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Ijtihad in Islamic Jurisprudence


By Ali Unal


What does ijtihad mean?

[Ijtihad means, after acquiring the required knowledge and competence, deducing rules of law through juristic reasoning from original sources (The Qur’an and Sunna, the pronouncements and practices of the Prophet, upon him be peace and blessings, if the authentic sources available are not decisive on the particular question in hand.]

In order to put in their place those who overstep the limits in this matter, the following treatise may be useful:

In the Name of God, the Merciful, the Compassionate.

If they had only referred it to the Prophet, or to those having the authority among them, certainly those who are capable of deductions among them would have known it.

Is the door to ijtihad open?

The door to ijtihad is open but there are six obstacles which block up the way to it.

The first: Just as in winter when storms are violent even the small holes are closed up and to open new ones is in no way reasonable, and just as under the onslaught of a mighty flood to make openings in the wall to repair it leads to being drowned, so too, at this time of the invasion of hideous sins and customs from Europe and the legion of religious innovations, and the destructions of misguidance, to open in the name of ijtihad new breaches and routes of infiltrations in the walls of the citadel of Islam, is a crime against Islam and a help to the ‘enemy’.

The second: Religion is primarily based on certain essentials which are not subject to ijtihad. They are specified and definite, and are like basic food and sustenance without which life is not possible. At present they are abandoned and not given due care and importance. While we must therefore spend all our efforts in restoring and revitalizing them, abandoning the rules which the first generations of Islam deduced for the theoretical matters of Islam from the main sources of the law with perfect authority and purity of intention, and which are adequate for the needs of all times, to seek new rules in an indulgent and fanciful fashion is a harmful innovation and betrayal of Islam.

The third: Just as in the market various goods, foods and fruits are sought after according to season, and are in demand one after the other according to the change of time, so too in the market of the social life of mankind and human civilization, certain ‘goods’ are in demand in a particular epoch. They are displayed in the market, attention is drawn to them and minds are preoccupied with them. For example, while at this time politics, securing the worldly life and philosophy are in more demand, in the time and market of the righteous early generations of Islam the most sought-after ‘goods’ were to learn from the Word of the Creator of the heavens and earth the things of which He approves and what He wants of us, and to obtain the means of gaining eternal happiness in the world of the Hereafter, the doors of which were opened by the light of Prophethood and the Qur’an so wide that they can no longer be closed.

Since at that time all the minds, hearts and souls were bent with all their strength on understanding the things the Lord of the heavens and earth approves of, the conversations, discussions, correspondences and events were all devoted to that point. Therefore, whoever had the capacity was naturally and automatically taught by the ethos of the time. It was as if everything was a teacher to prepare his mind and soul and develop his capacity to do ijtihad. This natural and automatic kind of teaching was so enlightening that one was almost capable of doing ijtihad without the acquisition of necessary knowledge. With a match-like capacity ready to ignite, one who had that natural education displayed the meaning of light upon light, and became a mujtahid, one who is able to do ijtihad, in a short time.

At this time, however, due to the domination of European civilization and the heavy pressure of naturalistic philosophy, and due to the conditions of modern life growing unbearable, minds and hearts are scattered, and efforts and cares divided. Minds have become estranged from spiritual issues. It is because of this that, supposing one was as intelligent as Sufyan ibn Uyayna, a great mujtahid who memorized the Qur’an at the age of four and held discussions with scholars, in contrast with the time of Sufyan, one would now need ten times longer to become a mujtahid. If Sufyan became qualified to do ijtihad in ten years, that man would now need a hundred years. This is because the period of Sufyan’s natural study began at the age of reason. His capacity gradually developed, was sharpened, and reached the degree to take lessons from everything, becoming like a match in the end. As for his counterpart at this time, since his thought is absorbed in philosophy, his mind preoccupied with politics, and his heart is giddy at the worldly life, his capacity has grown too dull to acquire the qualifications of become a mujtahid. For sure, his faculties have become removed from exerting themselves to be qualified to do ijtihad to the degree of his preoccupation with modern sciences, and have remained backward in regard to it to the extent that he has become learned in physical and worldly matters. Therefore, he may not say: “I am as intelligent as him. Why can’t I be on a level with him?” He has no right to say this, and he cannot be on a level with him.

