Ijtihad: Takhti’ah Or Taswib

In this article, the author talks in brief about the concept, definition, and types of ijtihâd and examines the criteria and justification of takhti'ah (admission of the possibility of error in the judgments of the jurist) and taswib (maintenance of the jurist's infallibility and denial of any possibility of error) according to both Shi'a and Sunni scholars.

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Ijtihad: Takhti’ah Or Taswib

Muhammad Namazi

Introduction

Since Islamic shari'ah (law) is for all people at all times and in all places, it provides for every Muslim all the legal rules regarding whether an act is obligatory, forbidden, disliked, recommended or permissible, which he needs in order to obtain his real salvation.1

Since the Qur'an and the Sunnah of the Prophet do not deal with all the individual rulings in a very specific and detailed way and contain mostly general rulings, ijtihad, i.e. a total expenditure of effort in the seeking of an opinion regarding a rule of divine law, is often needed.2&3

According to B. G. Weiss, “since the law of God comprehends, in principle, the whole of life, it must be continually expounded as novel life situations present themselves. Consequently, the existence of ijtihad is not a right but a responsibility, one that rests in every age upon the community as a whole.” 4

However, one of the controversial problems in ijtihad is that of takhti'ah (fallibilism; admission of the possibility of error in the judgments of the jurist, mujtahid) and taswib (infallibilism; maintenance of the jurist's infallibility and denial of any possibility of error). In other words, there is a question whether jurists holding conflicting opinions can all be said to be above error. Muslim thinking on this issue is truly divided.

There are two completely different opinions. Shi'ah scholars and a number of Sunni scholars admit the possibility of error in the fatwas of the jurists and accordingly they are called, “mukhatti'ah (derived from khata', error),5 whereas a majority of Sunni scholars believe that the mujtahids are above error, and hence refer to them as musawwibah (derived from sawab).6

In this paper I intend to consider briefly the concept, definition, and types of ijtihad and then examine briefly the criteria and justification of takhti'ah and taswib according to both Shi'a and Sunni scholars. I will also try to present the arguments of both sides in the issue.

It is narrated that the great Hanafi jurist 'Ala' al-Din al-Kashani (d. 578/1182), once conducted a disputation about the Hanafi doctrine of ijtihad with another Hanafi jurist in Anatolia. Al-Kasani's opponent observed that for Abu Hanifah, every mujtahid was correct.

Losing his patience al-Kasani finally raised his whip to strike the other jurist.7 Commenting on the doctrine that every mujtahid is correct, Aron Zysow quotes Baqillani as having said: “Had al-Shafi'i not accepted it I would not number him among the usulis.”8 Consequently one important aspect of the intellectual doctrine of the infallibility of ijtihad is the emphasis it places on the act of the jurist, i.e. on the process of ijtihad as opposed to its product.9

In considering this problem, one should define ijtihad in detail according to both Shi'a and Sunni scholars in order to see what this word implies. Literally ijtihad means “a total expenditure of effort in the attempt to achieve something whose realization is burdensome and difficult.”10 In jurisprudence, according to Amidi, it means “a total expenditure of effort in seeking an opinion regarding a religious ruling such that the one (putting forth the effort) senses within himself an inability to do more (than he has done).”11

Although Shi'a scholars accept the above definition,12 they nevertheless differ from Sunni scholars in enumerating the authentic sources. According to many Sunni Scholars, there are four sources of law: the Qur'an, the Sunnah, ijma' (consensus) and qiyas. After the Qur'an and the Sunnah, instead of qiyas which does not lead to certainty, the Shi'a invoke to 'aql (reason) and believe that decisive rational judgements are approved by religion. The Shi'a also accept ijma' but not as an independent source from the Sunnah; for them it is accepted as a proof if and only if it could unveil the Sunnah.

It has to be noted that among the Sunni scholars especially in the early centuries, ijtihad was normally used in the sense of qiyas, that is to extend the ruling of one case for which we have proof in religious sources to another case for which we have no proof in religious sources, just because they look similar.

