Ijtihad
Ijtihad is the deduction of rulings from their sources, mainly the Qur'an and ahadith. This word, like the word jihad, is derived from the Arabic root juhd. Ijtihad is used to describe the striving or exertion required for any activity that entails a measure of hardship. While juhd is used to imply the carrying of a heavy load, ijtihad refers to intellectual exertion.
To be able to undertake ijtihad, a 'learned counsel' - faqih or mujtahid needs experience and to be well versed in the statements of both the Prophet (S) and error-free Imams (‘a) in addition to being well acquainted with the Holy Qur'an. Legal opinions that result from the process of ijtihad are referred to as fatawa.
Imam al-Sadiq (‘a) is recorded to have said, 'To provide legal opinions on points of Islamic law, the mujtahid needs to have1:
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Comprehensive understanding of the Qur'an.
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Comprehensive understanding of the ahadith.
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Cognition of the inward meaning of matters directly or indirectly implied.
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Comprehensive understanding of etiquette and good manners.
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Comprehensive understanding of consensuses and disagreements in Islamic Law, as well as the arguments upon which these are based.
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The ability to supply and justify their independent opinions and conclusions.
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The public's acknowledgement of their being righteous people.
Like the oceans, Islamic law does not yield its treasure easily. Not infrequently, the inexperienced, ill-prepared and ill-equipped are drowned in their attempts to fathom its depths.
As considerable expertise and knowledge are needed to undertake ijtihad in the cultural, economic, legal, political and socio-ethical spheres, those mujtahids whom others acknowledge are best equipped to undertake ijtihad receive the greatest following.
Principles Of Jurisprudence
Ijtihad is based on Principles of Islamic Law - Usul al-Fiqh. Attendees of theological colleges - Hawzah - concentrate on the study of three major textbooks - and those who attain the highest levels of Al-Bahth al-Kharij often memorize them.
These textbooks are:
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Fara'id al-Usul by Shaykh Murtada al-Ansari, d. 1281AH
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Kifayat al-Usul by Muhammad Kazim al-Khorasani, d. 1329 AH, and
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Durus fi’ilm al-Usul by Muhammad Baqir al Sadr, martyred 1380 AH
After five years of in-depth study of these treatises, the most able students are invited to enrol in Al-Bahth al-Kharij courses. Even though this requires a further eight to twelve years' study, it is only via this lengthy process that the most intelligent and intellectually able students can acquire the experience needed to enable them to undertake ijtihad in the future.
The Significance Of Hadith
According to the Thaqalain hadith, two precious and significant elements safeguard the Muslim nation from being led astray. These elements of guidance and prosperity are the Qur'an and the guidance of the error-free Imams (‘a).
Imam al-Sadiq (‘a) said, ‘It is our duty to teach you the principles and it is your duty to explain the ramifications of legal rulings.’2
He refers here to the need for a consistent examination of possible ramifications that may result from the application of the trustworthy principles established by the Imams (‘a).
Based on the above, scholars need to investigate all ahadith for the following:
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Firstly, the authenticity of all narrations needs to be verified to ensure that no omission or addition has been made to the original text, and secondly, the reliability of the narrators must be ascertained.
Allamah Mameqani discusses the lives and reputations of hadith narrators and the opinions of those who have criticized them in his book Tanqih Al-Maqal fi ilm al-Rijal (Verification). While this provides one yardstick by which to discriminate and determine which narrators are considered reliable, Ayatollah al-Khoei (qs) later produced a 24-volume work on this subject entitled Mu’jam Rijal al Hadith (Encyclopaedia of Hadith Narrators).
Even though it takes many hours to confirm the reliability of each narrator of a particular Hadith, no mujtahid is able to certify it as being genuine and accurate without first having undertaken that process.
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Because some ahadith are more didactic than others, mujtahids need to differentiate between the text of a hadith and its context, to discern its literal and metaphorical meanings, and to understand which parts of the text are general and which are specific; which are conditional and which unconditional. Without the ability to do this they cannot arrive at secure, sound conclusions. For example, the Prophet's advice to men not to wear robes that trail on the ground is a reference to the common Arab under standing that to do this is symptomatic of arrogance, pride and the flaunting of wealth. However, those who only understood what was said in a literal sense took it to mean that the length of robes should never be longer than a full hand's-width above the ankle.
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As the Holy Qur'an is a book of guidance that explains everything (Qur'an 16:89), the mujtahid needs to be able to find an explanation - for every subject raised in the Qur'an - in the other ayat of the Qur'an.
