The subject of Ijtihad occupies a recurring theme across much contemporary Islamic literature. A tool employed by Islamic jurists, it holds the key to Islam's continual relevance and to defining an Islamic approach for solving problems in the 21st Century.
“Islam has long vanished from the stage of history, and has retreated into oriental ease and repose”, were the words of the German philosopher George Friedrich Hegel in the middle of the nineteenth century. But as Martin Kramer, senior associate of the Moshe Dayan Centre at Tel Aviv University, remarks at Hegel's 'endist' predictions, "The persistent refusal of Islam to do just that remains one of the principal flaws of 'endism,' from Hegel to this day…" It's certainly true, despite emerging fifteen centuries ago, Islam features considerably in current global politics and has far from vanished. The phenomenon of movements advocating a 'revival' of seventh century Islam can be perplexing and their stated goal – an Islamic rule – lends itself to a number of possible criticisms. Among the most obvious is the question of Islam's ability to tackle issues in a world vastly different to the one that first received it. As Olivier Roy describes in his book 'The Failure of Political Islam', "The eruption of Islam into the political landscape is often perceived as an anachronism; how is it possible, late in the twentieth century, to return to the Middle Ages?"
It is a genuine challenge. How does Islam deal with the rapid advances in science and technology, institutions of the post-modern world or social, economic and political trends? If Islam were unable to handle the complexities of contemporary life, it may indeed produce an outdated medieval system, causing its adherents to deny the fruits of current modernity.
Time alone, however, is not enough to render an idea invalid. The revival of ancient Greek philosophy, art and culture was termed a 'renaissance' in Europe. Many of the foundations of the West's contemporary intellectual and political tradition are associated with three millennia-old discourses still considered valid in the twenty first century. Indeed, a number of English legal statutes still in use, such as the Treason Act of 1351, date back many centuries; English common law emerged in the Middle Ages, taking from Roman law and influenced by Norman and Saxon custom; the US Bill of Rights, passed in 1791, reflects the guarantee of due process given by the Magna Carta in1215 and the English Bill of Rights of 1689. Even if only by way of example, it appears that Western scholars and jurists are willing to accept that old ideas can have a place in – indeed define – the modern world, and so comparably, the fact that Islam emerged in seventh century Arabia is not in itself cause to suggest its inapplicability.
Some propose that Islam's continual relevance can only come through its reform. However, the keyword for Islam's applicability in the twenty first century is not reform (islah), but the Islamic concept of Ijtihad. While reform implicitly discounts the validity of an idea through suggesting that it is in need of alteration, Ijtihad tackles contemporary problems using Islam's original principles and rules; it does not demand their alteration but their application.
Due to the intellectual decline that has affected the Ummah the subject of Ijtihad has become confused amongst many today. Some believe that the doors of Ijtihad are closed and that it is impossible, others have broken the doors altogether and propagate the application of Ijtihad in all matters including those which definitively established (Qat’i) such as the prohibition of Riba (usury), the obligation of the Khimar (headscarf) and Jilbab (outer garment) for the woman, the obligation of ruling by Islam under a Khilafah state and the prohibition of nationalism. Therefore it is necessary to clarify the reality of Ijtihad, its reality, conditions and upon which issues it is applicable.
The Islamic Shariah is applicable for all times and all places
By studying the history of humanity, it is evident that any nation builds its material achievements upon a specific intellectual foundation. This foundation sustains and advances the nation's material achievements, even in the face of severe problems or crises. On the other hand, if a nation lacked an intellectual foundation, its achievements would wither away and it would be unable to recover from any setbacks that confront it. It would lose its momentum altogether and cease to exist as a civilization. This intellectual foundation is of the utmost significance, as it serves as the basis for any civilization and provides a nation with its point of view about life, goals, methodology, and a reference for problems and issues that emerge in the course of a society. When the intellectual foundation is adopted and implemented, it engenders creativity and an effective way of thinking.
The Muslim Ummah has a lengthy and rich history with the Islamic 'Aqeedah as its intellectual foundation. Today, the Muslim Ummah is living in decline, whether in the area of economics, politics, social order, government, morals, etc. It becomes important to scrutinize this set of conditions carefully so as not to mistakenly attribute these aspects as the reason for the decline. Since, this may cause us to direct our efforts away from the correct solution by addressing the symptoms rather than the root problem.
