JAMIA MILLIA ISLAMIA UNIVERSITY

PROJECT - PROFILE

“IJTIHAD (‫ )اجتهاد‬AS
A SOURCE
OF LAW”

Submitted to- Submitted by-

Dr. Ghulam Yazdani Azeem Mian
Assistant Professor B.A.LL.B(Regular)
JMI III Semester

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-ACKNOWLEDGEMENT-

First and foremost, I would like to thank our subject teacher Dr. Ghulam Yazdani Sir, for the
valuable guidance and advice. He inspired us greatly to work on this interesting assignment. His

willingness to motivate us contributed tremendously to our assignment. I also would like to

thank him for showing us some sample assignments on how to go about the research assignment.

It gave me an opportunity to analyze and learn about the operation of various sections of Islamic

Jurisprudence relating to the topic. Besides, I would like to thank the Faculty staff for providing

us with a good environment and facilities for completing this assignment. In addition, I would

also like to thank my seniors who provided me with the valuable information acting as a source

of guidance in making the assignment. Finally, an honorable mention goes to my family and

friends for their understandings and supports in completing this assignment. Without the help of

the particulars mentioned above, making of this assignment would not have been possible.

THANK YOU!

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-SYNOPSIS-

 Introduction

 What is Ijtihad

 History of Ijtihad.

 The closing of the gate of independent Ijtihad

 Ijtihad as a source of law

 Qualification of Mujtahid

 Condition of Ijtihad

 Rank of Mujtahids and categories of Ijtihad

 Ijtihad in Twelver Shi’a Islam

 Scope of Ijtihad in Islamic Law

 Neo- Ijtihadism

 Conclusion.

 Bibliography

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-INTRODUCTION-

Various sources of Islamic law are used by Islamic jurisprudence to 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 Allah.
The Sunnah consists of the religious actions and quotations of the Islamic Prophet Muhammad and
narrated through his Companions and Shia Imams. However, some schools of jurisprudence use
different methods to judge the source's level of authenticity.

As Islamic regulations stated in the primary sources do not explicitly deal with every conceivable
eventuality, jurisprudence must refer to resources and authentic documents to find the correct course
of action. According to Sunni schools of law, secondary sources of Islamic law are consensus among
Muslims jurists, analogical deduction, al-Ra'y; independent reasoning, benefit for the Community and
Custom. Hanafi school frequently relies on analogical deduction and independent reasoning, and Maliki
and Hanbali generally use the Hadith instead. Shafi'i school uses Sunnah more than Hanafi and analogy
more than two others. Among Shia, Usuli school of Ja'fari jurisprudence uses four sources, which are
Qur'an, Sunnah, consensus and aql. They use ijma under special conditions and rely on aql (intellect) to
find general principles based on the Qur'an and Sunnah, and use usul al-fiqh as methodology to
interpret the Qur'an and Sunnah in different circumstances, and Akhbari Jafaris rely more on Hadith
and reject ijtihad. According to Momen, despite considerable 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 and social transactions.

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WHAT IS IJTIHAD ?

In Islamic law the use of individual reasoning in general is called Ijtihad or Ijtihad al-ra'y, and Mujtahid is
the qualified lawyer who uses it. "Exertion" is the literal meaning of Ijtihad. In general usage, this Arabic
word denotes the utmost effort, physical or mental, expended in a particular activity. In its Islamic and
technical legal connotation, it denotes the thorough exertion of the jurist's mental faculty in finding a
solution for a case of law. Ijtihad therefore is 'the logical deduction on a legal or theological question by
a Mujtahid or learned and enlightened doctor, as distinguished from Ijma, which is the collective opinion
of a council of divines.'1

The principle of Ijtihad by jurists is considered to have roots in a Hadith, in a discourse between the
Prophet and Muadh Ibn Jabl, a qadi, on his way to al-Yaman as judge. The Prophet asked him how he
would decide matters coming up before him. "I will judge matters according to the Qur'an", said Muadh.
"If the Book of God contains nothing to guide me, I will acts on the precedents of the Prophet of God,
and if it is not in that either, then I will make a personal effort [Ijtihad] and judge according to that". The
Prophet is said to have been most pleased at the reply.2

1
Hughes, Dictionary of Islam, p. 197
2
Glassse, The Concise Encyclopedia of Islam, p. 182

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-HISTORY OF IJTIHAD-
Muslims claim that some of the companions of the Prophet had the good fortune to acquire proficiency
in jurisprudence and legislation under his guidance and they had recourse to the process or exercise
of Ijtihad when a need arose in his absence. This practice continued in issuing fatwas after his death
during the Khulafa Rashidun3 and the Ummayad period and was known as Ijtihad al-ra'y,4 an expression
that occurs frequently in this early period. Ijtihad was linked with ra'y and was treated as a legitimate
activity. The term carried the connotation of exerting one's efforts on behalf of the Muslim community
and its interests (al-Ijtihad fi sabil al-Muslimin).

