Two kinds of Ijtihad: permitted by the shari'a and forbidden by it

The kind of ijtihad which is forbidden by the shari'a

The kind ofijtihadwhich, in Shi'ite opinion, is forbidden is that which means "legislating" or "enacting the law", by which we mean that the mujtahidpasses a judgment which is not in the Book (the Qur'an) or the Sunna, according to his own thought and his own opinion - this is technically calledijtihad al-­ra'y.According to Shi'i Islam, this kind ofijtihad isforbidden, but in Sunni Islam it is permitted. In the latter the sources of legislation, and the valid proofs for determining theshari'a,are given as the Book, the Sunna andijtihad.The Sunnis placeijtihad,which is theijtihad al­-ra'yexplained above, on the same level as the Book and the Sunna.
This difference takes its origin in the fact that Sunni Muslims say that the commands which are given in theshari'afrom the Book and the Sunna are limited and finite, whereas circumstances and events which occur are not, so another source in addition to the Book and the Sunna must be appointed for the legislation of Divine commands - and that source is the very same as we have defined asijtihad al­-ra'y.Concerning this matter, they have also narrated hadithsfrom the Prophet, and one of them is that when the Prophet sent Mu'adh b. Jabal to the Yemen, he asked him how he would issue commands there. He replied: "In conformity with the Book." "And if it is not to be found in the book?" "I will make use of the Sunna of the Prophet." "And if it is not to be found in the Sunna of the Prophet?""Ajtahidu ra' yi,"he replied, which means: I will employ my own thought, ability, and tact. They also narrate otherhadithsin connection with this matter.
There is a difference of view among Sunni Muslims as to whatijtihad al-ra'y is,and as to how it is to be conceived. In his famous book, the"Risala" [1]which was the first book to be written on the principles of Islamic jurisprudence(usul al­fiqh), (...) al­-Shafi'i insists that the only validijtihadaccording to hadithisqiyas[reasoning by analogy].Qiyas,briefly, is the taking into account of similar cases, and ruling in a case from one's own opinion by comparing it with these other similar cases.
But some other Sunnifuqaha[experts infiqh,sing.:faqih]did not recognizeijtihad al­-ra'yas being exclusivelyqiyas;they also countedistihsan ["finding the good" by one's own deliberations] as valid.Istihsanmeans to see, quite independently, without taking similar cases into account, what is nearest to the truth and to justice, and to give one's opinion according as one's inclination and intellect approve. Similarly withistislah[determining what is in the interests of human welfare by one's own deliberation, which means the seeming of one thing as more expedient than another, andta'awwulin which, although a ruling may have been reached in one of thenusus [the textual bases for a precept of theshari'asing.:nass],in a verse from the Qur'an or in ahadithfrom the Prophet, one still has the right, for some reason, to dispense with the contents of thenassand to give priority to one's own independent opinion (ijtihad al­-ra'y).Each of these requires explanation and a detailed account, and the Shi'i­-Sunni debate is relevant to such an account. Many books have been written both for and against this idea, viz., that ijtihad is on a par with textual evidence, and the best of them is the treatise written recently by the late 'Allama, the Sayyid Sharaf al­-Din, called"al­-Nass wa l­Ijtihad".[2]
Now, according to Shi'i Muslims, such a kind ofijtihad isnot permitted by theshari'a.In the view of Shi'i Muslims and their Imams, the first basic principle of this matter, i.e., that the rulings of the Book and the Sunna are not adequate and that it is therefore necessary to practiceijtihad al-­ra'y, is not correct. There are many hadithsrelevant to this discussion, and, in general, [they tell us that] there exist rulings for every eventuality in the Book and the Sunna. In"al­Kafi" [3],after the chapter onbid'a [innovation] andmaqa'is[measurements],there is a chapter with the title: "Chapter on referring to the Book and the Sunna - and there is nohalal[permitted thing] orharam [forbidden thing] or anything which the people need which does not come in the Book or the Sunna." The Imams of theahl al­-baythave been known since the earliest days as opponents ofqiyasandra'y.
Of course, the acceptance or non­acceptance ofqiyasandijtihad al­-ra' ycan be studied from two angles. Firstly, from the aspect from which I have looked at it; that is to say, we countqiyasand ijtihad al­-ra'yas one of the sources of Islamic legislation, and place it alongside the Book and the Sunna, and say that there are cases which have not been ruled upon by revelation and whichmujtahidsmust explain using their own opinion. Or alternatively, [we can study it] from the aspect thatqiyasandijtihad al-ra'y[arel a means for deriving the real rulings, just as we use the other ways and means such askhabar al­-wahid. [4] In other words, it is possible to perceive qiyasas either a substantive(mawdu'iya) [element in law], or a methodological(tariqiya)[principle].
In Shi'ifiqh, qiyasandra'y are invalid in both of the above senses. In the first sense, the reason is that we have no ruling which is not given in the Book and the Sunna; and in the second case, the reason is thatqiyasandra'yare kinds of surmise and conjecture which lead to many errors. The fundamental opposition of Shi'i and Sunni legists in the matter ofqiyasis in the first sense, although the second aspect has become more famous among the scholars ofusul(the principles and methodology of fiqh).
The right ofijtihaddid not last for long among the Sunnis. Perhaps the cause of this was the difficulty which occurred in practice: for if such a right were to continue [for any great length of time], especially if ta'awwuland the precedence of something over the texts were to be permitted, and everyone were permitted to change or interpret according to his own opinion, nothing would remain of the way of Islam(din al­-Islam).Perhaps it is for this reason that the right of independentijtihadwas gradually withdrawn, and the view of the Sunni'ulamabecame that they instructed people to practicetaqlidof only the fourmujtahids,the four famous Imams - Abu Hanifa [d.150/767], al­-Shafi'i; [d.204/820], Malik b. Anas [d.179/795] and Ahmad b. Hanbal [d.241/855] - and forbade people to follow anyone apart from these four persons. This measure was first taken inEgypt in the seventhhijricentury, and then taken up in the rest of the lands of Islam.