This apparent state of decline did not occur in a sudden manner or due to minor problems. The Ummah abandoned Islam as its reference and intellectual basis. We began viewing Islam as a set of rituals and a historical heritage, with no relevance to life. This was a result of many factors that accumulated over many centuries. Some of which are:
1. The Arabic language was ignored both in understanding and carrying Islam from the beginning of the seventh century A.H. When the Mamluks who were non-arab gained authority of the Islamic state, they neglected the Arabic language and the intellectual and legislative side of ruling. After it the ‘Uthmani State took over control of most of the Islamic world. In the 9th century Hijri (15th century CE), it also concentrated its efforts on the conquests and neglected the Arabic language despite the fact that it is essential in order to understand Islam and one of the conditions necessary in order to effect Ijtihad.
2. Foreign philosophies, such as the Indian, Persian and Greek had an impact on some Muslims, inducing them to commit attempts to reconcile between Islam and these philosophies, despite the complete contradiction between the two. These conciliatory attempts led to wrong interpretations and explanations that alienated some Islamic facts from the minds or at least weakened their comprehension.
3. The intellectual invasion headed by missionaries in the 17th century.
4. The political invasions during the 19th century.
5. The cultural invasion by the West
In the 5th century after Hijra, the doors of Ijtihad were closed, resulting in a devastating impact upon the Muslim Ummah, especially in the long term. Closing the doors of Ijtihad stripped the Ummah from its ability to extract rules to solve newly emerging problems such that fatawa were given proclaiming that the telephone was haram as it was linked to the whispers of Shaytan and that using the printing press to print the Quran was forbidden. The accumulation of unsolved problems resulted in the weakness in implementing Islam and caused Muslims to start doubting Islam's ability to solve contemporary problems, especially after the industrial revolution that occurred in the West. By the beginning of the 20th century, many attempts were made or proposed to change the situation of the Muslim Ummah. These efforts focused on addressing the symptoms or resorting to other ideologies and ideas. One such effort was to make Islam relevant by viewing the Islamic Fiqh (jurisprudence) as changeable and adaptable to the changing society. This distorted understanding has led some to view dynamism of Fiqh from this perspective which is incorrect and completely contradicts the meaning of Fiqh. So, what needs to be addressed are the mechanisms in Islam which enable it to be relevant and applicable until the Day of Judgment.
Before delving into the subject of Ijtihad which is one of the main processes in Islam that enable it to apply to any new reality that we face, it is important to understand some other basic concepts which relate to the applicability of Islam to all times.
Islam is relevant in the coming of the 21st century in the same manner it was in the 7th century. Human beings can form a system for life. However, such endeavours will never be free of errors, inconsistencies, and will lack relevancy for all peoples at all times. The manmade system would be able to address specific problems in time, place, and for specific people under certain conditions. However, it will never be able to solve all the problems for all humanity at all times under every condition. All of this is due to the nature of human beings who are limited in their abilities, being influenced by their own needs and surroundings. A system revealed from the Creator surpasses all of these limitations. Allah (swt) states:
“Know you not that it is Allah to whom belongs the dominion of the heavens and the earth? And besides Allah you have neither any Wali nor any helper.” [TMQ 21:107]
“And We have not sent you (Mohammed) except as a giver of glad tidings and a warner to all mankind, but most men know not.” [TMQ 34:28]
“And (remember) the Day when we shall raise up from every nation a witness against them from amongst themselves. And we shall bring you (o Mohammed) as a witness against these. And We have sent down to you the Book as an exposition of everything, a guidance, a mercy, and glad tidings for those who have submitted themselves.” [TMQ 16:89]
Islam's legislative rules and principles are founded on a doctrine that views problems as extending from the needs of human beings as human beings. That is to say, not in their racial, regional or tribal context, or as a reaction to a particular social condition; or as Muslims or non-Muslims, but as human beings. It is only a specific doctrine in as much as it is specific to all human beings. It is a timeless conception of the human condition, for it is not man's nature that changes with the passage of time, but his material circumstances; the complexity of material and technology, which develop through continuous scientific endeavour.
Man's innate needs, whether basic organic requirements such as the need for food, clothing and shelter or basic instinctual drives such as survival, justice and security, remain consistent. Furthermore, the needs that extend from this basic constitution such as the need to regulate political, social and economic relationships individually or collectively are also seen to exist across the expanse of human history. Though their manifestations may change, it could not be said that new needs have manifested or that the existing ones always increase, either in complexity or propensity. New world-views, thoughts and beliefs may develop over time and emerge at various points in human history, but these too do not represent a shift in man's fundamental nature, intellect or needs. Since the Islamic system addresses problems as demands extending from this consistent human nature, it is continually applicable and a consistent source of solutions for tackling human problems.
