Why is ijtihad necessary? Why did madhhabs choose the way of ijtihad when there was a lack of narrations?

Madhhabs look like schools that aim to enlighten Muslims related to an issue that is not clear in the Quran and the Sunnah. However, touching a woman does not invalidate wudu but bleeding does in Hanafi madhhab; it is the opposite in Shafii madhhab. Imams make different ijtihads because no information is reported from the Prophet (pbuh) regarding the issue. In fact, interpretations occur due to “lack of narration” not due to a need for ijtihad here. How appropriate is it to cover the lack of riwayah with ijtihad?

Dear Brother / Sister,

In Islamic law, there is no need for ijtihad if religious decrees are based on clear evidences, that is, clear verses and hadiths or ijma (consensus). Majalla expresses it with the following principle: "There is no permission for ijtihad related to issue about which there are verses and hadiths." (item, 14)

However, if the certainty or indication of nass is not clear or if issues whose solutions cannot be found in verses and hadiths appear, it is stated by the Prophet (pbuh) himself that it is necessary to act based on ijtihad (ra’y) when he sends Muadh b. Jabal as the governor to Yemen. 

The Prophet asked Muadh based on what he would decree in Yemen. Muadh said,

"The Book of Allah." The Prophet (pbuh) said,

"What if you cannot find a decree in the Book of Allah?" He said,

"The Sunnah of the Messenger of Allah." He asked,

"What if you cannot find a decree there?" Muadh said,

"I will make ijtihad based on my view." Thereupon, the Messenger of Allah (pbuh) said,

"Praise be to Allah, who made the envoy of His Messenger successful in a way that His prophet will be pleased with." (Tirmidhi, Ahkam, 3; Ahmad b. Hanbal, Musnad, V / 230, 236, 242; Shafii, al-Umm, VII/273)

The number of mujtahids among the Companions is very high because they knew Arabic well and they understood what Allah and His Messenger meant very well due to being together with the Prophet (pbuh) for a long time. However, the number of mujtahids among the Companions from whom decrees and fatwas were reported is about one hundred and thirty. The fatwas of seven of them are so many as to form a separate book each. The Companions that are called Fuqaha-Sab'a are as follows: Hz. Umar, Ali, Aisha, Zayd b. Thabit, Abdullah b. Mas'ud, Abdullah b. Abbas and Abdullah b. Umar (Ibnul-Qayyim, I'lamul-Muwaqqiin, thq. M. Muhyiddin Abdulhamid, Egypt 1955, I/14 ff).

Hz. Umar encouraged Abu Musa al-Ashari to make qiyas and ijtihad in the letter he sent to him. He stated the following to Qadi Shurayh (d. 78/697) regarding the same issue:

"Make decrees by what you clearly understand from the Book. If you cannot know the whole book, decree with what the Messenger of Allah decreed. If you do not know all of them, decree with the decisions of the scholars that are on the true path. If you cannot know all of them, make ijtihad with your view and consult scholars and righteous people." (Shirazi, Tabaqat, p: 7; Ibnul-Qayyim, ibid, I/204).

 

ISTINBAT

Istinbat means to deduce a decree or a reason that has not been determined by nass or ijma from the Quran and the texts of Sunnah through ijtihad.

The word istinbat is derived from the root "nabt", which lexically means to extract water from the ground or a well, to reveal something that is closed and hidden. (Ibn Manzur, Lisanul-Arab, VII, 410-412; Zabidi, Tajul-Arus V, 229-230)

A decree is made through methods like qiyas, istidlal and istihsan; and istinbat is made through ways of finding the reason like illah, sabr and taqsim and munasabah.   (al-Mawsu'atul-Fiqhiyya, Kuwait 1404/ 1984, IV, 111; Nizamuddin Abdulhamid, Mafhumul-Fiqhil-Islami, Beirut 1404/1984, s. 182). Istinbat is narrower than ijtihad, which means (for a mujtahid) to work with might and main in order to obtain the religious decree, in terms of scope, and wider than qiyas. (al-Mawsu'atul-Fiqhiyya, IV, 111; Hayreddin Karaman, İslâm Hukuku'nda İctihad, Ankara, (nd) III, 18)

