Ijtihad as a Legislative Function: Role of Ijtihad, Ifta’ and Taqleed in Legislative Process (Part-1)

In Islamic legislation, Ijtihad plays an important role and has central position in the whole process. Demands of life change day by day; thus, it become necessary to take on the structural review of Islamic laws keeping in mind the spirit and discipline of Islamic jurisprudence. Ijtihad thus plays as a perfect tool for legislation. Regarding Fatawas, the jurists followed the methodologies of Companions, Tabi’een, and Taba’ Tabaeen. In cases in which they did not find any legal opinion of their teachers related to a specific problem, they themselves tried to find out the solution for that problem from the relevant Texts and formulate their own Fatawa. In Pakistan, the Judiciary that performs the task of interpretation for law-making, the Majlis-e-Shura and various Ulama’ are exercising the job of  Ifta’. The Council of Islamic Ideology is the official legislative body of  Fatawa. Taqleed is also an acceptable mode of legislation whose proofs are evident from Qur’an and Sunnah.

Ijtihad, Fatwa and Taqleed

Al-Amidi defines Ijtihad thus: “ To spare no effort in the quest of discovering the supposed rules of the Shariah in the sense that the Mujtahid leaves no stone unturned.” Similarly, Ibn al-Haj defines it as “the exertion of the Mujtahid’s whole effort in his attempt to establish the anticipated rules of the Shariah.”

The term Fatwa is ‘opinion’ or ‘answer of a question.’ In the Arabic language, some other synonyms for Fatwa are Ifta– ‘delivering an Islamic opinion’– and Mastafti, i.e., ‘to seek for an opinion.’

The relative terms, used in the Qur’an are Istefti – ‘to make a request for an Islamic judgment’– Muftias ‘one who utters Islamic rulings’ and Muftias ‘he who issues an Islamic verdict.’ In the Arabic dictionary, al-Mawrid, the word Fatwa or Futya means ‘formal legal opinion,’and ‘advisory opinion.’

In the Oxford Dictionary, it is stated that the origin of the term Fatwa is Ifta’ (decide a point of law) which means ‘a legal ruling on a problem related to Islamic law delivered by some authentic and famous authority.’

In technical sense, Taqleed means ‘to copy.’ Taqleed is to follow the opinion of a scholar without having knowledge of their evidence. According to Abu Ma’ali al-Juwayni Taqleed is to follow someone without having proofs and doesn’t trust upon knowledge. Taqleed is to rely on someone’s saying without having knowledge of its evidence and arguments.

Role of Ijtihad in Legislation

The word Ijtihad is derived from the root word, Jahd. Allama Abu al-Hasan Ali bin Ismail Ibn Seeda said that means hardship and difficulty. Ibn Manzur al‑Misri says: Jahd and Juhd mean power and strength. He adds that it is said that whereas Jahd means hardship and difficulty, Juhd gives the sense of power and strength. Later on, he quotes al‑Farra’ to the effect that in the verse of the Qur’an, Jahd is used in the sense of power and strength. In the same work, he states that Ijtihad and Tajahud mean exertion of power and strength. In the hadith narrated from Mu’adh, the phrase in which he said, “I will exert to form my own judgment,” shows that this judgment will be executed by putting in complete efforts and exertion to achieve the same purpose.

Technically, it means, deduce the Hukm amid varying interpretations of legal injunctions of Qur’an and Sunnah and construe Hukm or any new ruling from the Qur’an and the Sunnah, in order to address new legal situations. The person who performs Ijtihad is titled Mujtahid. Shatibi defines Ijtihad as: “A process in which one exerts one’s efforts to one’s full capacity in order to acquire exact, or probable, knowledge or reach judgment in a given case.”

In the complete procedure of Islamic legislation, Ijtihad plays an important role and has central position in the whole process because Islamic law has two levels; essential and existential. The first level of Islamic law, being the actual spirit, is related to the progress and development of human life, while the second level – which is the structural form of Islamic law – aims to give it discipline and structure.

The demands of life are going to change day by day and human life also comes under the influence of these changes. In this changing scenario, it becomes necessary to take on the structural review of Islamic laws, but it must be kept in mind that the spirit and discipline of Islamic law must be alive and does not clash with the aspects of evolution of human life…In the process of law-making the achievement of this responsibility is proved by Ijtihad. In the changing situation of every period, this process of Ijtihad is very effective in Islamic law.

Validity of Ijtihad

Many Qur’anic verses validate Ijtihad. Verses 13:3-4 and 4:105 state the importance and significance of Ijtihad. There are many verses which support the use of Ijtihad by Qiyas. Verses which are given below to show its validity include 3:159 and 42:38. The famous tradition of Muadhb. Jabal (d. 18H/640CE) which legalizes the validity of Ijtihad is quoted to ascertain the applicability of Ijtihad when there is no clear proof for the said matter. It is more important in the development of Islamic law and opens a gate to Fiqh that will be helpful for developing the law when coming across new situations.