From the second century onward (eighth century CE) Ijtihad was gradually dissociated from ra'y.
Muhammad Ibn idris al-Shafi (d. 821), the founder of the Shafi fiqh (school of jurisprudence), was the
first to make a break from ra'yand adopted Ijtihad as a methodology synonymous with qiyas, analogical
deduction.5 His Risala 6 was the first book to be written on the principles of Islamic
jurisprudence.7 Other Sunni fuqaha, judges, did not recognise Ijtihad al-ra'yas being
exclusively qiyas.8 However, his ideas were further developed by others. To explain and define Ijtihad
further terms and categories like Istihsan (finding the good by one's own deliberation)
and Istislah were introduced (determining what is in the interests of human welfare by one's own

3
Minhajuddin, Islami Fiqh, p. 23
4
Schacht, An Introduction to Islamic Law, p. 37
5
According to others it was Imam Abu Hanifa, when he started to work on Usul al-fiqh, first found that there were
matters on which there were no Hadith nor any comment from the Sahaba. He adopted the method of Qiyas.
(Minhajuddin, Islami Fiqh , p. 25)
6
Shafi, Muhammad ibn Idris. Al-Risala. Editied by Ahmad Shakir (Cairo: 1892). English translation by Majid
Khadduri, Al-Imam Muhammad ibn Idris al-Shafi's al-Risala fi Usul al-Fiqh. 2d ed. (Cambridge: 1987). It has chapters
on Ijtihad, ijma,istihsan. In his discussion on the subject al-Shafi draws the conclusion that the Ijtihad prescribed by
the Shariah is confined to qiyas and that other types of Ijtihad, such as istihsan, do not have any canonical grounds.
7
Al Shafi supported the idea of Ijtihad by quoting a verse of the Qur'an to substantiate his conviction: 'Wherever
you go, face the Mosque of Haram, and wherever you are, turn your face towards it.' Shafi maintained that if 'one
does not exercise his intellect, he would not be able to know where Masjidal-Haram is. Therefore, Allah himself
indirectly encourages us to exercise our faculty of reasoning, a great gift to mankind, to derive a logical conclusion
on certain matters.' (Doi, Shariah: The Islamic Law, p. 78)
8
Some schools of fiqh which supported qiyas, especially the Hanafi, believed in the role of reason in Ijtihad, which
in their interpretation took the form of qiyas and Ijtihad al-ray. But the other schools opposed to qiyas, especially
the Zahiri school, did not approve of any role for reason, neither in the form of qiyas nor in any other. On the other
hand the mutakallimun, the Mutazilah believed in the independent role of reason, in Divine justice and the rational
basis of moral and legal judgements. However groups like the Ashar'iah did not believe in Divine justice or the
rational basis of moral and legal as mentioned by the Mutazilah.

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deliberations). Another option, tawwul, also came to the fore under which one could give priority to his
own independent opinion.9

It is believed that by the beginning of the fourth century (10th century CE), a number of outstanding
Muslim lawyers had effectively completed the construction of a complete systematic legal thought. They
had studied carefully the groundwork of legal principles in the Qur'an, and the precedents established
by the Prophet, and the jurist Sahaba, companions, and had evolved, on the basis of the vast knowledge
thus gathered, what they believed to be all-embracing fundamental principles of legislation in Islam.

They tried to frame laws for situations and circumstances not distinctly defined by the Qur'an and the
Sunna nor the companions' pronouncements. This constituted the systemisation and the codification
of Sharia, Islamic law. Several schools of law and jurisprudence appeared during this formative period of
intense activity. Although there have been 'conflicts of opinions and doctrines' four of the schools
continued to command respect, namely those of Imam Abu Hanifa (d. 767), al-Shafi (d. 820), Malik b.
Anas (d. 795) and Ahmad b. Hanbal (d. 855) perhaps because of their methodical approaches and
comprehensiveness.10