Istinbat is similar to istidlal. Verse 83 of the chapter of an-Nisa indicates that qiyas and ijtihad (ra’y) is necessary when things about which there is no clear nass occur. There is no need for istinbat related to the issues about which there is nass. Decrees can be determined by nass and sometimes they are placed in nass; to reveal them with istidlal is called istinbat. (Jassas, Ahkamul-Quran, Beirut (nd), III, 183)

This verse also states that not all decrees of minor incidents were explained, that they can be obtained through istinbat, that istinbat is an evidence, that those who are not qualified to make istinbat have to ask those who know and that the Prophet (pbuh) was ordered to make istinbat.  (Elmalılı, Hak Dini, İstanbul 1979, II, 1403 - 1404)

Takhrij is also a kind of istinbat and it means to obtain a decree based on the methods and rules that the madhhab definitely accepts related to the issues about which madhhab imams did not express any decrees. (al-Mawsu'atul-Fiqhiyya, lV, 111)

In Islamic law, istinbat is based on the nass of the Quran and the Sunnah, which are in Arabic. It is not possible to understand those texts correctly and to deduce unerring decrees from them without knowing the types of words in Arabic and the state of the relationship between those words and their meanings. In addition, it is necessary to know the main purposes of Islamic law and the methods of compromising the evidences that seem to be contradictory. Besides, it is necessary to know the method and way of istinbat the Prophet (pbuh) used while interpreting the Quran and imposing new decrees. Thus, it is important to know the rules of istinbat that will be made from the hadiths of the Prophet and that will be determined. (Zakiyuddin Shaban, İslam Hukuk İlminin Esasları (translated by İbrahim Kâfi Dönmez), Ankara 1990. p. 263-264; Fahrettin Atar, Fıkıh Usûlü, İstanbul 1988, p. 169-170).

It is obligatory to know the rules of methodology about the language for deducing decrees for the interpretation of the nass written in Arabic. For, if these rules, each of which is a criterion to understand Arabic phrases, are not taken into consideration while interpreting nass, it will cause the law to be understood incorrectly, the decrees to be known incorrectly and the inability to understand which decrees to apply for various incidents; consequently, rights will be lost. For, a judge applies the law as he understands it. If his understanding is wrong or mistaken, the owners of rights will lose their rights, the people who are wrong will be right, the guilty people will be innocent and vice versa. (Abdulkarim Zaydan, al-Wajciz fi Usulil-Fiqh, Baghdad 1405/1985, p. 275 footnote). The rules introduced for deducing decrees from nass are related to the clarification of explanation (bayan at-tafsir). (Wahba az-Zuhayli, Usulul-Fiqhil-Islami, Damascus 1406/1986, I, 200-201)

Saffet KÖSE

 

MUJTAHID

Mujtahid is an Islamic jurisprudent, scholar and fiqh scholar that deduces decrees based on verses and hadiths. 

Ijtihad, which is derived from the word “jahd”, which lexicologically means strength, power and effort, means to work with might and main in order to obtain something. It is used in the sense of deducing decrees from verses and hadiths through qiyas and similar ways. A fiqh scholar who is qualified to deduce decrees from verses and hadiths is called a "mujtahid". (Zabidi, Tajul-Arus, II, 329; Shafii, ar-Risala, p. 477, al-Umm, VII, 275). Ijtihad is in the form of deducing decrees from religious evidences or it is related to the application of those decrees in social life.

