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Section 3

Factors Responsible for Emergence of the Practice of Ra'y
At the most sensitive juncture in the history of Islam when the Muhammadan Shari ah was in the course of expansion, the process of wahy (revelation) was terminated and with it the epoch of tashri` (legislation). The losing of the era of tashri' and the demise of the Prophet (S) coincided with the emergence of diverse changes in the world of Islam. These changes were the result of the spread of Islam in new territories and alien soils, followed by new situations and problems each one of which required an answer.
The passage of time did not offer any solution to the problems; rather it added to their intricacy and their number as well. For, with time, sometimes even the problems that had received exposition during the period of tashri` were lost in the mazes of ambiguity arising from different narrations and riwayat (traditions), thus giving rise to new obstacles in the way of determining the laws (ahkam).
At this point, while the Islamic Ummah had no access to wahyand had lost the biggest source towards which they looked for the solution of their problems, much greater problems cropped up, and this vacuum was felt more acutely than ever before. Two different outlooks emerged in order to confront this difficult situation in the newly-born Islamic society:
(a) The point of view that the authority for determining the Divine ahkam and expounding the Quranic meanings belonged to the House of the Prophet (S) after him, and that they alone, in accordance with the Prophet's express decree, should be referred to for solution of the problems and determination of the ahkam of the Almighty. Those who believed in this outlook did not face any insoluble problem in the wake of the cessation of wahy, as they knew well that their duty was to refer to the Ma`sumun (A). [1]
(b) The view that there was no specified person after the Prophet to interpret and determine the Divine commandments. Its proponents maintained that the Book and the Sunnah of the Prophet (S) were the only sources from which the ahkam regarding the new legal issues could be derived.
Those who subscribed to this view-later to be known as "Ahl al­ Sunnah" turned to solve their problems by referring to the Quran and the Sunnah; but they soon realized that it is not at all an easy task to extract all the ahkam of the Shari'ah from express Quranic texts(nusus) and the Sunnah of the Prophet, and that they are not adequate to answer many of the new issues.
This led the Ahl al-Sunnah into finding other ways and sources of ijtihad and to put their trust in the practice of ray and personal judge­ment and to rely on such sources for basing legal conjectures as qiyas (analogy), istihsan, masalih mursalah, istislah, sadd al-dhara'i`, fath al­dhara'i; madhhab al-sahabi, shari`at al-salaf, `urf, istidlal and so on as hujjah (possessing legal validity).
This was a sketchy description of what we shall discuss in detail below.
The Factors Which Generated New, Contingent Issues
The emergence of new issues after the termination of the period of tashri` depended upon various factors:
1. Natural and ordinary factors related to the day?to?day life of the Muslims.
2. Exceptional or extraordinary factors, like wars.
3. Islamic conquests and victories extended Islamic influence in Asia, Africa and some European regions, and, in this way, diverse cultural traditions stepped into the vast domain of Islam. On account of this, new requirements and needs were felt in the same proportion, and Islamic fiqh was bound to answer all of them, in addition to presenting appropriate ahkam which could suit different environmental and social conditions.
All these factors put strains on ijtihad and made deduction of the laws of Shari ah more difficult for the Sunni community. This caused the Ahl al-Ray those who believed in the practice of ray the Iraqi school of jurisprudence, whose founder was Abu Hanifah al-Nu'man ibn Thabit (80-150/699-767), and a large group of Sunni fuqaha' to reach the conclusion that the express texts (nusus) of the Quran and the Sunnah of the Prophet (S) alone, being limited, cannot provide an answer to the new issues and problems, while the issues of daily life are countless and ever-increasing.
Accordingly, they were forced to rely on an ijtihad based on ray and other such conjectural instruments that were devised before him. This topic will be discussed in the article "Sayr-e ta'rikhi-ye qiyas dar manabi-ye ijtihad" (the Historical development of Qiyas as a Source of Ijtihad).
In the same period, the Shi'ah, who formed a section of the Islamic society, also encountered the new problems that faced the society. They also considered it essential to find solutions to the new problems. But due to their particular point of view, they never came across the above-mentioned strains when facing diverse situations, because, during the days of accessibility to an Imam (A) they went to him for solving their problems, and during the days when they could not find an access to him or during his occultation they could solve the problems of daily life by means of the usul and by using them in deriving the ahkam of the Shari'ah. They never felt the need for having recourse to ijtihad by ray and depending upon conjectural legal sources.
According to Ahl al-Sunnah, in instances where the nass of the Quran and the Sunnah was not available, the mujtahid can legislate laws by exerting his own personal judgement and ray and set them forth as divine laws. But according to the Shi'i point of view, in Islamic law a mujtahid has no right to legislate laws regarding new situations and issues, as there is no need for a mujtahid to resort to tashri` in presence of the general juristic principles which already exist.
Different Points of View Among Ahl al-Sunnah
It is essential to mention this point here that the practice of ray was not accepted by the Sunni community without any resistance, and the different Sunni sects were not uniform in this regard. The Ahl al-Hadith (the Hijaz school of fiqh), whose founder was Malik ibn Anas al-'Asbahi (93-179/711-795), were a section of the Sunni community who forbade every kind of ijtihad that crossed the limits of the Quran and the Sunnah. Others who held this outlook were the Hanbalis, the followers of Ahmad ibn Hanbal al-Shaybani (164-241/780-855), and the Zahiris, the followers of Da'ud ibn 'Ali al-'Isfahani, knownas Abu Sulayman Zahiri (200 or 202-270/815 or 817-883). In the beginning, however, Malik did not subscribe to this outlook and approved the practice of ray.
Ijtihad, as accepted by the Shi'ah, involves the application of certain essential and fundamental principles (usul) to secondary issues (furu`). This results in expansion of fiqh and the laws of Shari'ah in the sense of development and emergence of new instances and diversity of legal applications, and not through legislation of new laws.
