The Principle of Ijtihad in Islam
Murtada Mutahhari
Vol X, No. 1
(Translated by John Cooper. This translation was carried out during the period of tenure of a Fellowship of the British Institute of Persian Studies, for which the translator would like to express his gratitude.)
The article hereunder translated into English, first appeared in the collection "Bahthi dar barayi Marja`iyat wa Ruhaniyat" [1], which was reviewed by Lambton [2]. This volume contained essays by figures who were then prominent in the anjumanhayi islami, an organization of groups with a religiously educated leadership concerned to initiate public debate of, and interest in, Islamic solutions to contemporary political, economic and social problems. The occasion for the publication of this volume was the death of the marja` altaqlid of his time, Ayatullah Burujirdi, in 1961, and the discussions contained therein dealt with various aspects of taqlid and the religious institutions. Summaries and discussion of the articles will be found in Lambton.
Most of the authors subsequently became leading names in the 1979 Iranian Revolution. Mahdi Bazargan, who had had both a religious and a secular education and had been influential among the younger generation as a professor at the University of Tehran and later as a politician, became the first Prime Minister of the new Islamic Republic's provisional government. Ayatullah Taliqani was an active revolutionary figure who had spent much time in SAVAK prisons. He was particularly well known in Tehran where he commanded much respect. He died in the early morning of 10 September 1979 [3]. Sayyid Muhammad Bihishti became the first head of the Islamic Republican Party, as well as Chief Justice of the postrevolutionary High Court; he held both posts until his assassination in the bombing of the Party headquarters on 29 June 1981. Sayyid Muhammad Husayn Tabataba'i was much weakened by illness by the time of the revolution, but was held in universal esteem for his piety and learning. He died on 15 November 1981. All these figures, except `Allama Tabataba'i were also important members of the Revolutionary Council, which had been set up by Ayatullah Khumayni during his stay in Paris. The author of the present article, Murtada Mutahhari, had been appointed head of this Council by Ayatullah Khumayni, and it was he who had first convened it. After the victory of the revolution, the Council continued to play an extremely important role in the course of events, even after the setting up of the provisional government, indeed right up to the formation of the new Majlis.
Murtada Mutahhari was born in a village some forty kilometres from Mashhad in 1338/191920. After a primary education mostly at the hands of his father, he entered, still a child, the hawzayi `ilmiya, the traditional educational establishment, of Mashhad, but he soon left for Qum, the centre for religious education in Iran. Even during the time of his elementary studies there he was greatly affected by the lessons in akhlaq (Islamic ethics) given by Ayatullah Khumayni, which Mutahhari himself described as being in reality lessons in ma`arif wa sayrusuluk (the theoretical and practical approaches to mysticism) [4], and he later studied metaphysics (falsafa) with him as well as jurisprudence (usul alfiqh). He was especially attracted by falsafa, theoretical mysticism (`irfan) and theology (kalam), the "intellectual sciences", and he also studied these subjects with `Allama Tabataba'i. His teachers in law (fiqh) were all the important figures of the time, but especially Ayatullah Burujirdi, who became the marja` altaqlid, and also head of the hawzayi `ilmiya of Qum, in 1945. Murtada Mutahhari studied both fiqh and usul alfiqh in the classes of Ayatullah Burujirdi for ten years. He was also deeply affected at about this time by lessons on "Nahj al-Balagha" [5] given by Mirza `Ali Aqa Shirazi Isfahani, whom he had met in Isfahan. He later said that, although he had been reading this work since his childhood, he now felt that he had discovered a "new world".[6] Subsequently, Mutahhari became a well known teacher in Qum, first in Arabic language and literature, and later in logic (mantiq), usul alfiqh, and falsafa.
In 1952, Murtada Mutahhari moved to Tehran, where, two years later, he began teaching in the Theology Faculty of the University. Not only did he make a strong impression on students, but his move to Tehran also meant that he could become involved with such organizations as the anjuman hayi islami. These Islamic Associations were groups of students, engineers, doctors, merchants, etc., set up during the fifties and sixties; they formed the nucleus of the movement that was to become, eventually, the revolution. He was also a founder member of the Husayniyayi Irshad, which played a central role in the religious life of the capital during the four years of its existence until its closure by the authorities in 1973 [7]. At the same time he maintained his contact with traditional religious activities, teaching first in the Madrasayi Marvi in Tehran, and later back in Qum, and also preaching in mosques in Tehran and elsewhere in the country. Through his lectures and writings - articles and books - he became a famous and muchrespected figure throughout Iran, but it was mainly among the students and teachers of the schools and universities that he was most influential, setting an example and inspiring them as a committed and socially aware Muslim with a traditional education who could make an intellectually appropriate and exciting response to modern secularizing tendencies. His wideranging knowledge and scholarship are reflected in the scope of his writings, which cover the fields of law, philosophy, theology, history and literature.[8] He was also one of the few highranking `ulama' to be in continuous contact with Ayatullah Khumayni during the fifteen or so years in which the movement which led to the revolution was developing. He was actively engaged in all the stages of this movement.
