Get Complete and Free of Cost Help About LLB (LAW) for Part 1(1st Year,First Year) Part 2(2nd Year,Second Year)Part 3(3rd Year,Third Year) And Download Complete Notes for LLB in PDF Format.

Monday, June 4, 2012

Define and dicuss Ijtihad as a source of Islamic Law.

Q.1:Define and dicuss Ijtihad as a source of Islamic Law.
Q.2: Ijtihad has got a significance role in the Islamic legislation.Dicuss.And illustrate.(Supply.2001)
Q.3:What is the importance of Ijtihad in islamic legal syste?Dicuss.(Annual 1998)
Q.4:What is the Qualfications of a Mujtahid?(Supply.1999)
Q.5:Define Ijtihad and elaborate.What is the significance of Ijtihad in Islamic legal syste?(Annual2001)

Introduction:
Quran is a code of conduct and not a code of law.Althought it does issue instructions about various acts but it must be known that legislating a code of law is not its priority.Out of 666 verses only 200 lay down specific rules of law.Thus there are many mattes, which need to be solved, and no direct answer to them is given in the Quran,Sunnah or Ijma.
Ijtihad (Arabic: اجتهاد‎, ʼijtihād) is the making of a decision in Islamic law (sharia) by personal effort (jihad), independently of any school (madhhab) of jurisprudence (fiqh). as opposed to taqlid, copying or obeying without question.

Ijtihad is mainly associated with the Usuli Shi'a Muslim Jafari school of jurisprudence. To be valid and accepted it has to be rooted in the Qur'an and the hadith and it is required that no established doctrine rules the case. A mujtahid is an Islamic scholar who is competent to interpret sharia by ijtihad. Whereas Akhbari Shi'a Muslim outright reject ijtihad and do not imitate a mujtahid who practice ijtihad.Contents
Etymology and definition:
The word derives from the three-letter Arabic verbal root of ج-ه-د J-H-D (jahada, "struggle"): the "t" is inserted because the word is a derived stem VIII verb. In Islamic political theory, ijtihad is often counted as one of the essential qualifications of the caliph, e.g. by Al-Baghdadi (1037) or Al-Mawardi (1058). Al-Ghazali dispenses with this qualification in his legal theory and delegates the exercise of ijtihad to the scholars of religion (ulema).
History
The Qur’an commands ijtihâd[citation needed] and Door of Ijtehad was opened by Umar ibn al-Khattab.[2][3] Muslim scholar Muhammad al-Tijani writes in his first book Then I was Guided that the first Companions to open the door of Ijtihad was the second Caliph, who used his discretion vis-a-vis the Qur'anic Texts after the death of the Messenger of Allah (saw).

In early Islam it was common practice and later it integrated with early Islamic philosophy. It slowly fell out of practice in Sunni fiqh for several reasons, particularly due to the efforts of the Asharite theologians, most notably al-Ghazali whose book The Incoherence of the Philosophers was the most celebrated statement of the view that ijtihâd was leading to errors of over-confidence in judgement.

Some western scholars such as Joseph Schacht say the "closure of the door of ijtihad" had occurred by the beginning of the 10th century CE: "hence a consensus gradually established itself to the effect that from that time onwards no one could be deemed to have the necessary qualifications for independent reasoning in religious law, and that all future activity would have to be confined to the explanation, application, and, at the most, interpretation of the doctrine as it had been laid down once and for all.
                                                       
Sponsored Link: Www.Zohaibarts.Blogspot.Com
Other scholars (e.g. [Wael Hallaq]) demonstrate that ijtihad has remained an essential part of the Sunni Muslim tradition, despite the emphasis on taqlid. Hallaq writes that a minority always claimed that a properly-qualified scholar must have the right to ijtihad at all times.[citation needed] Long after the 10th century the principles of ijtihad continued to be discussed in the Islamic legal literature and Asharites continued to argue with Mutazilites about its applicability to science. Al-Amidi (1233) mentions twelve common controversies about ijtihad in his book on Islamic law (usul al-fiqh), such as the question of whether the Prophet himself depended on ijtihad and whether a mujtahid should be allowed to follow taqlid. Ironically, the loss of its application in law seems to have also led to its loss in philosophy and the sciences, which some historians think caused Muslim societies to stagnate before the 1492 fall of al-Andalus.[citation needed]
Qualifications of a mujtahid
In some, but not all, Islamic traditions, a mujtahid can specialise in a branch of shariae such as economic or family law.


Sunni qualifications
The necessary qualifications were set out by Abu’l Husayn al-Basri (died 467 AH / 1083 CE ) in “al Mu’tamad fi Usul al-Fiqh” and accepted by later Sunni scholars, including al-Ghazali. These qualifications can be summed up as an understanding of the objectives of the sharia and a knowledge of its sources and methods of deduction. This includes:
being an upright person whose judgement people can trust (Male/Female(Aishah is considered a mujtahid))
competence in Arabic allowing correct understanding of the Qur’an and of the sunnah so as to be able to draw accurate deductions.
adequate knowledge of the Qur'an, the events surrounding its revelation and its legal contents (the ayat al-ahkam) - some 500 verses, according to al-Ghazali - and with all the classical commentaries on the ayat al-ahkam, especially the views of the companions of the Prophet and with incidences of abrogation (suspending or repealing a ruling) as well as the use of narratives and parables and sections relating to the hereafter to infer a legal rule in Sunni qiyas; a thorough knowledge of the rules and procedures for which allows the application of revealed law to an unprecedented case.
adequate knowledge of the sunnah, especially as related to one's specialization, the relative reliability of the narrators of the hadith, distinguishing between the general and specific, the absolute and the qualified. One estimate (by Ahmad ibn Hanbal) suggests that 500,000 hadith(including variants in wording and sanad) need to be known.
ability to verify the consensus (ijma) of the companions of the Prophet, the successors and leading imams and mujtahideen of the past, especially with regard to his specialisation, and familiarity with issues on which there is no consensus.
understanding the revealed purpose of the sharia as related to considerations of public interest including the Five Pillars of the good; the protection of "life, religion, intellect, lineage and property" and of general maxims for the interpretation of sharia', which include the "removal of hardship", that "certainty must prevail over doubt" and the achievement of a balance between too rigid and too free an interpretation.

