In general, ijtihād means the exertion of effort, and in Islamic legal thought, it refers to the effort to determine God’s will—the correct ruling—regarding a legal matter. One who practices ijtihād is termed a mujtahid. Taqlīd means “following, imitation.” In Islamic legal discourse, taqlīd means adopting the opinion a mujtahid or other legal authority has reached, accepting it as authoritative. The one who adheres to such an authority is a muqallid, or performer of imitation. It is practically impossible to discuss ijtihād and taqlīd independently of each other.
Ijtihād is a process through which experts in the religious sciences explore and define the parameters of Islam. The sacred law of Islam establishes values, mores, and boundaries of Islamic society, and since not every Muslim is so situated that he can devote himself to religious and legal study, common sense dictates that such believers regularly practice taqlīd, following the guidance of a mujtahid. Some jurists associated ijtihād with ra’y, which in early Islamic legal literature meant a jurist’s considered opinion. Ijtihād was the process through which ra’y was formed. If the considered opinion of a given jurist met widespread approval, it might come to be seen as properly authoritative, regardless of its basis in the Qur’an and sunna. Another concept often associated with ijtihād is qiyās, or reasoning by analogy. Qiyās, like ra’y, is a device one uses to answer questions that the Qur’an and sunna leave open. One uses ijtihād to apply qiyās to particular questions. Both ijtihād and taqlīd can take on negative senses: ijtihād can be taken to mean “interpreting law to fit one’s individual needs,” and taqlīd can be understood as “blind imitation.”
Ijtihād is also used to mean the ability to found a new Islamic legal tradition. It has often been said that in Sunni Islam, the gate or door of ijtihād was closed in the distant past—ca. 900 or 1000—and remained so until the 19th century, at which time modernist, progressive thought provoked an intellectual reawakening and a return to a freer, more independent investigation of legal and other questions. Such statements must be understood as referring to the legal madhhabs—legal schools or traditions of legal study—which came to be limited to four Sunni schools in the 11th century, though the number had been somewhat larger in the previous century, including the Zahiri madhhab, founded by Dawud b. ‘Ali b. Khalaf al-Isfahani (d. 884), and the Jariri madhhab, founded by Muhammad b. Jarir al-Tabari (d. 923). By the early tenth century, the nascent schools of law had coalesced around traditions of study that were claimed to represent the legacies of Abu Hanifa (d. 767), Malik b. Anas (d. 796), Muhammad b. Idris Shafi‘i (d. 820), and Ahmad b. Hanbal (d. 855), as well as Dawud and Tabari. By the mid-tenth century, one may add the Twelver Shi‘i, Zaydi Shi‘i, and Ibadi Khariji madhhabs. After ca. 1000, it became recognized as unacceptable to begin a new tradition. It was already something of an embarrassment that the eponyms of the madhhabs, such as Shafi‘i and Ibn Hanbal, were removed from the Companions of the Prophet by several generations, so it was difficult to argue that the legal system went back in an unbroken tradition to the Prophet himself. It was no longer possible to claim that the opinions one espoused could be connected with an authoritative tradition of opinions that had been passed down intact from the early generations of the pious forefathers, so establishing a new tradition became impossible. Muslim scholars did not stop practicing ijtihād at the end of the tenth century but rather changed their emphasis from examination of the Qur’an and sunna to further articulation of the shari‘a as defined by the major schools of law. In this regard, the term taqlīd came to refer to adherence to one of these schools. That did not mean, however, that independent legal thought ceased in favor of the blind acceptance of traditional legal positions.