But ijtihadin the Sunni sense implies tashri` or legislation of laws, which forms the part of the mujtahid's activity. In other words, in Sunni fiqh, ahkamor the laws of Shari'ah also expand along with the expansion and multiplication of the issues. The variety and number of the issues and applications and their external and objective diversity requires variety and diversity of the relevant ahkam. Many a time, the general laws that cover those applications are not to be found in the Book and the Sunnah, as if those ahkamhave no relationship with the wahy. Like laws and regulations formulated by non-Muslim nations of the world for their societies, they are also the product of the mind and intellect of human individuals. On account of this, it is not legitimate to acknowledge them as Divine commands and the laws of Islam. We shall discuss this matter in detail later in this article in the critique of the Riwayahof Mu'adh. However, before that, we shall examine the arguments advanced by believers in the practice of ray and its supporters
Arguments in Defence of Ra'y and Their Refutation
The arguments extended by Sunni fuqaha' in favour of ijtihadby means of ray can be divided into two main parts:
(1) the arguments derived from the Quran, and
(2) the arguments pro­duced from the tradition and Sunnah.
1. The Arguments Based on the Quran
In order to prove the validity of the practice of ra'y, the fuqaha' of the Ahl al-Sunnah advance certain arguments from Quranic verses. Some of them are the following.
1. Verily, We revealed unto thee the Book with the truth, that thou mayest judge between mankind by that which God showeth thee (araka, from the same root as ray) .... (4:105)
2. Thus We explain the signs for people who think. (10:24)
3. ....Thus We explain the signs for people who ratiocinate. (30:28)
Basing any argument upon these verses for proving the validity of the practice under discussion does not appear to be proper. As the first verse is particularly addressed to the Holy Prophet (S), it does not include anyone else. Moreover, the phrase (by that which God showeth thee) indicates that the Prophet (S) adjudicated among the people of his Ummah according to that which was revealed to him by God in the Holy Quran and not according to his own personal judgement and ray.
In fact this verse conveys something contrary to the aims of the believers in the practice of ray, as it acknowledges the presence of definite laws revealed to the Prophet (S) as the only criteri­on and standard. This issue has no relevance whatsoever to the validity of the practice of ray in ijtihad. As to the second and the third verses, they also are not concerned with the subject of the practice of ray. They specify the significance and value of thinking and reflecting about the Divine verses and the signs of God in creation, for such thought and reflection leads man to the knowledge of God, strengthens faith, and guides him to the cognition of the most fundamental of religious doctrines, which is the knowledge of God.
2. Arguments Based on the Tradition
(A) It is reported in the Musnad of Ahmad ibn Hanbal al-Shaybani (vo1.5,p.230) that the Prophet (S) while sending Mu'adh as a judge to Yaman asked him: "On what shall you base your judgements" Mu'adh replied: "On the Book of God". The Prophet (S) asked: "But what if you don't find it there?" Mu'adh said: "(Then I will act) according to the Sunnah of the Apostle of Allah". The Prophet (S) again asked: "What if you don't find it there[ too]?" Mu'adh said:
(I will exert my own ray). The Prophet (S) said: "Thanks to God who gave success to, His Messenger".
This tradition sounds to be explicit in confirming the view that the Prophet (S) gave approval to ijtihad by means of exerting personal judgement and ray.
(b) `Umar in his letter to Abu Musa al-'Ash'ari, wrote:
Concentrate your understanding on that which goes on in your mind (i.e. something which is not to be found in the Book and the Sunnah of the Prophet) and draw an analogy between similar matters.
Ibn Qayyim al-Jawzi has expounded this Riwayahin his book A'lam al?muqi`tn (vo1:1, pp. 373?385).
(c) In the Sahih of al-Bukhari (Bab ajr al-hakim, vol. 4, p. 178) it has been reported from `Amr ibn al-`As that the Prophet said that whenever a judge gives a verdict according to his ijtihad, he will be given two rewards if his judgement is right, and if it is not, he will be given one reward.
Muhammad ibn Muslim also has recorded this Riwayahin his Sahih (Kitab al-Aqdiyah, hadith No.150). Ibn Majah has recorded it in his Sunan (Bab al-hakim, hadith No.2314) and Ahmad ibn Hanbal al­Shaybani in his Musnad (vol.2,p.187).
(d) Dr. Mahmasani, in his book on the philosophy of legislation in Islam, quotes a tradition in which the Prophet (S) is reported to have said to Ibn Mas'ud:
Judge according to the Book and the Sunnah if you find (the judgement) in the two, but if you don't find it there exert your own ray.

Critique of the Tradition Narrated about Mu'adh
The tradition about Mu'adh is not acceptable for several reasons:
1. From the point of view of sanad (chain of transmission), as it is narrated on the authority of al-Harith ibn `Amr alone. There is no other line of transmission besides this. Moreover, al-Harith ibn `Amr is an unknown narrator (majhul al-hal) whose character is not known. This objection was also raised by Abu Muhammad `Ali ibn Hazm al-'Andalusi al-Zahiri (d.456/1064) in his al-'Ilham li usul al-'ahkam (vol.5, pp.373?375).
Al-Bukhari has also, in al-Ta'rikh al-'awsat, stated that there is no mention of the name of al-Harith in any text of tradition or book of rijal except this sole Riwayah. Moreover, his character is also obscure. Therefore, it is not proper to consider the Riwayahreported from him to be reliable.
2. From the point of view of meaning (dalalah), also, the recourse to this tradition for arguing in favour of ray is unjustified. Because, ijtihad in the sense of legislation of laws and determination of ahkam for the new and emergent issues by means of ray and personal judgement was not in vogue during the lifetime of the Prophet (S), as the Prophet (S) him­self was alive and there was no need for it. Why would an individual like Mu'adh in spite of having access to the Prophet (S) practise ra'y or exercise his personal opinion, when the ahkam and the precepts regarding the religious duties, in detail and in every aspect, could have been understood very easily and simply by referring to the Prophet (S).
