Conditions for Ijtihaad

8/12/2019 Conditions for Ijtihaad

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A Refereed Study

The Condition of Conducting Ijtihaad on the Part of Judges

Dr. Abdul Azeez ibn Abdur-Rahmaan ibn Abdul-Azeez Al-Mish'al *

* Associate Professor in Islamic Jurisprudence and its Principles, College of

Sharee'ah, Imaam Muhammad ibn Sa'ud Islamic University, Riyadh.


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Dr. Abdul Azeez ibn Abdur-Rahmaan ibn Abdul-Azeez Al-Mish'al

100 Al-Adl (43)

Introduction

All praise is due to Allah who has commanded justice and kindness,and may Allah's peace and blessings be upon our Prophet Muhammad,the Seal of Prophethood, upon his noble family and noble companionsas well as upon those who follow them in righteousness until the Day of Judgment.

Conducting ijtihaad2 in Islam is essentially one of the issues thatMuslim scholars in the area of usool al-fiqh3 (principles of Islamic jurisprudence) have systematically tackled in their writings. They haveactually devoted a section in their writings to the issue of ijtihaad andtaqleed.4

Administering justice and passing judgments in Islam is doubtlessbased upon this salient feature of Islamic jurisprudence, namelyconducting ijtihaad which provides an adequate opportunity for doingso. For when the judge takes into account the cases before him, he has tocarry out ijtihaad, to the best of his ability, before he actually passes a judgment. The Prophet (peace be upon him) once said, "If a judge givesa verdict according to the best of his knowledge [by exercising ijtihaad]

and his verdict is correct, he will receive a double reward; and if hegives a verdict according to the best of his knowledge and his verdict iswrong, even then he will get a reward."

Therefore, it becomes crystal clear that the task of conducting ijtihaad isinseparable from passing judgments and issuing verdicts in Islamic jurisprudence. Thus, a judge is required to reflect on the cases brought

2 Ijtihaad is the endeavour of a Muslim scholar to interpret the source materials, inferrules from them, or give a legal verdict or decision on any issue on which there is nospecific guidance in the Qur'an and the Sunnah . A Mujtahid : (plural: mujtahidoon) is theexpert scholar who exercises ijtihaad (Translator's Note)

3 Usool al fiqh (principles of Islamic jurisprudence, philosophy of law) is the methodologyof deriving laws from the sources of Islam and of establishing their juristic andconstitutional validity. Usoolee (pl. usooliyyoon) is the expert scholar in this area ofinterest. (Translator's Note)

4 Taqleed is the opposite of ijtihaad and means the uncritical adoption or imitation of aparticular scholar or school of thought ( madhhab). (Translator's Note)


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before him, carefully consider them and take into account all theevidence available before he issues any verdict or judgment.

in view of the importance of this issue which is inextricably bound upwith the task of passing judgments, which in its turn occupies thehighest position in Islam due to its serious nature, people's dire need forit to settle disputes and realise justice as well as judges' need to be well-versed in Islamic teachings, I have deemed it highly appropriate to delvedeeply into the issue of meeting the condition of conducting ijtihaad onthe part of those who take up their posts as judges, discussing all itsaspects, delineating its direct relationship with the principle of Islamic jurisprudence ( usool al-fiqh), particularly regarding ijtihaad matters andwhen a judge may rightly be considered a mujtahid.

Part One: Linguistic and Technical Definitions of the Word Ijtihaad

A. Linguistic DefinitionThe word ijtihaad derives from the Arabic verbal root ( jahada,

"struggle"), which generally means, as linguist Ibn Faaris mentions,

'hardship, difficulty, struggle' and anything else in this sense. It is said," jahadtu and ajhadtu nafsee, meaning 'I have exerted myself to theutmost'. The noun juhd, derived from it, means ability, struggle andeffort. 5 Almighty Allah says, "Those (i.e. the hypocrites) who criticise thecontributors among the believers concerning their charities and criticisethe ones who find nothing to spend except their effort ( juhd), so theyridicule them." 6 According to some leading Arab linguists, the verb formmay also used interchangeably with the word jahada to mean 'strain,exhaust, tire out' with reference to illness or any other thing whichcauses feelings of discomfort.

It is also used metaphorically to mean 'exert oneself to the utmost witha view to producing an opinion', as Mu'aadh ibn Jabal said when theProphet (peace be upon him) asked him what he would do if he wantedto judge between people but could not find any guidance in the Qur'an

5 Ibn Faaris, Mu'jam Maqaayees al-Lughah , 1/487.6 Soorat at-Tawbah , 9:79.


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and the Sunnah : "ajtahidu ra'yee ",7 meaning, "I will make every effort tocome up with the right opinion."

By considering all the senses in which the Arabic verbal root ( jahada) isemployed, we will find that they all mean 'struggle, hardship, effort' andany other sense to this effect. Among words which carry this meaningare the words wus' and taaqah, which both denote strength, power andcapability. These words can produce such statements as 'spare no effort','make every effort', 'go to great pains', 'leave no stone unturned' and 'doall in one's power'.

The linguistic definition of the term provided by the usooliyyoon is tosome extent similar to that furnished by Arab linguists, but a largenumber of them have pointed out something very important, namelythat ijtihaad is used only about things which require an unusually greatamount of effort. Therefore, they argue, it is not appropriate to say thatsomeone has made an effort ( ijtihaad) in carrying a loaf of bread or hiswhip, as no hardship is involved here; rather, it is more appropriate tosay that someone has made an effort ( ijtihaad) in carrying a millstone orsomething equally heavy, as hardship is clearly involved in carrying outthis task. In fact, the verb ijtahada consist of the 't' consonant whichclearly signifies excessive sufferance and endurance. An example of thistype of verbs is the verb iqtala'a , extract [a tooth] or uproot [a plant]. 8

B. Technical DefinitionIn the terminology of the usooliyyoon, the definition of the word ijtihaad

is provided in view of two things: 1. With regard to its descriptive or qualitative sense. That is, in

view of it being a description or a state, and thus whoever fits such adescription is called a mujtahid . The closest definition furnished by theusooliyyoon in this regard is: "making every effort to comprehend the

goals of the Sharee'ah with a view to gaining some knowledge regardinga legal ruling." 9

7 This is part of a hadeeth reported by Abu Daawood, Book of Judgments, hadeeth no. 3592,at-Tirmidhee, Book of Judgments, hadeeth no. 1327 and Imaam Ahmad in Al-Musnad ,5/273.

8 Al-Aamidee's Al-Ihkaam, 4/162, Sharh al-'Adhud 'Alaa Mukhtasar ibn Haajib , 2/289 andNafaa'is al-Usool fee Sharh al-Mahsool, 9/3788.

9 Dr. Taha al-'Alwaanee, Ijtihaad and Taqleed in Islam (in Arabic), p. 16.


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2. With regard to it being a faculty or property which is establishedregarding the person who performs ijtihaad. In fact, most scholars ofusool al-fiqh (the usooliyyoon) have not, in my estimation, touched on thisaspect of ijtihaad; rather, some contemporary scholars amongst themhave defined it as "the competence to infer expert legal rulings fromfoundational proofs." 10 We need perhaps to cover both senses in thepresent paper, for its objective is to identify the extent to which thisdescription is met by those who undertake to issue verdicts and judgments (i.e. judges) and their attempt to observe this when dealingwith cases brought before them.