Recent scholarship has emphasized that, according to the works on legal theory and even according to the evidence of practice, ijtihād in the sense of the independent investigation of legal questions did not simply come to an end at any point in the premodern period. Ijtihād is required of a jurist who sets out to answer a legal question, and attainment of the rank of mujtahid is based on a thorough education in the law, legal interpretation, and the sciences that are ancillary to it, such as Arabic grammar and rhetoric. Manuals of uṣūl al-fiqh or legal hermeneutics consistently require of the mufti (one who is qualified to offer a religious opinion or fatwa) that he be a mujtahid before he can answer legal questions. Other evidence suggests that this was often not the case and that muftis merely reported the standard views of their legal tradition, the opinion of other jurists, or legal rulings recorded in standard legal compendia. Nevertheless, even muftis who did not claim to be fully qualified mujtahids treated new questions that had not arisen earlier in history and so, by definition, required new legal research and the proposal of new rulings. Obvious examples are fatwas (religious opinions) having to do with the legality of coffee, tobacco, the printing press, telegraphs, photography, and many other technical inventions and imports to the Islamic world.
Ijtihād has also been used to refer to the degree of freedom a jurist enjoyed in formulating and propagating his opinions. It is clear that while ijtihād in the sense of expending an exhaustive effort in order to answer a legal question did not come to a halt, it is evidently true that jurists in the 13th and later centuries understood that they were not as free. Later jurists such as Jalal al-Din al-Suyuti (d. 1505), who claimed to be a mujtahid on a level with the eponyms of the legal traditions and capable of reaching opinions at variance with those of Shafi‘i, the founder of the legal tradition to which he belonged, were roundly rebuked. Even Suyuti stated that while he arrived at a number of opinions in which he disagreed with Shafi‘i, he did not give fatwas according to these opinions but gave the opinion generally accepted within the madhhab. His polemical work arguing for his own attainment of the rank of mujtahid rebukes his contemporaries for claiming that the status is no longer possible. In addition, legal theorists including Hasuna al-Nawawi (d. 1277) and later authors developed ranked schemes of jurists, including mujtahid muṭlaq (mujtahid at large), mujtahid muntasib (mujtahid affiliated with a particular madhhab), and so on; such schemes were almost always predicated on the idea that one or more ranks at the top of the scale were empty in the present generation. Many sources from the later period reveal that lower-level jurists often gave legal opinions simply by consulting the standard works of their traditions, even though the works of legal theory generally rejected this as invalid.
In the modern period, ijtihād, along with the term tajdīd, or “renewal,” has taken on the meaning of searching or sweeping reform (iṣlāḥ) of traditional religious doctrines and societal practices in the Islamic world, generally equated with a rejection of taqlīd, here the unthinking adherence to ossified, traditional opinions. Its opposite, taqlīd, here means blind adherence to tradition. This use of the two terms departs considerably from their technical usage in premodern Islamic legal scholarship. Ijtihād in this sense has been used by a large number of modern Islamic thinkers belonging to a variety of distinct trends, including modernist reformers like Muhammad ‘Abduh (d. 1905) and Rashid Rida (d. 1935), religious liberalists, utilitarians, and even fundamentalist thinkers. Ijtihād in this sense has been used as a means to reject certain traditional legal rules through rational arguments and appeals to utility, social benefits, or the necessity for legal change along with social transformations. A prominent example of the application of this type of ijtihād is a law made in Tunisia in 1956 that rejected polygyny on the grounds that the Qur’anic verse 4:3—which, ironically, had served as the legal basis for the practice—suggested that no husband would be able to treat cowives equally as required by the verse. Modern suggested reforms of Islamic legal hermeneutics have been quite varied, including the rejection of hadith (prophetic tradition) as foundational textual material for the derivation of law, the restriction of consideration to the principles found in the portion of the Qur’an revealed in Mecca, the rejection or restriction of the role of consensus in the law, the reevaluation of laws as conditioned by historical context, and the reinterpretation of ijtihād to include the opinions of scientists and scholars in fields other than jurisprudence. An important aspect of many of these reform efforts has been the emphasis on maṣlaḥa, or “public interest,” as a central principle for the elaboration of the law.
