對於Ijtihad的定義、執行條件與類型
Definition
and Classification. When the Prophet sent Muadh to Yemen, he asked him
about the sources on which he would base his judgments and approved of his
intention of “putting all his energy into formulating his own judgment” in
cases where he could find no guidance in the Qur’an and the Sunna. This personal effort
undertaken by the jurist in order to understand the source and deduce the rules
or, in the absence of a clear textual guidance, formulate independent judgments
is what is called ijtihad in the field of Islamic law and
jurisprudence. Hashim Kamali proposes the
following definition: “Ijtihad is defined as the total expenditure
of effort made by a jurist in order to infer, with a degree of probability, the
rules of Sharia from their detailed evidence in the sources.
Some ulama have defined ijtihad as the application by a jurist
of all his faculties either in inferring the rules of Sharia from their sources
or in implementing such rules and applying them to particular issues. Ijtihad essentially consists of an
inference [istinbat] that amounts to a probability [zann],
thereby excluding the extraction of a ruling from a clear text.” (Ijtihad的條件:
在沒有經文明文規定情況下執行)
Like al-maslaha,
the legal instrument of ijtihad has been used to justify all
kinds of new judgments. So Hashim Kamali quite rightly recalls the general
principle (about which the ulama are unanimous), according to which there can be no ijtihad when an explicit
text exists in the sources (la ijtihada maa al-nass). This means
that if there is an explicit Qur’anic verse whose meaning is obvious and leaves
no room for any hypothesis or interpretation (qati al-dalala), no ijtihad is
possible. Similarly, if the jurist finds an
authenticated hadith (mutawatir, qati al-thubut) whose
content is also completely explicit and unambiguous (qati al-dalala), he
must use that as his reference and there is no room for the exercise of ijtihad.
Indeed,
clear texts that are both authenticated and explicit, even though they are not
very numerous, constitute the unalterable foundation, the fixed principles, on
which the Sharia is based—principles to which the jurist must
refer, from which he must analyze, comment on, and explain texts that contain
some conjecture (zanni), and on the basis of which he should also
formulate new judgments through a dynamic process when his community faces new
situations. The laws and judgments provided by these clear texts together
constitute a specific corpus, which the ulama al-usul call al-malum
min al-din bil-darura, which means that they bring out the fundamental
essence of Islamic law and that to reject them leads to the negation of Islam (kufr).
But
the great majority of the verses in the Qur’an and the traditions of the
Prophet are not of both a strict and compelling nature. The Qur’an is authenticated in itself (qati
al-thubut, of indisputable origin), but most of the verses containing legal
judgments (ayat al-ahkam) are open to analysis, commentary, and
interpretation (zann¯ı al-dalala), and this is also the case with the ahadith,
most of which leave some scope for speculation as much concerning their
authenticity (thubut) as concerning their meaning (dalala). This means that the fuqaha (jurists) had,
and still have, an important and essential function in the formulation of laws
that may be called Islamic. They fulfill this function particularly through
their ijtihad, applied at various levels: to understand a specific
text (in the light of the whole Islamic legal corpus);
to
classify texts on the basis of their clarity or their nature (e.g., qati [indisputable]
or zanni [conjectural]; zahir [obvious] or nass [explicit]; khass[specific]
or amm [general]); or to formulate judgments where no text
exists. Ijtihad taken as a whole (as both source and legal
instrument) has in fact been considered by numerous ulama as the third
principal source of Sharia, encompassing al-ijma (ijtihad
jamai) al-istislah and al-istihsan, as well as
other subdivisions recognized among what are called the supplementary sources
of the Sharia. As Muhammad Hashim Kamali has emphasized: “The
various sources of Islamic law that feature next to the Qur’an and Sunnah are
all manifestations of ijtihad, albeit with differences that are
largely procedural in character. In this way, consensus of opinion, analogy,
juristic preference, considerations of public interest [maslahah], etc.,
are all interrelated not only under the mean heading of ijtihad,
but via the Qur’an and the Sunnah.”