The following are the conditions that Imam Baghawi laid out for ijtihad:
Knowledge of the Quran
Knowledge of the ahadith of the Blessed Prophet
Knowledge of the sayings of the Salaf-us-Salaheen; that is to know which rulings they disagreed and upon which they were unanimous.
Knowledge of Arabic linguistics
Knowledge of Qiyas, the knowledge by which one learns the method of deriving a ruling from the Quran and Sunnah. In this case, the above mentioned ruling (which is derived from the Quran and Sunnah) should not be apparent in the Quran and Sunnah or Ijma’. If there is no derivation involved due to the explicitness of the ruling in the Quran and Sunnah, than such a person is not by definition a mujtahid.
Shia qualifications
Shi'a hawza students start their studies learning fiqh, kalam, hadith, tafsir, philosophy and Arabic literature. After mastering these levels they can start becoming mujtahid by studying advanced textbooks known as sat'h, and research courses known as kharij.

The following points are presented in order to clarify the purpose of ijtihad:
God is all-powerful, all-knowing.
God created laws for humankind and only God has the authority to do so.
God appointed messengers to convey the laws to humankind.
God appointed imams to guide humankind about the laws.
At present, neither the messenger (Muhammad), nor the imams (God-appointed leaders) are accessible. The current imam, Muhammad al-Mahdi, is in the Occultation.
Therefore, qualified jurists have the duty to find God's law, not create God's laws.
Therefore, ijtihad is the process of finding God's law from the Qur'an and the hadith using specific methods.

Formal preconditions for being considered to be able to give ifta and thus be a mujtahid are:
Maturity
Being of legitimate birth
Faith
Intelligence
Justice (integrity, specifically refraining from all the prohibitions of the Sharia and performing all of its obligations.)

*It must be noted that a woman can be a mujtahid (for instance, Lady Amin and Zohreh Sefati). There are diverging opinions as to whether a female mujtahid can be a Marja or not. Zohreh Sefati and some male jurists believe a female mujtahid can become a marja, but many male jurists believe a marja must be male. In other words, they believe that believers cannot do taqlid (imitation) of a woman mujtahid.
Types of Mujtahideen
Mujtahid Mustaqil
He regulates the usul of his madhab He studies, researches, and engrosses himself in the verses and ahadith of the Blessed Prophet to find proof for issues that confront him. He favors one proof over the other when they contradict each other. He also expounds on the references from which he derived his rulings. He confronts new issues which have not yet been discussed and presents them in light of evidence (from the Quran and Sunnah).



Mujtahid Muntasib: is one who is a follower of his teacher in the usul and who takes help from him in seeking evidence on rulings. He knows the rulings in light of their evidence and is fully capable of deriving rulings from the evidence.


Mujtahideen fil shara’: These are the four Imams who devised the usul and derived rulings from the four sources (i.e., Quran, Sunnah, Ijma’, Qiyas) without being muqalideen (followers) of anyone in fundamental or derivative rulings.

Mujtahideen fil madhab: As in Imam Abu Yusuf (rah), Imam Muhammud bin Hassan Shaybani (rah) and all the students of Imam Abu Hanifah (rah) who derived rulings using the usul of Imam Abu Hanifah (rah) which he derived from the main sources. Although they disagreed in some derivative rulings with Imam Abu Hanifah (rah), they are his muqallideen (followers) in the usul. The difference between them (mujtahideen fil madhab) and mu’aaredheen fil madhab (parallel scholarship) like Imam Shafi’ (rah) is that they (mujtahideen fil madhab) are his (Imam Abu Hanifah t) muqalideen in usul while Imam Shafi’ (rah) is not.



Mujtahideen fil masaail: They practice ijtihad in the rulings in which there is no known opinion of Imam Abu Hanifah (rah). This category includes scholars like Khassaaf, Tahawi, Shams ul-Aima Halwani, Shams ul-Sarakhsi, Fakhr-ul-Islam Bazdawi, and Qazi Khan, etc. This group of scholars follows Imam Abu Hanifah (rah) in his usul and his derivative rulings, but derives rulings, based on his usul, on issues in which there is no known opinion or ruling by Imam Abu Hanifah (rah).
Modern application
Muslims living in the West are subject to secular laws of the state rather than Islamic law. In this context ijtihad becomes mainly a theoretical and ideological exercise without any legal force.

Conservative Muslims say that most Muslims do not have the training in legal sources to conduct ijtihad. They argue that this role was traditionally given to those who have studied for a number of years under a scholar. However, liberal movements within Islam generally argue that any Muslim can perform ijtihad, given that Islam has no generally accepted clerical hierarchy or bureaucratic organization. At the other end of the political spectrum, a number of fundamentalist tendencies have also re-opened the doors of ijtihad though not in a liberal direction.

Irshad Manji supports project ijtihad. She argues that Muslims can use their independent judgment to break free of religious conformity.
Conclusion:
Thus the process of Islamization will remain incomplete untill activities of legislature in Islamic status are bought under the purview of institution of Ijtihad. I was vital force of Islamic Law but it has been greatly ignored in the modern socities.



Share
                                                                                  




4 comments:

http://www.freellbnotes.blogspot.com

 
Go to top