Ijtihad

. As the divine revelation has ceased after the Prophet's demise PBUH, ijtihad continues as the
main tool of interpreting divine laws while applying them to fluctuating conditions of the world.

The process involves, interpreting divine text, extracting it's effective cause ''illah' and then apply
to new cases, for welfare 'maslahah' purposes as a fresh ijtihad.

Ijtihad is limited to interpreting new cases, as far as it doesn't contradict divine law.

Once the already established matters through Qiyas, Ijma or Ihstishan no longer apply to modern
issues, no longer fulfill objectives of Sharia, Jurist may attempt fresh Ijtihad.

Ijtihad occurs in many forms, analogical reasoning 'qiyas', juristic preference 'istihsan', continuity
'istihsab', and consensus 'ijma'. Qiyas and Ijma are widely recognized but doubts remain about
the validity of ijtihad as a whole.

the sense that legal material occupies only a small portion of its text.

Qu'ranic text governing juristic deductions: "Then ask those who have knowledge, if you
yourselves do not know"

ijtihad is the maximum effort disbursed by the jurist to study and apply the laws and rules of
usul-fiqh.

A prophetic report states: "God doesn't remove knowledge from mankind suddenly, but removes
it when scholars pass away"

According to Rudolph Peters ijtihad means to exert one's effort and derive from the sources of
law, an opinion regarding a specific legal rule. Ijtihad is the opposite of taqlid, which means to
accept an opinion about a legal rule without knowing its source.

Watt Montogomery states that ijtihad, either functions on a basic level or a particular level.
There's disagreement, as to whether the closing of the gate claim is about the former or latter.

Dr Mohammad Iqbal defined Ijtihad as 'to exert and form an independent judgment on a
particular legal question'.
Ijtihad is misunderstood because there are several varying definitions attributed to it, as Hallaq
writes Ijtihad lacks a common set of technical terms. Certain geographical variations also exist,
as in Iraq it is referred to as 'hukumat' but Maliki call it ijtihad.Not being able to find out what
Ijtihad means, doesnt let one ascertain whether the gate is closed or not.

Moreover, confusions exist about who can exercise this rule.

 There are different opinions as to how many levels Ijtihad operates at, Iqbal and Ali held
there are four degrees, beginning from absolute ijtihad that was excercised by the four
imams to the one individuals can carry out. Sell in 1896, wrote there are three stages of
ijtihad. Orientalists such as Gibb generalise Ijtihad and suggest there's only one degree of
ijtihad, argue the gate can never be opened, as that degree can't be achieved.

Did the gate ever close? Three debates: it's closed, it didn't close, and the confused ones.

