Bismillah al-rahman al-rahim, wa al-salat wa-l-salam 'ala muhammad wa 'ala alihi wa sahbihi wa azwajihi ajma'in.
rabbi ishrah li sadri wa yassir li amri wa ahlul 'uqdatan min lisani yafqahu qawli.
1. What qualifies an ijtihad as being valid?
Before one can answer this question, one must understand there the scholars of usul al-fiqh have identified at least three types of ijtihad: (1) takhrij al-manat; (2) tanqih al-manat; and tahqiq al-manat. Takhrij al-manat roughly means "extraction of the grounds [of a divine ruling]. An obvious example would be that the grounds for the prohibition of khamr (grape wine) is its capacity to intoxicate. While this example is obvious, other texts of revelation prove much more difficult in the extraction of the manat, and hence, the mujtahids have differed greatly in their opinions regarding the grounds of the divine ruling. [note: "manat" when used in the context of takhrij al-manat is virtually synonymous with the term "'illa." Of course, the scholars of usul al-fiqh have identified various types of 'illas of differing strength, something I am only superficially familiar with. A good source discussing this question is Imam al-Ghazali's "Shifa` al-ghalil fi masalik al'ta'lil," wherein the Imam discusses the various types of 'illas and their use in juridical analogy (qiyas). Wa-allahu a'lam.
Because takhrij al-manat requires proper understand of the indicants of the divine ruling (the dalil), it is this type of ijtihad that requires mastery of the full spectrum of religious sciences with the additional stipulation of 'adala and piety. Obviously, the minimum required is that the mujtahid know all the proof texts that are relevant to solving the question before him, and that there is no unequivocal divine communication (khitab) governing the case. [Note: there are three types of "dalil" of a divine ruling, Qur'an, sunna and consensus. With the exception of the Qur'an, the different mujtahids had different opinions with regard to the manner in which the other two dalils had to be transmitted so as to constitute a valid dalil].
I believe Sidi Haddad only recently posted on the attributes of a mujtahid mutlaq, i.e., that scholar who is qualified to issue religious opinions on any matter based on his direct interpretation of divine revelation. It is commonly accepted that no one satisfies these requirements today.
While this is erroneously claimed to be a defect, in fact, because we have the legacy of the mujtahid-imams, the advanced students of these Imams, by following the doctrines of their Imams, are able to derive rulings for unprecedented cases rather easily. Indeed, according to Ibn al-Salah, it is easier for the muqallid of an Imam to arrive at a ruling on an uprecedented case by relying on the principles of his Imam than it would be to derive the rule solely on the dalils of shar', wa-allahu a'lam. This level of scholar is deemed mujtahid fi-l-madhhab (a mujtahid within a madhhab).
[GFH: also "mujtahid muntasib = affiliated mujtahid").]
The second type of ijtihad, tanqih al-manat, is an intermediary step preceding takhrij al-manat, where the mujtahid, working as a scientiest does, confronts a dalil, and hypothesizes that the ground for the rule contained in the dalil is X, Y or Z. He then tests this hypothesis against other data to see if the theory is sound. The mujtahid continues doing this until he determines which of X, Y or Z, or a combination of them, is the actual ground for the rule.
It seems to me that at this stage of ijtihad, non-specialists in religious sciences have a critical, though ancillary role, to play in aiding the mujtahid's inquiry. Often, when a mujtahid is attempting to determine whether the 'illa is X, Y or Z, he will rely on some empirical theory, especially if the mujtahid believes that the 'illa should be "appropriate (munasib)" to the ruling. Appropriate in this case means that it serves one of the five maqasid kulliyya [comprehensive objectives] of the Shari'a, i.e.,  the promotion of religion,  the protection and/or enhancement of life,  property,  progeny and  reason ('aql). Where a fatwa incorporates an empirical judgment, the mufti must take steps to ensure that the empirical judgment he is adopting is not clearly erroneous.
Finally, tahqiq al-manat is that type of ijtihad concerned with accurate perception of the empirical world. Allah, subhanahu wa ta'ala, in His mercy, obliged us to worship Him only conditionally, i.e., when certain conditions are met. Likewise, in His mercy, He also removes certain obligations from us when certain impediments exist. The conditions whereby an act becomes obligatory is called a "sabab," and a condition whereby an obligation is suspended is called a "mani'", literally, "an obstacle." A common example of a sabab is the sun reaching its zenith in the sky being the condition for the obligation to pray zuhr. An obstacle removing the obligation of Pilgrimage would be, at least for Malikis, an absence of secure carriage to the Hijaz. In other situations, the divine rule itself requires the application of some empirical knowledge, e.g., facing the qibla at the time of prayer, or in the circumstance of the destruction of private property, an empirical determination of its fair market value.
The point is simply that in many situations, properly obeying Allah subhanahu wa ta'ala requires making an accurate determination of an empirical situation, and this type of knowledge is not necessarily within the preserve of a mujtahid, unless he is also, independently of his mastery of religious sciences, also a master of the particular empirical science at issue.
