Sources of Islamic law Various sources of Islamic Islamic law are used by Islamic Islamic jurisprud jurisprudence ence to elucidate elucidate the Sharia, the body of Islamic law. The primary sources, accepted universally by all Muslims, are the Qur'an and Sunnah. The Qur'an is the holy scripture of Islam, believed by Muslims to be the direct and unaltered word of llah. The Sunnah consists of the reli!ious actions and "uotations of the Islamic #rophet Muhammad and narrated throu!h his $ompanions and Shia Imams. %owever, some schools of jurisprudence use different methods to jud!e the source's level of authenticity. authenticity. s Islamic re!ulations stated in the primary sources do not e&plicitly deal with every every concei conceivab vable le eventu eventuali ality ty,, jurisp jurisprud rudenc encee must must refer refer to resourc resources es and authentic documents to find the correct course of action. ccordin! to Sunni schools of law, secondary sources of Islamic law are consensus amon! Muslims jurists, analo!ical deduction, al(a'y) independent reasonin!, benefit for the $omm $ommun unit ity y and and $ust $ustom om.. %ana %anafi fi scho school ol fre"u fre"uen entl tly y reli relies es on anal analo! o!ic ical al deduction and independent reasonin!, and Mali*i and %anbali !enerally use the %adith instead. Shafi'i school uses Sunnah more than %anafi and analo!y more than two others. mon! Shia, +suli school of a'fari jurisprudence uses four sources, which are Qur'an, Sunnah, consensus and a"l. They use ijma under special conditions and rely on a"l -intellect to find !eneral principles based on the Qur'an and Sunnah, and use usul alfi"h as methodolo!y to interpret the Qur'an and Sunnah in different circumstances, and *hbari afaris rely more on %adi %adith th and and reje reject ct ijti ijtiha had. d. ccor ccordi din! n! to Mom Momen, en, desp despit itee cons consid ider erab able le differences in the principles of jurisprudence between Shia and the four Sunni schools of law, there are fewer differences in the practical application of jurisprudence to ritual observances observances and social transactions transactions #rimary sources The Qur'an is the first and most important source of Islamic law. /elieved /elieved to be the direct word of 0od as revealed to Muhammad throu!h an!el 0abriel in Mecca and Medina, the scripture specifies the moral, philosophical, social, political and economic basis on which a society should be constructed. The verses verses reveal revealed ed in Mecca Mecca deal deal with with philos philosoph ophica icall and theolo theolo!ic !ical al issues issues,, whereas those revealed in Medina are concerned with socioeconomic laws. The Qur'an was written and preserved durin! the life of Muhammad, and compiled soon after his death. Muslim jurists a!ree that the Qur'an in its entirety is not a le!al code -used in the modern sense) rather its purpose is to lay down a way of life which
re!ulates man's relationship with others and 0od. The verses of the Qur'an are cate!ori1ed into three fields2 3science of speculative theolo!y3, 3ethical principles3 and 3rules of human conduct3. The third cate!ory is directly concerned with Islamic a le!al matter which contains about five hundred verses or one thirteenth of it. The tas* of interpretin! the Qur'an has led to various opinions and jud!ments. The interpretations of the verses by Muhammad's companions for Sunnis and Imams for Shias are considered the most authentic, since they *new why, where and on what occasion each verse was revealed. Sunnah The Sunnah is the ne&t important source, and is commonly defined as 3the traditions and customs of Muhammad3 or 3the words, actions and silent assertions of him3. It includes the everyday sayin!s and utterances of Muhammad, his acts, his tacit consent, and ac*nowled!ments of statements and activities. ccordin! to Shi'ite jurists, the sunnah also includes the words, deeds and ac*nowled!ments of the twelve Imams and 4atimah, Muhammad's dau!hter, who are believed to be infallible. ustification for usin! the Sunnah as a source of law can be found in the Q ur'an. The Qur'an commands Muslims to follow Muhammad. 5urin! his lifetime, Muhammad made it clear that his traditions -alon! with the Qur'an should be followed after his death. The overwhelmin! majority of Muslims consider the sunnah to be essential supplements to and clarifications of the Qur'an. In Islamic jurisprudence, the Qur'an contains many rules for the behavior e&pected of Muslims but there are no specific Qur'anic rules on many reli!ious and practical matters. Muslims believe that they can loo* at the way of life, or sunnah, of Muhammad and his companions to discover what to imitate and what to avoid. Much of the sunnah is recorded in the %adith. Initially, Muhammad had instructed his followers not to write down his acts, so they may not confuse it with the Qur'an. %owever, he did as* his followers to disseminate his sayin!s orally. s lon! as he was alive, any doubtful record could be confirmed as true or false by simply as*in! him. %is death, however, !ave rise to confusion over Muhammad's conduct. Thus the %adith were established. 5ue to problems of authenticity, the science of %adith -rabic2 6+lum alhadith is established. It is a method of te&tual criticism developed by early Muslim scholars in determinin! the veracity of reports attributed to Muhammad. This is achieved by analy1in! the te&t of the report, the scale of the report's transmission, the routes throu!h which the report was transmitted, and the individual narrators involved in its transmission. 7n the basis of these criteria, various %adith classifications developed.