9
Although a ruling may have been reached in one of the nusus (the textual bases for a precept of the Sharia) i.e. in
a verse from the Qur'an or Hadith but one still has the right to dispense with the contents of the nass and give
priority to one's own independent opinion.
10
Shia sect of Islam has its own jurisprudence. Both non-Zaydi and the Twelvers in particular consider Ijtihad to be
an ongoing process. After the Qur'an and their own prophetic traditions known as Akhbar, they take their guidance
from the pronouncements of the twelve Imams. They also acknowledge human reasoning and intellect as one of
the legal sources that perfectly supplement the revealed text. Their doctors claim the right to be the interpreters
of the hidden Imam and in that capacity they share his infallibility. Thus 'Ijtihad al-ray' own thought and one's own
opinion is forbidden. They in fact accuse Sunnis placing their Ijtihad on the same level as the Qur'an and Sunnah
(Murtada Mutahhari, The Principle of Ijtihad in Islam, (tr. John Cooper), Vol. 10: No. 1 (http://www.al-islam.org/al-
seraat/Ijtihad.htm).

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The closing of the gate of independent Ijtihad

Towards the tenth century some wanted to put a stop to further eleboration and controversies that
were becoming prevalent, some claimed that the need for Ijtihad and Tafsir had been exhausted.
Around 1305 some jurists in Iraq even decided to close the door of Ijtihad.11 Although the power of
absolute Ijtihad was completely abolished, a relative Ijtihad was allowed, giving a scope for limited
expansion in details. There are others who accept that direct Ijtihad on the matters which are not
touched upon by earlier Mujtahidun can still be considered by a Muslim who has all the qualifications of
a Mujtahid. Thus within the Sunni world of Islam the decisions of Judges in certain domains over the
years represent small increments of Ijtihad in the body of knowledge held by the Schools of Law.12

Ijtihad was further restricted to exclude those cases that had become the subject of consensus, Ijma.
Such cases were not subject to further juristic interpretation. Thus Ijtihad in legal matters was confined
to the grey areas of the law, where textual certainty was absent but where human reasoning on the
basis of the texts might uncover the law as intended by God.

Some believe that restriction was needed to put a stop to the 'conflicts of opinions and doctrines'
through which Islam had passed during the preceding three centuries and 'had finally attained stability,
through the emergence of an orthodoxy, only towards the beginning of the 10th century
(CE).'13 However, nowadays some say that such a decision pushed Muslim intellectual activity 'towards
stagnation.'14 Others believe that the reason for the curtailment of Ijtihad was 'the difficulty which
occurred in practice: for if such a right were to continue [for any great length of time], especially
if ta'awwul and 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.'15 Perhaps it was for this reason that the right of independent Ijtihad was gradually withdrawn,
and people were instructed to practice only taqlid of the four schools.

11
Doi, Shaiah, The Islamic Law, p.68-69
12
Glassse, The Concise Encyclopedia of Islam, p. 182
13
Rahman, Islam, pp.77-78
14
Ahmad . S, Ahmad, Discovering Islam, p.24
15
Murtada Mutahhari, The Principle of Ijtihad in Islam, (tr. John Cooper), Vol. 10: No. 1 (http://www.al-
islam.org/al-seraat/Ijtihad.htm)

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-IJTIHAD AS A SOURCE OF LAW-

The purpose in performing ijtihâd is to try to derive and interpret new rules from the Qur’an by
analogy, i.e. by comparing the ayats and hadiths with implied meanings to overtly expressed
ones. For instance, the meaning of the ayat commanding to obey your parents is, “Do not say,
‘Fie on you’, to them!” No mention is made to battery or invective. Since the exclamation “Fie
on you,” which is by far milder than these forms of maltreatment, is expressed literally,
mujtahids have deduced by ijtihâd that it must certainly be haram (forbidden) to beat or curse or
insult one’s parents.

Likewise, the Qur’an literally prohibits consumption of wine, without naming the other hard
drinks. The reason for the prohibition of wine is that it blurs one’s mind and suspends one’s
mental activities, as is understood from the expression used in the ayat. Hence, mujtahids have
deduced by way of ijtihad that all sorts of drinks carrying the features that cause wine must be
forbidden as well; so they have stated that all sorts of intoxicants are haram. It is indicated that
Allah commands to ‘do ijtihâd’ in the Qur’an. It is understood from various ayat that scholars of
high grade and profound knowledge have been enjoined that they should perform ijtihad. Then,
ijtihad is (an Islamic commandment called) farz enjoined on people in possession of full
authority, eligibility and expertise, i.e. those who have the ability and capacity to understand the
rules and matters hidden in the ayats and hadiths whose meanings cannot be understood clearly,
by way of analogy, deduction and induction from their significations, tenors of discourse and
denotations.