Clearly, in the absence of a comprehensive knowledge of the Qur'an, this is not a possibility and to rely solely on one's own interpretation of any particular ayah is considered to be an act of gross ignorance.
Comprehensive Study
Contrary to what many think, the great Imamiyah mujtahids examined the works of all the other schools of Islamic law. For example, ‘Allamah Hilli (who died in 726 AH) recorded in his ljazah to Sayyid Muhanna bin Sinan (see Bihar al-Anwar Vol. 107, p. 146) that, in addition to having studied Al-Kulayni's Al-Kafi, the works of Shaykh Al-Tusi and Shaykh Al-Saduq, he had also studied Malik bin Anas's Al-Muwatta’, the Sahih of al-Bukhari, the Musnad of Ahmad Ibn Hanbal and the Sunan of abi Dawud.
He also studied under the Shafi’i jurist Najdmuddin Umar Katibi (d. 675 AH), and was so well acquainted with Mu’tazilite theology and methodology that, in her PhD thesis, The Theology of Allamah Hilli, Sabine Schmidtke opined his theological works to be a marriage of Mu’tazilite and Imamiyah theology.
Although I do not agree with that opinion, her work nevertheless illustrates that Allamah Hilli did not limit his studies to one sectarian source. In his treatise on comparative Islamic law Tadhkerat al-Fuqaha, Allamah Hilli presents opinions of the Imamiyah, Hanafi, Maliki, Shafi’i and Hanbali schools of law on a wide variety of subjects.
Allamah Sharafuddin did not either restrict his investigation of hadith to Shi’ah teachers, as is evidenced in his book “The Right Path (Al-Muraj’at)3”. He travelled to Damascus, Makkah, Madinah and Cairo to obtain the authorization of a diversity of traditionalist scholars.
How To Deal With New Subjects
When a mujtahid is faced with new subjects that need the clarification of Islamic law, two methodologies are available.
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To apply the basis of a known subject to another subject, and provide the same ruling. This, referred to as analogy - qiyas - was strongly supported by Abu-Hanifa. Alternatively, the 'spirit of the text' rather than the text itself may be examined. This is referred to as 'Study of the Objectives of Legislation' rather than the 'Study of that which is Apparent' - an approach strongly supported by Maliki jurists and propounded by Imam Shatibi in his book Al-Muwafaqat fi Maqasid al-Shari’ah. Dr Ahmad Raysuni presented his study on this subject for his doctoral thesis.4
The majority of Sunni scholars regard the approach outlined by Shatibi to be the most practical methodology by which to reform ijtihad.
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The Imamiyah, on the other hand, recognize intellectual reasoning as being the fourth source of Islamic law. (The consensus of learned scholars who reflect the opinion of the error-free Imams is the third source.) For the purpose of ijtihad they undertake comprehensive examination of each hadith and - in conjunction with this valuable tool - see little purpose or benefit in using qiyas or Shatibi's methodology.
Furthermore, their lengthy debates have proven qiyas and 'The Objectives of Legisla tion' to be both inefficient and implausible tools for ijtihad. Detailed evidence to support their view was presented by Sayyid Muammad Taqi Hakim (qs) in his Principles of Comparative Jurisprudence - Al-Usul-alAmmah lil Fiqh al-Muqarin.
Conditions Of Ijtihad
A mujtahid must be a competent Muslim of sound mind with the intellectual capacity to form independent judgements. In many ahadith, the mujtahid is regarded as being a successor to the Prophet (S). This is in respect of the ability to elaborate on rulings and to guide the community to 'things that please Allah'.
Trustworthiness, reliability and righteousness are thus key qualities of a mujtahid. Those who fail to meet one or more of these requirements are disqualified from undertaking ijtihad.
Shahid II (Imami mujtahid d. 966 AH) said, 'Knowledge of the following six introductory studies is essential in the process of ijtihad: Theology, Principles of Jurisprudence, Arabic grammar, Morphology, Lexicology and an unquestionable comprehension of the Qur'an, Sunnah, Consensus and Intellectual reasoning.'5
Ibn abd al-Shakur (Hanafi scholar) said, 'Ijtihad requires Faith, knowledge of the Qur'an, at least of the 500 ayat that deal with rulings, knowledge of the Sunnah - at least of the 1,200 ahadith that deal with jurisprudence, ability to identify the authenticity of narrators and a familiarity with consensus. However, being righteous is only required for those who accept his fatawa.'6
Al-Ghazali (Shafi’i scholar d. 505 AH) said, 'While eight branches of knowledge are needed for ijtihad, four are essential, the others being only introductory. The essentials are, Qur'an, Sunnah, Consensus and Intellect. The introductory ones, Methodology of Argument, Arabic Grammar, knowledge of 'abrogator and the abrogated', and ability to recognize authentic hadith.'7
Al-Qarafi (Maliki scholar) offered a similar statement to Al-Ghazali's in his book Sharh Tanqih al-Fusul, p. 194.