To establish the authenticity of a particular %adith or report, it had to be chec*ed by followin! the chain of transmission -isnad. Thus the reporters had to cite their reference, and their reference's reference all the way bac* to Muhammad. ll the references in the chain had to have a reputation for honesty and possessin! a !ood retentive memory. Thus bio!raphical analysis -6ilm al rij8l, lit. 3science of people3, which contains details about the transmitter are scrutini1ed. This includes analy1in! their date and place of birth) familial connections) teachers and students) reli!iosity) moral behaviour) literary output) their travels) as well as their date of death. /ased upon these criteria, the reliability -thi"8t of the transmitter is assessed. lso determined is whether the individual was actually able to transmit the report, which is deduced from their contemporaneity and !eo!raphical pro&imity with the other transmitters in the chain. 9&les of bio!raphical dictionaries include Ibn %ajar als"alani's 3Tahdh:b alTahdh:b3 or al5hahabi's 3Tadh*irat alhuff81.3; +sin! this criteria, %adith are classified into three cate!ories2 <. +ndubitable -mutawatir, which are very widely *nown, and bac*ed up by numerous references. =. >idespread -mashhur, which are widely *nown, but bac*ed up with few ori!inal references. ?. Isolated or Sin!le -wahid, which are bac*ed up by too few and often discontinuous references. Secondary sources ll medieval Muslim jurists rejected arbitrary opinion, and instead developed various secondary sources, also *nown as juristic principles or doctrines to follow in case the primary sources -i.e. the Qur'an and Sunnah are silent on the issue. Ijma The ijma' , or consensus amon!st Muslim jurists on a particular le!al issue, constitutes the third source of Islamic law. Muslim jurists provide many verses of the Qur'an that le!itimi1e ijma' as a source of le!islation. Muhammad himself said2 @ 3My followers will never a!ree upon an error or what is wron!3, @ 30od's hand is with the entire community3.
In history, it has been the most important factor in definin! the meanin! of the other sources and thus in formulatin! the doctrine and practice of the Muslim community. This is so because ijma' represents the unanimous a!reement of Muslims on a re!ulation or law at any !iven time. There are various views on ijma' amon! Muslims. Sunni jurists consider ijma' as a source, in matters of le!islation, as important as the Qur'an and Sunnah. Shiite jurists, however, consider ijma' as source of secondary importance, and a source that is, unli*e the Qur'an and Sunnah, not free from error. Ijma' was always used to refer to a!reement reached in the past, either remote or near. mon!st the Sunni jurists there is diversity on who is eli!ible to participate in ijma' , as shown in the followin! table2 School jurisprudence %anafi Shafi'i Mali*i %anbali +suli
of 4ormation of ijma'
(ationale
throu!h public a!reement of jurists the jurists are e&perts on le!al matters Islamic throu!h a!reement of the entire the people cannot a!ree on anythin! erroneous community and public at lar!e throu!h a!reement amon!st theIslamic tradition says 3Medina e&pels bad residents of Medina, the first people li*e the furnace e&pels impurities from Islamic capital iron3 throu!h a!reement and practice of they were the most *nowled!eable on reli!ious Muhammad's $ompanions matters and ri!htly !uided only the consensus of the ulama of consensus is not !enuinely bindin! in its own the same period as the #rophet or ri!ht, rather it is bindin! in as much as it is a Shia Imams is bindin!. means of discoverin! the Sunnah.