 Its closed: The 'insidad bab al-ijtihad' argument, suggest the door is closed because by
using Ijma, Muslim scholars closed the gate.
 Orientalists such as, Leon Ostrorog believe that the last reasoning exercised was long
ago, in the 13th century.
 Gibb argues, Ijma decisions have been made, are unalterable and have closed the already
narrowed down gate.
 Brown (1934) believes, the four great lawyers concluded on all legal matters and closed
the gate to be never opened again. Probably because as Gibb asserts they 'feared'
individuals would reinterpret everything.
 Joseph Schacht believes, since the third century, it was widely affirmed that the
newcomers wouldnt do justice to legal reasoning, as leader scholars had, and by 900 C.E
all essential questions had been settled and using Taklid, it was decided to no longer
exercise Ijtihad. Schacht while claiming the door's closed, admits that scholarly work has
been actively carried out ever since? Similar to Gibb's argument, there's a paradox in this
one too.
 Khadduri, argues that taqlid of the ancient four schools defeated ijtihad.
 J.N.D Aderson, also is of the view that once the gate was closed, following muqallids had
the duty of merely accepting and applying settled judgments, duty of taqlid.
 Tritton (1957) provides another paradox, argues Ijtihad is closed but also that blind
imitation/taqlid is wrong too, how did a wrong doctrine close ijtihad?
 Coulson, also asserts ijma which can't be doubted, has put an end to it. According to him,
gate was closed once jurists of the tenth century realized that all creativity had been
spent.
o Dr S. M. Yusuf' argues that Islamic law had developed enough to meet all needs.
Hasan (1967) states that reliance on the primary sources negated the need to rely
on human reasoning.
o K.A. Fariq (1957) states the Ijtihad slowed down in the third century as jurists of
Baghdad realised destructive outcomes of its excercise, as done by the Mu'tazila.
o COUNTERARGUE
o Liebesny, argues that the door is not closed for Shi'i jurists, as they dont imitate
previous scholars.
 o Amir Ali counterargues that prohibition on ijtihad is just to avoid employing legal
reasoning to prohibit polygamy.
o Goldziher, who was highly influential, never mentioned about the door being
closed.
o Hallaq added that, Mujtahids of adequate legal knowledge have existed in all
times and those Jurists who opposed Ijtihad, such as the Zahiri's, were excluded.
o Abdul Rahim also highlights the absence of any written evidence recorded by
disciples of leading Jurists.
 As argued by Khuwa Bukhash the numerous sects that exist, within Sunni, Shi'i,
Kharijite, Mutazila, Jahmiyya, etc, wouldn't prosper if doctrines like Ijtihad weren't
exercised.
o Similarly, Muhammad Iqbal argues that Ijtihad is being practiced till date,
because the Ancient jurists never closed it. He adds that this is just a fiction
supported by intellectually lazy jurists.
o the middle ground:
o Mohammad Shafti adopted a neutral stance, stating that Ijtihad can be used only
when novel cases arise.
o Shawkani (1832) states even if the gate wasnt closed, the ancient schools were
contemplating the possibility, the Shafi'is, Malikis and Hanafis.
o Ahmed (1964) states, even though the gate wasnt closed, Ijtihad was rarely
excercised.
o Bernard Weiss (1978) argues there existed a "common hesitation" after the third
century to practice ijtihad but that inquiry remains active throughout Fiqh. He
concludes that excessive Ijtihad would mean a threat to law and social stability.
o Said (1978) blames the orientalists for having created the myth of Ijtihad's
closure, and generalizing Islam as backward with no applicability to modern law.