Indeed, it is not thoughts, but things that time may render obsolete. An idea is invalidated by identifying its intellectual shortcomings whereas material things are replaced and considered obsolete as scientific and engineering progress produces increasing material sophistication.
The Shariah texts have the capacity to deal with any problem
The Shariah texts, whether from the Kitab or from the Sunnah are the best texts for the field of thought, the widest in scope for generalisation, and the most fertile ground to cultivate general principles. They are suitable as legislative texts for all peoples and nations. As for being the best texts for the field of thought that is obvious from the way they cover all types of relationships, whether between individuals or between the state and citizens, between states, peoples and nations. However new and multifarious these relationships may be, it is possible to deduce rulings for them from these Shariah texts. As for the best scope for generalisation, that is clear from their sentences, words, style of expressions in terms of covering the wording (Mantuq), understanding (Mafhum), meaning (Dalala) and justification (Ta'leel) and analogy (Qiyas) to the 'illah (reason) behind a rule, all of which makes the inference feasible, permanent and inclusive. This insures they are able to encompass everything, being complete and general. As for it being the most fertile ground to cultivate general principles, this is clear from the abundance of general meanings which these texts contain. This is because the Quran and the Hadith have come along broad lines even when focussing on specific details. The nature of these broad lines is that they give the Kitab and Sunnah general meanings under which collective and detailed issues can be specified, and from this arise the abundance of general meanings. These general meanings contain real, perceptible issues and not hypothetical ones. At the same time they are there to solve the problems of mankind, not just for specific individuals i.e. to clarify the rules for the actions of man, whatever the instinctual manifestation that pushed them to the performance of that action. That is why these texts are applicable to diverse meanings and rulings.
This is the reality of the Shariah texts from the legislative angle. When we recognise these texts have come for all mankind and are legislation for all nations and peoples, it becomes clear that the presence of Mujtahidin is essential – to understand these texts legislatively and then apply them in all aspects and adopt the Shariah rule for each incident that occurs. New things happen every day that are too numerous to mention. The Mujtahid must deduce the rule of Allah (swt) for everything that happens because it is not permitted for events to happen and be left as they are without knowledge of the rule of Allah (swt).
The Mujtahid exerts his utmost effort to derive the rule. If he is correct in his Ijtihad then he has two rewards and if he makes a mistake he will have one. The Prophet (saw) said: “If a judge passes judgment and makes Ijtihad and he is right then he will have two rewards. And if he makes a mistake he will have one.” [This hadith is agreed upon (muttafaq a’alayh) from the hadith of ‘Amr b. al-‘Aas and Abu Hurayrah, Bukhari: 7352, Muslim: 1716.]
Bukhari narrated from Aisha that when the Prophet (saw) returned from the battle of khandaq (ditch) and laid down his arms and took a bath. Jibrail came and said “You have laid down your arms? By Allah, we angels have not laid them down yet. So set out for them.” The Messenger (saw) asked, “where to go?” so Jibrail pointed towards Banu Quraiza. The Prophet (saw) instructed the mu`azzin to give azan and so he announced to the people: “Whosoever hears and obeys he should not pray Asr except in Bani Qurayzah.” So they headed towards the fortresses of Bani Qurayzah, however they had different understandings of what the Messenger (saw) had said to them. Some took the literal meaning and they did not pray until they reached Bani Qurayzah after Maghrib. And others took it to mean that they should go there quickly, so they prayed Asr in Madinah or on the way. When the Messenger (saw) heard about this he accepted the action of all them. [Bukhari: 894, 3810 Muslim: 3317]
The saying of the Prophet (saw) when he sent Mu’az as Qadi to Yemen: “By what will you pass judgement?’ He said: By the Book of Allah. The Prophet (saw) said: If you do not find it there? He said: By the Sunnah of the Messenger of Allah (saw) .He said: And if you do not find it ? He said: 'I will exercise my own ijtihad’ He (saw) said: ‘Praise be to Allah who has made the messenger of the Messenger of Allah to accord with what Allah and His Messenger loves.” [Ahmad: 5/230, Abu Dawud:3592, at-Tirmizi:1327]
The Sahaba have formed an Ijma (consensus) that the Mujtahidin are not accountable in the Shariah rules regarding speculative Fiqhi (jurisprudence) issues. As for definite issues such as the obligation of worship, prohibition of fornication and murder and so on there is no requirement for Ijtihad or dispute with respect to them. That is why the Sahaba disagreed on speculative issues but never on the definite issues.