The fourth: There is in a body the inclination to expand for its growth and development. Since this inclination is inherent in the body and comes from within, it functions for the perfection of the body. Whereas if the inclination was in the form of intervention from outside, then it would cause rips in the body's skin and therefore not be expansion. Likewise, if the inclination to expand and desire to do ijtihad are present in those who, like the righteous early generations, have entered the sphere of Islam through the door of perfect taqwa—utmost care in living according to Divine rules of religion and laws of the creation and operation of the universe--and through the way of conforming to the essentials of Islam, that is a virtue and perfection. But if such an inclination and desire come from those who abandon the essentials of religion, prefer the worldly life to that of the Hereafter, and are preoccupied with materialistic philosophy, then it is the means of destroying the body of Islam and breaking away from the Shari‘a.

The fifth: The Law of  Islam is heavenly, revealed, and since ijtihad is to uncover its hidden rules and commandments, it is also heavenly. However, there are three factors which prevent the present desire for ijtihad from being heavenly and make it worldly:

The factors which prevent the present desires for ijtihad from being heavenly and make them worldly

The first: The cause for the establishment of a rule is different from the wisdom and benefit expected of it. Wisdom or benefit is the reason of its preference, while the cause requires its existence. For example, when a Muslim is on a journey, he shortens his prescribed prayers--he performs the prayers of four units or cycles (rak‘a) to two. The cause for this Divine dispensation in respect to the lightening of the duty of the prayer is travelling, and the wisdom lying in it is the hardships of travelling. A Muslim shortens his prayers as long as he is on a journey, even though he meets no hardships during it, because the cause exists. If he is not on a journey and yet meets hundreds of hardships, he cannot shorten the prayers, because wisdom or benefit cannot be the cause for this dispensation. However, contrary to this precept, the present viewpoint substitutes wisdom or benefit for the cause and judges accordingly. Certainly, this type of ijtihad is worldly and cannot be heavenly.

The second: The present viewpoint of people considers the worldly happiness in the first place and gives it priority in its judgements. Whereas, in the view of the Islamic Shari(a the otherworldly eternal happiness has absolute precedence, and the happiness in the world has a secondary place and is considered from the perspective of its being a means of eternal happiness. Therefore, since the present viewpoint is strange to the spirit of the Shari(a, it has no right to exercise ijtihad in the Name of the Shari(a.

The third: The principle that an absolute necessity makes permissible what is forbidden by the Shari(a, does not have validity at all times and in all circumstances. If the necessity does not arise from a forbidden act, it may be the cause for a permission. If, by contrast, it arises from a misuse of will-power and unlawful acts, it cannot be the means or an excuse for any dispensation.

For example, if a man voluntarily drinks alcohol and becomes drunk, he cannot be excused for the crimes he commits. If he divorces his wife, the divorce is in force. If he commits a murder, he is punished. Whereas, if his drunkenness has not arisen from his misuse of will-power – if he has been forced or threatened to do that, for example – then neither the divorce is in force nor is he punished. But one who has voluntarily been addicted to alcohol and can no longer give it up, cannot make the excuse: ‘I am obliged to drink it, and therefore it is lawful for me.’

Thus, at this time there are many things which have become generally ‘necessary’ and people are unable to renounce them. However, since they have all arisen from voluntary misuse of will-power, unlawful inclinations, and forbidden acts, they can be the means for neither a dispensation nor making the unlawful lawful. Whereas, since those who are in favour of exercising ijtihad in the present circumstances, build their reasoning on such sorts of necessities, their ijtihad is worldly, the product of their fancies, and under the influence of modern trends of thought, and therefore is not heavenly and in accordance with the Shari‘a. If any exercise of authority in the Divine ordinances of the Creator of the heavens and earth, and interference in the worship of His servants does not depend on that Creator's permission, that exercise of authority and interference are rejected.

The sixth: Since the respected mujtahids among the righteous early generations of Islam were close in time to the age of the Companions, which was the age of light and truth, they were purified by that light and exercised ijtihad with pure intentions. But those who claim today to have the necessary qualifications for ijtihad look at the ‘book of truth’ from so great a distance and from behind so many veils that they can see with great difficulty even the clearest letter of it.



Were all the Companions free of lying?

