorough exertion in hard work. In its technical sense, ijtihad refers to a particular effort: attempt to drive aḥkām sharʻī from the legal sources of reasoning. Ijtihad in this meaning is synonymous with istinbāṭ.

As an example, for understanding the legitimacy or illegitimacy of usurious contract and recognizing its soundness or unsoundness, a mujtahid must refer to the legal sources of reasoning like Quranic verses and hadiths of the infallibles (a.s) and infer the precept. However, it does not mean that everyone can exercise ijtihad and infer aḥkām sharʻī by reading and thematically classifying the verses of Holy Quran and hadiths; because:

Firstly, the Holy Quran and hadiths are in Arabic language and understanding the precise meaning of their words and expressions needs to be well acquainted with the ins and outs of Arabic literature, which are unknown even to native Arabic speakers.

Secondly, scrutinizing isnād (the chain of transmission accompanying each hadith) of hadiths and distinguishing an authentic hadith from the false one is a complicated hard job which needs expertise.

Thirdly, understanding the meaning of the text and refining there as ones needs professional work. To be skilled in the language of the Quran and Sunnah is very important, especially at the present that is far away from Revelation era and the time that hadiths were issued.

Fourthly, sometimes two or more textual evidence, whether the Holy Quran or the traditions, come into conflict with each other in their outward aspects. It is the mujtahid’s duty to find and consider all the evidence concerned with the issue and, in the case of inconsistency, find a right way to reconcile and solve their contradiction or prefer the right evidence, which also needs a high level of proficiency.

Considering above-mentioned points, ijtihad without preliminaries, just like other professional jobs, will be of no avail, and those who want to perform it must be qualified so that their ijtihad results in the correct conclusion.

In addition to scientific knowledge, ijtihad takes a lot of practice in order to develop a mujtahid’s ability to apply general rules. Just like a doctor who must be skillful in making the diagnosis of diseases and checking their signs with general rules of medicine; a mujtahid should know that which rule deduced from the Quran, Sunnah, and other authoritative sources is applicable in a particular issue to obtain the legal precept. Ijtihad is summarized in this stage which is construed as “checking particular cases against general rules”[8]. This expression is borrowed from the hadiths in which the purified Imams (a.s) ask their companions to perform ijtihad and apply the general principles to particular cases; for example, Imam Sadiq (a.s) says:

“Our duty is to teach the principles and yours to ramify.”[9]

There is another similar hadith from Imam Rizā (a.s) that says:

“Our duty is to present the principles and yours to ramify”[10][11]

Thus, Mirza Qumi defines ijtihad as: “ijtihad means to put a lot of effort into inferring subsidiary aḥkām sharʻī from authoritative sources by a qualified person who is well-aware of the sources and the condition of the sources, and is endowed with a blessed talent to apply general rules to particular cases.”[12]Other Shi’a and Sunni scholars of uṣūl al-fiqh have also presented a similar definition of ijtihad.

Lesson 2

Condemned Ijtihad

Istinbāṭ and, in another word, ijtihad is inferring aḥkām sharʻī from authoritative sources considering specific conditions and rules. So indeed, performing ijtihad is not only permitted, but would be appreciated, and a mujtahid would hold an honorable place for performing it. However, it is surprising that some of our jurists condemn it, and exonerate Shi’a scholars from exercising ijtihad. What makes it more surprising is that the condemners themselves are among great Shi’a mujtahids. How it is possible that on the one hand ijtihad is regarded as a condemned forbidden job, and on the other hand it is an ideal, even, a collective obligation? There is no way but to say that ijtihad conveys a double meaning. One meaning refers to the Sunni viewpoint of ijtihad which is not acceptable for Shi’a scholars, and the other one is the meaning accepted by Shi’a jurist.

The truth of the matter is that ijtihad was applied in its negative sense in the beginning. Whenever one of the companions or their successors changed God’s decrees and converted a halal (lawful) into haram (unlawful) or a haram into halal on their own judgment and personal opinion, their best justification was to say that: “I exercised ijtihad“. That was an acceptable excuse because according to Sunni School the person who performs ijtihad would be exculpated, even rewarded when he goes wrong.

The way that the Sunni scholars exercised ijtihad from the beginning, sometimes resulted in the contradiction between ijtihad and naṣ (revealed text), which was not acceptable to Shi’a under any circumstances. Consequently, Shi’a scholars would always condemn it explicitly, and strongly objected that how an ijtihad could be more authoritative than the Holy Quran and Sunnah? And, how it is possible that a mujtahid possesses such a prominent position that his personal opinion becomes a source of sharia? Thus, the concept of the word ijtihad became so condemned and negative among Shi’as that they avoided to call their scholars as mujtahids and, instead, used the term “faqīh“(jurist)for those who were responsible for recognizing and presenting aḥkām sharʻī.

