Islamic laws can simply not be “derived” – they are exclusively created by Allah (swt) and conveyed to us through the Masumeen (as). Ijtihad, where the aim is to derive new law, is forbidden and denounced by Masumeen (as) who declared it as an evil concept. Acting without hadith leads to destruction. Human mind is incapable of determining halal and haram using reason and logic.
2. Preliminary note
This article assumes that the reader is familiar with the concept of Ijtihad, its sources and evolution. For those who perform Taqlid of a fallible Mujtahid they should already know the detailed definition, background, and history of this process. Unfortunately, there are many followers who are double blind – they not only follow a Mujtahid blindly but are also blind to the sources, process and techniques used by the Mujtahid to arrive at his fatwas. There are good resources online (http://al-islam.org) on Taqlid and Ijtihad which you can refer to (for example Ijtihad: Its Meaning, Sources, Beginnings). Nevertheless, we will provide a brief overview and history here.
3. Important note on the scope of Ijtihad
When Ijtihad started to be initially practiced by Shia mujtahids, it’s scope and domain was limited to those issues where there were no clear rulings (zawahir) in the Book and the Sunnah. The reason is that the meaning of the word Ijtihad carries with it a sense of hard work and struggle. Thus the derivation of a hukm from zawahir, which did not involve any great effort, was not counted as part of ijtihad.
However since all man made systems are defective and continue to improvise and evolve, in the same way, the meaning of Ijtihad grew in scope and came to include deduction of ahkam from zawahir of the Qur’an and the Sunnah. This was because the scholars of the ‘invented’ subject of ‘usul al fiqh’ (principles of jurisprudence) came to recognize that even deduction from the zawahir required a lot of scholarly effort; that it could not be done without the knowledge of the principle of hujjiyyat al‑zawahir (another invented term that means “the legal validity of literal meanings”) and the mode of its application and the related problems. [Reference: See section: Delimitation of the Meaning of Ijtihad by al‑Muhaqqiq al‑Hilli]
In this discussion, however, we want to address the area of Ijtihad which attempts to derive rulings where there is no express text in Quran or Hadith. This is the area in which a Mujtahid clearly competes directly with Allah (swt) as he applies his reasoning and logic to determine halal and haram.
4. Brief history of Ijtihad
The term Ijtihad, according to the Arabic dictionary, is derived from ‘juhd’, which literally means to exert effort (struggle) for the purpose of making progress towards a goal in the hope to achieve an outcome. The generally understood definition of Ijtihad is that – it is the process employed by a Mujtahid to determine and/or derive the laws of the Sharia (islamic legal rulings). According to the Shia Usuli school of thought the Mujtahid uses four sources of law to perform Ijtihad – Qur’an, Hadith, Aql and Ijma. There is no hadith which says that the laws should be derived from these four sources and neither are there any teachings of the Masumeen (as) where they have taught the principles of Ijitihad on how laws can be derived from a combination of these four sources.
Ijtihad was an innovation practiced by Ahlul Sunnah after the demise of the Holy Prophet (s). The deviant companions of the Holy Prophet (saww) started making use of it soon after taking into their hands the reign of Government in order to justify their un-islamic actions, but later on it was extensively used by their religious leaders not only to issue fatwas to public but also to support and cover up the mistakes of the rulers who started distorting the true picture of Islam.
The first Ijtihad was based on analogy and its foundation was laid down by Iblis, since then it has been used by the enemies of Allah (azwj). The Ahl al Sunnah based the practice of Ijtihad on a fabricated Hadith of ‘Amr ibn al-‘As (a well known enemy of Ahl Al-Bayt), who narrated that the Holy Prophet (s) said:
“When a judge gives a decision by Ijtihad and gets it right, there are two rewards for him; and if he gave a Judgement by Ijtihad but erred, there is one reward for him”.
5. Ijitihad denounced by Masumeen (as)
Sunni Muslims continued to practice Ijtihad after the Holy Prophet (saww) but Ahlulbayt (as) persistently denounced it as can be found in numerous of their (as) traditions. During those times the Shia (who were actually the true Shia) used to narrate hadith and act upon religion purely by referring to ahadith of the Infallible Imams (as).
