AHMAD IBRAHIM KULLIYYAH OF LAWS

OF IJTIHAD, MUJTAHID,
TAQLID & TALFIQ
COURSE INSTRUCTOR: ASSOCIATE PROF. DR. MOHAMAD ASMADI
ABDULLAH

Prepared by Muhammad Noor Firdaus bin Rosli (G1521345)

SUBMITTED FOR THE COMPLETION OF COURSE

ISLAMIC JURISPRUDENCE (SHA 6955) SEM 2 2016/2017

MASTER IN COMPARATIVE LAW

 ABSTRACT

Everyday new things emerge into existence. Islam bears the attribute of universality

and comprehensive embraces innovation and ever-ready to regulate things

unknown to the people of one thousand four hundred years ago. Islam cannot be

set aside neither it will become obsolete for inexistence of ruling or lacuna in the

Shariah in dealing with new things. The progressive process that makes Islam and

Shariah relevant at any place and any time is known as ijtihad. Emergence of new

things, new issue, new situations and innovations will be examined within the

perimeter of Shariah and the process will be performed by jurists who are well

equipped in the art of deducing legal ruling from divine legal text, i.e. Quran and

Sunnah as well as other legal sources of Shariah. Questions then arise, what are

the qualification of a person who is entrusted to perform jtihad? Must everybody

know how to perform ijtihad? What will be of those who are unable to perform

ijtihad? If there are more than one ijtihad on an issue, can people choose between

those ijtihad? This paper will dissect the meaning of ijtihad, its legality, the

condition required of personnel who perform ijtihad, the issue of taqlid and talfiq.

1
INTRODUCTION

Ijtihad is the manifestation of rules and laws derived from Quran and Sunnah.1 It is said that “The

essential unity of the Shari'ah lies in the degree of harmony that is achieved between revelation

and reason and that ijtihad is the principal instrument of maintaining this harmony”.2

DEFINING IJTIHAD – LITERAL MEANING

Discussion on definition is inevitable in discussing an issue. So what is ijtihad? Literally – Ijtihad

means striving or self-exertion in any activity which entails a measure of hardship.3 It had also

been defined as “the expending of maximum effort in the performance of an act”.4 The root verb

of ijtihad is the word ‫ ج‬and it was mention several times in the Quran. In the following verse,

Allah said;

َ َ َ َ َ َٰ َ َ ِ ‫ٱل ۡ ُ ۡؤ ِمن‬ َ ‫ع‬ ۡ َ ۡ

َِ‫َ ُ ون إ‬
ِ َ ‫ِي‬
َ‫ٱ‬ ‫و‬ ‫ت‬
ِ ‫ق‬ ‫ٱلص‬ ِ ِ ‫ن‬ َ ‫ن ِم‬ ِ ِ ‫ٱَِي َ يَ ِ ُ ون ٱل ُ ط‬
َ ٌ َ َ ۡ َُ َ ۡ ُۡ ُ َ َ َ ُ
ٌ
٩ ِِ ‫ِ َ ٱَ مِن ول ع اب أ‬ ‫ُج ۡ َ ه ۡ ف َي ۡس ُ ون م ِۡن ُ ۡ َس‬

Those who slander such of the believers as give themselves freely to (deeds of) charity, as

well as such as can find nothing to give except the fruits of their labour,- and throw ridicule

1
“hahzadi Pakeeza a d Fati a Fa iha, Ijtihad as a Legislati e Fu tio : Role of Ijtihad, Ifta a d Ta leed i
Legislati e P o ess, Journal of Islamic & Religious Studies, no. Jan-Jun 2016 (2016): 35.
2
Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, 3rd ed. (Kuala Lumpur: Ilmiah Publisher Sdn Bhd,
2000). p 366
3
Ibid. p 367
4
Imran A K Nyazee, Islamic Jurisprudence (Adam Publishers, 2000). P 263

2
 on them,- God will throw back their ridicule on them: an d they shall have a grievous

penalty.5

“Their labour” in the above-mentioned verse connotes the existence of exertion. Ibn Manzur Al

Misri says that word jahd and juhd, the word which ijtihad is derived from, means power and

strength. Jahd means hardship and difficulty, while juhd on the other hand give sense of power

and strength. Ibn Manzur quotes Al-Farra’, a linguist who said that in Quran, the word jahd is used

with the underlying meaning of power and strength as in the aforesaid verse. In the same tone, he

said ijtihad and tahajjud also mean power and strength.6

DEFINING IJTIHAD – TECHNICAL MEANING

To make a comprehensive definition is an arduous task, as a definition must be brief yet

encompassed every single element of the defined subject. Abdul Karim Zaidan and Nyazee hold

onto common definition of ijtihad7, which is;

