Principles of Islamic Jurisprudence by MH kamali

Divisibility of ijtihad the question to be discussed

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Unformatted text preview: antamount to a contradiction in terms, as ijtihad and taqlid cannot be combined in one and the same person. [47. Shawkani, Irshad, p. 254, Abu Zahrah, Usul, p.318; Badran, Usul, p.486.] The majority view is based on the analysis that ijtihad for the most part consists of formulating an opinion, or zann, concerning a rule of the Shari'ah. A zann of this type occurs only to a fully qualified mujtahid who has attained the necessary level of intellectual competence. It is further argued that all the branches of the Shari`ah are interrelated, and ignorance in one may lead to an error or misjudgment in another. The majority view is further supported by the argument that once a person has attained the rank of mujtahid he is no longer permitted to follow others in matters where he can exercise ijtihad himself. IV, 204; Shawkani, Irshad, p.255.] Among the majority there are some ulema who have allowed an exception to the indivisibility of ijtihad. This is the area of inheritance, which is considered to be self-contained as a discipline of Shari'ah law and independent of the knowledge of the other branches. Hence a jurist who is only knowledgeable in this field may practice ijtihad in isolation from the other branches of Fiqh. Kassab, Adwa', p. 96.] Principles of Islamic Jurisprudence ~ Kamali 325 [45. Abdur [48. Amidi, Ihkam, [49. Some Maliki, Hanbali and Zahiri ulema have, however, held the view that ijtihad is divisible. Hence when a person is learned in a particular area of the Shari`ah he may practice ijtihad in that area only. This would in no way violate any of the accepted principles of ijtihad. There is similarly no objection, according to this view, to the possibility of a person being both a mujtahid and a muqallid at the same time. Thus a mujtahid may confine the scope of his ijtihad to the area of his speation. This has, in fact, been the case with many of the prominent Imams who have, on occasions, admitted their lack of knowledge in regard to particular issues. Imam Malik is said to have admitted in regard to thirty-six issues at least that he did not know the right answer. But in spite of this, there is no doubt concerning Malik's competence as a fully-fledged mujtahid. [50. Shawkani, Irshad. p. 255; Abu Zahrah, Usul, p.318; Badran, Usul, p.486.] The view that ijtihad is divisible is supported by a number of prominent ulema, including Abu'l-Husayn al-Basri, al-Ghazali, Ibn al-Humam, Ibn Taymiyyah, his disciple Ibn al-Qayyim and al-Shawkani. AlGhazali thus observes that a person may be particularly learned in qiyas and be able to practice ijtihad in the form of analogy even if he is not an expert on Hadith. According to the proponents of this view, if knowledge of all the disciplines of Shari'ah were to be a requirement, most ulema would fail to meet it and it would impose a heavy restriction on ijtihad. Al-Shawkani, Badran and al-Kassab have all observed that this is the preferable of the two views. [51. Ghazali, Mustasfa, II, 103; Shawkani, Irs...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.

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