IN THE NAME OF ALLAH ALMIGHTY

Subject: Islamic Jurisprudence Instructor: Tayyab Haneef

Class: LLB, B.A, LLB (Hons) Lahore Leads University, Pakistan

Ijtihad (‫ )اﺟﺗﮩﺎد‬as a Source of Islamic Law

Introduction:
The revelation from Allah Almighty was completed at the time of death of

the Prophet Muhammad (PBUH) in the form of Quran and Sunnah. Ijtihad,

however, continues and this is the source or methodology which gives Islamic law,

its adaptability to new situations and capacity to tackle all new issues and

problems. The various sources of Islamic law that feature next to the Qur'an and

the Sunnah are all demonstration of ijtihad. In this way, Ijma, Qiyas, Istihsan,

etc., are all inter-related and come under the main heading of ijtihad. Itjihad in its

widest sense means the use of human reason in the elaboration and explanation of

the Shari'ah.

Purpose of Ijtihad:

 The primary object is to discover the intention of the Ultimate Lawgiver,

Allah Almighty.
 To find solution of new legal issues

Why did the necessity of Ijtihad arise?

The term Ijtihad means to derive and deduce religious opinion about some matter
that is not mentioned in the sources of Islam, keeping in view the spirit and overall
framework of Islam. For example, matters like jobs in banks, organ donation, test-
tube baby and suicide attacks are some of the recent issues and one needs to
know whether they are permitted by religion or not. It is in such matters that
need for Ijtihad arises.

Meanings of Ijtihad:

a. Literal Meanings

Literally, the word Ijtihad has been derived from an Arabic word “Jahad” (‫)ﺟﮭد‬
which means
 To strike hard or to struggle.
 The expanding of the maximum effort in performance of an act or job.’
 ’Juhd’ means employing ones complete strength, and‘jahd' means hardship
and difficulty. ( Al‑Nihayah)
 Ibn Manzur al-Misri says: Jahd and juhd mean power and strength

b. Technical Sense
 It is the effort made by Mujtahid in seeking knowledge of the Ahkam (rules)
of the Shariah through interpretation.

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  Ijtihad is the application by a jurist of all his faculties either in inferring
the rules of Shari'ah from their sources, or in implementing such rules and
applying them to particular issues.( Abu Zahrah)
 By ijtihad is meant the exhaustive efforts of a Mujtahid for arriving at
presumption in regard to a hukm of the Shari’ah.
 Faruki defines as “Systematic Reasoning and disciplined striving”
 Ijtihad is an independent judgment on legal issues.
 This process of using human judgment in elaborating Islamic principles or
solving problems.
A person who performs Ijtihad is a Mujtahid; whereas, a person who knows the

rules of Shariah in detail, but is unable to extract rules directly from their

sources, is not a Mujtahid but rather a Faqih, Mufti, or a Qaazi. The female

equivalent is a Mujtahida.
The Proof (Hujjiyyah) of Ijtihad:
Ijtihad is validated by the Qur'an, the Sunnah and the dictates of reason (`aql).
The Qur’anic verses as
‘And to those who exert we show our path’ (29:69)

‘Their affairs are (conducted) by mutual counsel’ and once you have taken a decision, place your

trust in Allah.( Surah Aal Imran,159)

Several Ahadith are quoted in support of Ijtihad. Some of them are very

important. First is the Hadith in which Muadh bin Jabal(r) replied to the Prophet

Muhammad (PUBH) that he would resort to Ijtihad, if he does not find a solution in the

Quran and the Sunnah and the Prophet Muhammad (PBUH) affirmed him (Narrated

by Abu Dawood). Second is the Hadith in which the Prophet Muhammad (PBUH)

said that' When a judge exercises ijtihad and gives a right judgment, he will have two
rewards, but if he errs in his judgment, he will still have earned one reward.' (Abu Dawud,

Sunan)

Third is the Hadith in which the Prophet Muhammad (PBUH) said that ‘when I do not
receive a revelation I adjudicate among you on the basis of my opinion’ (Abu Dawud,Sunan)

There are many examples of how Prophet Muhammad used to make a decision on

the basis of his ijtihad after consulting with his companions: like in strategies of

war and other worldly affairs.

