As Islamic regulations stated in the primary sources do not explicitly deal with every conceivable eventuality, jurisprudence must refer to resources and authentic documents to find the correct course of action. According to Sunni schools of law, secondary sources of Islamic law are consensus among Muslims jurists, analogical deduction, al-Ra'y; independent reasoning, benefit for the Community and Custom. Hanafi school frequently relies on analogical deduction and independent reasoning, and Maliki and Hanbali generally use the Hadith instead. Shafi'i school uses Sunnah more than Hanafi and analogy more than two others. Among Shia, Usuli school of Ja'fari jurisprudence uses four sources, which are Qur'an, Sunnah, consensus and aql. They use ijma under special conditions and rely on aql (intellect) to find general principles based on the Qur'an and Sunnah, and use usul al-fiqh as methodology to interpret the Qur'an and Sunnah in different circumstances, and Akhbari Jafaris rely more on Hadith and reject ijtihad. According to Momen, despite considerable differences in the principles of jurisprudence between Shia and the four Sunni schools of law, there are fewer differences in the practical application of jurisprudence to ritual observances and social transactions
Primary sources
The Qur'an is the first and most important source of Islamic law. Believed to be the direct word of God as revealed to Muhammad through angel Gabriel in Mecca and Medina, the scripture specifies the moral, philosophical, social, political and economic basis on which a society should be constructed. The verses revealed in Mecca deal with philosophical and theological issues, whereas those revealed in Medina are concerned with socio-economic laws. The Qur'an was written and preserved during the life of Muhammad, and compiled soon after his death.
Muslim jurists agree that the Qur'an in its entirety is not a legal code (used in the modern sense); rather its purpose is to lay down a way of life which regulates man's relationship with others and God. The verses of the Qur'an are categorized into three fields: "science of speculative theology", "ethical principles" and "rules of human conduct". The third category is directly concerned with Islamic legal matters which contains about five hundred verses or one thirteenth of it. The task of interpreting the Qur'an has led to various opinions and judgments. The interpretations of the verses by Muhammad's companions for Sunnis and Imams for Shias are considered the most authentic, since they knew why, where and on what occasion each verse was revealed.
Sunnah
The Sunnah is the next important source, and is commonly defined as "the traditions and customs of Muhammad" or "the words, actions and silent assertions of him". It includes the everyday sayings and utterances of Muhammad, his acts, his tacit consent, and acknowledgments of statements and activities.According to Shi'ite jurists, the sunnah also includes the words, deeds and acknowledgments of the twelve Imams and Fatimah, Muhammad's daughter, who are believed to be infallible.
Justification for using the Sunnah as a source of law can be found in the Qur'an. The Qur'an commands Muslims to follow Muhammad. During his lifetime, Muhammad made it clear that his traditions (along with the Qur'an) should be followed after his death. The overwhelming majority of Muslims consider the sunnah to be essential supplements to and clarifications of the Qur'an. In Islamic jurisprudence, the Qur'an contains many rules for the behavior expected of Muslims but there are no specific Qur'anic rules on many religious and practical matters. Muslims believe that they can look at the way of life, or sunnah, of Muhammad and his companions to discover what to imitate and what to avoid.
Much of the sunnah is recorded in the Hadith. Initially, Muhammad had instructed his followers not to write down his acts, so they may not confuse it with the Qur'an. However, he did ask his followers to disseminate his sayings orally. As long as he was alive, any doubtful record could be confirmed as true or false by simply asking him. His death, however, gave rise to confusion over Muhammad's conduct. Thus the Hadith were established. Due to problems of authenticity, the science of Hadith (Arabic: `Ulum al-hadith) is established. It is a method of textual criticism developed by early Muslim scholars in determining the veracity of reports attributed to Muhammad. This is achieved by analyzing the text of the report, the scale of the report's transmission, the routes through which the report was transmitted, and the individual narrators involved in its transmission.On the basis of these criteria, various Hadith classifications developed.
To establish the authenticity of a particular Hadith or report, it had to be checked by following the chain of transmission (isnad). Thus the reporters had to cite their reference, and their reference's reference all the way back to Muhammad. All the references in the chain had to have a reputation for honesty and possessing a good retentive memory. Thus biographical analysis (`ilm al-rijāl, lit. "science of people"), which contains details about the transmitter are scrutinized. This includes analyzing their date and place of birth; familial connections; teachers and students; religiosity; moral behaviour; literary output; their travels; as well as their date of death. Based upon these criteria, the reliability (thiqāt) of the transmitter is assessed. Also determined is whether the individual was actually able to transmit the report, which is deduced from their contemporaneity and geographical proximity with the other transmitters in the chain.
