Saturday, May 27, 2006

The Mujtahid

The Mujtahid

Ijtihad has been defined as the expenditure of effort, seeking the (prevalent) opinion about a thing from the Shari'ah rules in a manner such that the Mujtahid feels unable to do any more i.e. it is the comprehension of the Shari'ah text from Kitab and Sunnah after exerting one’s outmost in arriving at this comprehension to gain cognisance of the Shari'ah rule. This means three issues need to be fulfilled in the inference (Istinbat) of the Shar’ai rule before it can be said he has made the inference with a legitimate Ijtihad i.e. three issues have to be met before the action can be called Ijtihad.

Firstly, exerting effort in a manner until he feels unable to exert any more.

Secondly, this exertion should be in search for a prevailing opinion about an issue from the Shari'ah rules.

Thirdly, this opinion about an issue should be from the Shari'ah texts because these texts are the only source from which Shari’ah rules may be derived.

The Hukm Shar'ai is the address of the Legislator relating to the actions of his servants. So the one who does not exert effort is not considered a Mujtahid and whoever exerts effort in seeking the (prevailing) opinion in other than the Shari'ah rules from disciplines and views is not considered a Mujtahid either. Whoever seeks an opinion from the Shari'ah rules from other than the Shari'ah texts is also not considered a Mujtahid. The Mujtahid is therefore restricted in exerting his utmost effort in understanding the Shari'ah texts to know the Hukm of Allah (swt). Anything other than that in terms of the Ulama who explain the sayings of the Imam of their Mazhab, who attempt to comprehend his sayings and deduce rulings from it, or outweigh the opinion of some Ulama over the opinion of others without the medium of the Shari'ah evidences etc, are not considered actions that a Mujtahid would perform. The order of Ijtihad is restricted to comprehension of the Shari'ah texts after exerting maximum effort in this path to know the Hukm of Allah (swt). The Shari'ah texts are the object of comprehension and they are the object of seeking the opinion about an thing from the Shar’ai rules.

What should be clear is that the Shar’ai texts are the Kitab and Sunnah and none other. Any other text is not considered Shar’ai text whatever the status of the one who said it. So the sayings of Abu Bakr (ra), 'Umar (ra), Ali (ra) or any other Sahaba are not considered as Shar’ai texts at all. Likewise the statements of Mujtahidin such as Ja'far, al-Shafi'i, Malik and other Mujtahidin are not considered Shar’ai texts at all. So exerting effort in deducing a rule, from the statements of such people or any others whoever they may be is not considered Ijtihad. The one who exerts such effort to extract a rule from it is not considered a Mujtahid. Therefore the rule he derives is not considered a Shar’ai rule. Rather it is considered the opinion of the person himself who made the inference and has no value in the Shari'ah. Not to mention that the deduction of a Hukm from the sayings of any of the Sahaba, Tabi'in, Mujtahidin and others is not allowed by Hukm Shar’ai since it is inference of a Shari'ah rule from a source other than Kitab or Sunnah. This is Haram in the Shari'ah because it is judging by other than what Allah (swt) revealed, and what Allah (swt) has revealed is restricted to the Kitab and Sunnah alone. Adopting a Hukm from it is nothing more than adopting something Allah has not revealed and this is definitely Haram.

The Kitab and Sunnah are in the Arabic tongue. They came as revelation from Allah either in expression and meaning, such as the Qur'an or in meaning only. The Messenger (saw) expressed this meaning in his own words – these constitute the Hadith. In any case the Kitab and Sunnah are in the Arabic language spoken by the Messenger of Allah (saw). The speech either has a linguistic meaning only, such as ‘Mutrafin’ (the affluent ones), or it has a Shari'ah meaning only where the linguistic meaning is lost, as with the word 'Gha'it', or it has a linguistic and Shari'ah meaning like the word 'Tahara' in the examples of 'Tahhara' (to purify) and 'Mutahhirun' (the purified ones). So, to understand this speech one has to depend on the linguistic and Shari'ah disciplines until it is possible to understand the text and arrive at an understanding of the Hukm of Allah (swt). Consequently, all the conditions of Ijtihad revolve around two things and these are the availability of the linguistic and Shari'ah disciplines.