Therefore, the Shi'a scholars were reluctant to use the term injtihad for the whole process of exhausting one's talents and abilities to discover a religious ruling from its sources. Ayatollah Mutahhari was of the idea that presumably “the first among the Shi'a to use the term ijtihad and mujtahid in the latter sense was 'Allamah al-Hilli (647-726 A.H). In the chapter on ijtihad, in his book Tahdhib al-Wusul ila 'Ilm al-Usul, he used the word in the same sense as it is used today.”13

Types Of Ijtihad

According to the Shi'a scholars, ijtihad is of two types; one is legitimate and the other is forbidden. The forbidden ijtihad has the sense of legislation; i.e. when a mujtahid formulates a rule by his own personal judgment which is neither based on the Qur'an nor the Sunnah.14 This is called, “ijtihad bi al-ra'y”.

Unlike some Sunni scholars who consider this permissible and count it as an independent source of legislation parallel to the Qur'an and the Sunnah, the Shi'a have forbidden it.15

In this regard B. G. Weiss states: The use of analogical reasoning (qiyas) to deduce additional rulings from rulings established through exegesis of the texts has been a matter of considerable controversy among Muslims. The main living adversaries of this method are Twelve Shi'i scholars. Among Sunnis of all four surviving schools of law, the method is universally accepted…In any case, ijtihad is clearly not to be identified solely with qiyas.16

Iijtihad bi al-ra'y is not considered legitimate by the Shi'a and their Imams. They reject it primarily on the basis that the general principles and guidelines given in the Qur'an and the Sunnah are sufficient. For example, there are many hadiths in Al-Kafi, a major collection of Shi'a hadith, stressing on the fact that there is no haram or halal and nothing needed by the people except that it is present in the Qur'an or in the Sunnah.17

Discussing this point, J. Calmard states that “Imami methodology remains broadly anchored in al-ijtihad al-shar'i, based on rev elation and on the sciences of hadith and its major authorities (rijal) and not on al-ijtihad al-'aqli, related to qiyas.”18 However it is beyond the limits of this paper to bring these considerations forward and discuss them.

For the Shi'a, who define ijtihad as the effort to discover the real law from the sources of the Shari'ah, it is difficult to imagine that every mujtahid is always right. According to Mutahhari, “it is not possible that whatever any mujtahid may judge should be correct and his judgment should be the real law; for it is possible that different mujtahids may hold divergent opinions simultaneously about the certain subject and the same mujtahids may hold different opinions at different times about the same issue. How is it possible that he should always be right?”19 To elucidate the real significance of this idea, I must explain briefly the criteria of the opposite view i.e. taswib and the historical background of this subject.

Ijtihad And Taswib

The main issue between musawwibin and mukhatti'in is this: when we have no certain text which is applicable to an event then is there truly a Divine law related to it and should the mujtahid try to draw it out? If he succeeds, he is musib, if not, he is mukhti. Or perhaps God has no real law for every event or problem and the mujtahid's solution is entirely of his own devising. Thus, in a case where we have no text or proof, God's law is a function of the mujtahid's reasoning.20

According to B. G. Weiss, “Though this way of thinking had at least one great Ash'ari divine among its supporters, it could clearly be disturbing to anyone who built his entire jurisprudence around the notion of a single correct rule as the object of the whole enterprise of ijtihad. …if the law did not reside in an original intent of the Legislator, what was the mujtahid striving for in the first place? Was there an original intent that he should seek to understand.”21

According to Mutahhari, the main element of the theory of taswib lies in a certain theory of ijtihad which is held by those who defined ijtihad as the practice of qiyas and ra'y. They point out that the laws sanctioned by the Prophet through revelation are limited, whereas issues and problems which require legislation are unlimited in number.