Role of Ijtihad at the Federal Shariat Court

Federal Shariat court directly consults the Qur’an and Sunnah and gives the judgment according to the injunctions of the primary sources of Islam. In the case of the protection of women, the Federal Shariat court also consults with the Muslim Family Law Ordinance.

On the bases of Qur’an and Sunnah, courts suggest that Islamic law can be interpreted in a more flexible way. In the cases of family law, gender equality, women’s rights etc. Judges move towards the flexible and easy interpretation of jurisprudence and Muslim law from outside the strict applications. Federal Shariat court uses Ijtihad for the legislation of the present issues. By using the methodology of Ijtihad process,the Federal Shariat court gives the answers of the contemporary issues which are based on Islamic law.

The parliament of Pakistan (Majlis-e-Shoora) is the supreme law-making body of Pakistan and all decisions which is given by it is has to be in accordance with the injunctions of Islam and Ijtihad is used as a legislative function in the process of law-making.

Scope of Ijtihad in the Modern Age

Ijtihad is the transmission of the rules of Qur’an and Sunnah. The question arises as to whether, or not, Ijtihad can be practiced in this era? Sunni scholars have strong opinion that in the tenth century, all the rules of Islamic law had been settled; so according to these scholars,the gates of Ijtihad are closed now. But all scholars are not agreed with the concept of closing the gate of Ijtihad. Closing the gate of Ijtihad only means that now new school of thought may not come into existence because there is no need for making a new school. By using the original sources (Qur’an and Sunnah) and the rules of Islam, Ijtihad deals with contemporary problems and tries to solve them according to the rulings of Shariah.

For the fulfillment of the requirements of the modern world, Islamic law has adapted itself to each situation by recourse to legislation. Contemporary Muslim jurists fully try to retain the significance of Islam in the modern world and are able to solve the problems by seeing the necessity of the modern age. Islamic legislative principles are based on views which are not for specific time, specific person or specific age, but are for every period and for all members of the human race. Ijtihad is a legal device which is applied by the jurist from the primary sources as a legislative function for any kind of new issue.

Role of Ifta’ in Legislative Process

I – Qur’anic Injunctions and Prophetic Traditions about Ifta’

The words Ifta, ’Istifta, and Yastafti have been stated in the Holy Qur’an denoting interpretation, asking for opinion, delivering legal verdict:

“O leading people! Explain to me about my dream.”

“And do not ask about them to none of them.”

The Prophet (saws) said: “Forgiveness for knowledgeable people is requested of God by all His creatures in the many heavens and the earth, including the fish that is in the depths of the oceans.”

The Prophet (saws) also said: “When Allah wishes good for a person, He makes him understand the religion.”

The Prophet (saws) is also reported to have said: “A single scholar of religion is more formidable against Satan than a thousand devout people.”

The principle of acquiring religious guidance (pertaining to some particular matter in the form of Fatwa) for the common people, from those who are experts and specialists in the field of Shari’ah, is mentioned in the Book of Allah(swt) thus:

“O believers! Obey Allah and obey His messenger and those entrusted with authority from amongst you.”

And,

“So ask from the people of knowledge, if you do not know.”

Abu Hurairah (ra) reported that Allah’s Messenger (saws) said: “If anyone gives a ruling without knowledge, then the sin for it will be on him who gives the ruling.” It is also narrated by Ibn Asakir that the Allah’s Apostle (saws) said: “Whoever gives Fatwa without knowledge, the angels of the heaven and the earth curse him.”

II –Fatwa as a Legislative Process in the Time of the Companions

Fatwa has a very important role in Islamic judicial system. Fatwa is an analytical view on a particular issue estimated by a legal scholar keeping in view the legal injunctions of Qur’an and Sunnah and previously made decisions regarding that specific topic.

A Companion’s legal verdict (Fatwa) has great significance and is of the highest level, because they learned and gained knowledge directly from the Prophet (saws) and received instructions from him in religious matters.

However, regarding the definition of Companion, there is difference of opinion, whether Companion is the person who just met the Prophet in the state of Imaan or this will be the person who remained very close to the Prophet in his company, acquired all kinds of knowledge of Shari’ah and fully trained by him! Majority of the scholars hold the first view. But both views cannot be ignored anyway.

III – Different Views about the Binding Nature of Fatawa of Companions

There are three points of view regarding the level, authenticity and binding nature of the Fatwa given by a Companion.

a. First view: Imam Malik, Imam Shafi’ and Imam Ahmad Bin Hanbal, who are in favor of the unconditional binding nature of a Companion’s Fatwa to the succeeding generations. They have given examples from the Qur’an and Hadith:

“And the foremost to embrace Islam of the Muhajireen and the Ansar and also those who followed them exactly (in faith). Allah is well-pleased with them as they are well-pleased with Him.”

