How Does A Jurisprudent (faqih) Practise The Process Of Extrapolation?
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Most Muslims are ignorant with the meaning of Ijtihad and some even believe that the process of Ijtihad is related to a certain class of religious men (scholars) because of their religious position as is the case with the post of a pope in a church. Some also think that all laws of jurisprudence and legal opinions are only personal views of a faqih (Jurisprudent) who decides and appreciates laws according to his own judgements or justifies the events and accidents and an answer for certain considerations at random.
Certainly this kind of understanding represents the ignorance with Islamic law (Shari'ah), Jurisprudence and Ijtihad.
In Islam, both Jurisprudence Fiqh and Ijtihad have no relation with any personal opinion or qiyas.
Ijtihad is a complete scientific practice as defined before and has its own sources, proofs, principles, methods and precisions like all other fields of science and human knowledge such as logics, physics, mathematics ... etc.
As the logician, physicist and mathematician, in their respective fields, cannot coin laws or devise formulas from themselves at random, so does the true jurisprudent faqih who is also not able to draft or frame any law from himself because the nature of Shari'ah and its lawful and ideological structure (constitution) not only does not allow him to do that but also stands against those who forge or play with its laws.
Thus, any law which lacks proofs and principles from the Book and the sunnah and contradicts these scientific regulations is not an Islamic law, but is simply the low desire of that law maker against the spirit of the Shari'ah in order to deceive simple people.
Many people wonder why it is that the mujtahids differ at times in their fatwas, when the basis of their Ijtihad are the same. It should be observed that difference in scientific opinions is not to be taken as a sign of a substantial defect in the quest for knowledge. 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be more that one opinion about the therapy for a particular patient's ailment, and all of these opinions may be superseded later on by the development of new methods of dealing with that malady. Thus, this difference can be seen in the light of difference between scientists and should be regarded as 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 infallible nor the knower of the unseen.
The most important and dangerous question which remains unanswered is that why do the mujtahids differ among themselves in their religious opinions concerning an issue while there is one Shari'ah and its laws are one? Or why do the mujtahids' religious opinions differ concerning one subject?
To answer the question, we should differentiate between the two cases: the case in which the differences are founded on sound bases and lawful practice.
The second case is that the differences are made out of extemporaneous Ijtihad which is not founded on a sound base nor is scientific according to the spirit of Shari'ah and its sources.
The first difference is a natural result of a sound scientific reasoning and the mujtahids are excused for any short comings nor could they be punished on the day of Resurrection because their intention was sincere. It is the second case or difference which is neither Ijtihad nor Fiqh but it is a haphazard act against the spirit of Shari'ah and its principles, and the person responsible and his blind followers will be held responsible on the day of Resurrection.
The science of jurisprudence - as we explained - is similar to other sciences and human knowledges. As each of these sciences has its own rules, principles, the Islamic Shari'ah has its own principles and laws too.
As the physicist, in the previous example, tries to spend all his scientific efforts to discover laws related to physics within the framework of its nature, existence; or the logician who devotes all his efforts to discover the laws of thinking according to its intellectual basis, and it is not for them to coin laws of their own on mere fancy; so does a mujtahid (faqih), who has no ability or right to make laws and principles in a haphazard manner, and then try to legitimatize them. If anyone has dared to do this, then his laws should scientifically analyzed on the basis of the Qur'an and the sunnah.
The same idea is applied to a physicist and logician who sometimes makes a mistake in discovering scientific laws and rules and that this wrong discovery does not represent the true law of physics and logics but it represents the understanding of a scientist who made a mistake in identifying the law. The case is the same concerning the faqih who may sometimes make a mistake while practising the act of deriving Islamic laws from their original sources - the Book and the sunnah - but his mistake is not done blindly and at random but due to his insufficiency or inadequacy in his scientific tools or his self capacity which causes him to be unable in deriving legal law as it is formulated in the world of law and a divine Shari'ah.
This is the reason why the faqih is excused when he makes a mistake in arriving at the right law.