Concerning speculative issues the Mujtahid is correct in what he has arrived at by his Ijtihad even if he is liable to make a mistake in his opinion. However, being correct does not mean that he has hit the target because this does not agree with the reality of a speculative rule since the Messenger (saw) called him a Mukhti' (one who has made a mistake). What is meant by saying that the Mujtahid is right is that it does not rule out the possibility of making mistakes. Describing someone who makes a mistake in Ijtihad as right (Musib) is in the meaning that the text rewards the Mujtahid even when he makes a mistake i.e. when he misses what was intended by the Lawgiver. Therefore, every Mujtahid is right according to what he thinks is right but this does not rule out the chance that a mistake could have been made.
Misconceptions of Ijtihad
As mentioned earlier different extremes exist regarding the view of Ijtihad, some believe the doors of Ijtihad are closed whereas others have broken the doors of Ijtihad altogether. The following are some of the key misconceptions that have crept into the minds:
a) The doors of Ijtihad are closed i.e. it is impossible and not permitted to undertake Ijtihad today.
b) To undertake Ijtihad one has to be similar in knowledge to Imam Malik ibn Anas (d. 796) and it is not permissible or possible for someone with less knowledge than him.
c) The scope of Ijtihad includes most things including definitive matters such as the prohibition of Riba (usury) and the prohibition of having nation states with a multiplicity of rulers in the Muslim world. It allows for definitive Islamic rules to be altered in order to apply to the modern age.
d) Ijtihad is only personal reasoning and not the hukm of Allah i.e. it is the reasoning of an individual and therefore cannot be a shariah rule.
e) Ijtihad only occurs in those areas where the Islamic evidences have not discussed directly i.e. upon new issues.
f) Ijtihad is an individual obligation (Fard Ayn) and therefore Taqleed (following an opinion of a Mujtahid) is prohibited (haram).
In order to clarify these misnomers we must understand the subject of Ijtihad from its root, this means its definition and then understand its scope, evidences, reality and limitations.
Definition and scope of Ijtihad
Linguistically Ijtihad in the Arabic language means to make the utmost effort to realise a matter that entails a measure of discomfort and difficulty. It comes from the root word jahada (stuggle).
The scholars of Usul ul Fiqh gave it a specific definition as the linguistic meaning alone is not accurate when discussing the shariah rules. The great scholars of Usul such as Abu al-Husayn 'Ali otherwise known as al-Amidi (d. 631 A.H.) and Mohammad bn Ali Al-Shawkani (d.1255A.H.) defined it as “the total expenditure of effort made by a jurist in order to infer, with a degree of probability, the rules of Shariah from their detailed evidence in the sources.” [Amidi, Ihkam, IV, 162; Shawkani, Irshad, p. 250.]
Others add, “in a manner the Mujtahid feels unable to exert any more effort” to this definition.
This Usuli definition of Ijtihad was derived from the evidences which discuss Ijtihad and establish its obligation such as the ahadith mentioned earlier, these will be elaborated in a following chapter. Unfortunately some today believe that Ijtihad is a mere personal reasoning of an individual and have abandoned this definition of the Usuli scholars which has been established for centuries. The consequence of this is that people mistakenly think that Islam doesn’t contain a process to derive rules for modern problems. Therefore when talking about Ijtihad it is paramount that we refer to the established Usuli definition rather than how the term is used today.
In order to understand the scope of Ijtihad it is necessary to understand the types of ahkam shariah (divine rules) in order to ascertain to which area it applies.
It is unanimously agreed that there are two types of ahkam shariah:
Qat’i (definitive), such as the obligation of the five times daily Salah (prayer), the prohibition of Riba (usury) and the obligation of ruling by whatever Allah (swt) has revealed. These types of rules are definitive as they are established by Qat’i Thuboot (definitive transmission) and Qat’i Dalalah (definitive meaning).
Zanni (speculative), either they are established from Zanni Thuboot (speculative transmission), Zanni Dalalah (speculative meaning) or both. These include rules such as whether intention is a condition for Wudhu (ablution), whether it is conditional for the Khalifah to be from the lineage of the Quraish and whether leasing agricultural land is prohibited.
A text which is definitive text in meaning is one which is clear and specific; it has only one meaning and admits of no other interpretations. An example of this is the text on the entitlement of the husband in the estate of his deceased wife, as follows: “In what your wives leave, your share is a half, if they leave no child" [TMQ al-Nisa', 4:12]. Other examples are:
“The adulterer, whether a man or a woman, flog them each a hundred stripes” [TMQ al-Baqarah, 2:196]
“Those who accuse chaste women of adultery and fail to bring four witnesses [to prove it], flog them eighty stripes” [TMQ al-Nur, 24:4]
The quantitative aspects of these rulings, namely one half, one hundred, and eighty are self-evident and therefore not open to interpretation.
