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3. Ijtihād or Exercise of Judgment

Ijtihād is the third source from which the laws of Islam are drawn. It literally means ‘exerting oneself to the utmost’ and applies techni­cally to the exerting of mind to the utmost by a lawyer to form an opinion in a case of law in regard to a difficult point.1

Value of reason recognized

Reasoning or the exercise of judgment, in theological as well as in legal matters, plays a very important part in the religion of Islam, and the value of reason is expressly recognized in the Holy Quran. It appeals to reason again and again, and is full of exhorta­tions such as the following: “Do you not reflect?” “Do you not understand?” “Have you no sense?” “There are signs in this for a people who reflect;” “There are signs in this for a people who understand;” and so on. Those who do not use their reasoning faculty are compared to animals, and spoken of as being deaf, dumb and blind:

“And the parable of those who disbelieve is as the parable of one [i.e., the Prophet] who calls out to that which hears no more than a call and a cry. Deaf, dumb, blind, so they have no sense.” — 2:171

“They have hearts with which they do not under­stand, and they have eyes with which they do not see, and they have ears with which they do not hear. They are as cattle; rather, they are more astray.” — 7:179

“The vilest of beasts in Allah’s sight are the deaf, the dumb, who do not understand.” — 8:22

“Or do you think that most of them hear or understand? They are only as the cattle; rather, they are farther astray from the path.” — 25:44

While those who do not exercise their reason or judgment are con­demned, those who do it are praised:

“In the creation of the heavens and the earth, and the alter­nation of the night and the day, there are surely signs for those who have understanding, those who remember Allah standing and sitting and [lying] on their sides, and reflect on the creation of the heavens and the earth.” —3:190–191

The Quran does recognize revelation as a source of know­ledge higher than reason, but at the same time admits that the truth of the prin­ciples established by revelation may be judged by reason, and hence it is that it repeatedly appeals to reason and denounces those who do not use their reasoning faculty. It also recognizes the necessity of the exer­cise of judgment in order to arrive at a decision:

“But if any news of security or fear comes to them, they spread it about. And if they had referred it to the Messenger and to those in authority among them, those of them who can search out the knowledge of it would have known it.” — 4:83

The verse recognizes the principle of the exercise of judgment, and though the occasion on which it is mentioned is a particular one, the principle recognized is general.

The Prophet allowed exercise of judgment in religious matters

The exercise of judgment (Ijtihād) is expressly recognized in Hadith as the me­ans by which a decision may be arrived at when there is no direction in the Quran or Hadith. The following report is regarded as the basis of Ijtihād in Islam:

“When the Messenger of Allah decided to send Mu‘adh to Yaman [as Governor], he asked him how he would decide cases. Mu‘adh replied: ‘By the Book of Allah’. He asked: ‘But if you do not find [any direction] in it’. He replied: ‘Then by the practice (Sun­nah) of the Messenger of Allah’. ‘But if you do not find [any direction] in the Sunnah’, he asked. ‘Then I will exercise my judgment (ajta­hidu) and spare no effort’, Mu‘adh replied. … The Messenger of Allah said: ‘Praise be to Allah Who has granted the messenger of His Messenger what pleases the Messenger of Allah’.” 2

This report shows not only that the Holy Prophet approved of the exercise of judgment, but also that his Companions were well aware of the principle, and that reasoning or exercise of judgment by others was freely resorted to when necessary, even in the Holy Prophet’s lifetime.