The main differences, whether being among the mujtahids of various Islamic schools of jurisprudence such as Hanafi, Shafi'i, Shi'ah, Maliki ... etc. or among the mujtahids of one school, belong to the following reasons:
1- Linguistic difference concerning some texts of the Holy Qur'an and Prophetic traditions due to the difference in grammar, meaning or in reading which leads to the difference in understanding and formulating laws. For example, their difference in the following verse of ablution when the Almighty Allah says:
"O you who believe, when you rise up for prayer, wash your f aces, and your hands up to the elbows, and wipe your heads, and your feet up to the ankles. And if you are under an obligation, then wash (yourselves) ..."
Holy Qur'an (5:6)
Whoever among the scholars considers the word 'feet' grammatically is joined to 'faces', makes its washing obligatory and whoever considers the word 'feet' as joined to 'heads' makes its wiping obligatory.
Or their difference in the meaning of 'quru" in the Almighty's saying:
"And the divorced women should keep themselves in waiting f or three monthly courses (quru'); ... "
Holy Qur'an (2:228)
Scholars (faqihs) differ among themselves concerning the linguistic meaning of the word 'quru"; some consider it as the period of cleanness (tuhur) while others explain it as period of menstruation (haydh). Each of these two opinions depend on their own linguistic interpretation or understanding because the word 'quru" in Arabic language is called for both the period of cleanness (tuhur) and the period of menstruation (haydh).
In accordance with this linguistic difference, scholars differ among themselves in waiting period of a divorced woman; is it three periods of cleanness - after divorce - or is it three complete months because what is meant by 'quru" is the period of menstruation (haydh) because the word haydh is a symbolic name for woman's monthly period by considering it as a monthly period which occurs once every month.
Another example, is (heir difference in reading the Almighty's saying 'hata yatharna' (until they have become clean) in the following verse:
"And they ask you about menstruation. Say it is a discomfort; therefore, keep aloof from the women during the menstruation and do not go near them until they have become clean; then when they have cleansed themselves, go in them as Allah has commanded you; Surely Allah loves those who turn much (to Him), and He loves those who purify themselves."
Holy Qur'an (2:222)
Whoever reads the word 'they have become clean' as stressed, does not allow to make sexual intercourse with women during the period of menstruation until they have become clean (i.e. to take the ritual bath) but whoever reads it without stress allows to make sexual intercourse with her whenever cleanness is achieved (i.e. the stopping of blood).
Or their difference concerning whether the command denotes (signifies) obligation or permission; whether a prohibition indicates prohibition or reprehensibility; whether the word denotes reality or figurative or their difference among the texts like generalization, restriction, universality or specification ... etc.
2. The difference concerning the meaning of a text (of the Book (Qur'an) and the Prophet's sunnah). Indeed scholars may differ in their understanding the signification of a text and its meaning like their difference in the following saying of Allah, the Most High:
"Divorce may be (pronounced) twice; then keep (them) in good fellowship or let (them) go with kindness ..."
Holy Qur'an (2:229)
"So if he divorces her (the third time), she shall not be lawful to him afterwards until she marries another husband. If he divorces her, there is no blame on them both if they return to each other (by marriage), ..."
Holy Qur'an (2:230)
Surely the reason of difference in understanding Allah's saying (divorce is twice) is the appearance of jurisprudential laws based on personal opinions, with some ruling prohibition of a wife to her husband if he divorces her three times by simply saying that 'you are divorced'; depending on his understanding of the above mentioned verse (divorce is twice). At the third time, after passing a greater separation, he has no right to marry her until she marries another husband and if the new husband divorces her, then only the first husband has the right to marry her after completion of her monthly waiting period.