In Islamic law, there is no need for ijtihad if religious decrees are based on clear evidences, that is, clear verses and hadiths or ijma (consensus). Majalla expresses it with the following principle: "There is no permission for ijtihad related to issue about which there are verses and hadiths." (item, 14) However, if the certainty or indication of nass is not clear or if issues whose solutions cannot be found in verses and hadiths appear, it is stated by the Prophet (pbuh) himself that it is necessary to act based on ijtihad (ra’y) when he sends Muadh b. Jabal as the governor to Yemen. The Prophet asked Muadh based on what he would decree in Yemen. Muadh said, "The Book of Allah." The Prophet (pbuh) said, "What if you cannot find a decree in the Book of Allah?" He said, "The Sunnah of the Messenger of Allah." He asked, "What if you cannot find a decree there?" Muadh said, "I will make ijtihad based on my view." Thereupon, the Messenger of Allah (pbuh) said, "Praise be to Allah, who made the envoy of His Messenger successful in a way that His prophet will be pleased with." (Tirmidhi, Ahkam, 3; Ahmad b. Hanbal, Musnad, V / 230, 236, 242; Shafii, al-Umm, VII/273) The number of mujtahids among the Companions is very high because they knew Arabic well and they understood what Allah and His Messenger meant very well due to being together with the Prophet (pbuh) for a long time. However, the number of mujtahids among the Companions from whom decrees and fatwas were reported is about one hundred and thirty. The fatwas of seven of them are so many as to form a separate book each. The Companions that are called Fuqaha-Sab'a are as follows: Hz. Umar, Ali, Aisha, Zayd b. Thabit, Abdullah b. Mas'ud, Abdullah b. Abbas and Abdullah b. Umar (Ibnul-Qayyim, I'lamul-Muwaqqiin, thq. M. Muhyiddin Abdulhamid, Egypt 1955, I/14 ff).

Hz. Umar encouraged Abu Musa al-Ashari to make qiyas and ijtihad in the letter he sent to him. He stated the following to Qadi Shurayh (d. 78/697) regarding the same issue:

"Make decrees by what you clearly understand from the Book. If you cannot know the whole book, decree with what the Messenger of Allah decreed. If you do not know all of them, decree with the decisions of the scholars that are on the true path. If you cannot know all of them, make ijtihad with your view and consult scholars and righteous people." (Shirazi, Tabaqat, p: 7; Ibnul-Qayyim, ibid, I/204)

There are certain conditions in order to deduce decrees from verses and hadiths and to solve the issues that necessitate ijtihad. These principles were determined during the period of the first mujtahid imams as the methodology of fiqh started to be written. We can list the qualifications that a mujtahid has to have as follows:

a) To Know Arabic

The scholars of fiqh methodology unanimously agree on it. For, the Quran was sent down with this language and the Prophet expressed the Sunnah with the same language. The power of a person who makes research in Islamic shari’ah to deduce decrees from nass is directly proportional to his knowledge of the secrets and subtleties of Arabic. Shatibi states the following regarding the issue:

"A person who is a beginner in understanding Arabic is also a beginner in understanding shari’ah. A person who is in the intermediate level in understanding Arabic is also in the intermediate level in understanding shari’ah. He has not reached the advanced level. A person who reaches the advanced level in Arabic reaches the advanced level in understanding shari’ah. Therefore, his understanding becomes hujjah (evidence) in shari’ah just like the understanding of the Companions and the scholars who understand the Quran truly becoming evidence. The understanding of the people who cannot reach the level of them about shari’ah is insufficient based on their level. The view of a person whose understanding is insufficient cannot be a hujjah and it is not accepted by others." (ash-Shatibi, al-Muwafaqat, IV,114)

However, a person who does not know Arabic can understand the principles and determine the field of application related to the issues that are dependent on a meaning or reason like maslahah (public interest) or mafsadah (evil deeds). Most of qiyas ijtihads are like that. (ash-Shatibi, ibid, IV, 162, 165)

The knowledge of Arabic of a mujtahid must include the subtleties of Arabic in general. For, the Quran forms the most fluent and accurate Arabic. Therefore, a person who will deduce decrees from verses has to know the rhetoric, eloquence and secrets of the Quran in order to reach the degree of understanding the decrees it includes.

b) To Have the Knowledge (Ilm) of the Quran

The Quran is the pillar of Islam and the source of religious decrees. The ilm of the Quran is vast. The one who knows it fully is the Prophet. Therefore, scholars say it is necessary to know the subtleties and properties of about five hundred verses that express decrees in the Quran in order to be a mujtahid. It is necessary to know the states of those verses as being amm-khass (general-specific), mutlaq-muqayyad (absolute-conditional), nasikh-mansukh (abrogating-abrogated) and their relations with the Sunnah. On the other hand, it is necessary to know the other verses of the Quran as a whole. For, the Quran is an indivisible whole. One can distinguish the verses of the Quran that express decrees from the others only by knowing the whole Quran.  