In modern Muslim usa!e it is no lon!er associated with traditional authority and appears as democratic institution and an instrument of reform. Qiyas Qiyas or analo!ical deduction is the fourth source of Sharia for the Sunni jurisprudence. Shiites do not accept "iyas, but replace it with reason -a"l. Qiyas is the process of le!al deduction accordin! to which the jurist, confronted with an unprecedented case, bases his or her ar!ument on the lo!ic used in the Qur'an and Sunnah. Qiyas must not be based on arbitrary jud!ment, but rather be firmly rooted in the primary sources. Supporters of "iyas will often point to passa!es in the Qur'an that describe an application of a similar process by past Islamic communities. ccordin! to %adith, Muhammad said2 3>here there is no revealed injunction, I will jud!e
amon!st you accordin! to reason.3 4urther, he e&tended the ri!ht to reason to others. 4inally, "iyas is sanctioned by the ijma, or consensus, amon!st Muhammad's companions. The success and e&pansion of Islam brou!ht it into contact with different cultures, societies and traditions, such as those of /y1antines and #ersians. >ith such contact, new problems emer!ed for Islamic law to tac*le. Moreover, there was a si!nificant distance between Medina, the Islamic capital, and the Muslims on the periphery on the Islamic state. Thus far off jurists had to find novel Islamic solutions without the close supervision of the hub of Islamic law -bac* in Medina. 5urin! the +mayyad dynasty, the concept of "iyas was abused by the rulers. The bbasids, who succeeded the +mmayads defined it more strictly, in an attempt to apply it more consistently. The !eneral principle behind the process of "iyas is based on the understandin! that every le!al injunction !uarantees a beneficial and welfare satisfyin! objective. Thus, if the cause of an injunction can be deduced from the primary sources, then analo!ical deduction can be applied to cases with similar causes. 4or e&le, wine is prohibited in Islam because of its into&icatin! property. Thus "iyas leads to the conclusion that all into&icants are forbidden. The %anafi school of thou!ht very stron!ly supports "iyas. Imam bu %anifa, an important practitioner of "iyas, elevated "iyas to a position of !reat si!nificance in Islamic law. bu %anifa e&tended the ri!id principle of basin! rulin!s on the Qur'an and Sunnah to incorporate opinion and e&ercise of free thou!ht by jurists. In order to respond suitably to emer!in! problems, he based his jud!ments, li*e other jurists, on the e&plicit meanin!s of primary te&ts -the Qur'an and sunnah. /ut, he also considered the 3spirit3 of Islamic teachin!s, as well as the whether the rulin! would be in the interest of the objectives of Islam. Such rulin!s were based on public interest and the welfare of the Muslim community. “ The knowledge of ours is an opinion, it is the best we have been able to achieve. He who is able to arrive at different conclusions is entitled to his own opinion as we are entitled to our own. ” Abu Hanifa
The Shafi'i school of thou!ht accepts "iyas as a valid source. Imam Shafi'i, however, considered it a wea* source, and tried to limit the cases where jurists would need to resort to "iyas. %e critici1ed and rejected analo!ical deductions that were not firmly rooted in the Qur'an and sunnah. ccordin! to Shafi'i, if analo!ical deductions were not strictly rooted in primary sources, they would have adverse effects. 7ne such conse"uence could be variety of different
rulin!s in the same subject. Such a situation, he ar!ued, would undermine the predictability and uniformity of a sound le!al system. Imam Mali* accepted "iyas as a valid source of le!islation. 4or him, if a parallel could be established between the effective cause of a law in the primary sources and a new case, then analo!ical deduction could be viable tool. Mali*, however, went beyond his adherence to 3strict analo!y3 and proposed pronouncements on the basis of what jurists considered was 3public !ood3. #reference bu %anifa developed a new source called istihsan, or juristic preference, as a form of analo!ical deduction -"iyas. Istihsan is defined as2 @ Means to see* ease and convenience, @ To adopt tolerance and moderation, @ To overrule analo!ical deduction, if necessary. The source, inspired by the principle of conscience, is a last resort if none of the widely accepted sources are applicable to a problem. It involves !ivin! favor to rulin!s that dispel hardship and brin! ease to people. This doctrine was justified directly by the Qur'an2 3llah desires you ease and !ood, not hardship3.Thou!h its main adherents were bu %anifa and his pupils -such as bu Ausuf, Mali* and his students made use of it to some de!ree. The source was subject to e&tensive discussion and ar!umentation, and its opponents claimed that it often departs from the primary sources. This doctrine was useful in the Islamic world outside the Middle 9ast where the Muslims encountered environments and challen!es they had been unfamiliar with in rabia. 7ne e&le of isthisan is cited as follows2 If a well is contaminated it may not be used for ritual purification. Istihsan su!!ests that withdrawin! a certain number of buc*ets of water from the well will remove the impurities. nalo!ical deduction -"iyas, however, says that despite removin! some of the water, a small concentration of contaminants will always remain in the well -or the well walls renderin! the well impure. The application of analo!ical deduction means the public may not use the well, and therefore causes hardship. Thus the principle of istihsan is applied, and the public may use the well for ritual purification.
#ublic !ood Imam Mali* developed a tertiary source called almaslaha almursalah, which means social benefit. ccordin! to this source of Islamic law, rulin!s can be pronounced in accordance with the 3underlyin! meanin! of the revealed te&t in the li!ht of public interest3. In this case the jurists uses his wisdom to pursue public interest. This source is rejected by the Shafi'is. Te&tual indication Shafi'i accepted cases in which he had to be more fle&ible with the application of Qisas. Similar to bu %anifa and Imam Mali*, he developed a tertiary source of le!islation. The Shafi'i school adopted istidlal, a process of see*in! !uidance from the source. Istidlal allowed the jurists to avoid 3strict analo!y3 in a case where no clear precedent could be found. In this case, public interest was distin!uished as a basis for le!islation. Scholars divide istdilal into three types. The first is the e&pression of the connection e&istin! between one proposition and another without any specific effective cause. Be&t, istidlal could mean presumption that a state of thin!s, which is not proved to have ceased, still continues. The final type of istidlal is the authority as to the revealed laws previous to Islam. Some 0eneral Terms >ajib obli!atory, necessary, incumbent. n act which must be performed. Aou will be rewarded for performin! it and punished for ne!lectin! it, e.!., the daily prayers, the fastin! of (amadhan. Ihtiyat wajib C #recautionarily obli!atory. Its si!nificance is the same as that of wajib with the difference that in the problems where a mujtahid says it is 3precautionarily obli!atory3, one has the option of leavin! his ta"lid -followin! in this particular problem and followin! the rulin!s of the secondbest mujtahid in that problem. %aram C 4orbidden, prohibited. It is necessary to abstain from the acts which are haram. If someone performs a haram act, he will be punished, e.!., eatin! por*.
