The Beginnings of Shīʻī Ijtihad

After the demise of the Prophet (S) in the year 11/632, the need for ijtihad was felt acutely by the Sunnis, for they thought that the continuity of Divine guidance in the form of authoritative texts (nass) had ceased with his (S) demise and the only means of deter­mining the Divine laws that remained was to search for them in the Book of God and the statements and acts of the Prophet (S).

The Shi’ah, on the other hand, believed in the continuity of religious authority and nass after the Prophet (S), and they considered the Infallible Imams of the Ahl al‑Bayt (A) as embodying the Prophet’s authority.

Their state­ments (qawl), acts (fi’l) and approvals (taqr’ir) were considered by them authoritative like those of the Holy Prophet (S), and hence as part of the Sunnah. Accordingly, the Shi’ah did not feel the need for ijtihad contemporaneously with the Sunnis; it was only after the Greater Occultation (al ghaybat al‑kubra) of the Twelfth Imam (A) that the Shi’ah came to feel the need to practice ijtihad on an extensive scale.

Moreover, the Ahl al‑Sunnah came to face various constrictions in the way of deducing laws of Shari’ah for contingent issues on account of distancing themselves from the Imams of the Ahl al‑Bayt (A) after the Prophet’s demise.

This was because, on the one hand, about two­ thirds of Qur’anic verses were seen to deal with doctrines, social princi­ples, higher ethical values, historical events relating to past messengers and their peoples, and accounts of their struggle against the oppressors and taghuts of their times; on the other hand, though the remaining one‑third of them relate to legal matters (such as: salat, sawm, khums, zakatt, Hajj, jihad, al‑’amr bi al‑maruf wa al‑nahy ‘an al‑munkar, tawalli, tabari.

Legal contracts and economic deals, such as matters relating to marriage, divorce, will and inheritance, sale, lease and mortgage; penal matters, such as those relating to hudud, diyat and qisas; matters relating to government, judiciary, judgement, testimony, qualifications for judgeship; matters relating to the rights of parents, debts, etc.) they deal mostly with general principles, leaving the details and particulars to the Sunnah in accordance with the verse:

وَمَا آتَاكُمُ الرَّسُولُ فَخُذُوهُ وَمَا نَهَاكُمْ عَنْهُ فَانْتَهُوا ۚ

Take whatever the Apostle brings you, and abstain from whatever he forbids you from. (59:7)

 

The Qur’an as the Source of Law

It may be argued that the Qur’an and some traditions expressly state that the Qur’an contains everything and that there can be no short­age while we possess the Qur’an. Accordingly, it may be said, there is no reason why the Ahl al‑Sunnah should have faced any difficulty in deducing ahkam after the Prophet’s demise.

In reply to this, we should say that it is undoubtedly true that:

وَلَا رَطْبٍ وَلَا يَابِسٍ إِلَّا فِي كِتَابٍ مُّبِينٍ

(not a thing, fresh or withered, but it is in a Book Manifest) (6:59),

but the belief that everything has been mentioned in the Qur’an and that nothing has been omitted by it, in accordance with the verse:

مَّا فَرَّطْنَا فِي الْكِتَابِ مِن شَيْءٍ

(We have not omitted anything in the Book) (6:38),

does not imply that everyone, regardless of his qualifications, is capable of obtaining the pearls lying in the depths of its shoreless oceans. The belief that the Qur’an contains all the ahkam and is capable of answering every question that can be raised by man does not conflict with the view that an extraordinary level of knowledge, effort and learning is essential for obtaining all the ahkdm of the Shari’ah from the Qur’an’ and for finding the answer to any question.

Thus we find that some traditions that expressly declare that there is everything in the Qur’an also adds that it is not possible to understand part of Qur’anic meanings without reference to someone who is infallible (Masum). Usul al‑Kafi (vol. I, p. 62) records the following statement of Amir al‑Mu’minin (A) in this regard:

ذلك القرآن فاستنطقوه فلن ينطق لكم أخبركم عنه إن فيه علم ما مضى وعلم ما يأتي إلى يوم القيامة وحكم ما بينكم وبيان ما أصبحتم فيه مختلفين فلو سألتموني عنه لأخبرتكم عنه لعلمتكم.

