The Role of Ijtihad in Legislation
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
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 Ayatullah, al-'Allamah al-Hilli. However, as we
shall presently explain, the conversion came after its undergoing a change of
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
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-
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
mansukh, the 'amm from the khass, the mujmal from the mubayyan, and the
muhkam from the mutashabih. He should be familiar with the Quranic vocabulary
and terminology, know the circumstances in which a particular verse was revealed
(sha'n al-nuzul), and have knowledge of the successive generations of narrators
and transmitters of hadith. He should also be able to reconcile the apparently
conflicting traditions. In addition to all that, he should practise ijtihad and exercise
his personal judgements in particular cases.
What was the character and basis of that ijtihad? Did the term ijtihad found in
hadith mean exercising qiyas? Did the Prophet (S) and his Companions practise
ijtihad in this sense. Did it also apply to other practices such as istihsan? Al-Shafi'i, in
his famous Risalah, has a chapter on ijtihad, which follows the one on ijma', and is
itself followed by one on istihsan. In his discussion of the subject, al-Shafi'i draws
the conclusion that the ijtihad prescribed by the Shari'ah is confined to qiyas and
that other types of ijtihad, such as istihsan, do not have any canonical grounds. Al-
Shafi'i believes that the canonical grounds for qiyas are identical with those for
There were other questions that were debated by Sunni fuqaha', such as: Are ijtihad
and al-'amal bi al-ra'y confined to cases where there is no express text (nass) or
whether one may do ijtihad (called ta'awwul in this case) and exercise his
judgement despite the presence of express texts? What are the conditions
applicable to Sunnah if it is to preponderate ijtihad? Are all traditions narrated from
the Prophet (S) to be relied upon and given precedence over ijtihad? Is reliable
hadith confined to those which are mashhur and mustafid, as Abu Hanifah
believed? Who are those who had the right of ijtihad and whose ijtihad was binding
(hujjah) for the others? On what grounds have the others no right to go against
their ijtihad? Evidently, to go into the details of each of these questions is outside
the scope of this paper. However, it is necessary to mention some relevant points
1. The position of the fuqaha' and imams of the Ahl al-Sunnah with respect to the
acceptability of ijtihad, in the above-mentioned sense, is not the same. Some of
them give a wider scope to ijtihad and qiyas and some restrict it. Some altogether
reject qiyas and ijtihad.
Abu Hanifah, who lived in Iraq and was considered the jurist of the Iraqis, because
of the many conditions he required for a tradition to be acceptable, and also on
account of being distant from the centre of hadith, which was the Hijaz, had lesser
knowledge of hadith. Also due to other reasons, including his background of kalam
and logic, he took greater recourse to qiyas and on this account was strongly
opposed by the Sunni jurists of his time and those who came after him.
Malik ibn Anas spent his life in al-Madinah and made lesser use of qiyas. Reportedly,
he did not use qiyas except in a few cases, and, according to a report of Ibn
Khallikan, was greatly repentant at the time of his death of having taken recourse to
qiyas in his fatwas even in those few cases.
Al-Shafi'i, who belonged to the Iraqi school and had studied under Abu Hanifah's
pupils and had as well studied under Malik in al-Madinah, took a middle road
between Malik and Abu Hanifah.
Ahmad ibn Hanbal was more a muhaddith than a faqih and avoided qiyas even to a
greater extent than Malik Ibn Anas.
Dawud ibn Ali al-Zahiri al-'Isfahani, the founder of the Zahiri school, was altogether
opposed to the practice of qiyas and regarded it as an innovation (bid'ah) in the
As a consequence of these differences there emerged among the Ahl al-Sunnah two
general trends: one of them was represented by the Ahl al-Hadith and the other by
the Ahl al-Ra'y. The Ahl al-Hadith, or the Traditionists, attached lesser or no
significance to qiyas and ra'y and the Ahl al-Ra'y in turn relied to a lesser extent on
2. Concurrently with the emergence of the Ahl al-Ra'y and the Ahl al-Hadith, a
problem that arose among the contemporary circles of kalam was that of the
rational basis of legal judgements (al-husn wa al-qubh al-'aqliyyan). Although at first
sight there seems to be no link between these two developments, because one of
them belonged to fiqh and took place in juristic circles and the other belonged to the
circles of kalam, but, as pointed by some historians, the theory of rational basis of
judgement - which was raised by the Mu'tazilah and who staunchly defended it -
was also intended to find some kind of basis for ijtihad, i.e. qiyas and the practice of
ra'y. According to this theory, the laws of the Shari'ah were based on a series of real
benefits and harms and that human reason was capable of independently
discovering those benefits and harms inherent in things; therefore reason was
capable of discovering the purposes and criteria of the laws of religion through
ijtihad and ra'y.