Prophet Muhammad himself stated that in matters that pertained to judgments he

had made decisions based on his ijtihad as said:

“I am only a human being. When a case is presented to me, I might rule in favor of the party who

presents his case in a better way, wrongly leading me to think that he is right. In this case, if I

gave someone something that in fact belongs to his brother rather than himself, he should not

accept it. For the thing that I gave him is nothing but a piece of fire” (Al-Bukhari)

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Who Can Do Ijtihad:
Only a jurist (Mujtahid) may practice ijtihad. Requirements of Ijtihad have been

laid down by some scholars. Nothing has been mentioned in this regard in the

Quran and the Sunnah. Abul Hussain al Basri, laid down for the first time the

qualifications of a Mujtahid in the 5th century Hijra which was later accepted by

Gazali and other scholars. It is true that Ijtihad is the function of the competent

scholars.
Requirements for Mujtahid:
The Mujtahid must be a Muslim male or female of sound mind who has attained a

high level of intellectual competence.

1) Good knowledge of Arabic language.

2) He must be well-versed in the Quran and the Sunnah and related subjects.

3) He must be generally knowledgeable of the Ijtihad carried out by previous

scholars.

4) He must know the Maqasid of Shariah (Objectives of Shariah i.e Protection

of 1.Faith, 2.Life, 3. Lineage, 4. Intellect 5.Property).

5) He must be an upright person and must be capable of distinguishing between

strong and weak evidence.

Procedure of Ijtihad: When clear rule is available in the text (Nass) of the Quran

and the Sunnah, Ijtihad is not applicable. Procedure of Ijtihad is that the Mujtahid

must first look at the Quran and the Sunnah. Only if solution is not found there, he

may resort to Ijtihad.

Some Examples of Ijthad:

Battle of Badr as to what to do with the slaves? Battle of Uhad as to where to fight…

Compilation of Quran by Hazrat Abubakar___ Expedition under Usama Bin

Zayd_____Jihad against Unbelievers of Zakat…. Decisions of Hazrat Umar(r) Hazrat

Usman (r) and Hazrat Ali(r).

Modes of Ijtehad / Legislative Functions of Ijtehad:

Ijtehad can only be performed in following three ways:
1. Literal interpretation: In the first type of Ijtihad the jurist stays as closed as

he can to the texts. He focuses on the literal meaning of the texts.

Firstly, he tries to find explanations for difficult and unelaborated words from the

texts (Quran & Sunnah) themselves, secondly he moves to literature if he does not

find explanations in the texts. We can say that it is an interpretation of the existing laws.

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2. Analogical Extension: This mode is confined to strict types of analogy

(Qiyas). It Extends the laws to new cases that may be similar to the cases

mentioned in the sources for which the laws cannot be discovered through literal

interpretation (this is called the method of analogy, or Qiyas). We can assume that it
is to follow precedents.
3. Extension to New Cases: It extends the laws to new cases that have not been

covered by the previous two methods by looking at the general principles and

objectives of the Shariah (this method is known as Istihsan or Maslaha Mursalah—

general interests of the community). We can presume that it is to enact new laws.

Limitations on Ijtihad:

There is no Ijtihad where the rule in text is explicit. In the other words, when the

rule in the text is so clear that more than one meaning cannot be derived from it,

the jurists is prohibited from under taking Ijtihad on that.

The application of Ijtihad is subject to a few limitations. It can never be exercised

on the following topics.

i. A’qaid (Faith)

ii. Explicit Versus of Holy Quran

iii. Mutawatir Sunnah

iv. Five Pillars of Islam

v. Moral Truths

vi. All definitive and authentic rules of Islam.

For example: 100 stripes in the text pertaining to zina (Unlawful intercourse),

means 100 stripes, nothing more and nothing less,thus there is no ijtihad to

determine the number because it is clear text. However, the meaning of stripes is

not so clear(i.e a stick, a whip or something else) Ijtehad is required.

