An Introduction to Islamic Jurisprudence (fiqh), Part 2

In Shahīd Thānī’s point of view, ijtihad is contingent upon the knowledge of some studies including: morphology and syntax, terminology, etymology, rhetoric, uṣūl al-fiqh (principles of Islamic jurisprudence), logic, rijāl (scrutiny of the transmitters of hadiths), hadith, exegesis of the verses of ordinances.

Lesson 4

Prerequisites of Ijtihad

The Viewpoint of Shi’a Jurists

In Shahīd Thānī’s point of view, ijtihad is contingent upon the knowledge of some studies including: morphology and syntax, terminology, etymology, rhetoric, uṣūl al-fiqh (principles of Islamic jurisprudence), logic, rijāl (scrutiny of the transmitters of hadiths), hadith, exegesis of the verses of ordinances.[1]

The author of Maʻālim says that the skills required for absolute ijtihad are as follows: a thorough knowledge of Arabic, knowing exegesis of the verses of ordinances, a thorough knowledge about the infallibles’ (a.s) Sunnah, the knowledge of rijāl, being informed of the cases where ijmāʻ (consensus) has reached, uṣūl al-fiqh, the knowledge of logic, ability to infer subsidiary laws from the principles, knowing furūʻ al-fiqh (the elaboration of rulings on the basis of main principles; literally means the branches of fiqh).[2]

Fāḍil Tūnīhas designated about forty pages of his book, al-Wāfiyah to study the issue. He believes that a mujtahid is in need of the studies consist of: morphology, syntax, and terminology of literary studies; uṣūl al-fiqh, theology, and logic of intellectual sciences; and exegesis of the verses of ordinances, knowledge about the hadiths of ordinances, and rijāl from transmitted sciences.

According to his point of view, some studies are partly needed for mujtahid which are considered as supplementary conditions for ijtihad:

1. Rhetoric, which is sometimes needed in verbal significations.
2. Accountancy, which is applicable to financial affairs, especially to the issues like inheritance, debt, and bequest.
3. Astronomy, which is useful for determining the time of prayers, and kiblah (direction to Kaaba for prayers).
4. Geometry, which is helpful in measuring kur water (a particular volume of water specified in aḥkām).
5. Medicine, which is helpful in marriage issues like recognizing physical defects of spouses.
6. Knowledge about derivative institutes of jurisprudence (furūʻ al-fiqh), meaning to be well-versed in legal issues and questions; which, in fact, is the exercise and practical experience of employing the principles to infer aḥkām sharʻī.
7. Knowing other scholars’ viewpoints and fatwas, and the cases where they have reached ijmāʻ (consensus), or have dissension.
8. Having mental faculty and the great talent for inferring practical rules from main principles.[3]

However, according to the contemporary jurists,[4]ijtihad is in desperate need of only three studies consist of Arabic, rijāl, and uṣūl al-fiqh. For it is not necessary for a mujtahid to be an expert authority on Arabic language, so it can be assumed that ijtihad depends on extensive expertise in just two studies: rijāl and uṣūl al-fiqh.

Analyzing the Viewpoints

Indeed, inferring aḥkām sharʻī from the Holy Qur’an and Sunnah needs sufficient knowledge of Arabic language, including morphology, syntax, terminology, and rhetoric. But knowing necessary rules for understanding verbal significations would be enough, and proficiency is not required; because a mujtahid can refer to the experts and professional books to reach the precise meaning.

Inferring aḥkām sharʻī is not concerned with logic. However jurisprudence is a deductive science and every deductive science needs logic to ensure the sound conclusion; but, in fact, the general logic that God naturally have gifted everybody, and anyone of average intelligence has it, is adequate for ijtihad. Still, proficiency in logic has an undeniable impact on the good performance of ijtihad.

The theological issues are of two kinds: some of them are considered as proximate as sertoric principles (mabādī taṣdīqī qarīb) for jurisprudence, like undistortability of the Qur’an, and infallibility of Divine messengers and Imams. Some others are regarded as remote assertoric principles (mabādī taṣdīqī baʻīd) for jurisprudence, like the existence of God and His attributes, and necessity of prophethood. None of them are involved in ijtihad because, not only for a mujtahid, but it is necessary for everyone to be acquainted with both kinds. However, a mujtahid turns to ijtihad after full comprehension of these matters, and in this regard, some scholars have counted theology as a prerequisite for ijtihad. Some theological rules have entered in the study of uṣūl al-fiqh and play a direct part in inferring aḥkām sharʻī, like “badness of duty beyond the power” (taklīf bi mālāUṭāq). The scholars of uṣūl al-fiqh have catered to mujtahids by presenting these issues while talking about rational proof.