His life came to an abrupt and untimely end when he was shot in the street by an assassin after a meeting of the Revolutionary Council on the evening of 1 May 1979. Animated mourning accompanied his funeral cortege from Tehran to Qum, where he was buried near the shrine of the sister of the eighth Shi`i Imam.
The discussion of taqlid had been important in the wake of Ayatullah Burujirdi's death for the reasons given by Lambton. A solution to the problems posed in those articles was never achieved, and events subsequently altered the whole structure of the discussion, but the issues raised did open important new areas for thought. As a result of the revolution, the question of wilayat alfaqih came to the fore, and taqlid became the subject of even greater public concern. As long as taqlid had been restricted in the common understanding as applying only to matters which belonged to the rubrics of the collections of fatwas issued by the marja`s, the only real debate took place within the legal classroom; but during the seventies, and hand in hand with the reawakening of political sensibilities, the boundaries of fiqh were seen by the public to expand and encompass new territory. The definition of these new frontiers was a source of some confusion, and hence of heightened interest, and, in the great postrevolutionary surge of printing, the Burujirdi volume was reissued.
Taqlid had long been a socially important element in Iranian society, and in Shi`i society in general, for it united people, at least as inhabitants of the same universe of duties and obligations, under their marja`s, but the events leading up to the revolution demonstrated the power that the marja`s could command through, among other means, their issuing of proclamations (`ilamiyas); this was reminiscent of the mobilization of the Iranian people during the tobacco protest of 18912, and during the Constitutional Revolution of 1906-11.
The following article is presented as a description of taqlid and ijtihad by a leading contemporary Shi`i mujtahid who strove to make Islam comprehensible to the modern Iranian and to find answers to the problems of his time within the Islamic framework. The text has been left in its entirety; there were no footnotes in the original.
It is not for the believers to go forth all together; but why should not a party of every section of them go forth, to become learned in religion, and to warn their people when they return to them, that they may beware. (9:122) [9]
What is ijtihad?
The question of ijtihad is a very topical one these days.[10] Many people ask, either aloud or to themselves, what form ijtihad takes in Islam, and from where Islam got the concept. Why should one practice taqlid? What are the conditions for ijtihad? What are the duties of a mujtahid?
Broadly speaking, ijtihad has the meaning of being an authority in the matters of Islam; but there are two ways of being an authority and deriving opinions in the matters of Islam in the eyes of us Shi`i Muslims: one which is in accordance with the shari`a, and one which is forbidden by it. Similarly, taqlid is of two kinds: one which is in accordance with the shari`a, and one which is forbidden.
The kind of ijtihad which is forbidden by the shari'a.
Now, the kind of ijtihad which, in our opinion, is forbidden is that which means "legislating" or "enacting the law", by which we mean that the mujtahid passes a judgement which is not in the Book (the Qur'an) or the Sunna, according to his own thought and his own opinion - this is technically called ijtihad alra'y. According to Shi`i Islam, this kind of ijtihad is forbidden, but in Sunni Islam it is permitted. In the latter the sources of legislation, and the valid proofs for determining the shar`ia, are given as the Book, the Sunna and ijtihad. The Sunnis place ijtihad, which is the ijtihad alra'y explained above, on the same level as the Book and the Sunna.
This difference takes its origin in the fact that Sunni Muslims say that the commands which are given in the shari`a from the Book and the Sunna are limited and finite, whereas circumstances and events which occur are not, so another source in addition to the Book and the Sunna must be appointed for the legislation of Divine commands - and that source is the very same as we have defined as ijtihad alra'y. Concerning this matter, they have also narrated hadiths from the Prophet, and one of them is that when the Prophet sent Mu`adh b. Jabal to the Yemen, he asked him how he would issue commands there. He replied: "In conformity with the Book." "And if it is not to be found in the book?" "I will make use of the Sunna of the Prophet." "And if it is not to be found in the Sunna of the Prophet?" "Ajtahidu ra' yi, " he replied, which means: I will employ my own thought, ability and tact. They also narrate other hadiths in connection with this matter.