This conjecture is further strengthened if we remember that the Ahl al-Hadith, who
later, in the fourth/tenth century, came to be known as Asha'riah, represented the
chief opposition to the Mu'tazilah.
3. Right from the first century, from the time when groups of people gathered in
mosques for the purpose of study and debate, some persons debated about the
issues of halal and haram. They gathered around them pupils and adherents from
among the common people, who regarded their fatwas as authoritative and
referred to them their questions about halal and haram. Such was the beginning of
the gradual development of a class of scholars who later came to be called fuqaha'.
Every region, city and group followed a certain individual, and the rulers had not yet
adopted the policy of following the fatwas of a certain jurist as official law.
The emergence of this class of jurists did not require any special conditions.
Occasionally, social conditions demanded that one prominent individual should be
recognized by the people and followed in religious precepts. Gradually, this resulted
in the emergence of diverse legal approaches and schools, which in turn were
preserved and perpetuated by the pupils of the originator after his death. In this
way, various legal schools and sects emerged amongst the Sunnis, the most famous
of them being the Hanafi, the Shafi'i, the Maliki, the Hanbali and the Zahiri schools.
Of course, the founders of these schools were not the only early jurists and
mujtahidun that were there. There were others who held their own legal opinions
and were not followers of anyone. However, this independence gradually
disappeared after the fourth/tenth century and no independent mujtahid emerged
after this time in the Sunni tradition. Apparently, the last person to have been an
independent mujtahid with his own independent approach in legal issues was the
well-known historian and exegete Muhammad ibn Jarir al-Tabari (d. 310/922), who
although famous for his work on history, is considered a Sunni faqih of the first
The later Sunni mujtahids were either al-mujtahid al-mutlaq al-muntasib or
mujtahid al-fatwa (also occasionally known as mujtahid al-madhhab). 'Al-mujtahid
al-mutlaq al-muntasib' means a mujtahid who is attached to one of the well-known
schools and follows the juristic approach of its founder but in deducing legal rules,
on the basis of the school's juristic principles, he may formulate his own
independent legal opinions which may be different from the legal opinions of the
founder. For instance, while being a Shafi'i or a Hanafi in jurisprudence, he may
differ with al-Shafi'is or Abu Hanifah's express fatwas in legal matters. A number of
eminent Sunni jurists are considered to belong to this class, such as: Imam al-
Haramayn al-Juwaym, Abu Hamid Muhammad al-Ghazali, Ibn al-Sabbagh, and
Mujtahid al-madhhab' or 'mujtahid al-fatwa' is someone who follows the founder of
the school in all matters in which the founder has expressly given his views.
However in issues in which he does find an opinion of the founder, he may exercise
his own Ijtihad and give fatwa .
Accordingly, Ijtihad is of three kinds: independent Ijtihad, semi-independent Ijtihad
(al-'ijtihad al-mutlaq al-muntasib), and Ijtihad within the framework of the juristic
and legal positions of a school (Ijtihad al-fatwa).
In any case, the mujtahids who came after the fourth century did not find any
followers. On the other hand the mujtahids who came before this period were not
limited to the four imams of the popular schools; there were nine other eminent
jurists of whom some lived before the four imams - such as al-Hasan al-Basri - some
were their contemporaries - such as Sufyan al-Thawri - and some who came after
them - such as Dawud al-Zahiri and Muhammad Ibn Jarir al-Tabari - and all of them
had more or less followers among the people. However, there was a gradual rise in
the followers of the four imams, for, according to al-Maqfizi in al-Khitat, al-Malik al-
Zahir, the ruler of Egypt, officially declared in the year 665/1257 that except the
four schools - Shafi'i Maliki, Hanafi and Hanbali - other schools had no official
recognition and that no judge had the right to give judgement except on the basis of
the four schools. The people were also strictly forbidden to follow any except the
four schools. This was the beginning of the restriction of the official schools to four.'