Ibn Qudamah (Hanbali scholar) said, 'The mujtahid must have complete comprehension of the Qur'an, Sunnah, Consensus, Presumption of Continuity and Analogy. As for knowledge of the Qur'an, he must be well versed in the 500 ayat concerned with rulings, not necessarily by having committed them to memory, but knowledge of how to refer to them when needed.
As for Sunnah, he must be well acquainted with the ahadith that concern rulings, regardless of them being many or limited. Knowing that a hadith in question has not been abrogated is sufficient for the process of ijtihad. Differentiation between strong and weak ahadith is a further requirement.
As for consensus, it is sufficient to know if the issue in question has been dealt with by previous mujtahids or if no precedent exists.
Knowledge of Grammar and Arabic language, ability to recognize both explicit and ambivalent texts, what is literal and what metaphorical, what is general and what is specific, are essential requirements in the process of ijtihad.8
Al-Shawkani (Zaidi scholar) said, 'There are five requirements for a mujtahid:
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Comprehensive knowledge of the Qur'an and ahadith;
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Comprehensive knowledge of the issues that apply to consensus;
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Comprehensive acquaintance with the Arabic language to enable him to arrive at conclusions from the Qur'an and ahadith;
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Comprehensive knowledge of the Principles of Jurisprudence; and
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Ability to recognize the abrogator and the abrogated.'9
It is easy to see that all the Schools of Islamic Law have most of the requirements for a mujtahid in common, but refer to them in greater or lesser detail.
Sources For Islamic Law Accepted By Various Schools Of Thought

Examples Of The Various Views
1. Insurance And Assurance
Although the concept of insurance is relatively new, marine insurance was introduced to England by the Lombards sometime in the 16th century. It only grew in importance after the English Civil War when London became a centre of trade.
Because the Royal Exchange, the traditional meeting place of merchants, lacked comforts and convenience, merchants frequently eschewed it for the comforts of the new coffee houses that began to appear at that time. In contrast to inns and taverns, these proved congenial meeting places for serious and clear-headed discussion.
The insurance business in those days involved an agent or 'insurance office', hawking a new policy around the city for subscription, by those with private means prepared to take a share of the risk in return for a portion of the premium. An insurance office's reputation hung upon its ability to ensure that policies were only underwritten by men of sufficient financial integrity who could meet their share of any claim.
Little is known of Mr Lloyd or the coffee house he opened in 1688, but his clientele must have consisted of the most influential ship's captains, owners and overseas trade merchants, for it to become such an important underwriting centre. The first record of Lloyd's coffee house was in a London Gazette advertisement in the late 1680s in which it was announced that a reward would be paid there, in return for information on stolen watches.
For some years, intermittent attempts were made to set up a securely based insurance corporation (or chartered company), to bring some regularity to the disorderly commercial world of the early Georgian period.
Too much wealth and too little employment had given rise to wild investment speculation that culminated in the 1720 collapse of the South Sea Company and the ruination of thousands of investors. The 'South Sea Bubble' was the most spectacular of many frauds and failures of corporate enterprise, at a time when disreputable companies ballooned and burst overnight.
Thus, in 1720, the British Parliament enacted a piece of legislation (the 'Bubble Act') that granted charters to the Royal Exchange Assurance and the London Assurance Companies, and prohibited marine insurance by any other corporation or business partnership. After a period of evolution this culminated in the incorporation of Lloyd's by Act of Parliament in 1871.
Today, legislation to cover insurance is part of the fabric of every civilized country.
However, when this type of business found its way to the Muslim world, towards the end of the 19th century, when exports of cotton from Egypt needed to be insured against the risk of fire, it drew forth a wide variety of reaction from Muslim jurists.
One opinion is that insurance is prohibited in Islam. This is supported by many jurists in Egypt, in addition to a few in Najaf and Qum, who base their opinions on one or other of the following justifications.