Al-Ghazali, al-Shatibi, Ibn
al-Qayyim al-Jawziyya, and, more recently, al-Khallaf and Abu Zahra have
referred to this type of classification, underlining the importance of ijtihad as
the third source of Islamic jurisprudence, for ijtihad includes
all the instruments used to form judgments through human reasoning and personal
effort. Ijtihad is, in fact, the rational elaboration of laws
either on the basis of the sources or formulated in the light of them. Thus,
even ijma (consensus) is the product of a collective human,
rational discussion, and so one can conceive—even if it would be very unlikely
and rare—that a legal decision made by ijma might eventually
become unsuitable and be referred again for debate. As Professor Hamidullah has
said in connection with the Hanafi school of law: “The opinion of a jurist can,
however, be rejected by another jurist who can offer his own opinion instead.
This applies not only to individual opinion or an inference but also covers
collective opinion. At least the Hanafi school of law
accepts that a new consensus can cancel an old consensus. Suppose there is a
consensus on a certain issue. We accept its authority, but it does not mean
that no one can oppose it till eternity. If someone has the courage to oppose
it with due respect and reason, and if he can persuade the jurist to accept his
point of view, a new consensus comes into being. The new consensus abrogates the
old one. This principle has been propounded by the famous Hanafi jurist Abu al-Yusr al-Bazdawi in his book Usul alFiqh [Principles
of Jurisprudence]. Al-Bazdawi belongs to the fourth and
fifth century of the Hijrah. This work is a great contribution to Islamic
jurisprudence. It is on account of his statement that we can say that consensus
cannot become a source of difficulty for us. If a consensus is reached on some
issue and it is found subsequently to be unsuitable the possibility remains
that we may change it through reasoning and create a new one canceling the old
consensus.” (新共識取代舊有共識)
This
analysis recalls an important principle from the realm of usul alfiqh,
which is that the Qur’an and the Sunna are the only two indisputable sources,
sources at whose core the prescriptive verses and ahadith (ayat
waahadith al-ahkam) are divided into two main levels: the qati (indisputable), which is
clear in itself, and the zanni (conjectural, open to hypotheses and interpretations), which
requires on the part of the ulama an attentive study of the texts in question
before they can deduce appropriate judgments on passages taken from the
sources. The aim of this type of ijtihad (applied to zanni texts)—sometimes
called bayani(explanatory ijtihad)—is to analyze the
text (nass) in order to draw from it a ruling and its illa (the
effective cause of this specific ruling); this allows both an adequate
understanding of the text and consequent analogical reasoning (qiyas) in
the light of the historical context. This type of ijtihad has
given rise to numerous and diverse subdivisions following the various opinions
of the ulama.
There
is another type of ijtihad that is applied when there is no
scriptural reference. Here, too, we find numerous subdivisions because of
the diversity of opinion among the ulama and the collections of writings
and commentaries that have been made in the course of history. At least three types stand out:
1.
Ijtihad qiyasi works
by analogical reasoning, taking into consideration the effective cause (illa)
of a ruling drawn from the sources.
2.
Ijtihad zanni comes
in when it is impossible to refer to an effective cause; this type is often
linked with ijtihad
istislahi.
3.
Ijtihad istislahi is
based on al-maslaha and seeks to deduce rulings in the light
of the general objective of the Sharia
But
the ulama are not unanimous about the specific classification of ijtihad,
because they do not even agree on its definition and methods of application.
Another
distinction has to do with the degree of ijtihad, which may be
absolute (mutlaq) or limited (muqayyad). The first type, also
called ijtihad fi al-shar, is based on the ability of the mujtahid (a
scholar qualified to practice ijtihad) to extrapolate and formulate
his own judgments on the basis of a direct study of the sources. The second,
also called ijtihad madhhabi (pertaining to a school), is, by
contrast, limited to a particular school of law and the mujtahid must
formulate his judgments according to the rules of a given juridical school.
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