The second type of ahkam shariah are those which are considered speculative (Zanni), as either they are established from Zanni Thuboot (speculative transmission), Zanni Dalalah (speculative meaning) or both.
Ijtihad does not occur except in the ahkam shariah whose daleel is speculative (Zanni) and not when the rule is decisive (Qat’i). [Shawkani, Irshad, p. 250; Zuhayr, Usul, IV, 223-25; Badran, Usul, p. 471.] Therefore there can be no Ijtihad the definitive rules such as those mentioned. To reject these ahkam or any others established through Qat’i Thuboot and Qat’i dalalah is Kufr (disbelief) as it would be a rejection of the definitive revealed rule from Allah (swt). Thus those who reject that the five times daily prayer (Salah) are fara’id (obligations) or that ruling by whatever Allah is revealed is obligatory undoubtedly become Kuffar (disbelievers) even if they were great scholars (Ulema) who had committed the entire Quran and all the ahadith (narrations) to memory.
An example of a text with a Zanni meaning is the verse “God will not call you to account for what is futile (al-laghw) in your oaths, but He will call you to account for your deliberate oaths . . .” [TMQ al-Ma’idah, 5:92]. The text then continues to spell out the expiation, or kaffarah, for deliberate oaths, which consists of either feeding ten hungry persons who are in need, or setting a slave free, or fasting for three days.
The Ulema have differed on the definition of futile, as opposed to deliberate, oaths, which occur are mentioned in the verse. According to the Hanafis, a futile oath is one which is taken on the truth of something that is suspected to be true but the opposite emerges to be the case. The majority have, on the other hand, held it to mean taking an oath which is not intended, that is, when taken in jest without any intention. Similar differences have arisen concerning the precise definition of what may be considered as a deliberate oath (yamin al-mu'aqqadah). There is also disagreement as to whether the three days of fasting should be consecutive or could be three separate days. Hence the text of this ayah, although definitive on the basic requirement of kaffarah for futile oaths, is speculative as to the precise terms of the kaffarah and the manner of its implementation.
A Quranic injunction may simultaneously possess a definitive and a speculative meaning, in which case each of the two meanings will convey a ruling independently of the other. An example of this is the injunction concerning the requirement of ablution for prayers which reads in part “ …and wipe your heads” [TMQ 5:6]. This text is definitive on the requirement of wiping (mash) of the head in Wudhu, but since it does not specify the precise area of the head to be wiped, it is speculative in regard to this point. Hence we find that the jurists are unanimous in regard to the first, but have differed in regard to the second aspect of this injunction. [Badran, Usul, p. 66.]
When it comes the area in which Ijtihad is permitted it is important to realise that it does not occur after a brief look at the shariah texts, rather it means that the Mujtahid struggles to his utmost such a manner that the jurist feels an inability to exert himself further in order to derive the hukm of Allah. If the jurist has failed to discover the evidence which he was capable of discovering, his opinion is void. [Ghazali, Mustasfa, II, 102; Amidi, Ihkam, IV, 162.]
Therefore if one claimed to have made Ijtihad upon an issue after only studying one text related to it and ignored all other relevant texts even though they were readily available, this would not be considered legitimate Ijtihad.
The definition of Ijtihad itself clarifies a misconception that it is only a personal reasoning and not the hukm of Allah. Often Western thinkers refer to Ijtihad in this manner as if it is only a product of the mind and nothing to do with law of Allah. It is not just a personal reasoning of a jurist rather it is an extraction of the hukm of Allah from the sources of shariah. To believe that it is only a personal reasoning is dangerous as it infers that it is a product of the mind alone like in Western legislation. For example the rules of divorce in Western legislation completely differ from the rules of divorce in Islam, as the West believes the mind is a source of legislation whereas in Islam we apply the mind in order to understand the revelation of the Creator.
The scope of Ijtihad does not include the matters of Aqeeda (belief) as it is not allowed to do Ijtihad in ‘Aqeedah from the Usuli meaning. This is because the ‘Aqeeda is definite and decisive and cannot be taken except from the definite daleel (evidence) and it is prohibited to take it from the speculative evidence. Therefore there can be no Ijtihad regarding the belief in angels, the day of judgement, jannah (paradise), jahannum (hell) and the like.
