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ijtihad.html
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<title>On the Validity of Ijtihad</title>
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<h2 align="center">On the validity of <em>Ijtihad</em></h2>
<h3 align="center">from the
viewpoint of <em>Usul</em> (principles of Islamic jurisprudence)</h3>
<h4 align="center">by Mohammad Fadel</h4>
<p><em>Bismillah al-rahman al-rahim, wa al-salat wa-l-salam
'ala muhammad wa 'ala alihi wa sahbihi wa azwajihi ajma'in.</em></p>
<p><em>rabbi ishrah li sadri wa yassir li amri wa ahlul 'uqdatan
min lisani yafqahu qawli.</em></p>
<p><em>Amma ba'd:</em></p>
<p>We live in an age where we often
come across fatawa on contemporary issues which
require ijtihad, without knowing the authority/qualification of the one issuing, so I was just wondering: <ol><li>What
qualifies an ijtihad as being valid?</li></ol></p>
<p>Before one can answer this question, one must understand
there the scholars of <em>usul al-fiqh</em> have identified at least three types
of <em>ijtihad</em>:</p>
<ol>
<li><em>takhrij al-manat</em>;</li>
<li><em>tanqih al-manat</em>; and</li>
<li><em>tahqiq al-manat</em></li>
</ol>
</p>
<p><em>Takhrij al-manat</em> roughly means "extraction of
the grounds [of a divine ruling]. An obvious example would be that the grounds
for the prohibition of <em>khamr</em> (grape wine) is its capacity to intoxicate.
While this example is obvious, other texts of revelation prove much more
difficult in the extraction of the <em>manat</em>, and hence, the mujtahids have
differed greatly in their opinions regarding the grounds of the divine ruling.
[note: "<em>manat</em>" when used in the context of <em>takhrij al-manat</em>
is virtually synonymous with the term "<em>'illa</em>. " Of course,
the scholars of <em>usul al-fiqh</em> have identified various types of <em>'illas</em>
of differing strength, something I am only superficially familiar with. A good
source discussing this question is Imam al-Ghazali's "<em>Shifa</em>` <em>al-ghalil
fi masalik al'ta'lil</em>," wherein the Imam discusses the various types
of <em>'illas</em> and their use in juridical analogy (<em>qiyas</em>). <em>Wa-allahu
a'lam.</em></p>
<p>Because <em>takhrij al-manat</em> requires proper
understand of the indicants of the divine ruling (the <em>dalil</em>), it is
this type of ijtihad that requires mastery of the full spectrum of religious
sciences with the additional stipulation of <em>'adala</em> and piety.
Obviously, the minimum required is that the mujtahid know all the proof texts
that are relevant to solving the question before him, and that there is no
unequivocal divine communication (<em>khitab</em>) governing the case. [Note:
there are three types of "<em>dalil</em>" of a divine ruling, Qur'an,
sunna and consensus. With the exception of the Qur'an, the different mujtahids
had different opinions with regard to the manner in which the other two <em>dalils</em>
had to be transmitted so as to constitute a valid <em>dalil</em>].</p>
<p>I believe Sidi Haddad only recently posted on the
attributes of a <em>mujtahid mutlaq</em>, i.e., that scholar who is qualified to
issue religious opinions on any matter based on his direct interpretation of
divine revelation. It is commonly accepted that no one satisfies these
requirements today.</p>
<p>While this is erroneously claimed to be a defect, in
fact, because we have the legacy of the mujtahid-imams, the advanced students
of these Imams, by following the doctrines of their Imams, are able to derive
rulings for unprecedented cases rather easily. Indeed, according to Ibn
al-Salah, it is easier for the <em>muqallid</em> of an Imam to arrive at a
ruling on an unprecedented case by relying on the principles of his Imam than
it would be to derive the rule solely on the <em>dalils</em> of <em>shar'</em>, <em>wa-allahu
a'lam</em>. This level of scholar is deemed <em>mujtahid fi-l-madhhab</em> (a
mujtahid within a madhhab).</p>
<p>[also "<em>mujtahid muntasib</em> = affiliated
mujtahid") GFH:. ]</p>
<p>The second type of ijtihad<em>, tanqih al-manat</em>, is an
intermediary step preceding <em>takhrij al-manat</em>, where the mujtahid,
working as a scientist does, confronts a <em>dalil</em>, and hypothesizes that
the ground for the rule contained in the <em>dalil</em> is X, Y or Z. He then
tests this hypothesis against other data to see if the theory is sound. The
mujtahid continues doing this until he determines which of X, Y or Z, or a
