Importance of Ijtihad (Juristic Opinion) in Islamic Law

Introduction:

When there is no express rule or text on a matter in hand, rational sources come and play their role, in which a person or a group of qualified people try to resolve the issue as per their knowledge of Shari'a. However , it must be kept in mind that all those questions which have been resolved by Ijma are out side the scope of Ijtihad. Here we will try to understand the precise rules and qualification relating to Mujtahids, along with role of Ijtihad in modern era, where all legislative functions have been within state's jurisdiction.

Ijtihad Meaning and Concept:

Its is derived the word 'Ijtihada' which literally means, "to extract". As term of jurisprudence it is a lawyer's exerting of the faculties of mind for the purpose of formulating an opinion on any point of law. As per Fayzee (Shia Scholar )

 "It is exerting one's self to the utmost degree to attain an object"

 It may be define as,

"The total expenditure of effort made by a jurist in order to infer, with a degree of probability, the rules of Sharia from their detailed evidence in the sources". In short, Ijtihad consist of an inference which amounts to a probability, thereby excluding the extracting of a ruling from a clear text. It also excludes the discovery of a hukm by asking a learned person or by consulting the relevant literature without the exercise of one's own opinion or judgement.

Scope of Ijtihad:

Ijtihad is concerned with the practical rules of Sharia'. so purely intellectual and customary issues or matters perceptible to senses are outside the scope of ijtihad  such as creation of universe, the existence of creator, sending of Prophet (PBUH) etc. following are in the scope of Ijtihad in context of evidence,

• Authentic evidence, but speculative in meaning;
• Doubtful evidence in authority, but definite in meaning ;
• Speculative evidence both in respect of authenticity and meaning;

Mujtahid (Jurist) and His Qualifications:

A person who performs this functions (Ijtihad) is called Mujtahid or Jurist. Fakhr ul Islam lays down generally that he must be conversant with the science of law in both the branches i.e. 'Usool' (principles) and the 'Faru' (the rules or roots), However, as a unanimous view he must have following qualifications:-

• Thorough knowledge of Quran i.e. not only ability to read, but also to understand and interpret.
• Well conversant with traditions (Knowledge of Ahdees : ilm-al-hadith) and can be qualified enough to differentiate between authentic and non-authentic traditions, along with their nature and context.
• Sound knowledge of Arabic language.
• Knowledge of theoretical as well as, applied laws and rules.
• Full knowledge of different theories and rules regarding other secondary sources.
• Must be of sound mind, Muslim, as well as adult.
• Must know the rules and incidents of abrogation.
• He must have sufficient understanding and ability to grasp the speech and intricacy of matter in hand.
• A man of sound judgement and piety should be able to go beyond, wherever necessary and possible, the texts and the objectives of Shari'a.

A woman may be a jurist or Mujtahid, according to some. While, Shafais and Malikis also hold that the Mujtahid might be confined to certain special branches of law, such as law of inheritance As per Shias Mujtahid have four specific powers

1. To give fatwa called , Iftah.
2. To act as a Qazi termed as Qizawat.
3. To collect khums and govern people known as Wilayat.
4. To collect other taxes called Kharaj.

Type of Mujtahideen:

Jurist have further classified Mujtahids into following:

• Mujtahid-fil-Mazhab: one has authority to expound law according to a particular school. He follows a particular school of law.
• Mujtahid-fil-Masa'il: one who has authority to expound law on unsettled questions.
• Mujtahid-fil-Shari'a: one who founded a school of law.
• Mujtahid-ul-Futiya : one who is competent to give fatwa.
• Mujtahid-ul-Muqayyid: one who has limited power of exposition.
• Mujtahid-ul-Muttalaq: one who has absolute powers of exposition.

Kinds of Ijtihads:

Jurist divide Ijtihad into following different types:-

1. Itihad-e-Taa'm : meaning complete. Its is conducted by Mujtahid-e-Mutliq who is expert of different fiqhi fields.
2. Itihad-e-Naqis : meaning incomplete. It is by such mujtahid who is capable of deducing a limited legal opinion in some branches of Shari'a.
3. Ijtihad-e-Muttaliq : one which is based upon teachings of more than one school or Imam.
4. Ijtihad-e-Muqayyad : one which is based on teaching of one school or Imam.
5. Independent Ijtihad : aims to deduce law from the evidence in the source.
6. Limited Ijtihad : It is concerned mainly with the elaboration and implementation of law with in the confines of a particular school.

Modes of Ijtihad:

There are three modes of Ijtihad which we discussed in the following:-

First Mode, in which Mujtahid remains as close to the text as possible and tries to solve the matter with literal construction.

Second Mode, in which Mujtahid follows the rules of Qiyas.

Third Mode, in which he goes beyond the above two and adopts extension and relies on all texts collectively.

Process of Ijtihad:

Following is the complete process of Ijtihad:-

• Qualifications are acquired by the Mujtahid, which make him competent to perform Ijtihad.
• Knowledge of bayan and its rules is acquired .
• Then Mujtahid follows the three modes , state above to discover rule.
• Once rule is derived, he exercise preference and reconciliation 

Based on its process and methodology, Ijtihad can be in shape of any of the following

• As a juristic Qiyas based upon illat
• In absence of illat, based upon speculation
• Based upon inference from existing evidence termed as Ijtihad-e-Biyani.
• Ijtihad-e-Istislahi, which is based upon Maslehat, which can take any shape as of Istislah, Istehsan or alike.

Conclusion:

In the modern era, as the legislative functions are within jurisdiction of State, so role of Ijtihad is minimized in that sense only, however, at personal level, people do resort to Mujtahideen and it all depends on the acceptance by people and due to presence of established schools today, the need for such acceptance by people does not exit. It is recommended that universities and legal professions in Islamic countries should initiate a comprehensive and well defined program of education for prospective Mujtahids, combining training in both traditional and modern legal disciplines.