This brief description shows that when we talk of the closure of the door of Ijtihad
in the Sunni tradition, we refer to the Ijtihad of the first kind, i.e. independent
ijtihad. As to the second kind (al-Ijtihad al-mutlaq al-muntasib) and the third kind
(ijtihad al-madhhab), their doors have remained open.
Why should the doors of independent ijtihad have been closed after the fourth
century and no one should have right to complete independence and be bound to
follow one of the imams in jurisprudence? Why and for what reason is it not
permissible today to follow anyone except the four imams? Why should one who
follows any one of the imams follow him in all issues and have no right to follow the
other three by exercising discretion in some issues? Sunni scholars have given
various answers to all of these questions and none of them is convincing.
Shah Wali Allah Dehlawi (d. 1180/1765), in a treatise (risalah) called "al-'Insaf fi
bayan sabab al-'ikhtilaf" - which has been quoted by Farid al-Wajdi under jahada in
the Da'irat al-Ma'arif, with the remark that it is the best treatise written on the topic
- acclaims the closure of the door of independent ijtihad and the latter scholars'
imitation of one of the early imams and says: that is, 'It is a secret that God Almighty
has inspired in the scholars with' to safeguard Islam and protect the religion from
disintegration. Farid al-Wajdi himself does not approve of the prohibition on Ijtihad
and does not confirm those words of Shah Wali Allah.
Two years ago, according to what we have read in papers and have heard, the great
'Allamah Shaykh Mahmud Shaltut, the mufti and rector of Al-'Azhar University, with
great courage characteristic of great reformers, broke this thousand-year-old spell
and officially announced that the door of ijthad is open and that there is nothing
objectionable about a follower of one school referring to the judgements of another
school in case they are supported by firmer arguments. He also announced in an
official fatwa that it is correct to follow the Ja'fari school of fiqh, just like the other
schools. Subsequently, a chair of comparative legal studies was established at al-
'Azhar. Undoubtedly this was the greatest step that was taken since the beginnings
of Islamic jurisprudence for the sake of the benefit and general welfare of Muslims.
Its worth will be better recognized in the future.
4. Another problem related to the subject of Ijtihad is that of takhti'ah (admission of
the possibility of error in the judgements of the mujtahid) and taswib (confirmation
of the mujtahid's infallibility and denial of any possibility of error), which has
throughout been a topic of debate in books on kalam and usul al-fiqh. Generally, it
is mentioned in books on usul that the Shi'ah fuqaha' admit possibility of error in
the mujtahid's fatwas and are accordingly called mukhatti'ah (derived from khata':
error), whereas the Sunni fuqaha' believe that the mujtahid is always right in his
judgements, and are hence called musawwibah (derived from sawab: that which is
right). However, it is not the case that all the Sunni fuqaha' support taswib; rather,
only a small number of them have accepted this view. In any case, for the Shi'ah,
who define Ijtihad as 'the effort to deduce the real law from the sources of the
Shari'ah', it is difficult to imagine that every mujtahid should be always right. It is
not possible that whatever any mujtahid may judge should be correct and his
judgement should be the real law; for it is possible that different mujtahids may
hold divergent opinions simultaneously about a certain subject and the same
mujtahid may hold different opinions at different times about the same issue. How
is it possible that he should always be right?
The roots of the theory of taswib lie in a certain theory of Ijtihad which is held by
those who define ijtihad as the practice of qiyas and ra'y . They claim that the laws
received by the Prophet (S) through revelation are limited, whereas issues and
problems which require legislation are unlimited in number. Therefore, the laws
given by the Divine Lawgiver are not adequate to meet the requirements.