Therefore, the laws given by the Divine Lawgiver are not sufficient to meet the requirements. Accordingly, God has given the right to the scholars of the Ummah, or a group of them, to employ their personal taste and intelligence in cases where there are no religious dicta and select something which resembles other Islamic laws and is closer to the criteria of justice and truth. In accordance with this view of ijtihad, Mutahhari says, they accept the theory of taswib, for, according to this view, ijtihad itself is one of the sources of Divine Law.22

However, this idea is unacceptable to Shi'a scholars because they believe that there is a real divine ruling pertaining to every problem and the most a jurist needs to do through ijtihad is to discover it with the help of reliable canonical sources. So, in the light of such an understanding of ijtihad it is impossible that every mujtahid should be right.23

In this regard 'Allamah Hilli states: The scholars are in agreement that there is only one correct opinion in rational matters (al-'aqliyyat),24 except al-Jahiz25 and al-'Anbari,26 who were of the opinion that every person who practiced ijtihad with respect to rational issues produced a correct opinion, not in the sense of a correspondence with the truth but in the sense of a reprehensible error being eliminated. But the true opinion is the first, because God made the search for knowledge a duty and set up a proof for it, and whoever is incorrect therein still has to discharge his duty.27

So according to the Shi'a viewpoint, there is only one correct opinion, which is that which corresponds in reality to God's commandment. In other words the rule is specific and there is only one correct opinion, and one who opposes it is in error.28

The Idea Of Taswib And Its Justification

Those who believe in taswib have mentioned many arguments of which two are very important. The first argument which they employ is based on the following verses:

And David and Solomon-when they gave judgment concerning the tillage, when the sheep of the people strayed there, and We bore witness to their judgment” (21:78)

“And We made Solomon to understand it and unto each gave We judgment and knowledge” (21:79)

Those who believe in taswib argue that the final statement in this passage could not be true if one of the two men (let us assume David) was in error; therefore, both Solomon and David must be considered to have been right (musib) even though their judgments differed.29

Amidi answers this argument by saying that the main point in this statement is that both David and Solomon possessed judgment and knowledge that God had given them. And this judgment and knowledge did not, in the case of David, necessarily support the case mentioned in this passage. The judgment and knowledge referred to could very well have consisted merely of judgment and knowledge relating to the employment of indicators of the law and the methodology of derivation of law from texts, namely ijtihad.30

The second argument mentioned by Sunni scholars is based on the Prophet's saying, “My Companions are like stars; whomsoever you follow you will be guided”. This statement makes the opinions of the Companions a source of guidance even if they differ from one another. It follows that if it were possible for any companion to err he could not therefore have been described as “like a star” in the sense intended by the Prophet; namely as a guide.31

However, the argument based on this hadith was criticized by Muslim scholars. Ayatollah Rida Sadr makes several points here:32

1. This hadith is weak, since it is not well documented.

2. To accept this report from a companion because every companion is to be taken as a guide is a clear circulation.

3. The expression “whomsoever you follow” requires possibility of following any companion, even the most ignorant of them. Clearly this is an injustice to the more learned companions.

4. If we accept this argument, we should accept that guidance could be given even by two contradictory traditions, for, we often see that sometimes there are differences in the companion's views.

5. The comparison in this hadith does not take place between every one of the companions and every star, rather it is made between the entirety of the companions and the entirety of the stars, which implies that we have to follow companions only in their totality, that is, when they are in complete agreement. For, although the stars have different locations and appear at different moments, all stars agree in indicating celestial time.

6. Amidi also responds33 to this problem by saying that although the Prophet's saying applies to all the companions, it cannot be taken to mean that we are to follow their example in all matters.

Finally, according to A. Zysow some of the objectionable consequences of taswib are:

a) rejection of the systematic quality of the legal process;

b) the anti-systematic character of taswib appears in its relativism;

c) taswib appears equally anti-systematic when looked at from the point of view of the lay followers (muqallid).34

The Idea Of Takhti’ah

As was mentioned before, the main idea of the mukhatti'ah is that there is only one correct opinion, which corresponds in reality to God's commandment. In other words, the rule is specific, and there is only one correct opinion, just as the one who opposes it, is in error.35

According to Tusi, God has only one ruling for each problem, and a qualified jurist may err in discovering the real divine ruling, but he is excused, if he has done his best.36 According to Arthur Pap, in contrast to taswib which introduces into the law a discontinuity between the revealed texts and the product of ijtihad, takhti'ah holds that just as there can be no inconsistencies between the revealed texts, there can be none in the rules derived from those texts.37