If you argue that the Companions were also human beings like us and not free of errors and contradictions. Yet, the commandments of the Shari‘a established by the Sunna and the conclusions the early mujtahids drew through ijtihad are founded upon the general belief and unanimous agreement of the Muslim community that All of the Companions are just and truthful; they are free of lying.

Answer: It is true that the absolute majority of the Companions were lovers of truth, passionately devoted to truthfulness and desirous of justice. For in that age, the ugliness of lying and deception was demonstrated in all its ugliness, and the beauty of truth and truthfulness in all its beauty, in such a manner that the distance between them was as great as that between the ground and the Supreme Throne of God. They were separated from each other to the extent of the distance between the degree of the truthfulness of the Prophet Muhammad, upon him be peace and blessings, who is at the highest of the high, and the deceptiveness of Musaylima the Liar, who is at the lowest of the low. Indeed, while lying caused Musaylima to fall to the lowest of the law, it is truthfulness which caused Muhammad the Trustworthy, upon him be peace and blessings, to rise to the highest of the high.

The Companions, who were illumined by the light of companionship with the Sun of Prophethood, had lofty emotions and sentiments and adored good morals. It is certain, doubtless, and undeniable that they never inclined to lying voluntarily, an act which is infinitely ugly and the cause of utmost degradation, which is found in the ‘shops’ of Musaylima-like liars, full of filth and disgracing objects of ridicule. Also, as much they avoided unbelief, they also avoided lying to the same degree, which is a companion of unbelief. Particularly in the narration and communication of the commandments of the Shari‘a, they were as careful as possible in seeking truth and being truthful, and conforming to truth, which is infinitely beautiful and a means of pride and glory, and a stairway to spiritual perfection, which is in greater demand than the other ‘gems’ in the elevated treasury of the Pride of Messengership, and illuminates the social life of mankind with the splendor of its beauty.

By contrast, at this time, the distance between truth and lying has become so narrow that they stand side by side. It is extremely easy to pass from truth to lying. Political propaganda has even made lying preferable to truth. Thus, if the ugliest thing is sold in a shop together with most beautiful things for the same price, for sure the brilliance of truth, which is infinitely sublime and priceless, is not to be bought in blind reliance on the skills and word of the shopkeeper.



Why there are more than one school of jurisprudence

Laws change according to ages. Prior to the Seal of the Prophets, at times it happened that in one age different Prophets came to different peoples with different laws. After the Seal of the Prophets, upon him be peace and blessings, however, since his most comprehensive Shari(ah is sufficient for all the peoples in every age, no need has remained for other laws. Nevertheless, in secondary matters of the Shari(a, the need for different schools has remained to a degree. Just as clothes change according to seasons and cures may differ according to temperaments, so too with the change of ages and according to the characters and capacities of peoples, the rules for the secondary matters of the Shari(a may differ. Because those secondary matters are concerned with human temperaments and the prevailing conditions of the time, they come according to them and become like cures.

At the time of the early Prophets, peoples were distant from one another both physically and with respect to the level of education, and their characters were somewhat coarse and violent, and their minds, primitive. For this reason, the Laws which came at that time were all different and appropriate to their conditions. There were even different Prophets and Laws in the same region in the same age.

Then, since the Last Prophet came with an all-comprehensive religion to lead mankind to pass to the secondary and further stages in science, education and civilization, and to enable them, through numerous revolutions and upheavals, to reach a position at which all peoples could receive a single lesson and listen to a single teacher and act in accordance with a single law, no need remained for different Laws, neither was there any need for different teachers. But because they have never been all at completely the same level and led the same sort of social life, there have been different schools of conduct. If, like the students of a school of higher education at almost the same level with one another, the absolute majority of mankind were to lead the same sort of social life and attain the same level, then all the schools could be united. But since the conditions of the world do not allow that, the schools of law cannot be the same.



The truth is one; how then can the different ordinances of four, or, as there were once, twelve schools be true?

Answer: The same water functions in five different ways in five ill people of different dispositions. For one, the water is cure for his illness, and according to the science of medicine, necessary. For another, it is like poison for his illness and harmful, and medically forbidden. For the third one, the water is a bit harmful and therefore should be avoided. For the fourth one, the water is beneficial and without harm, and medicine advises it. And for the last one, it is neither harmful nor beneficial; he can drink it with good health, and for him  it is medically permissible. Thus, here the truth has become numerous; all five approaches are valid. Can you argue that the water is only a cure, functioning in no other way, so it must be drunk regardless?