Part Two: Categories of Mujtahidoon 11

A discussion of the categories of mujtahidoon in Islam and the levels ofijtihaad is of paramount importance here, as this will help identify theaims and objectives of the present paper; for if we look at the conditionswhich ought to be met by a mujtahid according to the usooliyyoon andthe levels of ijtihaad in Islam, we will certainly be able to see whether ornot such conditions are met by those who undertake to issue legal

verdicts and judgments, or whether only some of them are met, for themujtahidoon do not occupy the same position in this regard, hence theimportance of the present prelude to the issue of delineating thecategories of mujtahidoon as to the rulings of the Islamic Law ( Sharee'ah).Scholars of the principles of Islamic jurisprudence ( usooliyyoon) maintainthat the mujtahidoon can be classified, according to their positions andthe levels of conducting ijtihaad, into a number of categories, as follows:

Independent ( mustaqill ) Mujtahid An independent mujtahid occupies the highest position in conducting

ijtihaad and only a few jurists have actually attained such a loftyposition. In fact, such a mujtahid is capable of issuing legal verdicts in allaspects of the Sharee'ah and is certainly well versed in the Qur'an, theProphet's Sunnah and the statements of the Prophet's companions. He is

10 Musa Tawaanah, Ijtihaad and our Dire Need for it in the Present Time (in Arabic), p. 120.11 A mujtahid (pl. mujtahidoon) is the expert scholar who exercises ijtihaad (Translator's

Note)


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also capable of finding solutions of the problems and questions whicharise and make a judgment between proofs and distinguish strongproofs from weak ones. He also furnishes the sources of the proof andprovides research on new issues in the light of current proofs. 12

Ibn al-Qayyim writes, "[Scholars] belonging to this category arequalified enough to issue legal verdicts, people may seek their opinionsand the obligation of conducting ijtihaad will undoubtedly be carried outthrough them." 13 Some later scholars hold that Muslim jurists areunanimously agreed in this respect. 14

The usooliyyoon have stipulated a number of conditions to be met by amujtahid who has attained this level, most important of which are asfollows:

a. He must be a Muslim. b. He must be legally responsible ( mukallaf ); i.e. he must have

attained puberty and must be of sound mind and intellectualcompetence.

c. He must demonstrate integrity. 15

d. He must be well versed in the proofs to which recourse is takento issue rulings, namely the Qur'an, the Sunnah , unanimous agreementof Muslim scholars ( ijmaa' ) and deduction by analogy ( qiyaas)16. This alsoincludes other forms of legal evidence to which jurists refer to issuerulings, such as istishaab17, 'urf 18, sadd adh-dharaa'i 19' , istislaah20 and istihsaan 21, among others.

12 See Ibn al-Qayyim, I'laam al-Muwwaqqi'een , 4/212 and Musa Tawaanah, Ijtihaad and ourDire Need for it in the Present Time (in Arabic), p. 357.

13 I'laam al-Muwwaqqi'een , 4/212.14Ijtihaad and our Dire Need for it in the Present Time (in Arabic), p. 35 6 .

15 This means he must refrain from all the prohibitions of the Sharee'ah and perform allits obligations.(Translator's Note)

16 Recourse to analogy is only warranted if the solution of a new case cannot be found inthe Qur'an and the Sunnah . Analogy then consists in extending a principle ( asl)derived from the Qur'an and the Sunnah to the new case. Analogical deduction cannotoperate independently of the nusoos. (Translator's Note)

17 Istishaab: Presumption of continuity, or presuming continuation of the status quo ante.For example, istishaab requires that once a contract of sale, or of marriage, is concluded


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In fact, the usooliyyon have detailed these conditions. They argue that amujtahid must know the legal rulings mentioned in the Qur'an. If he is a judge, he must be fully acquainted with the legal contents of Qur'anicverses ( aayaat al-ahkaam) in the domain of passing judgments as well asthe so-called naasikh and mansookh (the abrogator and the abrogated) .22

As for the Sunnah , he must know the Prophetic traditions relating tolegal rulings, the traditions that have been abrogated and those thathave abrogated them ( naasikh and mansookh). He must also distinguishthe authentic traditions employed as evidence from the weak ones.

Regarding the unanimous agreement of Muslim scholars ( ijtihaad), heought to be aware of such agreements in order not to contradict them.An example of this is his knowledge that his ruling is in accordance witha certain school of jurisprudence or that the case he is dealing with isnovel and none of the scholars has ever tackled it before.

Concerning deduction by analogy ( qiyaas), he must be well versed inits conditions, requirements and everything related to it. 23

e. He must be competent in the Arabic language and be aware ofthe subtle nuances of the meanings of Arabic words. The usooliyyoon

argue that a mujtahid must be well versed in Arabic and must appreciatethe subtleties of the language in order to understand the language in

it is presumed to remain in force until there is a change established by evidence.(Translator's Note)

18 'Urf is the Local or prevailing custom which is `recognizably' good. (Translator's Note)19 Sadd adh-Dharaa'i' : Literally, blocking the means. Implies blocking the means to an

expected end or an evil which is likely to materialize if the means towards it is notobstructed. For example, illicit privacy between members of the opposite sex isblocked or made unlawful because of the prohibition of adultery. (Translator's Note)

20 Istislaah and istihsaan are two methods of reasoning much discussed in the books ofusool al-fiqh. The two conceptions as a result of their close relationship are sometimesconfused. (Translator's Note)

21 Istihsaan: Juristic preference - the abandonment of one legal ruling for another which isconsidered better or more appropriate to a given circumstance. (Translator's Note)

22 The naasikh (active participle) refers to the passage which abrogates or supersedes thepart which is abrogated. The abrogated passage is called mansookh (passive participle).(Translator's Note)

23 See Al-Ghazaalee, Al-Mustasfaa ,, 2/351; Al-Aamidee, Al-Ihkaam, 4/163; Ibn Qudaamah,Rawdhat an-Naadhir , 3.960; and Al-Bahr al-Muheet, 6/199.


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which the Qur'an was revealed and thus easily distinguish betweenplain, manifest and ambivalent words as well as distinguish the generalfrom the specific, the literal from the metaphorical and the absolute fromthe specified, among other things. This will also help him understandthe actual meaning of speech, for the Qur'an was revealed in a clearArabic language, and the Prophet (peace and blessings be upon him)was the most eloquent person who has ever spoken this language.Therefore, any person who considers the Qura'nic and Sunnah textsought to be well versed in Arabic.

Ash-Shaatibee mentions that the validity of conducting ijtihaad regarding legal rulings is dependent upon attainment of the rank ofijtihaad in Arabic, specifically with regard to words and their meanings.Ash-Shaatibee actually goes as far as to say that a mujtahid must beproficient in Arabic in order to attain such a rank. He also considers thatproficiency in Arabic is the first requirement of understanding theSharee'ah , for Almighty Allah revealed it to His Messenger (peace andblessings be upon him) in an Arabic tongue and through it Allah's Bookand the Prophet's statements will be understood. Therefore, a learnermust begin with the Arabic language, as it must be given priority overanything else.