In early Islam ijtihad was a commonly used legal practice, and was well integrated with falsafa.
It slowly fell out of practice for several reasons, most notably the efforts of Asharite theologians
from the 12th century, who saw it as leading to errors of over-confidence in judgement since the
time of al-Ghazali. He was the most notable of the Asharites and his work, The Incoherence of
the Philosophers, was the most celebrated statement of this view.

It is debated whether Al-Ghazali was observing or creating the so-called "closure of the door of
ijtihad". Some say this had occurred by the beginning of the 10th century CE, a couple of

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centuries after the finalizing of the major collections of hadith. In the words of Joseph Schacht:
"hence a consensus gradually established itself to the effect that from that time onwards no one
could be deemed to have the necessary qualifications for independent reasoning in religious law,
and that all future activity would have to be confined to the explanation, application, and, at the
most, interpretation of the doctrine as it had been laid down once and for all." This theory has
been put in question recently by Wael Hallaq, who writes that there was also always a minority
that claimed that the closing of the door is wrong, and a properly qualified scholar must have the
right to perform ijtihad, at all times, not only up until the four schools of law were defined.
What is clear is that long after the 10th century the principles of ijtihad continued to be discussed
in the Islamic legal literature, and other Asharites continued to argue with their Mutazilite rivals
about its applicability to sciences.

Al-Amidi mentions twelve common controversies about ijtihad in his book about usul al-fiqh
(the theory of Islamic law), amongst others, the question if the Prophet himself depended on
ijtihad and if it should be allowed for a mujtahid to follow taqleed.

In Islamic political theory, ijtihad is often counted as one of the essential qualifications of the
caliph, e.g. by Al-Baghdadi (1037) or Al-Mawardi (1058). Al-Ghazali dispenses with this
qualification in his legal theory and delegates the exercise 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 think caused Muslim societies to stagnate before the 1492
fall of al-Andalus, after which Muslim works were translated and led in part to The Renaissance
revival of Classical works, using improved methods, although the Muslims themselves were no
longer using these methods in their daily life at all.

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-Qualifications of a mujtahid-
To protect Islamic law from the dangers of innovation and distortion the great scholars
of usul laid down rigorous conditions to be fulfilled by anyone wishing to claim the right
of Ijtihad for himself. A jurist must be a master of the Arabic language. He must have proficient
knowledge of theology, the revealed texts and the four schools of thought. A jurist must have a
comprehensive knowledge of legal theory, usul al-fiqh, which governs the interpretative
principles of legal language and the method of investigating the texts, the asbab al-Nuzul and
the asbab alwarud, the naskh wal mansukh etc. He should have thorough knowledge of the
Qur'an and Hadith and in the exegesis. He must know what parts of the law have become subject
to consensus. He must be a pious and practising Muslim. He should first seek the solution of a
legal problem in the specific terms of the Qur'an and the Sunna, applying the accepted methods
of interpretations and construction, including, the doctrine of Naskh, asbabetc., before
considering Ijtihad.16

Conditions of Ijtihad
A Mujtahid must not seek for Ijtihad about the existence of God, the prophethood of Muhammad
and the authenticity of the Qur'an.17 Ijtihad does not arise in respect of matters that have already
been dealt with in the Qur'an and the Traditions. However, sometimes, there occur situations
which have been left undetermined by the first two sources, when jurists are called upon to make
use of Ijtihad and determine laws applicable to them, or formulate new ones if necessary, in the
light of the fundamental principles of Islamic jurisprudence and legislation.

16
Coulson, A History of Islamic Law, p.76
17
Doi, Shari'ah: The Islamic Law, p. 78

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Ranks of Mujtahids and categories of Ijtihad

Study shows that by eleventh and twelfth century Sunni legal practice had evolved to the point at
which jurists were ranked according to their ability to practice Ijtihad. To make the matter simple
we may say that both the Mujtahidand their Ijtihad are of three kinds.

1. Mujtahid mutlaq: This category is also known as Ijtihad fi'sh-Shar, absolute

independence in legislation.18The first four caliphs are considered to be in this category but it is
principally the great masters of the four schools who are recognised as the Mujtahidun
Mutlaq.19 They are known as such because of their laying down a methodology of the law and
deriving from it doctrines that were to dominate their respective schools. Of course, the founders
of these schools were not the only workers in this field. There were others like
the Zaahiri school who held their own legal opinions and were not dependent on anyone.
Apparently, the last person to have been an independent Mujtahid with his own independent
approach in legal issues was the well-known historian and exegete Muhammad ibn Jarir al-
Tabari (d. 922), who although famous for his work on history, is considered by some
a Mujtahid of the first rank.

