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NOTE TO CHAPTER I.
QUESTIONS connected with Ijtihád are so important in Islám, that I think it well to give in the form of a note a fuller and more technical account of it, than I could do in the Chapter just concluded. This account which I shall now give is that of a learned Musalmán, and is, therefore, of the highest value. It consists of extracts from an: article in the Journal Asiatique, Quatrième Série, tome, 15, on “Le Marche et les Progres de la Jurisprudence parmi les Sectes orthodoxes Musalmanes” by Mirza Kázim Beg, Professor in the University of St. Petersburg. It entirely supports all that has been said of the rigid character of Muhammadan Law, and of the immobility of systems founded thereon.
“ Orthodox Musalmáns admit the following propositions as axioms.
1. God the only legislator has shown the way of felicity to the people whom He has chosen, and in order to enable them to walk in that way He has shown to them the precepts which are found, partly in the eternal Qurán, and partly in the sayings of the Prophet transmitted to posterity by the Companions and preserved in the Sunnat. That way is called the “ Sharí’at.” The rules thereof are called Ahkam.
2. The Qurán and the Sunnat, which since their manifestation are the primitive sources of the orders of the Law, form two branches of study, viz., Ilm-i-Tafsír, or the interpretation of the Quran and Ilm-i-Hadís, or the study of Tradition.
3. All the orders of the Law have regard either to the actions (Dín), or to the belief (Imán) of the Mukallifs.1
4. As the Quran and the Sunnat are the principal sources from whence the precepts of the Shari'at have been drawn, so the rules recognized as the principal elements of actual jurisprudence are the subject of Ilm-í-Fiqh, or the science of Law.
Fiqh in its root signifies conception, comprehension. Thus Muhammad prayed for Ibn Mas'úd : “ May God make him comprehend (Faqqihahu), and make him know the interpretation of the Qurán.” Muhammad in his quality of Judge and chief of the Believers ed, without appeal or contradiction, all the affairs of the people. His sayings served as a guide to the Companions. After the death of the Prophet the first Khalífs acted on the authority of the Traditions. Meanwhile the Quran and the Sunnat, the principal elements of religion and legislation, became little by little the subjeot of controversy. It was then that men applied themselves vigorously to the task of learning by heart the Quran and the Traditions, and then that jurisprudence became a separate science. No science had as yet been systematically taught, and the early Musalmáns did not possess books which would serve for such teaching. A change soon, however, took place. In the year in which the great jurisconsult of Syria died (A. H. 80) N'imán bin Sabit, surnamed Abu Hanífa was born. He is the most celebrated of the founders of the schools of jurisprudence, a science which ranks first in all Muslim seats of learning. Until that time and for thirty years later the Mufassirs, 1 the Muhaddis, 2 and the Fuqihá,3 had all their knowledge by heart, and those who possessed good memories were highly esteemed. Many of them knew by heart the whole Qurán with the comments made on it by the Prophet and by the Companions; they also knew the Traditions and their explanations, and all the commands (Ahkám) which proceed from the Qurán, and the Sunnat. Such men enjoyed the right of Mujtahidín. They transmitted their knowledge to their scholars orally. It was not till towards the middle of the second century A. H. that treatises on the different branches of the Law were written, after which six schools (Mazhabs) of jurisprudence were formed. The founders, all. Imáms of the first class, were Abu Hanífa, the Imám-í-'Azam or great Imám (A. H. 150), 4 Safian As-Sáurí (A. H. 161), Málik (A. H. 179), As-Sháfa'í (A. H. 204), Hanbal (A.H. 241) and Imám Dáúd Az-Zaharí (A. H. 270). The two sects founded by Saurí and Zaharí became extinct in the eighth century of the Hijra. The other four still remain.
1. A Mukallif is one who is subject to the Law. A Ghair.i.Mukallif is one not so subject, such as a minor, an idiot, &c. The term Mukallif is thus equivalent to a consistent Muslim, one who takes trouble (taklif) in his religious duties.
These men venerated one another. The younger ones speak with great respect of the elder. Thus Sháfa'í said :—“No one in the world was so well versed in jurisprudence as Abu Hanifa was, and he who has read neither his works, nor those of his disciples knows nothing of jurisprudence.” Hanbal when sick wore a shirt which had belonged to Sháfa'i, in order that he might be cured of his malady; but all this
1. Commentators on the Qurán. 2. The Traditionists. 3. Plural of Faqih, a theologian. 4. I have given the dates of their death.
did not prevent them starting schools of their own, for the right of Ijtihád is granted to those who are real Mujtahidín. There are three degrees of Ijtihád.
1. Al-Ijtihád fi'l Shari': absolute independence in legislation
2. Al-Ijtihad fi'l Mazhab: authority in the judicial systems founded by the Mujtahidín of the first class.
3. Al-Ijtihád fi'l Masáil : authority in cases which have not been decided by the authors of the four systems of jurisprudence.
The first is called a complete and absolute authority, the second relative, the third special.
THE FIRST DEGREE OF IJTIHÁD.