There is the Qur’an: ask it to speak, but it will never speak to you (because its profound speech is audible only to the Ma’sum and it is he who can make it speak unreservedly), yet I will inform you about it; verily, in it is the knowl­edge of the past and the future up to the Day of Resurrection. In it is the judgment touching whatever passes between you and the explanations of your differences. If you ask me about it, I will inform you.

 

Difficulty of Utilizing the Sunnah

Some, while admitting that it has been a difficult task for Islamic scholars to deduce the ahkam from the Qur’an ‑ i.e. to make the Qur’an weak, in Imam ‘Ali’s words, the task lying basically beyond the Power: of ordinary persons ‑ may argue that the Ahl al‑Sunnah did have access to the Prophet’s traditions on legal issues and that such traditions were sufficient to meet their needs.

In reply to this conjecture it must be said that unfortunately these traditions were very few in comparison to the number of contingent issues that arose, and therefore they were not sufficient to answer all the questions that arose.

It was exactly for this reason that terrible gaps appeared in the Sunni fiqh of this period, and the inadequacy of the existing sources and foundations led to the invention of instruments for drawing legal conjectures (such as ijtihad bi al‑ra’y and other instruments as qiyas, istihsan, masalih mursalah, istislah, madhhab al‑sahabi, sadd al‑dhara’i; fath al‑dhara’i; shari’at al‑salaf, ‘urf, istidlal, etc.)

 

The Need for Ijtihad amongst the Shi’ah

As said above, the Shi’ah did not face any constriction in respect of legal source for finding answers to emergent issues after the Prophet’s era. They did not face any vacuum in Islamic law after the prophet’s demise because of their belief that ‘Ali (A) and his descendants had been invested by the Prophet (S) with Imamate, the authority to expound the Prophet’s Sunnah and to perpetuate it, which to them was an inexhaustible treasure that had been left by the Prophet (S) for the Ummah.

As a result of this belief the Shi’ah referred to the living Imam for the solution of new problems and obtained the solution in the form of an exposition of a verse of the Qur’an or through a tradition of the Prophet (S). They never felt any need to turn to ijtihad bi al‑ra’y or to resort to conjectural methods.

The only time the Shi’ah met with any difficulty in this regard with the beginning of the Minor Occultation of the Twelfth Imam (A), a period of 69 years from 260/874 to 328/940. During this period the Shi’ah could obtain replies to their queries through the deputies (nuwwab) of the hidden Imam (A) who served as intermediaries.

These deputies, one after another, were four: Abu ‘Amr ‘Uthman ibn Sa’id, Abu Ja’far Muhammad ibn ‘Uthman (d. 304 or 5/916 or 7), Abu al-Qasim Husayn ibn Ruh al‑Nawbakhti (d. 326/938), and Abu al‑Hasan ‘Ali ibn Muhammad al‑Samari (d. 329/941).

With the end of the Minor Occultation and the beginning of the Major Occultation in the year 329/941, in the absence of access to the Imam (A) or his deputies, the Shi’ah were confronted with greater difficulty in regard to obtain­ing ahkam for new issues, which increased with the passage of time and the growing distance from the era of nass, together with the growing variety of the emergent issues and problems created by new conditions of life.

Moreover, with the passage of time, increasing number of doubts took the place of the previous certainty about the meaning and import of the texts which served as the bases of legal deductions. It was at this time that the Shi’ah began to search for ways to solve this problem by deducing the ahkam for new issues from the available legal sources.

This new path was that of “ijtihad” whose pioneer was the treat mujtahid and creative jurisprudent al‑Hasan ibn Abi ‘Aqil al Umani. After him, we can name al‑Shaykh al-Tusi, the great scholar and highly original mujtahid who employed the foundations built by Ibn Abi ‘Aqil for extensive deduction of ahkam of the Shari’ah. In this way the difficulties living in the way of Shi’i jurisprudence were removed and it overcame its hurdles.