He (swt) says: “And verily guess is no substitute for the truth.” [TMQ 53:28]
And He (swt) says: “Verily, those who dispute about the ayat (proofs, evidences, verses) of Allah, without any authority having come to them, there is nothing else in their breasts except pride (to accept you [Muhammad (saw)] as a Messenger of Allah and to obey you) They will never have it (i.e. the Prophethood which Allah has bestowed upon you).” [TMQ 40:56]
And He (swt) said: “They have no (certain) knowledge. They follow nothing but conjecture. For surely; they killed him not (‘Isa).” [TMQ 4:157]
"Do you have Ilm for that which you claim so that you provide us with? You follow nothing but conjecture (Zann)." [TMQ 6:148]
"These are nothing but names which you have devised, you and your fathers, for which Allah has sent down no authority. They follow nothing but conjecture and what their Nafs desire. Even though there has already come to them the Guidance from their Rabb" [TMQ 53:23]
Jalaluddin as-Suyuti, a Mujtahid Imam of the Shafi madhab commented on this verse, that the people had zann (conjecture) which is opposed to knowledge (ilm) i.e. certain knowledge. He also stated that Allah had sent down definitive proof (Burhan Qat’i) for the truth of the Islamic Aqeeda. [Tafseer al Jalalayn page 627. It is stated in Reliance of the Traveller Ahmed ibn Naqib al misri (ra) (769/1368) Book of Qada (Judiciary)]
In all of these and other ayaat (verses) to do with beliefs Allah (swt) censures those who take the beliefs through conjecture (Zann) and decisively prohibits them from this.
Since Ijtihad, according to its definition, relates to Zanni evidences then it does not occur in beliefs.
It is incorrect to say that if the mujtahid makes a mistake then he gets one reward and hence there is no harm in making Ijtihad in ‘Aqeedah because he will be rewarded if he makes a mistake. This cannot be said because the one who makes a mistake in ‘Aqeedah is not rewarded or excused, rather he is sinful and he will be going astray even if he had exerted all his effort and energy he will not be safe. This is because such effort does not give him anything (definite) and he will have no excuse to save him from the punishment of Allah.
The Ulema are in agreement that in regard to the essentials of Aqeeda, such as the oneness of Allah (tawhid), His attributes, the truth of the Prophethood of Muhammad, the hereafter, and so on, there is only one truth and anyone, whether a mujtahid or otherwise, who takes a different view automatically renounces Islam. [Shawkani, Irshad, p. 259]
Therefore people such as the followers of Gulam Ahmad Mirza Qadian who believe he was a Prophet and Salman Rushdie who defamed Muhammad (saw) are definitely Kafir (disbelievers) and cannot be called Mujtahids as all.
The need for Ijtihad in every age
Allah (swt) addressed the whole of mankind through the Prophethood of our master Muhammad (saw). He (swt) said:
“Say (O Muhammad (saw)): “O mankind! Verily I am sent to you all as the Messenger of Allah…’’ [TMQ 7:158]
“O mankind! Verily, there has come to you a convincing proof (Muhammad [saw]) from your Lord” [TMQ 4:174]
“O mankind! Verily, there has come to you the Messenger (Muhammad [saw]) with the truth from your Lord.” [TMQ 4:170]
And He (swt) addressed the people and the Muslims with the Ahkam of Islam. He (swt) said:
“O mankind! Fear your Lord and be dutiful to Him! Verily, the earthquake of the Hour (of judgment) is a terrible thing.” [TMQ 22:1]
“O mankind! Be dutiful to your Lord, Who created you from a single person…” [TMQ 4:1]
“O you who believe! Fight those of the disbelievers who are close to you, and let them find harshness in you..” [TMQ 9:123]
“O you who believe! Approach not As-Salat (the prayer) when you are in a drunken state.” [TMQ 4:43]
“O you who believe! When you go (to fight) in the Cause of Allah, verify (the truth)…” [TMQ 4:94]
“O you who believe! Stand out firmly for justice, as witnesses to Allah, even though it be against yourselves…” [TMQ 4:135]
From these verses and others similar we understand that Allah (swt) has addressed humanity directly. Therefore for the one who has heard the address of the Legislator, Allah (swt) – it becomes incumbent on him to believe in it and understand it. It also becomes incumbent on him to act upon it, because it is Hukm Shar'ai (Shariah rule). So in principle a Muslim should understand the Hukm (rule) of Allah from the speech of the Legislator directly. This is because the speech has been directed at all people by the Legislator and not only at the Mujtahidin or the 'Ulama but all the Mukallafin (those who are legally responsible). Thus it became an obligation on the Mukallafin to understand this speech so as to be able to act upon it, since it is impossible to act upon the speech without comprehending it. Therefore, the inference (Istinbat) of Allah's Hukm became Fard on all the Mukallifin i.e. Ijtihad became Fard on all the Mukallafin (legally responsible). Consequently, the basis of a Mukallaf (legally responsible) should be that he adopts the Hukm of Allah himself from the speech of the Legislator because he has been addressed by this speech.
