The Religion Of Islam vol.2
Chapter XXIX - Degrees of Ijtihad
There are three degrees of ijtihâd. They are: ijtihâd fish-Shar’, ijtihâd fil-Mazhab and ijtihâd fil-massa-il or exercise of judgment in legislation, in a juristic system and in particular cases, respectively.
The first kind of ijtihâd or exercise of judgment in the making of new infallible laws is recognized by the sunni Muslims to have been limited to the first three centuries and, practically, it centres in the four great revered Imâams. They have confined all laws and included in their systems whatever was reported from the companions and the tâbi’în, i.e. the generation next to that of the companions. It is the general opinion that the conditions ([1]) necessary for a mijtihâd of the first degree have not been met with in any person after the first four grand Imâms. It is further supposed for obvious reasons that they will not be met with in any person in the later generations ([2]).
The second degree of ijtihâd belongs to such earlier ijtihâd as Imâm Dr. Abû-Yûsuf and Imâm Dr. Muhammad, the two famous disciples of the head Imâm Dr. Abû-Hanifa whose unanimous opinion on any point of jurisprudence must be accepted by the scholars and followers of the Hanafi system, even if it goes against that of their master.
The third degree of ijtihâd was and is still attainable by later acknowledged mujtahids and local jurist who could solve questions or special cases that might come before them, which had not been decided by the mujtihâd of the first two degrees, but such solutions of new cases must be in absolute accordance with the opinion of the greater mujtahids. In fact, ijtihâd is a great blessing of which the Muslim religion can ever boast; it is the only way through which the needs of the succeeding generations and the requirements of the different races merging into Islam could be met. To fulfill these needs and requirements, the mujtahidshave laid down the foregoing methods, technically known as qiyâs; (analogical reasoning); istihsan (equity); istislah (public good) and istidlâl (inference).
A brief description of these methods may be given to show how new secondary laws are evolved by adopting them:-
‘Qiyas’ or Analogy
The most important of these methods and the one which has almost a universal sanction, is qiyâs which literally means measuring by or comparing with, or judging by comparing with, a thing, while the jurists apply it to “a process of deduction by which the law of a text is applied to cases which, though not covered with the language, are governed by the reason of the text ([3]). Briefly it may be described as reasoning based on analogy. A case might come up for decision, which is not expressly provided for either in the Holy Koran or in the hadîth. The jurist looks for a case resembling it in the Holy Koran or in the hadîth, and by reasoning on the basis of analogy, arrives at a decision. Thus, it is an extension of the law as met with in the Holy Koran and hadîth, but it is not of equal authority with them, for no jurist has ever claimed infallibility for decisions based on analogical deduction. It is a recognized principle of ijtihâd that the mujtahid may err in his judgment. Hence it is that as many differences of juristic deductions exist even among the highest authorities. From its very nature the qiyâs of one generation ijmâ’ is in all cases binding on the community.
Istihsan or Equity
Istihsân which literally means considering a thing to be equitable, is in the technology of the jurists the exercise of private judgment, not on the basis of analogy, but on that of public good or in the interests of justice. According to the Hanafi system, when a deduction based on analogy is not acceptable, either because it is against broad rules of justice, or because it is not in the interest of public good, and is likely to cause undue inconvenience to those to whom it is applied, the jurist is at liberty to adopt, instead, a rule which is to be in consonance with the broader rules of justice. This methods of Istihsân is rather peculiar to the Hanafi system.
Istislah or Public Good
This method which is a similar rule to that of Istihsân is adopted by Dr. Imâm Mâlik and the Mâlik School at large, means a deduction of the law based on consideration of public good.
Istidlal or Inference
Istidlâl has two chief sources recognized for inference. These are customs and usages which prevailed in Arabia at the advent of Islam, and which were not abrogated by Islam; they have the force of law. On the same principle, customs and usages prevailing anywhere, when not opposed to the spirit of the Koranic teachings or not expressly forbidden by the Sunna, would be admissible, because according to a well-known maxim of the jurists, “permissibility is the original principle,” and, therefore, what has not been declared unlawful is permissible. In fact, as a custom is recognized by a vast majority of the people, it is looked upon as having the force of ijmâ’ and hence; it has precedence over a rule of law derived from analogy. The only condition required is that it must not be opposed to a clear text of the Koran or a reliable hadîth.