Examples of biographical dictionaries include Ibn Hajar al-Asqalani's "Tahdhīb al-Tahdhīb" or al-Dhahabi's "Tadhkirat al-huffāz."[ Using this criteria, Hadith are classified into three categories:
1. Undubitable (mutawatir), which are very widely known, and backed up by numerous references.
2. Widespread (mashhur), which are widely known, but backed up with few original references.
3. Isolated or Single (wahid), which are backed up by too few and often discontinuous references.
Secondary sources
All medieval Muslim jurists rejected arbitrary opinion, and instead developed various secondary sources, also known as juristic principles or doctrines to follow in case the primary sources (i.e. the Qur'an and Sunnah) are silent on the issue.
Ijma
The ijma' , or consensus amongst Muslim jurists on a particular legal issue, constitutes the third source of Islamic law. Muslim jurists provide many verses of the Qur'an that legitimize ijma' as a source of legislation. Muhammad himself said:• "My followers will never agree upon an error or what is wrong",
• "God's hand is with the entire community".
In history, it has been the most important factor in defining the meaning of the other sources and thus in formulating the doctrine and practice of the Muslim community. This is so because ijma' represents the unanimous agreement of Muslims on a regulation or law at any given time. There are various views on ijma' among Muslims. Sunni jurists consider ijma' as a source, in matters of legislation, as important as the Qur'an and Sunnah. Shiite jurists, however, consider ijma' as source of secondary importance, and a source that is, unlike the Qur'an and Sunnah, not free from error. Ijma' was always used to refer to agreement reached in the past, either remote or near. Amongst the Sunni jurists there is diversity on who is eligible to participate in ijma' , as shown in the following table:
| School of jurisprudence | Formation of ijma' | Rationale |
| Hanafi | through public agreement of Islamic | jurists the jurists are experts on legal matters |
| Shafi'i | through agreement of the entire community and public at large | the people cannot agree on anything erroneous |
| Maliki | through agreement amongst the residents of Medina, the first Islamic capital | Islamic tradition says "Medina expels bad people like the furnace expels impurities from iron" |
| Hanbali | through agreement and practice of Muhammad's Companions | they were the most knowledgeable on religious matters and rightly guided |
| Usuli | only the consensus of the ulama of the same period as the Prophet or Shia Imams is binding. | consensus is not genuinely binding in its own right, rather it is binding in as much as it is a means of discovering the Sunnah. |
Qiyas
Qiyas or analogical deduction is the fourth source of Sharia for the Sunni jurisprudence. Shiites do not accept qiyas, but replace it with reason (aql). Qiyas is the process of legal deduction according to which the jurist, confronted with an unprecedented case, bases his or her argument on the logic used in the Qur'an and Sunnah. Qiyas must not be based on arbitrary judgment, but rather be firmly rooted in the primary sources.Supporters of qiyas will often point to passages in the Qur'an that describe an application of a similar process by past Islamic communities. According to Hadith, Muhammad said: "Where there is no revealed injunction, I will judge amongst you according to reason." Further, he extended the right to reason to others. Finally, qiyas is sanctioned by the ijma, or consensus, amongst Muhammad's companions.
The success and expansion of Islam brought it into contact with different cultures, societies and traditions, such as those of Byzantines and Persians. With such contact, new problems emerged for Islamic law to tackle. Moreover, there was a significant distance between Medina, the Islamic capital, and the Muslims on the periphery on the Islamic state. Thus far off jurists had to find novel Islamic solutions without the close supervision of the hub of Islamic law (back in Medina). During the Umayyad dynasty, the concept of qiyas was abused by the rulers. The Abbasids, who succeeded the Ummayads defined it more strictly, in an attempt to apply it more consistently.
The general principle behind the process of qiyas is based on the understanding that every legal injunction guarantees a beneficial and welfare satisfying objective. Thus, if the cause of an injunction can be deduced from the primary sources, then analogical deduction can be applied to cases with similar causes. For example, wine is prohibited in Islam because of its intoxicating property. Thus qiyas leads to the conclusion that all intoxicants are forbidden.
The Hanafi school of thought very strongly supports qiyas. Imam Abu Hanifa, an important practitioner of qiyas, elevated qiyas to a position of great significance in Islamic law. Abu Hanifa extended the rigid principle of basing rulings on the Qur'an and Sunnah to incorporate opinion and exercise of free thought by jurists. In order to respond suitably to emerging problems, he based his judgments, like other jurists, on the explicit meanings of primary texts (the Qur'an and sunnah). But, he also considered the "spirit" of Islamic teachings, as well as the whether the ruling would be in the interest of the objectives of Islam. Such rulings were based on public interest and the welfare of the Muslim community.
“The knowledge of ours is an opinion, it is the best we have been able to achieve. He who is able to arrive at different conclusions is entitled to his own opinion as we are entitled to our own.” - Abu Hanifa
The Shafi'i school of thought accepts qiyas as a valid source. Imam Shafi'i, however, considered it a weak source, and tried to limit the cases where jurists would need to resort to qiyas. He criticized and rejected analogical deductions that were not firmly rooted in the Qur'an and sunnah. According to Shafi'i, if analogical deductions were not strictly rooted in primary sources, they would have adverse effects. One such consequence could be variety of different rulings in the same subject. Such a situation, he argued, would undermine the predictability and uniformity of a sound legal system.