‫الشرعية ب ريقة ااإستنب‬ ‫ب الع م ب أح‬ ‫سعه في‬ ‫ال جت‬ ‫ب‬

The above definition has been translated by Nyazee as “maximum effort made by a mujtahid

(jurist) in order to deduce, with a degree of probability, the rules of shari'ah from their detailed

evidence in the sources”.8 Much earlier in 1896, Edward Sell defined ijtihad as "the attaining to

certain degree of authority in searching into the principles of jurisprudence”. Fazlur Rahman held

5
A dullah Yusuf Ali, The Mea i gs of The Holy Qu ’a , . (Quran, Surah At Taubah:79)
6
Pakeeza a d Fa iha, Ijtihad as a Legislati e Fu tio : Role of Ijtihad, Ifta a d Ta leed i Legislati e P o ess, .
7
A dul Ka i Zaida , Al-Wajiz Fi Usul Al-Fi h, Beirut: Mua’sasah Ar-Risalah, 1987, p 401; Nyazee, Islamic
Jurisprudence, p 263.
8
Ibid., 263.

3
ijtihad to carry the meaning of "rethinking", while in Ahmed Manzooruddin put ijtihad in the

wider sense, by not limiting it to narrow traditional scope of religious edict, by saying the term to

encompass the entire area of social activity-political, economic and legal.9

Abdul Karim Zaidan dissected the following elements from his definition of ijtihad10;

1. That ijtihad concerns an act done by mujtahid in expending and exerting maximum effort.

In doing so, he must perform such act to the best of his ability by making use of all that he

knows leaving no stone left unturned.

2. Such huge effort must be done by a mujtahid. It does not cover serious effort or exertion

done by other than mujtahid, let say exertion by a carpenter in making a cupboard or an

effort to figure out cause of a disease, which are not ijtihad within the discussion of usul

fiqh.

3. The effort undertook by the mujtahid is to discovery rules of shariah pertaining to conduct.

Effort on anything else, e.g. rule of grammar, algorithm, antiquity, astronomy or even on

issue pertaining to belief (aqidah) is not within the scope meant by the jurist of usul fiqh.

4. The effort concerned is to unveil novel ruling by interpreting the legal text. A mere stating

or conveying existing rules from books of fiqh is not considered as ijtihad.

9
Shaista P Ali-Ka a ali a d Fio a Du e, The Ijtihâd Co t o e sy, Arab Law Quarterly, 1994, 238–57. p 239
10
Zaida , Al-Wajiz Fi Usul Al-Fi h, –2.

4
LEGALITY OF IJTIHAD

َ ََُۡ َ ُۡ ُ ۡ َ ۡ َ ‫ٓ َۡ ۡ َ ۡ ُ ٓأ‬ ‫َ م‬ َ َ َ ۡ َ‫َو َما ٓ أَ ۡرس‬

٣ ‫ق ۡب ِك إَِ رِجاَ ن ِ إِِ ِ ۖ فس ا أه ٱَِر ِ إِن رنم َ عل ن‬
ِ ‫نا ِم‬
َ ََُۡ َ ُۡ ُ ۡ َ ۡ َ ‫ٓ َۡ ۡ َ ۡ ُ ٓأ‬ ‫َ م‬ َ َ ۡ‫ۡ َنا َقب‬ َ‫َو َما ٓ أَ ۡرس‬
٧ ‫ك إَِ رِجاَ ن ِِ إِِ ِ ۖ فس ا أه ٱَِر ِ إِن رنم َ عل ن‬

These two verses, the first is from Surah An-Nahl verse 47 and the other one is from Surah Al-

Anbiya’ verse 7. Both verses has a slight difference in syntax yet it carry the following meaning;

“And before thee also the messengers We sent were but men, to whom We granted

inspiration: if ye realise this not, ask of those who possess the Message.”11

This verse is directed to those who do not possess knowledge, so they will seek guidance from

others. In the context of seeking knowledge of the religion, they were to seek from ahl-dhikr, the

people of message, which refers to ulama or people of knowledge12. It gives inference that, when

ulama are asked about religious ruling, they are obliged to convey what he knows of existing

ruling. In event there no ruling exists, he must then exercise his ability to deduce ruling from the

legal text, and as ahl-dhikr, he must to the best of his ability give answer to the question posed to

him. This verse might not explicit, but its divergent meaning (mafhum al mukhalafah) imposes

duty upon the ahl-dhikr to provide answer to the question, or else it defeats the purpose of asking

a question. This verse can be held as basis to legalise the practice of ijtihad, though it comes in

general form.

