By Shaykh Ismā’īl Ibrāhīm Patel
Laying down the foundations: Doing Ijtihad is not the same as being a Mujtahid
There are two separate discussions which many people conflate and confuse with each other. They are separate discussions:
- The discussion of Ijtihad and Taqlid
- The discussion of Mujtahids and Muqallids (and Talib if you want to add, see previous note)
The first discussion is in relation to practice, whereas the second is a label attached to the person. This means that:
- A person worthy of the Mujtahid label may be doing Taqlid in one issue because he hasn’t researched it yet
- A person who does not carry the title of Mujtahid may have researched an issue well enough to warrant himself Ijtihad in that matter, like is the case with advanced students of knowledge
- A person who does Ijtihad may not necessarily be worthy of the Mujtahid title – like advanced students of Fiqh who do Ijtihad in a few issues
- A person who does Taqlid in an issue may well be a Mujtahid scholar but only did Taqlid because he hasn’t researched it properly, or doesn’t have the time to research it, or it’s a niche area out of his area of expertise
The above proves that doing Ijtihad and Taqlid do not automatically make you a Mujtahid or a Muqallid. This also proves that the prerequisites of Ijtihad are different from the characteristics of a Mujtahid, and the prerequisites of Taqlid are different from the characteristics of a Muqallid. Unfortunately, some people these days think if a person does Ijtihad in one issue, he would be implicitly claiming to be a Mujtahid, and would be smeared with the label of neo-Mujtahid. This is totally wrong.
The different formats of Ijtihad
The two main forms of Ijtihad are:
- Looking into the Quran and Sunnah directly and deriving rulings from them (i.e. Istinbat), mainly because the issue has never been researched before, but also sometimes when there are past scholarly opinions in the issue but he does not consult them at all when arriving at a conclusion (which is not only rare, but unprofessional; incompetent Salafis have been found doing a lot of the latter, though such people are dwindling)
- Looking primarily into the opinions of the scholars and the evidences they used, and then preferring one over the other (i.e. Tarjih)
All Four Imams and all the great Mujtahids of the past did both. A Mujtahid, especially the earliest Mujtahids, worked on a combination both types of Ijtihad in their Fiqhi careers. Even in one single issue they may have been researching, a Mujtahid may have felt the need to combine both Istinbat and Tarjih to arrive at a conclusion (i.e. his own Ijtihad – his own opinion – in that issue).As time went on, it became more difficult to do the first type of Ijtihad, i.e. Istinbat. This is because most issues were already discussed, so later scholars would have to consult those opinions first, then look into their evidence (i.e. Tarjih), rather than reinvent the wheel and go directly again to the Kitab and Sunnah. This also shows the importance of precedence in Islamic law, that scholars always consulted past opinions and their evidences. Only in new issues (Nawazil) would they require the need of undertake Istinbat, but even then there would be indirect precedents, making their Ijtihad a combination of Istinbat and Tarjih. A simple, contemporary example of this would be engineering Islamic finance models for house purchase.
It’s not only these two types of work though that fall under Ijtihad. Ijtihad has other forms too. Overall, later scholars adopted different various methods: some stuck within the boundaries of their schools and worked from within, some ventured out freely; other ventured out rarely; some ventured out the boundaries of the Four Schools; some were not even part of the Four Schools. Here are further types of Ijtihad that we can find in the conduct of Mujtahids:
- Extracting rulings from the fatwas of the Imams or other past scholars. This type of Ijtihad is called Tafri`, and is also the first type of Takhrij, or more precisely تخريج الفروع, and is done when a later scholar agrees with an overarching ruling of a past scholar.
- Creating new principles and rules based on the pre-existing material of the school. This type of Ijtihad is known as Ta’sil, and is also known as the second type of Takhrij, or more precisely تخريج الأصول على الفروع. These new derived principles help create further rules for posterity.
- Working within the school to ascertain what its Imam actually said, and when there is a conflict on narration from him, preferring one ruling’s attribution to the Imam over another. This type of Ijtihad is referred to as Tamyiz, and it can also be referred to as Tarjih.