 

The Difference between Shi’i and Sunni Ijtihad

 ‘Ijtihad’ is a familiar term both in Shi’i and Sunni fiqh, but its meaning and characteristics are different in the contexts of the two. Whereas ijtihad in the Shi’i sense means deduction of ahkam from the sources and through the principles of the Shari’ah, the same term in Sunni fiqh means deduction of ahkam through such means as ray, qiyas, istihsan, masalih mursalah, etc.

Therefore, it has been said that Shi’i ijtihad does not involve legislation (tashr’i’) of new laws as Divine commands regarding emergent issues and events; it confines itself to applying the unchanging general principles to emergent, changing particulars (tafri’).

The Shi’ah do not look upon ijtihad as an independ­ent source of ahkam but as the meant of their identification through a study of the sources of the Shari’ah. The Ahl al‑Sunnah, on the contrary, consider ijtihad as an independent source of legislation.

 

Ijtihad during the Era of the Imams (A)

Though, it would appear that the Shi’ah had no need of ijtihad during the era of accessibility to the Infallible Imams (A), the fact is that some Shi’i jurists did confront the need to perform ijtihad occasion­ally under some special circumstances, and the path of deducing second­ary ahkam from the basic sources was open to them. The evidence of it is as follows:

1. There are traditions in which mention is made of certain common elements pertaining to the general principles of legal deduction. In these traditions, the Imams ‑‑ particularly‑ al‑’Imam al‑Sadiq (A) – are reported to have been questioned about such principles (usul) and roles (qawa’id), and they gave replies to suck questions.

These traditions by themselves indicate that issues related to ijtihad were relevant for the Shi’ah during that period. ‘The Imams (A) propounded such usul as that of Bara’ah, Ihtiyat, Istishab, and Takhyir, and such aqaid as that of taharah, yad, ibadah, hilliyah, sihhah, tajawuz, faragh, la darar, la haraj, etc. These usul and qawaid provide effective assistance‑ to the faqih in his effort to deduce the hukm of the Shari’ah about any contingent issue.

Historical accounts reveal that whenever the companions of the Imams (A) came across the texts of their ahadith ‑ which differed from one another in respect to ‘amm and khass, mutlaq and muqayyad, mujmal and mubin, zahir and azhar, zahir and nass ‑ they would try, to reconcile them according to the rules of objective reconciliation (jam mawdu’i) so far as it was possible (such as between ‘amm and khass, mutlaq and muqayyad, mujmal and mubin). But if objective reconciliation was not possible (such as between zahir and azhar, zahir and nass) they would reconcile the tradition in accordance with the rule of jam’ hukmi and remove their apparent conflict.

When none of these two methods of reconciliation worked (such as when there were totally divergent narrations regarding a certain issue), the narrators would ask the Imams (A) to suggest some criterion for distinguishing between reliable and unreliable traditions. In this relation numerous traditions have been reported from the Imams (A) which are termed in ‘ilm al ‘usul as akhbar ‘ilajiyyah (remedial traditions). In Usul al-Kafi (vol. I), ‘Awali al‑la’ali, and other works, there are chapters related to this topic and here we shall cite one tradition as an example.

In ‘Awali al‑la’ali (vol. IV, p. 133) a tradition is recorded from Zurarah ibn A’yan:

Zurarah says: “I said to Abu Ja’far, ‘May I be your ransom, if two conflict­ing traditions are narrated from you which one of them are we to accept?’ The Imam (A) said, ‘Take the one which is well‑known among your compan­ions (i.e. the Shi’is) and leave the one which is unfamiliar: I said, ‘What should we do if both of the traditions are equally well‑known?’ The Imam (A) replied, ‘Take the one which seems more balanced (a’dal) and more reliable (awthaq) to you.’ I said, ‘What if both of them are equally balanced, accept­able and reliable?’ The Imam (A) said, ‘See which of them is in accordance with the standpoint of the ‘Ammah (i.e. non‑Shi’i Muslims); leave it, and take the opposite of what the ‘Amman hold, for the truth lies in that which contradicts them.’