However the issues like having knowledge about the verses and hadiths of ordinances, being well acquainted with other scholars’ viewpoints and fatwas, and knowing the cases where the scholars have reached ijmāʻ (consensus) or have dissension; are important for a mujtahid, but they are just like raw materials for ijtihad, and are not considered as branches of a science.

Sometimes an item of information from the studies like astronomy, accountancy, or medicine is required in some cases, but it does not mean that jurisprudence and ijtihad depend upon them. Because jurisprudence is the knowledge of religious decrees, while that information is helpful for recognizing the subject of a decree, and no one claims that the mujtahid is in no need of experts’ opinions to achieve the correct understanding of the subject.

But, it is patently obvious that ijtihad depends on the knowledge of rijāl. Application of a hadith is contingent upon the soundness of it, which in turn, is depended on recognizing its narrators. Therefore, a mujtahid must develop his own basics in rijāl and can support them.

Indeed, knowing derivative institutes of jurisprudence (furūʻ al-fiqh), which some earlier scholars have mentioned as a supplementary condition for ijtihad, hasan indisputable impact on the intensity and good performance of ijtihad; but it is not a part of ijtihad. Because if familiarity with derivative institutes of jurisprudence means practical exercise and involvement in ijtihad, it is achievable only after obtaining the stage of ijtihad, so it cannot be a precondition for it. But, if it means being acquainted with other mujtahids’ fatwas and their arguments to infer aḥkām sharʻī, it is needed only to some extent, which the mujtahid inevitably have already acquired through seminary courses.

Validity of Blessed Talent

Some scholars have added a condition to ijtihad construed as “blessed talent” (qūwah qudsīyah). This condition refers to the mujtahid’s nature and personal characteristics that lead him to be sound-minded, sensible and well-conditioned. According to Waḥīd Bihbahānī, this talent is the basic feature for ijtihad and all other features would be of no use in the absence of this one. He says that this feature means a mujtahid has some qualities consist of:

• Not to have bad taste.
• Not to be inclined to argue with others, and reject them.
• Not to be stubborn and contumacious.
• Not to be obstinate and persistent in his fallible views.
• Not to be extremely sharp-minded so that it prevents him to set his heart on something.
• Not to be narrow-minded.
• Not to be preoccupied with other studies like theology, mathematics, syntax etc. for it will prevent him from achieving the correct result.
• Not to be addicted to allegorically interpret (taʼwīl) Quranic verses and hadiths so that he perceives apparent sense as interpretive meaning.
• Not to be daring and dauntless to issue fatwas.
• Not to be overly cautious. For it ruins fiqh, and an ultraconservative person is not suitable to be a faqih.[5]

Lesson 5

Absolute (mutlaq) and Partial (mutajazzī) Ijtihad

Islamic fiqh consists of the subjects as diverse as: personal and ritual issues like prayer and fasting; social and political issues like jihad, defense, and enjoining the right and forbidding the wrong; economic and financial issues like sale contract, lease, muḍāribah (sleeping partnership), and musāqāt (a contract for harvesting against a share in the fruit produce); and judicial and penal issues like hudūd (legal punishments) and qiṣāṣ (the law of retaliation).

Now the question is that, is it essential for a mujtahid to be expert and capable of performing ijtihad in all these subjects or it is possible for a person to be mujtahid in some subjects and be muqallidin the others? In other words, is ijtihad simple and indivisible or it is divisible into different subjects of fiqh?

The answer is subject to the definition of ijtihad. If just the person who has practically performed his ijtihad is a mujtahid, then certainly becoming an absolute mujtahid would be impossible. Because, no one can claim that he has examined and inferred aḥkām sharʻī in all parts of fiqh, and has expended his effort through all matters. Furthermore, the wide variety of jurisprudential matters and the advent of new born issues in time and place show that no one can assert that he has accomplished ijtihad in all subjects. However, if ijtihad is the proficiency that makes a mujtahid capable of istinbāṭ, and this capability is sufficient for a scholar to become a mujtahid; then achieving absolute ijtihad would be possible. Therefore, some scholars of fiqh and uṣūl al-fiqh have added “capability” as a condition in ijtihad’s definition: “ijtihad is the capability that makes a mujtahid capable of inferring a subsidiary legal ruling.”[6]

Ijtihad in this respect is like medicine. As a doctor is a person who has the capability to make the diagnosis and treat diseases, even if he has not practically visited a patient; likewise, a mujtahid is a person who has the capability to infer aḥkām sharʻī from legal sources, even if he has not practically exercised it in some cases.