The Prophet's contemporaries could also refer to individuals trained under the guidance of the Prophet (S) who had acquired firsthand learning of the Divine teachings and the wahy, regarding any problem of scientific, religious, ethical; social, economic, penal, commercial, agricultural or some other nature, and get a satisfactory and complete answer to it. In such conditions, there were no grounds for practising ra'y and personal opinion.
Moreover, during the course of a long journey when it was not possible to contact the Prophet (S) immediately or anyone trained in Islamic teachings, there was still the possibility for Mu'adh to find out the Divine commandment in a certain case by sending a messenger. Hence distance could not be a justification for exercising ray and personal judgement.
The term ijtihad, however, was in vogue during the time of the Prophet (S) and even during the time of the Sahabah and Tabi`un in its literal sense, i.e. striving and making effort in doing something. We find many instances of its use in this sense (some of which were men­tioned in our article entitled: "A Study of the Sources of Ijtihad").
The need for ijtihadin the sense of exercising ray and personal opinion given to it by the Ahl al-Sunnah was felt after the Prophet's demise. This matter will be elaborated under the heading "The Emergence of ijtihad bi al-ray" later in this article.
3. There appears to be no connection between the lexical meaning of ijtihad and the sense of the practice of ray and reliance upon personal opinion. If the lexical meaning of the term ijtihadas defined by lexi­cographers is taken into account, the application of the word to the process of extracting a hukm by means of ray and personal opinion gives it another sense, for there is no similarity between the two. The lexicographers define ijtihad as an activity accompanied by endeavour and hard effort. Thus, if any individual formulates his personal judge­ment and presents it to society as a Divine law merely on account of not finding any dictum in the Quran and the Sunnah, this exercise of his would not be regarded as an ijtihad.
4. The deduction of a law in a legal issue through exercise of ray and subjective judgement, if it is not supported by the principles of the Shari'ah and its general laws, cannot be acknowledged as a hukm of the Shari'ah and a Divine law. Because a hukm of the Shari'ah is a Divine commandment revealed to the Holy Prophet (S) through the agency of Jibrail (A), not a rule that is the product of ray and subjective opinion of a mujtahid. For the personal judgement of an individual cannot be called a Divine injunction and a hukm of the Shari'ah.
5. Approving of the tradition concerning Mu'adh and accepting ijtihad in the sense given to it by the tradition results in such disastrous consequences as no lawgiver would allow.
The repercussions and evil effects of this tradition are as follows:
a) If a hukm formulated by a mujtahid by exercising ray and subjective opinion is regarded a hukm of the Shari'ah and a Divine injunction, it means that all the individuals who exercise ijtihad by ray, each of them occupies the high station of a Divine legislator and lawgiver, whereas it is neither possible nor proper to accept this. Because, the source of legislation and ahkam, in the light of definite shar'i dicta, is God alone, and no other being.
No hukm or law except that which is legislated by Him can be given the status of a shar'i hukm. Even the Prophet (S) can­not be considered as a source of legislation of the ahkamof the Shari'ah. The belief cherished by the majority of scholars of the Sunni community that the Prophet (S) himself sometimes exercised ijtihadand himself legislated laws according to his own ray and subjective opinion in some issues and problems, and the traditions narrated in this regard, have no validity whatsoever (an elaborate refutation of this view will be given in the article "The Prophet (S) and Ijtihad").
Accordingly, when the Prophet (S) cannot be considered as the source of the tashri` of ahkam, is it possible that subjective views and opinions of human individuals with no links with wahy, and whose character, behaviour and speech are not considered a norm and model for others, be considered laws of God and they themselves as legislators of the ahkam of the Shari'ah.
No doubt, it is possible that occasionally ijtihadmight have figuratively been referred to as tashri` and legislation. For instance, the renowned scholar Abu Ishaq Ibrahim al-Shatibi al-Gharnati al-Maliki (d.790/1388), the author of al-Muwafiqat, has also named the task of a mujtahid as tashri` and legislation. No doubt, his usage carries only a figurative sense; for naming the activity of a mujtahid as legislation was for the reason that ijtihad(i.e. application of the usul of the ahkam and the general principles for deriving other ahkam regarding emergent issues and new problems) is an effort to discover a shar`i hukm, there­by discovering the intent of the Lawgiver and obtaining the hukm of God.
Then, in reality, it amounts to calling `legislator', in a figurative sense, one who discovers a law. Since in Islamic fiqh there is in fact no provision for anybody except God to lay down laws. Therefore, the Shari'ah is made up of the injunctions and commandments that were revealed to the Prophet (S) by God Almighty through the agency of Jibrail. There are verses in the Quran which confirm this fact; they will be discussed in the article entitled "The Prophet (S) and Ijtihad".
b) Reliance on ijtihad by ray and subjective judgement is a kind of admission of the shortcoming of the Shari'ah, and is an implicit decla­ration that the Islamic Shari'ah is incapable of answering emergent issues and new problems, whereas anyone acquainted with the spirit of Islam and its comprehensiveness cannot concede this. Because, the pro­cess of legislation concerning all the necessary spheres of human life, either in particular detail or in the form of general laws, was completed during the lifetime of the Prophet (S). The following verses of the Quran clearly declare this fact:
...And We revealed the Book unto thee as an exposition of all things.(16:89)
We have neglected nothing in the Book (of Our decrees). (6:38)
And in whatsoever ye differ, the verdict therein belongeth to God.(42:10)
This day We have perfected your religion for you and completed Our favour unto you and have chosen for you as religion al?islam...(5:3)
With the revelation of the last verse, the Din of God attained its perfect form in all aspects: political, ritual, social, economic and ethical. Following that, the process of wahyconcluded. As such, it does not seem possible that the Prophet (S) of God should have said to Mu'adh: "By what rule will you act, if you find no direction in the Book of God and the Sunnah" The verse affirming the perfecting of the Din was revealed approximately three months prior to the demise of the Prophet (S), during the journey of the Last Pilgrimage. After that no other verses concerning ahkam were revealed to him.