I said, ‘Sometimes we come across two traditions both of which are in agreement with the ‘Amman or both of them contradict with their standpoint; what are we to do in such cases?’ The Imam‑(A) replied, ‘Select the tradition which is nearer to caution and leave the other one.’ I said, ‘What is our duty if both the traditions are in accordance with caution or if both of them are opposed to it?’ The Imam (A) replied, ‘In such a case, take anyone of the two and leave the other.”‘

The traditions which deal with the resolution of conflict between traditions are great many and there is no need to cite them here. The aim of quoting the above tradition was to show that the principles of jurisprudence were often discussed during the era of the Imams (A) and that these principles were generally employed for the practice of ijtihad. On this basis, the practice of ijtihad was not limited to the period of inaccessibility to the Imams (A).

2. The presence of books dealing with some issues of ‘ilm al‑’usul among the writings of the contemporaries of the Imams (A) is indicative of the fact that the practice of ijtihad was current and the principles of jurisprudence were relevant during the era of accessibility. We shall discuss this matter in detail while studying the various periods in the history of ijtihad; here we shall cite few instances of it for the sake of example:

(a) Hisham ibn al‑Hakam, a pupil of al‑’Imam Al‑Sadiq (A), compiled a treatise on word usage (alfad ).

(b) Yunus ibn ‘Abd al‑Rahman, a pupil of al‑’Imam Al‑Rida (A), wrote a short treatise on usul al‑fiqh.

(c) Al‑Fadl ibn Shadhan al‑’Azdi al‑Nishaburi, a pupil of al‑’Imam al‑Hadi (A), was the author of a number of fatawa issued on the basis of jurisprudential principles. For instance, he gave a fatwa upholding the validity of prayers offered in an usurped place, in accordance with his belief in the permissibility of the concurrence of amr and nahy. Appar­ently he was the first to believe in the permissibility of the concurrence of amr and nahy in matters of primary significance.

3. During the era of accessibility to the Imams (A), the Shi’is who lived in distant lands, such as Khurasan and Ray, could not easily con­tact the Imam (A) and question him about the problems they came across. Although historical accounts show that the Shi’is sent their queries to the Imams (A) through travellers and pilgrims, who brought them the Imam’s answers on returning, it should be noted that this method was not followed in respect to all the problems encountered.

Secondly, the replies in such cases arrived after the passage of consider­able time during which we cannot say that they remained without any obligation to fulfill.

Thirdly, the travellers and the messengers sent were not always successful in getting access to the Imams (A), because most of the time the Imams (A) were either under surveillance or in the prisons of tyrannical caliphs, so that the Shi’is could not contact their Imam. For instance, al‑’Imam Al‑Sadiq (A) was under such strict and oppressive surveillance of the ‘Abbasid caliph al‑Mansur that no one could easily approach the Imam (A). The Shi’‑is had to resort to various kinds of tactics to approach the Imam’s house in the garb of peddlers or tradesmen to ask questions while observing intense caution.

After al‑’Imam Al‑Sadiq (A), the next Imam, Musa ibn Ja’far (A), spent long years in the prisons of Basrah and Baghdad until his mar­tyrdom. During such periods, eminent Shi’i fuqaha’, such as Zurarah, Muhammad ibn Muslim, al‑Fadl ibn Shadhan, Safwan ibn Yahya and others fulfilled the legal needs of the Shi’is through their own ijtihad.

4. There are traditions which indicate that the Imams’ companions and pupils were required to apply the general juristic principles to par­ticular instances. The following tradition of Safinat al‑Bihar (vol. I, p.22) is an example:

قال الصادق (ع): إنما علينا أن نلقي الأصول وعليكم أن تفرعوا.