11
Ali, The Mea i gs of The Holy Qu ’a .
12
Kamali, Principles of Islamic Jurisprudence. p 371

5
In an authentic hadith, narrated from Amru Bin Al-As, where the Prophet said;

»‫ إ ا ح م ف جت ثم أخ أ ف ه أجر‬، ‫ف ه أجرا‬ ‫دإ ا ح م الح كم ف جت ثم أص‬

When a judge is making ijtihad and he is correct, for him two rewards while if he does so

and he is wrong, for him one reward.13

The hadith explicitly recognized the exercise of ijtihad. The one who performs ijtihad regardless

he arrives at right conclusion or not, will be rewarded. This text also recognizes susceptibility of

an ijtihad to be wrong, therefore it also means ijtihad can be changed upon realizing it to be

mistaken. In another hadith, it is narrated that;

: ‫ فق‬،»‫ دكيْف ت ْق ي؟‬: ‫ فق‬،‫َ ع يْه س َم بعث مع ً ا إل الي ن‬ َ ‫أ َ سو‬

َ َ‫َص‬

َ ‫ فبسنَة سو‬: ‫ ق‬،»‫َ؟‬

َ‫َص‬ َ َ
‫ دفإ ْ ل ْم ي ْن في كت‬: ‫ ق‬،َ ‫أ ْق ي ب في كت‬

َ ‫ دفإ ْ ل ْم ي ْن في سنَة سو‬: ‫ ق‬،‫َ ع يْه س َم‬

َ َ‫َص‬
‫ أجْ ت‬: ‫ ق‬،»‫َ ع يْه س َم؟‬ َ

َ ‫سو‬
َ ‫فَق سو‬ َ‫ دالح ْ َّ ال‬: ‫ ق‬،‫ْأيي‬

Verily the Prophet SAW had sent Muaz to Yaman and He said, “How will you judge (among

them)?, He (Muaz) replied, “I will make judgment based on the Book of Allah.” The

Prophet then asked, “If you don’t find any in the book of Allah?” He replied, “Then I will

13
Narrated by Bukhari, Muslim and Abu Dawud.

6
 look into sunnah of the Prophet SAW.” The Prophet asked further, “If you don’t find it in

the sunnah of the Prophet SAW?” He replied, “I will make ijtihad and form my opinion”.

The Prophet then said “Praise be upon Allah who guide the messenger of His Prophet

(Muaz)”.14

There is an issue surrounding this hadith. A group of jurist, consists of Bukhari, Ibn Hazm, Tirmizi

and a contemporary, Albani held that this hadith is weak (dhaif), while another group of ulama,

consist of Ibn Arabi, Ibn Taimiyah, Al-Khatib Al Baghdadi, Ibn Al-Qayyim, Al-Juwaini and Al-

Syaukani were of opinion that this hadith is good ( ‫)جي‬. Commenting on this issue, Kamali quoted

the observation of Al-Ghazali, “…the claim that this hadith is mursal (i.e. a hadith whose chain

of narration is broken at the point when the name of the companion who heard it from the Prophet

is not mentioned) is of no account. For the ummah has accepted it and has consistenly relied on

it; no further dispute over its authenticity us therefore warranted”.15 Leaving the dispute behind,

the hadith shows an unequivocal form of approval by the Prophet SAW for Muaz to perform ijtihad

whenever he didn’t find any explicit ruling from the Book of Allah, i.e. Quran and Sunnah of the

Prophet SAW.

MUJTAHID

The word mujtahid ‫ مجت‬derives from the same root verb as ijtihad. The word means, a person

who perform ijtihad. The word mujtahid is always used interchangeably with the words mufti and

14
Narrated by Abu Dawud, Tirmizi, Ahmad & Darimi.
15
Ibid., 372.

7
faqih. Though in most of the context those words would serve a common purpose, each of them

carries different connotation. Faqih refers to a person who has has knowledge of rules of shariah,

which he could have gained from his reading and memorization. Mufti refers to person who gives

or conveys an opinion. Faqih and mufti be able to re-state what he memorizes or narrated the

opinion of others, yet their inability to deduce new ruling will make them ineligible to be called

mujtahid. In short, it can be said that a mujtahid is a faqih and a mufti. As to mujtahid in comparison

with qadhi or judge, it is believed that a mujtahid is ranked over a judge who passes judgment

within the purview of the issue brought before him, in the process of disputes settlement.16