Now the question is that, does the capability of ijtihad is achievable in some parts of fiqh without others, or it is indivisible and a mujtahid should be capable of istinbāṭ in all parts of fiqh; otherwise, he has not reached the stage of ijtihad?

Most Shi’a and Sunni jurists believe that partial (mutajazzī) ijtihad is possible and had happened. Even, some scholars, like the writer of Kifāyah al-Uṣūl, say that believing in partial ijtihad is necessary because the absolute ijtihad is the high level of ijtihad which is not reachable all at once. A mujtahid should acquire it little by little, which means every absolute mujtahid would be a partial mujtahid at first.

In contrast, some scholars may object that a mujtahid must scrutinize whatever is needed for recognizing a precept, and it is likely that the mujtahid’s imperfect conversance results in neglect of opponent proofs. For example, in a case that the mujtahid considers analogy and rational reasoning as a proper source for istinbāṭ, there maybe a hadith against that reason presented in another part of fiqh. However fiqhis composed of various parts which require different reasoning, but sometimes a verdict on an issue in one part could be evidence for another issue in the other part of fiqh. In addition, although a mujtahid can be more skilled in some subjects, it is necessary for him to be knowledgeable about the whole context that has predominated Sharia. So, partial ijtihad is in need of further justification because, considering what was mentioned, if a mujtahid has the capability to istinbāṭ in one issue, he will be capable of istinbāṭ in all issues, and if he fails to istinbāṭ in one issue he will not be qualified to istinbāṭ in any issue.[7]

The above-mentioned objections are answered that the capability of istinbāṭ is a general thing with different instances. Capability to istinbāṭ in ritual issues is different from the capability to istinbāṭ in muʻāmilāt (mutual dealings), and they are different from the capability to istinbāṭ in hudūd (legal punishments) and dīyāt (financial compensations); because every subject has its own inferring proofs. Therefore, it is possible for someone to be well-versed and capable of inferring ḥukm sharʻī in one part, while he is not so skilled in other subjects of fiqh. So partial ijtihad is not only possible, but practically has occurred.[8]So it is wrong to say that Sharia is predominated with a whole spirit as it is impossible to reach proficiency in some part of it.

Lesson 6

Tkhṭaʼah and Taṣwīb

The Theory of Taṣwīb and its Origin

Arising ijtihad-based dissents among mujtahids and different fatwas about one issue led up to the dispute that whether every mujtahid’s fatwa is in accordance with the real instruction issued by God, or the real verdict is just one and the mujtahid’s fatwa can be in compliance with or at variance with it.

Some scholars believe in taṣwīb and say that all different fatwas issued by mujtahids regarding one issue are in accordance with the real instruction of God. While others believe in tkhṭaʼah and say that God’s instruction is just one, so only one of these fatwas is in conform to His order and the rest of them are surely inconsistent with it.

This difference of opinion, at first sight, may look surprising in the sense that how it is acceptable that whatever a mujtahid says is right and ijtihad, contrary to other professional works, is unerring? In intellectual issues like possibility or impossibility of bringing two contradictories together, in theological issues like possibility or impossibility of vision of God, or in the matters like identifying the direction of kiblah and determining that a certain liquid is water or wine; definitely only one assessment is correct and the other view is wrong, then how multiple views could be correct in legal matters?

The point is that Shia scholars have never believed in taṣwīb, and it is in direct contradiction to the principles of Shia fiqh. However many Sunni jurists also do not believe in taṣwīb, but this theory belongs to them and lies at the root of Sunni fiqh.

This theory’s origins go back to the fact that Sunni jurists opened the door to non-systematic ijtihad. They considered their intellectual preferences and presumptive istiḥsāns (juristic preferences) as a proof and the source of ijtihad, which resulted in substantial disagreement among them. Every jurist issued a fatwa on the basis of his personal aptitude and opinion then ascribed it to the Shāriʻ and Sharia. Concerning an issue, one mujtahid assumed that it is haram because of being harmful to people, while the other mujtahid called it halal in order to give people more freedom. In such cases, the questions arose in mind that which one displays the reality of Sharia? And, as both fatwas origin in personal ijtihad of the jurist, is it right to consider both to be true or only one is right and the other one is wrong?