Imam Malik accepted qiyas as a valid source of legislation. For him, if a parallel could be established between the effective cause of a law in the primary sources and a new case, then analogical deduction could be viable tool. Malik, however, went beyond his adherence to "strict analogy" and proposed pronouncements on the basis of what jurists considered was "public good".
Preference
Abu Hanifa developed a new source called istihsan, or juristic preference, as a form of analogical deduction (qiyas). Istihsan is defined as:
• Means to seek ease and convenience,
• To adopt tolerance and moderation,
• To over-rule analogical deduction, if necessary.
The source, inspired by the principle of conscience, is a last resort if none of the widely accepted sources are applicable to a problem. It involves giving favor to rulings that dispel hardship and bring ease to people. This doctrine was justified directly by the Qur'an: "Allah desires you ease and good, not hardship".Though its main adherents were Abu Hanifa and his pupils (such as Abu Yusuf), Malik and his students made use of it to some degree. The source was subject to extensive discussion and argumentation, and its opponents claimed that it often departs from the primary sources.
This doctrine was useful in the Islamic world outside the Middle East where the Muslims encountered environments and challenges they had been unfamiliar with in Arabia. One example of isthisan is cited as follows: If a well is contaminated it may not be used for ritual purification. Istihsan suggests that withdrawing a certain number of buckets of water from the well will remove the impurities. Analogical deduction (qiyas), however, says that despite removing some of the water, a small concentration of contaminants will always remain in the well (or the well walls) rendering the well impure. The application of analogical deduction means the public may not use the well, and therefore causes hardship. Thus the principle of istihsan is applied, and the public may use the well for ritual purification.
Public good
Imam Malik developed a tertiary source called al-maslaha al-mursalah, which means social benefit. According to this source of Islamic law, rulings can be pronounced in accordance with the "underlying meaning of the revealed text in the light of public interest". In this case the jurists uses his wisdom to pursue public interest. This source is rejected by the Shafi'is.
Textual indication
Shafi'i accepted cases in which he had to be more flexible with the application of Qisas. Similar to Abu Hanifa and Imam Malik, he developed a tertiary source of legislation. The Shafi'i school adopted istidlal, a process of seeking guidance from the source. Istidlal allowed the jurists to avoid "strict analogy" in a case where no clear precedent could be found. In this case, public interest was distinguished as a basis for legislation.
Scholars divide istdilal into three types. The first is the expression of the connection existing between one proposition and another without any specific effective cause. Next, istidlal could mean presumption that a state of things, which is not proved to have ceased, still continues. The final type of istidlal is the authority as to the revealed laws previous to Islam.
Some General Terms
Wajib -- obligatory, necessary, incumbent. An act which must be performed. You will be rewarded for performing it and punished for neglecting it, e.g., the daily prayers, the fasting of Ramadhan.
Ihtiyat wajib -- precautionarily obligatory. Its significance is the same as that of wajib with the difference that in the problems where a mujtahid says it is "precautionarily obligatory", one has the option of leaving his taqlid (following) in this particular problem and following the rulings of the second-best mujtahid in that problem.
Haram -- forbidden, prohibited. It is necessary to abstain from the acts which are haram. If someone performs a haram act, he will be punished, e.g., eating pork.
Sunnat, Mustahab -- recommendable, desirable. The acts whose neglect is not punished, but whose performance is rewarded, e.g., the call for prayers (adhan).
Makruh -- reprehensible, disliked. The acts whose performance is not punished, but whose avoidance is rewarded, e.g., eating in the state of janabat.
Ja'iz, Halal, Mubah -- permitted, allowed, lawful, legal. The acts or the thing which are permitted and lawful. There is no reward for performing it and no punishment for neglecting it, e.g., drinking tea. Mubah is exclusively used for lawful things, not for permitted actions.
1. What is taqlid?
Taqlid or taqleed (Arabic تَقْليد taqlīd) is an Arabic term meaning "to follow (someone)" or "to imitate". In Islamic legal terminology it refers to the practice of following the decisions of a religious authority without necessarily examining the scriptural basis or reasoning of that decision. In Islamic theology taqlid of someone regarded as a higher religious authority (e.g. an 'ālim) is acceptable in the details of religion, such as matters of worship and personal affairs, but not in the fundamentals of the faith.Most often, this refers to the adherence to one of the five classical schools of fiqh, or jurisprudence, known as madhhab.Taqlid literally means "to follow (someone)", "to imitate". In Islamic legal terminology it means to follow a mujtahid in religious laws and commandment as he has derived them. A mujtahid is a person who is an expert of Islamic jurisprudence (fiqh); he is also called a faqih. In order to see where and why the practice of taqlid gained acceptance in the Shi'i world, it is necessary first to explain it in some detail.