During the span of the ten years that the Prophet (S) resided in Madinah, all the ahkamof God were revealed by means of approxi­mately 500 verses?the ayat al-'ahkam (the verses containing the rules and laws of the Shari'ah) which make approximately one?third of the Quran (as to their volume) and were already communicated and ex­pounded by the Prophet (S). Not a single issue, small or big, was left without a hukm in any of the diverse spheres of human life, not even the hukm regarding the diyah of a scratch on the skin.
During his journey of the Last Pilgrimage, the Prophet (S) had declared:
O people, whatsoever takes you nearer to Paradise and away from Hellfire, I enjoined upon you. And whatever brings you nearer to Hellfire and removes you away from Paradise, I forbade you to do.
The following tradition has been reported in Usul al-Kafi (`Ilmiy­yah Islamiyyah, Tehran, vol:1, p:80) from Sama'ah:
(Al-Kulayni says): From a number of our companions, from Ahmad ibn Muhammad ibn Khalid, from Isma'il ibn Mihran, from Sayf ibn `Amirah, from Abu al-Maghra, from Sama'ah from (al-Imam al-Kazim), Abu al-Hasan Musa (A); (Sama'ah) said: "I said to him: `Is everything in the Book of God and the Sunnah of His Apostle (S), or you have something to say (in addition)' He said: `(No); rather, everything is in the Book of God and the Sunnah of His Apostle (S)'."
Also in Usul al-Kafi (op. cit. vol:l,p:77), the following tradition is reported on the authority of Sulayman ibn Harun from al-'Imam al ­Sadiq (A). There, the Imam (A) states:
God has not created any halal (that which is permissible) or any haram (that which is forbidden) except that He has determined a boundary for it like the limits and boundaries of a house. That which belongs to the limits of the road is reckoned as the road, and whatever that comes within the boundaries of the house is considered as a part of the house. [This is true] even of a scratch on the skin, a full lash or half a lash.
The following tradition is reported in Basa'ir al-darajat (Qumm, 1404 H., p. 143) on the authority of Muhammad ibn Muslim:
(Muhammad ibn al-Hasan ibn Farrukh al-Saffar al-Qummi says): Narrated to us Ahmad ibn Muhammad (al-Barqi), from al-Husayn ibn Said (al-'Ahwazi), from Fadalah ibn Ayyub, from al-Qasim, from Burayd ibn Mu'awiyah al­`Ijli, from Muhammad ibn Muslim, who said: "Abu Ja'far (the Fifth Imam) (A) said:`We have the Sahifah written by `Ali (A), whose length is seventy cubits. We study its contents, not going beyond them'. I asked him about the inheritance of knowledge that had been transferred (to the Imams), whether it consisted of generalities or of detailed exposition of such things as the people talk about, such as divorce and religious duties.
He said: `Ali (A) wrote down all knowledge, including all judicial laws (al-qada') and duties (al­-fara'id). When our sovereignty is established, we will act according to it in regard to every matter.' "
In Furu' al-Kafi (Dar al-Kutub al-'Islamiyyah, Tehran, vo1:7, Kitab al?hudud, Bab 1, hadith 12) a Riwayah is reported on the authority of Dawud ibn Farqad from al-'Imam al-Sadiq (A). In it, the Prophet (S) is reported as having said to Sa'd ibn `Ubadah:
Verily, God Almighty has determined a hadd (limit, punishment) for every thing, and for whomsoever that crosses that hadd He has prescribed a certain hadd.
In another tradition of the same volume (Bab 1, hadith 6), it is reported on the authority of a reliable narrator, Sama'ah, that he heard this statement from al-'Imam al-Sadiq (A):
Indeed there is a hadd for every thing, and whoever transgresses it will be subjected to a certain hadd. And the Quran declares:
And whosoever transgresses the bounds of God,those are the evildoers. (2:229)
Therefore, Islamic law prescribes punishment for those who violate the limits prescribed by God.
Accordingly, all the ahkamhave been described in the Book and the Sunnah of the Prophet (S); the period of legislation closed with the demise of the Prophet of God and nothing was omitted. Thus, we need not rely upon practices like ijtihad by ray and other conjectural instru­ments (such as qiyas, istihsan, masalih mursalah, madhhab Sahabi, etc.) for deriving the ahkam for emergent issues (we have discussed this matter in elaborate detail in another article).
It is true that the ahkam have not been laid down in a uniform way in the Book and the Sunnah of the Prophet (S). Some of them have been set forth as special cases, while some others have been stated in a general way, in such a manner that by applying the general laws to particular cases all the ahkamof the Shari'ah regarding emergent issues and events can be derived.
Therefore, those who imagine that there are no ahkam in the Shari'ah for modern issues and contemporary prob­lems indeed commit a great mistake; such a notion is contrary to the express statements of the Quran and conclusive dicta. The conclusiveness of these proofs is so certain that if a tradition attributed to the Prophet (S) counters their import, it should be discarded in accordance with the criteria and standards of the science of hadith and dirayah. This, because a statement whose origin from the Prophet (S) is not certain can never contest express texts of the Book, or reliable tradi­tions of the Ma'qumun (A) whose authenticity of origin as well as im­port are definite. This, undoubtedly, holds true in the case of the present tradition which is of doubtful authenticity and is opposed to the express text of the Quran.
c) Above all, this tradition implies a confession on the part of the Prophet (S) of the insufficiency of law regarding the religious and non­religious needs of mankind. How can we accept such a thing when the verse stating the perfection of the religion was revealed to him?
6. This tradition also implies that Mu'adh possessed the knowledge of all the ahkampresent in the Book of God and the Sunnah of the Prophet (S), whereas neither the Shi'ah nor the Sunnis believe this. Nobody among the Prophet's Companions was known to possess such a merit except Imam `Ali (A); he was the only person who had perfect knowledge of the Divine Law.