The traditions received from infallible Imams (a.s) regarding ijtihad, which are resorted by the Akhbaris[13]to prove that ijtihad is forbidden in Shi’a School, are as concerned with the Sunni reading of ijtihad. Shaikh Kulainihas gathered most of these traditions in his book al-Kāfī. As an example the holy Prophet (s.a.w) says:

Those who act on the basis of analogy (qiyās) will face their destruction and lead others to their destruction. Those who give fatwas without the knowledge of the abrogating (nāsikh) and the abrogated (mansūkh), the clear text (muḥkam) and that which requires interpretation (mutashābih), they will face destruction and lead others to their destruction.[14]

According to another tradition, a man asked Imam Sādiq (a.s) about an issue and the Imam replied him. The man then asked again about the Imam’s own opinion. The Imam then said, “Stop, whatever I said in answer was from the holy Prophet (s.a.w). We are not of “our own opinion” peoplein anything.”[15]This tradition obviously shows the mentality of the followers of Abu Hanafi and other Sunni prominent leaders, that they were expecting their leaders’ personal opinion.

Books on the Objection of Ijtihad

The companions and narrators of the infallible Imams (a.s) persisted with denouncing ijtihad so they wrote some books to refute it, such as Al-Istafādah fi al-Ṭuʻūnʻalá al-Awāʼilwa al-RaddʻaláAṣḥāb al-Ijtihādwa al-Qiyās,[16] written by Abdullah bin Abd al-RaḥmānZubairī; and Al-Raddʻalá man RaddaᾹthār al-RasūlwaIʻtamadaʻaláNatāʼij al-ʻUqūl,[17] written by Hilāl bin Ibrāhīm bin Abī al-Fatḥ Madanī. After the age of appearance and around the age of minor occultation (of the twelfth infallible Imam) Ismāʻīl bin Ali bin Isḥāq bin Abī Sahl Nawbakhtī wrote a book to disprove ʻῙsá bin Abān’s work concerning ijtihad. Najāshī[18] have mentioned about these three books in his compilation of narrators in their writers’ entry.

At the end of fourth Hejra century, Shaikh Mufīd wrote a book under the title of al-Naqḍʻalá ibn Junayd fi Ijtihād al-Raʼy.[19] Then, Sayyid Murtaḍá wrote al-DharīʻahiláUṣūl al-Sharīʻah,[20] in which he says: “ijtihad is considered as void, and acting upon conjecture (zann), opinion (raʼy) and ijtihad is forbidden among Imamiya.”Shaikh Ṭūsī in his book ʻUddah al-Uṣūl[21] specifies that “analogy (qiyās) and ijtihad are not regarded as legal reasons among us; moreover, using them to infer aḥkām sharʻī is forbidden.” At the end of sixth Hejra century ibn Idrīs in his book al-Sarāʼir[22]stipulates that “according to our School, analogy, juristic preference (istiḥsān) and ijtihad are prohibited.” Until the seventh Hejra century, Imami jurists were condemning ijtihad, and they used to show their disapproval in different ways.[23]

Lesson 3

Honored Ijtihad

From seventh Hejra century on, the sense of ijtihad evolved into a new meaning that could be applicable to Shi’a School. The oldest Shi’a text that refers to this semantic changebe logs to Muhaqqiq Ḥillī (d. 676 AH). He explores the reality of ijtihad at the beginning of the ninth chapter of his book, Maʻārij al-Uṣūl:

Ijtihad in the language of jurists denotes putting effort into inferring aḥkām sharʻī, so ijtihad is driving religious precepts from legal sources. Aḥkām sharʻī are not extracted from the apparent sense of the texts, and their recognitionis grounded on the theoretical rules, including analogy (qiyās). Thus, the analogy is a kind of ijtihad.

If someone says that in this sense the Imamiya will be regarded as those who exercise analogy, the answer would be that is right. But the analogy is not considered as an authentic method for ijtihad. So, after excluding analogy, we are among those who employ ijtihad while inferring aḥkām sharʻī in presumptive methods.

With the passage of time, the jurists noted that inferring aḥkām sharʻī even from the apparent sense of the texts is not an easy work that every person can carry out, and it requires prequalification and some preliminary steps which could be followed only by a mujtahid. So ijtihad has a general meaning that is any effort to infer aḥkām sharʻī from legal sources, whether by recourse to the apparent sense of the texts or the other way.