Man's nature dictates that he can only function properly within a society, and a society depends for its existence on laws and regulations. Islam teaches that Allah has sent a series of messengers and prophets with divine laws for man's guidance from the very beginning of his existence. The final Messenger and Prophet was Muhammad bin `Abdullah (may the peace and blessings of Allah be upon him and his Household) who brought the last and most perfect of God's religious messages, Islam, which is to serve as a guide for mankind till the end of time.
Allah is the Creator of man and the universe, and so only He can, or has the right, to make laws for us. The prophets and messengers are merely the teachers and proclaimers of Allah's laws and regulations; they cannot make laws themselves. The teachings of Shi'ah Islam say that the Imam is the successor of the Prophet and acts as the preserver and interpreter of Islam and its divine law, the shari'ah. In the earliest period of Islamic history, the Prophet guided the Muslim community (ummah) in every step it made, and was there to solve all its difficulties.
From the time of the first Imam, `Ali, until the death of the eleventh, the Imam Hasan al-`Askari, peace be upon them, the Shi'ah received guidance directly from the Imams. Then, during the period of the Lesser Occultation (al-ghaybatu 's-sughra) of the Twelfth Imam, he himself successively appointed four representatives who acted as the link between the Imam and his Shi'ahs. However, when the present Imam, peace be upon him, went into his Greater Occultation (al-ghaybatu 'l-kubra) in 329/941 in obedience to Allah's command, the Shi'ah were obliged to observe taqlid in their religious affairs.
2. Is taqlid reasonable in a time of widespread education?
It is not always reasonable to follow others and to hold uncritical faith in their opinions. We can distinguish four possible forms that imitation could take:a) that of an ignorant person by an ignorant person,
b) that of a learned person by a more learned person,
c) that of an ignorant person by a learned person,
d) that of a learned person by a less learned person.
It is quite clear that the first three forms of imitation are unreasonable and can serve no purpose. However, the fourth kind is obviously not only reasonable, but also necessary and a matter of common sense; in our everyday life we follow and imitate others in many things; we like to feel that we are taking the advice of experts in matters outside our own knowledge. Someone who wishes to build a house explains the basic idea of what he wants to his builder and then submits to his advice as to how he should go about the actual construction; the invalid follows the treatment advised by his doctor; a litigant consults a lawyer when drawing up his case for presentation in court.
The examples are abundant; in most cases the advice is taken voluntarily, but sometimes the citizen in a country may be required by law to seek expert advice and act upon it, before, for example, he is allowed to take some particularly dangerous drug. The clearest example is obviously in case of a legal dispute between two parties, where they are required to take their grievances before a judge and abide by his decision if they cannot settle their dispute amicably. The practice of taqlid is an example of the same kind: the person who is not an expert in jurisprudence is legally required to follow the instructions of the expert, i.e., the mujtahid. And in this case the requirement is an obligation which must be observed, for it is an essential part of the divine law.
It should be observed that taqlid pertains only to the realm of the shari'ah; there can be no taqlid in the matters of belief (usulu 'd-din). A Muslim must hold his belief in the fundamentals of his religion after attaining conviction of their truth through examination and reflection. The Qur'an very clearly condemns those who follow others blindly in matters of belief:. And when it is said to them, "Come now to what Allah has sent down, and the Messenger," they say, "Enough for us is what we found our fathers doing". What, even if their fathers had knowledge of naught and were not rightly-guided? (5:104)
This strong condemnation of the idol-worshippers is repeated elsewhere:
And when it is said to them, "Follow what Allah has sent down," they say, "No, but we will follow such things as we found our fathers doing." (2:170 and 31:20)
This does not mean that one must necessarily hold belief contrary to those of one's forefathers; what the Qur'an is saying is that one should not follow them blindly, i.e., without considering the validity of one's reasons for holding them. The Islamic attitude towards fundamental belief is that one may consider the views and opinions of others, but that one should only accept that which is reasonable to believe:
So give thou (O Muhammad!) good tidings to My servants who give ear to the word and follow the fairest of it. Those are they whom Allah has guided; those are men possessed of minds. (39:17)
To summarize, it may be said that the only approach to Islam is by accepting its tenets in such a way as one is entirely convinced of their validity, and this can only come about if one examines them carefully and conscientiously. Once one has come to accept these tenets it follows as a necessary consequence that one must adhere to the shari'ah, either by following a mujtahid in taqlid, or by undertaking the acquisition of learning and piety to such a degree that one becomes a mujtahid oneself.