Al‑’Imam Al‑Sadiq (A) said: “Our duty is to teach you the principles and your duty is to ramify.”

Ayan al‑Shi’ah records the following tradition of al‑’Imam Al‑Rida (A):

عن كتاب أحمد بن محمد بن محمد بن أبي نصر البيزنطي عن الرضا عليه السلام: علينا إلقاء الأصول وعليكم التفريغ.

From the book of Ahmad ibn Muhammad ibn Muhammad ibn Abi Nasr al­-Bizanti from al‑Rida (A): “Our duty is to teach the principles and yours to ramify.”

5. Another evidence of the existence of ijtihad during the era of accessibility to the Imam are the fatwas issued by the legists among the Imams’ contemporaries, and the Imams’ approval of their verdicts. The following tradition narrated by Mu’adh ibn Muslim is recorded in Wasa’il al‑Shi’ah (vol. 18, 11th of the chapters on sifat al‑qadi, hadith 37):

Mu’idh ibn Muslim said: “Al‑’Imam Al‑Sadiq (A) said to me, ‘I have ‑been told that you sit in the mosque and give fatwa to the people’. I said, ‘Yes, I am doing it.’ Then I said, ‘Before I leave you I have to ask you a question: (My practice is that) When I sit in the mosque (giving fatwas) a man comes and asks me a certain question. If I know that he is one of your opponents and does not act according to your views, I narrate to him a fatwa which is accept­able in his legal school. If I know that he is one of your followers, I give a fatwa in accordance with the Shi’i school. But if I cannot find out to which group he belongs I explain to him various fatwas putting in your views amongst them.’ The Imam (A) replied, ‘Carry on in the same fashion, for such is also my method.”‘

6. Some traditions show that the Imams (A) ordered the outstanding among their companions to give fatwas to the people. In Usd al­-ghabah (vol. 4, p.197) it is reported that Imam ‘Ali (A), while appoint­ing his cousin Qutham ibn al‑’Abbas as governor of Makkah, said to him:

أقت المستغني وعلم الجاهل.

Give fatwa to the initiated and teach the ignorant.

Al‑’Imam Al‑Sadiq (A) is reported to have said to Aban ibn Taghlib (Jami’ al‑ruwat, vol. I, p.9):

اجلس في  مسجد المدينة وافت الناس فإني أحب أن يُرى في شيعتي مثلك

Sit in the Mosque of Madinah and give fatwas to the people, for I love the like of you to be seen amongst my Shi’ah.

7. Some traditions indicate that the Imams (A) referred some of their followers to some of their outstanding pupils in matters relating to hadith and fatwa.

عبد العزيز بن مهتدي، قال: سألت أبا الحسن الرضا (ع) ، فقلت: إني لا أقدر على لقائك كل وقت فممن آخذ معالم ديني؟ فقال عليه السلام: خذ عن يونس بن عبد الرحمان.

‘Abd al‑’Aziz ibn Muhtadi said: “I asked Aba al‑Hasan al‑Rida (A), ‘I am unable to meet you every time, so from whom should I take my religious instruction?” ‘Take if from Yunus ibn ‘Abd al‑Rahman,’ said the Imam (A).” (Wasa’il al‑Shi’ah, vol. 18, eleventh of the chapters on sifatal‑qadi, hadith 34)

عن شعيب العقر قوفي، قال: قلت لأبي عبد الله عليه السلام: ربما احتجنا أن نسأل عن الشيء فمن نسأ؟ قال: عليك بالاسدي.

Shu’ayb says: “I said to al‑’Imam al‑Sadiq (A), ‘Often we have to ask about something; whom should we ask?’The Imam said, ‘Ask al‑’Asadi (Abu Basir).”‘ (Ibid.)

عن علي بن مسيب الهمداني، قال: قلت للرضا (ع):  شقتي بعيدة ولست أصل إليك في كل وقت، فمن آخذ معالم ديني؟ قال عليه السلام: من زكريا بن آدم القمّي، المأمون على الدين والدنيا. قال علي بن المسيب: فلما انصرفت قدمنا على زكريا بن آدم، فسألته عما احتجت إليه .