combination of them, is the actual ground for the rule.</p>
<p>It seems to me that at this stage of ijtihad,
non-specialists in religious sciences have a critical, though ancillary role,
to play in aiding the mujtahid's inquiry. Often, when a mujtahid is attempting
to determine whether the <em>'illa</em> is X, Y or Z, he will rely on some
empirical theory, especially if the mujtahid believes that the <em>'illa</em>
should be "appropriate (<em>munasib</em>)" to the ruling. Appropriate
in this case means that it serves one of the five <em>maqasid kulliyya</em>
[comprehensive objectives] of the Shari'a, i.e.,</p>
<p>[1] the promotion of religion,</p>
<p>[2] the protection and/or enhancement of life,</p>
<p>[3] property,</p>
<p>[4] progeny and</p>
<p>[5] reason (<em>'aql</em>). </p>
<p>Where a fatwa incorporates an empirical judgment, the
mufti must take steps to ensure that the empirical judgment he is adopting is
not clearly erroneous.</p>
<p>Finally, <em>tahqiq al-manat</em> is that type of ijtihad
concerned with accurate perception of the empirical world. Allah, subhanahu wa
ta'ala, in His mercy, obliged us to worship Him only conditionally, i.e., when
certain conditions are met. Likewise, in His mercy, He also removes certain
obligations from us when certain impediments exist. The conditions whereby an
act becomes obligatory is called a "<em>sabab</em>," and a condition
whereby an obligation is suspended is called a "<em>mani'</em>",
literally, "an obstacle. "A common example of a <em>sabab</em> is the
sun reaching its zenith in the sky being the condition for the obligation to
pray <em>zuhr</em>. An obstacle removing the obligation of Pilgrimage would be,
at least for Malikis, an absence of secure carriage to the Hijaz. In other
situations, the divine rule itself requires the application of some empirical
knowledge, e.g., facing the <em>qibla</em> at the time of prayer, or in the
circumstance of the destruction of private property, an empirical
determination of its fair market value.</p>
<p>The point is simply that in many situations, properly
obeying Allah subhanahu wa ta'ala requires making an accurate determination of
an empirical situation, and this type of knowledge is not necessarily within
the preserve of a mujtahid, unless he is also, independently of his mastery of
religious sciences, also a master of the particular empirical science at issue.</p>
<p>Al-Qarafi gives a good example of an empirical error
underlying Imam Malik's (may Allah be please with him!) opinion regarding the
beginning of the lunar months in the Islamic calendar. The <em>mashhur</em> of
the madhhab is that once the moon is seen anywhere, the month begins for the
entire Muslim community. This position is known as "<em>ittihad al-matali'</em>.
"The other position, adopted by the Shafi'is, at least according to al-Qarafi,
is that each town has its own moon, i.e., months begin and end according to
local moonsightings. Qarafi explains, however, that Malik's position was based
on the erroneous empirical theory that the moon was visible at the same time
everywhere. Al-Qarafi, being trained in astronomy, knew this to be
false, and stated that the position of the moon relative to human observers
varies depending upon the position of the human observer, and therefore, the
Shafi'i position is correct. (See, <em>al-Furuq, al-farq al-awwal, al-farq
bayna al-riwaya wa-l-shahada</em>).</p>
<p>Thus, as a general matter, one can say that any fatwa
that is based on an empirical premise known to be wrong is itself certainly
wrong, although the pure rule that the mujtahid relied on in issuing his
opinion may nonetheless be sound.</p>
<p>[The <em>Matali</em>` or visible moon positions per Malik
and the Hanafi School are unified in effect for Ramadan and Shawwal on the
grounds - Allah knows best - not of the empirical theory that the moon should
be visible at the same time everywhere, but the explicit wording of the
Prophet (saws) said to "fast at its sighting and cease fasting at its
sighting" in absolute sighting terms, i.e. no matter where, <u>one</u>
true sighting sufficing for the whole Umma, - which is what is meant by <em>ittihad
al-Matali</em>` - and this is why Ramadan and `Eid al-Fitr are or should be
unified. This is the agreement of the Four Schools according the Jedda-based
International Fiqh Council including the Shafi`i Ulema such as the late Shaykh
Mustafa al-Zarqa, Shaykh Yusuf al-Qaradawi, Dr. Wahbe al-Zuhayli. . .