Ash-Shaatibee writes in this connection, "As the Qur'an and theSunnah are in Arabic, only someone who is well versed in Arabic canexamine them [to deduce legal rulings], just as someone is not allowedto talk about them unless he is aware of their intents. Engaging inexamining them [for this purpose] will not be valid without being wellversed in them, for in this case he will not be confused by any aspect ofthe Sharee'ah ."24

f. He must understand the objectives of the Sharee'ah.25 Ash-

Shaatibee stipulates this condition and considers it to be the foremostand most important condition of carrying out ijtihaad. He argues that theposition of conducting ijtihaad cannot be attained without first fully

24 Al-Muwwaafaqaat, 3/213.25 The objectives of Islamic Law ( maqaasid ash-Sharee'ah) are the purposes and goals that

it aspires to achieve through its laws, especially with respect to human welfare.(Translator's Note)


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understanding the objectives of the Sharee'ah . He also considers ascholar's lack of understanding the Sharee'ah objectives to be the mainreason behind his mistakes and that failing to meet this condition easilyleads to introducing innovations in religion. 26

Some usooliyyoon have stressed the importance of this condition whichmust be met in order to be eligible to conduct ijtihaad.27

g. He must be able to carry out istinbaat .28 In fact, this conditionfollows as a consequence from the abovementioned conditions. Ash-Shaatibee considers this condition to serve the previous condition,namely understanding the objectives of the Sharee'ah and acomplementary condition to attain the position of conducting ijtihaad.29 Many usooliyyoon have also considered this to be the most importantcondition to conduct ijtihaad.30

These are the most important conditions which must be met by anindependent mujtahid who is able to carry out absolute ijtihaad. Scholarswho have attained this position of ijtihaad include the major companionsof the Prophet (peace and blessings be upon him), the major taabi'oon 31 and the four leading Muslim jurists, namely Abu Haneefah, Maalik,Ash-Shaafi'ee and Ahmad.

Affiliated ( muntasib ) MujtahidIbn al-Qayyim states that an affiliated ( muntasib) mujtahid is one who iswell versed in the legal verdicts issued by the leader of his madh-hab (school of jurisprudence) and fully knows his sayings, major principlesas well as objections to his opinion and is able to use the commentariesof his imaam (school's leader) for assistance in finding the proofs. He isalso capable of drawing analogous conclusions from whatever his imaam

26 Al-Muwwaafaqaat, 5/41 and 135.27 See Al-Juwaynee, Al-Burhaan , 2/874-875; and Al-'Izz ibn 'Abd as-Salaam, Qawaa'id al- Ahkaam Fee Masaalih al-Anaam, 2/160.

28 Istinbaat (inference) means deducing a somewhat hidden meaning from a given text.The process of extracting laws. (Translator's Note)

29 Al-Muwwaafaqaat, 5/42.30 See ash-Shaafi'ee, Ar-Risaalah , pp. 509-510; Ibn 'Aqeel, Al-Waadhih , 1/359; and Al-Bahr

al-Muheet, 6/199.31 The Taabi'oon (literally, followers): The generation of Muslims immediately after the

Prophet's Companions. (Translator's Note)


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has stated without necessarily adopting his legal ruling or the evidencehe has furnished. He only follows his leader's way of exercising ijtihaadand issuing legal verdicts and calls to his school of jurisprudence. Headopts his leader's methodology of conducting ijtihaad but does notnecessarily imitate him. 32

Amongst these, Ibn al-Qayyim mentions al-Qaadhee Abu Ya'laa fromamong the Hanbalites, Abu Yoosuf and Muhammad from among theHanafites, al-Muzanee and Ibn Surayj from among the Shaafi'ites andAsh-hab and Ibn al-Qaasim from among the Maalikites. He then says,"Whoever considers these [scholars] and their statements will find outthat they did not adopt the opinions of the leaders [of their school of jurisprudence]. In fact, their disagreements with their leaders were tooobvious to be denied. They showed different levels of disagreement.These [ mujtahidoon] occupy a position below that occupied byindependent mujtahiddon."33 Mujtahid in his Madh-hab Some usooliyyoonhave mentioned that mujtahidoon of this type actually

belong to different categories:a. Mujtahid at-Takhreej: This is one who exercises ijtihaad within

the confines of the leader of hismadh-hab

. He follows the principles laiddown by his leader and does not contradict them. He is well versed inIslamic jurisprudence, its principles as well as the textual evidence insupport of legal rulings. He also has thorough knowledge of the rulesand procedures for reasoning by analogy ( qiyaas), appreciates thesubtleties of the language and is capable of supplementing whatever hisleader has not laid down with something he has already laid down. As-Suyootee and other scholars call a jurist who fits such a descriptionmujtahid at-takhreej.34

b.

Mujtahid at-Tarjeeh: This type occupies a position below thatoccupied by mujtahid at-takhreej. He is also well versed in Islamic jurisprudence, knowledgeable in the madh-had of his leader, knows all

32 See I'laam al-Muwwaqqi'een , 4/212.33 I'laam al-Muwwaqqi'een , 4/213.34 Muqaddimat al-Majmoo' Sharh al-Muhadh-dhab , 1/72. See also Musa Tawaanah, Ijtihaad

and our Dire Need for it in the Present Time (in Arabic), p. 364.


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the evidence furnished by his leader and is capable of exercising tarjeeh (the ability to determine the preponderant opinion). As-Suyootee refersto a mujtahid of this type as mujtahid at-tarjeeh .35

c. Mujtahid al-Fatwaa : This is one who has thorough knowledgeof his madh-hab and is fully competent in understanding all casesdiscussed in his madh-hab. He is capable of supplementing the legalruling not expressly stated by his leader with something he has alreadystated if there is a chance to do so. He actually relies on what his leadersaid or the verdicts he issued, which are basically established in themadh-hab itself or the commentaries furnished by leading mujtahidoon inthis madh-hab on the statements made by the madh-hab's leader. 36

It is worth noting here, however, that the term mujtahid , as applied tothe last three types of mujtahidoon, is used rather loosely, with somereservation. If we choose to be precise, the term muqallid would actuallyfit their description despite the difference in their positions. Al-Mujtahid al-Khaass (the Particular Mujtahid )In view of the possibility of classifying ijtihaad into different

categories 37, as the usooliyyoon maintain, there is yet a fourth category ofmujtahidoon, namely al-mujtahid al-khaass. This means he exercises ijtihaad

in one particular area of Islamic knowledge but adopts the opinion ofother scholars in their respective areas of specialty. He may also conductijtihaad in one aspect of Islamic jurisprudence, such as sales and the lawof inheritance but adopts the opinion of others in other aspects ofIslamic jurisprudence. According to the usooliyyoon, a scholar canexercise ijtihaad in one particular issue to the exclusion of other juristicissues, in which case he may be referred to as mujtahid fee mas'alah (mujtahid in a particular issue). 38

Ibn Qudaamah writes, "It is not one of the conditions of ijtihaad

conducted with regard to a particular issue ( ijtihaad fee mas'alah) that the

35 Muqaddimat al-Majmoo' Sharh al-Muhadh-dhab , 1/72. See also Musa Tawaanah, Ijtihaadand our Dire Need for it in the Present Time (in Arabic), pp. 367-368.

36 Dr. Wahbah az-Zuhaylee, Al-Waseet Fee Usool al-Fiqh al-Islaamee, pp. 547-548.37 See Al-Mustasfaa , 2/353; Al-Mahsool, 2/709; Al-Aamidee's Al-Ihkaam, 3/140' Tayseer at-

Tahreer , 4/182; and Irshaad al-Fuhool, p. 237.38 I'laam al-Muwwaqqi'een , 3/446; and Dr. Taha al-'Alwaanee, Ijtihaad and Taqleed in Islam

(in Arabic), p. 73.