Regarding the language, the mujtahid must have sufficient knowledge of the Arabic language and grammar. He should know enough by which he can understand the circumstances of the Arabs the current customary usage in their speech such that he can distinguish the textual indications (dalaalat al-alfaaz) in terms of the following: congruence (muTaabaqah), inclusivity (taDmeen), requisite (iltizaam), mufrad (singular), murakkab (construct), comprehensive (kulli), partial (juz’i), Haqeeqah (literal), majaaz (metaphorical), mutawaaTi`, homonym (ishtiraak), synonym (taraaduf), tabaayun, uttered meaning (manTuq) and implied meaning (mafhum).

A complete command and erudition in Arabic is not a requirement, but the mujtahid must know the nuances of the language and be able to comprehend the sources accurately and deduce the ahkam from them with a high level of competence. [Ghazali, Mustasfa, II, 102; Abu Zahrah, Usul, p.302.]

Regarding the Shari’ah disciplines, he or she should be knowledgeable and informed of the levels of the Sharee’ah rules, their divisions, ways of establishing them, different angles of meaning. He should know the means of outweighing them when they contradict, ways of deducing the aHkaams. He should know the reasons for revelation, the abrogator and the abrogated, the absolute (muTlaq) and restricted (muqayyad) and other such classifications from the Kitaab, Sunnah. According to some ulema, including al-Ghazali, Ibn al-Arabi, and Abu Bakr al-Raza, the legal ayat of the Qur'an which the mujtahid must know amount to about five hundred. Al-Shawkani and others, however observe that a specification of this kind cannot be definitive.

The Hanafi jurists, Fakhr al-Islam 'Ali b. Muhammad al-Bazdawi (d.483 A.H.) and
`Ubaydullah ibn Mas'ud Sadr al-Shariah both stated that to perform Ijtihad a jurist should have knowledge of the Quran together with its meaning, dictionary and legal, and its various divisions, of the traditions (hadith) including the texts and authorities thereof, and of the rules of analogical deduction (qiyas). [Usul al-Bazdawi, vol iv p. 1135, al-Tawdih fi Hall Ghawamid al-Tanqih, p. 382]

The earliest complete account of the qualifications of a mujtahid is given in Abu' Husayn al-Basri's (d. 436/1044) al-Mu'tamad fi Usul al-Fiqh. The broad outline of al-Basri's exposition was later accepted, with minor changes, by al-Shirazi (d. 467/1083), al-Ghazali (d. 505/1111) and al-Amidi (d. 632/1234). This does not mean that the requirements of ijtihad received no attention from the ulema who lived before al-Basri, however they did not see it necessary to lay down the conditions for Ijtihad in this manner.

As from the dawn of Islam until the end of the second century A.H. the Muslims did not need specific principles from the linguistic or Shari'ah perspective to understand the Shari'ah texts, because of the closeness of their time to the Messenger of Allah (saw) and because their only concern in life was the Deen. Other factors included the soundness of their linguistic disposition and the purity of their language. Thus there were no known conditions for Ijtihad, but Ijtihad as an issue was well known and in that time Mujtahidin could be counted by the thousands. All the Sahaba were Mujtahidin as were the majority of the rulers, Walis and judges.