QUALIFICATION OF MUJTAHID

As to qualification of mujtahid, Al-Ghazali laid down two requirements, the first is the mujtahid

must be well versed in shariah and second, he is not a person who indulges himself in grave sin or

perceived as not being pious. Al-Syatibi opines a mujtahid must be well versed in shariah and he

is confident to perform ijtihad based on what he knows and understands, whereas Al-Baidhawi

was of the view that a mujtahid is a person who is mukallaf, believes in Allah and His messenger

and possess sufficient knowledge of Shariah, its categorization, the knowledge as to proof in

shariah (legal text) and indication from the proof.17 Bear in mind that these opinions were given at

the time when the tradition of knowledge at its best, which explains the brief and the absence of

details and particularizations. The modern literatures detail out the requirement and the

requirements laid down by Abdul Karim Zaidan, are as follows.

16
Moha ed A A delaal, Ta lid . Ijtihad: The Rise of Ta lid as the “e o da y Judicial Approach in Islamic
Ju isp ude e, J. Juris 14 (2012): 153.
17
Wahbah Al-Zuhayli, Usul Al-Fiqh Al-Isla i, Dimashq: Dar Al-Fikr, 1986, 1043.

8
QUALIFICATION OF MUJTAHID - KNOWLEDGE OF ARABIC LANGUAGE

It is essential that a mujtahid must possess the knowledge of Arabic language, for the simple reason

that the main sources of Shariah are Quran and Sunnah, and these two are in Arabic language.

Understanding this two from its very source is crucial. Interpretation of any legal text has been one

of the basis of differences of opinion since immemorial. Any deduction of ruling must be made

based on the original text in its purest form. Understanding the text by reading any translation is

an understanding formed upon understanding of others, i.e. the translator. Arabic language

encompasses various rules, such as nahwu, sarf, balaghah, ma’ani, bayan and etc. Nonetheless, it

not necessarily for a mujtahid to achieve the understanding of Arabic languages similar to the great

linguistic jurists like Khalil Bin Ahmad or Sibawaih. The narration as to debate between Sibawaih

and Al-Kisai will illustrate the high degree of understanding Arabic language which is not a

condition for a mujtahid to possess. In Baghdad, the Abbasid vizier Yahya ibn Khalid held a debate

on standard Arabic usage between Sibawayh, representing the Basra school, and al-Kisa'i al-Kufi,

the leading figure in the rival school of Kufa, on the following sentence;

‫فإ ا هو هي أ فإ ا هو إي ه‬، ‫كنت أ ن أ العقر أش لسعة من الزنبو‬

"I have always thought that the scorpion was more painful in stinging than the hornet

(zunbur), and sure enough it is."

9
The dispute was on whether ‫هي‬ ‫ فإ ا هو‬or ‫ فإ ا هو إي ه‬is the correct one, which ordinary Arabs

or even scholar, won’t see any problem with any of the two sentences18. This example is just to

illustrate that complex knowledge of language is not a threshold required for a mujtahid to pass.

QUALIFICATION OF MUJTAHID - KNOWLEDGE OF QURAN

Quran is the main source of Shariah. Mujtahid must know all verses of Quran in general term

(ijmal), but must be expert as to verses related to legal ruling (ayat ahkam) in detail (tafsil). There

are 500 verses related to legal ruling. It is not necessarily for mujtahid to memorize these verses

by heart, suffice he is able to locate the verse when he wishes to refer to it. These verses related to

legal ruling have been subject of discussion and writing, e.g. Ahkam Al-Quran by Al Jassas (d.

370 h), Ahkam Al-Quran by Ibn Arabi (d.543 h) and Tafseer Al Qurtubi by Imam Al Qurtubi

(d.671 h)

A mujtahid must know reasons behind a revelation (asbabun nuzul) and abrogation of verse and

ruling (nasikh and mansukh). Example of an abrogated ruling is verse 180 of Surah Al-Baqarah

which reads “Prescribed for you when death approaches [any] one of you if he leaves wealth [is

that he should make] a bequest for the parents and near relatives according to what is acceptable

- a duty upon the righteous”. The ruling is abrogated a by hadith – “no bequeth for immediate kin

(warith)”19. Example of literature on abrogation is Al Nasikh and Mansukh by Al-Nuhas (d.337

h)

18
Michael G Carter, Sibawayhi (IB Tauris, 2004), 13.
19
Narrated by Tarmizi and he said the hadith is hasan sahih.

10
QUALIFICATION OF MUJTAHID - KNOWLEDGE OF SUNNAH

Knowledge of sunnah means knowing the grade of hadith whether it is authentic (sahih) or weak