2. Mujtahid muntasib: A jurist who operates within each school following its

methodology but producing new solutions for new legal cases. Such a jurist is also known
as Mujtahid fi al-madhab. The work of a Mujtahid in this category is known as Ijtihad fil
Madhab. Such a Mujtahid who is attached to one of the well-known schools and follows its
juristic approach, may formulate his own independent legal opinions which may be different
from the legal opinions of the founder. This degree has been granted to the immediate disciples
of the great Imams who elaborated the systems of their Imams and added their own opinions.
The most famous of these, for example in Hanafi fiqh, are the two disciples of Abu Hanifah, Abu
Yusuf and Muhammad Ibn al-Hassan. In secondary matters their opinion carries great weight. "It
is laid down as a rule that a Mufti may follow the unanimous opinion of these two even when it

18
Hughes, Dictionary of Islam, p. 198
19
Glassse, The Concise Encyclopedia of Islam, p. 182

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goes against that of Abu Hanifah."20 Others that one may add to this class are: Imam al-
Haramayn al-Juwaym, Abu Hamid al-Ghazali21 and Ibn al-Sabbagh.

3. Mujtahid muqallid:22 A jurist who merely follows the rulings arrived at by the

mujtahids previously. However in issues in which he does not find an opinion of the founder, he
exercises his own Ijtihad and issues a judgement. Such a Mujtahid must have a perfect
knowledge of all the branches of jurisprudence according to the four schools and of the rulings
that followed. His decision must always be in uniformity with the Mujtahadun of first and second
classes and with the principles which guided them. Such an Ijtihad within the framework of the
juristic and legal positions of a school is known as Ijtihad al-fatwa.

Between the ranks of Mujtahids and muqallids there are other levels of jurists who have
combined Ijtihad with taqlid and while it is acknowledged that the absolute Mujtahid is
something that cannot be attained now, other levels are probably attainable.23 Countless jurists
from the tenth century to the early nineteenth century have been considered to have attained the
rank of Mujtahid within their own schools. In later years all that the highest in rank have done is
to explain obscure passages in the writings of the older jurists. If they found several conflicting
opinions on any point, they selected one opinion on which to base their own opinion. Many of
these have written commentaries on the legal systems without originating anything new. The
author of the Al-Hidayah, who lived at the end of the sixth century is one example of a Mujtahid
Muqallid.

20
Hughes, Dictionary of Islam, p. 199
21
"Al-Ghazali employed dialectical methods in presenting his theology and also claimed for himself the right of
independent Ijtihad which had been curtailed by the orthodoxy" (Gatje, The Qur'an and its exegesis, p.21)
22
Also known as Mujtahid al-fatwa
23
for example Mujtahid fil masa'il (particular issue) is a scholar who remains within a school, but is competent to
exercise Ijtihad on certain aspects within it which he knows thoroughly. Others may be called Ashab al-Takhrij
(resolvers of ambiguity), who are competent to indicate which view was preferable in cases of ambiguity. There
are others called Ashab al Tarjih (people of assessment); Ashab al-Tashih (people of correction)
and Muqallidun (the emulators). [Abdul Hakim Murad, Understanding the four Madhabs, p.23]

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-Ijtihad in Twelver Shi'a Islam-

Shi'a hawza students start their studies learning fiqh, kalam, hadith, tafsir, philosophy and Arabic
literature. After mastering these levels they can start becoming mujtahid by studying advanced
textbooks known as sat'h, and research courses known as kharij.
The following points are presented in order to clarify the purpose of ijtihad:

• God is all-powerful, all-knowing.

• God created laws for humankind and only God has the authority to do so.

• God appointed messengers to convey the laws to humankind.

• God appointed imams to guide humankind about the laws.

• At present, neither the messenger (Muhammad), nor the imams (God-appointed leaders) are
accessible. The current imam, al-Qaaim al-Muntadhar al-Mahdi, is in the Occultation.

• Therefore, qualified jurists have the duty to find God's law, not create God's laws.

• Therefore, ijtihad is the process of finding God's law from the Qur'an and the hadith using
specific methods.

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Muslims living in the West are subject to secular laws of the state rather than Islamic law. In this context
ijtihad becomes mainly a theoretical and ideological exercise without any legal force.

Conservative Muslims say that most Muslims do not have the training in legal sources to conduct ijtihad.
They argue that this role was traditionally given to those who have studied for a number of years under
a scholar. However, liberal movements within Islam generally argue that any Muslim can perform
ijtihad, given that Islam has no generally accepted clerical hierarchy or bureaucratic organization.