Later on the Arabic language became corrupted and specific principles had to be were laid down to rectify this situation. When the Muslims became increasingly occupied by the Dunya and the number of people devoted to (study of) the Deen decreased and the frequency in attributing Hadiths to the tongue of the Messenger (saw) became widespread, principles were set down for conditions of abrogation (Nasikh and Mansukh), acceptance or rejection of Ahadith, and understanding the manner of deducing the rule from the Qur’an and Hadith. When all this happened the number of Mujtahidin decreased and the Mujtahid began proceeding in his Ijtihad according to certain principles through which he arrived at specific inferences that differed from the principles of others. These principles were established: either through practice in deducing rules from the texts as though they were set down for him to proceed according to one path only; or through following certain principles and then deducing rules according to them. This resulted in the Mujtahid exercising Ijtihad according to a specific methodology in understanding the Shari'ah texts and in adopting the Shar'ai rule from the Shari'ah texts. Some Mujtahids imitated others in their method of Ijtihad but not in their deduction of rules, they deduced the rules themselves according to that person’s methodology. Some Muslims became well versed about a specific area from the Shari'ah disciplines and they exerted effort in seeking opinions from the Shari'ah rules in these areas that were presented to them and not in all areas. Today, as a result of this, we find three types of Mujtahidin amongst Muslims: Mujtahid Mutlaq (one who has performed absolute Ijtihad), Mujtahid Mazhab (Mujtahid in one school of thought) and Mujtahid Mas'ala (Mujtahid in a single issue).

Mujtahid Mazhab

The Mujtahid Mazhab is one who follows other Mujtahidin in their methodology of Ijtihad, but exercises his own Ijtihad in deducing Ahkam and does not imitate the Imam of his school. There are no conditions for the Mujtahid Mazhab except having knowledge of the rules of the Mazhab and their evidences. He can follow the rules of the Mazhab or disagree with them with his own opinion. Therefore it is permitted for one who follows a Mazhab to exercise Ijtihad within his own Mazhab and disagree with the Imam of the Mazhab in some rules and issues if he considers a particular evidence to be stronger. It has been reported about the Imams that they often used to say: ‘If a Hadith is found to be authentic, that is my Mazhab and throw my saying at the wall.' One of the clearest examples is that of Imam Ghazzali who was a follower of the Shafi'i Mazhab, but he had Ijtihads in the Shafi'i Mazhab which contradicted the Ijtihads of al-Shafi'i himself.

Among the other prominent names that feature in this category are Zafar b. al-Hudhayl, Hasan b. Ziyad in the Hanafi school; Isma'il b. Yahya al-Muzani, 'Uthman Taqi al-Din b. al-Salah and Jalal al-Din al-Suyuti in the Shafi'i; Ibn `Abd al-Barr and Abu Bakr b. al-`Arabi in the Maliki, and Ibn Taymiyyah and his disciple Ibn Qayyim al-Jawziyyah in the Hanbali schools. It is observed that although these ulema all followed the usul of their respective schools, nevertheless they did not consider themselves bound to follow their masters in the implementation of the general principles or in arguments concerning particular issues. This is borne out by the fact that they have held opinions that were opposed to those of their leading Imams. [Abu Zahrah, Usul, p. 312; Kassab, Adwa']

Mujtahid Mas'ala

The Mujtahid Mas'ala has no specific conditions or method, but it is allowed for whoever has knowledge of some of the Shari'ah and linguistic disciplines that enable him to understand the Shari'ah texts, to exercise Ijtihad in a single issue. On a single issue, he can study the views and evidences of other Mujtahidin, and their lines of reasoning. From that he would reach a specific understanding of the hukm Shar'ai which he assumes with least amount of doubt to be the Hukm Shar'ai whether it agrees with the opinion of other Mujtahidin or not. In single issues it is allowed for him to study the Shar’ai evidences and understand from it what he considers with least amount of doubt to be the Hukm Shar'ai irrespective of whether this issue has been previously studied of not. It suffices for the Mujtahid in a single issue to be knowledgeable about whatever relates to that issue, and it is important he is cognisant of that, but there is no harm if he is unaware of anything that does not relate to the single issue and from what relates to foundational and jurisprudential issues and so forth.

Scholars like Abu'l-Hasan al-Karkhi and Abu Ja'far al-Tahawi in the Hanafi school, Abu al-Fadl al-Marwazi and Abu Ishaq al-Shirazi in the Shafi'i, Abu Bakr al-Abhari in the Maliki and 'Amr b. Husayn al-Khiraqi in the Hanbali schools have been placed it this category.