3. Taqlid in the Qur'an and ahadith
The Qur'an instructs Muslims to seek guidance from people of learning in matters about which they lack knowledge:"Question the people of remembrance if you do not know." (21:7)
It is an obligation in Islamic law to study everything which is necessary for the spiritual and material development and well-being of an Islamic community, but it is an obligation which is known as wajib kifa'i. In the present instance, for example, an Islamic society has need of experts in the medical sciences, in physics and chemistry, engineering, education, and so forth, and as long as there is a lack of knowledge in these areas it is an obligation on the community as a whole to acquire it, which means that a group of Muslims should devote themselves to research so as to benefit the Islamic people as a whole. Similarly, an Islamic society without experts in the shari'ah cannot properly consider itself Islamic, so it is an obligation for a group of persons from this society to devote themselves to the study of the religious sciences, so as to provide divine guidance for all Muslims. This is the meaning contained in the verse of the Qur'an which states:
"But why should not a party from every section of them (the believers) go forth to become learned in the religion, and to warn their people when they return to them, that they may beware?" (9:124)
It is clear that the Imams used to be pleased if any of their companions taught religion or gave legal rulings (fatwa) to others. There are a number of documented cases of Shi'ahs who lived far from Medina asking the Imam of the time to appoint someone in their locality to adjudicate between them in religious problems. Zakariyyah ibn Adam al-Qummi and Yunus bin `Abduí r-Rahman, for example, were named by Imam `Ali ar-Rida' to solve disputes in their own districts. In a famous hadith, `Umar ibn Hanzalah asked Imam Ja`far as-Sadiq, peace be upon him, about the legality of two Shi'ahs seeking a verdict from an illegitimate ruler in a dispute over a debt or a legacy. The Imam's answer was that it was absolutely forbidden to do so. Then Ibn Hanzalah asked what the two should do, and the Imam replied: "They must seek out one of you who narrates our traditions, who is versed in what is permissible and what is forbidden, who is well-acquainted with our laws and ordinances, and accept him as judge and arbiter, for I appoint him as judge over you. If the ruling which he based on our laws is rejected, this rejection will be tantamount to ignoring the order of Allah and rejecting us is the same as rejecting Allah, and this is the same as polytheism."
In another tradition from Imam Ja'far as-Sadiq, this time narrated by Imam Hasan al-`Askari, peace be upon them, he says, "...but if there is anyone among the fuqaha' who is in control over his own self, protects his religion, suppresses his evil desires and is obedient to the commands of his Master, then the people should follow him."
A third hadith is from the Present Imam, Muhammad al-Mahdi, peace be upon him, who said in a reply to Ishaq ibn Ya'qub: "As far as newly occurring circumstances are concerned, you should turn (for guidance) to the narrators of our ahadith, for they are my proof over you just as I am Allah's proof." We can understand two things from these verses of the Qur'an and the ahadith of the Imams: 1) there must always be a group of fuqaha' in every Muslim society; 2) those who are not qualified as fuqaha' or mujtahids, must follow one, and that to go against his instruction in religious matters is tantamount to polytheism.
4. The necessary conditions for qualification as amujtahid
It can easily be inferred from the second of the ahadith cited above that becoming an expert in fiqh and the other Islamic sciences is not in itself enough for qualification as a mujtahid whom everyone can follow. In addition to this, Islamic law lays down that a mujtahid should be a free man of legitimate birth who is past the age of puberty, sane, an Ithna-`ashari Shi'ah, and `adil, (which can be translated as 'just', but which includes other moral and legal qualities, such as piety and abstention from all that the shari`ah forbids and fulfillment of all its obligations).As to the question of how an ordinary believer should discover who is the mujtahid he must follow, there are three recognized ways:
1) by his own personal knowledge if he is himself a religious scholar;
2) by the testimony of two `adil, knowledgeable persons to someone's being a mujtahid;
3) by a degree of popularity which leaves no doubt as to a person's being a mujtahid.
Most present day `ulama' maintain that it is most desirable to follow a mujtahid who is al-a`lam. In a general sense this means 'the most learned', but in this specific contexts it means the faqih who has the greatest expertise in deriving the rulings of the shari`ah from the sources. The a`lam may be recognized in any of the three ways a mujtahid can. However, it is sometimes difficult for the Shi'ah `ulama' to distinguish whom among all the fuqaha' is the most learned, and, as a result, more than one mujtahid may be followed in taqlid at one time (though not, of course, by the same person), as is the case at present, but any such multiplicity does not result in any practical disagreement on legal matters within the Shi'ah community.
5. Why are there differences among the mujtahids in their legal opinions?
Many people wonder why it is that the mujtahids differ in their religious opinions, or fatwas, when the bases of their ijtihad are the same. Firstly, it should be said that any differences in the fatwas is hardly ever such as to be contradictory; it is almost impossible to find a case of one mujtahid saying some action is wajib and another saying it is haram.Take, for instance, the case of salatu 'l-jum`ah, the Friday prayer. All the Shi'ah `ulama' are of the opinion that in the time of the presence of the Imam this salat is obligatory on Fridays, because it is the Imam, or his representative, who has the right to call the people to Friday prayer; but they differ as to what is the correct course of action when the Imam is in Occultation. This difference of opinion does not, however, create any practical problem for the community.