Shi'ite jurists maintain that if a solution to a problem can not be found from the primary sources, then
aql or reason should be given 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 ruling, when applied
is called ijtihad (literally meaning "exerting oneself"). Shi'ite jurists maintain that qiyas is a specific type
of ijtihad. The Sunni Shafi' school of thought, however, holds that both qiyas and ijtihad are the same.

Sunni jurists accepted ijtihad as a mechanism for deducing rulings. They, however, announced an end to
its practice during the thirteenth century. The reason for this was that centers of Islamic learning (such
as Baghdad, Nishapur, and Bukhara) had fallen into the hands of the Mongols. Thus, the "doors to
ijtihad", were closed. In Suni Islam, thus, ijtihad was replaced by taqlid or the acceptance of doctrines
developed previously.[29] Later in Sunni history, however, there were notable instances of jurists using
reason to re-derive law from the first principles. One was Ibn Taymiyya (d. 728/1328), another was Ibn
Rus̲h̲d (Averroes d. 595/1198).

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-SCOPE OF IJTIHAD IN ISLAMIC LAW-

Platitudes of all hues capture minds of modern Muslims. Their bent of mind is more akin to faith
inspired hope than to solution oriented plans. Illustrations of this bent of mind are in abundance.
Pakistan is but an example in this regard where every now and then revolutionaries of sorts
emerge and make tall claims. They criticize available semblance of order and system without
offering any detailed and reasoned alternative. In almost all the prayers about Palestinians’ plight
in Gaza in recent days, no one from pulpit offered any plan of organization or systemic response
to the problem. In this context, there is a strong case in Muslim world to revisit its thinking,
which may ultimately translate into action. The standard answer to such a rethinking is to talk
about the revival of Islamic Law with the use of ‘Ijtihad’.This Project aims at analyzing briefly
the concept of ‘Ijtihad’ and more importantly to explore possible research avenues about its

scope, which are seldom discussed. Admittedly, there is no standard and consensus definition of
‘Ijtihad’. One thing, however, is clear that it is not a primary source of Islamic Law, and in the
hierarchy of rules, it is placed below textual sources. Second, noticeable point about ‘Ijtihad’ is
that it is not a rule or a definite source of Islamic Law, rather it is a methodology of legal
reasoning. Nevertheless, for South Asian Muslims well versed in English, an authentic
conceptual work on philosophy of Islamic Law is The Reconstruction of Muslim Thought in
Islam a magnum opus by Allama Muhammad Iqbal. The book is primarily a collection of
lectures by the great scholar and poet. Chapter VI of the book is styled as ‘the Principle of
Movement in the Structure of Islam’ and addresses the concept of Ijtihad. His ‘principle of
movement’ in Islamic Law ‘structure’ is Ijtihad. Citing from his work will make the concept of
‘Ijtihad’ clear:

“The word literally means to exert. In the terminology of Islamic

Law it means to exert with a view to form an independent judgement on a legal question.”

If the elaboration of the concept by Allama Iqbal is taken as a working definition, it becomes
clear that the process of ‘Ijtihad’ involves an element of ‘judgement’, which is quintessentially a
‘thinking process’. He has then proceeded to outline three ‘degrees’ of Ijtihad, which, in his
words, are:

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“(1) complete authority in legislation which is practically confined to the founders of the
schools,

(2) relative authority which is to be exercised within the limits of a particular school, and

(3) special authority which relates to the determining of the law applicable to a particular

case left undetermined by the founders.”

The analysis of the three ‘degrees’ shows that Allama Iqbal wanted to explain the levels of
‘authority’ that are authorized, according to Islamic legal scholars, to make the ‘independent
judgement’. Building on his explanations, it is imperative that modern Islamic legal
scholars,constitutional experts of Muslim countries and researchers should strive to undertake
two tasks:

First, the abstraction of ‘degrees of Ijtihad’ needs to be translated into some workable and
actionable form. Pivotal questions of ‘authority’ and ‘constitutional power’ need to be examined
not only in the light of history of Muslim world, but should also take into account mass of
knowledge developed by the modern political science. The perpetual tension of determining the
source of political power from religious or other sources needs to be carefully researched. The
issue of primary, secondary and delegated authorities also needs to be studied in more depth to
put into practice the concept of Ijtihad in the modern times.