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mujtahid exercises ijtihaad in all issues. Rather, if he fully knows andunderstands the proofs supplied with regard to a particular issue oranything related to it, then he is a mujtahid in that particular issue even ifis totally ignorant of other issues. A mujtahid who fully knows andunderstands the law of inheritance in Islam and the fundamentalsregulating it does not necessarily have to fully know and understandsales in order to be called a mujtahid in this particular issue. On accountof that, all leading jurists have refrained from dealing with certain legalissues. It has rightly been said that whoever has a say in every issuemust be insane. If a scholar abandons the statement 'I do not know' [formatters he does not know] will certainly make a mistake" 39

Part Three: Linguistic and Technical Definitions ofthe Word Qadhaa'

A. Linguistic DefinitionThe word qadhaa' (pl. aqdhiyyah) is used in Arabic in a number of

senses including 'ordainment' and 'performing [a task]'. In Lisaan al-'Arab , we read, " Qadhaa' means judging a matter and reaching a final

decision regarding it. Other senses also include 'informing','substituting', 'judging' and completing a task'." 40 B. Technical DefinitionIn its technical sense, Muslim jurists have furnished a number of

definitions for the term. The Hanafites define it as "[the process of]settling disputes and ending disagreements in particular". 41 SomeHanbalites have defined it as "[the process of] bringing to light the legalruling, making it binding and settling disputes". 42

There are other definitions which can generally be summarised as the

necessity of adopting the legal ruling which is essentially deduced fromthe sources of legislation in Islam, namely the Qur'an, the Sunnah ,unanimous agreement ( ijmaa' ) and analogical deduction or reasoning

39 Ibn Qudaamah, Al-Mughnee , 14/16.40 Lisaan al-'Arab , 5/3665.41 Haashiyat Ibn 'Aabideen , 5/352.42 Sharh Muntahaa al-Iraadaat , 3/45.


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(qiyaas) and exercising ijtihaad which is required to consider them. Inaddition, the legal ruling is to be considered binding in order todistinguish it from the legal verdict ( fatwa).

Part Four: General Conditions the Judge Must Meetand the Controversial Issue In this regard

Muslim jurists have mentioned a number of conditions which a judge(a qaadhee) must meet. They have generally agreed on some of theseconditions but expressed different opinions with regard to others.

Conditions upon which they have agreed, according to the majority of jurists, include being a Muslim, being legally responsible ( mukallaf )43,being a man, being free and being upright. They are also generallyagreed that he must be able to hear, see and speak. 44

Despite their agreement on these matters, they have disagreed onother conditions such as the judge's ability to write 45 and conductijtihaad. It is this ability of exercising ijtihaad that the present papertackles, for scholars have expressed different opinions as to whetherexercising ijtihaad should be stipulated as a condition for the validity, or

otherwise, of executing judicial tasks. This issue is discussed below.

Section One: A. Discussion of the Controversial Issue

In the terminology of the usooliyyoon, the definition of the word ijtihaad is provided in view of two things:

1. With regard to its descriptive or qualitative sense. In this case, itis defined as "making every effort to comprehend the goals of theSharee'ah with a view to gaining some knowledge regarding a legal

ruling."

43 See Al-Hamawee, Adab al-Qadhaa' , p. 21; Al-Maawardee, Al-Haawee al-Kabeer , 16/154;and Dr Shakat 'Ulayyaan, As-Sultah al-Qadhaa'iyah Fee al-Islaam , p. 107.

44 See Ibn farhoon, Tabsirat al-Hukkaam , p. 21; Al-Hamawee, Adab al-Qadhaa' , p. 21; As-Sultah al-Qadhaa'iyah Fee al-Islaam , p. 1110 and Mahmood 'Arnoos, Taareeakh al-Qadhaa'Fee al-Islaam, p. 76.

45 Tabsirat al-Hukkaam , p. 21; Dr. Faarooq Marsee, Al-Qadhaa' Fee ash-Sharee'ah al-Islaamiyyah, p. 191.


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2. With regard to it being a faculty or property which is establishedregarding the person who performs ijtihaad. In this case, it is defined as"the competence to infer expert legal rulings from foundational proofs."

We will discuss here meeting the condition of exercising ijtihaad on thepart of judges before taking office, for ijtihaad in this technical sense isconsidered a condition for those who take up such a position.

As for ijtihaad in its general sense, namely to ponder over the casepresented, it seems to me that this ability is actually, more often thannot, inherent in the whole process of exercising the office of a judge; forthe judge will obviously consider the proofs produced by the litigantsand listen to the witnesses' statements, among other things. It is not thismeaning of ijtihaad that is discussed in the present paper. In fact,disagreement has arisen among scholars regarding whether a judgemust meet the condition of conducting ijtihaad in its technical sense, as itis not permissible, in the view of those who stipulate this condition, toappoint to such a position a muqallid or an ignorant person.

In fact, a number of scholars who have tackled this issue havediscussed this controversy and asked, "If there are people who areknown for their integrity and their ability to exercise ijtihaad in itstechnical sense in a certain period of time, will the condition ofexercising ijtihaad be considered necessary and thus the judge's judgments be considered valid and must be acted upon, or will it beconsidered a recommended course of action, in which case a muqallid may be appointed to such a post despite the existence of judges who areable to conduct ijtihaad?

Regarding lack of finding judges known for their integrity and abilityto exercise ijtihaad, no scholar, to the best of my knowledge, has everstipulated that a judge has to conduct ijtihaad, for this will certainly lead

to dispensing with the judge's services and people will consequently bedeprived of their rights. In fact, many scholars have made this pointabundantly clear when dealing with this particular issue. Quoting al-Maaziree, a prominent Maalikite jurist who lived in the sixth centuryafter the Hegira (twelfth century according to the Gregorian calendar),writes, "Preventing a muqallid from taking up the position of a judge inthis day and age will lead to suspending judgments, wreaking havoc


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and causing anarchy and disputes, and the Islamic Law is obviouslyagainst all this." 46

The author of Al-Insaaf (Justice) also writes in this regard, "This hasbeen in practice for a very long period of time, otherwise people'sinterests will have been lost." 47

B. Scholars' Views regarding this Issue

Scholars have expressed different opinions as to whether exercisingijtihaad on the part of those who take up the position of a judge andwhether such a condition is necessary or merely recommended if thereare mujtahidoon in a certain period of time. Two views have beenexpressed in this regard:

First Opinion: Ijtihaad is an obligatory condition to take up the officeof a judge. Therefore, it is not permissible to appoint someone to theposition of a judge if he cannot exercise ijtihaad. This was the view of themajority of the Maalikites48, the Shaafi'ites49, the Hanbalites50 and theDhaahirees.51 Advocates of this view argue that appointing a muqallid oran ignorant person to such an office when there are people known for

their integrity and ability to exercise ijtihaad is invalid and his judgments

46 Tabsirat al-Hukkaam , 1/27. See also Al-Qurtubee's Al-Mufhim Limaa Ushkila Min TalkheesKitaab Muslim, 5/167.

47 Al-Insaaf (the edition printed along with Ash-Sharh al-Kabeer ), 21/302. See also Mughneeal-Muhtaaj Sharh al-Minhaaj , 4/377.