(dhaif), knowing the background of the narrator in term of his standing in society, ability to

memorize, piety and understanding of hukm, knowing how the hadith was narrated, whether it was

by huge group (mutawatir) or just by few persons, knowing the methods to make preference

between conflicting narrations (tarjih) and abrogations that had taken place (nasikh and

mansukh).20

A mujtahid must at least have read all six books major books of hadith; Sahih Bukhari, Sahih

Muslim, Sunan Abu Dawood, Jami al-Tirmidhi, Sunan al-Sughra collected by al-Nasa'i and Sunan

ibn Majah. The underlying reason is that the mujtahid must not make ijtihad on issue when there

is an explicit legal text21. There are books dedicated in discussing hadith on law. An example of

books of hadith on legal ruling is Nail Al Awtar by Imam Syaukani.

QUALIFICATION OF MUJTAHID - KNOWLEDGE OF USUL FIQH

The knowledge of usul fiqh is pertinent as it is the tool to dichotomise the sources of Shariah in

order to produce a legal ruling. What a mujtahid must know of usul fiqh is a long list. Essentially,

it is the knowledge as to what are the sources of shariah, the precedent among those sources (tartib),

implication of text (dilalat al-nas) and its strength (quwwat al nas), preference between the

evidences (tarjih) and etc.

20
Zaida , Al-Wajiz Fi Usul Al-Fi h, .
21
Ibid.

11
QUALIFICATION OF MUJTAHID - KNOWLEDGE OF IJMA’ & OBJECTIVES OF

SHARIAH

Ijma’ or general consensus among the Muslim Jurist is an indispensable knowledge a mujtahid

must possess, as a mujtahid should abstain himself from making ijtihad on issues which are already

resolved and agreed upon by the ummah.

Knowing objectives of shariah (maqasid al-shariah) is another great deal, as shariah aims at

protecting the sanctity of religion, soul, honour, intellectual and property. The prescribed

punishments or hudud are ordained by Allah and in the case of theft, the punishment is to severe

part of the hand of the offender. This punishment aimed at protecting property. Nonetheless, during

days of draught, it is narrated that Umar ibn Al-Khattab suspended the punishment unto thief, for

the situation had pushed people to the edge as they commit theft in order to survive. Though some

argued that the situation had created an exception to hudud which is dubiosity (syubhah) yet it still

serves as a good example of practical application by government in upholding the goals of shariah

(maqasid al-shariah).

QUALIFICATION OF MUJTAHID – THE GIFT

This final criteria though sounds vague, yet it is something worth to be pondered upon. Abdul

Karim Zaidan stated in his book that a mujtahid must possess the basic ability to perform ijtihad,

in the sense that he must be able to identify the issue correctly, and make deduction of ruling. He

must have ability to look into the crux of the problem and determine what is the real issue. This

ability according to Abdul Karim Zaidan is more like a gift and some say it cannot be acquired. It

12
is just like a person with good knowledge of Arabic doesn’t make him a poet, similarly someone

who memorizes Quran and hadith is not necessarily a mujtahid.

AREA OF IJTIHAD & EXAMPLE OF IJTIHAD PERFORMED BY THE COMPANION.

Not everything under the umbrella of Shariah demands ijtihad. Scholars tend to divide Shariah into

three major categories, i.e. belief (aqeedah), rules of conduct (fiqh),virtue and morality (akhlaq).

There is no ijtihad in areas or ruling where there is explicit text – nas qatie – e.g on obligation of

prayers, prohibition of zina, prohibition to consume pork, while there is room for ijtihad in dealing

with hypothetical text - nas zanni, since the text is open for interpretation and there are plenty of

differences in interpreting the text. The example of the time of Umar again is relevant for

discussion under this head, when he suspended the punishment for theft during a year in which

famine prevailed in Medina.22 Another example is the in regard of death caused by more than one

person. In Surah Al Maidah verse 45, Allah said;

We ordained therein for them: "Life for life, eye for eye, nose or nose, ear for ear, tooth

for tooth, and wounds equal for equal." But if any one remits the retaliation by way of

charity, it is an act of atonement for himself. And if any fail to judge by (the light of) what

Allah hath revealed, they are (No better than) wrong-doers.

Based on this verse, just retribution means that the life of the murderer shall be taken as just

recompense for the life of the victim. The question is then what if there is more than one murderer?

It was narrated that Umar commented on a murder that took in Yemen where he said that if all the

22
Nazee M I Goola , Ijtihad a d Its “ig ifi a e fo Isla i Legal I te p etatio , Mich. St. L. Rev., 2006, 1447.

13
inhabitants of San'a had participated in the murder, he would have had them all put to death.23 This

shows an ijtihad made by Umar, in absence of explicit ruling from the legal text.