- Justifying the Madhhab by shoring it up with fresh evidence. This type of Ijtihad is actually fresh Istinbat for pre-existing opinions, usually from the scholar’s own school’s mainstream position. In Arabic, you call this Intisar. Sheikh Zakariyya al-Ansari of the Shafi`is (died 926 A.H.) alludes to this in his Ghayat ‘l-Wusul Sharh Lubb ‘l-Usul by saying:وأخذ قول الغير مع معرفة دليله، فليس بتقليد بل هو اجتهاد وافق اجتهاد القائل“Taking the position of another with knowledge of its evidence is not Taqlid [nor is it called Ittiba` either like Salafis like to call it], but rather it is [called] Ijtihad that coincided with the Ijtihad of the person who said it [and first adopted that opinion].”
There are other terms in use as well to describe Ijtihad itself, like Tarjih, Ikhtiyar, Muwafaqah and Mukhalafah, etc.
Whereas when the word Ijtihad is said it primarily means the first two types only, whereas these four types have a meaning of affiliation to a school of law, the reality is these latter four also fall within the realm of Ijtihad, as they literally are Ijtihad – exerting effort to ascertaining rulings.
“Different types of Ijtihad” renders “Different rankings of Mujtahids” meaningless
Once it is established that these are all various types of Ijtihad, and it is logically understood that scholars do any one of them at different times, and can even do a mixture of them in one issue, it becomes completely incorrect to claim that “So and so scholar is a Mujtahid of this ranking but not another”, or “So and so scholar is a Mujtahid of this level but not the other.” In fact, it makes little sense.
Unfortunately, many writers of the past have fallen into the trap of categorising scholars into levels. If you look at those levels or ‘rankings’, although they look quite fancy (which is why many fell into the trap), they are utterly baseless. These rankings are not found in any prominent Usul ‘l-Fiqh text (where they should belong), but in other non-specialist works. The categorisation of jurists into
- Mujtahid Mutlaq,
- Mujtahid Muntasib,
- Mujtahid Fi ‘l-Madhhab,
- Mujtahid Fi ‘l-Masa’il,
- Mujtahid Fi ‘l-Takhrij,
- Mujtahid Fi ‘l-Tarjih,
- Mujtahid Fi ‘l-Tamyiz, and
- Muqallid etc.
is:- a) greatly differed over in the actual number of categories (some say three, some say four, others say seven or eight), and- b) this false classification has been used arbitrarily used when classifying jurists of the past. For example, Ibn ‘l-Humam (a great Hanafi scholar and Mujtahid of the 9th century, based in Egypt) was placed by someone in a higher ranking than al-Quduri (the leading Hanafi scholar of Iraq in early 5th century). So someone later on said, “How can al-Quduri be lower than Ibn ‘l-Humam when he came centuries before him!?”, after which he proceeded to place al-Quduri in the same rank or above Ibn ‘l-Humam, all arbitrarily!
Did this writer actually think that al-Quduri was bothered whether he was placed below, above or next to Ibn ‘l-Humam in these arbitrary scholar rankings? And for that matter, did Imam Abu Hanifah, Abu Yusuf, Muhammad, Malik, al-Shafi`i, Ahmad and all the major scholars of the Sahabah and the Tabi`un ever believe they were of these rankings? Did they even care about this? They, as scholars, did their job in Fiqh and passed away. Some became more prominent than others; some were greater than others; some had schools names after them and others didn’t; some worked on the methodology of a past scholar he agreed with and liked; etc.
The best and most detailed refutation against such rankings was made by a highly competent Tataristani Hanafi scholar by the name of (Shihab al-Din) al-Marjani (1818–1889 C.E.) in his book Nazurat ‘l-Haqq.
The next time you see one of these lists, even though they may be from reputable scholars of the past who may have created them, realise that it will just mess your thought process up. It actually does harm to your understanding of Mujtahids and scholars, and it gives you a distorted understanding of the things they actually did in their Fiqhi careers. We should be analysing them for who they were, not for what rank they were in.