Besides the state of affairs that took place in the days of the Sahaba and Tabi'in and what happened after the Mazhabs and Imams, there are people who understood the Shari’ah texts and could deduce rules from them directly without any conditions as was the case in the time of the Sahaba. There were people who continued as followers of a specific Mazhab but they had Ijtihads that went against the opinion of their Imam. So the reality of what happened meant that the Mujtahid Mazhab and Mujtahid Mas'ala did have a presence. This is what actually happened. As for Ijtihad itself, it can be divided into sections. It is therefore possible, for someone to be a Mujtahid in some texts and not in others. As for the opinion of those who say that Ijtihad is a natural disposition that occurs to the person when he has knowledge of all the recognised branches of Ijtihad, there is no basis for this and it does not agree with reality. A person may have the capacity but will not be a Mujtahid because he did not exert himself in studying the issue, because capacity or aptitude (Malaka) denotes the strength of understanding and linkage. This can be obtained by someone who is exceptionally intelligent with some knowledge of the linguistic and Shari'ah disciplines and does not need to cover all the linguistic and Shari'ah disciplines. A grasp of the Shari'ah and linguistic disciplines may be present as knowledge due to study and instruction, but the aptitude (Malaka) is not because of the lack of thinking. However, Ijtihad is a tangible process with tangible results i.e. exerting effort in arriving at a Hukm. The presence of aptitude does not by itself confer the ability to do Ijtihad. A person is able to perform Ijtihad in some issues but not in others. He may be able to make Ijtihad in the branches (Furu') of Islam but not in other areas. It is clear that Ijtihad is divided into sections but the sectioning of Ijtihad does not mean divisibility of Ijtihad. In other words, this does not mean that a Mujtahid is able to perform Ijtihad in some areas of Islamic law but not in other areas. Rather the meaning of dividing (Tab'id) Ijtihad is the possibility of comprehending some evidences due to their clarity and lack of ambiguity, and the inability of understanding some evidences due to their depth and complexity and the presence of various evidences that may seem contradictory. This may happen in foundational principles (Qawa'id Usuliyya) or in the Shari'ah rules. So the division of Ijtihad concerns the ability to deduce and not ability in the subject areas of jurisprudence (Fiqh).

Mujtahid Mutlaq

All of this is with regards to the Mujtahid Mazhab and Mujtahid Mas'ala. The Mujtahid Mutlaq is anyone who performs Ijtihad in the Shari'ah rules and in the method of his inference of the Shari'ah rules whether he had a specific method, as it is the case in some schools, or not. He proceeds naturally in a specific manner of comprehension to deduce rules, as was the case of the Mujtahidin in the time of the Sahaba. Ever since the Arabic language became unsound and people ceased devoting themselves to understanding their Deen, it became inevitable that the Mujtahid Mutlaq had to fulfil certain conditions to be classified as such. Consequently, the opinion is that the Mujtahid Mutlaq does have conditions to fulfil, the most important of which are:

First: knowledge of the textual evidences (Adilla Sam'iyya) from which the principles and rules have been extracted.

Second: knowledge of those aspects of textual implication (Dalala al-lafz) relied upon in the Arabic tongue and in the usage of the people of eloquence (Bulagha).

As for the textual evidences, their consideration is referred to the Kitab, Sunnah and the Ijma'a, and to the ability to compare and reconcile evidences and outweigh stronger evidences over other evidences when they contradict. That is because the evidences may seem conflicting to the Mujtahid and he sees them all as concerning the same issue, and each of them demands a Hukm other than what another evidence may demand. The Mujtahid Mutluq is required to examine the aspects by which one evidences is outweighed in order to rely upon it in deciding the Hukm. For example, Allah (swt) said:

“And take as witness two just persons from among you (Muslims).” [TMQ 65:2]

And He (swt) said:

“…then take the testimony of two just men of your folk or two others from outside” [TMQ 5:106]

Both Ayahs are about giving testimony. The first states that the witnesses should be from the Muslims. The second states that they could be from Muslims and from non-Muslims i.e. the first Ayah stipulates that the witness be a Muslim while the latter permits the witness to be a non-Muslim. It is essential to know the way in which they are reconciled i.e. that the first Ayah is unrestricted (Mutlaq) with regards to testimony and the second is restricted (Muqayyad) to the testimony of bequests (Wasiyya) on journeys. The second verse permits the testimony of non-Muslims at the time of bequest and the like in terms of financial transactions, while the other relates to other matters. Moreover, both verses indicate that the proof (Bayyina) should be given by two just witnesses. It is supported by another verse in which Allah (swt) states:

“And get two witnesses out of your own men. And if there are not two men (available), then a man and two women.’” [2:282]

How does this fit in with what has been established in the Sahih (of Bukhari) about the Prophet (saw) when he accepted the testimony of one woman in regard to fosterage (Rada'a)? And that he accepted the testimony of a single witness with an oath of the plaintiff? It has been narrated by Ibn 'Abbas: “That the Messenger of Allah (saw) pronounced judgement on the basis of an oath along with a single witness.” It was narrated by Jabir: “That the Prophet (saw) pronounced Judgement on the basis of an oath along with a single witness.” And it has also been narrated by Amir al-Mu'minin 'Ali b. Abi Talib: “That the Prophet (saw) passed judgement on the basis of a testimony of a single witness and an oath of the plaintiff.” It may seem there is contradiction between the evidences. However the Mujtahid who scrutinises the issue finds that what the Ayah mentions is the most complete number in testimony. If the complete number is not met it does not mean any other number is not accepted, since the Nisab (number) concerns taking up the responsibility of testimony. As for the judge's discharging of his duty and the issue of ruling, the number of witnesses has not been stipulated but what is stipulated is the proof, which is whatever will demonstrate the truth even by the testimony of a single woman or single man along with the oath of the plaintiff (Sahib al-haqq). However, if the Shari'ah has specified the number of witnesses as, for example in the testimony for fornication, then it is restricted by the text.

Another example is that the Prophet (saw) rejected the offer of help made by the Mushrikeen at the battle of Uhud. He did not accept their offer to participate with the Muslims in the battle. He (saw) said: “We do not seek the help of the disbelievers.” But he (saw) accepted their help at Hunayn. How are these two evidences to be reconciled? The Mujtahid should know that the Messenger (saw) did not accept the Mushrikeen at Uhud and refused their help because they wanted to fight under their own banner for the purpose of distinguishing themselves with it (Mutazzin Biha). So his refusal has an ‘illah, which is that the Mushrikeen were fighting under their own banner and state. He accepted and sought their help at Hunayn because they fought under the banner of the Messenger (saw). At Hunayn the 'illah of refusing to seek help from the Mushrikeen was absent so seeking their help was allowed. With this clarification and other such examples the conflict (Tazahum) of evidences is removed.

So the ability to comprehend the textual evidences and compare them is a basic condition. Consequently, the Mujtahid Mutlaq must be able to discern the Shari'ah rules and their divisions, ways of establishing them, aspects of the indications of their meanings (Wujuh dalalatiha ala madlulatiha), difference of levels and recognised conditions regarding them. He must also know the angles of outweighing them when they contradict each other. This obliges the Mujtahid to be acquainted with transmitters (Ruwwa), methods of invalidation and attestation (Jarh wa ta'deel), and he should be familiar with the causes of revelation (Asbab ul- nuzul) and abrogation (Nasikh wa mansukh) in the texts.