But another group explains the Almighty's saying (divorce is twice) that divorce should be achieved practically but not simply orally in order that a wife becomes forbidden to her husband. The Holy Qur'an does not mean merely the repetition of word (verbal) but it means the real occurrence of the permitted divorce in which the wife returns to her husband's house twice. As a result, if a third divorce occurs, she becomes haram (forbidden) for him to remarry. For more explanation, if the husband divorces his wife, he has the right to marry her again; if she returns and he divorces her the second time, he also has the right to take her back but if she returns and he divorces her for the third time, she becomes haram for him to remarry unless all the following conditions are fulfilled:
a. She permanently remarries another man.
b. The wife and her second husband have sexual intercourse.
c. The second husband either divorces her or dies.
d. She completes her waiting period (iddah) for the second husband.
3. The difference whether some laws are repealed or not, for example their difference regarding the law of temporary marriage (mut'ah).
4. The difference caused by accepting or rejecting certain narrations or traditions. Scholars after a thorough scientific analysis of chain of transmitters, accept or reject a tradition.
Traditions which contradict the Qur'anic concept or a proved Prophetic tradition, are normally discarded as spurious. If the sources or the chain of transmitters are sound and the wordings in conformity with the Qur'an and the sunnah, then the tradition is as accepted as satisfactory.
5. The difference in considering the validity and invalidity of some of these sources and how to make use of them, such as: analogy, approbation, intellectual proofs, and consensus of opinions.
Some scholars depend on some of these sources in formulating laws while others refuse to do so pointing out the drawbacks of these sources.
Thus, this is the main reason behind the difference among the scholars of Islamic schools and the followers of opinion. Therefore, it is necessary to submit all disputed independent reasoning opinions among the Muslims to a thorough scientific criticism in order to remove the clouds of personal fanaticism and bigotry, and arrive at the ultimate truth keeping in the mind the aims of Islamic Shari'ah in reforming and uniting the Muslim communities.
At the end of this research, it is useful to point out the main principles which serve as necessary conditions in the process of juristic reasoning (Ijtihad). Among them are the following:
1- Certainly, the Book (Qur'an) and the Prophet" tradition (sunnah) are two main sources in formulating Islamic laws.
2- No one has the right to give his own Ijtihad in any case whenever there is a legal law in the Book of Allah and the Prophet's sunnah.
"... And whatever 'he Messenger gives you accept it, and whateve he forbids you, abstain (there from); ...)"
Holy Qur'an (59:7)
3- Only one judgement for one subject falling under the same circumstances and conditions, and which represents the pure legal opinion.
Therefore, in the process of juristic reasoning (Ijtihad), one should distinguish between aim and its result. The aim is to arrive at the truth and discover a true law. i.e. one law for the same subject but sometimes one finds the jurists having various laws for the same subject.
This does not mean the correctness of all ideas. Thus the truth of formulating of law depends on the soundness of the juristic reasoning or the system of Ijtihad and its sources. Therefore, not every source or method of reasoning is sound or has the capacity to formulate the right law.
4- The laws discovered by the faqih are only estimated but not final and should therefore be subjected to scientific discussion and strict legal scrutiny.
5- As a result of the previous point, we should understand that the process of juristic reasoning is a critical one in which discovered opinion undergoes a thorough accurate criticism, and evaluation in order to arrive at the correct law. No juristic reasoning could be considered sound if it is not subjected to criticism and scientific discussion.
6- Juristic reasoning should be pure and free from any fanaticism or internal and external factors such as political and sectarian tendencies and should be capable of withstanding scientific analysis and criticism. Therefore, Ijtihad is a scientific process based on research and inquiry.
As it is not in one's capacity to discover laws concerning physics and logics unless one is well acquainted with; the same idea can also be said concerning Ijtihad and formulating Islamic laws.
In order to be Faqih, one should be able to discover secondary legal laws from their original sources including the Holy Qur'an and the pure Prophetic tradition and other sources. In other words the Faqih is a person who has the greatest expert in deriving the rules of the Shari'ah from their sources. He should be familiar with Arabic language to an extent that he understands the Qur'an and the sunnah both linguistically and legally and which fits the spirit of revelation and the Message.
He should be absolutely well-acquainted with the Holy Qur'an and its sciences to an extent which enables him to understand and discover legal laws and judgements.