Sunnat, Mustahab C (ecommendable, desirable. The acts whose ne!lect is not punished, but whose performance is rewarded, e.!., the call for prayers -adhan. Ma*ruh C (eprehensible, disli*ed. The acts whose performance is not punished, but whose avoidance is rewarded, e.!., eatin! in the state of janabat. a'i1, %alal, Mubah C #ermitted, allowed, lawful, le!al. The acts or the thin! which are permitted and lawful. There is no reward for performin! it and no punishment for ne!lectin! it, e.!., drin*in! tea. Mubah is e&clusively used for lawful thin!s, not for permitted actions. <. >hat is ta"lidD J K ta"l:d is an rabic term meanin! 3to follow Ta"lid or ta"leed -rabic EFGH -someone3 or 3to imitate3. In Islamic le!al terminolo!y it refers to the practice of followin! the decisions of a reli!ious authority without necessarily e&aminin! the scriptural basis or reasonin! of that decision. In Islamic theolo!y ta"lid of someone re!arded as a hi!her reli!ious authority -e.!. an '8lim is acceptable in the details of reli!ion, such as matters of worship and personal affairs, but not in the fundamentals of the faith.Most often, this refers to the adherence to one of the five classical schools of fi"h, or jurisprudence, *nown as madhhab. Ta"lid literally means 3to follow -someone3, 3to imitate3. In Islamic le!al terminolo!y it means to follow a mujtahid in reli!ious laws and commandment as he has derived them. mujtahid is a person who is an e&pert of Islamic jurisprudence -fi"h) he is also called a fa"ih. In order to see where and why the practice of ta"lid !ained acceptance in the Shi'i world, it is necessary first to e&plain it in some detail. Man's nature dictates that he can only function properly within a society, and a society depends for its e&istence on laws and re!ulations. Islam teaches that llah has sent a series of messen!ers and prophets with divine laws for man's !uidance from the very be!innin! of his e&istence. The final Messen!er and #rophet was Muhammad bin 6bdullah -may the peace and blessin!s of llah be upon him and his %ousehold who brou!ht the last and most perfect of
0od's reli!ious messa!es, Islam, which is to serve as a !uide for man*ind till the end of time. llah is the $reator of man and the universe, and so only %e can, or has the ri!ht, to ma*e laws for us. The prophets and messen!ers are merely the teachers and proclaimers of llah's laws and re!ulations) they cannot ma*e laws themselves. The teachin!s of Shi'ah Islam say that the Imam is the successor of the #rophet and acts as the preserver and interpreter of Islam and its divine law, the shari'ah. In the earliest period of Islamic history, the #rophet !uided the Muslim community -ummah in every step it made, and was there to solve all its difficulties. 4rom the time of the first Imam, 6li, until the death of the eleventh, the Imam %asan al6s*ari, peace be upon them, the Shi'ah received !uidance directly from the Imams. Then, durin! the period of the Lesser 7ccultation -al!haybatu 'ssu!hra of the Twelfth Imam, he himself successively appointed four representatives who acted as the lin* between the Imam and his Shi'ahs. %owever, when the present Imam, peace be upon him, went into his 0reater 7ccultation -al!haybatu 'l*ubra in ?=NO< in obedience to llah's command, the Shi'ah were obli!ed to observe ta"lid in their reli!ious affairs. =. Is ta"lid reasonable in a time of widespread educationD It is not always reasonable to follow others and to hold uncritical faith in their opinions. >e can distin!uish four possible forms that imitation could ta*e2 a that of an i!norant person by an i!norant person, b that of a learned person by a more learned person,
c that of an i!norant person by a learned person, d that of a learned person by a less learned person. It is "uite clear that the first three forms of imitation are unreasonable and can serve no purpose. %owever, the fourth *ind is obviously not only reasonable, but also necessary and a matter of common sense) in our everyday life we follow and imitate others in many thin!s) we li*e to feel that we are ta*in! the advice of e&perts in matters outside our own *nowled!e. Someone who wishes to build a house e&plains the basic idea of what he wants to his builder and then submits to his advice as to how he should !o about the actual construction) the invalid follows the treatment advised by his doctor) a liti!ant consults a lawyer when drawin! up his case for presentation in court. The e&les are abundant) in most cases the advice is ta*en voluntarily, but sometimes the citi1en in a
country may be re"uired by law to see* e&pert advice and act upon it, before, for e&le, he is allowed to ta*e some particularly dan!erous dru!. The clearest e&le is obviously in case of a le!al dispute between two parties, where they are re"uired to ta*e their !rievances before a jud!e and abide by his decision if they cannot settle their dispute amicably. The practice of ta"lid is an e&le of the same *ind2 the person who is not an e&pert in jurisprudence is le!ally re"uired to follow the instructions of the e&pert, i.e., the mujtahid. nd in this case the re"uirement is an obli!ation which must be observed, for it is an essential part of the divine law. It should be observed that ta"lid pertains only to the realm of the shari'ah) there can be no ta"lid in the matters of belief -usulu 'ddin. Muslim must hold his belief in the fundamentals of his reli!ion after attainin! conviction of their truth throu!h e&amination and reflection. The Qur'an very clearly condemns those who follow others blindly in matters of belief2. nd when it is said to them, 3$ome now to what llah has sent down, and the Messen!er,3 they say, 39nou!h for us is what we found our fathers doin!3. >hat, even if their fathers had *nowled!e of nau!ht and were not ri!htly!uidedD -P2<O This stron! condemnation of the idolworshippers is repeated elsewhere2 nd when it is said to them, 34ollow what llah has sent down,3 they say, 3Bo, but we will follow such thin!s as we found our fathers doin!.3 -=2