Exercise of Judgment by the Companions

After the Holy Prophet’s death, the principle of Ijtihād obtained a wider prevalence, and as new areas were added to the material and spiritual realm of Islam, the need of resorting to the exercise of judg­ment became greater. Nor did the Caliphs ar­rogate all authority to themselves. They had a council to which every im­portant case was referred, and its decision by a majority of votes was accepted by the Caliph as well as by the Muslim public. Thus Sayuti writes in his History of the Caliphs:

“When a case came before Abu Bakr [the first Caliph], he used to consult the Book of Allah; if he found anything in it by which he could decide, he did so; if he did not find it in the Book, and he knew of a practice or saying of the Messenger of Allah, he decided according to it; and if he was unable to find anything there, he used to question the Muslims if they knew of any decision of the Prophet in a matter of that kind, and a company of people thus gathered round him, every one of whom stated what he knew from the Prophet, and Abu Bakr would say, ‘Praise be to Allah Who has kept among us those who remember what the Prophet said’; but if he was unable to find any­thing in the practice of the Prophet, he gathered the heads of the people, and the best of them, and consulted them, and if they agreed upon one opinion [by a majority] he decided accordingly.” 3

The same rule was followed by Umar, the second Caliph, who resorted to Ijtihād very freely, but took care always to gather the most learned Companions for consultation. When there was a difference of opinion, the decision of the majority was acted upon. Besides this council, there were great individual teachers, such as Aishah, Ibn Abbas, Ibn Umar and others, whose opinion was highly revered. Decisions were given and laws made and promulgated subject only to the one condition that they were neither contrary to the Holy Quran nor to the practice of the Holy Prophet.

The four great jurists

In the second century of the Hijrah arose the great jurists who codi­­fied the Islamic law according to the need of their time. The first of these, and the one who claims the allegiance of the greater part of the Muslim world, was Imam Abu Hanifah (d. 150 A.H., 767 C.E.). The basis of his analogical reasoning (qiyās) was the Holy Quran, and he accepted Hadith only when he was fully satisfied as to its authenticity; and, as the collec­tors of Hadith had not yet commenced the work of collection, naturally Abu Hanifah accepted very few reports, and always resorted to the Holy Quran for his juris­tic views. Later on when Hadith was collected, and was more in vogue, the followers of the Hanafi system — as Abu Hanifah’s school of thought was called — introduced into it more of its reports.

Abu Hanifah had two famous disciples, Muhammad and Abu Yusuf, and it is mostly their views of the great master’s teaching that now form the basis of the Hanafi system. This system is not only the first in point of time but is also the one which claims allegiance from the great majority of Muslims, and a development of which on the right lines would have resulted in immense benefit to the Muslim world. It was he who first directed attention to the great value of analogi­cal reasoning in legislation. He also laid down the principle of equity, whereby not only could new laws be made, but even logical con­clusions could be controverted when proved inequitable.

Imam Malik ibn Anas (d. 179 A.H., 796 C.E.), the second famous jurist, was born in Madinah. He limited himself almost entirely to the Hadith reports which he found in Madinah, relating more especially to the practice which prevailed there, and his system of jurisprudence is based entirely on the traditions and practices of the people of Madinah. He was scrupulously careful in giving judg­ment, and whenever he had the least doubt as to the correct­ness of his decision, he would say: “I do not know”. His book, Muwaṭṭā, though a comparatively small collection of Hadith, and limited only to the Hadith reports and practices of the people of Madinah, is the first work of its kind, and one of the most authoritative.

The third jurist, Imam al-Shafi‘i (d. 204 A.H., 820 C.E.), worked for the most part in Egypt. He was intimately acquainted with the Hanafi and the Maliki schools of thought, but that which he himself founded was based largely on Hadith, as distinguished from the Hanafi system which was founded on the Holy Quran and made very little use of Hadith. Over the Maliki system, which is also based on Sunnah, it had this advantage that the Hadith made use of by Shafi‘i was more ex­tensive, and was collected from different centres, while Malik contented himself only with what he found at Madinah.