However, the reality of the Mukallifin (legally responsible) is that there is a disparity in their understanding and comprehension and in their aptitude for learning. They also differ in terms of knowledge and ignorance. Therefore, it is impossible for all of them to deduce Shar’ai rules from the evidences i.e. it is impossible for all Mukallafin to be Mujtahidin. Since the objective is to understand the speech and act upon it then the understanding of the speech i.e. Ijtihad is Fard on all the Mukallafin (legally responsible). However since it is impossible for all Mukallafin to understand the address for themselves due to the disparity of their understanding and the disparity in learning, then the obligation of Ijtihad becomes one of sufficiency ('ala al-Kifaya). If some undertake it the rest are absolved of the sin. Therefore, it became obligatory on those Muslims legally responsible that there should be Mujtahidin amongst them who would derive the Shar’ai rules. There is a similarity in this respect to other sciences, not everyone can become a doctor, physicist or chemist due to the disparity of people’s aptitude for learning.
The reality of the Mukallafin and the Hukm Shar'ai means that there would be two categories amongst the Muslims: the Mujtahidin and Muqallidin. This is because the one who adopts the Hukm himself directly from the evidences is a Mujtahid, and the one who questions the Mujtahid about a Hukm Shar'ai is a Muqallid; irrespective of whether or not the questioner asked about the Hukm to learn and act upon it, to learn and teach it to others or just to learn it. The Muqallid is considered as one when he asks someone who is not a Mujtahid but knows the Hukm Shar'ai and is able to tell others, whether the one who was asked is knowledgeable or just a layman. Thus, they are all followers (Muqallid) of others in this Hukm even if they do not know the one who deduced the Hukm, because the Mukallaf is required to adopt the Hukm Shar'ai and not follow any particular person. Being a Muqallid means he has adopted a Hukm Shar’ai, which he did not deduce himself. It does not mean he followed a particular person, since the subject matter is the Hukm Shar’ai and not the person. The difference between the Muqallid and the Mujtahid is that the Mujtahid deduces the Hukm Shar’ai from the Shariah evidence himself and the Muqallid is the one who adopts the Hukm Shar’ai irrespective of whether or not he knew the one who derived it, as long as he trusts the Hukm to be a Shariah rule. It is not a permissible Taqleed to adopt the opinion of any person as a personal opinion or the opinion of such and such scholar, thinker or philosopher without it being derived from the Islamic evidences. None of this is legitimate Taqleed. It is tantamount to adopting something other than Islam and this is prohibited by the Shariah. Also, Allah has ordered us to adopt from the Messenger Muhammad (saw) and not from anybody else whoever he may be. He (swt) said:
“And whatsoever the Messenger (Muhammad [saw]) gives you, take it, and whatsoever he forbids you, abstain (from it).” [TMQ 59:7]
A prohibition has been mentioned with regards to adopting an opinion originating from the peoples own minds without being based on the Islamic evidences. In the Hadith in Sahih of Bukhari, on the authority of 'Urwa b. al-Zubayr who said: 'Abd Allah b. 'Amr b. al-'As overcame us with proof. I heard him say: “Allah will not deprive you of knowledge after he has given it to you, but it will be taken away through the death of the learned men (Ulema’a) with their knowledge. There will remain ignorant people who, when consulted, will give verdicts according to their opinions whereby they will mislead others and themselves go astray.” i.e. they give Fatwas according to their own opinions which are not derived from the Islamic evidences. The opinion that has been deduced from the Islamic evidences is not considered as an opinion originating from the one who deduced it, on the contrary it is considered as a Hukm Shar’ai. As for what is regarded as mere opinion, it is just hearsay which emanates from a person. That is why the Messenger (saw) called it a Bid'aa (innovation). In the authentic Hadith the Prophet (saw) said: “The best speech is the Book of Allah and the best guidance is the guidance of Muhammad (saw). And the evil matters are the newly invented issues and every Bida’a (innovation) is a misguidance.” [Muslim]
The 'newly invented issues' are the Bida’a (innovations), they are whatever contradicts the Kitab, Sunnah or Ijma as-Sahaba (consensus of the companions) in terms of the Ahkam whether by action or speech. Thus the Taqleed allowed by Shariah is for the person unable to deduce Hukm Shar’ai themselves to ask the scholar about the particular Hukm Shar’ai so as to learn and adopt it. To summarise, it is allowed for anybody unaware of a Hukm Shar’ai to ask one who does know the Hukm so he may learn and take it. The subject and evidences for the permissibility of Taqleed are elaborated further in the section concerning Taqleed.
