The Concept of IJTIHAD and its contemporary application

Prepared and Presented by: MUFTI ZUBAIR BAYAT (MA)

IJTIHAD AN OVERVIEW
QUESTIONS:

Are the doors of Ijtihad closed? If so, when were the doors closed and by whom? What is Ijtihad? Who is permitted to do Ijtihad? Do present day Ulama do Ijtihad? If not, why not? What is the rationale permitting Ijtihad?
- by Mufti Zubair Bayat (MA) -

IJTIHAD AN OVERVIEW
QUESTIONS (more):

Why only the schools of 4 Mujtahids recognised? What are the actual functions of a Mujtahid? Is Ijtihad divisible? Will Ijtihad be able to solve contemporary problems facing the Ummah? Is Ijtihad a source of the Sharih, alongside others? Is Taqlid allowed; why have some condemned it?
- by Mufti Zubair Bayat (MA) -

IJTIHAD AN OVERVIEW
NEED FOR IJTIHAD:

Primary source of Law is Allah Almighty - legislates through Wahi - revelation Direct revelation Holy Quran +/- 500 verses Indirect revelation Prophet (sallallahu-alayhiwasallam) Hadith 2000 narrations This is last and final Sharih no further revelation till Qiyamah Yet situations/issues/problems continuously arise and are countless in number, hence Ijtihad required

- by Mufti Zubair Bayat (MA) -

IJTIHAD AN OVERVIEW
DEFINITION OF IJTIHAD: Literal/Lexical: Tremendous exertion; great striving; strenuous endeavour; expending maximum effort Technical: Applying maximum effort, with due process, to ascertain the law of Shariah by one who is competent to do so Common usage: Issuing a sound judgment or considered opinion Figurative meaning: Ijtihad of a Faqih referred to as Takhrij Ijtihad is NOT a source of law as commonly believed - it is an apptitude, process, instrument or methodology of interpretation

- by Mufti Zubair Bayat (MA) -

IJTIHAD AN OVERVIEW
CONNOTATIONS of definition: Ijtihad is the ability to interpret Divine Text by inferring new rulings, in order to relate it to changing conditions, and to thereby make the Shariah relevant for all times and eras Endeavour of qualified jurist to ascertain Shariah ruling on a legal issue through utmost intellectual exertion At all times must be in harmony with letter & spirit of Sharih Creates harmony between revelation & reason Involves the analytical study of texts with a view to infer principles, rules & precedents for application to new situations Entails element of speculation & probability (zann) as outcome could be erroneous, yet rewarding (Hadith) Must be consistent and constant throughout its application

- by Mufti Zubair Bayat (MA) -

IJTIHAD AN OVERVIEW
EVIDENCE FOR IJTIHAD - QURAN AND SUNNAH: Qurnic verses: Ankaboot 29/69; Taubah 9/122; Nisa 4/59; Nisa 4/83; Ambiya 21/7 Hadith texts: Hadith of Muaz (RA); Uqbah bin Aamir (RA); Ali (RA); Asr in Bani-Quraizah Rationale: as explained Ijtihad is Wajib for competent Mujtahid not allowed to make Taqleed

- by Mufti Zubair Bayat (MA) -

IJTIHAD AN OVERVIEW
METHODOLOGY OF IJTIHAD: HANAFIS: Qurn, Sunnah, Verdict of Sahaba (RA), Ijma, Qiyas, Istihsan, Urf, Dharoorah MALIKIS: Amal of Madinah, Masalih-Mursala SHAFIS: Qiyas only HAMBALIS: Fatwa of Tabieen Next 2 diagrams: Area of operation of Ijtihad
8
- by Mufti Zubair Bayat (MA) -

IJTIHAD AN OVERVIEW

Sharih Law
Law not mentioned Ijtihad Date known No Ijtihad Contradictory Date unknown Ijtihad Law mentioned Non-contradictory No Ijtihad

