Ijtihad as a Legislative Function: Role of Ijtihad, Ifta and Taqlid in Legislative Process (Part-2)

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. Ijtihad thus play as a perfect tool for legislation. This is the concluding part of a paper on Ijtihad, the first installment of which was carried in the February 2017 issue of Young Muslim Digest.

V –Fatwa as a Legislative Process in the Time of Later Jurists

After the Tabi’een, the duty of legislation and development of Fiqh fell upon the shoulders of the Jurists who used to look thoroughly from the Qur’anic verses and Prophetic sayings, the decisions of the scholars from amongst of Sahabah, Tabi’een and Taba’ Tabi’een and then utter their own legal opinions.

The jurists (Fuqaha), like their predecessors, learnt and followed the methodologies of their teachers (Tabi’een) belonging to different parts of the Islamic world. However, their methodologies are also contradictory in those cases, in which they did not find any legal opinion of their teachers related to a specific problem. Then they themselves tried to find out the solution for that problem from the relevant Texts and formulate their own Fatawa. That’s why the opinions of the jurists not only consulted the Fatawa of the Tabi’een but issued new ones too, where it was necessary. They said: “Tabi’een were people (of knowledge) and so are we.”

VI –Fatwa as a Legislative Process in Pakistan

There is judiciary of Pakistan (including Supreme Court, High Court, Federal Shariah Court and Civil Courts) which is one of the sources of legislation and performs the task of interpretation for law-making. Secondly, the federal and supreme legislative body of Pakistan is the Parliament of Pakistan, also known as Majlis-e-Shura (which has the task of formulating laws, organizing discussions, promulgating ordinance and passing bills etc.). Thirdly, there are various religious sects in our country Pakistan with a large number of Muftis exercising the job of Ifta according to the teachings of their particular sects.

The Council of Islamic Ideology is one of the official legislative body of Fatawa founded by the Muslim Government of Pakistan as Advisory Council of the Constitution of Pakistan 1962. It is a council of highly-specialized Muftis accomplishing the job of providing responses to their current problems.

All Pakistan Ulema Council is another Islamic institution including religious leaders and scholars of Islamic law belonging to different schools of thought. This council performs the job of issuance of Fatawa to resolve the contemporary problems of the people of Pakistan.

IV – Role of Taqlid in Legislative Process

The word Taqlid comes from the Arabic root word “q-l-d” which means “fixing of an animal.” In technical sense, Taqlid means “to follow, imitate.”

i – Proof of Taqlid from Qur’an

Taqlid is mentioned in Holy Qur’an. Verses in which Taqlid is stated are mentioned here. Allah Almighty stated in Holy Qur’an:

“Believers! Obey Allah and obey the Messenger (blessings and peace be upon him) and those (men of Truth) who hold command among you.”

In this verse, the meaning of “men of truth” is the Ulema and Imams. This verse shows the obligatory nature of Taqlid. The meaning of ‘men of truth’ is the men of judgment, understanding and accepting, for example,Ulema.

“So, if you yourselves do not know (anything), then ask the People of Remembrance.”

In the above mentioned verse it is stated that if anyone doesn’t have knowledge about any Ahkam, then he should consult with those people who possess the knowledge of Qur’an and Shariah.

“Had they referred it to the Messenger (blessing and peace be upon him) or those of them who are in command (instead of making it public), then those among them who can draw conclusion from some matter would have found it (i.e. the truth of the news): Whoever Allah wishes well for, He grants him deep understanding of the Religion.”

In this verse Allah (swt) has clearly stated that when we have any difficulty in Deen, we should ask the people of deep understanding of religion. This is obvious that people who do not have knowledge should consult with the people who possess knowledge of religion.

Following are the other verses of Qur’an in which commandment of Taqlid subsist:

“…party from within every group (or tribe) not goes forth in order that they may acquire deeper knowledge (i.e., thorough understanding and insight) of Din (Religion).”