The fact that Ijtihad is an obligation of sufficiency (fard kifaayah), means that no age should be devoid of the presence of a mujtahid, otherwise the Muslims will be sinful. If one or more mujtahid is present then the sin is removed from the Muslims of that age and this is proven from two angles:
Firstly: The texts of the Islamic shariah requires the Muslims to undertake Ijtihad because these texts did not come in an elaborate manner. Even the ones that did come in detail regarding some matters did not cover all the details with a definite text. For example, the ayat of inheritance have come in a detailed manner. However in terms of partial rules they still require scrutiny and deduction such as the issue of Kalaalah and Hajab. The Mujtahidun take the view that the child (Walad) whether male or female, takes precedence in inheritance over the brothers of the deceased because the word ‘Walad' (child) refers to children of both sexes. Despite this Ibn 'Abbas holds the view that the girl does not inherit because the word 'Walad' refers to a male only. This shows that even some texts that treat in detail have come as ambivalent (Mujmal), and understanding and deducing a Hukm from them requires Ijtihad. This is from the angle of the texts.
Secondly: the newly occurring incidents of life are continuous and so if effort is not expended to deduce the rules relating to them, then it will not be possible apply the Shariah rules on them, knowing that there are numerous texts obliging the application of the Shariah rule on every issue:
He (swt) said: “And so judge (you o Muhammad [saw]) between them by what Allah has revealed.” [TMQ 5:49]
He (swt) said: “But no, by your Lord, they can have no Faith, until they make you (O Muhammad [saw]) judge in all their disputes between them, and find in themselves no resistance against your decisions, and accept (them) with full submission.” [TMQ 4:65]
He (swt) said: “And We have sent down to you the Book (the Quran) as an exposition to everything.” [TMQ 16:89]
Thus, Ijtihad is Fard on those who have the ability in every age i.e. it is a Fard kifayah if some have already performed it the rest are absolved of the obligation. This is from the angle whatever is necessary to fulfill a wajib (obligation) is itself a wajib. Ijtihad is wajib because we cannot refer to what Allah has revealed in every issue without Ijtihad.
Thus, Islam has encouraged Ijtihad by giving the one who gets an Ijtihad right two rewards and the one gets it wrong he gets one reward. The Muslims practiced Ijtihad from the beginning of Islam. The Sahabah had many Ijtihads and their differences in certain issues are well known. They used to deduce rules according to their own ability because they were proficient in the language, they lived which the Quran was being revealed. And they learnt directly from the Messenger of Allah (saw).
Then they were succeeded in the following ages by people from whom many mujtahideen emerged such as the Imaams of the mazhabs and their students.
The ages of Islam continued to flourish until the weakness in the Ijtihad creped in and its was banned and taqleed became widespread. And the deduced rules of Allah could not keep up with the new emerging issues.
Ijtihad must continue so that there are able Mujtihadeen in the Ummah and Islam can lead the world in solving their problems and bring them out from the darkness into light.
The Messenger (saw) gave us the glad tidings that this goodness will not stop and that in the last ages there will from this Ummah those who will work to apply the laws of Allah on the earth and make Ijtihad to keep Islam the highest. He (saw) said: “There is will always be a group from my Ummah who will remain in the Haqq (truth) until the Decree of Allah comes and Dajjal appears.”
To say that the doors of Ijtihad are closed is completely incorrect, this was a serious error that some Ulema mistakenly called for in history and clearly contradicts the Shariah. The Shariah texts exist today as they existed in the past, therefore Ijtihad is not only possible, it is necessary and a Fard ul Kifaya (duty of sufficiency), as was proven earlier. Al- Shawkani (d.1255/1839) articulated this brilliantly when he said: 'It is utter nonsense to say that Allah Almighty bestowed the capacity for knowledge and Ijtihad on the bygone generations of ulema but denied it to the later generations.' ‘What the proponents of taqlid are saying to us is that we must know the Quran and the Sunnah through the words of other men while we still have the guidance in our hands. Praise be to Allah, this is the greatest lie (buhtanun 'azim) and there is no reason in the world to vindicate it.’ [Shawkani, Irshad, p. 254] The doors of Ijtihad are open but not for the ignorant, they are open until the day of judgement for the people of knowledge who have the capability to perform it as knowledge is the key to the door of Ijtihad.