Imam Ahmad ibn Hanbal (d. 241 A.H., 855 C.E.), the last of the four great jurists, was born and died in Baghdad. He too made a very ex­tensive study of Hadith. His famous work on the subject, the Musnad of Ahmad ibn Hanbal, containing nearly thirty thousand reports, was prepared by his son Abdullah, based on the material collected by the Imam himself. In the Musnad, however, as already remarked, Hadith reports are not arranged according to subject-matter but according to names of the Companions to whom they are ultimately traced. Though it contains a large number of reports, it does not apply those strict rules of criticism fav­oured by collectors like Bukhari and Muslim. Ac­cordingly, the Musnad of Ahmad cannot claim the same reliability as regards its material as can the collections of the other famous collectors.

From the very nature of his exertions, it is evident that Ahmad ibn Hanbal made very little use of reasoning, and as he depended almost entirely on Hadith, the result was that he admitted even the weakest report. It would thus appear that from the system of Abu Hanifah, who applied reasoning very freely and sought to deduce all questions from the Holy Quran by the help of reason, the system of Ahmad ibn Hanbal is distin­guished by the fact that it makes the least possible use of reason, and thus there was a marked falling off in the last of the four great jurists from the high ideals of the first, so far as the application of reason to matters of religion is concerned. Even the system of Abu Hanifah himself deteriorated on account of the later jurists of that school not developing the master’s high ideal, with the consequence that the world of Islam gradually shut the door to Ijtihād or Exercise of Judgment and stag­nation reigned in the place of healthy development.

Different methods of formulating new laws

The four Jurists (or Imams) who are accepted by the entire Sunni world of Islam are thus agreed in giving an important place in legislation to Ijtihād, and the Shiahs attached to it an even greater importance. Ijmā’ or ‘consensus of opinion’ (see later), which means really the Ijtihād of many, and Ijtihād are thus looked upon as two more sources of the Islamic law along with the Quran and the Sunnah. However, only the Quran and the Sunnah are regarded as absolute arguments or authorities, while Ijtihād and Ijmā’ are called “arguments obtained by exertion”.

The sphere of Ijtihād is very wide since it seeks to fulfil all the requirements of the Muslim community which are not met with expressly in the Holy Quran and the Hadith. The great jurists of Islam have endeavoured to meet these demands by various methods, as briefly described below.

Qiyās, which may be described as ‘reasoning based on ana­logy’, is the most important of these methods, and has almost a universal sanction. When a case comes up for decision, which is not expressly provided for either in the Holy Quran or in Hadith, the jurist looks for a case resembling it in the Quran or in Hadith, and, by reasoning on the ba­sis of analogy, arrives at a decision. Thus it is an extension of the law as met with in the Quran and Hadith, and no infallibility is claimed for such analogical deductions or laws based on them. A jurist may err in his judgment and hence it is that so many differences of juristic deductions exist even among the highest authorities. By its very nature, the reasoning of one generation may be rejected by a following generation.

Istiḥsān, in the terminology of the jurists, is the exercise of pri­vate judgment, not on the basis of analogy but on that of public good or the interest of justice. According to the Hanafi school, when a deduction based on analogy is not acceptable either because it is against the broader rules of justice or because it is not in the interest of the public good, and is likely to cause undue inconvenience to those to whom it is applied, the jurist is at liberty to reject the same, and to adopt instead a rule which is conducive to public good, or is in consonance with the broader rules of justice. This method is peculiar to the Hanafi system, but owing to strong opposition from the other schools of thought, it has not, even in that system, been developed to its full extent. The principle underlying it is, however, a very sound one and is quite in accordance with the spirit of the Holy Quran. There is, moreover, less liability to error in this method than in far-fetched analogy, which often leads to narrow results opposed to the broad spirit of the Holy Book. In the school of Imam Malik, a simi­lar rule is adopted under the name of istiṣlāḥ which means ‘a deduction of law based on considerations of public good’.