Ijtihad permitted by the shari'a

The wordijtihadwas used until the fifthhijricentury with this particular meaning, i.e., with the meaning ofqiyasandijtihad a-l­ra'y,a kind ofijtihadwhich is prohibited in the eyes of the Shi'a. Up to that time, the Shi'i'ulama included a chapter onijtihadin their books only because they wanted to refute it, to emphasize that it was null and void, and to proscribe it, as did the Shaykh al­-Tusi in some of his works. But the meaning of this word gradually extended beyond this specific meaning, and the Sunni'ulamathemselves began not to use'ijtihad'in the specific sense ofijtihad al­-ra'y,[as a source] which was on the same level as the Book and the Sunna. [Such a shift in the meaning of the word can be seen with] Ibn Hajib [5] in his"Mukhtasar al­-usul",on which `Adud al­-Din al­-Iji wrote a commentary known asal­-'Adudi,and which has been till recently, and maybe still is, the authoritatively approved book on [Sunni]usul, and before him with al­-Ghazali [6] in his famous work"al­-Mustasfa". It then became used rather in the unqualified sense of effort or exertion to arrive at the rulings of the shari'a,and was defined as "the maximum employment of effort and exertion in deducing the rulings of theshari'afrom the valid proofs(adilla,sing.dalil). However, it is another matter to decide what the valid proofs of theshari'aare: whetherqiyas, istihsan,and so forth, are among them or not.

From this time onwards, the Shi'i 'ulama also adopted this word because they accepted this [general] meaning. This kind ofijtihadwas a kind approved by theshari'a.Although the word had originally been one to be avoided among the Shi'a, after its meaning and the concept it denoted had undergone this change, their'ulama,discarded their prejudice and subsequently had no reservations about using it. It seems that in many instances the Shi'i 'ulama were careful to consider unity of method and conformity among Muslims as a whole. For example, the Sunnis came to recognizeijma` (consensus of opinion among the'ulama) as a proof leading to certainty, and, in practice, they also held it to be fundamental and substantive (mawdu'i) just likeqiyas,whereas the Shi'a did not accept it. However, to protect the unity of method, they gave the nameijma` to a principle which they did accept [7]. The Sunnis said that the valid proofs were four in number: the Book, the Sunna,ijmaandijtihad (qiyas);the Shi'a said the valid proofs were four: the Book, the Sunna,ijma` and'aql(reason). They merely substituted 'aqlforqiyas.

At any rate,'ijtihad'gradually found a wider meaning, i.e., the employment of careful consideration and reasoning in reaching an understanding of the valid proofs of the shari'a.This, of course needs a series of sciences as a suitable preliminary basis on which to develop the ability to consider and reason correctly and systematically. The'ulama of Islam gradually realized that the deduction and derivation of the precepts from the combined valid proofs of theshari'anecessitated [the learning] of a series of preparatory sciences and studies such as the sciences of literature, logic, the Qur'anic sciences andtafsir(Qur'anic exegesis), the science ofhadithand the narrators ofhadith (rijal al­-hadith),the science of the methodology ofusul al­-fiqh,and even a knowledge of thefiqhof the other sects of Islam. Amujtahidwas someone who was a master of all these sciences.

I think it extremely likely, though I cannot state this categorically, that the first person among the Shi'a to use the wordsijtihadandmujtahid[positively] was the `Allama al-­Hilli.[8] In his work "Tahdhib al­-usul'',he puts the chapter onijtihadafter the chapter onqiyas,and there he uses the word in the same sense in which it is used today.