Scholars like Abu Bakr al-Jassas (d. 370/980) and Ibnul-Arabi (d. 543/1148) tried to explain the verses of decree in their works called "Ahkamul-Quran". Abu Abdillah al-Qurtubi (d. 671 H.) and as-Sabuni interpreted the verses of decrees in their works called "al-Jami' li Ahkamil-Quran" and "Tafsiru Ayatil-Ahkam" respectively.

c) To know the Sunnah

The scholars agree unanimously on this qualification too. According to those who do not accept that ijtihad can be divided, a mujtahid has to read all of the hadiths that included decrees of obligation, to understand their purposes and to know the properties of them. He has to know nasikh-mansukh, amm-khass and mutlaq-muqayyad of the Sunnah; in addition, he has to know the ways of the narration, chains of narrators and the level of strength of the narrations of hadiths.  

Many books were written about the narrators of hadiths like their biographies, and their states in terms of justice and memory. Sound hadith compilations were formed like Kutub as-Sitta; hadiths were classified based on their chains of narrators as many scholars wrote explanations for those compilations; and the disagreements of Islamic fiqh scholars related to some hadiths were shown. Those hadith works make it easy for mujtahids to decree by referring to them. It is not necessary to know all of the hadiths related to decrees by heart. It is enough to know their places, methods of referring to them and the narrations of those hadiths. (Abu Zahra, Usulul-Fiqh, p., 382 vd).

d) To Know the Issues that are Agreed and Disagreed

It is necessary to know the issues that are agreed unanimously along with the issues on which the Companions, Tabiun and the mujtahids that came after them disagreed. However, it is not necessary to memorize all places of ijma (unanimous agreement/consensus). It is enough to know whether there is ijma or disagreement about the issue that is searched. Along with knowing the methods and differences of the fiqhs of Madinah and Iraq, it is necessary to have the power to reason, understand and evaluate that will enable a mujtahid to compare what is true and what is not, and the things that are close and distant to nass. In fact, to study the views of great fiqh scholars that lived during the time of the Prophet and after that, and to make comparisons among them in terms of their evidences and tendencies will develop a person’s power of reasoning and ability of researching.

Books that explain the issues on which mujtahids agreed and disagreed and the reasons for disagreement were written. Ash-Shirazi’s (d. 476/1083) work called "al-Muhadhdhab" and the explanation Nawawi wrote about it, Ibn Hazm's (d. "456/1063) "al-Muhalla", Ibn Rushd's (d. 595/1199) "Bidayatul-Mujtahid" and Ibn Taymiyya's (d. 728/1327) "al-Fatawa" are among those works.

e) To Know Qiyas (Analogy)

Ijtihad necessitates knowing qiyas with all forms and methods. According to Imam Shafii, ijtihad consists of qiyas only. To know the method of qiyas enables a person to learn the principles of decree and to choose the closest nass related to the issue. To know the following three things is necessary for qiyas:

1. To know the original decree on which qiyas will be based. This must be a verse, hadith or ijma; it is also necessary to have detailed information about them.

2. To know the rules and principles of qiyas. For instance, it is not possible to make qiyas based on nass that is definitely known to express a certain and specific state. It is necessary to determine the reason for the original decree on which qiyas will be based and to search whether the same reason is valid in the new issue.   