EXISTS
 Since 5th to 11th century, Ijtihad got divided into to parts, independant and limited
Ijtihad.
 In first two centuries Ijtihad was exercised by any scholar but later this duty was
entrusted to specialists.
 Ijtihad is a part of the growing Islamic law and the counterargument of its closure is
based on superficial points.
 W. M. Watt noticed inaccuracies in opinions about Ijtihad but has not failed to formulate
an alternative view.
 Wael argues that Juristic reasoning, being backed by Quranic sanctions is obligatory on
the Muslims so they must not stop employing divine law to all affairs because if not a
single person performs Ijtihad, Muslim community fails to fulfil it's duty.
 Qualifications of Mujtahids
 Orientalists argue the gate is closed because the qualifications required in a Mujtahid are
very high. However, the criteria found in the writings of Abu Husayn al-Basri (436/1044)
states, sound knowledge of the Quran, the Sunna, and principles of inference (istidlal),
 and qiyas, are required. The Mujtahid should investigate the transmission and
transmitters of Hadith, to verify Prophetic reports. It's shown that qiyas, its rule of 'illa,
asl (the legal part in the texts), far', and hukm are essential tools in undertaking ijtihad.
The Mujtahid must have precise knowledge of the principles of metaphors,
particularization, and abrogation, the Arabic language and customary law ('urf) and must
know God's attributes. Further elements laid down: Ghazali (d. 505/11111) said about the
criteria being, knowledge of important verses but memorization is not needed, knowing
the hadith literature, keeping copies of Abu Dawud or Bayhaqi's collections. Mujtahid
must not deviate from the established laws, or deny them. Must know how to derive legal
evidence.
 The practice of ijtihad was further facilitated by removing the charge of sin from the
mujtahid who commits an error and even made him entitled to one reward in heaven.
 Anti Ijtihad and exclusion from Sunnism:
 Qiyas being the backbone of Ijtihad, when was sought to be replaced by Taqlid, as
evidenced by the writing of Ibn-Salah, Sunni schools began considering Zahiris as
illegitimate. Ibn Hazm aa Zahiri was forced to flee his country.
 EVIDENCE OFIJTIHAD:
 Jurists such as Ibn Suray, Tabari, Ibn Khuzayma belonged to Shafi schools but later
diverged and formed independent theories, Tabari even created his own school of law.
 Jurists often diverged from the Ancient schools they initially followed, Abu Abi Hurayra,
Ibn Harbaway, Abu S'aid from Shafi law and Hasan al-Tanukhi from Hanafi etc.
 While after the fifth/eleventh-century jurists didn't attempt to establish own schools but
the activity of deriving solutions for new problems continued indefinitely.
 Ijtihad in Law and Government in the Fifth/Eleventh Century:
 Abd al-Jabbar (d. 415/1024) and his disciple, Abu Husayn al-Basri, deemed ijtihad to be
an indispensable ingredient in law
 Baghdadi (d. 429/1037) considers the ability to practice ijtihad as one of the four
conditions that a leader/caliph must satisfy to rule efficiently. The same condition is
required by Mawardi, who explains that ijtihad must be one of the Imam's skills because
knowledge of law and of the means by which new problems (nawazil) must be solved are
an essential part of his duties.
 Mawardi further states that delegated officials of every state shall use their own reasoning
along with the judges and Muftis. Mawardi qas titled as the 'the most qualified of
scholars' while also being a Mujtahid.
 that ijtihad is not a requirement to be necessarily fulfilled by the Imam himself. Ghazali
argued, what difference does it make if the Imam reaches a legal opinion through his own
interpretation or through the interpretation of a mujtahid?
 The political theory of Juwayni and Ghazali, let alone that of Mawardi, Baghdadi and
others, leads to the conclusion that ijtihad was considered an essential element both in the
political and the legal life of Islam up to at least the end of the fifth/eleventh century.
 The Ijtihad of Juwayni, Ghazali, and Ibn 'Aqil:
 In eleventh century, Juwayni, Ghazali, and Ibn 'Aqil were regarded as qualified
Mujtahids.
 Juwayni belonged to the Shafi and Ashari schools, Two of his prominent works, Al-
Burhan and Al-Nihaya, are regarded as unique, unprecedented and independent of outer
 influence. as Abu al-Fida remarked that Juwayni claimed for himself the rank of
independent mujtahid by going against the Salaf, forefathers
 Ghazali reached the rank of mujtahid fi al-madhhab. Apart from his argument that he is a
mujtahid who had abandoned the practice of taqlid, he is the first scholar known to have
claimed that he was chosen by God to revive the religion of Islam
 Ibn al-Najjar writes a universal consensus had taken place concerning the fact that
Ghazali was the mujtahid of his time.. To Ghazali, only two kinds of mujtahids were
known, the independent (mutlaq) and the limited (muqayyad). The latter's activity
remains within the limits of his school..
 For a jurist to not practice Taqlid he must be of high caliber and knowledge.
 Unlike Ibn 'Aqil, he was satisfied with a rank lower than that of Shafi'i. Ibn 'Aqil refused
to accept for himself and for his colleagues such a relatively modest role. Ibn 'Aqil
openly declared that any legal opinion must be guided by a textual dalil (evidence)
 The Role of ijtihad in Developing Positive Law:
 Legal thought is reported to have gotten refined after the fifth and sixth Islamic centuries.
The law of the Hanbali school was completely developed by the seventh/thirteenth
century through Ibn Qudama's al-Mughni. Even Hanafi law went through refinement in
the fifth/eleventh centuries, as material, terminology, and technical legal thought
developed and reformulation of doctrines by works of Quduri and Sarakhsi, Ala' al-Din
al-Samarqandi and Kasani took place.
 The only way of the gate closing was to prove that all scholars had died, To maintain
this posture, a prophetic report was adduced over and over again: "God does not
remove knowledge suddenly from mankind (while alive) but removes it when
scholars pass away

Do Mujtahids exist?

Hanbali view is that a mujtahid must exist at all times, basing it on three Prophetic reports, that
say learned men will lead the community of Muhammad PBUHat all times, and secondly that the
practice of ijtihad is a religious duty.

Amidi contradicts and says that ijtihad is not a duty, because laws from the ancestors are widely
available.

 Ansari (d. 1119/1707) was of the view that mujtahids like Hanafi, Hanbali dont exist but
less qualified may exist.