[We can therefore say that] the ijtihadwhich is forbidden and rejected in the eyes of the Shi'a is ra' yandqiyas,which were originally calledijtihad, whether this is counted as a source of theshari'aand as an independent basis for legislation, or taken as a means for deriving and deducing true precepts; whereas theijtihadwhich they deem correct according to theshari'ais that which means effort and exertion based on expert technical knowledge.

In answer to the question: what is the meaning, the use and the place ofijtihadin Islam, it can thus be said that it isijtihadin the meaning that it is used today, i.e., competence and expert technical knowledge. It is obvious that someone who wants to refer to the Qur'an andhadithmust know how to explain the meaning of the Qur'an, he must know the meaning of the verses, which verses abrogate which verses, which ones have clear meanings and which ones ambiguous meanings [9] - and he must be able to distinguish whichhadithis valid and authoritative and which not. In addition, he must understand, on the basis of correct rational principles, incompatibilities betweenhadithsto the extent that it is possible for him to resolve them, and he must be able to distinguish the cases in which the'ulama of the Shi'a sect have consensus (ijma`). In the verses of the Qur'an themselves, and similarly in thehadith,a series of general principles [for verification and interpretation] are laid down, and the use and exercise of these principles need training and practice, just as in the case of all other basic principles in every science. Like the skilled technician who knows which material to choose from all the materials available to him, themujtahidmust have proficiency and ability. Inhadith,especially, there is a great deal of fabrication, the true and the false are mixed together; the expert must have the power to distinguish between them. In short, he must have enough preliminary knowledge so that he can exercise competence, authority and technical expertise.

Notes:

1-(Cairo, 1940) the main work in jurisprudence by Abu 'Abdillah Muhammad b. Idris al-Shafi'i (150/767-­204/820), the founder of the Shafi'iya legal school. He laid the foundations for the systematic treatment ofqiyas.
2-The Sayyid `Abd al­-Husayn al­-Musawi Sharaf al­Din (1290/1873­4­-1377/1957­8), born in Kazimayn, educated in Najaf, but subsequently resident mostly in the Lebanon. He is popularly famous for his''al­Muraja'at''(Sayda, 1355/1936­7; frequently reprinted), which contains his detailed correspondence with the Egyptian scholar Salim al­Bishri in defense of Shi'ism. His"Al­-Nass was l­Ijtihad"was published in Najaf in 1375/1955­6, and has also been reprinted several times. He is also the author of"Abu Hurayra"(Sayda, n.d.), a book about the controversial narrator ofhadith.
3-"Al­Kafi fi `Ilm al­-Din",(ed 'A. A. Ghaffari, 8 vols,Tehran, 1377­9) the first and largest of the Shi'i collections ofhadith, compiled by Muhammad b. Ya'qub b. Ishaq al­-Razi al-Kulayni (d. 328/939). It contains over 16,000 traditions from the Prophet and the Imams covering all aspects of theusul (the 'roots', mainly theological) and the furu' (the 'branches', mainly perceptual) of the religion.
4-Thekhabar al­-wahid is that kind of tradition which has not reached the status oftawatur,i.e., has not been narrated by so many traditionalists that there is no doubt about its validity. Under certain conditions, such traditions are admissible as proof(hujja)in the derivation of precepts.
5-Abu Ja'far Muhammad b. al­-Hasan b. `Ali al­-Tusi (385/995-460/1067), the Shaykh al­-Ta'ifa (the Chief [scholar] of the [Shi'a] Sect), author of ''`Uddat al­Usul"(Tehran, 1314).
6-Jamal al­-Din Abu 'Amr 'Uthman b. 'Umar b. Abi Bakr b. Yusuf, Ibn al­-Hajib (570/1174-­646/1249), the Maliki legist, author of"Muntaha al­-Su'al wa l­Amal "' which he condensed into his "Mukhtasar al­-Usul". Besides al­Iji's commentary on this abridgement, there is also one by the `Allama al­-Hilli (see below, note 19), called "Ghayat al­-Usul" which he wrote to refute al­Iji's (see:''al­-Dhari'a'',XIV, p.56).
7-Abu Hamid Muhammad al­-Tusi al­-Ghazali (450/1058 -505/1 111), who followed the Shafi'imadhhab. The full title of his work on jurisprudence is "al­-Mustasfa min `ilm al­-Usul" (2 vols, Cairo, 1356).
8-The main substantial difference between Shi'i and Sunniijma` is that the former must contain the opinion of the Imam in the consensus. The discussion of how this can be achieved during the Imam's occultation forms one of the important parts of the science of usul.
9-Jamal al­-Din Abu Mansur, Hasan b. Yusuf b. `Ali b. Mutahhar, the `Allama al­-Hilli (648/1250-726/1325), the famous legist, philosopher and mutakallim, author of "Tahdhib Tariq al­ Wusul ila `ilm al­-Usul'' (Tehran, 1308).

Taken from:al-serat; Vol X, No. 1