Общие Законы (1-15)
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Статья 9: Ижтихад является фард кифая (коллективной обязанностью, связанной с достаточностью, то есть если эта обязанность выполнена некоторыми мусульманами, то остальные мусульмане освобождаются от нее). Каждый мусульманин имеет право на совершение ижтихада при условии, если он в полной мере отвечает условиям ижтихада.
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 Allahsaid:
«إِذَا حَكَمَ الْحَاكِمُ فَاجْتَهَدَ ثُمَّ أَصَابَ فَلَهُ أَجْرَانِ، وَإِذَا حَكَمَ فَاجْتَهَدَ ثُمَّ أَخْطَأَ فَلَهُ أَجْرٌ»
“ When a judge utilizes his skill of judgement and comes to a right decision, he will have a double reward, but when he uses his judgement and commits a mistake, he will have a single reward.” (agreed upon through Amru Bin Al-Aas).He also said:
«وَرَجُلٌ قَضَى لِلنَّاسِ عَلَى جَهْلٍ فَهُوَ فِي النَّارِ»
“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:
«اقْضِ بِالْكِتَابِ وَالسُّـنَّةِ إِذَا وَجَدْتَهُمَا، فَإِذَا لَمْ تَجِدِ الحُكْمَ فِيهِمَا فَاجْتَهِدْ رَأْيَكَ»
“Judge by the Book and the Sunnah wherever you find (the ruling) in them, and if you don’t find the ruling in them, then do Ijtihad (use your judgement)” 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:
«بِمَ تَقْضِيَانِ؟ فَقَالاَ: إِنْ لَمْ نَجْدِ الْحُكْمَ فِي الْكِتَابِ وَالسُّـنَّةِ قِسْـنَا الأَمْرَ بِالأَمْرِ، فَمَا كَانَ أَقْرَبَ إِلَى الحَقِّ عَمِلْنَا بِهَ»
“What will you judge by?” They said: “If we don’t find the rule in the Book or in the Sunnah, we will make analogy (Qiyas) between things; whichever (according to our judgement) is closer to the right is adopted.” (mentioned by Al-Amidi in Al-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:
«كَيْفَ تَقْضِي إِنْ عَرَضَ لَكَ قَضَاءٌ؟ قَالَ: أَقْضِي بِكِتَابِ اللَّهِ، قَالَ: فَإِنْ لَمْ يَكُنْ فِي كِتَابِ اللَّهِ؟ قَالَ: فَسُنَّةِ رَسُولِ اللَّهِ قَالَ: فَإِنْ لَمْ يَكُنْ فِي سُنَّةِ رَسُولِ اللَّهِ ؟ قَالَ: أَجْتَهِدُ رَأْيِي وَلاَ آلُو. قَالَ: فَضَرَبَ صَدْرِي فَقَالَ: الْحَمْدُ لِلَّهِ الَّذِي وَفَّقَ رَسُولَ رَسُولِ اللَّهِ لِمَا يُرْضِي رَسُولَهُ»
“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 Allahsaid: “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 HasanMashur and relied upon by the scholars of Islam).
This clearly indicates the approval of the Messenger of Allahwith regard to Mu’ath’s performance of Ijtihad. Furthermore, the knowledge of the rules is linked and is related to Ijtihad since the realisation and the comprehension of the rules could not be established without it. Hence, Ijtihad becomes obligatory because the Shari’ah principle stipulates:
(ما لا يتم الواجب إلا به فهو اجب)
“ That, without which the obligation cannot be accomplished, is itself an obligation”.
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 Ijtihad ,therefore, 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. Ijtihad was 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.