48 Al-Hattaab's Mukhtasar Khaleel along with Mahaabib al-Jaleel, 8/66-67; Al-Kharshee 'Alaa

Mukhtasar Khaleel, 4/139; Ibn Shaass 'Iqd al-Jawaahir ath-Thameenah , 3/97; Tabsirat al-Hukkaam, 1/26; and Al-Qurtubee's Al-Mufhim Limaa Ushkila Min Talkhees Kitaab Muslim, 5/168-9.

49 An-Nawawee, Rawdhat at-Taalibeen, 8/83' Al-Maawardee, Al-Haawee al-Kabeer , 16/159;and al-Hamawee, Adab al-Qadhaa' , p. 27.

50 Al-'Akbaree, Ru'oos al-Masaa'il al-Khilaafiyyah , 6/957; and Ibn Qudaamah, Al-Mughnee ,14/14-5.

51 The Daahirees are followers of the Dhaahiree School of Jurisprudence whose followersaccepted only the most literal interpretation of the Quran and hadeeth. (Translator'sNote) See Ibn Hazm, Al-Muhallaa , 10/509.


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will not be considered effective even if his judgment is right as he is notconsidered to have authority ( wilaayah).52

It appears from the statements of these and other scholars who havewritten on this issue that the type of ijtihaad mentioned here which theyconsider obligatory for the validity of holding the position of judge isabsolute ( mutlaq) ijtihaad, for they have mentioned a number ofconditions which can only be met by a mutlaq mujtahid .53 The definitionof this and other categories of mujtahidoon (sing. Mujtahid ) is discussed inPart Two of the present paper.

Second Opinion: Ijtihaad is a merely recommended condition to takeup the office of a judge. Therefore, it is permissible to appoint someoneto the position of a judge if he cannot exercise ijtihaad even if there arepeople known for their integrity and ability to exercise ijtihaad. This wasthe view of the majority of the Hanafites54 and some Maalikites.55

Advocates of this view argue that it is absolutely acceptable to appointa muqallid to the post of judge even if there is a mujtahid or a muqallid better than him, for he can refer to the legal verdicts issued by other jurists. The author of Al-Hidaayah (Guidance) writes in this connection,"The most authentic view is that the condition of being able to exerciseijtihaad is only a matter of priority." 56

Some Hanafite jurists have gone as far as to concede that an ignorantperson can actually act on someone elses position (i.e. do taqleeed) without knowledge of his evidence. The author of Multaqaa al-Abhur writes, "[The ability to] to exercise ijtihaad is only a matter of priority,and an ignorant person can actually be appointed to the position of judge." 57

52 Al-Maawardee, Al-Haawee al-Kabeer , 16/159' Mawaahib al-Jaleel, 8/67; and Tabsiratal0Hukkaam, 1/26.

53 See for example Ibn Hubayrah, Al-Ifsaah, 2/345; Al-Hamawee, Adab al-Qadhaa' , p. 27; Al-Minhaaj along with its commentary Mughnee al-Muhtaaj , 4/375-7; and IbnQudaamah, Al-Mughnee , 14/15-6.

54 Badaa'i' as-Sanaa'i' , 7/3; Hashiyat Ibn 'Aabideen , 5/365; Al-Hidaayah Sharh Bidaayat al- Mubtadee, 3/112; and Sharh al-Qadeer 'Alaa al-Hidaayah , 7/256.

55 Tabsirat al-Hukkaam , 1/27; and Ash-Sharh as-Sagheer Bi Haamish Bulghat as-Saalik, 2/330.56 Al-Hidaayah Sharh Bidaayat al-Mubtadee , 3/112; and Sharh Fath al-Qadeer , 7/256.57 Multaqaa al-Abhuralong with its commentary Majma' al-Anhur , 2/426.


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By the word 'ignorant', the author does not however mean an ordinaryperson but rather someone who cannot exercise ijtihaad; that is, he isknowledgeable but imitates a certain scholar (i.e. he is a muqallid).

C. Evidence Produced

Advocates of the first opinion have furnished textual evidence fromthe Qur'an and the Sunnah as well as rational evidence, as follows:

1. Evidence from the Qur'ana. "And judge between them by what Allah has revealed." 58 In this verse, they argue, Almighty Allah commands his Prophet

(peace and blessings be upon him) to judge between people by whatAllah has revealed, and not to judge between them by imitating others. 59

b. "[We said], 'O David, We have made you a successor upon theearth, so judge between people in truth and do not follow our owndesire, as it will lead you astray from the way of Allah.'" 60

Here, they contend, Almighty Allah commands His Prophet David(peace be upon him) to judge between people in truth. Even if this wasthe practice in divine laws revealed before the Qur'an, we have ample

evidence in the Islamic law which fully supports it. The Qur'an says,"Allah commands you to render trusts to whom they are due and whenyou judge between people to judge with justice." 61 The Qur'an also says,"And if you judge, judge between them with justice." 62

2. Evidence from the Sunnaha. The Prophet (peace be upon him) said, "If a judge gives a verdict

according to the best of his knowledge [by exercising ijtihaad] and hisverdict is correct, he will receive a double reward; and if he gives a

58 Surat al-Maa'idah , 5:49.59 Ibn Qudaamah , Al-Mughnee, 14/14.60 Surat Saad , 38:26.61 Surat an-Nisaa' , 4:58.62 Surat al-Maa'idah , 5:42.


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verdict according to the best of his knowledge and his verdict is wrong,even then he will get a reward." 63

In this tradition, they argue, the Prophet (peace and blessings be uponhim) makes it clear that the judge gets rewarded when he passes thewrong judgment and gets a double reward when he passes the right judgment. He makes such a result conditional upon the effort he makesin the words 'according to the best of his knowledge'. If such a conditionis missing, he will not be rewarded if he gives a verdict withoutexercising ijtihaad. Rather, he will be considered a sinner; and if hisverdict is wrong, he will not be excused. 64

b. The Prophet (peace and blessings be upon him) said , " Judges areof three types, one of whom will go to Paradise and two to Hell. The onewho will go to Paradise is a man who knows what is right and gives judgment accordingly; but a man who knows what is right and actstyrannically in his judgment will go to Hell; and a man who gives judgment for people when he is ignorant will go to Hell." 65

In this report, they maintain, the Prophet (peace and blessings be uponhim) considers the judge who judges out of ignorance one of the two judges to be admitted into Hell fire. This clearly shows that it is not

permissible for someone who does not know truth along with itsevidence, namely the mujtahid , to fill a judicial post. 66 c. Some companions of Mu'aadh ibn Jabal (may Allah be pleased with

him) said, "When Allah's Messenger (peace and blessings be upon him)intended to send Mu'aadh ibn Jabal to Yemen, he asked him, 'How willyou judge when the occasion of deciding a case arises? He replied, 'Ishall judge in accordance with Allah's Book.' He then asked him, 'What

63 Reported by al-Bukhaaree on the authority of 'Amr ibn al-'Aass (may Allah be pleasedwith him), Book of Holding Fast to the Qur'an and the Sunnah , 8/157; and Muslim, Book of Judgments, 3/1342, hadeeth no. 1716.

64 Fath al-Baaree, 13/318-9. See also As-Siraaj al-Wahhaaj Min Kashf Mataalib Saheeh Muslimibn al-Hajjaaj, 6/413-4.

65 Reported by at-Tirmidhee, Book of Rulings, 3/613; Abu Daawood, Book of Judgments,3/299; and Ibn Maajah, Book of Rulings, 2/776.