There is a difference of view among Sunni Muslims as to what ijtihad al-ra'y is, and as to how it is to be conceived. In his famous book, the "Risala" [11] which was the first book to be written on the principles of Islamic jurisprudence (usul alfiqh), (...) alShafi`i insists that the only valid ijtihad according to hadith is qiyas [reasoning by analogy]. Qiyas, briefly, is the taking into account of similar cases, and ruling in a case from one's own opinion by comparing it with these other similar cases.
But some other Sunni fuqaha [experts in fiqh, sing.: faqih] did not recognize ijtihad alra'y as being exclusively qiyas; they also counted istihsan ["finding the good" by one's own deliberations] as valid. Istihsan means to see, quite independently, without taking similar cases into account, what is nearest to the truth and to justice, and to give one's opinion according as one's inclination and intellect approve. Similarly with istislah [determining what is in the interests of human welfare by one's own deliberationsl, which means the seeming of one thing as more expedient than another, and ta`awwul in which, although a ruling may have been reached in one of the nusus [the textual bases for a precept of the shari`a sing.: nass], in a verse from the Qur'an or in a hadith from the Prophet, one still has the right, for some reason, to dispense with the contents of the nass and to give priority to one's own independent opinion (ijtihad alra'y). Each of these requires explanation and a detailed account, and the Shi`iSunni debate is relevant to such an account. Many books have been written both for and against this idea, viz., that ijtihad is on a par with textual evidence, and the best of them is the treatise written recently by the late `Allama, the Sayyid Sharaf alDin, called "alNass wa lIjtihad".[12]
Now, according to Shi`i Muslims, such a kind of ijtihad is not permitted by the shari`a. In the view of Shi`i Muslims and their Imams, the first basic principle of this matter, i.e., that the rulings of the Book and the Sunna are not adequate and that it is therefore necessary to practice ijtihad alra'y, is not correct. There are many hadiths relevant to this discussion, and, in general, [they tell us that] there exist rulings for every eventuality in the Book and the Sunna. In "alKafi" [13], after the chapter on bid`a [innovation] and maqa'is [measurements], there is a chapter with the title: "Chapter on referring to the Book and the Sunna - and there is no halal [permitted thing] or haram [forbidden thing] or anything which the people need which does not come in the Book or the Sunna." The Imams of the ahl albayt have been known since the earliest days as opponents of qiyas and ra'y.
Of course, the acceptance or nonacceptance of qiyas and ijtihad alra' y can be studied from two angles. Firstly, from the aspect from which I have looked at it; that is to say, we count qiyas and ijtihad alra'y as one of the sources of Islamic legislation, and place it alongside the Book and the Sunna, and say that there are cases which have not been ruled upon by revelation and which mujtahids must explain using their own opinion. Or alternatively, [we can study it] from the aspect that ( . . . ) qiyas and ijtihad al-ra'y [arel a means for deriving the real rulings, just as we use the other ways and means such as khabar alwahid.[14] In other words, it is possible to perceive qiyas as either a substantive (mawdu`iya) [element in law], or a methodological (tariqiya) [principle].
In Shi`i fiqh, qiyas and ra'y are invalid in both of the above senses. In the first sense, the reason is that we have no ruling which is not given in the Book and the Sunna; and in the second case, the reason is that qiyas and ra'y are kinds of surmise and conjecture which lead to many errors. The fundamental opposition of Shi`i and Sunni legists in the matter of qiyas is in the first sense, although the second aspect has become more famous among the scholars of usul (the principles and methodology of fiqh).
The right of ijtihad did not last for long among the Sunnis. Perhaps the cause of this was the difficulty which occurred in practice: for if such a right were to continue [for any great length of time], especially if ta`awwul and the precedence of something over the texts were to be permitted, and everyone were permitted to change or interpret according to his own opinion, nothing would remain of the way of Islam (din alislam). Perhaps it is for this reason that the right of independent ijtihad was gradually withdrawn, and the view of the Sunni `ulama became that they instructed people to practice taqlid of only the four mujtahids, the four famous Imams - Abu Hanifa [d.150/767], alShafi`i; [d.204/820], Malik b. Anas [d.179/795] and Ahmad b. Hanbal [d.241/855] - and forbade people to follow anyone apart from these four persons. This measure was first taken in Egypt in the seventh hijri century, and then taken up in the rest of the lands of Islam.