He should be well-versed with the Prophetic tradition to the extent he should distinguish true and satisfactory hadiths through studying them and their chain of transmitters in addition to his understanding of the sunnah and its circumstances and having the ability to discover laws which go with the Qur'anic concepts.
Among the qualities necessary for a Faqih is his being acquainted with what other scholars discover in their studies and sciences which help him in organizing and comprehending the jurisprudential thought and deepening the procedure of Ijtihad (exercising of independent judgements) like the science of principles of jurisprudence» dogmatic theology, logics, philosophy, jurisprudence ... etc.
Thus, the experts (fuqaha') of Shari'ah today upon whom Muslims depend for laws as did those before them, are the most excellent example in science, comprehension, and legislation.
Another important qualification which should be found in the Faqih (mujtahid) is faithfulness, loyalty, honesty, integrity, objectivity because he is the seeker of the truth and the one responsible before the Almighty Allah concerning his judgements, and legal rulings.
He should also be well known for intelligence, literary taste, an accurate comprehension manners and ability of discovering and extraction in order to practise his responsibility successfully and precisely.
Consequently, Ijtihad and its distinguished experts and scholars are those who spend all their efforts and abilities sincerely in order to supply instinctive knowledge of Ijtihad and the skill of discovering the laws.
In addition to this, Islamic law lays down that a mujtahid should be a free man and of legitimate birth who is past the age of puberty, and is sane, and just besides possessing other moral and legal qualities, such as piety and abstention from all that the Shari'ah forbids and fulfillment of all its obligation.
However, it is sometimes difficult to distinguish the most learned among the mujtahids 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 among the followers of the school of Ahlul-Bait.
Taqlid literally means 'to follow or imitate'. In Islamic legal terminology it means to follow a mujtahid or faqih in religious laws and commandments.
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. Whoever wants to build a house explains the basic idea of of his wishes 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 his expert's advice and act upon it.
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 grievance to 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.
The Holy Qur'an instructs Muslims to seek guidance from the 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 a Wajib Kifa'i. In the present instances, for example, the Islamic society has need of experts in the medical science, in physics, chemistry, engineering, education, and so forth, and as long as there is a lack of knowledge in these areas. It is an obligation for the community as a whole to acquire it, i.e. 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 field of Shari'ah cannot properly consider itself Islamic, and so it is an obligation for a group of persons from the same 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 Qur'anic verse which says:
"... why should not then a company from every party of them go forth that they may acquire (proper) understanding in the religion, and that they may warn their people when they return to them, that they may beware?"
Holy Qur'an (9:122)
Through the research, it became obvious for us that every act (deed) a man does or a situation in which he stands or anything with which he deals with should be according to a legal law of Islam.
It is also obligatory for every Muslim to be familiar with Islamic laws and decrees which organize man's activity and movements including performance of rituals and business dealings ... etc.
It is obligatory for every Muslim either to be a mujtahid or to follow a particular mujtahid who is well-qualified in giving verdicts and acts according to his rulings and thus performs his duty, organizes his activity and affairs related to him. The process of depending upon the mujtahid's religious rulings in performing one's religious duties is called Taqlid.
So taqlid is the relation of Islamic sciences between a mujtahid and the followers of his legal rulings. And it is a necessity which must be practised by the one who is not qualified as faqih or who has not reached the degree of Ijtihad. As long as this practice needs an expert (a mujtahid) in jurisprudence and Shari'ah, it becomes necessary to rely on him (the mujtahid) and ask of him whatever difficulty we face in Islamic jurisprudence in the same manner as we depend on a doctor, pharmacist, an expert in other sciences in which there is such need to consult them because of their knowledge in this domain concerning what should be done and what should be abstained from.
Therefore, it is obligatory for every mukalaf, to follow a mujtahid who is well-qualified in delivering verdicts in order to be able to act and practise according to the Creator's Will and Guidance.
Praise be to Allah, Lord of the worlds.