It would be prudent at this point to highlight why these rankings became so prominent in later writings in spite of its flaws. This categorisation of Mujtahids into 3/4/7/8 ranks is the same reason why Salafi Fiqh gained traction in the past few decades. Just like the appealing Salafi Fiqh slogan of “Quran and Hadith” that actually ends up oversimplifying Fiqh altogether and missing out on 90% of Fiqh’s true reality, these rankings were far too an easy and irresistible exercise to ensure every scholar’s place is known, rather than an in-depth investigation into each scholar’s doings and undertakings in the academic field of Islamic law. Questions like “So which rank is al-Quduri in? Which rank is Ibn Qudamah in? Where does al-Rafi`i sit? How about al-Qarafi?” are as absurd as the rankings, but for those too lazy to look for nuances, it works well and actually feels pleasing to the uninitiated’s mind, to say the least.
Ijtihad suffered as a consequence. With the dynamic changing from pushing the boundaries of research and independent thought to an over-reliance on commentaries, scholia and “the relied-upon position of the school”, pioneers within Islamic knowledge amongst the later scholars were and still are usually dismissed as outsiders in unsophisticated circles. They are accused of not conforming to the whip (mu’tamad, mufta bihi, mashhur, rajih of the madhhab, etc.), which is compounded by arbitrary, baseless, and made-up rules like “The doors of Ijtihad are shut”. Ibn ‘l-Humam, Ibn Taymiyyah, al-Nawawi (and basically anyone who went against the “mu’tamad” of their school) was – and still is – a victim of this, and their Ijtihad is simply viewed as an unnecessary exercise on their part, and sometimes even frowned upon. Unsophisticated Salafis love to label these academic endeavours in Fiqh as Shudhudh, whereas unsophisticated Deobandis tend to dismiss them as Tafarrud.
Scholars and their affiliations to the schools was based on their study and/or adaption of the school’s methodology; their agreement with their schools was many a time out of their own Ijtihad, and not always out of Taqlid; and why some scholars didn’t ever differ with their schools
So they had a wide variety of Ijtihad in Fiqh. They did so without feeling being pigeon-holed into one rank of jurists. They would have actually laughed at the prospect that someone half a millennium on was categorising them. In fact, the “Mujtahid Mutlaq” some people refer to were actually part of the overall schools and legal trends of their own region, so to claim that the Four Imams were completely independent of past scholars is simply false. Abu Hanifah was of the Kufic/al-Nakha`i/Ibn Mas`ud tradition; Malik was a Mujtahid affiliated to the Seven Jurists of Madinah; al-Shafi`i likewise to his various education environments in Hejaz, Iraq and Egypt; Imam Ahmad to Abu Yusuf, Ibn `Uyaynah, al-Shafi`i, etc. So they were all affiliated to their own traditions.
The only thing that separates the Four Imams and the scholars affiliated to their schools is the recognition that they are part of the school, i.e. the students of Abu Hanifah – Abu Yusuf and Muhammad are his most famous students – are considered Hanafis is because their opinions were recorded down with the Imam, they narrated their Imam’s opinions, they stayed with him and his students for a large chunk of their lives, and adopted his Fiqhi methodology. This is despite the fact they as teacher and students differed with each other in over half of all Fiqh, and were without no doubt Mujtahids no less than Malik and al-Shafi`i. The idea that Abu Yusuf and Muhammad were somehow less than Malik and al-Shafi`i in these so-called juristic rankings is just preposterous.
Look at the conversions from school to school. Take Imam al-Tahawi for example. He switched from Shafi`i to Hanafi. What does this conversion mean? Does it mean he became a Muqallid of Abu Hanifah.? Of course not! Rather, based on his personal Ijtihad, he switched to the general legal methodology of the Hanafis. He was a Mujtahid pre-conversion, it was his Ijtihad that led him to convert, and he was a Mujtahid post-conversion. He remained a Mujtahid for the rest of his life. He differed with Abu Hanifah in many issues. The most what we can say of him, and his likes such as Abu Yusuf and Muhammad, as well as other scholars of the other schools, is that there are Mujtahid Muntasib, i.e. Mujtahids affiliated to the legal methodology of one of the Madhhabs. But even saying that is confusing. I would just say “Mujtahid.”