Istidlāl literally signifies the ‘inferring of one thing from another’, and the two chief sources recognized for such inferences are customs and usages, and the laws of religions revealed before Islam. Customs and usages, when not opposed to the spirit of the teachings of the Quran, or not forbidden by it, would be admissible, because, according to a well-known maxim of the jurists, “permissibility is the original principle”, and therefore what has not been declared unlawful is permissible. The Hanafi law lays special stress on the value of customs and usages. As regards laws revealed previous to Islam, the Hanafi school holds that those laws of the previous religions are binding which have been mentioned in the Quran without being abrogated.

Ijmā’ or Consensus of Opinion

In the terminology of the Muslim jurists, Ijmā’ means a consensus of opinion or an agreement of the Muslim jurists of a particular age on a question of law. The agreement may be inferred from their word, their practice, or silence when recognized jurists do not con­trovert an opinion expressed by one or more of them. It is generally held that Ijmā’ means the consensus of opinion of jurists only, but some are of the opinion that it means the agreement of all Muslims. Most authorities require the unanimity of opinion of all the jurists of a particular age, but others have held the opposite view. However, it is generally agreed that if there is an overwhelming prepon­derance of jurists holding a certain view, that view is valid and binding, though not absolute. One Ijmā’ may be repealed by another in the same age or in a subsequent age, with this reservation that the Ijmā’ of the Companions of the Holy Prophet can­not be reversed by any later generation.

Ijmā’ is not an independent source of the laws of Islam. It is essentially Ijtihād or exercise of judg­ment, on which all or the majority of the jurists of a certain generation are agreed. There is no denying the fact that, if many jurists are agreed on a certain ques­tion, their opinion would carry greater weight than that of a single one, but even the opinion of many, or of all, is not infallible. Ijmā’, after all, is only Ijtihād on a wider basis, and like the latter it is always open to correction.

To differ with majority is no sin

It may be added here that the sense in which the word Ijmā’ is com­monly used nowadays is quite erroneous, for it is taken to mean the opin­ion of the majority, and it is generally thought that it is a sin on the part of a Muslim to differ with the views of the maj­o­rity. But honest differ­ence of opinion, instead of being a sin, is called a mercy by the Holy Prophet, who is reported to have said: “The differences of my people are a mercy”.4 Difference of opinion is called a mercy because it is only through encouraging it that the reasoning faculty is developed, and the truth ulti­mately discovered. There were many differences of opinion among the Companions, and there were also matters on which a single man used to express boldly his dissent from all the rest. Ijtihād is encouraged by a saying of the Holy Prophet, which promises reward even to one who makes an error in it:

“When the judge gives a judgment and he exercises his reason­ing faculty and is right, he has a double reward, and when he gives a judgment and exercises his reasoning faculty and makes a mistake, there is a reward for him.” 5

The door of Ijtihād is still open

Later jurists regard the door of every degree of Ijtihād to have been closed after the sixth century of Hijrah. It is said that after the immediate disciples of the first four Imams,6 there can only be followers (muqallidīn) who may only quote a decision (fatwā) from any of the earlier authorities, or when there are differing opinions of the earlier juriscon­sults they can choose one of them, but they cannot question the correctness of what has been said. Thus Ijtihād, which was never considered to be an absolute authority by the great Imams or their immediate disciples, is now practically pla­ced on the same level with the Holy Quran and the Hadith and hence no one now is considered to be fit for Ijtihād.

It is, however, a mistake to suppose that the door of Ijtihād was closed in any way after the four Imams mentioned above. It is quite clear that the free exer­cise of judgment was allowed by the Holy Quran, while both the Quran and the Hadith explicitly allow­ed analogical deduction, and it was on the basis of these directions that the Muslim world continued to exer­cise its judgment in making laws for itself. The Companions made use of it even in the Holy Prophet’s lifetime, when it was not convenient to refer a matter to him personally; and after his death, as new circumstances arose, new laws were made by the majority of the Caliph’s council and new decisions given by the learned among the Companions; the next genera­tion added up to the knowledge of the Companions; and each succeeding generation, not satisfied with what the previous one had achieved, freely applied its judgment. The second century saw the four great luminaries appear on the horizon of Ijtihād, and the appearance of these great jurists one after another, each evidently dissatisfied with what his predecessor had achieved, is another conclusive argument that Islam permitted human judgment to be exercised freely to meet new circum­stances.