Moreover, ijtihad is not limited to inferring aḥkām sharʻī from legal sources, because in some cases there is no any relevant document from which a mujtahid can deduce a precept, while he, in general, knows that Shāriʻ has directions for all situations. In the case that we do not know the decree, God has instructions to follow in order to save His servants from quandary and lead them to His way. Such cases bring ijtihad to another phase that a mujtahid should determine people’s duty about these issues, by employing special reasons presented for such situations (called as, Uṣūlal-ʻAmalīyah, meaning Practical Principles).[24]

Therefore, ijtihad in the contemporary sense means a jurist’s effort to conclude legal rulings from the sources, whether through inferring them from the apparent sense of the texts or other reasons, or by determining practical duty in case of the absence of legal reason.

This sense of ijtihad is synonymous to istinbāṭ, and it is the true nature of fiqh (jurisprudence) and fiqāhah (expertise in jurisprudence) which has been, and still is, the constant need of every person. That is what the infallible Imams (a.s) used to advise their companions to exercise and admire the companions who have achieved to that level of knowledge. Moreover, they (a.s) would always call people to follow jurists and the experts that are capable of performing ijtihad and recognizing God’s orders. These traditions confirm the authenticity of ijtihad among Shi’as, on the one hand; and prove the necessity of taqlīd (following mujtahids) for ordinary people, on the other hand. The following traditions are just a few examples:

• The traditions which show that while asking about religious matters, the infallible Imams (a.s) would refer people to their qualified companions such as: Muhammad bin Muslim, Yūnis bin ʻAbd al-Raḥmān, Faḍl bin Shādhān, and Abān bin Taghlab. Indeed, these scholars were employing ijtihad while resorting to the legal sources and answering the questions. Shaikh Kashshī[25] has mentioned these traditions in his famous collection of narrators’ biography in the entry of every companion.
• There is a tawqīʻ (epistle) from Imam Mahdi (a.s) that says: If an incident occurs, then refer for it to the narrators of our traditions. For surely, they are my proof on you and I am the proof of Allah upon them.[26]
• Through a narration Imam sādiq (a.s) says: “…They must look for one among you who have narrated our hadith and have studied what is lawful and unlawful in our teachings and have learned our laws. Then they must agree to settle their dispute according to his judgment because I have made him over you a ruler.[27]
• Imam sādiq (a.s) says: “assign someone as a judge among you who knows what is halal and what is haram in our teachings, indeed I have made such a person over you a judge.[28][29]
• Imam Hasan ʻAskarī (a.s) says: “whoever from the jurists is preserving of himself, guarding his religion, opposing his desires, obeying the command of his master (Imam), then it is for the layman to follow him.”[30]

It is noteworthy that at present, as Waḥīd Bihbahānī says, the terms like mujtahid, faqih (jurist), mufti, qāḍī (judge), and ḥākim sharʻ (Islamic judge) all refer to the same position, but every term indicates a particular feature of it. Similarly, a mujtahid for being qualified of ijtihad is also entitled muhaddith (traditionist), mutakallim (theologian), uṣūlī (skilled in the principles of jurisprudence), and rijālī (expert in narrators’ biographical evaluation).[31]

The Selection Taken from the “An Introduction to Islamic Jurisprudence (fiqh)” by Reza Islami and translated into English by Ijtihadnetwrok.

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References

[1]– الفقه هو العلم بالأحکام الشرعیۀ الفرعیۀ عن ادلتها التفصیلیۀ. (See: ShahīdAwwal, al-Qawāʻidwa al-Fawāʼid; Sheikh Hasan b.Zain al-Din,Maʻālim al-Uṣūl.

[2]– شریعۀ.

[3]– شارع.

[4]– قوانین موضوعۀ.

[5]– الشرعیۀ.

[6]– الفرعیۀ.

[7]– علم الفقه هو علم استنباط الأحکام الشرعیۀ. (Muhammad BāqirṢadr, Durūs fi ʻIlm al-Uṣūl, al-Ḥalqah al-ʻūlá)

[8]– رد الفروع علی الأصول.

[9]– إنما علینا أن نُلقیَ إلیکم الأصول و علیکم أن تفَرَّعوا.

[10]– علینا إلقاء الأصول و علیکم التفریع.

[11]– See: Muḥaddith Qumī, Safīnah al-Biḥār, the entry of Aṣl (أصل); Sheikh ḤurrʻᾹmilī, Wasāʼil al-Shīʻah, bābṣifāt al-qāḍī (صفات القاضی), chapter 6, hadiths 51 &52.