Someone asked me about Ibn Khuzaymah, the famous Muhaddith, who reportedly said, “I have not followed anyone blindly since I was 16 years.” His question was that surely he wasn’t a Mujtahid at 16 years of age, so how can he call himself one? My response was this: “What it means is that, in any issue that arose in front of him, he always researched it properly. In other words, he was doing Ijtihad all the time from a young age. [He was not necessarily affording himself the label of Mujtahid.]”
Some scholars chose not to dedicate their lives to Fiqh. Therefore, even though they had the tools of entry-level Ijtihad, they couldn’t express it because they were engaged with other stuff, like politics, Jihad, Hadith. Some were genuinely scared of their jobs due to the bigotry of their employers and didn’t go out of their schools, as has been documented in Islamic history (I’m not going to talk about this now as that is a different topic, but it is well documented; the phenomenon of Madaris Mawqufah alone is sufficient to prove this wasn’t an irrational phobia). Many later scholars sufficed with defending (i.e. Intisar, as mentioned above – a form of Ijtihad which appears to be Taqlid but is in fact Ijtihad) to their pre-subscribed positions of their Imam. Yet, in individual issues here and there, we see virtually every scholar differing with the mainstream of his Madhhab. Even so-called Muqallid scholars (there is no such thing as a scholar who is a Muqallid) differed with their schools when they felt after research that their school’s position is academically untenable.
On the subject of scholars agreeing with their schools, then whereas many a time this was done out of Taqlid (due to a variety of factors, such a laziness, fear of reputation, risk of losing job, not being a specialist in Fiqh), it is also argued that many a time a scholar from that school agreed with his Imam out of his own personal Ijtihad. I don’t need to add much to this after what the eminent Maulana Taha Karan so eloquently wrote in his piece on al-Subki’s Ijtihad. He says:
Would it then mean that as-Subkî did not practice ijtihâd? That conclusion can only be drawn by someone labouring under the impression that the performance of ijtihâd must, as a matter of necessity, lead to the adoption of positions that differ from the official position of the madhhab. When a faqîh of a madhhab performs independent ijtihâd he will arrive either at a position different from that of his madhhab, or he will discover that the position of his madhhab was in fact the correct one. The value of the ijtihâd which leads back to the madhhab is in no way less than the ijtihâd leading away from the madhhab. To expect that every exercise of independent ijtihâd must lead away from the madhhab betrays a lack of understanding. Thus in the case of as-Subkî, his ijtihâd was not restricted to the 50-odd cases in which he adopted positions completely outside the madhhab. In the hundreds, if not thousands of other masâ’il in which he concurs with the madhhab the chances of him having adopted those positions as a matter of ijtihâd and not taqlîd, are as great as in the case of his ijtihâd-based departures from the madhhab. The only difference lies in the fact that the latter are obvious while the former are oblivious. The history of the madhhab contains abundant examples of ijtihâd which leads to conformity with themadhhab rather than departure from it. The case of al-Qaffâl al-Marwazî comes to mind. This faqîh, who was the shaykh of the Khurâsânî tarîqah of the madhhab, used to say: “We are not muqallids of ash-Shâfi‘î. Rather, our ijtihâd coincided with his.” This same statement was echoed by his pupil al-Qâdî Husayn, Shaykh Abû ‘Alî as-Sinjî, al-Ustâdh Abû Ishâq al-Isfarâyînî and others.
The entry-level prerequisites to do Ijtihad in any one issue of Fiqh, and the characteristics of a scholar carrying the label of Mujtahid
Coming back, we reiterate that Ijtihad in a few off issues does not automatically make one entitled to the title of Mujtahid. Ijtihad’s entry-level requirements are spelled out in Usul ‘l-Fiqh texts. Here is Ibn Qudamah speaking on Ijtihad’s entry-level requirements in his book Rawdat ‘l-Nazir:
- Knowledge of the 500 verses pertaining to Fiqh from the Quran (without necessarily having memorised them)
- Awareness of where of the Ahadith pertaining to the law are located
- Confidence of whether a certain provision he is using is not abrogated
- Knowledge of whether the Hadith he is using is either authentic or not, either through investigation in its narrators, or by following the Imams of verification and criticism in Hadith
- Awareness of whether the place he is investigating has consensus, or not, or is a new issue that has never been investigated before
- Ability to line up evidences with an awareness of their prerequisites
- Awareness of Arabic that would enable him to distinguish the various types of texts (i.e. explicit v. inexplicit texts, real v. metaphorical texts, general v. specific texts, clear-cut v. ambiguous texts, unqualified v. qualified texts, direct v. indirect texts, etc.)