As for the aspects of textual indicators (Dalala al-lafz), this requires knowledge of the Arabic language. Through the knowledge of Arabic one is able to know the meaning of expressions, aspects of their eloquence and meanings, and knowledge of any difference of opinion over the same word until it is referred to trustworthy narrators. Also what the lexicographers and philologists may say about it. It is not sufficient to know from the dictionary that Qur' indicates a state of purity and menstruation and that Nikah denotes intercourse and contract of marriage. He should have knowledge of the Arabic language in a general manner in terms of grammar, inflection, rhetoric, idiom etc. Knowledge of that will enable him to study the indication of a single expression and sentence according to the language of the Arabs and usage of the people of eloquence, which will enable him to check books about the Arabic language and understand from them what he needs to understand. However this does not mean he should be a Mujtahid in every branch of the language. It is not stipulated that he be proficient in language like al-Asma'i and as proficient in grammar as Sibawayh. Rather it is sufficient for him to be knowledgeable about linguistic style so that he can distinguish between indications of expressions (Dalala al-alfaz), sentences and style such as Mutabiqa (conformity/harmony), Tadmin (inclusion), Haqiqa (literal), Majaz (metaphorical), Kinaya (metonym), Mushtarak (homonym), Mutaradif (synonym) and so on. In a word, the level of absolute Ijtihad (Ijtihad Mutlaq) cannot be attained except by someone who has by two attributes:

First: comprehension of the objectives (Maqasid) of the Shari'ah by understanding the textual evidences.
Second: comprehension of the Arabic language and the indications or implications of its expressions, sentences and styles.

Imam Taj al-Deen Abdul-Wahab bin Ali al-Subki al-Shafi' (died 771 A.H) enumerates the conditions for a jurist with the ability to perform independent Ijtihad in his work ‘Jam’ul Jawami as follows: he must have suffiecient intellectual acuteness to be able to grasp the drift of speech; he must have average knowledge of the Arabic language, grammar and rhetorics, of Usul ul-Fiqh and sources of Shariah, that is the Quran and the ahadith, he must be well versed in the main principles of the shara or the legal code so as to be able to ascertain the intentions of the Lawgiver; he must know about abrogation and the abrogated texts (nasikh al mansukh), the circumstances in which the texts of the Quran were reveled (asbab an-nuzul), and the rules related to the Mutawatir (continuous) and the isolated (khabar ahad) ahadith, and be able to to discriminate between authentic ahadith and ahadith of weak authority. In addition he must know the history of the narrators of ahadith, but in this connection it would be sufficient for the jurist in our days to refer to the authority of one of the Imams of ahadith such as Ahmad, Bukhari and Muslim. [Jam’ul Jawami, Vol 4 p.276]

Thus the Mujtahid becomes able to deduce rulings based on his own understanding. Being Mujtahid does not mean he should encompass every text and be able to deduce any Hukm, since the Mujtahid Mutalq may be a Mujtahid in many issues reaching the level of absolute Ijtihad. Even if he does not know some issues external to it, it is not a condition that the Mujtahid Mutlaq be cognizant of all issues, all rules of issues and their discernment. This is not what is intended and it not possible for human beings. The most senior SaHabah used to stop giving a view on many issues. Also we know Umar refrained from giving a view on the issue of Kalaalah and fighting those who withheld from paying the Zakah and Abu Bakr did not give a view regarding the issue of inheritance of the grandmother. The Imam of Darul-hijrah; Malik b. Anas was asked 40 questions. Regarding 36 questions he said: I don’t know.

Consequently, the presence of a Mujtahid Mutlaq is not a difficult matter, but it is possible to attain this level if one is truly determined. The level of Mujtahid Mas'ala is possible for all to attain after learning what is essential from the linguistic and Shar’ai disciplines.

The learned among the Companions, and the leading jurists of the succeeding generation, like Sa`id b. al-Musayyib and Ibrahim al-Nakha'i, the leading Imams of the four schools, the leading Imams of the Shi'ah Muhammad al-Baqir and his son ja'far al-Sadiq, al-Awza'i and many others have been identified as fitting this category of Mujtahid Mutlaq.

1 comment:

Shahid Hussain said...

Thank you this colum is very usful for law students and all muslims