?. Ta"lid in the Qur'an and ahadith The Qur'an instructs Muslis to seek guidance fro people of learning in atters about which the! lack knowledge"
3Question the people of remembrance if you do not *now.3 -=<2R It is an obli!ation in Islamic law to study everythin! which is necessary for the spiritual and material development and wellbein! of an Islamic community, but it is an obli!ation which is *nown as wajib *ifa'i. In the present instance, for e&le, an Islamic society has need of e&perts in the medical sciences, in physics and chemistry, en!ineerin!, education, and so forth, and as lon! as there is a lac* of *nowled!e in these areas it is an obli!ation on the community as a whole to ac"uire it, which means that a !roup of Muslims should devote themselves to research so as to benefit the Islamic people as a whole. Similarly, an Islamic society without e&perts in the shari'ah cannot properly consider itself Islamic, so it is an obli!ation for a !roup of persons from this society to devote themselves to the study of the reli!ious sciences, so as to provide divine !uidance for all Muslims. This is the meanin! contained in the verse of the Qur'an which states2 3/ut why should not a party from every section of them -the believers !o forth to become learned in the reli!ion, and to warn their people when they return to them, that they may bewareD3 -2<=O It is clear that the Imams used to be pleased if any of their companions tau!ht reli!ion or !ave le!al rulin!s -fatwa to others. There are a number of documented cases of Shi'ahs who lived far from Medina as*in! the Imam of the time to appoint someone in their locality to adjudicate between them in reli!ious problems. a*ariyyah ibn dam alQummi and Aunus bin 6bduU r (ahman, for e&le, were named by Imam 6li ar(ida' to solve disputes in their own districts. In a famous hadith, 6+mar ibn %an1alah as*ed Imam a6far asSadi", peace be upon him, about the le!ality of two Shi'ahs see*in! a verdict from an ille!itimate ruler in a dispute over a debt or a le!acy. The Imam's answer was that it was absolutely forbidden to do so. Then Ibn %an1alah as*ed what the two should do, and the Imam replied2 3They must see* out one of you who narrates our traditions, who is versed in what is permissible and what is forbidden, who is wellac"uainted with our laws and ordinances, and accept him as jud!e and arbiter, for I appoint him as jud!e over you. If the rulin! which he based on our laws is rejected, this rejection will be tantamount to i!norin! the order of llah and rejectin! us is the same as rejectin! llah, and this is the same as polytheism.3
In another tradition from Imam a'far asSadi", this time narrated by Imam %asan al6s*ari, peace be upon them, he says, 3...but if there is anyone amon! the fu"aha' who is in control over his own self, protects his reli!ion, suppresses his evil desires and is obedient to the commands of his Master, then the people should follow him.3 third hadith is from the #resent Imam, Muhammad alMahdi, peace be upon him, who said in a reply to Isha" ibn Aa'"ub2 3s far as newly occurrin! circumstances are concerned, you should turn -for !uidance to the narrators of our ahadith, for they are my proof over you just as I am llah's proof.3 >e can understand two thin!s from these verses of the Qur'an and the ahadith of the Imams2 < there must always be a !roup of fu"aha' in every Muslim society) = those who are not "ualified as fu"aha' or mujtahids, must follow one, and that to !o a!ainst his instruction in reli!ious matters is tantamount to polytheism. O. The necessary conditions for "ualification as amujtahid It can easily be inferred from the second of the ahadith cited above that becomin! an e&pert in fi"h and the other Islamic sciences is not in itself enou!h for "ualification as a mujtahid whom everyone can follow. In addition to this, Islamic law lays down that a mujtahid should be a free man of le!itimate birth who is past the a!e of puberty, sane, an Ithna6ashari Shi'ah, and 6adil, -which can be translated as 'just', but which includes other moral and le!al "ualities, such as piety and abstention from all that the shari6ah forbids and fulfillment of all its obli!ations. As to the #uestion of how an ordinar! believer should discover who the u$tahid he ust follow is, there are three recogni%ed wa!s"
< /y his own personal *nowled!e if he is himself a reli!ious scholar) = /y the testimony of two 6adil, *nowled!eable persons to someone's bein! a mujtahid) ? /y a de!ree of popularity which leaves no doubt as to a persons bein! a mujtahidD Most present day 6ulama' maintain that it is most desirable to follow a mujtahid who is ala6lam. In a !eneral sense this means 'the most learned', but in this specific conte&ts it means the fa"ih who has the !reatest e&pertise in derivin! the rulin!s of the shari6ah from the sources. The a6lam may be reco!ni1ed in any of the three ways a mujtahid can. %owever, it is sometimes difficult for the