CLOSING THE DOOR OF IJTIHAD (INSIDAD BAB AL-IJTIHAD)

Closing the door of ijtihad is a preposition of putting ijtihad to rest, potraying ijtihad to be some

sort of ancient practice exercised by omniscience mortals of the past and as such cease to exist in

the present day. Though there are many basis put forward to justify this preposition, two of those

appear to dominate over the rest, i.e. non existance of qualified mujtahid and purportedly no new

issues that demand ijtihad, as all issues were discussed and settled by jurists of the past.

On the first preposition, it was argued that the practice of ijtihad was abandoned because the

qualifications required for its practice “were so immaculate and rigorous and were set so high that

they were humanly impossible for fulfillment” 24. Gibb in 1947 asserted that orthodox scholars

limited ijtihad because they "feared individual reinterpretation".25 The closing of door of ijtihad

lead to the legalizing the practice of taqlid which will be discussed later.

On the second preposition, there was an argument that the closing of the door of ijtihad and the

shift to taqlid was more an accident of history rathen than a requirement of theory. It is said that at

the end of the Third Century the scholars reached an immutable consensus of opinion that further

ijtihad was unnecessary,26 while Schacht maintains that at about the year 900 C.E., the point had

been reached when the scholars of all schools felt that all essential questions had been thoroughly

23
Ibid., 1448.
24
Wael B Halla , Was the Gate of Ijtihad Closed?, International Journal of Middle East Studies 16, no. 1 (1984):
3–41. p 5.
25
Ali-Ka a ali a d Du e, The Ijtihâd Co t o e sy, –43.
26
Be a d Weiss, I te p etatio i Isla i La : The Theo y of Ijtihād, The American Journal of Comparative Law,
1978, 208.

14
discussed and finally settled, which gradually established a consensus that no one possesses

necessary qualifications for independent reasoning to perform ijtihad.27

This notion appears to be a fallacy. As early as the days of the companion, ijtihad was performed

with purview that it is never meant to be final. Umar's approach to ijtihad was done with the view

that all ijtihad was practiced and applied within time and space and that no one's ijtihad was valid

for all time. Umar fully realized that ijtihad would differ from an age to another and from a place

to another place.28 In refuting such notion, Hallaq opined that (1) jurists who were capable of

ijtihad existed at nearly all times; (2) Ijtihad was used in developing positive law after the

establishment of the schools of mazhab; (3) Up to 500 AH there was no expression or discussion

that suggest or allude to the notion of closure of the gate of ijtihad; and (4) No consensus on closure

of the gate of ijtihad and unavailability of qualified mujtahid, as the issue remains a controversy

among the scholars.29

Thus it must be reiterated that exercise of ijtihad is not confined to certain period of time, thus it

cannot be said ijtihad was performed during the early days of Islam, thus it cannot be performed

at present days, neither can it be said that ijtihad can only be performed at certain place in exclusion

of others.

CHANGING IJTIHAD AND CONFLICTING OF IJTIHAD

There is possibility that a mujtahid might change his opinion, e.g. the old opinion (qaul qadim)

and the new opinion (qaul jadid) of Imam Syafie. An ijtihad is also incapable of invalidating

27
Ali-Ka a ali a d Du e, The Ijtihâd Co t o e sy, .
28
Goola , Ijtihad a d Its “ig ifi a e fo Isla i Legal I te p etatio , .
29
Ali-Ka a ali a d Du e, The Ijtihâd Co t o e sy, .

15
another ijtihad, which is manifested in a legal maxim which formulates that “one ijtihad cannot be

invalidated by another”.

RULING (HUKM) OF IJTIHAD

As new issues and innovations emerge that require ruling, it is an obligation upon capable scholar

to perform ijtihad as is ijtihad is considered as fard kifayah, that is, lay person among the Muslims

are relieved if someone among them take up and perform the duty.30 Nevertheless, the duty to

perform ijtihad might be obligatory (wajib) upon person who has ability to perform ijtihad. He

cannot refrain himself from making ijtihad and opt to follow others instead (taqlid).