so the present orientation of the Umma has endorsed the fatwa of Imam Malik
after all, regardless of his or the Hanafi Imams' knowledge in astronomy.
Whereas for Dhul Hijja the <em>Matali</em>` must be precisely differentiated in
every respective area and it is therefore allowed that their respective dates
for `Eid al-Adha differ<em>. WAllahu a`lam</em>. G. F. Haddad.
]</p>
<p>Another example might make this more clear:according to
Imam Malik, any land that the Muslims conquered by force is <em>waqf</em>, and
therefore, not eligible to be privately owned. Imam Malik also gave the fatwa
that the land of Egypt was a <em>waqf</em> based on the historical (empirical)
assumption that Egypt had been conquered, not that it had voluntarily (<em>sulh</em>)
entered Islam. Qarafi points out that whether Egypt was or was not
conquered is a matter of <em>shahada</em> (empirical knowledge) not <em>riwaya</em>
(transmission of revelatory knowledge), and therefore, Imam Malik's opinion on
this empirical fact is not an appropriate object of <em>taqlid</em>. Indeed,
others, e.g., al-Layth b. Sa'ad, who were closer to events, who reported
the opposite, are more worthy to be believed, not because their knowledge of
revelation exceeded that of Malik, but rather that their specialized empirical
knowledge regarding the circumstances whereby the territory of Egypt entered
Islamic dominion is more accurate than that of Malik.</p>
<p>One can conclude by a general observation. Allah
subhanahu wa ta'ala has blessed this umma by making His commands consistent
with reason (<em>'aql</em>), the attribute by which He distinguished the
descendants of Adam, 'alayhi al-salam, from the rest of His creation.
Accordingly, we Muslims, when called upon to exercise our mental process in
the process of obeying our Creator, are always obliged to follow the <b><u>best</u></b>
information we can find. Thus, as non-specialists in the revelatory sciences,
we know that the opinions of the mujtahid-Imams are superior to the opinions
of the unlearned, and accordingly, we follow their opinions, not those of the
uninformed. Likewise, we also know that mujtahid imams are not necessarily the
best source of information on empirical matters, and accordingly, where our
worship of Allah, subhanahu wa ta'ala, requires ascertaining that a certain
empirical circumstance be confirmed, or negated, we must rely on experts in
that empirical field for that piece of information.</p>
<p>In short, valid ijtihad consists in following the best
available evidence, whether that evidence is revelatory or empirical, as the
context requires<em>. Wa-allahu 'alam.</em></p>
<p>Ø<span style="font-family:Arial">2.
Surely it takes more than just exercising a level of effort/exertion tobeconsidered
ijtihad? It seems that today, many of the fatawa we come across are
not quite to the standards
of Classical excellence. So are they still considered ijtihads, and can they at least
claim the single reward of an erroneous ijtihad?</p>
<p>I think I answered this question implicitly in the
discussion above. I would only add this: the decline in quality of fatawa is
only a particular manifestation of the more general decline of Muslims in all
fields of learning. Moreover, one can only express astonishment at a people
who used to compete with one another in the acquisition of learning, but today
lead the world in illiteracy!The lack of respect for learning today in the
Muslim world is surely a sign (and cause) of Allah's anger with us. I ask Him
to rekindle in our hearts the love of learning and respect for those who
pursue it.</p>
<p>Ø
<span style="font-family:Arial">3.
