Ijtihad means to exert oneself to deduce precise rules of Islamic law from their sources in accordance with the special rules of research. The ability to make Itihad or deduce laws is not the monopoly of any particular class, nor is it subject to any appointment or announcement. The way is open to everybody to acquire the necessary qualification and specialize in this field. Any one who does that, will automatically get the power to exercise Itihad and will have the right to act according to his own findings and deductions and even to announce the results of his findings for the information of others.
Formulation of law concerning the ruling system
Let us see under what conditions a juristic opinion or verdict can be regarded as authentic and enforceable.
In the case of a social or a governmental question, the individual or the council responsible for deducing and formulating a law, must be officially selected for this purpose, so that its decision may have the backing of the executive and may be enforced in a legal form on the level of society.
Formulation of law on individual matters
If the verdict is meant for the personal action of the individuals, then selection of the religious authority which may issue it, may be left free. In other words people may be allowed to accept and act upon the opinion of any religious authority whom they may deem fit for the purpose.
Why should we adopt the doctrine of Taqlid?
Taqlid means to accept the juristic opinion and verdict of a mujtahid (a jurist capable of arriving at an independent judgement) and to act upon it.
We know that on principle Islam advocates freedom of thought and is opposed to the submission to any unauthorised opinion, custom, convention or order of any social authority.
The basis of this opposition is two fold:
(a) We cannot always be sure that an opinion, custom or convention is sound and is not a sort of fraud or myth?
(b) There is a possibility that an opinion or instruction may be aiming at self-aggrandizement or at protecting personal or class interests, in which case to accept it will be tantamount to submission to exploitation and subjugation. We know that Islam is as much against acknowledging myths, as it is against submitting to injustice.
Anyhow, it is permissible to accept the view of someone else provided:
(a) The person initiating the view has specialized in the subject concerned and has enough knowledge to be competent to express an opinion.
(b) His purity, and veracity are above suspicion.
There also must be valid reasons to believe that the opinion in question is sound and proper in the prevailing circumstances and is not based on selfishness or superficial thinking.
If these two conditions are fulfilled it is logical that we should accept such an opinion. If a man is unable to form his own opinion, he has no option but to follow that of someone else, who is reliable and a specialist in his field.
Qualifications of a competent religious authority
(Whose opinion may be accepted without knowing the authority on which it is based).
From the traditions concerning taqlid the above-mentioned two principles can easily be deduced. According to a well-known report Imam Hasan al Askari (a.s) clearly brought out this point, while explaining the verse which denounces the Jewish laymen for following their vicious rabbis blindly. The verse is as under: “There are illiterate men among them who know nothing of the Scripture except vague fancies. They only guess”. (Surah al-Baqarah, 2:78).
The Imam said: “If the laymen of our ummah also find that their jurists (faqihs) are biased, are openly indulging in misdeeds, are competing with each other in securing pelf and position, are trying to eliminate their opponents and supporting their own incompetent and mean adherents; and they still follow such jurists, they will be no better than the illiterate Jews, who followed their corrupt rabbis. But the case of those jurists, who do not go astray, do not sell themselves, are particular about protecting their religion, suppress their wild passions and obey the commandments of Allah is different. They should be followed by the common people. Of course, the number of such jurists is small. All jurists cannot be such”.
First of all this report talks of faqihs. This term implies specialisation in understanding religious questions and under-taking learned research. Hence a competent religious authority must be a first rate faqih and mujtahid.
Secondly, the qualities of consciousness, piety, religiousness, obedience to Allah and suppression of wild passions mentioned in the report, are the infrastructure of all human and moral virtues and mean keeping away from all sins and deviations.
Thus we can deduce the qualifications of a competent religious authority from this report.
Now let us discuss certain other points which are worth consideration in this connection.
(1) It is now clear that those who are not themselves specialists in cannon law should consult a mujtahid and follow his opinion. But in those cases in which the mujtahids differ and do not have a unanimous view, what should the mugallids.(followers of a mujtahid) do? Normally when we face an important problem in life, for example if the specialists differ about the treatment of an acute disease, we accept the view of the best specialist. By analogy the view of the mujtahid ‘most noted for his religious learning’ should be accepted in cases of difference of opinion between the mujtahids also.
(2) There is one more important question worth consideration. As with the expansion in human knowledge, an increase in its ramifications and more and more specialisation, the field of skill in cannon law and the deduction of rules of religion has expanded, it is now difficult for any one individual to cope with the task. Will it not be better if this task is entrusted to a council and is carried out on the basis of co-operation or division of work?
(3) There are two basic aspects of skill in cannon law. If the practical ability of a scholar covers both of them, his deductions will certainly be closer to truth and worth being implemented. These aspects are:
(a) A thorough knowledge of the sources of law, religious tests and the principles of jurisprudence.
(b) Acquaintance with the existing world situation, modern trends and social conditions.
In short a jurist should have the full knowledge of the sources of law and should also know how and where a particular rule is to be applied.
(4) As ijtihad is a continuous process and a living method of understanding religious law and goes on along with the emergence of new needs, new problems and new relations, it is necessary that in Muslim society broad-minded and efficient mujtahids should always be busy with the work of ijtihad and inquiry. By implication, the people should receive instructions regarding their religious duties from a living authority, except in those cases where the living authority allows them to continue to follow a past mujtahid. It is far more important to follow a living authority if the question involved concerns the ruling system. Obviously the leaders who are actually at the helm of affairs of a society should be alive and existing.
Formulation of new provisions
We have seen that the mujtahids have a right to deduce and discover rules of law in accordance with the principles of jurisprudence. They interpret and explain them. If they have the necessary qualifications of a competent religious authority, their juristic verdict deserves to be accepted and followed by others also.
Another point in connection with Islamic laws is that the government authorities have a right to issue rules, regulations, orders and instructions, on the basis of firm Islamic laws in the social and administrative fields. These rules and regulations are not of a permanent nature. They are subject to the requirements of the time. Anyhow, the issuance and promulgation of these rules and regulations, once an Islamic government is established, is the prerogative of those who are at the helm of the affairs of that government.
Evidently such matters cannot be left to individual discretion, for that will lead to chaos and disappearance of central authority.
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