Translated by Shayan

The following is a partial translation of Sayyid Sīstānī’s lectures on al-Ijtihād wa al-Taqlīd wa al-Iḥtiyāṭ, as transcribed by Sayyid Muḥammad ʿAlī Rabbānī^[1]. It is hoped that it will provide the reader with a primer to the concept of ijtihād as well as insight into Sayyid Sīstānī’s intellectual approach.

Discussion One: The Meaning of Ijtihād

It is well-known that it is not important to investigate the linguistic meaning of ijtihād and whether it is derived from the root jahd or juhd. For if it is derived from juhd it denotes the endurance of hardship, and if it is derived from jahd it denotes the expending of one’s ability. In any case, its main meaning is technical:

al-Sayyid al-Murtaḍā said:

As for ijtihād, it was coined in classical Arabic [to mean] using one’s capacity and ability to the utmost in a deed whose achievement entails hardship, like lifting something heavy and so forth. Then, it was used for arriving at the rulings from the evidences in a difficult way.^[2]

However, ijtihād is used in the narrations with two meanings:

The first meaning

To exert one’s utmost effort and ability in acting according to the rulings, and this can be termed practical ijtihād (ijtihād ʿamalī). It is mentioned in many narrations with this meaning^[3].

It is mentioned in Nahj al-Balāgha:

“But support me in piety and ijtihād.”^[4]

It is reported from Imām al-Ṣādiq (upon him be peace):

“Call people to what is good with other than your tongues, so that they see ijtihād, truthfulness and piety in you.”^[5]

And there is a report from Imām al-Ṣādiq (upon him be peace) also that is similar.^[6]

It is also reported from him (upon him be peace):

“I advise you to fear God, to be pious and to [do] ijtihād.”^[7]

And so on in the cases where ijtihād is used to mean practical ijtihād. For more of these narrations, refer to Safīnat al-biḥār^[8] and the book al-Muʿjam al-mufaharis li al-alfāẓ wasāʾil al-shīʿa^[9].

The second meaning

To expend intellectual effort to derive and infer the legal (sharʿī) rulings, whether in affirmation or in negation, and this is a comprehensive meaning.

However, ijtihād has been used in different meanings in the terminology of the uṣūlīyyīn depending on the time period, as follows:

The first meaning

What corresponds to qiyās which is prohibited among us [Shīʿa]. Ijtihād was used in the words of the preceding uṣūlīyyīn from the ʿāmma (Sunnīs) and khāṣa (Shīʿa) and the jurists to refer to qiyās or more general concepts, such as istiḥsān and istiṣlāḥ which both fall under ‘al-qawl bi al-raʾy’.

al-Shāfīʿī said:

…what is qiyās? Is it ijtihād or are they different? I say: they are two names [used] for one meaning.[10]

And al-Shāfīʿī is one of the earliest to write about uṣūl from the ʿāmma.

It has been used with this meaning in the narrations—regardless of the connectedness of their chains—such as what is narrated from the Commander of the Faithful (upon him be peace):

“As for the response to those who accept ijtihād, they claim that every mujtahid is correct…”^[11]

And it is reported from Muʿāwīya b. Maysara that ʿAbdallāh b. Shabrama said:

“O Abā ʿAbdillāh, we adjudicate in ʿIrāq and we do so by the Book and the Sunna. We receive questions and we do ijtihād in them with raʾy (opinion)…”^[12]

And it is reported from Imām al-Ṣādiq (upon him be peace):

“And if God were pleased with their ijtihād and opinions…”^[13]

Its usage in this meaning was perhaps from Ahl al-Sunna from the very beginning. And perhaps the origin of their choice of this term for qiyās—whose authority was disputed—was only because of it being mentioned in some of the narrations they transmitted from the Prophet (blessings of God be upon him and his family) and some of the companions. They derive the validity of qiyās with these narrations, such as that of Muʿādh b. Jabal in which:

[The Prophet] said: ‘And [what if] you do not find [an answer] in the Book of God?’. [Muʿādh] said: ‘[I will adjudicate] by the Sunna of the Messenger of God (blessings of God be upon him and his family)’. [The Prophet] said: ‘And [what if] you do not find [an answer] in the Sunna of the Messenger of God (blessings of God be upon him and his family) nor in the Book of God?’. [Muʿādh] said: ‘I [will do] ijtihād [to form a] personal opinion (ajtahidu raʾyi)’^[14]

And with the narration transmitted from Ibn Masʿūd:

If an issue arises [for one of you] that is not [mentioned] in the Book of God, the Prophet of God did not pass judgement on, and the righteous did not pass judgement judge on, then let him [exercise] ijtihād [to form a] personal opinion…^[15]

However, our scholars believed in the invalidity of ijtihād in this meaning, and they wrote books refuting it. For example, it is transmitted in the biography of ʿAbdallāh b. ʿAbd al-Raḥmān al-Zubayrī that he wrote a book called Kitāb al-istifāda fī al-ṭuʿūn ʿalā al-Awāʾil wa al-radd ʿalā Aṣḥāb al-ijtihād wa al-qiyās^[16]. Likewise, Hilāl b. Ibrāhīm wrote—as mentioned by al-Najāshī—Kitāb al-radd ʿalā man radd āthār al-Rasūl wa iʿtamada natāʾij al-ʿuqūl^[17]; Ismāʾīl b. ʿAlī al-Nawbakhtī wrote Kitāb al-naqḍ ʿalā ʿĪsā b. Abān fī al-ijtihād^[18]; Shaykh al-Mufīd in his response to Ibn al-Junayd^[19] and so on.