PERFORMING IJTIHAD ON CERTAIN AREA IN EXCLUSION OF OTHERS

(TAJAZZU’ AL IJTIHAD)

Tajazzu’ al ijtihad is a state where a mujtahid is expert in one area of law, in exclusion of other,

e.g. expert on the issue of inheritance or criminal law only. Some jurist say it is possible for a

person to be mujtahid in certain area only, some say it is not permissible. Abu Husayn Al Basri

(d.426/1044) was of opinion that in the law of inheritance, it is possible for a person to be mujtahid

in that area in exclusion of other areas, for the reason that the methodological principles and textual

subject matter of inheritance are independent of other part of shariah law.31 The more preferred

view is that it is permissible as evident from the narration where companions and early scholars

when they were asked, they will answer what they know and sometimes they responded “I do not

30
A delaal, Ta lid . Ijtihad: The Rise of Ta lid as the “e o da y Judi ial App oa h i Isla i Ju isp ude e, .
31
Halla , Was the Gate of Ijtihad Closed?, .

16
know” which indicates that might not able to perform ijtihad in all area. There are opinions stating

it is not permissible as they requires fulfilment of the qualifications of mujtahid, yet they are lenient

as to what to be fulfilled of those requirements.32

CLASSIFICATION OF MUJTAHID

There is also discussion on further classification of mujtahid. This classification perhaps meant to

create category of mujtahid, based on the depth of understanding and their tendency in following

established method within a school of thought or not. Four categories had been proposed, first, al-

ijtihad al-mutlaq al-mustaqil, being the absolute and independent ijtihad, as carried out by the

founders of the four Sunni schools of law and their likes, such as Suffian Al-Thauri and Al-Awzai’.

Scholars who came later such as Ibn Taimiyah and Al-Suyuti as an example, claimed that they are

also mujtahid mustaqil.33 Second, al-ijtihad al-mutlaq al-muntassab, great mujtahid but affiliated

to a school of law, such as that undertaken by Abu Yusuf or Muhammad al-Shaybani in the Hanafi

mazhab or school. Third, al-ijtihad fi al-madhhab, which is the ijtihad carried out within a mazhab

school of law. Lastly, al-istinbat ft ba'dhil-massail faqat, which consists of developing a specific

issue only within the framework of a school of law.34

32
Al-Zuhayli, Usul Al-Fiqh Al-Isla i, .
33
Ali-Ka a ali a d Du e, The Ijtihâd Co t o e sy, .
34
Tipha ie Bedas Tue i, “ ope a d Li its of Ijtihad fo the Co ti ued E olutio of Isla i La , SOAS LJ 2 (2015):
94.

17
TAQLID

Taqlid in literal sense means simulation or imitation. It also means putting a noose around one's

neck. As to the technical meaning, Al Ghazali described it as “to follow without knowing the

reason”. Abd Karim Zaidan preferred “to adopt opinion of others without knowing the basis and

the strength of the opinion”. According to Abu Ma’ali al- Juwayni, taqlid is “to follow someone

without having proofs and doesn’t trust upon knowledge”.35

The discussion on whether “the gate of ijtihad is closed”, is inter-related with the issue of taqlid.

It was declared that the door of ijtihad is closed, for the existence of abundance of legal ruling

deduced by mujtahid, so much that every area is purportedly covered, leaving no stone left

unturned, which consequently the ummah is obliged to follow existing rulings without making

new one. As result, ijtihad was gradually abandoned in favour of taqlid. At first taqlid played a

significant role to reduce the differences among jurists and limit the number of schools, yet it grew

to the extent of shutting the door of ijtihad and caused taqlid to rise and become the dominating

rule36.

RULING (HUKM) ON TAQLID

Status quo of taqlid in shariah, it is despised. Some say taqlid is prohibited, as mukallaf should be

able to perform ijtihad by learning the methods and the tools. Some opined that it is permissible

35
Pakeeza a d Fa iha, Ijtihad as a Legislati e Fu tio : Role of Ijtihad, Ifta a d Ta leed i Legislati e P o ess, .
36
Ali-Karamali a d Du e, The Ijtihâd Co t o e sy, .

18
upon those who are incapable of performing ijtihad and prohibited upon those who are capable of

performing ijtihad. The latter opinion is preferred among the jurists37

BASIS OF PERMISSIBILITY OF TAQLID

Obeying Allah and messenger is an obligation. Nonetheless, what if a person is incapable of

reaching the teaching of the Messenger for his inability to understand Arabic language as an

example? Allah said “And obey Allah and the Messenger that you may obtain mercy” (Quran,

Surah Ali Imran: 132), “…so ask the followers of the reminder if you do not” (Quran, Surah Al

Anbiya: 7) and “On no soul doth Allah Place a burden greater than it can bear”. (Quran: Surah Al

Baqarah: 286). From these verses, there is duty to obey Allah and the prophet, yet if a person is

incapable to understand the words of Allah and the sayings of the Prophet, they are commanded

to ask people who have knowledge as Allah would not impose anything beyond the capability of

a person. To ask another person and to hold onto his view is taqlid.