Accordingly, God has given the right to the scholars of the Ummah, or a group of
them, to employ their personal taste and intelligence in cases where there are no
religious dicta and select something which resembles other Islamic laws and is
closer to the criteria of justice and truth. In accordance with this reasoning, they
accept the theory of taswib, for, according to this view of ijtihad, it is itself one of
the sources of the Divine Law.
The idea of taswib was unimaginable to the minds of Shi'ah jurisprudents, because
they had taken for granted the principle that every event or problem should have a
real Divine law related to it. Ijtihad, to them, meant inquiry and effort to discover
that law with the help of reliable canonical sources. Of course, in the light of such an
outlook of ijtihad it is impossible that every mujtahid should be right.
The theory of taswib, however, does not rest on such an outlook of Ijtihad. It rests
on an outlook which regards it as impossible that God should have legislated laws
regarding every kind of situation. Because, if such were the case, they should have
been set forth in the Book and the Sunnah; but the laws given in the Book and the
Sunnah are limited in number, whereas situations are innumerable and unlimited.
Hence God has given the 'ulama' of the Ummah the right to legislate through Ijtihad
such laws as have not been given through revelation. Since this right is God-given,
the judgements of the mujtahid are the actual laws of God.
The problem of taswib and takhti'ah has been debated a lot in books on kalam and
usul, and here our purpose was just to refer to the abovementioned point. The
above discussion related to the Sunni background of the term ijtihad; now we shall
turn to the change of meaning that this term underwent, which resulted in its
acceptance by the Shi'ah.
'Ijtihad' in the Shi'ah Tradition:
Until the fourth/tenth and the fifth/eleventh centuries we observe that whenever
the word is used by a scholar it carries the sense of qiyas and ra'y. For instance,
Shaykh Abu Ja'far al-Tusi (d. 460/1067), in his 'Uddat al-'usul, devotes a chapter to
qiyas. He devotes another chapter to Ijtihad where he discusses one of the issues
related to ijtihad, i.e. the problem of taswib and takhti'ah. The book has another
chapter entitled "Did the Prophet practise ijtihad, and whether it was legitimate for
him to practise it? Was it legitimate for the Companions of the Prophet to practise
ijtihad when they were away from him or were in his presence?" Later, in the
course of his discussion, he says: "This controversy is basically uncalled for
according to our doctrines, because, as we have proved earlier, qiyas and ijtihad are
absolutely impermissible in the Shari'ah. ''
This remark of al-Shaykh al-Tusi shows that until his age the word Ijtihad was still
used in the sense of ra'y and qiyas.
'Ijtihad' lexically means 'putting in utmost effort' in doing something. In the earliest
days, the term in accordance with the traditions ascribed to the Prophet (S) and the
Companions, was taken to mean ijtihad bi al-ra'y, or putting in utmost effort in the
exercise of ra'y and qiyas. However, gradually it took a wider meaning and came to
mean putting in utmost effort in discovering the laws of the Shari'ah from its
reliable sources. Thus we see that al-Ghazali (d. 505/1 111) in his al-Mustasfa -
although he uses the word recurringly in its earlier sense of qiyas, for instance,
when he says:
They have differed as to the permissibility of practising qiyas and ijtihad during the
days of the Prophet ... (vol. 2, p. 354)
He also uses it in the general sense of scholarly effort on the part of a faqih
It (ijtihad) means putting in of the utmost effort in doing something. But the term
has come to be used in the terminology of scholars specifically for the mujtahids
putting in of the utmost effort in acquiring the knowledge of the laws of the Shariah.
(vol. 2, p. 350)
From this time onwards we see that the term is used less frequently in the special
sense of ra'y and qiyas and takes on the sense of scholarly effort in discovering the
laws of the Shari'ah. With this change, the term found way into the Shi'ite fiqh also,
for earlier the Shi'ah had opposed it on account of their opposition to Ijtihad bi al-
ra'y, not because they were opposed to scholarly diligence. In any case, they did not
resist its use after it changed its meaning. Probably the first to use this term among
the Shi'ah Imamiyyah scholars was al-'Allamah al-Hilli (d. 726/1326), who accepting
it used it in its second sense in his work Tahdhib al-'usul. In that work he devotes a
chapter to Ijtihad and uses it in the sense current today. It seems that it was from
this time that the Shi'ah accepted the word or the word embraced Shi'ism.