66 Al-Mughnee , 14/14; As-Siraaj al-Wahhaaj Min Kashf Mataalib Saheeh Muslim ibn al-Hajjaaj ,6/415, As-San'aanee, Subul as-Salaam, 4/324; Al-Maawardee, Al-Haawee, 16/160; Al-Qurtubee, Al-Mufhim Limaa Ushkila min Talkhees Kitaab Muslim, 5/168.


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will you do if you do not find any guidance in Allah's Book?' He replied,'I will act in accordance with the Sunnah of the Messenger of Allah.' Heasked, 'What will you do if you do not find any guidance in the Sunnah of the Messenger of Allah and in Allah's Book?' He replied, 'I will do mybest to form an opinion and I will spare no effort.' The Prophet (peaceand blessing be upon him) then patted him on the chest and said, 'Praisebe to Allah Who has helped the messenger of the Messenger of Allah tofind something which pleases the Messenger of Allah.'" 67

Here, they argue, the Prophet (peace and blessings be upon him)approved Mu'aadh's step to exercise ijtihaad after trying his best to findthe right ruling in the Qur'an and the Sunnah . This evidently indicatesthat ijtihaad is a characteristic which the judge must possess. Were taqleedpermissible, the Prophet (peace and blessings be upon him) would havemade it clear there and then. 68

3. Rational Evidencea. Passing a judgment is much weightier than issuing a legal verdict

( fatwa), as the former becomes binding. 69 The mufti is not supposed to bean ordinary person who is given to imitating others, and it is all themore so with the judge. 70

An Objection and its RefutationOpponents of this view have strongly objected to this evidence, sayingthat it is permissible that a mufti can inform others of whatever he hasheard, and so can the judge. In refutation of this, it has been argued thatit is true that a mufti can indeed inform others of whatever he has heardbut he can rightly be called a transmitter ( mukhbir ) in this case, but heneeds to transmit information from a person who exercises ijtihaad, in

67 Reported by Abu Daawood and others.68 Al-Qaraafee, Adh-Dhakheerah, 10/21.69Muslim scholars say, al-mufti mukhbir wal-qaadhee mujbir , meaning, "A mufti transmits

whereas a judge enforces." Someone who goes to a court of law and presents his casebefore a judge is legally bound to follow the conclusion of the judge whereas someonewho asks a mufti for the ruling on a particular question is not legally bound to followwhat the mufti says; he can go to another mufti and take his opinion. (Translator'sNote)

70 Al-Mughnee , 14/14-5. See also Ru'oos al-Masaa;il al-Khilaafiyyah. 6/958.


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which case the information he imparts will be acted upon but not hislegal verdict ( fatwa).71

b. The Muslim ruler to his subjects is just like a guardian to an orphan,in which case he ought to take into account the common good. He must,for instance, prevent a person who is not qualified as a doctor to practisemedicine. In the same vein, he ought to prevent people who are ignorantof Islamic jurisprudence to engage in such a discipline, especially if itcomes to executing judicial tasks, for such a position is not only confinedto a certain practice but also enforces legal judgments. A muqallid, andwith greater reason an ignorant person, does not know anything aboutIslamic jurisprudence, which requires the knowledge to infer expertlegal rulings from foundational proofs. 72

c. Taqleed (imitation) with regard to the minor issues in Islamic Law isa necessity and only an ordinary person needs it due to his inability toderive legal rulings from Islamic sources. Almighty Allah wants us toworship him only in accordance with the Qur'an and the Sunnah ;therefore, if taqleed is permissible only for someone who is in dire needof it, then, as the Islamic maxim goes, a dire necessity should strictly bemeasured according to what it actually is ( adh-dharoorah tuqaddaru biqadarihaa). A muqallid judge should not impart this ruling to others bymaking it incumbent upon the litigants to follow the school of jurisprudence of the leader he is following. 73

d. Incidents are numerous and divine texts are limited, and the judgewould not always find the text he needs to settle a dispute, in which casehe needs to derive rulings from the available texts. This cannot be doneunless he is a mujtahid .74

Advocates of the second opinion have also furnished some evidence insupport of their view, including the following:

a. Qadhaa' (the office and functioning of a judge) has been primarilyestablished to settle disputes and render rights to those entitled to them,and this can be realised by merely appointing a muqallid to such a

71 Al-Mughnee, 14/15.72 I'laam al-Muwaqqi'een , 4/217. See also Nidhaam al-Qadhaa' Fee al-Islaam , p. 21.73 Al-Maawardee, Al-Ahkaam as-Sultaaniyyah, p. 66.74 As-Sadr ash-Shaheed, Sharh Adab al-Qaadhee, 1/128.


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position as he can pass a judgment by adopting the views of otherscholars and referring to their statements and legal verdicts. 75

In refutation of this, it has been argued that qadhaa' (the office andfunctioning of a judge) has not been established to settle disputes in anymanner but rather to settle them in accordance with the rulings laiddown by the Islamic Law. Therefore, if the judge is ignorant or is a meremuqallid, this objective will by no means be realised, for a muqallid judgewould not know that he has passed a judgment based on Islamicknowledge, hence his ignorance. Besides, referring to others' opinionsdoes not constitute a form of ijtihaad at all. 76

b. If the muqallid judge is allowed to seek a legal verdict regardinghimself, then he is also allowed to use the same verdict with regard toother people who seek his judgments, as both cases represent the sameruling with knowledge. 77

In refutation of this, it has been argued that an ordinary person feelscompelled to take others' verdicts, whereas the judge is not.Furthermore, an ordinary person applies it only to himself, while the judge enforces it on others. 78

c. Appointing a muqallid judge who follows a certain school of

jurisprudence ( madh-hab) is the best policy, as it is in the public' bestinterest to approve of the judge following a certain school of jurisprudence. Besides, he will be free from accusations because he willonly pass a judgment based on the preponderant view adopted by theleader of the madh-hab he is following as long as he has held such aposition on condition that he would follow his madh-hab to issue judgments. 79

In refutation of this evidence, it has been contended that the claim thatappointing a muqallid person to execute judicial tasks is the best policy is

ungrounded, for Almighty Allah wants us to worship Him inaccordance with the dictates of His Book (i.e. the Qur'an) and the

75 Sharh Fath al-Qadeer , 6/360; Badaa'i' as-Sanaa'i' , 7/3.76 Al-Maawardee, Al-Haawee al-Kabeer , 16/160' and Ru'oos al-Masaa;il al-Khilaafiyyah,

6/958.77 Al-Haawee al-Kabeer , 16/159.78 Ibid. 16/16079 Jamaal al-Marsafaawee, Nidhaam al-Qadhaa' Fee al-Islaam , p. 21.


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practice ( Sunnah ) of His Messenger (peace and blessings be upon him)and commands us to refer to them in all matters. The Qur'an says, "And judge between them by what Allah has revealed." 80

Furthermore, it has been argued, novel incidents and judicial cases areunlimited, and the texts which the scholar whom the judge imitates areconfined to what happened in his time. How then can the judge issue judgments regarding novel judicial cases if he cannot exercise ijtihaad?