It was for this reason that the Holy Prophet (S) enjoined upon the Ummah to follow him and to take their knowledge from the Ahl al-Bayt (A). The Prophet instructed them to consider the traditions of the Ahl al-Bayt (A) as their guide and to follow them as a model of practice and behaviour in all the modes of life. No doubt, Amir al-Mu'minin's source of knowledge and information was no other than the wahyrevealed to the Prophet (S) and taught to `Ali (A) by himself. The leading and profound thinkers among Sunni scholars acknowledge this distinction of Imam `Ali (A).
7. This tradition implies that at the time when Mu'adh was being sent to Yemen, the process of tashri` was already complete and all the Divine ahkamhad been set forth. However, the verse pronouncing the perfection of the Din counters this presumption and indicates that the perfection of the Din was declared three months prior to the demise of the Prophet (S), on the occasion of Hajjat al-Wada`.
8. If it is said that ijtihad (in the sense of exercising ra'y and personal judgement) was permissible for Mu'adh alone and others should not follow him, it is evident that nobody has held such an opinion.
And if it is presumed that this style of ijtihadwas permissible for everyone, it means that every mujtahid has a right to legislate laws by means of ray and personal judgement whenever he fails to find a hukm in the text of the Book and the Sunnah. Moreover, laws thus legislated should be accepted and acknowledged as the real (waqi't) Divine laws in accordance with the doctrine of taswib. This means that whenever mujtahidun express a number of contradictory and conflicting opinions in a case, all of them should be recognized and given the status of the real hukm. Evidently, no one would be ready to accept this, as it will necessitate that the real hukm be identified simultaneously with a number of contradictory views and opinions, reducing Islamic law to a mass of contradictions.
Here, it will be appropriate to cite a tradition reported from Amir al-Mu'minin in Bihar al-'Anwar (vo1.2, chapter 34, p.284; also see Nahj al-balaghah, Khutbah No.18):
When a case relating to one of the ahkam is put before any one of them he passes judgement on it according to his ray. Afterwards, when the same problem is placed before another of them, he passes an opposite verdict. Then these judges go to the chief who had appointed them and he confirms all the verdicts, although their God is One, their prophet is one and the same and their scripture is one and the same. Was it God-subhanahu who enjoined them to differ (while laying down the ahkam), and they obeyed Him` Or He forbade them from it and they disobeyed Him Or, did God Almighty send His Din in a defective and imperfect form and asked for their help and assistance in order to make it perfect Or, were they His partners and assistants (in performing legislation) so that He has to concede to whatever judgement they pronounce Or is it that God Almighty made His Din perfect, but the Prophet (S) fell short of communicating it (to the people) The fact is that God states in the Quran
(We have not neglected anything in the Book, 6:38)
(and that in it is all things, 16:89) and that one part of the Quran verifies another part and that there is no contradiction in it. And the Almighty has said:
(if it had been from other than God they would have found therein much incongruity, 4:82).
Abu Muhammad `Ali ibn Hazm al-'Andalusi al-Zahiri (d.456/1064) in his book al- Ihkam li usul al-'ahkam (vol:5, p.775) writes: "Some ignorant people believe that Mu'adh had the right to make a thing halal or haramby exercising his ray or to make something wajib or other­wise according to his own judgement and taste. Such a notion is pre­posterous, and no Muslim would believe it."
9. If it is said that by ijtihad bi al-ray Mu'adh meant to say that when­ever he could not find a hukm in the express texts of the Book and the Sunnah of the Prophet (S), he would use his effort in deriving it from the sources of the Shari `ah and its general principles, if we interpret the tradition in this way, the term ijtihad conveys the same lexical meaning described earlier (in another article), not a new sense of legislation and tashri`. When interpreted in this sense, there will be no problem with it, and it would be acceptable to the Shi`ah.
But the problem is that the fuqaha' of the Ahl al-Sunnah have not interpreted this tradition in this manner. The character of their argu­ments shows that they conceive the term ijtihad in the sense of relying upon ray and subjective opinion; not in the sense of deducing the laws from the principles and basic sources of the Shari'ah.
10. Apart from all the objections raised above, this significant problem still remains that the tradition is about judgement and adjudication; it has nothing to do with the problem at hand, since what we are con­cerned with is the matter whether a mujtahid has a right to legislate laws and ahkam concerning emergent issues by exercising his ray and employing any of the instruments for deriving legal conjectures. It is evident that there is a clear difference between these two things.

Critique of the Second Riwayah
The second riwayah is also infirm with respect to its chain of transmission. As Abu Muhammad `Ali ibn Hazm al-Zahiri points out in his book al-'Ihkam li usul al- ahkam (vol. 5, p.1003), there are two chains of transmission through which this Riwayahhas been reported; none of them is trustworthy. In one sanad, one of the narrators is `Abd al-Malik ibn al-Walid ibn Ma'dan. He has not been considered as trust­worthy by the experts of the science of rijal, and no hadith narrated by him has been acted upon. And as for the second sanad, it contains names of persons of unknown identity, thus technically making the riwayahone whose chain of transmission is broken (maqtu` al-sanad).

Critique of the Third Riwayah
This riwayahhas no relation with the issue under discussion, as it is about judgement and adjudication, and not concerned with the privilege and right of a jurisprudent to legislate ahkam of the Shari'ah by means of ray and by employing conjectural instruments.

Critique of the Fourth Riwayah
Firstly the fourth Riwayah is mursal (one whose first narrator (S) is not mentioned in the chain of transmission), which deprives it of the requirements for being legally relevant.
Secondly, apart from its being mursal, such a riwayahhas no strength to resist the force of the arguments based on definite proofs (adillah) of the Book and the Sunnah, which do not permit tashri` and legislation by means of ray and through instruments for deriving conjectures.
Thus, we reach the conclusion that these ahadith are not adequate for vindicating the practice of ijtihad by means of ray and subjective opinion; they lack the requirements of validity and the probability of their being fabricated is strong.