This is in addition to their statements in the chapters of fiqh that signify the invalidity of ijtihād in this sense, such as that of al-Shaykh [al-Ṭūsī] in al-ʿUdda:

As for qiyās and ijtihād, they are are not proofs in our view. Rather, their use is forbidden.^[20]

And in al-Khilāf he said:

It has been proven in our view that the truth is in one [opinion] and that opining with qiyās and ijtihād is false.^[21]

And when mentioning the number of preponderances for one of two testimonies in al-Sarāʾir, Ibn Idrīs said:

And there is no preponderance given to other than that among our companions, and qiyās, ijtihād and istiḥsān are invalid in our view.^[22]

Thus, it becomes apparent from these books and statements that ijtihād was used with this meaning in this generation, and that our scholars believed in the invalidity of this kind of ijtihād.

Nevertheless, there is a mistaken notion that some of our classical scholars used to believe in ijtihād with this meaning, because the acceptance of qiyās is attributed to some of them. Al-Tustarī said:

Others have reported—i.e. al-Ṣadūq—in scattered places that a group of their high-ranking personalities occasionally acted according to raʾy and qiyās. Among them are the earliest [personalities] such as Zurāra b. Aʿyan, Jamīl b. Darrāj and ʿAbdallāh b. Bakr—until he says—and the later [personalities] such as Yūnus b. ʿAbd al-Raḥmān, Faḍl b. Shādhān and others—some of this has not been proven. And Ibn al-Junayd, from our classical jurists who experienced the two occultations, followed them.^[23]

And after transmitting a statement from Faḍl, Shaykh al-Ṣadūq said:

This is what caused his feet to stumble from the straight path, and this is the path of the one who does qiyās.[24]

After transmitting a statement from Yūnus, Shaykh al-Ṭūsī said:

This may be his personal preference (i.e. a fatwa), not from the viewpoint of narrating [from the Imām] but rather as a kind of [personal] point of view^[25]

And we have already mentioned in detail in the study of qiyās that the attribution of qiyas to them is inconclusive, so refer to that.

The second meaning

What has been mentioned since the time of al-Muḥaqiq [al-Ḥillī], and that is the deduction of the legal ruling (al-ḥukm al-sharʿī) by examining and being precise in the legal evidences (al-adilla al-sharʿīyya). This meaning can be explained in that just as we accept the authoritativeness of the opinion of the people of expertise (ahl al-khibra), in many cases such as exam markers and so on, even though their knowledge is based on examination, estimation, gathering clues and the like, and they may err and may be correct, then the same is true of the affairs of the legal rulings—except those which are definitive and necessary—which we need to deduce, from the legal evidences to the use of examination and precision in the chain and the signification and so forth.

Ijtihād has been used since the time of al-Muḥaqiq al-Ḥillī with this meaning. He said:

[Ijtihād] in the custom of the jurists is: expending effort to extract the legal rulings. From this viewpoint, the extraction of rulings from the legal evidences is ijtihād, because it is based on theoretical considerations that are not acquired from the apparent meaning of the texts in the majority [of instances] […] so if qīyās is excluded, we are among the people of ijtihād in obtaining the rulings with theoretical methods of which none are qīyās.^[26]

It is clear that Muḥaqiq al-Ḥillī is from the scholars of the 7^th century AH, and that he had different definitions, such as:

Exerting all of one’s ability to obtain ẓann (presumption) of the legal ruling.^[27]

This is what al-ʿAllāmah [al-Ḥillī] has mentioned in some of his books.^[28]

This does not mean that it suffices to have presumption (ẓann) of the legal ruling as the Akhbārīyyūn mistakenly believed, but rather it means that these theoretical matters are not observed, and they are expressed as presumption. We mentioned in the discussion of ẓann that a report may be from certain knowledge (ʿilm), and this is just as if it was based on witnessing with one’s own eyes. However, if the basis was not as such but was rather a theoretical matter then this report is from presumption, regardless of whether the report was asserted authoritatively or not. Therefore, the speculative nature of the path [of transmission] does not contradict the definitive nature of the ruling. But the Akhbārīyyīn opposed ijtihād in this sense, saying: the only thing that is authoritative (ḥujja) is referring to the scholar, and this means the absence of [one’s own] examination [of the sources], given that the narrations are definitive in their issuance and their signification—even if [this is the case] by combining them together—and it is obligatory upon us to refer to the scholar, so the result would be acting according to knowledge (ʿilm).

