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Transcript of Ijtihad
"The exertion of mental energy in the search for a legal opinion to the extent that the faculties of the jurist become incapable of further effort." (Hallaq)
“the maximum effort expended by the jurist to master and apply the principles and the rules of usul al-fiqh (legal theory) for the purpose of discovering God’s law.” (Hallaq)
Methodology of a Mujtahid
“The Quran and the Sunna of the Prophet do not, as a rule, specify the law as it might be stated in specialized law manuals, but only contain some rulings (ahkam; pl. of hukm) and indications (dalalat or amiart) that lead to the causes of (‘ilal) of these rulings.” (Hallaq)
The method of Qiyas is employed to discover the judgment (hukm) of an unprecedented case (far’) but mujtahid has to go through specific steps before attempting to reach an original reasoning:
1. Search for the judgment in the works of renowned jurists
2. Look for a similar case in which legal acts are different but legal facts are the same
3. Turn to Quran, the Sunna or Ijma’ for a precedent that has a “illa identical to that of the far’
4. When this is reached, the mujtahid is to apply the principles of qiyas in order to reach the ruling of the case in question.
"The primary objective of legal theory, therefore, was to lay down a coherent system of principles through which a qualified jurist could extract rulings for novel cases" (Hallaq)
Ijtihad and Qiyas
- Sunnis "identify the legitimate function of ijtihad with the use of qiyas"
- Al-Shafi˓i: ijtihad and qiyas are two names for the same process
- Ijtihād, however,should not to be identified solely with qiyās.
- Some Shīʿī scholars have adopted certain more "strictly rational operations as valid methods of legal inquiry, which they have placed under the heading of ʿaql ("reason").
Who Practices Ijtihad
A “sacred right to find [one’s] own solutions to legal problems.”
The question of the right to ijtihad arose only after “the formative period of Islamic law” where it was considered that only “great scholars of the past” had the right to ijtihad.” (Scacht)
Abu Husayn al-Basri’s (d. 436/1044) al-Mu’tamad fi Usul al-Fiqh
1. A knowledge of the Qur’an, the sunna of the prophet and the principles of inference (istidlal)
2. Qiyas: involves the practical knowledge of all rules related to ‘illa, asl (the legal parts in the texts), far’, and hukm and to “solve contradictions and understand intricate exegetical matters” the mujtahid must possess a thorough knowledge of the principles of majaz (metaphors), particularization and abrogation.
3. A knowledge of ‘urf
4. To know at least the furu’ of his own school as no jurist is allowed to reinvestigate a case the ruling of which has already been derived.
The Closing of the Door of Ijtihad
"By the beginning of the fourth century of the hijra (about A. D. 900), however, the point had been reached when the scholars of all schools felt that all essential questions had been thoroughly discussed and finally settled, and a consensus gradually established itself to the effect that from that time onwards no one might be deemed to have the necessary qualifications for independent reasoning in law, and that all future activity would have to be confined to the explanation, application, and, at most, interpretation of the doctrine as it had been laid down once and for all. This “closing of the door of ijtihad, as it was called, amounted to the demand for taklid […] which now came to mean the unquestioning acceptance of the doctrines of established schools and authorities." (Schacht)
Was the Door to Ijtihad Closed?
1. jurists who were capable of ijtihad existed at nearly all times
2. ijtihad was used in developing positive law after the formation of the schools
3. up to ca. 500 A. H. there was no mention whatsoever of the phrase ‘insidad bab al-ijtihad’ or of any expression that may have alluded to the notion of the closure
4. groups and individuals who opposed ijtihad were finally excluded from Sunnism
5. from the 3rd/9th century onwards there was implicit agreement (ijma’) that there was no room left for an additional school of law, however ijtihad was still being practiced within those already existing schools and claim of “the closing of the door of ijtihad” was never used as to explain the prohibition on the establishment of new schools.
Ijtihad and Reform
"In the modern age, the concept of ijtihād has sometimes been applied, in an entirely unprecedented manner, to reformist legislation introduced by, or at least subject to the ratification of, elected parliamentary bodies. It has also been adopted by a variety of reform-minded Muslim thinkers, both "modernist" and "fundamentalist," as a rationale for programs calling for fundamental social change or intellectual reorientation."