It has been further argued that the claim that the judge will be freefrom accusations because he will only pass a judgment based on thepreponderant view adopted by the leader of the madh-hab is baseless, asintegrity and justice constitute some of the conditions a mujtahid mustmeet in order to accept his legal verdicts and judgments. Therefore,appointing such a qualified judge who is known for his integrity willmake him free from accusations in the first place. 81

If it is permissible that the judge can pass a judgment based on thetestimony given by two witnesses despite his ignorance of what theyhave done to make the testimony valid and pass a judgment based onthe value stated by a muqawwim82 despite his ignorance of how hemanaged to do so to determine the correct value, then it is alsopermissible that he can use the verdict and judgment of others despitehis ignorance of how they managed to produce a correct verdict and judgment. 83

In refutation of this evidence, it has been argued that just as the meansof giving testimony is considered, namely reason, sight and hearing asreceptive tools and the mind and the tongue as productive tools, so themeans of passing judgments, that is ijtihaad, is to be taken into accountwhen executing judicial tasks. 84

80 Surat al-Maa'idah , 5:49.81 Nidhaam al-Qadhaa' Fee al-Islaam , p. 22. See also Dr. Faarooq Marsee, Al-Qadhaa' Fee ash-

Sharee'ah al-Islaamiyyah, p. 189.82 A muqawwim is an expert who can determine the like things for payment of

compensation for the things damaged or perished and compensation for offences.(Translator's Note)

83 Al-Haawee al-Kabeer , 16/160.84 Al-Haawee al-Kabeer , 16/160.


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It has been further argued that the analogy employed is irrelevant, forthe judge is ignorant of the manner in which the like things for paymentof compensation for the things damaged or perished ( taqweem) has beendetermined, and thus he has based his judgment on the statement of anexpert (i.e. the muqawwim). A muqawwim is knowledgeable about theprices of the various commodities. Given that qadhaa' (the office andfunctioning of a judge) requires judging by the laws Allah has revealed,a judge ought to be knowledgeable about the ways and means to reach asound judgment. 85

The Preponderant View

After examining the forgoing proofs and arguments furnished byproponents of both opinions, it seems to me (and Allah knows best) thatthe preponderant view is the second one, namely the one whoseproponents hold that ijtihaad is a necessary condition for the validity ofholding the office of judge. In fact, this is the very view adopted by themajority of Muslim jurists given the cogent evidence brought forth andthe convincing arguments furnished. Some scholars have gone as far as

to contend that there is unanimous agreement amongst jurists regardingthis view. This was actually the established opinion during the time ofthe Prophet's companions, the generation of Muslims immediately afterthem (the Taabi'oon ) and the leading scholars who followed them. ImaamAsh-Shaafi'ee writes in this regard, "It is not permissible for a judge toimitate anyone in his time even if the latter seems to be moreknowledgeable and more discerning than him, nor is he allowed to passa judgment about something he does not know anything about" 86

Al-Haafidh Ibn 'Abd al-Barr also writes, "To the best of my knowledge,

scholars in Madeenah and beyond are generally agreed that only atrustworthy person who is known for his devoutness, integrity, goodunderstanding and knowledge should hold the office of judge. Theyhave also stipulated that he should be knowledgeable about the Sunnah ,

85 Al-Maawardee, Adab al-Qaadhee, 1/641. See also Dr. Shawkat 'Ulayyaan, As-Silsilah al-Qadhaa'iyyah fee al-Islaam, p. 129.

86 Al-Umm, 6/203.


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the deeds and utterances of the Prophet's companions ( aathaar ), Qur'anicrulings, all aspects of Islamic jurisprudence and the issues about whichscholars have expressed different opinions. Maalik ( rahimahullaah ) said,'He should not be appointed to such an office unless he has becomeknowledgeable about the issues about which the Prophet's companionsand the leading Taabi'oon in Madeenah expressed a difference inopinion.'" 87

Ash-Shawkaanee quotes Abu 'Ali al-Karaabeesee, one of Ash-Shaafi'ees's companions, in his book Adab al-Qadhaa' , as saying, "Pastscholars are generally agreed that the person who is best entitled to holdthe office of judge is one who is known for amiability, integrity,erudition and devoutness. They are also agreed that he has to beknowledgeable about the Book of Allah (i.e. the Qur'an), most of itsrulings, the sayings of Allah's Messenger (peace and blessings be uponhim), the statements of the Prophet's companions and the issues aboutwhich Muslim scholars have expressed agreement anddisagreement" 88

Furthermore, it is well-known that the judge is required by the IslamicLaw to judge between people in truth, and he can in way do so unless heis knowledgeable about the Qur'an and the Sunnah and is able toexercise ijtihaad. In fact, there are numerous novel cases and the texts arerather limited, and it is obvious that the judge will not find a text whichwill help him settle the dispute, hence the dire need to derive rulingsfrom the sources. He can only do this if he is well acquainted withijtihaad and the means to undertake it.

What has thus far been discussed relates to the case where there areactually trustworthy judges who conduct ijtihaad during a certain periodof time.

Section Two: The Effect of Disagreement in this Issue

We will discuss here the effect of disagreement regarding the issue ofstipulating the ability of exercising ijtihaad on the part of judges on the

87 Ibn 'Abd al-Barr, Al-Kaafee Fee Fiqh Ahl al-Madeenah al-Maalikee, 2/952.88 Ash-Shawkaanee, Nayl al-Awtaar , 8/265.


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practical side. This effect, however, varies depending on whether or notthere are qualified judges who can exercise ijtihaad.

Part One: The Effect of Disagreement when there are Judges who Exercise Ijtihaad

It has already been mentioned that the majority of Muslim jurists areagreed that ijtihaad is a necessary condition for the validity of holdingthe office of judge, and that it is not permissible to appoint as judgeother than one who is actually able to conduct ijtihaad. Therefore, if there

are such types of judges, it is permissible to appoint other than them.Here the effect of such view becomes apparent, as its advocates contendthat appointing a muqallid to such an office when there are judgesknown for their integrity and ability to exercise ijtihaad is invalid. Theyalso maintain that his judgments will not be considered effective even ifthey are right, as he is not considered to have authority ( wilaayah). Thisis the practical effect of stipulating such a condition.

As for those who do not stipulate such a condition and consider it tobe rather recommended, they hold that it is acceptable to appoint a

muqallid to the post of judge even if there is a mujtahid or a muqallid better than him. This was the view of the majority of the Hanafites andsome Maalikites. In fact, some jurists amongst them have gone as far as tosay that an ignorant person can actually hold the office of judge. Theauthor of Multaqaa al-Abhur writes, "[The ability to] to exercise ijtihaad isonly a matter of priority, and thus it is permissible to appoint anignorant person to the position of judge." 89

If what is meant by the word 'ignorant' is someone who has notacquired religious knowledge nor has any juristic abilities, then such a

view is definitely unacceptable as it contradicts textual evidence fromthe Qur'an and the Sunnah as well as rational evidence, some of whichhas been mentioned above in the course of delineating the evidenceproduced by the majority of jurists.

Besides, such a view cannot possibly be translated into reality, for howcan an ignorant person who does not understand the litigants'

89 Multaqaa al-Abhur along with its commentary Majma' al-Anhur , 2/426.


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statements, the claim's conditions and the various proofs and which oneare to be accepted or rejected hold such an exacting position? Inaddition, in every step of undertaking judicial tasks, he will need theconstant assistance of someone to enlighten him on the various proofsbefore him and the ruling regarding certain terms, among other things,in which case he will be reduced to a passive and receptive person whowill naively act on other people's prompts.