Pap also says: “Infallibilisim is thus a form of pragmatism as opposed to the realism of fallibilism. It is essentially an extension of utilitarian ways of thinking (or speaking) from ethics to epistemology.”38

Bibliography

1. Amidi, Sayf al-Din. al-Ihkam fi Usul al-Ahkam. Vol. 4. Cairo: Dar al-Hadith, 19–.

2. Calder, Norman. “Doubt and Prerogative: The Emergence of an Imami Shi'i Theory of Ijtihad” in Studia Islamica, vol.70 (1989), pp.57-78.

3. Calmard, J. “Mudjtahid” in The Encyclopedia of Islam, ed. C. E. Bosworth and others. Vol. 7. New York: E. L. J. Brill, 1993, p. 295-305.

4. Cooper, John., trans.”'Allamah Hilli on the Imamate and Ijtihad.” in Authority and Political Culture in Islam, ed. Said Amir Arjomand. Albany: State University of New York, 1988, p. 240-266.

5. Hallaq, Wael Bahjat. “On the Origins of the Controversy about the Existence of Mujtahid and the Gate of Ijtihad.” Studia Islamica, Vol. 63 (1986), pp.129-141.

6. ——. “The Primacy of the Qur'an in Shatibi's Legal Theory.” Islamic Studies Presented to Charles J. Adams, ed. Wael B. Hallaq and Donald P. Little. New York: E. J. Brill, 1991, pp. 70-90.

7. ——. “From Fatwas to Furu': Growth and Change in Islamic Substantive Law.” Islamic Law and Society, Vol, 1, No. 1 (April, 1994), pp. 29-65.

8. ——. The Gate of Ijtihad: A Study In Islamic Legal History. Ph. D. dissertation, University of Washington, 1983.

9. Hilli, Abu Mansur Jamal al-Din. Mabadi' al-Wusul 'ila 'Iilm al-Usul. Beirut: al-Dar al-Islamiyyah, 1970.

10. Kamali, Muhammad Hashim. “The Approved and Disapproved Varieties of Ra'y (Personal opinion) in Islam.” The American Journal of Islamic Social Sciences, Vol. 7, No. 1, (1990), pp. 39-61.

11. Khurasani, al-Akhund Muhammad Kazim. Kifayat al-Usul. Qum: Mu'assisat Al al-Bait, 1990.

12. Mutahhari, Murtada. “Ijtihad in the Imamiyyah Tradition.” Trans. Mahliqa Qara'i. Al-Tawhid, vol. 4 (1986-7), pp. 27-48.

13. ——-. “The Role of Ijtihad in Legislation”. Trans. Mahliqa Qara'i. Al-Tawhid, vol. 4 (1986-7), p. 21-52.

14. Razi, Fakhr al-Din Muhammad ibn 'Umar ibn al-Husayn. Al-Mahsul fi 'Ilm al-Usul. Vol. 2, part 3, ed. Taha Jabir al-'Ulwani. Saudi Arabia: Islamic University, 1979.

15. Sadr, Muhammad Baqir. Al-Ma'alim al-Jadidah lil-Usul. Tehran: Maktabat al-Najah, 1975.

16. Sadr, Riza. Al-Ijtihad wa al-Taqlid. Beirut: Dar al-Kutub al-Lubnani, 1976.

17. Schacht, J. “Idjtihad.” in Encyclopedia of Islam. Ed. B. Lewis and others. Vol. 3. London: Luzac & Co. 1971, pp.1026-7.

18. Shahid Thani, Sheikh Hasan b. Zayn al-Din. Ma'alim al-Usul, ed. Mahdi Muhaghigh. Tehran: Shirkat-i Intisharat-i 'ilmi wa Farhangi, 1985.