The Hnafi School lays special stress on the value of customs, so much so that it is taken as a principle of law ([4]).
As regards laws revealed to the people of the Book (Jews and Christians) previous to Islam, they also have the force of law even now, so long as they have not been expressly abrogated by the Koran or the Sunna.
It is to be noted that difference of opinion between acknowledged jurists was never ignored by the Islamic Law, nay it is encouraged and praised since such difference is naught but the ripe fruit of the use of the reasoning faculty, so long as the opposed opinion expressed on a certain secondary point is not contradicted by the Koran, the Book of God or the practice and teaching of the Prophet.
On this principle, the Messenger of God is quoted to have said that when a qâdi (qualified judge or jurist) gives a judgment and he exercises his reasoning faculty and is right, he has a double reward, and when he gives a judgment and exercises his reasoning faculty and makes an innocent mistake, there is still a reward for him ([5])
Again the Prophet is reported to have said: “The differences of my people are a mercy” ([6]). Difference of opinion is called a mercy, i.e. a blessing, because it is only through encouraging difference of opinion that the reasoning faculty is developed, and the truth ultimately discovered. There were certain differences of opinion among the Companions of the Prophet, and there were also matters on which a single companion used to express boldly his dissent from all the rest. For example, Abû-Zarr was alone in holding that to have accumulated wealth in one’s possession was a sin. His opinion was that no one should amass wealth unless he had distributed the most of it to the needy. All the other companions were opposed to the view; and though the authority of ijmâ’ was quoted against him, no one did dare say that Abû-Zarr had committed a sin for expressing an opinion in difference with the whole body of Companions.([7])
Thus the Holy Koran is the fountain head of Islamic Law, supported and explained by Traditions of the Prophet, agreement, analogy and preference, as to which all Muslim school are unanimous.
The differences only arise in regard to the selection of a particular tradition or to preference given to a certain tradition any other, or to the interpretation attached to certain of the text in the Koranic passages ([8])
Ways of Inferring “Ijma”
Before concluding this Chapter on the subject of ijmâ, it is necessary to point out the ways by which ijmâ’ and its subsequent enjoinment upon the sunni Muslims are inferred.
As already stated in the forgoing, the sunni Muslim theologians and jurists are unanimous in considering the agreement of the mujtahids a source of jurisprudence and one of the foundations of the Islamic Law.
The expression and terminology of the general agreement of mujtahids is supposed to imply the collection of the opinion of all living mujtahids at any certain age. But this is not the case. In fact, the said agreement is inferred in three ways: first by qawl (word), i.e. when the mujtahids express an opinion on the point in question; secondly by fi’l (deed), i.e. when there is unanimity in practice; thirdly by sokût (silence), i.e. when the mujtahids of as certain age do not oppose an opinion expressed by one or more of them; as for example when the rector of Al-Azhar or any other acknowledged mujtahids expresses an opinion on a point of law, and his (or their) opinion was not expressly opposed by some mujtahids, but was received by unanimous silence on their part.
[1]) ) For these conditions, vide pp. 178-179 of this work (author).
[2]) ) “Kashful-Asrar”, by ‘Abdul- “Aziz Al-Bukhari, Vol. 3.
[3]) ) “Al Maqâlâtul-Islâmiya”, by Isma’il Al-Ash’ari.
[4]) ) “Al Ashbâh wan-Nazâ’ir” Book a standard of the Hanafi Theology.
[5])) Vide “Mishkâtul-Masâbih”, by Walyid-Din Muhammad ibn ‘Abdulla.
[6])) Vide “Jami’-es-Saghir”, by Imam Al-Hâfiz Jalâlud-Din Al Sayîti, Cairo Edition.
[7])) “Kitâbut-Tabaqât-ek-Kobra”, by Muhammad ibn Sa’d.
[8])) References: “Fat-hul-Bayan fi Maqasidul-Quran”, by ibn “Ali Al-Bukhari; “Fatawal-Mughiri”; “Al-Hidâya”, by ‘Ali ibn Abi Bakr Al-Maghani: “Fiqul-Akbar”, by Master Imam Abu-Hanifa; “Commentary of Bahrul-Muhit”, by Muhammad ibn Yusuf,