So, in a similar way, Divine Wisdom requires that the Divine ordinances of the secondary degree should differ according to the people following them, and this results in the emergence of different schools, all of which are in the right. For example, since, in accordance with Divine Wisdom, the majority of those who follow the School of Imam Shafi‘i are rather closer to village life than the Hanafis, and are somewhat lacking in social life, which makes the community like a single body, each recites the Fatiha behind the prayer-leader so as to unburden himself at the Court of the Dispenser of Needs and utter his private wishes. This is right and pure wisdom. However, the majority of the people living under the Islamic governments having favored the School of Imam Abu Hanifa, are closer to civilization and city life and more inclined to social life. Thus, the community becomes like a single individual and one man may speak on behalf of all; since all affirm and support him with their hearts, and his word becomes the word of all, according to the Hanafi School, the congregation do not recite the Fatiha behind the prayer-leader. This is also right and pure wisdom.

Again, for example, since through forming a barrier against the assaults of man's nature, the Shari‘a modifies it and trains the evil-commanding self, according to the Shafi‘i School, the majority of whose followers are usually villagers and those occupied in manual labor, ablution--the canonical purification--becomes invalid by touching the naked skin of a woman who can lawfully be taken in marriage; also, a small amount of filth on the body or clothes invalidates the canonical purity for worship. While according to the Hanafi School, most of whose followers have entered the social life and become somewhat civilized, neither touching women nor filth less than about three grams invalidates ablution.

Here we shall consider a manual worker and a gentleman. Due to his occupation and the manner of his livelihood, a worker is afflicted with being in near contact with unclean things and mixing with and being together with women who are by law strangers to him. Making use of this opportunity, his nature and evil-commanding self may impel him to transgress the bounds of decency. Therefore, in order to form a barrier against such transgressions and protect him against much dirt, the Shari‘a warns them with a heavenly tune: “You will lose your ritual purity, do not touch the women! Your prayers will be invalid, do not be tainted!” Whereas, in accordance with social custom and in the name of common morality, the Muslim gentleman who remains within the limits of modesty is not burdened with mixing and being together with women who are lawful for him to marry, and in the name of cleanliness of civilization, he refrains from dirt as much as possible. Therefore, in the Hanafi School, the Shari‘a has not shown him the same strictness; rather, it has shown him its permissive side, and lightened it. It says, “If you simply touch her with your hand, it will not invalidate your ablution. And if it is not possible for you to clean the dirt from your body or clothes, any dirt less than three grams of weight is permitted, so you do not have to renew your ablution,” and saves him from scruples on that account.

These are like  two drops from the ocean as examples for you. If you can, try to judge in this way the ordinances of the Shari(a according to the criteria discovered by Imam Sha‘rani.

O God! Bestow blessings and peace on him who, on account of being a comprehensive mirror to the manifestations of Your Most Beautiful Names, embodied the lights of Your love for the beauty of Your Attributes and Names,

and, on account of being the most perfect and wonderful of Your creatures, and the sample of the perfections of Your art and the index of the beauties of Your inscriptions, in whose being were focused the rays of Your love for Your inscriptions;

and who, on account of being the most elevated herald of the beauties of Your art, and the one who proclaimed in the loudest voice admiration for the beauty of Your inscriptions, and is the most unique in praising the perfections of Your art, displayed in his being the subtleties of Your love and desire for the appreciation of Your art;

and who, on account of having all good morality through Your favor and all beautiful attributes through Your grace, gathered together in his being the varieties of Your love and appreciation of You for the good morals of Your creatures and the beauties of the attributes of Your creatures;

and who is the most exact criterion and superior standard for all whom You mention in the Qur’an—Your Criterion of Truth and Falsehood--You love from among those who always do good, who are the patient, the believers, the God-fearing, those who turn to You in penitence and submission, and all the classes of those whom You love and have honored with love of You in Your Criterion of Truth and Falsehood, so he became the leader of those who love You and the master of those whom You love;

and bestow blessings and peace on his family and Companions and brethren. Amen, through Your Mercy, O Most Merciful of the Merciful!




This article has been adapted from Risale- i Nur Collection.