View Full Version : Ijtehad has got important status in Islamic law. discuss. (19980(2006)

09-02-2012, 09:04 PM
1. Introduction:
Ijtehad is one of the dependent sources of Islamic law. if a matter is not resolved expressly in a Quran Sunnah and by way of Ijma the jurist must not leave the matter unresolved rather he should strive hard to find out the solution under right of Quran and Sunnah.
2. Meaning and definition of ijtehad:
I. Meaning of ijtehad:
(i) Literal:
Ijtehad Iiterally means striving expending of maximum effort in the performance of an act.
(ii) Technical:
It is the effort made by Mujtahid in seeking knowledge of the ahkam (rules) of the Shariah through interpertation.
II. Definition of Ijtehad:
"Ijtehad means the application by a lawyer of all his faculties to the consideration of the authorities of the law, that is the Quran Traditions and the Ijma with a view to find out what in all probability is the law.
3. Arguments in support of Ijtehad:
I. Quranic verses in support of Ijtehad:
Following Quranic verses are in favour of Ijtehad:
"And we have revealed on you the book which describes everything."
"We have omitted nothing form this book.:
"The ask those who have knowledge, if you yourselves do not know,"
II. Ahadith in suppopt of ijtehad:
Following Ahaditths are also in support of Ijtehad.
"Exercise Ijtehad because God makes the work easy for the person for which he is born in this world."
"When a ruler exercise Ijehad properly in resolving an issue he is to be rewarded by God in dual wayand if he is wrong in this conclusion he gets one reward."
4. Function of Mujtahid:
Following are the functions or tasks of the Mujtahid:
(i) To discover the law that is either stated explicitly in the primary sources or is impiled by the texts, that is literal interpretation.
(ii) To extent the law to new to new cases which are similar to cases mentioned in textual sources.
(iii) To extend the law to new cases which are not covered by the previous methods.
5. Limitations of Ijtehad:
Ijtehad cannot be made in case which are covered by the express words of Quran Hadith or has been determined by basic Ijma. A jurist cannot exercise Ijtehad on the basic pillars of Islam e.g paying of Zaket, Prohibiton of Murder etc.
"PLD 1981 FSc 23."
"Ijtehad is permissible only in field where on rule of Injunction form Holy Quran or Sunnah is available."
6. Modes of performing Ijtehad:
A jurist may perform Ijtehad by following the following pattern.
I. Literal constrution:
A jurist first concentrates on literal meaning of the texts and follow the plain meaning rule.
(i) Qiyas:
After the literal construction the jurist may turn to qiyas but must confined to strict types of analogy.
III. Collectively reliance on texts:
After exhausting the first two methods or modes the jurist may rely on all the texts considered collectively. this means that legal reasoning is undertaken more in line with the spirit of the law and its purposes rather than the confines of individual texts.
7. Qualifications of Mujtahid:
The word Mujtahid means a person who can make Ijtehad. following are the qualifications of a mujtahid.
I. According to author of Jam Ul Jawami:
According to the Author of Jam'al Jawami following are the qualifications of a mujtahid.
(i) Major:
A mujtahid must be a major i. e. has attained the age of majority so a minor cannot be a mujtahid.
(ii) Sound and rational mind:
He must be of sound mind, possessing the understanding and of sufficient intellectual to grasp the subject.
(iii) Knowledge of grammar:
He must have average knowledge of the Arabic language, grammar and recognized principles of jurisprudence and sources of law i. e. Quran Sunnah etc.
(iv) Acquaintance with the principles of Shariah:
He must have well versed the main principles of Shariah or the legal code so as to able to ascertain true intention of the law-giver.
(v) Knowledge of Naskh:
The mujtahid must understands abrogation (Naskh) and identifies the occasions on which rules have been repealed by law-giver.
(vi) Knowledge to circumstances of Quranic revelations:
A must know the circumstances in which the texts of Holy Quran were revealed or repealed.
II. According to Fakhural Islam:
The great thinker Fakhural Islam enumerates the following conditions.
(i) Conversant with Islamic Jurisprudence:
A mujtahid must be conversant with the science of Islamic jurisprudence and the rules of law applied is various departments.
(ii) Knowledge of the Quran:
A mujtahid should have knowledge of Quran together with its meaning both literal and dictionary and he must be able to interpret its verses.