Is the concept of *wrong/erroneous ijtihad* an oxymoron?</p>
<p>The <em>fuqaha</em>` and the <em>mutakillimun</em> have
differences of opinion on this question. This is an advanced topic in usul al-fiqh,
and I do not wish to speak in great detail on this question, although I am
happy to discuss it privately. The gist of the dispute is reported in al-Ghazali's
Mustasfa, where he asks the question whether a divine rule exists for every
event. The <em>fuqaha</em>` say yes, the <em>mutakillimun</em> say no,
or at least the majority of them say no. Clearly, if one adopts the position
of the <em>fuqaha</em>`, erroneous ijtihad makes sense. If one adopts the
position of the <em>mutakillimun</em> (known as the "<em>musawwiba</em>"),
all mujtahids are correct, assuming they've done their duty, i.e., used their
best efforts in arriving at their conclusion.</p>
<p>[Al-Nawawi said: "Every mujtahid is correct
according to one of the two views on the issue. " - Al-Nawawi in <em>Sharh
Sahih Muslim</em>, Chapter entitled <em>Al-Amr bi al-Ma`ruf wa al-Nahy `an al-Munkar</em>,
commentary on the hadith of the Prophet (saws): "Whoever of you sees
wrongdoing, let him change it with his hand; if he cannot, then with his
tongue; if he cannot, then with his heart, and that is the weakest belief.
" Of course what is meant here by "every mujtahid" is every
qualified mujtahid. As for an unqualified mujtahid, the Prophet (saws)
said: "Whoever explains the Qur'an with his mere opinion, let him from
now take his seat in the Fire. " GFH]</p>
<p>Ø
<span style="font-family:Arial">4.
How is a weak ijtihad differentiated from an erroneous
(i.e. wrongijtihad)?</p>
<p>Except where ijtihad is based on a demonstrably erroneous
premise, it cannot be categorically wrong in the sense that it is invalid.
Practically speaking, "weak" ijtihad is differentiated from
"strong" ijtihad on the basis of the numbers of persons following it.
Nevertheless, weak opinions are still transmitted within the madhhabs, and
they may become the preferred rule given certain circumstances. In other
words, "weak" opinions often serve as the basis of a legitimate
fatwa when certain empirical circumstances are deemed pressing enough to
justify a departure from the normal rule. This is close to the distinction
between a <em>rukhsa</em> and <em>'azima</em>. Sometimes, the circumstances are
general, in which case the weak opinion becomes the going opinion of the
school and (temporarily) displaces the well-established opinion (<em>al-mashhur</em>),
while at other times, the fatwa can be given to a particular person based on
the questioner's own private circumstances. An example of the former is
Malik's opinion that a woman cannot obtain a <em>khul'</em> separation in
exchange for relieving the father of the duty to provide for his children.
Despite this being the <em>mashhur</em> of the Madhhab, later Andalusi Malikis
enforced separation agreements on these terms based on changed circumstances.
There are many such instances in all the madhahib, and these rulings are
usually prefaced by statements such as "<em>wa 'alayhi al-'amal</em>,"
or "<em>huwa al-mufta bihi</em>," or "<em>al-maqdi bihi</em>"
to distinguish it from the <em>mashhur</em> of the madhhab.</p>
<p><em>Wa-allahu a'lam.</em></p>
<p>[An example of the replacement of the <em>mashhur</em> -
established - position by a weaker position in the Maliki madhhab is the
prevalent fatwa that, for practical reasons, it is not necessary to pray Zuhr
after Jumu`a even if the latter was not the "main Jumu`a" i.e. the
categorically valid Jumu`a in a given region. References:</p>
<p>Ibn Juzay, <em>al-Qawanin al-Fiqhiyya</em> (p. 56):
"Concerning Salat al-Jumu`a in two mosques in a single province (<em>misr</em>)
there are three sayings: the third one distinguishes whether or not a river
separates the two mosques or something that stands like it (<em>ma fi ma`nah</em>).