‘Ali ibn Musayyab al‑Hamadani says, “I said to al‑Rida (A), ‘I have to come a long distance and I cannot reach you every time (when I have to ask you something). From whom should I take the teachings of my faith?’ The Iman (A) said, ‘From Zakariyya ibn Adam; he is my trustee in regard to religious and secular matters.”‘ ‘Ali ibn Musayyab adds, “On returning I went to Zakariyya ibn Adam and asked him whatever I needed to ask.” (Usul al‑Kafi, vol: 1, p.67)

قال الصادق (ع): ينظر إلى من كان منكم ممن قد روى حديثنا ونظر في حلالنا وحرامنا وعرف أحكامنا فليرضوا به حكماً فإني جعلته عليكم حاكما.ً

Al‑’Imam al‑Sadiq (A) said: “The two (Shi’i disputants) should look for one who narrates our traditions and has in view our halal and haram and who as well understands our ahkam. Then (having found such a person) they should accept him as a judge.”(Ibid.)

قال أبو محمد الحسن العسكري (ع): …  فأما من كان من الفقهاء صائناً لنفسه حافظاً لدينه مخالفاً لهواه مطيعاً لأمر مولاه فللعوام أن يقلدوه.

Al‑’Imam al‑’Askari (A) said:…”As to the faqih who preserves the integrity of his self, defends his faith, opposes his lust and obeys the command of his Master (mawla), then it is for the laymen (‘awamm) to imitate him.”(al‑Tabarsi, al‑ Ihtijaj)

8. The traditions quoted above expressly indicate the permissibility of giving fatwa in accordance with the principles of Shi’i jurisprudence. There are other traditions which, though they do not expressly state such a sanction, are relevant in that we can infer such a permissibility from them.

Al‑’Imam Al‑Baqir (A) said: “Anyone who gives fatwa without knowledge or guidance is cursed by the angels of Divine wrath and mercy. The sins of those who act upon his fatwas also lie upon him.” (Wasa’il al‑Shi’ah, vol. 18, fourth of the chapters of sifat al‑qadi, a sahih tradition narrated on the authority of Abu ‘Ubaydah)

Al ‘Imam Al‑Sadiq (A) said: “Anyone who acts upon qiyas destroys himself and others who act upon his verdict. Whoever gives fatwa without knowledge and without knowing nasikh and mansukh or muhkam and mutashabih, brings perdition upon himself and others.” (Usul al‑Kafi, vol. 1, bab al‑nahy ‘an al‑qawl bi ghayr al‑‘ilm, hadith 9)

The Prophet (S) said: “Whoever gives fatwa without knowledge or learning, his abode shall be hellfire.” (Tuhaf al‑’uqul, the riwayah of al‑Hasan ibn ‘Ali ibn Shu’bah)

9. In regard to the books of certain Shi’i groups (such as Banu Faddall and individuals (such as al‑Shalamghani), the Imams (A) are reported to have said: خذوا ما رووا وذروا ما دروا ‘Take their narrations and leave their conclusions.’ It can be inferred from this tradition that ijtihad was practised by the Shi’is of that era. Banu Faddal and al-­Shalamghani had diverted from the right path, and, therefore, the Imams (A) forbade the Shi’is from acting upon their verdicts, judgements and opinions.

 

Conclusion

From the nine reasons given above it can be concluded that the practice of ijtihad, in the sense of derivation of ahkam from Shar’i sources, existed during the era of the eleven Imams (S).?

The companions of the Imams (A) derived secondary ahkam from the legal sources, for issues for which there existed no nass either in the Book or in the Sunnah of the Prophet (S) or in riwdydt of the Ma’sumun (A), and this practice enjoyed the approval of the Imams (A).

 

The Selection Taken from the “Ijtihad: Its Meaning, Sources, Beginnings and the Practice of Ray” by Ayatollah Muhammad Ibrahim Jannati.