Shi'ah 6ulama' to distin!uish whom amon! all the fu"aha' is the most learned, and, as a result, more than one mujtahid may be followed in ta"lid at one time -thou!h not, of course, by the same person, as is the case at present, but any such multiplicity does not result in any practical disa!reement on le!al matters within the Shi'ah community. P. >hy are there differences amon! the mujtahids in their le!al opinionsD Many people wonder why it is that the mujtahids differ in their reli!ious opinions, or fatwas, when the bases of their ijtihad are the same. 4irstly, it should be said that any differences in the fatwas is hardly ever such as to be contradictory) it is almost impossible to find a case of one mujtahid sayin! some action is wajib and another sayin! it is haram. Ta*e, for instance, the case of salatu 'ljum6ah, the 4riday prayer. ll the Shi'ah 6ulama' are of the opinion that in the time of the presence of the Imam this salat is obli!atory on 4ridays, because it is the Imam, or his representative, who has the ri!ht to call the people to 4riday prayer) but they differ as to what is the correct course of action when the Imam is in 7ccultation. This difference of opinion does not, however, create any practical problem for the community. The late yatullah asSayyid Muhsin al%a*im -d. <R was one of the opinion that salatu 'ljum6ah is not obli!atory durin! the 7ccultation of the Imam, but it does not matter if someone performs it supposin! that it is e&pected -of him, provided that he also prays the noon prayer -salatu '11uhr. yatullah asSayyid bu 'lQasim alWhu'i says that 3one can choose between performin! salatu '11uhr or salatu 'ljum6ah, but once the latter is established with all its conditions -fulfilled, it is precautionarily obli!atory to participate in it.3 yatullah asSayyid (uhullah alWhumayni says that 3one can choose between performin! salatu '11uhr or salatu 'ljum6ah, but if one chooses the latter it is advisable -mustahab to precautionarily perform salatu '11uhr also.3 lthou!h there are these differences in the opinions of these mujtahids, there is no clash that would, for e&le, prevent the follower -mu"allid of one of them participatin! in salatu 'ljum6ah if it were established. Secondly, it should be observed that the e&istence of differences in scientific opinions is not to be ta*en as a si!n of a substantial defect in the "uest for *nowled!e and a reason for abandonin! it alto!ether) it is, rather, a si!n that *nowled!e moves in pro!ressive steps towards perfection. 5ifferences of opinions are to be found in all sciences, not just in fi"h. There may, for e&le, be more than one opinion about the therapy for a particular patient's disease, and all of these opinions may be superseded later on by the development of new methods of dealin! with that disease. Thus these
observations can be seen to be relevant not only to differences between the opinions of contemporary scientists but also to historical differences, and all these differences should be re!arded as si!ns of the dynamism within a science and sta!es to be passed in its route to perfection. It should be remembered that the mujtahid formulates his opinions after pushin! his research and study as far as he can) that is all that is e&pected of him, for he is neither inerrant nor an 6alim bi 'l!hayb -*nower of the unseen. The mu"allid is enjoined to follow his opinions. So, even if the mujtahid's fatwa is not actually in a!reement with llah's real command, neither he will be punished on the 5ay of ud!ement for havin! issued the fatwa, nor will his mu"allid for havin! acted accordin! to it, for both will have done what was commanded of them and what was humanly possible for them to do. Ijtihad The purpose in performin! ijtihXd is to try to derive and interpret new rules from the Quran by analo!y, i.e. by comparin! the ayats and hadiths with implied meanin!s to overtly e&pressed ones. 4or instance, the meanin! of the ayat commandin! to obey your parents is, Y5o not say, Z4ie on you, to them[ Bo mention is made to battery or invective. Since the e&clamation Y4ie on you,[ which is by far milder than these forms of maltreatment, is e&pressed literally, mujtahids have deduced by ijtihXd that it must certainly be haram -forbidden to beat or curse or insult ones parents. Li*ewise, the Quran literally prohibits consumption of wine, without namin! the other hard drin*s. The reason for the prohibition of wine is that it blurs ones mind and suspends ones mental activities, as is understood from the e&pression used in the ayat. %ence, mujtahids have deduced by way of ijtihXd that all sorts of drin*s carryin! the features that cause wine must be forbidden as well) so they have stated that all sorts of into&icants are haram. It is indicated that llah commands to Zdo ijtihXd in the Quran. It is understood from various ayat that scholars of hi!h !rade and profound *nowled!e have been enjoined that they should perform ijtihXd. Then, ijtihXd is -an Islamic commandment called far1 enjoined on people in possession of full authority, eli!ibility and e&pertise, i.e. those who have the ability and capacity to understand the rules and matters hidden in the ayats and hadiths whose meanin!s cannot be understood clearly, by way of analo!y, deduction and induction from their si!nifications, tenors of discourse and denotations. In early Islam ijtihad was a commonly used le!al practice, and was well inte!rated with falsafa. It slowly fell out of practice for several reasons, most notably the efforts of sharite theolo!ians from the <=th century, who saw it as leadin! to errors of overconfidence in jud!ement since the time of al0ha1ali.