Types of Ijtihad:
Dr. Yusuf al-Qarazawi mentions that Ijtihad, in the contemporary context,
consists of two kinds:
1. Ijtehad on Jurists’ work(‫ )اﺟﺘﮩﺎد اﻧﺘﻘﺎﻟﯽ‬: Ijtihad based on what our traditional legal
giants have bequeathed to us.
2. Ijtehad on New Issues(‫ )اﺟﺘﮩﺎداﻧﺸﺎئ‬: Ijtihad based on issues the likes of which
were never seen by the previous scholars. These are the new emerging issues of
today.

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The Grades/Types of Jurists(‫ )ﻣﺟﺗﮩدﯾن‬:

1) Mujtahids in Islamic Law (‫)ﻣﺟﺗﮭد ﻓﯽ اﻟﺷرﯾﻌہ‬

He is usually the founder of the school. He lays down the principles of

interpretation for the school like Imam Abu Hanifa, Imam Shafi

2) Mujtahids within the School. (‫)ﻣﺟﺗﮭد ﻓﯽ اﻟﻣذھب‬

Jurists who follow the principles laid down by the founder of the school like Abu
Yusuf, al-Shaybani.

3) Mujtahids on Particular Issues (‫)ﻣﺟﺗﮭد ﻓﯽ اﻟﻣﺳﺎﺋل‬

Jurists who determine answers to cases that are not settled by the previous two
grades like al-Tahavi, al-Sarakhsi

Mujtahids on Particular Issues are further categorized into three types:

1) Ashab al-Takhrij (‫( )اﺻﺣﺎب اﻟﺗﺧرﯾﺞ‬Clarification)

Jurists who clarify the law of all existing cases like Abu Bakr Al-Jassas.
2) Ashab al-Tarjih (‫( )اﺻﺣﺎب اﻟﺗرﺟﯾﺢ‬Preference)
Jurists who prefer the stronger opinions in the school like Al-Kasani.
3) Ashab al-Tashih (‫( )اﺻﺣﺎب اﻟﺗﺻﺣﯾﺢ‬Correction)

Present status of Ijtehad and application in Pakistan:

Ijtehad is primarily a legislative function, and today the state has a monopoly over
legislation through parliament and other institutions. An opinion issued by the
Mujtahid would have no significance unless it is accepted by the state. In certain
cases, the Mujtahid would be the state and not the individual. In Pakistan, ijtehad
is performed by the opinion of parliament, Courts, Council of Islamic Ideology and
other forums.

Ijtihadi Issues.

The issues that need ijtihad are many. Some of the top priorities include: Role of
Women: Sunnis and Shi’a: Unity among Muslim States: Economics & Banking;
Science & Technology.

To conclude, it is need of time to revive the spirit of Ijtihad certain steps need to
take towards evolving and improving. The first step towards reviving Ijtihad is the
liberation of religious authorities from political regimes so that issues can be
resolved without any influence. Reforming the Muslim educational system is also
important that students to learn about the methods to reach interpretation.
Comparative religion, modern logic, history, psychology and philosophy should be
taught to open mental horizons. Ijtihad should be collective as much as possible.

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 Taqleed
Introduction:

Generally, Taqleed means following the opinions of the schools of Islamic

Law like Hanfi, shafi or Hanbali School of thoughts. The purpose of Taqleed is
nothing but to follow the Book and the Sunnah which are obligatory for every
Muslim. However, the people are of differing types with regards to understanding
and comprehension of Shariah. There are two ways of practicing Shariah, either
doing Ijtihad means practicing own understanding or doing Taqlid means imitating
or following that of someone else. No doubt, it is very difficult for everyone to do
Ijtehad; only competent person can perform Ijtehad. Therefore, Ijtehad will be
performed by few scholars and Taqleed is done by a large number of people. In this
regard, Allah Almighty validates Taqleed by commanding to follow a scholar if you
don’t have knowledge (An-Nahl: 43) and at the same time Allah Almighty condemns to
follow Ullama (scholars) blindly as Jews did (8:31).Thus, Taqleed becomes necessary
largely due to the average Muslim's inability to comprehend and derive Islamic laws
all by himself. The scholars, who can search for the evidence, are excluded from
this group of Taqleed. It is evident that All Mujtahid Imams forbade their
disciples to do taqlid. However, Taqleed is permissible for a common man who does
not have knowledge.