The Emergence of Ijtihad bi al-Ray
The beginnings of the emergence of ijtihad and its general outlines can be traced back to the migration of the Prophet (S) from Makkah to Madinah.
But the emergence of ijtihad in the sense of exercising ray was after the conclusion of the era of tashri` with the demise of the Prophet (S). For, as long as the Prophet (S) was alive, with the continuity of the revelation of the Quran and wahy, there was no ground for exercising ra'y; as mentioned earlier, the ahkam could be understood and known easily by referring to the Prophet (S). But after his demise and the termi­nation of wahy, during the reign of the Caliphs, and subsequently during the Umayyad rule and in the early years of the `Abbasids, the fuqaha' were confronted with new issues and subjects for which they had to find answers. If they could not find the solution by referring to the Book and the Sunnah of the Prophet (S), they had to determine a hukm by consulting other fuqaha'. As a result of this they either reached a consensus or each one of them arrived at a separate hukm by exercis­ing ijtihadand his own individual judgement.

The View of al-Dawalibi
Al-Dawalibi, in his book al-Madkhal ila `ilm usul al-fiqh, states in this connection: "Whenever the Companions of the Prophet (S) faced an impediment in such situations or issues for which they could not find an express decree in the Book and the Sunnah, they resorted to ijtihad(identifying in this manner the ahkamfor new situations). They named this practice ray. Abu Bakr and `Umar were among those who used this method".
Later on al-Dawalibi cites a Riwayahin which `Umar ibn al-Khattab is reported as having written to Shurayh and Abu Musa al-'Ash'ari: "Companions of the Prophet (S) did not rely in their ijtihad upon fixed laws and established criteria; rather, they relied upon something which they considered as the spirit of the Law".
This statement has also been quoted in different words from `Umar ibn al-Khattab, such as: "Identify similar and analogous cases and use qiyas (analogical method) in matters." (We will elaborate on this topic in the discussion about the historical development of qiyas, which is the fifth source of Sunni ijtihad.)
In any case, it was after the demise of the Prophet (S) that some of the Sahabah raised the issue of ray and opened its doors. In this way, they deduced a certain hukm for every issue and problem for which there was no specific nass. The Tabi'un and a majority of Sunni jurisprudents followed their example. Besides the practice of ray, other instruments for deriving legal presumption (such as qiyas, istihsan, masalih mursalah, etc.) also entered the realm of ijtihadand the Sunni fuqaha' relied upon those sources, although they were not uniform in their reliance on such instruments (this will be elaborated further while discussing the sources of ijtihad).
It was the result of the difference of opinions between the fuqaha' of the Ahl al-Sunnah regarding the trustworthiness of these sources that diverse legal schools came into being. Among perhaps more than twenty of such schools that emerged, four of them became more popular: the Hanafi school, under the leadership of Abu Hanifah; the Maliki school, under the leadership of Malik ibn Anas al-'Asbahi; the Shafi'i school, under the leadership of Muhammad ibn Idris al-Shafi'i; and the Hanbali school, under the leadership of Ahmad ibn Hanbal al-Shaybani. These schools emerged during the reign of the `Abbasids (132-656/750­1258) (an elaborate discussion about these schools will be done while discussing the various periods in the history of ijtihad). The practice of ra'y was called "ta'wil" during the era of the Sahabah and not "ijtihad bi al-ray". This was true of the early days of the era of the Tabi'un as well.
The term ta'wil was used by Khalid ibn al-Walid, who killed Malik ibn Nuwayrah, and also by Abu Bakr. In order to examine this usage, we will have to go into the details of the episode involving Khalid. [2]
After the Prophet's demise, a group of people gathered in Saqifat Bani Sa'idah and chose Abu Bakr for the caliphate. Khalid ibn al?Walid was one who had played an active role in the affair. After the event, he was dispatched with a force to collect zakat from the dissidents. During the course of his assignment, he went to a tribe inhabiting the region of Batch and demanded zakat. They declined to pay, stating that they did not acknowledge anybody except `Ali ibn Abi Talib as the Prophet's successor, as the Prophet (S) had nominated `Ali (A) to succeed him at Ghadir Khum while returning from the Last Pilgrimage. They stated that on this ground they would not pay zakat to anybody except some­one appointed by `Ali (A). Khalid ibn al-Walid responded to the position taken by the people of that tribe by committing a horrible crime. He ordered Dirar ibn Azwar al-'Asadi to behead Malik ibn Nuwayrah, the chief of the tribe. Khalid did not stop at this; he slept with the wife of Malik the same night. To celebrate the occasion, he slaughtered a sheep and ordered Malik's head to be put in the fire under the cooking pot.
After his return, in order to justify his inhuman act and to make it appear something legitimate, he said: "Since this tribe had apostatized, I had to treat them in this manner." But within a short time, facts of the case came out. Abu Qatadah and `Abd Allah ibn `Umar gave witnesses in favour of Malik ibn Nuwayrah. Khalid had no alternative except to confess. While apologizing, he said to Abu Bakr:
(I exercised ta'wil and made a mistake). `Umar ibn al-Khattab and some of the Companions were of the view that Khalid should be stoned to death for zina (adultery). However, since Khalid had played a significant role in the episode of Saqifah, efforts were made to exonerate him and justify his deed Accordingly. Abu Bakr said:
(I would not stone him, for he exercised ta'wil and committed an error). After this incident the term ta'wil was used in such cases by others.

The Term Ta'wil During the Days of Tabi'un
In the era of the Tabi'un, also, the word ta'wil was used in the sense of the practice of ra'y. Al-Zuhri is reported in al-Sahih of al-­Bukhari (vol.1, p.134, Bab taqsir al-salat) as saying that he asked `Urwah ibn al-Zubayr as to why `A'ishah says full prayers during journey(while qasr is specified in riwayat). He replied "She makes ta'wil of the Riwayah, in the same manner as `Uthman used to do."