19. Shatibi, Muhammad b Musa. Al-Muwafiqat fi Ahwal al-Shari'ah. Vol. 4. Beirut: Dar al-Kutub al-'Ilmiyyah, 19–.

20. Weiss, Bernard G. “Ijtihad.” In The Encyclopedia of Religion. Vol. 7. New York: Macmillan Publishing Company, 1987, pp. 90-2.

21. ——- . The Search for God's Law: Islamic Jurisprudence in the Writing of Sayf al-Din al-Amidi. Salt Lake City: University of Utah Press, 1992.

22. Zysow, Aron. The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory. Cambridge Massachusetts: Harvard University, 1984.

- 1. Riza Sadr, al-Ijtihad wa al-Taqlid (Beirut: Dar al-Kutub al-Lubnani, 1976), p. 15.

- 2. Wael Bahjat Hallaq, “The Gate of Ijtihad: A Study In Islamic Legal History”, Ph. D. dissertation University of Washington, 1983, p.13. See also Muhammad ibn Musa Shatibi, al-Muwafiqat fi Ahwal al-Shari'ah, vol. 4, (Beirut: Dar al-Kutub al-'Ilmiyyah, 19–), p. 66.

- 3. Bernard G. Weiss, The Search for God's Law: Islamic jurisprudence in the writing of Sayf al-Din al-Amidi (Salt Lake City: University of Utah Press, 1992), p. 683. See also Sayf al-Din al-Amidi, al-Ihkam fi Usul al-Ahkam, Vol. 4, (Cairo: Dar al-Hadith, 19–), p. 218, where this definition of ijtihad can be found: “Istifraghu al-wus' fi tahqiq-i amrin min al-umur mustalzimin lil-kulfati wal-mashaqqah.”

- 4. Bernard G. Weiss, “Ijtihad”, The Encyclopedia of Religion, vol. 7, (New York: Macmillan Publishing Company, 1987), p. 92. See also W. B. Hallaq, “On the Origins of the Controversy about the Existence of Mujtahida and the Gate of Ijtihad”, Studia Islamica, vol. 63 (1986), pp.132-3.

- 5. Amidi, al-Ihkam, p. 247. Amidi himself is in this group. I will discuss his ideas below. According to Amidi, Ibn Furak and Abu Ishaq al-Isfara'ini are also members. See John Cooper, trans. “Allamah Hilli on the Imamate and Ijtihad”, in Authority and Political Culture in Islam, ed. S. Amir Arjomand (Albany: State University of New York, 1988), p. 245. Hilli adds to this group Bishr al-Marisi (d. 218/833).

- 6. Amidi, al-Ihkam, p. 246. Among those who supported this position Amidi mentions Abu Bakr al-Baqillani, Abu al-Hudhayl al-`Allaf (d. 226/840-41 or 235/849-50), the first systematic theologian of the Mu'tazili school, Abu Ali al-Jubba'i (d. 303/915-6), and his son Abu Hashim (d. 321/933) the famous Mu'tazili theologians. See also John Cooper, ”'Allamah Hilli on the Imamate and Ijtihad”, p. 245.

- 7. Aron Zysow, The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory (Cambridge Mass.: Harvard University, 1984), p. 459.

- 8. al-Baqilani, Mankhul, p. 453 (quoted in A. Zysow, The Economy of Certainty, p. 459).

- 9. A. Zysow, The Economy of Certainty, p. 460.

- 10. Ibid. See also R. Sadr, al-Ijtihad wa al-Taqlid, p. 19.

- 11. B. G. Weiss, The Search for God's Law, p. 683. See also Amidi, Ihkam, p. 218.

- 12. See al-'Allamah Hilli, Mabadi al-Wusul 'ila 'Ilm al-Usul (Beirut: al-Dar al-Islamiyyah, 1970), p. 24. See also Sheikh Hasan b. Zayn al-Din Shahid Thani, Ma'alim al-Usul, ed. Mahdi Muhaghigh (Tehran: Shirkat-i Intisharat-i `Ilmi wa Farhangi, 1985), p. 268. See also al-Akhund Muhammad Kaim al-Khurasani, Kifayat al-Usul (Qum: Mu'assisah Al al-Bayt, 1990), p. 464.