Absolute independence in legislation is the gift of God. He to whom it is given when seeking to discover the meaning of the Divine Law is not bound to follow any other teacher. He can use his own judgment. This gift was bestowed on the jurisconsults of the first, and to some in the second and third centuries. The Companions, however, who were closely connected with the Prophet, having transmitted immediately to their posterity the treasures of legislation, are looked upon as Mujtahidín of much higher authority than those of the second and third centuries. Thus Abu Hanífa says:" That which comes to us from the Companions is on our head and eyes (i.e., to be received with respect): as to that which comes from the Tábi'ín, they are men and we are men.”
Since the time of the Tábi'in this degree of Ijtihád has only been conferred on the six great Imáms. Theoretically any Muslim can attain to this degree, but it is one of the principles of jurispru. dence that the confirmation of this rank is dependent on many conditions, and so no one now gains the honour. These conditions are:
1. The knowledge of the Quran and all that is related to it; that is to say, a complete knowledge of Arabic literature, a profound acquaintance with the orders of the Qurán and all their sub-divisions, their relationship to each other and their connection with the orders of the Sunnat. The candidate should know when, and why each verse of the Qurán was written, he should have a perfect acquaintance with the literal meaning of the words, the speciality or generality of each clause, the abrogating and abrogated sentences. He should be able to make clear the meaning of the obscure' passages (Mutashábih), to discriminate between the literal and the allegorical, the universal and the particular.
2. He must know the Qurán by heart with all the Traditions and explanations.
3. He must have a perfect knowledge of the Traditions, or at least of three thousand of them.
He must know their source, history, object and their connection with the laws of the Qurán. He should know by heart the most important Traditions.
4. A pious and austere life.
Should any one now aspire to such a degree another condition would be added, viz :
6. A complete knowledge of the four schools of jurisprudence.
The obstacles, then, are almost insurmountable. On the one hand, there is the severity of the 'Ulamá, which requires from the candidate things almost impossible; on the other, there is the attachment of the 'Ulamá to their own Imáms, for should such a man arise no one is bound now to listen to him. Imám Hanbal said :-“ Draw your knowledge from whence the Imáms drew theirs, and do not content yourself with following others for that is certainly blindness of sight”. Thus the schools of the four Imáms remain intact after a thousand years have passed, and so the 'Ulama recognise since the time of these Imáms no Mujtahid of the first degree. Ibn Hanbal was the last.
The rights of the man who attained to this degree were very im. portant. He was not bound to be a disciple of another, he was a mediator between the Law and his followers, for whom he established a system of legislation, without any one having the right to make any objection. He had the right to explain the Qurán, the Sunnat and the Ijma' according as he understood them. He used the Prophet's words, whilst his disciples only used his. Should a disciple find some discrepancy between a decision of his own Imám and the Qurán or Traditions, he must abide by the decision of the Imám. The Law does not permit him to interpret after his own fashion. When once the disciple has entered the sect of one Imám he cannot leave it and join another. He loses the right of private judgment, for only a Mujtahid of the first class can dispute the decision of one of the Imáms. Theoretically such Mujtahidín may still arise; but, as we have already shown, practically they do not.
THE SECOND DEGREE OF IJTIHÁD.
This degree has been granted to the immediate disciples of the great Imáms who have elaborated the systems of their masters, They enjoyed the special consideration of the contemporary 'Ulamá, and of their respective Imáms who in some cases have allowed them to retain their own opinion. The most famous of these men are the two disciples of Abu Hanífa, Abu Yusuf and Muhammad bin al Hasan. In a secondary matter their opinion carries great weight. It is laid down as a rule that a Mufti may follow the unanimous opinion of these two even when it goes against that of Abu Hanifa.
THE THIRD DEGREE OF IJTIHÁD.
This is the degree of special independence. The candidates for it should have a perfect knowledge of all the branches of jurisprudence according to the four schools of the Arabic language and literature. They can solve cases which come before them, giving reasons for their judgment, or decide on cases which have not been settled by previous Mujtahidín; but in either case their decisions must always be in absolute accordance with the opinions of the Mujtahidín of the first and second classes, and with the principles which guided them. Many of these men attained great celebrity during their lifetime, but to most of them this rank is not accorded till after their death. Since Imám Qází Khán died (A. H. 592), no one has been recognised by the Sunnís as a Mujtahid even of the third class.
There are three other inferior classes of jurists, called Muqallidín, or followers of the Mujtahidín; but all that the highest in rank amongst them can do is to explain obscure passages in the writings of the older jurisconsults. By some of the 'Ulamá they are considered to be equal to the Mujtahidín of the third class. If there are several conflicting legal opinions on any point, they can select one opinion on which to base their decision. This a mere Qází cannot do. In such a case he would have to refer to these men, or to their writings for guidance. They seem to have written commentaries on the legal systems without originating anything new. The author of the Hidayah, who lived at the end of the sixth century, was a Muqallid.
Such is Mirza Kázim Beg's account. The whole article, of which I have only given the main points, is worthy of the closest study. It shows how “the system, as a whole, rejects experience as a guide to deeper insight or wider knowledge; tramples upon the teaching of the past; pays no heed to differences of climate, character, or history; but regards itself as a body of absolute truth, one jot or tittle of which cannot be rejected without incurring the everlasting wrath of God.” 1
1. Osborn's Islám under the Khalífs p.