Ahl al-Bayt (as) clearly declared Ijtihad as an evil concept, which was used by evil spirits to gather support to refute Divine Commands. The first one who used Ijtihad was Iblis, (7:12)5 as per from the following Hadith:
Once, abu Hanifa came to see Imam Abu ‘Abd Allah (asws) who said to abu Hanifa, ‘O abu Hanifa, do you practice analogy as I hear you do’? Abu Hanifa replied, ‘Yes, I do practice analogy.’ The Imam (asws) then said to him, ‘Do not practice it; the first person who used analogy was Iblis when he said, “Lord, you have created me from fire and created him from clay.” He analogised fire with clay. If he had compared the light in Adam (as) and light of the fire, he would have learned about the difference between the two lights and the excellence of one over the other.’ [Al-Kafi, Vol. 1, – H 176, Ch. 19, h20
I said to Abu Jafar (as): “Matters get referred to us whose existence we do not find in the Book and the Sunnah, and we speak on them by opinion’. Imam (as) said: “If you get it right you will get no reward for it, and if you make a mistake you will have forged a lie against Allah (azwj). [Reference: Wasail ul Shia, H. 33185]
Abu Ja’far (as) said (in a reply to arriving at a best judgement-fatwa): If you get it right you will get no reward for it, but if you get it wrong you will have ascribed a lie to Allah (azwj). — Al-Kafi, Vol. 1, Wasail ul Shia H. 33185
However, after the Greater Occultation of Imam-e-Zamana (ajf), power greedy and fame hungry Shias scholars reinvented and embraced what the Sunnis had done before, by essentially replicating and slightly redefining the same term ‘Ijtihad’ declaring it as ‘permissible’ if it is based on ‘Aql’ unlike that of Sunnis which, they accused, was based on ‘Zan’ (conjecture).
6. Start of Ijtihad by Shias
The first Shia Mujtahid who came forward, by amending the Sunni originated version of Ijtihad (which was first formulated by their Imam Shafi), was Ibn-e-Junaid. He received stern resistance and opposition but eventually through the use of force and co-ercion Shia Ijtihad was gradually accepted and it’s adoption served the purpose of bringing Shias closer to the Sunnis and their system. That is how Sunni Ijtihad became Shia! It then became the norm to criticize the beliefs of Ahlul Sunnah but to continue to emulate them in Ijtihad and get a firm grip on the possibility of introducing one’s own judgement on those aspects of religion which were fully covered and extensively discussed in both the Book and the Hadith of Ahlul Bayt (as). Hence, Shia Ijtihad was incepted, which after strong opposition found its way into the main stream twelver-Imami Shia community, as it is found in its present form.
Ijtihad is a purely man-made system replacing a divine system, where a Muqallid (follower of a Mujtahid) does not know the source of a fatwa and the Mujtahid is never ever sure of his judgement (as he writes ‘Wallah ho Alim bil sawab’), consequently resulting in ‘a blind following a blind’!
7. The fundamental problem with Ijtihad
The fundamental problem with Ijtihad and the primary reason why it is an ill-founded concept is that it is humanly not possible for reason and intellect to derive the divine laws. The laws of Allah (swt) can never be determined by human reasoning and logic, simply because the processes of the law are beyond human ken.
“Allah will not be asked how He makes halal and how He makes haram.” [Imam Musa Kazim, Barqî, Mahasin, p. 114, hadîth #94; Kulaynî, al-Kafî, vol. l, p. 75].
The reasons on which the laws are based cannot be determined by us; or perhaps it would be better to say that Allah (swt) is not bound in what He commands by what we see as reason or logic. Therefore reasoning not only does not lead toward the truth; it actually makes it more distant.
Abu Ja’far (asws): “One who issues Fatwas to the people by his opinion, has made his lack of knowledge to be the religion of Allah (azwj), and who makes the Religion of Allah (azwj) through his lack of knowledge, has gone against Allah (azwj) in what He (azwj) has Made to be permissible, he makes it prohibited due to his lack of knowledge”. [Reference: Wasail us Shia H 33162]
Amir-ul-Momineen (asws), said in his (asws) speech: “Islam is submission”, until he (asws) said: “The believer takes his religion from his Lord (azwj), and does not take it from his opinion”. [Reference: Wasail us Shia H 33171]
And from Muhammad Bin Abu Abdullah, from Yunus Al-Rahman who said that he said to Abu Al-Hassan (asws) the First, “How do I explain the Unity of Allah (azwj)?” He (asws) said: “O Yunus! Do not resort to innovation. The one who ponders by his opinion gets destroyed, and one who avoids the people (asws) of the Household of the Prophet (saww) goes astray, and one who avoids the Book of Allah (azwj) and the Statement of His (azwj) Prophet (saww), becomes an infidel”.[Reference: Wasail us Shia H 33157]
“The practitioners of qiyas seek knowledge using their analogies; but that puts them only further away from the truth, for God’s religion is not determined through analogies! [Imam Jafar al Sadiq Barqi, Mahasin, p. 211, hadith #79; Kulayni, al-Kafi, vol. l, p. 72 ]