If we say that it is not allowed, then the valid Jumu`a is that of the oldest
mosque. "</p>
<p><em>Mukhtasar Khalil</em> (p. 45): "Section on
Exposing the Conditions of [Validity for] Salat al-Jumu`a: . . . and in
a convening mosque (<em>jami</em>`) constructed (<em>mabni</em>), all-inclusive (<em>muttahid</em>),
and the [valid] Jumu`a is that of the older one (<em>al-jumu`a lil-`atiq</em>)
even if it is prayed later. "</p>
<p><em>Al-Taj wa al-Iklil li Mukhtasar Khalil </em>by al-`Abdari
(2:159-160): "<em>Al-Jumu`a li al-`atiq</em> (Jumu`a prayer counts in the
older mosque): al-Jallab: Jumu`a is not prayed in a single province (<em>misr</em>)
in two mosques. If they do, then the [valid] salat is the salat of the
people who pray in the older mosque. Abu Muhammad said: If they pray in
two mosques, then Jumu`a is for whoever prays in the older one, whether the
Ruler (al-imam) prays there or in the newer. "</p>
<p>Al-Dardir, <em>al-Sharh al-Kabir</em> (1:372, 374):
"Chapter: Exposition of the Conditions of validity for Salat al-Jumu`a
etc. . . . [It must be] 'all-inclusive' (<em>muttahid</em>): If there are
more than one, it is not valid for each one. 'The [valid] Jumu`a prayer
is that of the older' [mosque] i.e. the one in which the Jumu`a was first
prayer, even if its construction came later. . . . "</p>
<p>Al-Dusuqi's <em>Hashiya</em> (1:374): "'All-inclusive'
i.e. it is not permissible to have several according to the <em>mashhur</em>
position, even if the region (<em>al-balad</em>) is large, in keeping with the
way of the Salaf and so as to reunite all and obtain lucidity of hearts (<em>jala'
al-sudur</em>). On the other hand there is the saying of Yahya ibn `Umar
permitting multiple ones [Jumu`as] if the region is large; AND THIS HAS BEEN
PUT INTO PRACTICE. His saying: <em>'wal-Jumu`a lil-`atiq'</em>: i.e. it is
not valid in the new mosque even if the Sultan prays in it. . . " GFH]</p>
<p>Ø
<span style="font-family:Arial">5. Can one who is less
than the rank of mujtahid, undertake ijtihad? For example,
I know of no mujtahids today, yet we see "ijtihads" on novel matters like
cloning, etc. Do these constitute "ijtihad"?</p>
<p>It should be done within the principles of an established
madhhab, <em>wa-allahu a'lam.</em></p>
<p>Ø
<span style="font-family:Arial">6.
Since ijtihad is (surely) a necessary tool in every age, then if we lack mujtahideen, are
the conditions for undertaking ijtihad
relaxed de jure? Like today, do we have people who are not mujtahids, undertaking ijtihad? And if so, how is this
valid, i.e. upon what basis? The basis
of necessity? That we have
no other option in the absence of mujtahideen?</p>
<p>This has
already been answered, I think.</p>
<p>Ø
<span style="font-family:Arial">7.
Can an ijtihad precede a claim to being a mujtahid?
Like today, we see claims
to ijtihad by some who are unknown - either widely, or at all - for it
to be verifiable that they
have indeed reached this capacity. So how then do they
make the claim? I
have heard such proponents argue that the quality of the output (i.e.
the ijtihad) will reflect the calibre of the one who produced it, and thereby one
can recognise that this
must have been a mujtahid. To me, this seems like placing the cart before the horse, for why should we even
entertain a claim to a valid ijtihad until and unless we know the credentials
of the one purporting to make the claim either themself, or on behalf
of the one who supposed ijtihad we are being asked to accept? Is my supposition
correct here?</p>
<p>One should never accept an opinion of someone without
knowing the credentials of the person giving the opinion. <em>Taqlid</em> is
permissible only where the opinion is "qualified" opinion. <em>Wa-allahu
a'lam.</em></p>
<p>Ø
<span style="font-family:Arial">8.