In summary, it is unthinkable for such a thing to take place in thecourt, and were it to happen, the court proceeding would not be seriousand the court sessions would be more like a mockery than a place wheretruth and justice are upheld. 90

As a matter of fact, Ibn Ghars, a prominent Hanafite jurist from theninth century after the Hegira, dealt with this issue and went as far asstating that such a view should not be attributed to any of the leadingHanafite jurists. He added, "The ordinary person is not entitled to holdthe position of judge, and this was the view of the past [ Hanafite]scholars." 91

He also mentioned that the main reason behind the difference betweenthe Hanafites and followers of others schools of jurisprudence lies in thestipulation of absolute ( mutlaq) ijtihaad. The Hanafites, he stated, did notstipulate this condition while others did. In defence of the Hanafite position, Ibn al-Ghars also mentioned that even if they did not stipulatesuch a condition, they required the judge to be generally knowledgeableand qualified for the post. He argued that it is not true that past[Hanafite] mujtahidoon, let alone their leading figures, opined that anignorant person is allowed to hold the position of judge. "It is not right,"he argued, "that some common people who do not seem to understandthe basics of worldly matters, let alone the lofty ones, to attribute such

an opinion to any past [ Hanafite] mujtahid, let alone any of their leadingfigures, for holding the post of judge is the most honourable position inIslam, after that of the ruler." 92

90 Dr. Faarooq Marsee, Al-Qadhaa' Fee ash-Sharee'ah al-Islaamiyyah , p. 189-91; and Jamaalal-Marsafaawee, Nidhaam al-Qadhaa' Fee al-Islaam , pp. 23-4.

91 Mahmood 'Arnoos, Taareeakh al-Qadhaa' Fee al-Islaam, p. 79. The author quotes Ibn al-Ghars in his famous book Al-Fawaakih al-Badriyyah Fee al-Aqdhiyyah al-Hukmiyyah.

92 Ibid. pp. 79-80.


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Part Two: The Effect of Disagreement in the Absence

of Judges who Exercise Ijtihaad We have already mentioned that disagreement on this issue is

confined to whether it is permissible to appoint a muqallid as judge ifthere are qualified people in a certain period of time who can actuallyexercise ijtihaad. In case there are no qualified judges who can conductijtihaad in a certain period of time, both parties agree that it ispermissible to appoint a judge who cannot exercise ijtihaad, as this is adire necessity, in which case he is called 'a judge out of necessity' by

those who stipulate the condition of ijtihaad.93

As for those who do not stipulate this condition, they do not use suchan appellation because they consider it permissible to appoint a lessqualified person ( mafdhool) in the presence of a qualified person ( faadhil).This is based on their view that ijtihaad merely constitutes a priority andrecommended condition.

It becomes clear from the foregoing discussion that the effect ofdisagreement between the two parties is confined to how they actuallyview the judge who does not exercise ijtihaad. Those who stipulate the

condition of ijtihaad call him 'a judge out of necessity', while those whodo not make such a stipulation do not consider him as such.

Conclusion

All praise is due to Allah, and may His peace and blessings be uponour Prophet Muhammad, his family and all his companions.

The present paper has discussed a highly important issue relating to

the qualification of judges, namely stipulating the condition of ijtihaadfor those who are entrusted with such an important task in Islam.Following is a summary of the most important points discussed in thepaper:

1. The introduction has served as a prelude to the main topic in thatit has provided the linguistic and technical definitions of the word

93 Ibn Muflih, Al-Furoo' , 6/422.


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ijtihaad and listed the categories of mujtahidoon. This served to identifythe aims and objectives of the present paper.

2. It has also furnished the linguistic and technical definitions of theword ' qadhaa' ' and the conditions a judge must meet and has explainedthat the condition of ijtihaad is the issue the paper primarily tackles. Ithas also explained that by qadhaa' is not meant the judge's ability toponder over the case presented before him but rather whether or not hequalifies as a judge. This requires him to satisfy the necessary conditionsa mujtahid must meet, as the usooliyyoonhave clearly stated

3. The first section of the paper delineates the disagreementscholars have expressed regarding the condition of ijtihaad on the part of judges, which is the main topic of the paper. The first part in this sectiondiscusses this controversial issue and explains that the condition ofijtihaad which has triggered off this controversy and which the judgemust meet is ijtihaad in its technical sense, namely the competence toinfer expert legal rulings from foundational proofs, as has been stated bythe usooliyyoon.

4. A number of scholars who have tackled this issue have discussed

this controversy and asked, "If there are people who are known for theirintegrity and their ability to exercise ijtihaad in its technical sense in acertain period of time, will the condition of exercising ijtihaad beconsidered necessary and thus the judge's judgments be consideredvalid and must be acted upon, or will it be considered a recommendedcourse of action, in which case a muqallid may be appointed to such apost despite the existence of judges who are able to conduct ijtihaad?Regarding lack of finding judges known for their integrity and ability toexercise ijtihaad, no scholar has ever stipulated that a judge has to

conduct ijtihaad, for this will certainly lead to dispensing with the judge'sservices and people will consequently be deprived of their rights.

5. The preponderant view regarding the issue is the one whoseproponents hold that ijtihaad is a necessary condition for the validity ofholding the office of judge. In fact, this is the view adopted by themajority of Muslim jurists given the cogent evidence brought forth andthe convincing arguments furnished. Some scholars have gone as far as


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to contend that there is unanimous agreement amongst jurists regardingthis view. However, this is dependent on the existence of judges who areknown for their integrity and ability to exercise ijtihaad in a certainperiod of time.

6. The second section deals with an important aspect of the subjectunder study, namely the effect of disagreement in this issue. Two caseshave been presented:

a. The majority of Muslim jurists hold that a judge must meet thecondition of being able to exercise ijtihaad and that this conditionconstitutes a dire necessity. Therefore, appointing a muqallid or anignorant person to such an office while there are udges known for theirintegrity and ability to exercise ijtihaad is invalid and his judgments willnot be considered effective even if his judgment is right as he is notconsidered to have authority ( wilaayah).

Those who do not stipulate such a condition maintain that ijtihaad ismerely a matter of priority and recommendation. Therefore, they argue,it is absolutely acceptable to appoint a muqallid to the post of judge evenif there is a mujtahid or a muqallid better than him, for he can refer to the

legal verdicts issued by other jurists.It has also become clear that what is meant by the word 'ignorant',

according to those who hold that an ignorant person, is not someonewho has not acquired religious knowledge nor has any juristic abilities,for such a view is definitely unacceptable as it contradicts textualevidence from the Qur'an and the Sunnah as well as rational evidence.Hanafite jurist Ibn al-Ghars has dispelled this myth in the course of citingHanafite scholars' stand on this issue.

b. In case there are no qualified judges who can conduct ijtihaad in acertain period of time, both parties agree that it is permissible to appointa judge who cannot exercise ijtihaad, as this is a dire necessity, in whichcase he is called 'a judge out of necessity' by those who stipulate thecondition of ijtihaad. As for those who do not stipulate this condition,they do not use such an appellation because they consider it permissibleto appoint a less qualified person ( mafdhool) in the presence of a


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qualified person ( faadhil). This is based on their view that ijtihaad merelyconstitutes a priority and recommended condition.

These are the most important findings of the present paper, but itremains to be said that Allah knows best. Finally, we pray to AlmightyAllah to shower His peace and blessings upon our Prophet Muhammad,his family and all his companions.

Documents

Conditions for Ijtihaad