The late Ayatullah as-Sayyid Muhsin al-Hakim (d. 1970) was one of the opinion that salatu 'l-jum`ah is not obligatory during the Occultation of the Imam, but it does not matter if someone performs it supposing that it is expected (of him), provided that he also prays the noon prayer (salatu 'z-zuhr). Ayatullah as-Sayyid Abu 'l-Qasim al-Khu'i says that "one can choose between performing salatu 'z-zuhr or salatu 'l-jum`ah, but once the latter is established with all its conditions (fulfilled), it is precautionarily obligatory to participate in it." Ayatullah as-Sayyid Ruhullah al-Khumayni says that "one can choose between performing salatu 'z-zuhr or salatu 'l-jum`ah, but if one chooses the latter it is advisable (mustahab) to precautionarily perform salatu 'z-zuhr also." Although there are these differences in the opinions of these mujtahids, there is no clash that would, for example, prevent the follower (muqallid) of one of them participating in salatu 'l-jum`ah if it were established.
Secondly, it should be observed that the existence of differences in scientific opinions is not to be taken as a sign of a substantial defect in the quest for knowledge and a reason for abandoning it altogether; it is, rather, a sign that knowledge moves in progressive steps towards perfection. Differences of opinions are to be found in all sciences, not just in fiqh. There may, for example, be more than one opinion about the therapy for a particular patient's disease, and all of these opinions may be superseded later on by the development of new methods of dealing with that disease. Thus these observations can be seen to be relevant not only to differences between the opinions of contemporary scientists but also to historical differences, and all these differences should be regarded as signs of the dynamism within a science and stages to be passed in its route to perfection.
It should be remembered that the mujtahid formulates his opinions after pushing his research and study as far as he can; that is all that is expected of him, for he is neither inerrant nor an `alim bi 'l-ghayb (knower of the unseen). The muqallid is enjoined to follow his opinions. So, even if the mujtahid's fatwa is not actually in agreement with Allah's real command, neither he will be punished on the Day of Judgement for having issued the fatwa, nor will his muqallid for having acted according to it, for both will have done what was commanded of them and what was humanly possible for them to do.
Ijtihad
The purpose in performing ijtihâd is to try to derive and interpret new rules from the Qur’an by analogy, i.e. by comparing the ayats and hadiths with implied meanings to overtly expressed ones. For instance, the meaning of the ayat commanding to obey your parents is, “Do not say, ‘Fie on you’, to them!” No mention is made to battery or invective. Since the exclamation “Fie on you,” which is by far milder than these forms of maltreatment, is expressed literally, mujtahids have deduced by ijtihâd that it must certainly be haram (forbidden) to beat or curse or insult one’s parents.Likewise, the Qur’an literally prohibits consumption of wine, without naming the other hard drinks. The reason for the prohibition of wine is that it blurs one’s mind and suspends one’s mental activities, as is understood from the expression used in the ayat. Hence, mujtahids have deduced by way of ijtihâd that all sorts of drinks carrying the features that cause wine must be forbidden as well; so they have stated that all sorts of intoxicants are haram. It is indicated that Allah commands to ‘do ijtihâd’ in the Qur’an. It is understood from various ayat that scholars of high grade and profound knowledge have been enjoined that they should perform ijtihâd. Then, ijtihâd is (an Islamic commandment called) farz enjoined on people in possession of full authority, eligibility and expertise, i.e. those who have the ability and capacity to understand the rules and matters hidden in the ayats and hadiths whose meanings cannot be understood clearly, by way of analogy, deduction and induction from their significations, tenors of discourse and denotations.
In early Islam ijtihad was a commonly used legal practice, and was well integrated with falsafa. It slowly fell out of practice for several reasons, most notably the efforts of Asharite theologians from the 12th century, who saw it as leading to errors of over-confidence in judgement since the time of al-Ghazali. He was the most notable of the Asharites and his work, The Incoherence of the Philosophers, was the most celebrated statement of this view.
It is debated whether Al-Ghazali was observing or creating the so-called "closure of the door of ijtihad". Some say this had occurred by the beginning of the 10th century CE, a couple of centuries after the finalizing of the major collections of hadith. In the words of Joseph Schacht: "hence a consensus gradually established itself to the effect that from that time onwards no one could be deemed to have the necessary qualifications for independent reasoning in religious law, and that all future activity would have to be confined to the explanation, application, and, at the most, interpretation of the doctrine as it had been laid down once and for all." This theory has been put in question recently by Wael Hallaq, who writes that there was also always a minority that claimed that the closing of the door is wrong, and a properly qualified scholar must have the right to perform ijtihad, at all times, not only up until the four schools of law were defined.
What is clear is that long after the 10th century the principles of ijtihad continued to be discussed in the Islamic legal literature, and other Asharites continued to argue with their Mutazilite rivals about its applicability to sciences.