Ijtihād was a great blessing to the Muslim people; it was the only way through which the needs of succeeding generations and the requirements of different races merging into Islam could be met. Neither the Holy Prophet, nor any of his Com­panions, nor any of the great jurists ever said that Muslims were forbid­den to apply their own judgment to new circumstances and the ever changing needs of a growing community after a certain time. What happened was that the atten­tion of the great intellects of the third century was directed towards the collection and criticism of Hadith. On the other hand, the four Imams rose so high above the ordinary jurists that the latter were dwarfed into insignificance, and the impression gained ground gradually that no one could exercise his judgment independently of the former. This im­pression in its turn led to limitations upon Ijtihād and the independence of thought to which Islam had given an impetus. Being thus res­trained by a false imp­ression, the intellect of Islam suffered a heavy loss and the increasing demand of knowledge being brought to a standstill, stagna­tion and ignorance took its place.

Independence of thought recognized

The Holy Quran expressly recognizes independence of opinion for one and all, and requires that absolute obedience be given only to God and His Messenger:

“O you who believe, obey Allah and obey the Messenger and those in authority from among you; then if you quarrel about anything, refer it to Allah and the Messenger…” — 4:59

This verse speaks of obe­dience to those in authority (ulu-l-amr), along with the obedience to the Messenger, and then mentions disputes which, it says, must be settled by referring them to God and His Messenger. The omission of ulu-l-amr from the latter portion of the verse shows clearly that the quarrel here spoken of relates to differences with ulu-l-amr, and in the case of such a difference the only authority is that of God and the Messenger, or the Quran and the Hadith. Every authority in Islam, whether temporal or spiritual, is included in ulu-l-amr, and independence of thought for every Muslim is thus recognized by allowing him to differ with all except the Quran and the Hadith. The Companions, the Collectors of Hadith, the four Imams and the other jurists being thus included in ulu-l-amr, must be obeyed ordinarily, but to differ with any one or all of them, when one has the authority of the Quran and the Hadith is expressly permitted. And since the ultimate test of the correctness of Hadith is the Quran itself, the conclusion is evident that Islam allows independence of thought subject only to one condition, that the principles laid down in the Quran are not contravened.

It will thus be seen that any Muslim community has the right to make any law for itself, the only condition being that such law shall not contra­vene any principle laid down by the Holy Quran. The impression prevailing in the Muslim world at present that no one has the right, even in the light of the new circumstances which a thousand years of the world’s progress have brought about, to differ with the four Imams, is entirely a mistaken one. The right to differ with the highest of men below the Holy Prophet is a Muslim’s birthright, and to take away that right is to stifle the very exis­tence of Islam. Under the present circumstances, when conditions have quite changed and the world has been moving on for a thousand years, while Muslims have more or less stagnated, it is the duty of Muslim states and Muslim peoples to apply their own judgment to the changed conditions, and find out the ways and means for their temporal salvation.


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Notes to Chapter 3

 

1. Lane’s Lexicon.

2. Abu Dawud, book: ‘Judgment (Aqḍiyya)’, 25:11 (h. 3592).

3. Tārīkh al-Khulafā’, edition published in Lahore, 1870, p. 40.

4. Jāmi‘ al-Ṣaghīr by Imam Jalal-ud-Din Sayuti, Cairo, p. 11.

5. Mishkat, book: ‘Governing and Judgment’, 17: ch. 3, sec. 1, h. 3560 (v. 2, p. 203).

6. Of Muhammad and Abu Yusuf, the two famous disciples of Abu Hanifah, it is said that their unani­mous opinion on any point must be accepted, even if it goes against that of their master.