(iii) Knowledge of the Traditions:
A mujtahid should have knowledge of the traditions as well. he must be fully familiar with the traditions reported by from the Holy Prophet (P.B.U.H) and able to distinguished between authentic and un-authentic matwater and Mashhoor traditions. he must be familiar with rules for authenticity leading to the genuineness of the traditions.
(iv) Acquaintance with the rules of analogical deduction:
A mujtahid must be aware of and full conversant with the rules and methods of analogical deduction.
III. Other qualifications:
Following are also considered as necessary qualifications of mujtahid.
(i) He must have faith and the courage of convocation.
(ii) He must have competence and advanced proficiency in Arabic language.
(iii) A comprehensive understanding of Fiqh, the basic principles and other relevant matters.
(iv) He must understands the different forms of bayan or elaboration of the texts, which is usually provided by the law-giver himself, and also identifies the occasions on which such bayan is invoked.
(v) A proper understanding of modern development and a reasonable appraisal of contemporary exigencies.
8. Kinds of Mujtahid:
I. Mujtahidum Fish-Shari:
These are the jurists who have an absolute and independent power of expounding the law e. g. Abu Hanifa Malik, Shafi etc.
II. Mujtahidum Fil Madhhab:
The jurists having authority to expound the law according to a particular school comes into this category. the were the disciples of jurists of first rank like Abu Yusuf belongs to Hanafi school. these mujtahids followed the fundamental principles laid down by their respective masters but not consider themselves bound to follow the general principles or arguments in particular cases, and they often profounded view opposed to those of their masters.
III. Mutahidum Fil Masal'l:
These are the jurists who are competent to expound the law on a particular question which had not been settled by the jurist of first and the second class. the jurist of this rank is at liaberty to lay down the law in conformity to the principles of his school e. g, Khassaf, Qadi Khan.
IV. Mujtahidum Muqallid:
They are also called Mujahid Muqayyid. they have not any right o deduct the law but their function was to explain the law and draw inferences. theses mujtahids are divided into four groups.
(i) Ashabu't Takrij.
(ii) Ashabu'i Tarjih.
(iii) Ashabu'i Tashih.
(iv) Asabu'i Shariah.
9. Legal effect of Ijthad:
The legal effect of Ijtegad is the probability of the conclusion so arrived at being correct but the possibility of such conclusion being erroneous is not discretionary or presumptive law.
10. Position in Pakistan:
The courts in Pakistan specially Federal Shariat court applies Ijtehaed in its judgment and cases. the Federal Shariat court provided guideline to the rulers as well public through Ijtehad. the court observes the basic principles of democracy, freedom, equality, tolerance and social justice as enumerated by Islam.
11. Modern principles of Ijehad:
Modern principles of Ijtehad are as under:
(i) State and social justice.
(ii) New age new laws.
(iii) What is not categorically and unconditionally prohibited is permissible.
(iv) Follow the modern pattern.
(v) The necessity of new Sunnah and new Fiqh.
(vi) Need of revision of Islam.
(vii) Revision and reform of the recess and practices of an early society.
(viii) Istihsan.
12. Importance of Ijtehad in modern world:
Ijtehad is a living source of law. it has become important in the modern times due to the needs of the present time, such as encomic, social and political change, so that the Muslim socciety and people may become a powerful force in the modern times. Shah Wali Ullah was the first Muslim thinker to propoued a theory of cautious exercise of Ijtehad. then it iwas followed by Sir Syed Ahamad Khan and Allama Mohammad Iqbal. according to Allama Iqbal, Ijtehad can be undertaken not only by an individual jurist but also by a legislative assembly recognizing the Importance of Ijtehad in the modern times, the Shariah Qrdinance of 1988. in Pakistan has entrusted the task of making the laws in the country to conforms to the Quran and Sunnah to the judiciary.
13. Conclusion:
To conclude, I can say, that the importance of Ijtehad lies in the dynamic and flexible spirit of Islam, which is by the Quran and Sunnah, Islamic law can be interpreted by a mujtahid who may be either an individual or a legislative assembly. this development will bring about an accommodation between the prescriptions and injunctions of Islam, on the one hand, and the imperatives of modern life on the other.