And,

“Let there arise out of you a group of people inviting to all that is good (Islam), enjoining Al-Ma’ruf (all that Islam orders) and forbidding Al-Munkar (all that Islam has forbidden). And it is they who are the successful.”

And,

“You are the best of peoples ever raised up for mankind; you enjoin al-Ma’ruf and forbid al-Munkar (all that Islam has forbidden), and you believe in Allah.”

Allah’s Messenger (saws) said: “I urge you to follow my Sunnah and the way of the rightly-guided caliphs after me; adhere to it and cling to it firmly. Beware of newly-invented things, for every newly-invented thing is an innovation (bid’ah) and every innovation is a going-astray.”

b. Second view has been given by those (including Hanafi jurist Abul Hasan al Karkhi, Asharite and Mutazilite scholars) who are not in favor of the binding nature of Fatwa of a Companion. They gave the example of this verse:

“Consider, O you who have vision.”

However, it is commented against this view that this verse makes the Fatawa of Companions compulsory to obey by differentiating between the Companions and others.

c. Third view also has been given by Imam Abu Hanifa himself that, if the verdict of a Companion is in accordance with Qiyas, then it is not binding, but if it is contradictory to Qiyas, then it is a proof, necessary for the next generations to follow.

The jurists disagree regarding the binding nature of a Companion’s Fatwa, but there is an agreement among four founding jurists regarding its authoritative and authentic nature. For example, Imam Abu Hanifa said: “When I am unable to find anything in the Book of Allah (swt) or the Sunnah of the Prophet (saws), I consult the Fatawa of the Companions. I adopt the ruling which looks suitable to me and leave that which does not. However, neither I leave the Fatawa of all of them, nor I prefer others’ views over their Fatawa.”

Imam Shafi’ said: “When I do not find anything in the Qur’an, Sunnah or consensus of opinion or anything derived out from these sources, I follow the Fatwa of the Companion.”

Imam Malik almost equated the Fatawa of the Companions with the Sunnah. It is evidenced that, in his Muwatta,’ Imam Malik has recorded more than 1,700 traditions, and from amongst them, half are the Fatawa of Companions.

Imam Ahmad bin Hanbal considered all the Fatawa of the Sahabah equally approved and accurate because those Fatawa are the symbol of that incomparable knowledge Sahabah gained from the Prophet (saws).

The Companions who issued a large number of Fatawa are Ayesha, Umar b.al-Khattab, his son Abdullah, Ali b. Abi Talib, Abdullah b. Abbas and Zaid b. Thabit (may Allah be pleased with them).

The Sahabah left behind a great wealth of Fatawa. They were the excellent Muftis and resolved many difficult cases. Some examples are given here:

1. Concerning the treatment with the prisoners of the battle of Badr, Umar (ra) suggested: “O Messenger of Allah! The prisoners are the prominent personalities of Makkah. By killing them, we can make Kufr unable to face us again. So, every Muslims should kill his relative among the prisoners. Hand over to Ali his brother Aqil to kill, to Abu Bakr his son Abd al-Rahman and to me my relative.”

The Prophet (saws) preferred the view of Abu Bakr (ra) of taking ransom from prisoners.However, verses of Surah Anfal (67-68) were revealed in favor of Umar’s opinion.

2. Fatwa of Ali (ra) about the people engaged in homosexual practices in some parts of the Arabia (an advice given to Abu Bakr): “Only one nation [the nation of the Prophet Lut (asws)] committed this sin and you know what Allah (swt) did to them. So these people should be burnt to death.”

After the Companions, the Tabi’een had the responsibility to put their contribution in Islamic jurisprudence, issue Fatawa and play role as legislators. As their teachers (Companions) belonged to different areas of the Islamic state, like Makkah, Madinah, Kufa, Basra, Damascus; so did the Tabi’een themselves; and that is why each Tabai’ adopted and applied the methodology which he learnt and perceived by his teacher.

There is but very slight difference between the methodologies of Tabi’een with regard to giving legal opinions (though they were much clearer) and that of the Companions because they seldom tried to change the Fatawa of the Companions. For example, Hasan b. Ubaidullah al Nakha’i said:

“Once I asked Ibrahim al-Nakha’i: ‘Did you hear all the Fatawa from the predecessors which you give?’ He answered in the negative. I asked him: ‘Then you give Fatawa without hearing them from anyone?’ He replied: ‘I hear what I hear, but when I face those issues about whom I did not hear anything before, I compared them with those issues about whom I heard Fatawa and, thus, I give my own opinion.’”

Most of the Tabi’een who lived with the Muftis among the Sahabah are: Imam Nafi’, Ikramah, Ata’ b. Rabah, Tawus, Yahyab. Kathir, Ibrahim al-Nakha’i, Hasan al-Basri, Ibn Sirin, Ata’ al-Khurasani, Sa’idb. al-Musayyab, Yazidb. Abu Habib, Abdullah b. Abu J’afar, Ja’far b. Rabi’ah and others.

(To be concluded)