Al-Amidi (1233) mentions twelve common controversies about ijtihad in his book about usul al-fiqh (the theory of Islamic law), amongst others, the question if the Prophet himself depended on ijtihad and if it should be allowed for a mujtahid to follow taqleed.
In Islamic political theory, ijtihad is often counted as one of the essential qualifications of the caliph, e.g. by Al-Baghdadi (1037) or Al-Mawardi (1058). Al-Ghazali dispenses with this qualification in his legal theory and delegates the exercise of ijtihad to the ulema.
Ironically, the loss of its application in law seems to have also led to its loss in philosophy and the sciences, which most historians think caused Muslim societies to stagnate before the 1492 fall of al-Andalus, after which Muslim works were translated and led in part to The Renaissance revival of Classical works, using improved methods, although the Muslims themselves were no longer using these methods in their daily life at all.
Qualifications of a mujtahid
A mujtahid is an Islamic scholar, competent to interpret divine law (sharia) in practical situations using ijtihad (independent thought). In some, but not all, Islamic traditions, a mujtahid can specialise in a branch of sharia - economic or family law for example.The qualifications for a mujtahid were set out by Abu’l Husayn al-Basri (died 467 AH / 1083 CE ) in “al Mu’tamad fi Usul al-Fiqh” and accepted by later Sunni scholars, including al-Ghazali. These qualifications can be summed up as (i)an understanding of the objectives of the sharia, and (ii) a knowledge of its sources and methods of deduction.
They include:
• a competence in the Arabic language which allows him/her to have a correct understanding of the Qur’an . That is, s/he must appreciate the subtleties of the language so as to be able to draw accurate deductions from the “clear and un-crooked Arabic” of this infallible source, and that of the sunnah.
• an adequate knowledge of the Meccan and Medinese contents of the Qu'ran, the events surrounding their revelation and the incidences of abrogation (suspending or repealing a ruling) revealed therein. S/he must be fully acquainted with its legal contents (the ayat al-ahkam) - some 500 verses, according to al-Ghazali. S/he need not have a detailed knowledge the narratives and parables, nor of the sections relating to the hereafter, but s/he must be able to use these to infer a legal rule. S/he needs to be acquainted with all the classical commentaries on the ayat al-ahkam, especially the views of the Companions of the Prophet .
• an adequate knowledge of the sunnah, especially those related to his specialisation. S/he needs to know the relative reliability of the narrators of the hadith, and be able to distinguish between the reliable from the weak. S/he needs to have a thorough knowledge of incidences of abrogation, distinguish between the general and specific, the absolute and the qualified. One estimate (by Ahmad ibn Hanbal) suggests that 1,200 hadith need to be known.
• s/he should be able to verify the consensus ijma of the Companions of the Prophet, the successors and the leading imams and mujtahideen of the past, especially with regard to his/her specialisation. Complementary to this, s/he should be familiar with the issues on which there is no consensus.
• s/he should have a thorough knowledge of the rules and procedures for reasoning by analogy (qiyas) so s/he can apply revealed law to an unprecedented case.
• s/he should understand the revealed purposes of sharia, which relate to "considerations of public interest", including the Five Pillars protection of "life, religion, intellect, lineage" and property. S/he should also understand the general maxims for the interpretation of sharia, which include the "removal of hardship", that "certainty must prevail over doubt", and the achievement of a balance between unnecessary rigidity and too free an interpretation.
• s/he must practice what s/he preaches, that is s/he must be an upright person whose judgement people can trust/
Some Islamic traditions consider that these high conditions cannot be met by anyone nowadays, while for others - especially the Shi’ite tradition - they are met in every generation.
Ijtihad in Twelver Shi'a Islam
Shi'a hawza students start their studies learning fiqh, kalam, hadith, tafsir, philosophy and Arabic literature. After mastering these levels they can start becoming mujtahid by studying advanced textbooks known as sat'h, and research courses known as kharij.The following points are presented in order to clarify the purpose of ijtihad:
• God is all-powerful, all-knowing.
• God created laws for humankind and only God has the authority to do so.
• God appointed messengers to convey the laws to humankind.
• God appointed imams to guide humankind about the laws.
• At present, neither the messenger (Muhammad), nor the imams (God-appointed leaders) are accessible. The current imam, al-Qaaim al-Muntadhar al-Mahdi, is in the Occultation.
• Therefore, qualified jurists have the duty to find God's law, not create God's laws.
• Therefore, ijtihad is the process of finding God's law from the Qur'an and the hadith using specific methods.
In modern times
Muslims living in the West are subject to secular laws of the state rather than Islamic law. In this context ijtihad becomes mainly a theoretical and ideological exercise without any legal force.
Conservative Muslims say that most Muslims do not have the training in legal sources to conduct ijtihad. They argue that this role was traditionally given to those who have studied for a number of years under a scholar. However, liberal movements within Islam generally argue that any Muslim can perform ijtihad, given that Islam has no generally accepted clerical hierarchy or bureaucratic organization.