Imami or Twelver Shi‘is originally had no need for ijtihād because pressing questions could be referred to the present imam, whose opinions were infallible. Even when the Twelfth Imam went into the Greater Occultation in 941 (a period of concealment that continues to the present) and all ordinary contact with him was cut off, Twelver jurists traditionally rejected ijtihād on the grounds that it was based on personal opinion or legal analogy, neither of which was sufficient to answer legal questions. In their view, legal rules needed to have a scriptural basis in the Qur’an or the akhbār, the oral reports of the 12 imams. Nevertheless, in the 10th and 11th centuries, Twelver theorists admitted that the jurists of the community could in effect act as legal authorities, granting legal responses to petitioners, drawing in part on reason (‘aql). By the 13th century, ‘Allama al-Hilli (d. 1325) used the term ijtihād in his works on legal hermeneutics to describe the interpretive activity of Twelver jurists in a departure from earlier Twelver legal doctrine, and his view became standard. The application of ijtihād and the clear division of the believing populace into mujtahids and muqallids that it entailed were strongly challenged in the 17th century by Muhammad Amin al-Astarabadi (d. 1635), who argued that authority lay in the akhbār of the imams alone and not in the ratiocinations of the jurists. His work al-Fawa’id al-Madaniyya (Medinan moral lessons) touched off what would become known as the conflict between Akhbaris, who upheld Astarabadi’s views, and Usulis, who held the view that an education in legal hermeneutics (uṣūl al-fiqh) was what granted one religious authority. The Akhbaris remained influential for over a century and a half but were defeated, for the most part, by Muhammad Baqir al-Bihbihani (d. 1791), whose work Risalat al-Akhbar wa-l-Ijtihad (Treatise on traditions and legal reasoning) was a major statement in justification of the Usuli position. Perhaps as a direct consequence of the Akhbari-Usuli conflict, the Twelvers stressed the necessity for all muftis to be endowed with ijtihād much more than contemporary Sunnis, and a diploma termed ijāzat al-ijtihād (diploma of ijtihād) recognizing the recipient’s ability to derive legal opinions independently became a standard part of the Twelver system of legal education in the course of the 19th century. In the Sunni system, the parallel diploma, which had existed at least since the 13th century, was termed ijāzat al-iftā’ wa-l-tadrīs, or “the license to grant legal opinions and teach law”; it did not mention ijtihād explicitly, and recipients were not automatically termed mujtahids. Also in the 19th century, beginning with Muhammad Hasan Najafi (d. 1849–50), a single high-ranking jurist held to be the most learned in the law was recognized as marja‘ al-taqlīd, or “the model of emulation.” Shi‘i laymen were obligated to follow the rulings of this greatest living authority or, if more than one were recognized, one of them. The hierarchical authority of the jurists was enhanced yet again with Ayatullah Khomeini’s (d. 1989) theory of wilāyat al-faqīh (guardianship of the jurist), which claimed for the most learned jurist the right to carry out most of the functions of the imam, including those that had fallen into abeyance, such as the ability to govern and to organize jihad. After the Iranian Revolution (1978–79) and the establishment of the Islamic Republic in 1981, his principle was enshrined in the Islamic Republic’s constitution, which assigned to the leading jurist the position of “leader” (rahbar) and granted him sweeping powers of control and oversight.
See also consensus; jurisprudence; al-Shafi‘i, Muhammad b. Idris (767–820); shari‘a
Further Reading
Norman Calder, “Doubt and Prerogative: The Emergence of an Imāmī Shī‘ī Theory of Ijtihād,” Studia Islamica 70 (1989); Robert Gleave, “Conceptions of Authority in Iraqi Shi‘ism: Baqir al-Hakim, Ha‘iri and Sistani on Ijtihād, Taqlīd and Marja‘iyya,” Theory, Culture, and Society 24, no. 2 (2007); Wael B. Hallaq, The Origins and Evolution of Islamic Law, 2005; Idem, “Was the Gate of Ijtihād Closed?” International Journal of Middle East Studies 16, no. 1 (1984); Joseph Schacht, The Origins of Muhammadan Jurisprudence, 1967; Devin J. Stewart, Islamic Legal Orthodoxy: Twelver Shiite Responses to the Sunni Legal System, 1998.
DEVIN J. STEWART