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That no such contract was known at the time of the Prophet (S), the companions or the Imams (‘a). They claim that only contracts of the types known by the above categories can be considered to be binding.
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Insurance leads to ambiguity and lack of information. Despite predetermined premiums being paid for x years, the final amount of any payout is not predetermined and, indeed, may or may not even occur.
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Because insurance is similar to earned interest - riba. As riba is prohibited, it is analogous that insurance needs also to be. When a person pays £500 per annum to insure their car, they might receive £5,000 if it is written off. Such 'profiteering' ought to be regarded as earned interest.
It is a matter of fact that riba applies specifically to loans, while 'profit', which may or may not result from an insurance contract, has nothing whatever to do with borrowing or lending.
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Insurance contains risk, uncertainty and hazard - gharar. As it is reported in one hadith that 'The Prophet (S) prohibited sales in which gharar plays any part', it follows that insurance cannot be permissible either.
A second opinion is that insurance represents a type of contract that was known at the time of the Prophet (S). This was suggested by a great jurist of Najaf, Shaykh Husayn Hilli, whose lectures, compiled by Sayyid Izzudin Bahr al-Ulum, appeared as 'Discourses on Jurisprudence' - Buhuth Fiqhiyah. He suggested that insurance be recognized as a mutual agreement - sulh - or as a conditional gift.
Ayatollah al-Khoei accepted his opinion regarding conditional gifts and, according to his ruling, the same conditions apply to insurance as apply to such gifts. That is to say, the insured should regard, and undertake to 'gift' premium instalments, with the clear understanding that the insurer will return the amount mentioned in the policy, as and when the policy conditions apply.
A third opinion is that insurance is indeed an independent contract which meets all the requirements needed for agreements to be valid in Islamic Law. None of the justifications for its invalidity apply as insurance agreements are of the type made at the time of the Prophet (S). This is Ayatollah Sistani's opinion and I encourage that view with my advanced students. This case was put forward by Sayyid Abdul Hadi Hakim, who obtained a PhD in Islamic Law, on the basis of his 500 - page dissertation on this matter.
2. In Vitro Fertilization - IVF
When artificial insemination was first discussed, Muslim jurists expressed differing opinions.
The first opinion was that it is Haram for one of the following reasons:
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That it would entail non-mahram doctors touching the pudenda of Muslim women.
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That it would require masturbation to obtain semen.
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And, according to many Sunni jurists, because they thought it akin to fornication - zina. They based their opinion the analogy (qiyas), that as adultery is a major and prohibited sin, IVF must be prohibited too.
The second opinion rejects the validity of qiyas for this subject matter on the basis of the technical meaning of the term zina. In Islamic law this refers specifically to an act of physical intercourse: to be precise, when a male inserts his penis into the vagina of a female who is not his wife. IVF clearly does not involve any such act.
As to members of a medical team touching the private parts of the subjects, we need to consider and weigh the necessity of both of these acts:
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to help a woman desperate to conceive and fulfil her biological motherhood function,
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to involve a medical team. There are invariably sizeable sections in books on Principles of Jurisprudence, dedicated to the Table of Priorities - Tazahum. For certain categories, a mujtahid will refer to this in order to examine the priority of one circumstance over another. As for masturbation, there are alternative and permissible means to obtain semen and eggs.
Bahth al-Kharij-level students at the London hawzah regularly discuss the circumstances in which IVF can take place and the acceptability of surrogate motherhood.
One may use the needed fertilized eggs and request the others be destroyed. To be on the safe side, one should have someone witness that they are destroyed and not misused. Such action is not regarded as abortion, as by definition this can only occur after a fertilized egg is lodged in the womb.
3. Organ Donation, Cosmetic Surgery, Genetic Engineering
While all the above are relatively new to medical science, the first reaction of some jurists was clearly not favourable. Their one word on these subjects was 'no'. I do not propose we discuss the psychology behind that negative response but look, rather, in some depth at the sources of ijtihad.
Those who object to the above base their rejection on one ayah:
"And most certainly I will lead them astray and certainly I will arouse desires in them, and certainly I will bid them that they slit the ears of the cattle, and I will certainly command them that they alter the creation of Allah…" (Surah An-Nisa, 4:119).
To these jurists it is perfectly clear that those who conspire to change Allah's Creation, work in accord with Shaytan's plans.