Shi'ite jurists maintain that if a solution to a problem can not be found from the primary sources, then aql or reason should be given free rein to deduce a proper response from the primary sources. The process, whereby rational efforts are made by the jurist to arrive at an appropriate ruling, when applied is called ijtihad (literally meaning "exerting oneself"). Shi'ite jurists maintain that qiyas is a specific type of ijtihad. The Sunni Shafi' school of thought, however, holds that both qiyas and ijtihad are the same.
Sunni jurists accepted ijtihad as a mechanism for deducing rulings. They, however, announced an end to its practice during the thirteenth century. The reason for this was that centers of Islamic learning (such as Baghdad, Nishapur, and Bukhara) had fallen into the hands of the Mongols. Thus, the "doors to ijtihad", were closed. In Sunni Islam, thus, ijtihad was replaced by taqlid or the acceptance of doctrines developed previously.[29] Later in Sunni history, however, there were notable instances of jurists using reason to re-derive law from the first principles. One was Ibn Taymiyya (d. 728/1328), another was Ibn Rus̲h̲d (Averroes d. 595/1198).
There are many justifications, found in the Qur'an and sunnah, for the use of ijtihad. For example, during a conversation with Mu'ādh ibn Jabal, Muhammad asked the former how he would give judgments. Mu'ādh replied that he would refer first to the Qur'an, then to the Sunnah and finally commit to ijtihad to make his own judgment. Muhammad approved of this.
A lawyer who is qualified to use this source is called a mujtahid. The founders of the Sunni madhabs (schools of law) were considered such lawyers. All mujtahid exercise at the same time the powers of a mufti and can give fatwa. Some mujtahid have claimed to be muj̲addid, or "renewer of religion." Such persons are thought to appear in every century. In Shi'ite Islam they are regarded as the spokespersons of the hidden Imam.
Urf
The term urf, meaning "to know", refers to the customs and practices of a given society. Although this was not formally included in Islamic law, the Sharia recognizes customs that prevailed at the time of Muhammad but were not abrogated by the Qur'an or the tradition (called "Divine silence"). Practices later innovated are also justified, since Islamic tradition says what the people, in general, consider good is also considered as such by God. According to some sources, urf holds as much authority as ijma (consensus), and more than qiyas (analogical deduction). Urf is the Islamic equivalent of "common law".Urf was first recognized by Abū Yūsuf (d. 182/798), an early leader of the anafī school. However, it was considered part of the sunnah, and not as formal source. Later al-al-Sarakhsī (d. 483/1090), opposed it, holding that custom cannot prevail over a written text.
According to Sunni jurisprudence, in the application of urf, custom that is accepted into law should be commonly prevalent in the region, not merely in an isolated locality. If it is in absolute opposition to Islamic texts, custom is disregarded. However, if it is in opposition to qiyas (analogical deduction), custom is given preference. Jurists also tend to, with caution, give precedence to custom over doctoral opinions of highly esteemed scholars. Shia does not consider custom as a source of jurisprudence.
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Divorce under Muslim Law:
Firm union of the husband and wife is a necessary condition for a happy family life. Islam therefore, insists upon the subsistence of a marriage and prescribes that breach of marriage contract should be avoided. Initially no marriage is contracted to be dissolved but in unfortunate circumstances the matrimonial contract is broken.
Muslim Marriage:
Nikah in pre Islamic Arabia, meant different forms of sex relationship between a man and a woman established on certain terms, in pre Islamic days,women were treated as chattels, and were not given any right of inheritance and were absolutely dependent. it was prophet mohammad who brought about a complete change in the position of women.
Muslim women's right for dissolution of marriage:
Divorce among the ancient Arabs was easy and of frequent occurrence. In fact, this tendency has even persisted to some extent, in Islamic law. It was regarded by prophet to be the most hateful before the Almighty God of all permitted things; for it prevented conjugal happiness and interfered with the proper bringing up of children.
Guardianship Under Muslim Law:
The source of law of guardianship and custody are certain verses in the Koran and a few ahadis. The Koran, the alladis and other authorities on Muslim law emphatically speak of the guardianship of the property of the minor, the guardianship of the person is a mere inference.
Custody Under Muslim Law:
The first and foremost right to have the custody of children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has the right of custody so long as she is not disqualified.
Maintenance Under Muslim Laws:
Under the "Women (Protection Of- Rights On Divorce) Act, 1986" spells out objective of the Act as "the protection of the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands."
Concept of Marriage in Muslim Law:
Islam, unlike other religions is a strong advocate of marriage. There is no place of celibacy in Islam like the Roman Catholic priests & nuns. The Prophet has said “There is no Celibacy in Islam”.
Cruelty as a Matrimonial offence under Muslim Law:
Cruelty, in marital relationship, is a course of conduct of one spouse which adversely affecting the other. Cruelty may be mental or physical, intentional or unintentional. If it is physical, it is an issue of fact and degree.
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