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The Role of Ijtihad in Legislation by Martyr Mutahhari

The terms ‘mujtahid’ and ‘ijtihad’ are nowadays among those which have acquired great currency, even sanctity, among the Shi’ah. One would be surprised to know that the term ijtihad was formerly, from the times of the Prophet (S) and for several successive centuries, a Sunni term. It became Shia after undergoing a change of meaning, or what would be more precise to say, the term remained specifically Sunni for several centuries and became ‘Muslim’, in the wider sense, that is, after undergoing a change of meaning and dissociating itself from its earlier particular sense.

As to its not being a Shi’i term formerly, there is no doubt; if there is any uncertainty, it is about the date of its acceptance by the Shi’ah. It is not improbable that this term like several groups of people in the seventh century was converted to Shi’ism at the hands of the absolute Ayatollah, al-‘Allamah al-Hilli. However, as we shall presently explain, the conversion came after its undergoing a change of meaning.

Apparently, there seems to be no doubt that this term was never used by any of the Imams of the Ahl al-Bayt (A). The terms ijtihad and mujtahid, in the sense in which they are used by Shi’ah and Sunni fuqaha’, have not been used in any of their ahadith. Neither they themselves were ever known by the epithet ‘mujtahid’ nor did they ever use it for the scholars and legists from among their companions. Otherwise the root relating to such terms as fatwa and ifta, which convey approximately the modern sense of ijtihad, and its derivatives do occur in the ahadith. For instance, al-‘Imam al-Baqir (A) is reported to have said to Aban ibn Taghlib:

Sit in the mosque of al-Madinah and give fatwas for the people . Indeed I love more like you to be seen amongst my Shi’ah.

And in a famous hadith, al-‘Imam al-Sadiq (A) is reported to have said to ‘Unwan al-Basri:

 Avoid giving fatwa in the way you would run away from a lion; do not make your neck a bridge for the people.

The reason for the former unpopularity of the word is that during the early centuries of the Islamic era – that is also the period in which the Imams of the Ahl al-Bayt (A) lived – the word, due to the specific meaning it carried, was not acceptable to the Imams (A). Naturally, it could not have played any role in their teachings. However, after undergoing a gradual change of meaning, when it came to be used in a different sense by Sunni fuqaha’ themselves, it was also adopted by Shi’ite fiqh. Now we shall briefly describe the background of the Sunni usage of this term.

‘Ijtihad’ in the Sunni Tradition:

Sunni scholars narrate a hadith that the Prophet (S), while sending Mu’adh to Yemen, asked him as to on what he would base his judgement. “In accordance with the Book of Allah”, replied Mu’adh, “But what if you don’t find it there?” inquired the Prophet (S). “According to the Sunnah of the Apostle of Allah”, replied Mu’adh. “But what if you don’t find it there too?” asked the Prophet (S) again. ‘I will exert my own opinion’, replied Mu’adh.

The Prophet (S) put his hand on Mu’adh’s chest and said: “Thank God for assisting His Apostle with what he loves.” They have narrated other traditions on the subject to the effect that either the Prophet (S) directly commanded his Companions to exercise ijtihad in case they could not find a rule in the Book and the Sunnah, or to the effect that he approved of the practice of his Companions that practised ijtihad. To the Sunnis, this is something definite, confirmed by consensus (ijma’).

About the Holy Prophet (S) himself, they have said that some of his injunctions were purely based on personal ijtihad not on revelation. Even in their works on jurisprudence (‘ilm al-‘usul) the problem is raised whether or not the Prophet (S) could make errors in his personal ijtihad. They have narrated traditions in this regard and transmitted reports of the Companions as to how they justified their own actions or those of others on the basis of ijtihad. We abstain from quoting any of them here for the sake of brevity.

It is evident that in all the above instances the term ijtihad is not used in its current sense, that is, making the utmost effort in deducing rules of the Shari’ah from the related sources (adillah). The meaning of ijtihad there is ‘exercising of one’s opinion or judgement’ (al-‘amal bi al-ra’y). It means that in a case where the Divine dicta are absent or implicit, one should see what would be more acceptable to one’s intelligence and taste, or nearer to truth and justice, or analogous to other Islamic laws, and to adopt it for his judgement. Accordingly, ijtihad is also accounted as one of the sources of Islamic legislation, like the Quran and the Sunnah, although not as a source parallel to these two. So long as a rule is to be found in the Quran and the Sunnah, the need for ijtihad does not arise. However, in absence of relevant dicta in the Quran, the Sunnah or ijma’, ijtihad becomes a source of legislation. On this basis, they have said that the sources of legislation are four: the Book, the Sunnah, ijma’, and ijtihad (i.e. qiyas).

Also, according to this approach, ijtihad is not synonymous with expertise in Islamic law (faqahah), nor is the term mujtahid synonymous with faqih. Rather, ijtihad is one of the functions of the faqih. The faqih should have knowledge of the Quran and the hadith corpus; he should be able to distinguish the nasikh from the mansu