“…follow someone who adopts the path of turning to Me in repentance and submitting to My injunctions.…and those who follow them in the grade of spiritual excellence — Allah is well pleased with them (all) and they (all) are well pleased with Him.”

ii – Proof of Taqlid from Hadith

At many places, the Prophet (saws) mentions the importance of Taqleed. Some of them are mentioned here. In Sahih Bukhari, the following Hadith is mentioned:

“You follow me and the later ones will follow you.”

Hafiz Ibn Hajar ‘Asqalani interpreted this by stating that it meant the Companions should learn the rules of the Shariah from the Prophet (saws), and those who will come after the Companions would learn from them and same like those who come after them and so on till the end of the world.

“Verily the cure to not knowing is asking.”

Background of this Hadith related to the time when Companions of Prophet (saws) were on a journey and they spend night there and at the time of Fajr prayer, among them one Companion needed a ritual bath but he was having a wound and there was cold water.He wished to do Tayammum but the other Companions forbid him to do this. On taking his bath,the water worsened the wound and he died soon afterwards. It was when the Companions informed the Prophet (saws) about the whole matter, that he made the statement as mentioned in the aforementioned hadith.

Abu Saeed al Khudri stated that some Companions came late for prayer and they make the habit of it. For this reason, the Prophet (saws) advised them to come early and take the front rows in prayer. The Prophet (saws) asked the Companions to observe, and follow, him and so that the coming generations would then observe and follow them. Meaning of this Hadith is to come early for prayer but those who come late and stands at the back rows should have to follow the people of the front rows.

In Fath al-Bari, Ibn Hajar states that the meaning of this Hadith interpreted by some people is that the Companions learn the commandments of Shariah from the Prophet (saws), then their successors (Tabieen) acquire knowledge from Companions and this procedure will continue so forth.

The following Hadith is reported in Muslim and Bukhari. It is reported by Abdullah bin Amr (ra) that the Prophet (saws) said that knowledge will be raised from the world when people ask ignorant Ulema about the matters and they will issue Fatawa, thus misguiding others. This Hadith makes it evident that Ulema have duty to give Fatwa, not the layman.

iii – Proofs of Taqlid from Tradition of Companions

It is mentioned in Sahih Bukhari that an issue came in front of Abu Moosa Ash‘ari (ra). He responded by saying that the matter should be taken to Abdullah bin Mas’ud (ra). Thus, when people consulted Abdullah bin Mas’ud(ra) on the matter, they also reported to him the incident of their asking it from Abu Moosa Ash‘ari (ra), who, in turn, told them that asking Abdullah bin Masud(ra) was enough and that it was not needed to ask anything when he was available. This means that he taught them to follow Abdullah bin Mas’ud(ra) in every matter.

Once Abu Ayyub al-Ansari (ra) lost his camel while he was on his way to perform Hajj. He needed the camel to sacrifice it in order to come out of Ihram. When the day arrived to sacrifice the camel, he inquired from Umar(ra) as to what he was to do. Umar (ra) said, “You should have to do same thing which peoples do while performing Umra– that is, to cut or shave your hairs. You will stay out from Ihram. Next year, you have to perform Hajj and perform the sacrifice.” Abu Ayyub did not ask Umar (ra) to give proof in this matter. Nor was it given to him. This is an example of Taqlid.

iv – Matters in which Taqlid is allowed

In Qur’an, there are two types of injunctions: one clear and the other unclear. Clear verses can be understood by a layman and there is no need of Taqlid. In verses which are not clear, and contrary evidences prevail, then there is the need of Taqlid because one cannot derive rulings.