The predominant view in the School of raʼy (personal opinion) was that every mujtahid’s fatwa is the real instruction of God. Because the cases where the Qur’an and Sunna did not provide clear direction are like empty areas for ijtihad, which present a great scope for mujtahids’ istiḥsāns (juristic preference) and personal opinions. In these cases God has not decreed a fixed and general verdict; instead, His real instruction hinges on the mujtahid’s judgment and conclusion.

This view regards Divine Sharia as a defective and incomprehensive law, and by this, gives mujtahids a free hand to complete it. According to this point of view, some part of Sharia is like a blank page which mujtahids should write it by their own judgment; and no one could denounce it for it is the mujtahid who writes the actual decree. According to this view, a mujtahid not only derives rules from the sources, but he possesses the position of Shāriʻ in the absence of evidence and legislates the decree.

The Kinds of Taṣwīb

The most extreme kind of taṣwīb, known as Ashʻarī taṣwīb, believes that God actually has not decreed any verdict, and His orders follow mujtahids’ judgment; so God’s actual order concerning one matter varies by the variety of fatwas issued by mujtahids. They justify this diversity of God’s order in the sense that the deduction made by every mujtahid is the real instruction for him, so the actual decrees are as varied as the number of mujtahids.

The moderate kind of taṣwīb is muʻtazilī taṣwīb, and it follows from what Shāfiʻī says that he believed in this kind of taṣwīb. According to this kind of taṣwīb, there is a real Divine instruction for everything, because mujtahids always are in search of the legal ruling and there must be something that they want to discover. If a mujtahid fails to achieve the existing rule, and his ijtihad concludes to another decree, the real one will change, and the deduced one will become the real decree for him.

The first part of what muʻtazilīs say is right, but the last part shows that they have gone in the same misdirection that the first group went, and the net result of both kinds is same: the variety of real Divine instruction about one matter.

The Theory of Tkhṭaʼah and its Basis

In contrast to the taṣwīb, tkhṭaʼah is what all Shia jurists unanimously believe in. According to this theory, a mujtahid’s conclusion could be in compliance with or at variance with the real instruction of God. The basis of this theory is the stability of Divine decree, which never changes under any circumstance, and people’s knowledge or ignorance has no effect on it. Ijtihadis no more than a mujtahid’s effort to discover and reach that instruction.

Many Sunni jurists have also applied the theory of tkhṭaʼah, and have presented some reasons to validate it, like:

• A narration from the holy Prophet (s.a.w) narrated by Abu Hurayra: if a judge makes the right decision through ijtihad, he shall be doubly compensated. However, if he errs, he shall be compensated once.[9]
• When Abu Bakr was asked about a legal precept, he said: I will express my opinion, if it was correct it would be from God, but if I erred it would be from me and Satan, and Exalted is God from what I have said.[10]

Followers of tkhṭaʼah, whether Shia or Sunni, believe that the mujtahid does not deserve punishment when he errs. Instead, he is rewarded because he has done his best, and on the Day of Judgment, he can justify his conclusion by presenting his legal proof.

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]– Munyah al-Murīd, PP. 289 & 377.

[2]– See: Maʻālim al-Uṣūl, chapter nine (الإجتهاد والتقلید).

[3]– See: al-Wāfiyah, chapter five (الإجتهاد والتقلید).

[4]– Like ayatollah Khuʼī in his books al-Tanqīḥ al-Maqāl, V.1, P.24, and Miṣbāḥ al-Uṣūl, V.3, P.443.

[5]– al-Fawāʼid al-Ḥāʼirīyah, fawāʼid al-qadīdmah, al-fāʼidah 36 & 37.

[6]– الإجتهاد ملکۀ یقتدر بها علی استنباط الحکم الشرعی الفرعی. (Muhammad KāzimKhurāsānī, Kifāyah al-Uṣūl, al-Khātimah fi al-ijtihādwa al-taqlīd)

[7]– See: Khilāf, ʻAbd al-Wahāb, ʻilm al-uṣūl al-fiqh, tajazzī ijtihad.

[8]– Sayyidabu al-QāsimKhuʼī,Miṣbāḥ al-Uṣūl, V.3, P.441.

[9]– إذا حَکم الحاکِم فاجتَهَد فأصاب فله أجران و إذا حَکم فأخطَاَ فله أجرٌ واحد. (SunanTirmizī, hadith 1326)

[10]– Jalāl al-DīnSuyūṭī, al-Durr al-Manthūr, V2, P756 (surah Nisāʼ, verse176).