8. Did the Imams (as) practice Ijtihad to derive laws?
We believe that the Holy Prophet (s) and Imams (as) possessed the highest intellect and the best human mind. If the laws of Shariah could be derived through reasoning and logic then there was no need for Allah (swt) to send wahi/revelation to them. They could have deduced the laws through the use of their intellect. Not only that but, they would have taught us these rules comprehensively so that we could apply them to new situations to derive the legal rulings. But the reality is that the laws of Shariah are determined solely by Allah (swt) (who will not be questioned) and the Masumeen (as) have simply conveyed those laws to us.
Think about it – if Ijtihad was going to be so crucial to the guidance of Shia community, then would not the Imams have taught usul-e-fiqh (and all the other subjects that the mujtahid relies on) to the Shias? Why was it required for the scholars to later on invent this subject? Did the Imams, God forbid, neglect to do their duty or were they, God forbid, oblivious/ignorant of this critical future need of the community?
First the Shia scholars opened the forbidden door of Ijtihad and then they themselves started to write down the rules of this game and these rules are continuously evolving and changing over the centuries. They argue that Ijtihad requires a sound intellect – but who is going to guarantee soundness of intellect of an individual? There is no criteria to measure it unless guaranteed by Allah (swt), as is the case of Masumeen (as). Since the Prophet (s) or the Imams (as) never defined the rules of Ijtihad, what prevents someone from making their own rules and justifying their rulings and decisions? How dangerous this tool of Ijtihad is!
9. What should one do in confusing matters?
For those confusing matters (which are non-emergency and non-life-threatening) and there are no clear hadith we have been asked abstain/refrain from the action or wait until we can find a clear hadith or get the answer from the living Imam (as).
Rasool Allah (saww) said: “Permissible is clear, and Prohibition is clear, and confusing ones are between that. One who avoids the confusing matters will be saved from the Prohibitions, and one who takes to the confusing matters will get involved in the Prohibitions, and will be destroyed without even knowing about it”. Then he (saww) said at the end of the Hadith: “Surely abstaining during confusion is better than indulging in destruction”. [Reference: Wasail us Shia H 33472]
Abu Abdullah (asws) said: “Had the servants abstained during ignorance, they would not have struggled nor would they have disbelieved (denied). To abstain during confusion is better that indulging in destruction” [Reference: Wasail us Shia H 33474, H 33476]
Abu Abdullah (asws) said: “The most pious of the people is the one who pauses during confusion”. [Reference Wasail us Shia H 33492]
For life-threatening situations, as you know we are even allowed to consume carrion in order to save life. Also for medical conditions, there are hadith where the Imams (as) have allowed even the use of poison to seek a cure.
The use of judicial reasoning to derive ahkam is futile and ultimately leads to bid’ah (innovation of legal rulings). The legal innovations introduced by fallible mujtahids are particularly dangerous because, being cobbled with truth and untruth, they are all the more attractive to the followers of Satan. They splinter the Shias into factions and introduce differences (ikhtilaf) although the divine law is one and there can never be any contradiction in the commandments and prohibitions. Despite clear hadith, the Shias have fallen into confusion. They follow leaders whose judgements, even though they may believe that they have arrived at the right determination, is riddled with ikhtilaf. The multiplicity of sub-divisions among them demonstrates their failure to travel together on the one true path.
However the biggest danger and thus the biggest victory for Satan (who waits in ambush at the entrance of sirat al mustaqim) is that it promotes shirk by establishing fallible individuals as leaders (whom people obey and follow blindly without asking for proof) as sources of divine law defining halal and haram, thus displacing the position of the Imams (as) whom the Shias have been asked to directly and tightly adhere to (refer to hadith-e-thaqalayn).
Imam Ja’far Al Sadiq (as) said: “Beware of taqleed! Whosoever adorns this in religion is destroyed! Surely Allah (azwj) has said: ‘They took their Scholars and their Rabbis as Lords besides Allah (9:31). By Allah (azwj)! It is not that they fasted for them or prayed to them, but their (Rabbis) made permissible for them what was prohibited and prohibited to them what was permissible. They (the people) emulated (did taqleed) them (their Rabbis) in this and obeyed them and they did not realize (that they have infact worshiped them).” [Tas’heeh ul Itiqaad (Correction Of Beliefs) – Sheykh Al Mufeed, pg. 72]