The Usage of Ta'wil by Tabi `un
The history of the term taw'il indicates that it started by the Sahabah and continued to be in use until the middle of the 5th/11th century, as can be seen from the writings of some Sunni scholars. But after this date the term taw'il was gradually replaced by other terms.
Abu Muhammad `Ali ibn Ahmad, known as Ibn Hazm al-Zahiri (384-456/994-1064), in his book al-Fasl fi al milal wa al-'ahwa' wa al­-nihal (vol.4, p.161), has this to say about Abu al-`Adiyah, the killer of `Ammar bn Yasir:
He was an errant muta'awwil (one who exercises ta'wil) and mujtahid, and committed a wrong against `Ammar ibn Yasir (because of the hukm that he derived and the ijtihad that he made). He deserves reward, but only one.
In another place, he writes in his book that the killer of `Ammar was not similar to the killer of `Uthman, as the latter's killer did not have any ground for ijtihad. He further says that Mu'awiyah and those who were with him were men of ijtihad, although in error, and they deserved one reward.
Taqi al-Din Ahmad ibn `Abd al-Hakim ibn `Abd al-Salam (661-728/ 1263-1328) known as Ibn Taymiyyah, while justifying the acts of Mu'awiyah, writes that he was a mujtahid.
Ibn Kathir, in his history (Vol. 7, p.297), writes that Mu'awiyah was a mujtahid and deserved reward. In the same volume of the book (p:283) he writes that ijtihadsometimes leads to error and sometimes to the truth and:
For the mujtahid who is right, there are two rewards, and for the mujtahid who errs, one reward.
Ibn Hazm in al-Muhalla (vol.l,p.484), Shaykh `Ala' al-Din 'Ali ibn `Uthman al-Hanafi, known as Ibn al-Turkumani (d.750/1349),in his al-Jawhar al-naqi, as stated in footnotes of al-Bayhaqi's Sunan (vo1.8, pp.58-59), describe the assassin of Ali ibn Abi Talib
(To be sure, he was a mujtahid and a muta'awwil)!
Ahmad ibn Ali al-Shafi'i, famous as Ibn Hajar al-`Asqalani, while describing the Sahabah, says that they exercised ta'wil and that in cases that the mujtahid errs he is not only not liable to any censure and punishment but deserves one reward.
What is more interesting is that some who claim to be Muslims consider even such a vicious character like Yazid with his irremediable crime, which has no parallel in history, as a khalifah of the Prophet (S). Moreover, they justify his heinous crime and say that he exercised ijtihad and erred in his ta'wil; therefore, he cannot be blamed!
In Ibn Kathir's history (vo1.13,p.9), Abu al-Khayr Ahmad ibn Isma'il ibn Yusuf al-Shafi`i al-'Ash'ari is reported as having made this statement about Yazid:
(He was an imam and mujtahid). Ibn Kathir himself writes (Vol .8, p.223) that some people justify the evil and heinous deeds of Yazid and state the he erred in exercising ta'wil and ijtihad. In another place (vo1.6, p.323) he says: "Khalid continued to hold his office with the approval of Abu Bakr ( and therefore his assignment was legitimate), though he took part in the killing of Malik ibn Nuwayrah. But since he exercised ijtihad and erred, he cannot be blamed."
In the above-mentioned cases, the exercise of ray is referred to with the name of ta'wil, and this usage continued until the Sunni com­munity gave it the name of ijtihad, developing special rules and terms for it and opening new chapters in the realm of 'ilm al-'usul. Conse­quently, the act of deriving a hukm by this means was called "ijtihad", and it practitioner "mujtahid".
As stated, the practice of ray emerged after the demise of the Prophet (S) and the term continued to be in use for ijtihad in the writ­ings of the Sunni fuqaha' until the early years of the 6th/12th century. Abu Hanifah al-Nu'man ibn Thabit (80-150/699-767) and his followers used the term ijtihad in the same sense. Their approach met with the outright rejection of the Shi'i Imams (A) and fuqaha; who denounced it in the strongest terms (details will come in the discussion about the sources of ijtihad). The use of this term however continued through centuries, till the time when it underwent a change.

The Use of "Ijtihad" in Another Sense
From the 6th/12th century till the beginning of the 7th/13th, the term ijtihad underwent a change in the writings and statements of Sunni scholars; they now gave it a wider and more comprehensive meaning. It will be proper to quote here some of them.
Abu Hamid Muhammad al-Ghazzali al-Shafi'i (450-505/1058­1111) has defined the term ijtihad in his book, al-Mustasfa fi usul al-fiqh (vo1.2,p.350): "Ijtihad means the effort and endeavour on the part of the mujtahid in acquiring the knowledge of the ahkam of the Shari'ah."
Muhammad Khidri Bek has defined ijtihad in his history of Islamic legislation (p.87) as: "The endeavour and effort undertaken for deducing a hukm of the Shari`ah through means and sources (adillah) which the Shari` (Lawgiver) considers as valid proofs."
Ahmad Mustafa Zarqa' al-Suri, the author of al-Madkhal al-fiqhi al­`amm, defines the term ijtihadin these words: "Ijtihad means deduction of ahkamof the Shari`ah by means of their elaborate adillah from the Shari`ah."
There were other fuqaha' at that time who used the term ijtihad in the aforementioned sense. Though the term ijtihadacquired a wider and more comprehensive denotation, nevertheless, the Shi`i fuqaha' still did not approve of the kind of ijtihadpractised by the Ahl al-Sunnah as a reliable source from which ahkam of the Shari`ah could be derived. They rejected it and considered it invalid. As in the previous ages, to them the term ijtihaddenoted an undesirable and forbidden practice; they discussed it in their writings and expressly rejected it as invalid.