Secondly, the scope of Ijtihad also needs to be definitely articulated. It is commonplace in

Islamic studies, in general, and in Islamic legal studies, in particular, to insist on the use of
Ijtihad for providing solutions to emerging issues of modern life. The recent growth of Islamic
finance and banking has once again underlined the importance of Ijtihad as a tool of growth and
as a ‘principle of movement’ for ‘Islamic structure’. The paradigm of scope also deserves a word
of elucidation. In all, there can possibly be three spheres in which all actions of thought and body
can be divided: beliefs (aqaid), rituals (ibadaat), societal affairs (muaamlaat) that can further be
subdivided into family and non-family affairs. It needs to be examined that what, if any, is the

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scope of Ijtihad in the three spheres. Naturally, for a Muslim, there is little or no scope to do
Ijtihad in the sphere of beliefs, but this scope must be definitively articulated to make the
discussion on Ijtihad in Islamic Law more practical and workable. The above stated three spheres
have only been referred for the sake of discussion. Any serious researcher can work on the
concept and can refine the contours of conducting research in the area of defining scope of
Ijtihad in Islamic Law.

Thirdly, modern English jurists like Salmond prefer to classify legal rules into substantive and
adjective laws. The substantive law remains constant for a reasonable time, whereas the adjective
law is more conveniently amendable and is more about the formalities. For conspectus, it may be
added that Salmond divided adjective laws into procedural, proofs and pleadings to show the full
spectrum of adjective law; his use of the terminology of adjective law also suggests that this
species of rules is not stand alone in its existence and like an adjective that is dependent on a
noun for its full meaning, the adjective law is dependent on substantive law. Such subtle
classifications need to be now also be subjected to research as far as scope of Ijtihad is
concerned. The beauty of Islamic Law is that it is assimilative and not exclusionary in nature;
therefore, the principle of Ijtihad cannot be conceived of not benefiting from the modern
jurisprudential thinking and in the era of modern drafting, it is imperative that such
classifications be frequently used to share the Islamic Law. It may, however, be noted that some
Islamic legal scholars emphasize that Islamic Law has opted to outline the substantive law and
the adjective law is left for respective people, time and space to evolve as Islamic Law is
universal and non-temporal in nature. They contend that had it opted to enact the adjective side
of the law, its universal nature would have

compromised. Even so, the modern life demands certainty and uniformity and therefore, research
on adjective rules in Islamic Law deserve full attention. The above stated discussion is not an
essay in futility. Muslims need to rise above the emotional level of discourse and have to offer
pragmatic and detailed solutions to societal and global issues.

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-Neo ijtihadism-
The discussion above shows that when we talk of the closure of the door of Ijtihad, we refer to
the Ijtihad of the first kind, i.e. Independent Ijtihad. As to the other two their doors have
remained open. There are, as ever, Muslims who ask: Why should the doors of
independent Ijtihad have been closed after the fourth century? Does no one have the right to
complete independence, rather than be bound to follow one of the Imams in jurisprudence? Why
and for what reason is it not permissible today to follow any one except the four Imams? Why
should one who follows any one of the Imams follow him in all issues and have no right to
follow the other three, exercising his own discretion in some issues? Scholars have given various
answers to these questions.

Strangely to some, one of the response is that' it was God Almighty who inspired the scholars to
close the door of Ijtihad to safeguard Islam and protect the religion from disintegration. On the
other hand there are others who have stressed again and again the need to reopen this practice. In
the late nineteenth century and early decades of the twentieth, some individuals and reformist
religious movements were stimulated to reconsider Ijtihad by the massive introduction of
European codes in place of Shariah. New ideas from the West, new educational systems and
the Salafi movement for example stressed the need to reinterpret Islamic teachings with direct
reference to the Qur'an and Ahadith leaving aside the accumulated scholarship of the Mujtahids
through centuries. They particularly called for abandoning taqlid in favour of Ijtihad.

From the 17th century on wards, discourses on Ijtihad versus Ijtihad taqlidi gained notable
significance in Sunni Islam. Among the traditional reformers who argued to renew Ijtihad were
Shah Wali Allah (d. 1765), Ibn Mu'mar (d. 1810), Muhammad ibn Ali al-Shawkani (d. 1832),
and Muhammad ibn Ali al-Sanusi (d. 1859). Their emphasis on the centrality
of Ijtihad amounted to a criticism of taqlid. They maintained that taqlid "is lawful only when
applied on behalf of laymen who need the guidance of legal scholars in running their mundane
and religious affairs." They argued that for the learned jurists the ultimate authorities did not lie
in the doctrines of past masters but rather in the Qur'an and the Sunnah.