We said earlier that the opposition to qiyas was not limited to the Shi'ah and there
were schools among Sunnis who either altogether rejected it and regarded it as a
heresy or avoided it as much as possible. The Mu'tazilah, who advanced the
doctrine of al-husn wa al-qubh al'aqliyyan, backed qiyas and ra'y in their fight
against the Ahl al-Hadith who rejected it. The Ahl al-Hadith, who later came to be
called Asha'irah due to their approach in kalam, rejected the doctrine of al-husn wa
al-qubh al-'aqliyyan, claiming that the desirability or undesirability of things is
derived from the commands and prohibitions of the lawgiver and not vice versa. As
a result, they denied reason any role in legislation of Divine laws. The controversies
between the Mu'tazilah and supporters of qiyas and ra'y on one side and the
Asha'irah and the Ahl al-Hadith on the other side revolve around the role of reason
and its share in legislation.
It must not be concluded from the above discussion that the Shi'ah opposition to
ra'y and qiyas was also based on the same reasons as those of the Asha'irah and
the Ahl al-Hadith, which was outright opposition to the role of reason in deduction
of the laws of the Shari'ah. The Shi'i opposition to qiyas and ra'y had two reasons.
The first was that the claim of the supporters of qiyas that the Book and the Sunnah
are not adequate sources of legislation was not acceptable to the Imams of the Ahl
al-Bayt (A). In the sermons of the Nahj al-balaghah and other Shi'i compilations of
hadith the idea that the Book and the Sunnah are not adequate has been
vehemently rejected. In the Usul al-Kafi, the chapter followed by another entitled:
The chapter about referring to the Book and the Sunnah, and that verily there is no
haram or halal and nothing needed by the people that is not present in the Book or
The second reason advanced by the Shi'ah against qiyas was that it was based on
conjecture and led very frequently to error. These two reasons clearly stand out in
the books of early Shi'ah scholars, and we shall abstain from further details for
The best evidence of the fact that the Shi'ah opposition to qiyas and ra'y was not
based on a hostility to the role of reason in canonical matters is that, from the very
beginning that the Shiah jurisprudence was committed to writing, reason was
considered one of the sources (adillah) of law. The Shi'ah jurisprudents stated that
the sources of the Shari'ah are four: the Book, the Sunnah, ijma' and 'aql (reason),
whereas the Zahiris and the Ahl al-Hadith confined the adillah to the Book, the
Sunnah and ijma', and the support'ers of ra'y and qiyas regarded them as four: the
Book, the Sunnah, ijma' and qiyas.
The Shi'ah jurisprudents, while opposing qiyas and ra'y, accepted the Mu'tazilah
viewpoint about the rational basis of ethico-legal judgements, defended it and did
not oppose it like the Asha'irah and the Ahl al-Hadith. The concurrence of views
between the Shi'ah and the Mu'tazilah regarding this doctrine and its corollaries -
such as the doctrine of Divine justice - led the Shi'ah among the Mu'tazilah to be
known as 'Adliyyah and the Shi'ah left behind the Mu'tazilah in their support of the
doctrine of Divine justice. As a result, it came to be said in scholarly circles that:
"justice and tawhid are 'Alawid and fatalism and anthropomorphism are Umayyad."
The reason for calling justice 'Alawid was that the supporters of the Ahl al-Bayt (A)
were also defenders of the doctrine of al-husn wa al-qubh al-'aqliyyan and the
doctrine of justice was a corollary to it. As to tawhid being 'Alawid, it was on
account of the belief in the unity of Divine Essence and Attributes. The Umayyads
supported jabr (fatalism) and tashbih (anthropomorphism) due to political
exigencies. The issue of the independent capacity of reason to perceive the good
and evil of things, and the subsidiary doctrine of justice, became so much a
characteristic of the Shi'ah that justice came to be recognized as one of the principal
tenets of the Shi'ite creed.