However, if we examine this ayah we find:
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This ayah is to be read in the context of Qur'an:
"Allah has not appointed any Bahirah, Sa'ibah, Wasilah, and Ham, but those who disbelieve make up a lie " (Surah Al-Ma’idah, 5:103).
[Pre-Islamic superstitious belief demanded that domesticated beasts had their ears slit and be set free in particular circumstances. The terms above denoted their type and status.]
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Principles of jurisprudence clearly show that some ayat convey unrestricted and unconditional concepts - mutlaq - while other ayat refer to concepts which are restricted - muqayyad. It is not possible that the ayah that records Shaytan's desire to change Allah's Creation, is of the unrestricted type because that would suggest that any alteration of nature is unlawful - haram.
This would cover the construction of bridges, dams, tunnels through mountains, the digging of wells, diversion of river water to irrigate fields, or the extraction of teeth, to name but a few of the myriad things that alter Allah's Creation in one way or another. Not one jurist has ever deemed such acts haram - in spite of the fact that they clearly effect a change in Allah's Creation. Indeed, the use of henna to dye an elderly person's white beard is considered to be a sunnah, despite changing Allah's Creation in this way. We have therefore to conclude that the above rejection cannot be based upon Qur'an 4:119.
Also, books on the Principles of Jurisprudence include more or less comprehensive sections on Principles of Permissibility - Asalat allbadah - and the majority of jurists support such inclusions. Indeed, they refer to them when called upon to consider the permissibility of any new subject that has no clear prohibition in either Qur'an or ahadith.
However, we do not rule out the significance of moral debate regarding the above issues. As for organ donation, anyone may incorporate in her/his will the wish that specific organs or body parts be used to save the lives of Muslims who need them.
4. Games Of Chance
Gambling - qimar - is prohibited in Islam. Earnings based on games of chance, rather than on an individual's intellectual, entrepreneurial or physical efforts, are not permitted in Islamic law.
Allah tells us in the Qur'an:
"O' you who have Faith! Verily wine, gambling, idols, and (dividing by) arrows are an abomination of the Satan's work, so avoid it, that you may be succesful." (Surah Al-Ma’idah, 5:90).
The foundation of business in Islamic law cannot be based upon 'false means'. It is made clear in many ahadith that this Qur'anic term refers specifically to games of chance. As lotteries are unashamed games of chance they are clearly prohibited to Muslims. However, in-depth analysis of this subject resulted in both Ayatollah al-Khoei and Ayatollah Sistani making the following distinctions:
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If a person spends one dollar with the intention of acquiring an opportunity to win the jackpot in a game of chance, it is clearly gambling and prohibited in Islam.
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If, on the other hand, that person's intention is to donate the dollar to the charities that are supported by the lottery, and they themselves have no intention to participate in the lottery and do not anticipate any return whatever, any gains that might result from their action would be considered lawful or halal.
To arrive at the above opinion, one must appreciate that in Islamic law, all agreements, contracts and financial involvement are considered on the basis of intention (see chapter 15). The merit of all acts of worship is based on the intention to draw closer to Allah - Qasd al-Qurbah. An intention may be to gamble or make a donation - and different rulings apply to different intentions. This is the foundation upon which my opinion on this subject is based.
Another viewpoint regarding this subject comes from Ayatollah Sayyid Muhammad Sa’eed Hakim, who views lottery tickets as lawfully exchangeable items and thus perfectly legal to purchase.
These are but a few examples of contributions mujtahids make in considering contemporary issues that require firm, clear responses for the Muslim community. It is obvious that when subjects call forth a wide variety of opinions, one should defer to the opinion of the jurist with the greatest experience, intellectual ability and wisdom - described in books of fatawa as 'Following the most learned'.
- 1. Misbah al-Shari’ah Chapter 63, p.355.
- 2. Bihar al-Anwar Vol. 2, p.245.
- 3. Available online at: https://www.al-islam.org/al-murajaat-abd-al-husayn-sharaf-al-din-al-musawi
- 4. Raysuni, Ahmad: Imam Shatibi's Theory of The Higher Objectives and Intents of Islamic Law, The International Institute of Islamic Thought 2006, Herndon, USA.
- 5. Al-Rawdah al-Bahiya - The Brilliant Garden - Vol. 1, p. .236.
- 6. Musallam al-Thubut Vol. 2, p. 320
- 7. Mustasfa al Usul Vol. 2, p. 101-103.
- 8. Rawdat al-Nazer, p. 190.
- 9. lrshad al-Fuhul, p. 250.