In the matters of creed which are essential part of religion like prayer, fasting, Zakah, and Hajj, there is no need of Taqlid because they are obvious. Taqlid should be made in the affairs which are debatable like legal injunctions. When legal injunctions and issues of worship are not clear, then there is the need of Taqlid for understanding the exact rulings. Allah Almighty exhorts us in the Qur’an (16:43) to consult with knowledgeable people in matters where we are in need of guidance.

v – The Permissible Forms of Taqlid

About acceptability, if there is any difficulty in a matter, one should consult with Ahlal-Ilm; else they can go astray. Allah Almighty repeatedly asks the believers to consult the People of Knowledge, if they are unaware of anything.

Taqlid should not be of just anyone.It must be of the person who is qualified with knowledge and he should possess piety. Ibn Taymiyah said that when a Muslim faces any difficulty, he should seek a ruling from one who possesses knowledge and give decisions according to Qur’an and Hadith. This is not obligatory on Muslims to follow blindly, it is allowed in cases where option of Ijtihad not found.

vi – The Prohibited Forms of Taqlid

Ibn al-Qayyim divides the prohibited Taqlid intothe following types:

  • Just satisfied with the Taqlid of forefathers and turning away from the clear commandments of Allah (swt).
  • Taqlid of the person with whom we are not assured that his sayings can be taken or not.
  • When it becomes apparent that the person whose opinions are followed as Taqlid has views that contradict with the evidences or with the rulings of Shariah.

As it comes in the Holy Qur’an (24:63) Allah Almighty will inflict painful punishments on those who oppose the clear commandments of the Messenger. In the mentioned verse, Fitnah means Shirk. It is clear that rejection of Allah’s commandments leads us towards Hell and distortion.

vii – Significance of Taqlid in Modern Times (Pakistan)

In constitution of Pakistan Articles 189 & 201 are related to Taqlid. Articles 189 & 201 make the decisions of Supreme Court binding on all courts and the High court judgments binding on all subordinate courts. The institutionalized forms of Taqlid are doctrine of precedent. The opinions of High court are followed by lower courts: this is considered as Taqlid. Common people accept the decisions of judges in their legal problems. Similarly, the statements of witnesses are accepted by court unless their truth is challenged. Likewise, opinions of experts in routine matters are followed by people. It can be concluded that Taqlid is an essential principle of our daily lives based upon the division of labor where some people specialize in specific field and become experts. Likewise, the Mufti or the Faqih are the persons who are experts in their areas and there is no need to hesitate in accepting their opinions by the people who are common people in their field of specialization.

viii – Basic Reasons of Accepting Taqlid by Majority of Muslims

According to the view of reformists, Taqlid acceptance by the community of Muslims is just due to the misunderstanding of their perception of Fiqh and Shariah. People impressed by the Classical jurists’ work of Fiqh, they maintained that the early jurists examined and interpreted the true patterns, compiled their details guidance that does not need any alteration. Consequently, people follow the transmitted work of jurists as the basic mandatory provision, in the light of Qur’an and Sunnah deprived of any perception or examination. Moreover, the teachings of the jurists of classical period formed the religious knowledge and that was the faith matter and the work of early jurist doesn’t need any scrutiny. With the passage of time, the arguments and the truth did not change. The works of early jurists is as valid in the present time as it was in the time of its formulation. There is no need of rechecking the work of jurists because it is unnecessary and dangerous.If anyone does this, then it will be just error and misinterpretation.

Al-Shawkani mentions that Taqlid is the common practice and prevailing norm and it was not to be violated. Consequently, claims to the right of Ijtihad indeed met with resistance, criticism and public libel. But according to Al-Suyuti, Ijtihad is the backbone of Shariah and legal decisions cannot be reached without Ijtihad.

V – Conclusion

Islam stresses upon the believers to follow the way of knowledge. As it comes in Surahal-Isra,’ v. 36, Allah Almighty accentuate to pursue knowledge in all matters as every act of hearing sight and heart will be accounted for. The legislative process in Islam needs to employ Ijtihad, Ifta and Taqlid according to the situation as all of them are different means of attaining knowledge and different aspects of knowledge are explored pondering on every likely possibility.

Allah knows best.

(Concluded)