Meaning of Taqleed:

Taqleed literally is derived from the root word “Qaladah” means: Placing
something around the neck, which encircles the neck. Taqleed linguistically means
"to follow (someone)"or "to imitate". It is to follow others without thinking.

Legal Definitions:

 As a juristic term it means to follow a Mujtahid‟s Ijtihad without a

binding proof or argument.
 It means to follow a Mujtahid in religious laws and commandment as he has
derived them.
 Taqleed is the acceptance of a saying of a person without him knowing its
evidence.

One who performs taqlid is called a Muqallid, whereas one who rejects taqlid is
called a Ghair-Muqallid.

Is Taqleed Permissible?

In a general sense, Taqleed is not permissible as it is explained in following Hadith:

Muslim narrates on the authority of ‘Adi bin Hatim that the Prophet says about the verse of the
Quran, they (Jews) made their ‘Ulama their God instead of Allah (8:31), that they (Jews) did not
worship their ‘Ulama rather when their ‘Ulama legitimized something they accepted that as legal
and when they forbade that they also accepted that as forbidden.

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Taqleed is a part of our daily lives and we are indulging in some form of taqleed at
each step. For example accepting the opinion of a doctor by the patient and
accepting the opinion of a trader in the valuation of the property etc. However
there are some types in which Taqleed is permissible and in some it is prohibited.

Types of Taqleed:

There are two types of Taqleed:

1. Permitted Taqleed
2. Prohibited Taqleed

1. Permitted Taqleed:

There are two cases where taqleed is permissible:-

a) For the Common Man (’aamee) who does not have the ability to acquire
knowledge of the Shari’ah ruling by himself; so taqleed is obligatory upon him, due
to the saying of Allaah. The Most High, "ask the people of knowledge if you do
not know." ( An-Nahl: 43) So he does Taqleed of one whom he considers to be a
person of knowledge and piety.
b) For the Mujtahid when he encounters a new situation for which an immediate
solution is required, but it is not possible for him to research into the matter; so in
this case he is permitted to perform taqleed. Taqleed is only observed in matters
of fiqh.

AL Shawkani explains the four types of activity in which Taqleed is permissible:

i. Acting upon the words of the Prophet Muhammad (PBUH).

ii. Acting upon the Ijma
iii. Acceptance of the word of an upright(Aadil) witness by the Qazi
iv. The layman acting upon the word of a jurist.

2. Prohibited Taqleed:

a) Taqleed is prohibited for every one where Taqleed is following the opinion of
another when Shariah has not given permission to do so i.e Taqleed which is against
the teaching of Quran and Sunnah. This Taqleed is null and void or unlawful to act.

b) Taqleed is prohibited for a Jurist who is competent to peform ijtehad.

Taqleed in the Pakistani Legal System:

The constitution of Pakistan permits taqleed in articles 189 & 201. These articles
make the judgements of the Supreme Court and High Courts binding on courts
subordinate to them. Here, Precedents or stare decises are practical forms of
Taqleed.

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Modern Thought:

Some Muslims say that the door of ijtihad was closed in the fourth century of
hijrah; others disagree. Whatever position one may take, the fact is that there is a
great need for the renewal of ijtihad today; ijtihad is essential for the revival of
Muslim states and societies.

However, the basic condition for ijtihad is freedom of expression. Allama

Muhammad Iqbal in his famous book "The Reconstruction of Religious Thought in
Islam" called for the reactivation of Ijtihad to rouse the Muslim world.

One grave mistake Muslims have committed in recent times is closing doors of
Ijtihad. Non-Muslims as well as corrupt governments in Muslim countries are
benefiting from the absence of Ijtihad. Modern ijtihad should attempt to
establish and promote the balanced, middle path.

Conclusion:

Taqleed is to follow others without evidence. The truth is that Taqleed is allowed
for those who cannot search for or understand the evidence, Ibn al-Qayyim also
was of this opinion. A scholar is supposed to avoid Taqlid (blind following of another
scholar). Taqlid is permissible only for a layman. Shah Wali Ullah was also in this
opinion that Taqlid is not permitted for a person who can investigate even some
matters. Every educated person should not believe blindly on someone unless he
investigates the matter in the light of Shariah.

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