3. To know the qiyas methods of the previous mujtahids. Al-Isnawi (d. 772/1370) states the following: "To know qiyas is a rule of ijtihad and way that leads to explanation of numerous decrees." [Al-Isnawi, Sharhu Minhajil-Usul, III, 310 (Next to Ibn Amir's Taqrir) Egypt 1316; Shafii, ibid, p., 477]

f) To Know the Purposes of Decrees

The purposes of Islamic decrees can be understood from the whole nasses, not from a certain nass. The main purpose for all those decrees is to be mercy for people. The following is stated in a verse: "We sent thee not, but as a Mercy for all creatures." (al-Anbiya, 21/107) It is a result of this mercy that difficulties and troubles are abandoned and ease is preferred in Islam. Some difficulties that are ordered aim to eliminate big losses. That jihad was rendered fard is like that. As a matter of fact, The following is stated in a verse:

"Did not Allah check one set of people by means of another, there would surely have been pulled down monasteries, churches, synagogues, and mosques, in which the name of Allah is commemorated in abundant measure. Allah will certainly aid those who aid his (cause);- for verily Allah is full of Strength, Exalted in Might, (able to enforce His Will)." (al-Hajj, 22/40)

While giving fatwas based on maslahah (public interest), it is necessary to distinguish between real public interest and the public interest that originates from the delusions caused by the desires of the soul and the body. Thus, the ability to remove harmful things, to attain useful things and to prefer the things that are useful to all people, in other words, the ability to prefer public interest to individual interest will develop.

g) To Have a Correct Understanding and a Power of Good Evaluation

A mujtahid has to have the ability to distinguish true ideas from the wrong ones. This can be achieved by a correct understanding and a sharp foresight. 

h) To Have Good Intentions and a Sound Creed

The religion of Islam is a religion that can be understood only by people whose hearts are enlightened by belief and sincerity. A person who has a heretic creed pursues bid’ahs and the desires of his soul; he cannot tend toward nass with an impartial heart. Bad intentions make the thought bad too. Therefore, great mujtahids became known for their sincerity and taqwa (piety) before they became famous in fiqh. A sincere person accepts the truth no matter where he finds it; he does not act bigotedly. All of the great imams said, "Our view is right but it may be wrong. The view of others is wrong but it may be right." (Abu Zahra, ibid, p. 388, 389; İslâm'da Fıkhî Mezhepler Tarihi, Translated by. Abdulkadir Şener, Ankara 1968, 1969, p. 125, 126).

Those are the qualifications that a mujtahid has to have according to Islamic fiqh scholars. A mujtahid who has the qualifications mentioned above is called an "absolute or independent mujtahid".

Scholars of fiqh methodology divide mujtahids into seven levels:

1) Mujtahids in Shari’ah: Ja'farus-Sadiq, Muhammad al-Baqir, Abu Hanifa, Imam Shafii, Malik, Ahmad b. Hanbal, etc.

2) Muntasib mutlaq (absolute) mujtahids: Abu Yusuf, Muhammad, Zufar, al-. Muzani, Abdurrahman b. Qasim, etc.

3) Mujtahids in Madhhabs: Tahawi, Karhi, Sarakhsi, Isfarayini, Shirazi, etc.

4) Mujtahids who can prefer: Some scholars of methodology regard this the same as the previous level.

5) Mujtahids with istidlal: They made explanations like "This view is sounders in terms of narration and stronger in terms of evidence."

6) The level of Hafizes: They imitate the previous ones and are regarded as evidence in knowing the preferences of the previous ones.

7) The level of Muqallids (Imitators): They can understand fiqh resources but they cannot prefer between different views and narrations.

To accept the view of a mujtahid without knowing his evidences from the Quran, Sunnah and ijma and to act accordingly is called "taqlid (imitation)"; to adopt the view of a mujtahid by looking at, learning his evidence and agreeing with his ijtihad is called "ittiba (following)". According to ash-Shawkani, (d. 1250/1832) those who did not reach the level of ijtihad among the Companions, Tabiun and Tabau Tabiin, did not imitate a certain mujtahid; they followed them by asking them about their evidences related to the issue they wanted to ask. Taqlid started after those generations. This state forces the scholars to learn the evidences and it becomes possible to discuss about strong and weak evidences. In order to do this, it is necessary to study the basic works where evidences are mentioned and to show the evidences on which decrees are based in the books of Islamic law. Consequently, researchers will find the opportunity to think about and evaluate the revelation, Sunnah and ijma.   

(Hamdi DÖNDÜREN)

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