- 13. Murtada Mutahhari, ”Ijtihad in the Imamiyah Tradition”, trans. Mahliqa Qara'i, Al-Tawhid, vol. 4 (1986-87), pp. 29-30.

- 14. The Sunnah is the narrative recording the divinely sanctioned customs of the Prophet (and thirteen infallible memebers of his household).

- 15. M. Mutahhari, ”Ijtihad in the Imamiyah Tradition”, pp. 26-7; A. Zysow, The Economy of Certainty, p. 462. Zysow states that the objection against analogy had been raised earlier (than Abu Ya'la b. al-Farra) by al-Shaykh al-Mufid in a disputation with al-Baqilani.

- 16. Bernard G. Weiss, “Ijtihad”, The Encyclopedia of Religion, vol. 7, p. 91.

- 17. M. Mutahhari, ”Ijtihad in the Imamiyyah Tradition”, pp. 27-8.

- 18. J. Calmard, “Mudjtahid” in The Encyclopedia of Islam, 2nd ed. (Leiden: E. J. Brill, 19–), vol. 7. p. 297.

- 19. Murtada Mutahhari, “The Role of Ijtihad in Legislation”, trans. Mahliqa Qara'i, Al-Tawhid, vol. 4 (1986-7), p. 28.

- 20. R. Sadr, al-Ijtihad wa al-Taqlid, p. 33.

- 21. B. G. Weiss, The Search for God's Law, p. 700.

- 22. M. Mutahhari, “The Role of Ijtihad in Legislation”, p. 28. See also Muhammad Baqir al-Sadr, al-Ma'alim al-Jadidah lil-Usul (Tehran: Maktabat al-Najah, 1975) pp. 38-9.

- 23. Ibid.

- 24. I believe this term al-'Aqliyat has the connotation that no text is available to aid in rendering a judgment.

- 25. al-Jahiz (160/776 - 255/868-9), the famous man of letters and Mu'tazili theologian of the Basran school.

- 26. 'Ubayd Allah b. al-Hasan b. al-Husayn al-'Anbari (105/723 - 168/785), a Basran jurist and traditionalist.

- 27. J. Cooper, ” 'Allamah Hilli on the Imamate and Ijtihad”, p. 245.

- 28. Ibid.

- 29. B. G. Weiss, The Search for God's Law, p. 702.

- 30. Ibid.

- 31. Ibid. See also R. Sadr, al-Ijtihad wa al-Taqlid, p. 35-6.

- 32. Sadr, al-Ijtihad wa al-Taqlid, p. 35-6.

- 33. B. G. Weiss, The Search for God's Law, p. 702. See also Amidi, al-Ihkam, p. 262.

- 34. A. Zysow, The Economy of Certainty, p. 480-1.

- 35. J. Cooper,”'Allamah Hilli on the Imamate and Ijtihad,” p. 245. See also M. K. al-Khurasani, Kifayat al-Usul, p. 468-9. See A. Hilli, Mabadi al-Wusul 'ila 'Ilm al-Usul, p. 244; See also H. Z. Shahid Thani, Ma'alim al-Usul, p. 272-3.

- 36. Norman Calder, “Doubt and Prerogative: The Emergence of an Imami Shi'i Theory of Ijtihad” in Studia Islamica, vol. 70 (1989), p. 71.

- 37. Bukhari, 4:23; Mizan, f. 204a (quoted in A. Zysow, The Economy of Certainty, p. 483).

- 38. Arthur Pap, Elements of Analytic Philosophy (New York: Macmillan, 1949), pp. 372-73 (quoted in A. Zysow, The Economy of Certainty, p. 483).

Topic Tags:

- Ijtihad [7]

- Taswib [8]

- Takhtiah [9]

- Fiqh (Jurisprudence) [10]

Authors(s):

- Muhammad Namazi [2]

Publisher(s):

- Ahlul Bayt World Assembly [3]

Source URL: https://al-islam.org/message-thaqalayn/vol10-n2-2009/ijtihad-takhtiah-or-taswib-muhammad-namazi#comment-0

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