Al-Ḥurr al-ʿĀmilī said:

If you say: There is no escape from the Akhbārīyyīn from acting according to ẓann and that is [because] the ḥadīth—even if it is known to be from the Infallible (upon him be peace) with the aforementioned indicators and such— may possibly be in taqīyya and its signification may be ẓannī.

I say: As for the possibility of taqīyya, it is not damaging unless one knows it [to be so] with indicators from the existence of preponderant conflicting [evidence]. Even though textual evidence (naṣṣ) has been reported in the permissibility of acting according to that, as previously explained. What is considered to be knowledge here is knowledge of God’s ruling in reality, or knowledge of a ruling reported from [the Infallibles] (upon them be peace).

As for the signification being ẓannī, it is refuted in that the signification of most aḥādīth may become definitive (qaṭʿī) with the support of verbal indicators, semantic indicators, questions, answers…^[29]

In this context, we do not intend to dispute with the Akhbārīyyīn and whether they act according to knowledge or not. In addition, some of their greatest scholars such as Ṣāḥib al-Ḥadāʾiq have mentioned in numerous places that there is no narration in al-Tahdhīb that does not have confusion in its chain or content, and some of them have authored books concerning the differences between narrations and books.

The third meaning

A group of scholars have mentioned that ijtihād is:

Obtaining the ḥujja (binding proof) for a legal ruling.^[30]

They have mentioned that this meaning puts an end to the dispute between the Uṣūlīyyīn and the Akhbārīyyīn. This is a new meaning, and it cannot reconcile the Uṣulī and the Akhbārī given that the source of the dispute is the second meaning of ijtihād.

The interpretation of the statement in a way that necessitates its departure from the source of dispute is that ijtihād is: obtaining the legal ruling or determining the actual duty with regard to the ḥujja, not obtaining the ḥujja. For the mujtahid extracts the legal rulings from the binding proofs (ḥujjaj) but obtaining the ḥujja is not through ijtihād. So given that ijtihād has different meanings, it is necessary to pay attention to which of these meanings is intended by the one affirming or negating it.

Some of the Akhbārīyyīn have argued for the invalidity of ijtihād with the narrations while the fact is that the narrations are reported with the first meaning and there is no Imāmī who accepts this [kind of ijtihād]. The dispute between the Uṣulī and the Akhbārī is only on the second meaning, so it is not possible to argue the invalidity of ijtihād in the second meaning with narrations and the statements of the classical scholars. Given that ijtihād in this meaning has not been reported in the narrations, there is no need to investigate its meaning and determine its boundaries. We have only mentioned the different meanings of ijtihād to clear the confusion that occurred among some between the first and second meaning, as well as to explain the development of ijtihād.

Footnotes

[1] al-Ijtihād wa al-Taqlīd wa al-Iḥtiyāṭ, pp. 9-16.

[2] al-Dharīʿa ilā uṣūl al-sharīʿa, v2, p. 672.

[3] See the chapter of Ijtihād wa al-ḥath ʿalā al-ʿamal, Biḥār al-anwār, v68, p. 160 onwards.

[4] Nahj al-Balāgha, letter 45.

[5] Wasāʾil al-Shīʿa, v12, p.162.

[6] Wasāʾil al-Shīʿa, v1, p.76.

[7] Wasāʾil al-Shīʿa, v1, p.85.

[8] The entry on ‘j-h-d, ’Safīnat al-biḥār.

[9] al-Muʿjam al-mufaharis li al-alfāẓ wasāʾil al-shīʿa, v2, p. 853 onwards.

[10] al-Risāla, p. 477.

[11] Wasāʾil al-shīʿa, v 27, p. 56.

[12] Biḥār al-anwār, v2, p. 314.

[13] Biḥār al-anwār, v2, p. 313.

[14] Sunan Abī Dāwūd, v3, p. 303.

[15] Sunan al-Nasāʾī , v8, p. 230.

 [16] Rijāl al-Najāshī, no. 575.

[17] Rijāl al-Najāshī, no. 1186.

[18] Rijāl al-Najāshī, no. 68.

[19] Rijāl al-Najāshī, no. 1067.

[20] al-ʿUdda fī uṣūl al-fiqh, v1, p.8.

[21] Kitāb al-khilāf, v6, p. 215.

[22] Kitāb al-sarāʾir, v2, p. 170.

[23] Kashf al-qināʿ, p. 83.

[24] Man lā yaḥḍuruh al-faqīh, v4, p. 270.

[25] Tahdhīb al-aḥkām, v9, p. 345.

[26] Maʿārij al-uṣūl, pp. 179-180.

[27] See: Maʿārij al-uṣūl, pp. 181-182.

[28] See: Tahdhīb al-wuṣūl ilā ʿilm al-uṣūl, p. 283. Mabādiʾ al-wuṣūl ilā ʿilm al-uṣūl, p. 240.

[29] Wasāʾil al-shīʿa, v 30, pp. 269-270.

[30] See: Miṣbāḥ al-uṣūl (the conclusion in Ijtihād and Taqlīd)