This antagonism continued until the 7th/13th century, and the writings of the original researcher and mujtahid Muhammad ibn Ahmad ibn Idris al-Hilli (555 or 558-598/1160 or 1163-1201) bear evidence to this. He writes in his precious book al-Sara'ir that "qiyas, istihsan and ijtihadare from our viewpoint invalid practices". These words of Ibn Idris indicate that the word ijtihadwas still current at the time in the sense of the practice of subjective opinion and ra'y as a source of law, like the Book and the Sunnah.
The New Denotation of Ijtihad
In the 7th/13th century the term ijtihadwas used in a new sense by Imamiyyah fuqaha' which afterwards, with a little ammendment, assumed its genuine and desirable form: the sense of referring new furu ` to the fundamental principles, the usul. In this way, the term ijtihad came to be accepted by the Shi'ah.
The oldest texts which throw light on this matter are the writings of the great al-Muhaqqiq al-Hilli (d.676 or 680/1277 or 1281) and his Ma'arij al-'usul (p.117). In it, while defining ijtihad, he states: "In the vocabulary of the fuqaha', ijtihadmeans making effort and endeavour in order to deduce ahkamof the Shari`ah from its valid (shar'i) sources (adillah)."
He continues to say that since the deduction of ahkamand their determination is conceptually a theoretical activity, and in most of the cases they cannot be derived from the apparent meaning of the texts, there was drawn no line of demarcation in the definition between qiyas and other adillah. Therefore, on this basis, qiyas can also be considered to be one of the types of ijtihad. He further says that it is possible that some may say that it means that the Shi`ah also practise ijtihad. The answer is m the affirmative, with the qualification that ijtihadto them has never meant, nor does it mean, the practice of qiyas.
A study of the views expressed by al-Muhaqqiq al-Hill! in Ma`arij al­-usul reveals that in those days the term ijtihadwas not yet fully accepted by the Shi`ah due to its former connotations. The writings of al-Muhaqqiq al-Hilli show that there were still certain individuals in those days who could not digest the term. They were not inclined to assign the appellation `mujtahid' to any of the Shi`i fuqaha'. According­ly, al-Muhaqqiq al-Hilli decided to draw a line between the two con­cepts of qiyas and ijtihadand declared that ijtihadas a new term adopted by the Shi'ah possessed a meaning acceptable to them, that its use did not have any harm for the term ijtihadmeant to making an effort for deriving a hukm from shar'i sources (i.e. the Book, the Sunnah, ijma` and `aql) and that it does not have any connection with the ijtihad practised by the Ahl al-Sunnah.
Difference between the Two Conceptions and its Consequences
There is an obvious difference between the two conceptions of ijtihad, because the first sense implies that whenever there is no express statement in the text of the Quran and the Sunnah the mujtahid can innovate and legislate a law according to his own ray and subjective opinion, and if he is asked as to the source on which he has based this hukm, he will answer:
"On my own personal ray". But in the second sense (accepted by the Imamiyyah), ijtihadis an endeavour and effort on the part of the mujtahid in deriving a hukm of God from the sources of the Shari'ah. When asked as to the sources from which the hukm is derived, he answers: "The sources whose validity and reliability is pos­ited by the Lawgiver."
Accordingly, the role of the mujtahid in deducing the ahkam regarding new issues and furu` involves reverting the new furu ` to the basic principles of the Shari'ah and applying its general laws to corre­sponding particular cases. There is an essential and real difference between these two meanings of the term, since ijtihadin the Sunni sense of practising ray means invention (ibda`) of ahkamand legislation. And the Shi`i ijtihadis a means of discovering the Divine ahkam through the valid sources of the Shari`ah (the Book, the Sunnah, ijma` and `aql).
Delimitation o f the Meaning of Ijtihad by al-Muhaqqiq al-Hilli
As mentioned earlier, al-Muhaqqiq al-Hilli delimited the new sense of the term ijtihad to research effort in deducing ahkamfrom the sources, so that the hukm derived is not based on the literal meanings (zawahir) of the texts of the Quran and the Sunnah. Accordingly the deduction of a hukm from zawahir of the Book and the Sunnah was not a part of ijtihadto him. Perhaps this restriction in the meaning of ijtihadhad to do with its original lexical background, which carried the sense of hard effort and labour. Thus, the derivation of a huhm from zawahir of the Book and the Sunnah, which did not involve any great effort, was not counted by him as part of ijtihad.
However, after his era, the meaning of ijtihadgrew in scope and came to include deduction of ahkam from zawahir of the nusus (texts) of the Quran and the Sunnah. This was because the scholars of `ilm al­-usul came to recognize that even deduction from the zawahir required a lot of scholarly effort; that it could not be done without the knowl­edge of the principle of hujjiyyat al-zawahir (the legal validity of literal meanings) and the mode of its application and the related problems.
The meaning of ijtihaddid not remain within these limits; it under­went a further development until it came to include all the forms of legal deduction and every kind of endeavour and effort on the part of the mujtahid to determine and define practical obligations vis a vis the Shari'ah on the basis of valid proofs. Accordingly, in latter times, some scholars have defined ijtihadas effort and endeavour for establishing the legal basis of real ahkam or attainment of legal evidence for deter­mining the apparent obligation in a case, or something to that effect. Other definitions have also been advanced, but since they are close in meaning and content to the one mentioned above, we shall refrain from citing them in order not to prolong this discussion any further. [3]
Notes:
[1]. Of course, it doesn't mean that ijtihadwas not practised during this era, for in its authentic and legitimate form ijtihadexisted even during the Prophet's life­time, as discussed by us in another article.
[2]. For further information regarding the incident relating to Khalid ibn al­-Walid, see: al-Isabah, III, 337; Tarikh al-Ya`qubi, II, 110; Kanz al-`ummal, III, 132; Wafayat al-'a`yan, V, 66; Fawat al-wafayat, II, 627; Abu al-Fida', Ta'rikh, 158.
[3]. Editor's Note: This is a translation of "Ra'y gera'i dar ijtihad", published in the Persian bimonthly journal Kayhan-e Andisheh No. 9, Adhar & Day) and is second of a series of articles by the author.

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