%e was the most notable of the sharites and his wor*, The Incoherence of the #hilosophers, was the most celebrated statement of this view. It is debated whether l0ha1ali was observin! or creatin! the socalled 3closure of the door of ijtihad3. Some say this had occurred by the be!innin! of the <th century $9, a couple of centuries after the finali1in! of the major collections of hadith. In the words of oseph Schacht2 3hence a consensus !radually established itself to the effect that from that time onwards no one could be deemed to have the necessary "ualifications for independent reasonin! in reli!ious law, and that all future activity would have to be confined to the e&planation, application, and, at the most, interpretation of the doctrine as it had been laid down once and for all.3 This theory has been put in "uestion recently by >ael %alla", who writes that there was also always a minority that claimed that the closin! of the door is wron!, and a properly "ualified scholar must have the ri!ht to perform ijtihad, at all times, not only up until the four schools of law were defined. >hat is clear is that lon! after the <th century the principles of ijtihad continued to be discussed in the Islamic le!al literature, and other sharites continued to ar!ue with their Muta1ilite rivals about its applicability to sciences. lmidi -<=?? mentions twelve common controversies about ijtihad in his boo* about usul alfi"h -the theory of Islamic law, amon!st others, the "uestion if the #rophet himself depended on ijtihad and if it should be allowed for a mujtahid to follow ta"leed. In Islamic political theory, ijtihad is often counted as one of the essential "ualifications of the caliph, e.!. by l/a!hdadi -<?R or lMawardi -<P\. l0ha1ali dispenses with this "ualification in his le!al theory and dele!ates the e&ercise of ijtihad to the ulema. Ironically, the loss of its application in law seems to have also led to its loss in philosophy and the sciences, which most historians thin* caused Muslim societies to sta!nate before the
Qualifications of a mujtahid mujtahid is an Islamic scholar, competent to interpret divine law -sharia in practical situations usin! ijtihad -independent thou!ht. In some, but not all, Islamic traditions, a mujtahid can specialise in a branch of sharia economic or family law for e&le. The "ualifications for a mujtahid were set out by bul %usayn al/asri -died O]R % N <\? $9 in Yal Mutamad fi +sul al4i"h[ and accepted by later Sunni scholars, includin! al0ha1ali. These "ualifications can be summed up as -ian understandin! of the objectives of the sharia, and -ii a *nowled!e of its sources and methods of deduction. They include2 @ a competence in the rabic lan!ua!e which allows himNher to have a correct understandin! of the Quran . That is, sNhe must appreciate the subtleties of the lan!ua!e so as to be able to draw accurate deductions from the Yclear and un croo*ed rabic[ of this infallible source, and that of the sunnah. @ an ade"uate *nowled!e of the Meccan and Medinese contents of the Qu'ran, the events surroundin! their revelation and the incidences of abro!ation -suspendin! or repealin! a rulin! revealed therein. SNhe must be fully ac"uainted with its le!al contents -the ayat alah*am some P verses, accordin! to al0ha1ali. SNhe need not have a detailed *nowled!e the narratives and parables, nor of the sections relatin! to the hereafter, but sNhe must be able to use these to infer a le!al rule. SNhe needs to be ac"uainted with all the classical commentaries on the ayat alah*am, especially the views of the $ompanions of the #rophet. @ n ade"uate *nowled!e of the sunnah, especially those related to his specialisation. SNhe needs to *now the relative reliability of the narrators of the hadith, and be able to distin!uish between the reliable from the wea*. SNhe needs to have a thorou!h *nowled!e of incidences of abro!ation, distin!uish between the !eneral and specific, the absolute and the "ualified. 7ne estimate -by hmad ibn %anbal su!!ests that <,= hadith need to be *nown. @ SNhe should be able to verify the consensus ijma of the $ompanions of the #rophet, the successors and the leadin! imams and mujtahideen of the past, especially with re!ard to hisNher specialisation. $omplementary to this, sNhe should be familiar with the issues on which there is no consensus.