Note these entry-level prerequisites are a smack in the face of those who raise the bar of Ijtihad so astronomically high that they paint a false picture that Ijtihad is unattainable, and the door to any type of Ijtihad is shut. Even in practice, the realisation of some of the prerequisites when doing Ijtihad in some issues would be redundant, as practice would also suggest that to have memorised the entire Quran is an absolute must for those starting out on Ijtihad.
But to be worthy of the Mujtahid title, it does not have any such prerequisites, and cannot be explained. It is more about recognition from peers, one’s produced work and one’s dedication. A Mujtahid would need to prove himself worthy of the title with a consistent, high-level interaction with Ijtihad over an extended a period of time, and in over a number of chapters and issues. To be really recognised, one would need to deal with the new issues (Nawazil) of his own era and create his own opinions. This is a matter of common sense. The distinction between doing Ijtihad and being a Mujtahid is indicated to by Zakariyya al-Ansari of the Shafi`is (died 926 A.H.). He makes the distinction that one must be aware of the research in the area he is currently undertaking Ijtihad in, but a person who is a Mujtahid would have to know every aspect of his research at all times. He adds that Zakariyya al-Ansari said in his Sharh Ghayat ‘l-Wusul, a commentary on his own book, Lubb ‘l-Usul:
“It is considered for Ijtihad [itself], not that it is a characteristic of a Mujtahid, that he is aware of the places of consensus…”
Importantly, one should realise that becoming a Mujtahid is not an overnight process. A student and eventual scholar will do Ijtihad in some issues, whereas he would still be doing Taqlid in others. This is a natural process. A brain surgeon is not necessarily a heart surgeon specialist. A criminal lawyer is not a commercial lawyer. Thus, the fragmentation of Ijtihad (Tajazzu’ ‘l-Ijtihad) is therefore the strongest opinion (i.e. that a person can be a Mujtahid in some chapters only). In fact, I have been unable to find anyone who said that one has to be a Mujtahid in everything to be legitimately labelled a Mujtahid. Proving that even top class Mujtahids have time to adopt Taqlid on occasions is what Imam Ahmad said of himself as recorded by al-Dhahabi in his Siyar:
When I am asked of an issue in which I do not know a narration, I take the position of al-Shafi`i in it, because he is a Qurashi Imam, and it has been reported from the Prophet (peace be upon him) that he said, “A scholar of Quraysh will fill the world with knowledge”… I have been supplicating for al-Shafi`i for forty years in my Salah.
Ibn Hamdan al-Hanbali (died 695 A.H.) in his book Sifat ‘l-Fatwa talks about a scholar being a Mujtahid in only one chapter, or even only one issue. He says:
The issue of students of knowledge is also connected to this discussion. They are non-Mujtahids, but they can exercise Ijtihad in their own capacity and after reasonable research in the issues they have studied.
 Article taken from the author’s Facebook post, here.
 In this last type, if a person is a layman or a beginner in Fiqh, then for him to do Intisar of an opinion is dangerous. In fact, it is ignorance and bigotry on their part. Intisar is a form of Ijtihad and unqualified people should not be dabbling in such stuff. Most “online Intisar” these days happens by copy-pasting or posting links. What these laymen get up to is an insult to Ijtihad. (Ismail Ibrahim Patel)
 For more on the Shihab al-Din al-Marjani see this Wikiedia entry.
 Nazurat ‘l-Haqq, p. 58 onwards. Available online here.
 An allegation against Imam as-Subki, Mawlana Taha Karaan. Available online here.