That the Shi'ite opposition to ra'y and qiyas is not to be taken to have been an
opposition to the role of reason in ijtihad becomes completely obvious when we
examine the extant documentary evidence. At the present the Shi'ah state the
principle of the interrelation of Divine laws and actual benefits and harms and the
principle of harmony between reason and religious law in these words:
Whatever is the judgement of reason, is also the judgement of the Shari'ah.
This is an incontrovertible axiom of Shi'ite jurisprudence. The above discussion
makes it clear that the Shi'ah Imamiyyah approach to ijtihad was an independent
one: it was neither bound to ra'y and qiyas, nor did it impose any bounds on reason
in the manner of the Ahl al-Hadith. The Imamiyyah jurists on the one hand
recognized the rights of reason and regarded it as one of the sources of law, on the
other hand they rejected qiyas and ijtihad bi al-ra'y in their books on jurisprudence,
in chapters devoted to qiyas. However, it would have been in order if the latter
scholars had followed the ancient ones in discussing qiyas and ra'y in their works. It
would have helped to define the exact limits of the prohibited form of qiyas, which
would have been better understood. This would have prevented some individuals
from waging a battle against reason under the pretext of opposition to qiyas. In fact
it would have been better for scholars to devote a separate chapter to reason and
rational grounds in their works on jurisprudence, in which they could delineate
more precisely the role of reason and also discuss, secondarily, the inadmissibility
of qiyas. In view of this author, the absence of any discussion by the latter scholars
about the inadmissible form of qiyas and the limits of the role of reason in
legislation has been more or less detrimental to Shi'ah fiqh and ijtihad.
We should know that the great secret of Islam, from the viewpoint of the Imams of
the Ahl al-Bayt (A), is the principle that the general laws of the Book and the Sunnah
are sufficient for satisfying the religious needs of Muslims for all time, and that they
have no need of ra'y and qiyas. It is characteristic of all Islamic laws that they are
not only not hindersome to human progress in any era, but are conducive to it by
guiding and directing it in the right direction. All that is needed to grasp this great
secret is to have an enlightened and firm grasp of the vital issues. This great secret
of the resourcefulness of Islam can also be called 'the great secret of ijtihad'. To be
certain, if an independent chapter were devoted to the above topic in books on
jurisprudence, some of the existing contradictions and constraints in the
relationship between fiqh and progress would have been eliminated. This problem
requires an independent study and here we shall abstain from going into further
In the course of history, those Sunni schools of fiqh which were more rigid and
formalistic and allowed lesser role to reason in deduction of laws, either
disappeared gradually or the number of their followers diminished. The Zahiris,
who followed Dawud ibn 'Ali, became altogether extinct. The Hanbali school, which
after the Zahiri is the most rigid and formalistic of Sunni schools, gradually lost
followers, and had it not been for the appearance of Ibn Taymiyyah, who provided
the material on which Wahhabism was later to thrive, perhaps today the number of
followers of the Hanbali school would have been very small.
The school of Malik spread only in North Africa and Maghrib, away from the
centres of Islamic culture, and, as Ibn Khaldun says, the cause of the spreading of
the school of Malik in North Africa and Maghrib was that the inhabitants were
Beduins who lived away from the centres of science and culture. In any case, the
rigid and formalistic Sunni schools declined and lost followers with the passage of
time. Akhbarism in the Imamiyyah Tradition:
One of the most surprising as well as regrettable phenomena was the emergence of
Akhbarism among the Shi'ah in the early eleventh/seventeenth century. Akhbarism
was a hundred times more rigid and formalistic than either the Zahiri or the Hanbali
school. Its emergence must be considered a great catastrophe in the Shi'ah world
whose effects more or less survive to the present day, causing stagnation and
obscurantism in the Shi'ah Muslim society.
To be continued ...
Legislation,Ijtihad,Ijtihad in Legislation,Role of Ijtihad,Role of Ijtihad in Legislation,The Role of Ijtihad in Legislation,'Ijtihad' in the Sunni Tradition,'Ijtihad' in the Shi'ah
Tradition,Legislation in Ijtihad