In a hadith, Prophet said, “Verily the cure to not knowing is asking.”38 Background of this Hadith

related to the time when companions of Prophet (S.A.W) were in a journey. When time of Fajr

prayer approached, one companion needs ritual bath yet he had a wound and there was cold water

but he wished for tayamum. Other companions forbid him which caused him to perform bath which

harmed him and he died. Companions narrated the matter to Prophet (S.A.W) who handed out the

wisdom as mentioned in the aforesaid hadith.39

37
Zaida , Al-Wajiz Fi Usul Al-Fi h, .
38
Narrated by Abu Dawud, no 377.
39
Pakeeza a d Fa iha, Ijtihad as a Legislati e Fu tio : Role of Ijtihad, Ifta a d Ta leed i Legislati e P o ess, .

19
To sum up, as Baderin succinctly put it, taqlid itself is not completely undesirable but rather should

be limited to those who are not legally qualified mujtahids.40

TALFIQ

When taqlid is permissible, another situation arises. When there are few opinions on the same

issue, can a person choose to follow the easiest and the lightest among these opinions? This

situation is known as talfiq.

Literally, talfiq means “piecing together”. In technical term, it is described as “the derivation of

rules from material of various schools of Islamic law”.41 Some jurists define it as – “To come up

with something which none of the mujtahid had ever said it”. What is then talfiq? This situation

is best illustrated in the following examples;

Example A

A man marries a woman without wali and says the marriage to be valid according to the

opinion of the school of Hanafi. Later he pronounces talaq thrice (3 times) which is talaq

bain. Being at dead end, he shifted to follow the school of Syafie to say the talaq has no

force since the marriage itself is void ab initio as the school of Syafie opines that a marriage

is void in absence of wali. Since the marriage is void, the talaq which was pronounced has

no legal effect.

40
“hiha ah Azzaz, Ijtihad, a Effe ti e Me ha is of Upholdi g I te atio al Hu a Rights ith Isla i La , J.
Isla ic St. Prac. I t’l L. 4 (2008): 31.
41
See http://www.oxfordislamicstudies.com/article/opr/t125/e2323

20
 Example B

A person wipes a portion of his head while performing ablution as opined by the school of

Syafie (the school of Hanafi requires distribution of water to ¾ of the head, where the

school of Maliki requires the whole head to be washed), then he touch a woman, which

will invalidate his ablution according to Syafie School, yet he holds that his ablution is still

intact as opined by Hanafiyyah and Malikiyyah.

As to example A, this form of talfiq is prohibited, as none of the scholar would approve legality

of the action. As to example B, such practice of talfiq is permissible as the ablution is still intact

and such practice is permissible.

Zuhaili comprehensively dealt with the issue of talfiq and he concluded that talfiq is permissible,

with exception to three situations;

a) When the practice is talfiq it is purposely to find rukhsah (exception to a general rule) and

such prohibition is formed on the basis of sad zari’ah.

b) Talfiq which is meant to contradict the ruling of a judge.

c) Talfiq with the purpose to negate an action which was legally done according to opinion

he chose early to follow (See example A).

Talfiq is a form of flexibility in Islam. Ibn Abd Bar and Ibn Hazm opined that layperson is not

permitted to practice talfiq as it will lead to abandonment of obligation. Izzuddin Ibn Abd Salam

observed that layperson can opt to practice the light of what he finds in a mazhab and to deny it is

21
ignorance. To make things easy is commendable and the religion of Allah is easy, “and He has not

burdened you in religion” (Surah Al Haj: 78).42

CONCLUSION

The discussion of ijtihad had gone into several phase, the first phase where it was actively practiced

by the scholars, to a situation where the benchmark of mujtahid was set so high and the product of

ijtihad was so enormous leading to a belief that nothing left for ijtihad, suggesting the door of

ijtihad to be closed. As result of this belief, everyone was expected to follow existing ruling at that

time which was so enormous, developing a concept of taqlid. Upon realizing too much reliance on

taqlid is damaging, scholars started to condemn such practice, enjoining people to be more critical,

leading to discussion that the practice of ijtihad should be revived in the light of innovations, new

issues and new circumstances. While taqlid is held to be permissible, another question is posed,

can someone choose between several opinions which hinge upon the same issue. Thus the

discussion of talfiq. The cycle is manifestation of strive of Muslim scholars in keeping the tradition

of knowledge alive, and at the same time guarding it from unnecessary elements, keeping the

process of deducing legal ruling sacred and in line with the will of the Creator.

42
Al-Zuhayli, Usul Al-Fiqh Al-Isla i, –55.

22
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