What is the difference between a fatwa, a <em>hukm</em>, and <em>qada</em>? And is every <em>hukm</em> that
is *derived* a necessary product of ijtihad? If so, then it seems
prima facie that anyone who
issues a fatwa on a *new matter* has made
an implicit claim to ijtihad, no? Which also then pre-supposes the
rank of mujtahid, no? (Unless
of course you answered question no. 5 by saying that the rules have changed in our
times, because we lack mujtahideen, yet
still need to undertake ijtihad. )</p>
<p>For those on this list who can read Arabic, I commend to
them the book of Imam al-Qarafi with the title, "<em>al-Ihkam fi tamyiz
al-fatawa 'an al-ahkam wa tasarrufat al-qadi wa-l-imam</em>. "There is an
excellent Syrian edition of this work which, I believe, was edited by Shaykh
Abu Ghudda, rahimahu allah. Unfortunately, many of its examples are
technical and required familiarity with the detailed rulings of the Maliki
school. For those of you who are interested in this subject, Professor Sherman
(Abdalhakim) Jackson has written extensively on Imam al-Qarafi in English, and
has a good discussion of this work. He has an article with the title
"From Prophetic Actions to Constitutional Theory," which appears in
the International Journal of Middle East Studies, I think circa 1995 or 1996,
and he also has a book by the title of "Islamic Law and the State: The
Constitutional Jurisprudence of Shihab al-Din al-Qarafi. "Although very
expensive, it should be available in the campus libraries of major research
institutions.</p>
<p>At any rate, the primary difference between a fatwa and a
<em>qada</em> is that the latter is binding and the former is not. Only a
government official with <em>wilaya</em> can issue a <em>qada</em>`. Although the
rule used by the judge is substantively the same as the rule used by the
mufti, the fact that the judge enjoys <em>wilaya</em> means that his opinion,
although it is only an opinion, carries with it coercive effect (<em>ilzam
hissi</em>), whereas the fatwa, because it is only an opinion and there is no
political <em>wilaya</em> associated with it, relies solely on the good faith of
the <em>mustafti</em> (the petitioner) to comply with its terms. A <em>qada</em>
is also distinguished from a fatwa in terms of its scope -- although a <em>qada</em>
is coercively binding, meaning it is obligatory to obey it (the <em>fuqaha'</em>
describe it as "removing the controversy (<em>yarfa' al-khilaf</em>,"
thereby rendering the ruling as though it were a subject of consensus
[Consensus being universally binding GFH]), it applies <b><u>exclusively</u>/b>
to the parties in the dispute and no one else. A fatwa, however, applies to
everyone until the Day of Judgment, with the limitation that no one has to
obey it as a matter of force.</p>
<p>Sometimes, a judicial ruling, <em>qada</em>`, can be
intermingled with a fatwa, in which case, only that portion of the judge's
decision which is necessary to resolve the dispute is binding, and the rest
remains a fatwa. For example, while all the four schools agree that a
marriage contracted during a woman's <em>'idda</em> is invalid, the Maliki
position goes further and holds that when this occurs, the two are <b><u>forever</u></b>
forbidden to marry one another. Suppose a man marries a woman during her <em>'idda</em>,
and the case comes before a Maliki judge. He declares their marriage invalid,
and proclaims that it is <em>haram</em> for them ever to be remarried. The
parties separate pursuant to the judge's decree that the marriage is invalid,
and this ruling, because it is a qada<em>`,</em> must be respected by all, i.e.,
no one can give a fatwa that the couple is still married. But, suppose, after
the woman goes through her <em>'idda</em>, in violation of the judge's command
that it is <em>haram</em> for them to remarry, they do get remarried. What is
the status of their second marriage?Suppose the case is brought before a
Shafi'i judge. He will rule that the marriage is valid, except that they have
already gone through one divorce. The earlier ruling by the Maliki that they
are forever forbidden to each other will be treated merely as a fatwa. Suppose
instead, however, that they again went to a Maliki judge. In this case, if he
ruled that the marriage was invalid, as he would, the Maliki rule that they
are forever prohibited from marrying one another would no longer be a fatwa,
but is instead a <em>qada</em>`, and no one could challenge the conclusion that
they are forever prohibited from one another. Indeed, if they subsequently
attempted to remarry, they might be deemed fornicators.</p>
<p>Every <em>qada</em>` is necessarily based on <em>ijtihad</em>,
although it is the <em>ijtihad</em> based on empirical knowledge.