[12]– الإجتهاد هو استفراغ الوسع فی تحصیل الحکم الشرعی  الفرعی من ادلته لمن عرف الأدلۀ و أحوالها و کان له قوۀ القدسیۀ التی یتمکن بها عن مطلق رد الفرع إلی الأصل. (Qawānīn al-Uṣūl, V.2, P.101)

[13]– The scholars who reject the use of reasoning in deriving verdicts, and believe the Quran and hadith as the only source of Sharia.

[14]– مَنْ عَمِلَ بِالْمَقَايِيسِ‏ فَقَدْ هَلَكَ وَ أَهْلَكَ وَ مَنْ أَفْتَى اَلنَّاسَ‏ بِغَيْرِ عِلْمٍ وَ هُوَ لاَ يَعْلَمُ اَلنَّاسِخَ مِنَ اَلْمَنْسُوخِ وَ اَلْمُحْكَمَ مِنَ اَلْمُتَشَابِهِ فَقَدْ هَلَكَ وَ أَهْلَكَ‏. (الکافی، کتاب فضل العلم، باب النهی عن القول بغیر علم، حدیث9) (Sheikh Kulaynī, Al-Kafi, The Book on Virtue of Knowledge, Ch. 11, h 9 )

[15]– Ibid, bāb al- bidʻwa al-raʼywa al-maqāʼīs (باب البدع و الرأی والمقائیس), hadith 21.

[16]– الإستفادۀ فی الطعون علی الأوائل و الرد علی اصحاب الإجتهاد والقیاس.

[17]– الرد علی من رد آثار الرسول واعتمد علی نتایج العقول.

[18]– Abu al-ʿAbbās Ahmad b. Ali b. Ahmad b. al-ʿAbbās al-Najāshī al-Asadī (b. 372/982 – d. After 463/1071), famously known as al-Najāshī (النجاشی) or Ibn al-Kūfī (ابن الکوفی), is one of the great Shi’a scholars of biographical evaluation (ʻilm al-rijāl). His book, FihristAsmāʼMuṣannifi al-Shi’a, also known as Rijal al-Najāshī, is one of the prominent sources of biographical evaluation among the Shi’a.

[19]– النقض علی ابن جنید فی إجتهاد الرأی.

[20]– الذریعۀ الی أصول الشریعۀ.

[21]– عدۀ الأصول.

[22]– السرائر.

[23]– See: Muhammad BāqirṢadr, Durūs fi ʻIlm al-Uṣūl, al-Ḥalqah al-ʻūlá, jawāzʻamalīyah al-istinbāṭ (جواز عملیۀ الإستنباط); Sheikh ḤurrʻᾹmilī, al-Fawāʼid al-Ṭūsīyah, fāyidah 76.

[24]– See: Muhammad BāqirṢadr, Durūs fi ʻIlm al-Uṣūl, al-Ḥalqah al-Thāniyah (جواز عملیۀ الإستنباط).

[25]– Abū Amr Muhammad b. Umar b. ʿAbd al-ʿAzīz al-Kashshī (d. circa 340/951-2), known as al-Kashshi (الکشي), was a Shi’a scholar, a reliable transmitter of hadiths, and a scholar of ʻilm al-rijal. He is the author of Maʻrifah al-nāqilīnʻan al-Aʼimmah al-Ṣādiqīn, which provides biographies of the transmitters of hadiths. The book was summarized by al-Shaikh al-Ṭūsī under the title of IkhtiyārMaʻrifah al-Rijal, known as Rijal al-Kashshi. What is available today is the summary, rather than the original work.

[26]– أمّا الحوادث الواقعۀ فارجعوا فيها إلي رواه حديثنا؛فإنّهم حجّتي عليکم و أنا حجّۀ الله عليهم.

[27]– مَن کان منکم مِمَّن قد روی حدیثَنا و نَظَر فی حَلالِنا و حَرامِنا عَرف احکامَنا فلیَرضوا بِهِ حکماً؛ فَإنّی قد جَعلتُه علیکم حاکماً.

[28]– إجعَلوا بَینکم رجلاً قد عَرِف حلالَنا و حرامَنا؛ فإنّی قد جَعلتُه علیکم قاضیاً.

[29]– These three hadiths, together with other reasons, are presented in imam Khomeini’s book, Wilāyat-e Faqīh.

[30]– فأما من کان من الفُقَهاء صائناً لِنَفسه، حافظاً لِدینه، مخالفاً علی هواه مطیعاً لِأمر مولاه فَلِلعَوام أن یُقَلِّدوه. (Ṭabarsī, Ahmad ibn Ali, al-Iḥtijāj, Iḥtijājāt Imam Hasan ʻAskarī.)

[31]– al-Fawāʼid al-Ḥāʼirīyah, fawāʼid al-jadīdah, al-fāʼidah 33.