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Muslim scholars like Jamal al-Din Afghani (d. 1893) and his disciple Shaykh Muhammad
Abduh (d. 1905) wrote about reopening of the door of Ijtihad. A similar stance was adopted by
Shaykh Rashid Ridda (d. 1935). They claimed that to perceive the true essence of Islam one
must free oneself from taqlid and blind dependence on the traditional interpretations of the four
classical schools of thought and return to the religion of the forefathers (Salaf). It was argued that
the Ijma of a few scholars to close the gate of Ijtihad was merely the result of fear of disunity
among Muslims in a period of political instability and above all the decision was made in a
period of 'intellectual stagnation' and now fresh Ijtihad is needed. There are other Muslims who
ask: Was the door of Ijtihad ever closed? Allama Shaykh Mahmud Shaltut (d. 1963), the mufti
and rector of Al-Azhar University claimed that the door of Ijtihad 'is open and that there is
nothing objectionable about a follower of one school referring to the judgements of another
school.' In one of his fatwa he went so far as to say that it 'is correct to follow the Ja'fari school
of fiqh, just like the other schools.' Subsequently, a chair of comparative legal studies was
established at Al-Azhar.

Some of the advocates of neo-Ijtihadism reinterpret some of the key terms and concepts
like taqlid, talfiq and takhayyur. However those who reject the modern view of Ijtihad say: 'Any
attempt of Ijtihad to re-interpret Islamic legal principles with the use of takhayyur and talfiq to
suit the changed social conditions of our time will not be objected to, but mere change and
departure from the Qur'an and Sunnah in order to import French, English or Italian law and call
it Neo-Ijtihad will amount to disbelief.'

During the past decade a number of voices calling for a reformation of usul al-fiqh with a view
toward fashioning a neo-ijtihad methodology have been raised. These include
the Salafiah movement(s) which started in the 18-19th century. However, such movements and
reformers still remain without methodological and philosophical foundations. Those who oppose
neo Ijtihadism conclude that there 'only exists the process of Ijtihad which was employed by
the Sahabah, Tabiun and Tab'Tabiun who solely depended on the exercise based on the Qur'an,
Sunnah and the Conduct of the Prophet.' In their view it is not appropriate to throw away a
thousand years of scholarship and reinvent the wheel.

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-CONCLUSION-

In conclusion, Ijtihad is the main interpretive model available to Islamic jurists to answer and
legislate for new legal problems. While holistic Ijtihad no longer takes place, micro-Ijtihad has
never really ceased to exist. Now, more than ever, is Ijtihad main test. If applied to its full extent,
then Islamic law has it within its means to stand on a level footing with any modern legal system.
If not, however, then serious questions must be posed about the efficacy of the classical Islamic
interpretive methodologies, and, as a result, calls for holistic macro-doctrinal Ijtihad, such as the
“NeoIjtihad” described by Coulson, may be in order.

Ijtihad is a process, as pointed out earlier, to maintain the progressive character of Islam. In the
words of Muqtader Khan, it is used as an instrument “to articulate a more compassionate, more
modern and perhaps even a more liberal understanding” of Islam. He further adds that “the
challenge for Muslims today is to latch on to the currents of democracy, modernity and
globalization without losing the connection to divine revelation and traditional culture. This
cannot be accomplished without an adequate knowledge of both the modern sciences and social
sciences and of the Qur’an and Sunnah.

Ijtihad is an intellectual exercise which is important for the follower of Islam. By performing
Ijtihad, Muslims have been able to keep up with the changing world. It is critical to constantly
update Islamic thought to remain relevant. Ijtihad does not mean drawing a conclusion on free
will or making decisions without consultation. It is rather a way of making informed conclusions
on new issues and problems using the Quran or Hadith. One grave mistake Muslims have
committed in recent times is closing doors of Ijtihad. It had detrimental consequences for
Muslims world. Muslims have become captive to rules that are ages old and hardly leaving any
space for innovative thinking. Corrupt governments in Muslim countries are benefiting from the
absence of Ijtihad.

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-BIBLIOGRAPHY-

 Books Referred :
-Ahmad A., The Text Books of Mohammadan Law, 24th
Edition.
-Syed Khalid Rashid’s ,Muslim Law, 5th Edition
-Mulla , Principles of Mohamedan Law, 20th Edition
 Online Webstore :

-Jstor ( at http://about.jstor.org)

-Manupatra

-SCC Online

-Legal crystal

-Legalservice India

-Indian Kanoon

-Online Journals

-Academia Search Store

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“THANK
YOU”

IJTIHAD AS A SOURCE OF LAW- ISLAMIC JURISPRUDENCE