Knowledge of the appropriate rules to apply in a given dispute can be gained
from following the opinions of the <em>mujtahid</em> imam.</p>
<p>The term "<em>hukm</em>" is equivocal, and can
imply either "<em>hukm allah</em>," which is a <em>fatwa</em>, because
of its generality, or "<em>hukm al-hakim</em>," in which case it means
the <em>qada</em>` of a government official, e.g., a judge. Not all acts
of government officials that are binding, however, are "<em>qada</em>`"
or "<em>hukm</em>. "Remember, the distinguishing feature of a <em>qada</em>`
is that it removes disagreement and settles the question forever. </p>
<p>When the government decides to seize a piece of property
for a public purpose, for example, this is called a <em>tasarruf</em>, because
the government can change its mind! These discretionary acts of governments
are valid insofar as they don't clearly order an act that is <em>haram</em>, and
they increase the welfare of the community (<em>yajlib al-ahsan/al-aslah</em>)
[Note: where the government seizes private property for a public purpose, it
is obliged to compensate the owner the fair market value of the property so
taken]. Thus, when a government establishes a college, for example, and states
that admission is conditional upon achieving a certain score on a certain
test, that is a <em>tasarruf</em>, because it does not resolve any dispute about
the meaning of revelation in the context of a private dispute, and subsequent
governments are perfectly free to change the criteria of admission so long as
by doing so, they believe the status quo will be improved. <em>Tasarruf</em>,
however, is a type of <em>ijtihad</em>, but it is <em>ijtihad</em> in the
empirical domain, not the domain of revelation, and therefore, it is more
particularly in the domain of empirical and technical specialists.</p>
<p>The Prophet (s) stated that whosoever becomes entrusted
with some aspect of the public welfare of the Muslim community, and fails to
discharge that duty using sincerity (<em>nasiha</em>), and is unconcerned about
improving their lot, then <em>janna</em> is forbidden to him, we ask Allah to
guide us and preserve us. Given that, it is amazing that the countries of the
Muslims are rife with public corruption!Private virtue will not avail someone
who is betraying the <em>amana</em> of the Muslims in his public office by
exploiting his position to shower favors on friends and family (<em>muhaba</em>).
Public corruption has become so entrenched in Egypt that, according to a
recent story related to me by one in whom I place trust, a government
official, not necessarily a minister, took as his bribe a ticket to perform 'umra!<em>Inna
li-llahi wa inna ilayhi raji'un</em>.</p>
<p>Our master 'Umar stated that it is necessary to pay
judges a hefty salary so that they are not tempted to seek or accept bribes.
Yet, we pay our public officials so little that they must demand bribes to
feed their families. There is no doubt that our failure to have rational
systems of administration is a great failing and we will be answerable for it
on the day of Judgment, just as we shall be answereable for all other <em>furud</em>
<em>kifaya</em> that we are remiss in, <em>wa-allahu al-musta'an.</em></p>
<p>Ø
<span style="font-family:Arial">9.
What is the difference between a <em>mujtahid</em>, a <em>mufti</em>, a <em>faqih</em>, an <em>'alim</em>, and
a <em>qadi</em>?</p>
<p>This depends on the genre and the period in which the
term is being used. 'Alim, however, applies generally to any person with
knowledge of Allah. Faqih came to be used exclusively for the persons with
knowledge of the rules that apply to Muslims in this life. See <em>Ihya` ulum
al-din, kitab al-'ilm</em>, by al-Ghazali. The rules of fiqh, though important,
are only a means to an end, and <em>fuqaha</em>`, according to al-Ghazali,
practice a worldly science, akin to the mission of physicians. Their
science is a necessary condition for salvation, but not a sufficient one.
Essentially, the role of fiqh is to ensure that the world is sufficiently
secure to allow you reach your destination (Allah) safely.</p>
<p>A <em>qadi</em> is a <em>faqih</em> who has been appointed by
the government to resolve disputes among people according to the rules of
Islam as developed by the mujtahid imams and their followers, whereas a mufti
communicates the rules of Islam, according to his own interpretation, if he is
a <em>mujtahid mutlaq</em>, or according to his Imam, if he is a muqallid, in a
manner that is non-binding (in the secular sense).</p>
<p>[See also the post "Have you seen a Faqih?" on <a href="http://www.sunnah.org">www.
sunnah. org</a> - GFH]</p>
<p>Ø
<span style="font-family:Arial">10.
