Introduction to an Islamic Constitution for Syria and the Muslim world - Article 9

The following is the translation of an article from the book by Hizb ut-Tahrir entitled 'Introduction to the Constitution and the necessary evidences for it' which is the explanation of its draft constitution for the Khilafah state. This draft translation is from the second edition published in 2009 which was updated from the original published in 1963. Numerous brigades in Syria have agreed to the implementation of this constitution after the removal of the corrupt system that has brutally suppressed the people for decades. 

Article 9

Ijtihad is a duty of sufficiency and every Muslim reserves the right to perform Ijtihad provided he meets all its prerequisites.

The Islamic Shari’ah has made Ijtihad to deduce the Shari’ah rules from the address of the Legislator – i.e. from the Shari’ah texts which are revealed by Allah (swt) to the Messenger of Allah  - an obligation upon the Muslims. The fact that Ijtihad is an obligation has been confirmed through several narrations. The Messenger of Allah  said: “If a ruler were to give a ruling, so he made Ijtihad and reached the sound rule, he would get double the reward. However, if he were to give a ruling and he made Ijtihad but reached the wrong rule, he would still get a reward”  (agreed upon through Amru Bin Al-Aas). He  also said: “and a man judged people without knowledge, he is in Hell fire” (transmitted by the compilers of the Sunan and Al-Hakim and Al-Tabarani with a Sahih chain). This confirms that the judge must be acquainted with what he judges on. It is also reported that he  said to Ibn Mas’ud: “Judge by the Book and the Sunnah wherever you found (the ruling) in them, and if you don’t find the ruling in them then do Ijtihad” as mentioned by al-Amidi in al-Ahkam and al-Razi in al-Mahsul. He  said to Mu’ath and Abu Moussa Al-Ash’ari when he was about to dispatch them to Yemen:“What will you judge by?” They said: “If we did not find the rule in the Book or in the Sunnah, we would make analogy between the two matters and whichever were closest to what is right, we would act upon” (mentioned by Al-Amidi in aAl-Ahkam and Abu Al-Husain in Al-Mu’tamad). This analogy is in itself an Ijtihad to deduce the rule, and the Messenger of Allah  approved it. It is also reported that the Messenger of Allah  said to Mu’ath when he appointed him as governor to Yemen: “What will you rule by?” He said: “By the Book of Allah.” He  said: “What if you do not find the rule?” He said: “By the Sunnah of the Messenger of Allah.” He said: “What if you do not find the rule?” He said: “I will exert my own opinion.” Upon this the Messenger of Allah  said: “Praise be to Allah Who guided the envoy of the Messenger of Allah to what satisfies His Messenger” (transmitted by Ahmad and Al-Tirmidhi and Al-Darimi and Abu Dawud and was authenticated by Al-Hafiz Ibn Kathir Al-Basrawi who said that the narration is Hasan Mashur and relied upon by the scholars of Islam).

This clearly indicates the approval of the Messenger of Allah  with regard to Mu’ath’s performance of Ijtihad. Furthermore, the knowledge of the rules is linked and is related to Ijtihadsince the realisation and the comprehension of the rules could not be established without it. Hence, Ijtihad becomes obligatory because the Shari’ahprinciple stipulates: “Whatever is necessary to establish a duty is in itself a duty”.

In origin, the deduction of the rules is performed by Mujtahideen(those capable of Ijtihad) because the knowledge of Allah’s rule in a given matter cannot be reached except through Ijtihad, and Ijtihadtherefore becomes indispensable. The scholars of Usul Al Fiqh (the principles of jurisprudence) have indicated that Ijtihad is a duty of sufficiency upon the Muslims and that it is forbidden for Muslims to be without a single Mujtahid at any given time, and that if they all agreed upon forsaking Ijtihad, they would be sinful because the only way to know the Shari’ah rules is through Ijtihad. Therefore, if an era were devoid of at least one Mujtahid upon whom it could be relied in perceiving the rules, it would lead to the paralysis of the Shari’ah and this is forbidden. Besides, the Shari’ah texts make it incumbent upon Muslims to perform Ijtihad because these Shari’ah texts (i.e. the Book and the Sunnah and nothing else) have not come in a detailed manner but rather in a general manner that can be applied to every reality faced by humanity. Their understanding and the deduction of the rule of Allah require the exhausting of efforts in order to obtain the Shari’ah rule from them for every matter. This Ijtihad is not an impossible task nor is it extremely difficult; rather, it is the process of exhausting one’s effort in order to acquire the Shari’ah rules with the least amount of doubt. In other words, it is the understanding of the Shari’ah texts with the exhausting of one’s utmost effort in order to attain this understanding and to perceive the Shari’ah rule. This is in fact within everyone’s reach. Ijtihadwas natural and evident to the Muslims in the early times and it had no prerequisites. However, since the understanding of the classical Arabic language started to weaken and since people started to devote less attention to discerning the Deen, it has become incumbent upon the Mujtahid to know the narrated evidences (adillah sam’iyyah) from which the principles and the rules are deduced. It has also become incumbent upon him to discern the meaning of expressions which are commonly used in the classical Arabic language and in the usage of rhetoric. There are no other conditions apart from these two to performing Ijtihad. Therefore, in addition to being a duty of sufficiency upon the Muslims, Ijtihad is within the reach of all the Muslims. These are all the evidences for this article.