@ SNhe should have a thorou!h *nowled!e of the rules and procedures for reasonin! by analo!y -"iyas so sNhe can apply revealed law to an unprecedented case. @ SNhe should understand the revealed purposes of sharia, which relate to 3considerations of public interest3, includin! the 4ive #illars protection of 3life, reli!ion, intellect, linea!e3 and property. SNhe should also understand the !eneral ma&ims for the interpretation of sharia, which include the 3removal of hardship3, that 3certainty must prevail over doubt3, and the achievement of a balance between unnecessary ri!idity and too free an interpretation. @ SNhe must practice what sNhe preaches, that is sNhe must be an upri!ht person whose jud!ement people can trust Some Islamic traditions consider that these hi!h conditions cannot be met by anyone nowadays, while for others especially the Shiite tradition they are met in every !eneration. Ijtihad in Twelver Shi'a Islam. Shi'a haw1a students start their studies learnin! fi"h, *alam, hadith, tafsir, philosophy and rabic literature. fter masterin! these levels they can start becomin! mujtahid by studyin! advanced te&tboo*s *nown as sat'h, and research courses *nown as *harij. The following points are presented in order to clarif! the purpose of i$tihad"
@ 0od is allpowerful, all*nowin!. @ 0od created laws for human*ind and only 0od has the authority to do so. @ 0od appointed messen!ers to convey the laws to human*ind. @ 0od appointed imams to !uide human*ind about the laws. @ t present, neither the messen!er -Muhammad, nor the imams -0od appointed leaders are accessible. The current imam, alQaaim alMuntadhar al Mahdi, is in the 7ccultation. @ Therefore, "ualified jurists have the duty to find 0od's law, not create 0od's laws.
@ Therefore, ijtihad is the process of findin! 0od's law from the Qur'an and the hadith usin! specific methods. In modern times Muslims livin! in the >est are subject to secular laws of the state rather than Islamic law. In this conte&t ijtihad becomes mainly a theoretical and ideolo!ical e&ercise without any le!al force. $onservative Muslims say that most Muslims do not have the trainin! in le!al sources to conduct ijtihad. They ar!ue that this role was traditionally !iven to those who have studied for a number of years under a scholar. %owever, liberal movements within Islam !enerally ar!ue that any Muslim can perform ijtihad, !iven that Islam has no !enerally accepted clerical hierarchy or bureaucratic or!ani1ation. Shi'ite jurists maintain that if a solution to a problem can not be found from the primary sources, then a"l or reason should be !iven free rein to deduce a proper response from the primary sources. The process, whereby rational efforts are made by the jurist to arrive at an appropriate rulin!, when applied is called ijtihad -literally meanin! 3e&ertin! oneself3. Shi'ite jurists maintain that "iyas is a specific type of ijtihad. The Sunni Shafi' school of thou!ht, however, holds that both "iyas and ijtihad are the same. Sunni jurists accepted ijtihad as a mechanism for deducin! rulin!s. They, however, announced an end to its practice durin! the thirteenth century. The reason for this was that centers of Islamic learnin! -such as /a!hdad, Bishapur, and /u*hara had fallen into the hands of the Mon!ols. Thus, the 3doors to ijtihad3, were closed. In Sunni Islam, thus, ijtihad was replaced by ta"lid or the acceptance of doctrines developed previously.;=^ Later in Sunni history, however, there were notable instances of jurists usin! reason to rederive law from the first principles. 7ne was Ibn Taymiyya -d. R=\N
mujtahid e&ercise at the same time the powers of a mufti and can !ive fatwa. Some mujtahid have claimed to be mu jaddid, or 3renewer of reli!ion.3 Such persons are thou!ht to appear in every century. In Shi'ite Islam they are re!arded as the spo*espersons of the hidden Imam. +rf The term urf, meanin! 3to *now3, refers to the customs and practices of a !iven society. lthou!h this was not formally included in Islamic law, the Sharia reco!ni1es customs that prevailed at the time of Muhammad but were not abro!ated by the Qur'an or the tradition -called 35ivine silence3. #ractices later innovated are also justified, since Islamic tradition says what the people, in !eneral, consider !ood is also considered as such by 0od. ccordin! to some sources, urf holds as much authority as ijma -consensus, and more than "iyas -analo!ical deduction. +rf is the Islamic e"uivalent of 3common law3. +rf was first reco!ni1ed by b_ A_suf -d. <\=NR\, an early leader of the anaf: school. %owever, it was considered part of the sunnah, and not as formal source. Later alalSara*hs: -d. O\?N<, opposed it, holdin! that custom cannot prevail over a written te&t. ccordin! to Sunni jurisprudence, in the application of urf, custom that is accepted into law should be commonly prevalent in the re!ion, not merely in an isolated locality. If it is in absolute opposition to Islamic te&ts, custom is disre!arded. %owever, if it is in opposition to "iyas -analo!ical deduction, custom is !iven preference. urists also tend to, with caution, !ive precedence to custom over doctoral opinions of hi!hly esteemed scholars. Shia does not consider custom as a source of jurisprudence.