Can we take fatawa from (i) anonymous sources, and/or (ii) entities, and/or
(iii) those who don't agree that one requires ijaza to be able to undertake
ijtihad? Like for example, a fatwa issued by a group, that provides
no names of who
produced the fatwa? Or, say, an article which examines the fiqh of a particular issue - and may even quote
authorities - yet again is not attributed to
a person, but an entity. <o:p>
</o:p>
</p>
<p style="margin-left:2.25pt"></p>
<p>I think this would depend upon the circumstances.
Remember the first principle articulated above -- you must follow the best
evidence available. Also, you could avoid these issues simply by avoiding
speculation on matters that are merely hypothetical. Remember the hadith
of Rasulallah (s) prohibiting his umma from incessant questioning on matters
that do not concern them.</p>
<p>Finally, it is haram to follow a fatwa permitting you to
do something if you think it is wrong to do the questionable act. The Prophet
(S) said to follow the fatwa of your heart even if the people give you fatwas
to the contrary.</p>
<p>Ø
<span style="font-family:Arial">11.
Is it possible to attain the rank of mujtahid without obtaining <em>ijazas</em>?</p>
<p>I don't know whether this is a formal consideration.
The point is that the mufti should have 'ilm. <em>Ijazas</em> are evidence of
possessing <em>'ilm</em>. Whether they are the exclusive means of demonstrating
the requisite <em>'ilm</em> is another question.</p>
<p><span style="font-family:Wingdings;
mso-bidi-font-style:italic">Ø
<span style="font-family:Arial">12.
Can someone self-declare a claim to being a mujtahid, and that be acceptedfrom
their peers? For example, I have heard it said about Imam Suyuti (ra) that he
considered himself a mujtahid, <em>wallahu a'lam. </em></p>
<p>[It is questionable whether Imam al-Suyuti actually meant
he <u>was</u> a <em>mujtahid mutlaq</em> although he did claim <u>being
qualified</u> to be one: "I did not mean by this that I was similar to
one of the Four Imams, but only that I was a School-affiliated mujtahid (<em>mujtahid
muntasib</em>). For, when I reached the level of <em>tarjih</em> or
distinguishing the best fatwa inside the school, I did not contravene al-Nawawi's
<em>tarjih</em>. And when I reached the level of <em>ijtihad mutlaq</em>, I
did not contravene al-Shafi`i's school. " He continued: "There is
not in our time, on the face of the earth, from East to West, anyone more
knowledgeable than myself in hadith and the Arabic language, save al-Khidr or
the Pole of saints or some other <em>wali</em> - none of whom I include in my
statement - and Allah knows best. " Al-Suyuti, <em>al-Radd `ala man
Akhlada ila al-Ard wa Jahila anna al-Ijtihada fi kulli `Asrin Fard</em>
("Refutation of the Shiftless Who Have no Idea that Ijtihad is a
Religious Obligation in Every Age") (p. 116). GFH]</p>
<p>People can say whatever they want. Allah, subhanahu
wa ta'ala, however, says "<em>wa qul: ja`a al-haqqu wa zahaqa al-batil.
inna al-batila kana zuhuqa. </em>"In another verse which I do not have
memorized, Allah tells us that He throws truth against falsehood, destroying
the former, and preserving the latter. Likewise, another ayat speaks of
Allah's preserving that which is useful and destroying that which is not.
Accordingly, the proof of the pudding is in the tasting, not in declaring it
to be pudding. Whether someone is or is not a mujtahid is irrelevant.
What is relevant is whether that person's opinions are sound and consistent
with Allah's will, and wherever it is, the umma of Muhammd (S) will recognize
it, and benefit from it, inshallah. <em>Wa-allahu a'lam.</em></p>
<p><em>Wa-al hamdu li-llahi rabb al-'alamin, wa al-salat
wa-l-salam 'ala ashraf al-mursalin, wa 'ala ahli baytihi al-tahirin, wa
sahbihi ajma'in. </em></p>
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