- by Mufti Zubair Bayat (MA) -

IJTIHAD AN OVERVIEW

Shariah Texts
Doubtful in Authenticity; Decisive in meaning

Decisive in authenticity & meaning

Decisive in Authenticity; not meaning

Doubtful in authenticity & meaning

No Ijtihad

Ijtihad

Ijtihad

Ijtihad

10

- by Mufti Zubair Bayat (MA) -

IJTIHAD AN OVERVIEW
QUALIFICATIONS FOR MUJTAHID: Arabic language complete mastery Quran detailed knowledge Sunnah in-depth learning Qiyas capability analytical, razor-sharp mind Maqasid-Sharih knowledge Piety, righteousness & compliance Inherent aptitude for Ijtihad God-given ability Popular acclaim & wide public acceptance

11

- by Mufti Zubair Bayat (MA) -

IJTIHAD AN OVERVIEW
DUTIES/TASKS OF A MUJTAHID: Discover law through literal interpretation (reading in) of texts dalaalat Extend law to new cases similar to existing cases in texts through Qiyas based on Illah Extend law to new cases not found in texts at all through Istihsan/Masalih based on Hikma All of this is practiced as a seamless activity
12
- by Mufti Zubair Bayat (MA) -

IJTIHAD AN OVERVIEW
Additional DUTIES OF A MUJTAHID: Deep knowledge of Nasikh-Mansookh (Discipline of Abrogation) Ability to exercise Tarjeeh (preference) and Jam (reconciliation of texts) Competency to comprehend aspects of Bayan in Divine texts
13
- by Mufti Zubair Bayat (MA) -

IJTIHAD AN OVERVIEW
IS IT POSSIBLE FOR AN ABSOLUTE MUJTAHID (MUTLAQ) TO EXIST TODAY? View 1: Not possible after 4 Imams -incorrect View 2: Possible if Allah wishes View 3: Exists for all times Hanbalis View 4: Lesser degree of Mujtahids exist

14

- by Mufti Zubair Bayat (MA) -

IJTIHAD AN OVERVIEW
6 CATEGORIES OF MUJTAHIDS/FAQIHS: Mujtahid-Mutlaq Absolute Mujtahid 4 Imams & others set principles of school/jurisprudence Mujtahid-fil-Mazhab Jurists within school deal with substantive aspects of law Mujtahid-fil-Masal Jurists within school deal with new issues of law not legislated Ashab-al-Takhrij Clarify existing law Ashab-al-Tarjeeh establish preference for a view Ashab-al-Tashih competent Faqihs; Ulama-al-Mutabahireen Muqallideen lay general public including non-specialist Ulama

15

- by Mufti Zubair Bayat (MA) -

IJTIHAD AN OVERVIEW
GENERAL OBSERVATIONS: Distinction between Ijtihad, Takhrij & Taqlid; distinction between Mujtahid, Faqih/Mufti & Muqallid essential Mujtahids legislate law for the 1st time! Mujtahid built system; Faqih extends system in consistent manner Faqihs do not legislate; use existing framework to issue verdicts, like Judge Judges use statutes & precedents for judgment Faqih fulfils similar role as judge

16

- by Mufti Zubair Bayat (MA) -

IJTIHAD AN OVERVIEW
ROLE & DUTIES OF A FAQIH/MUFTI: Implement & extend Principles of law (Usool) in new situations Implement & extend Maxims of law (Qawaid-Kulliah) in contemporary situations Develop 3rd mode of Ijtihad value-oriented Fiqh theory of values & interests Maqasid-as-Sharih All of the above must be consistent within existing schools

17

- by Mufti Zubair Bayat (MA) -

IJTIHAD AN OVERVIEW
CONTEMPORARY APPLICATION OF IJTIHAD: Urgent need for Ijtihad in current age to solve political, economical, medical, social, educational problems Due to complexities and specialisation, need for collective Ijtihad through association of jurists Establishment of Fiqh Councils to exercise Ijtihad Endeavours of Fiqh Councils & Jurists

18

- by Mufti Zubair Bayat (MA) -

IJTIHAD AN OVERVIEW
CONTEMPORARY IJTIHADI RULINGS: Islamic banking & finance Bio-medical issues Ibadah-based problems Political issues

19

- by Mufti Zubair Bayat (MA) -

IJTIHAD AN OVERVIEW
??? Questions ??? SHUKRAN

THE END
Contact details: www.darulihsan.com zb@darulihsan.com +27-837861060 (cell) +27-31-5776012 (fax)

20

- by Mufti Zubair Bayat (MA) -