Al-Qarafi gives a good example of an empirical error underlying Imam Malik's (may Allah be please with him!) opinion regarding the beginning of the lunar months in the Islamic calendar. The mashhur of the madhhab is that once the moon is seen anywhere, the month begins for the entire Muslim community. This position is known as "ittihad al-matali'." The other position, adopted by the Shafi'is, at least according to al-Qarafi, is that each town has its own moon, i.e., months begin and end according to local moonsightings. Qarafi explains, however, that Malik's position was based on the erroneous empirical theory that the moon was visible at the same time everywhere. Al-Qarafi, being trained in astronomy, knew this to be false, and stated that the position of the moon relative to human observers varies depending upon the position of the human observer, and therefore, the Shafi'i position is correct. (See, al-Furuq, al-farq al-awwal, al-farq bayna al-riwaya wa-l-shahada).
Thus, as a general matter, one can say that any fatwa that is based on an empirical premise known to be wrong is itself certainly wrong, although the pure rule that the mujtahid relied on in issuing his opinion may nonetheless be sound.
[GFH: The Matali` or visible moon positions per Malik and the Hanafi School are unified in effect for Ramadan and Shawwal on the grounds - Allah knows best - not of the empirical theory that the moon should be visible at the same time everywhere, but the explicit wording of the Prophet said to "fast at its sighting and cease fasting at its sighting" in absolute sighting terms, i.e. no matter where, *one* true sighting sufficing for the whole Umma, - which is what is meant by ittihad al-Matali` - and this is why Ramadan and `Eid al-Fitr are or should be unified. This is the agreement of the Four Schools according the Jedda-based International Fiqh Council including the Shafi`i Ulema such as the late Shaykh Mustafa al-Zarqa, Shaykh Yusuf al-Qaradawi, Dr. Wahbe al-Zuhayli... so the present orientation of the Umma has endorsed the fatwa of Imam Malik after all, regardless of his or the Hanafi Imams' knowledge in astronomy. Whereas for Dhul Hijja the Matali` must be precisely differentiated in every respective area and it is therefore allowed that their respective dates for `Eid al-Adha differ. WAllahu a`lam.]
Another example might make this more clear: according to Imam Malik, any land that the Muslims conquered by force is waqf, and therefore, not eligible to be privately owned. Imam Malik also gave the fatwa that the land of Egypt was a waqf based on the historical (empirical) assumption that Egypt had been conquered, not that it had voluntarily (sulh) entered Islam. Qarafi points out that whether Egypt was or was not conquered is a matter of shahada (empirical knowledge) not riwaya (transmisssion of revelatory knowledge), and therefore, Imam Malik's opinion on this empirical fact is not an appropriate object of taqlid. Indeed, others, e.g., al-Layth b. Sa'ad, who were closer to events, who reported the opposite, are more worthy to be believed, not because their knowledge of revelation exceeded that of Malik, but rather that their specialized empirical knowledge regarding the circumstnaces whereby the territory of Egypt entered Islamic dominion is more accurate than that of Malik.
One can conclude by a general observation. Allah subhanahu wa ta'ala has blessed this umma by making His commands consistent with reason ('aql), the attribute by which He distinguished the descendants of Adam, 'alayhi al-salam, from the rest of His creation. Accordingly, we Muslims, when called upon to exercise our mental process in the process of obeying our Creator, are always obliged to follow the **best** information we can find. Thus, as non-specialists in the revelatory sciences, we know that the opinions of the mujtahid-Imams are superior to the opinions of the unlearned, and accordingly, we follow their opinions, not those of the uninformed. Likewise, we also know that mujtahid imams are not necessarily the best source of information on empirical matters, and accordingly, where our worship of Allah, subhanahu wa ta'ala, requires ascertaining that a certain empirical circumstance be confirmed, or negated, we must rely on experts in that empirical field for that piece of information.
In short, valid ijtihad consists in following the best available evidence, whether that evidence is revelatory or empirical, as the context requires. Wa-allahu 'alam.
I think I answered this question implicitly in the discussion above. I would only add this: the decline in quality of fatawa is only a particular manifestation of the more general decline of Muslims in all fields of learning. Moreover, one can only express astonishment at a people who used to compete with one another in the acquisition of learning, but today lead the world in illiteracy! The lack of respect for learning today in the Muslim world is surely a sign (and cause) of Allah's anger with us. I ask Him to rekindle in our hearts the love of learning and respect for those who pursue it.
The fuqaha` and the mutakillimun have differences of opinion on this question. This is an advanced topic in usul al-fiqh, and I do not wish to speak in great detail on this question, although I am happy to discuss it privately. The gist of the dispute is reported in al-Ghazali's Mustasfa, where he asks the question whether a divine rule exists for every event. The fuqaha` say yes, the mutakillimun say no, or at least the majority of them say no. Clearly, if one adopts the position of the fuqaha`, erroneous ijtihad makes sense. If one adopts the position of the mutakillimun (known as the "musawwiba"), all mujtahids are correct, assuming they've done their duty, i.e., used their best efforts in arriving at their conclusion.
[GFH: Al-Nawawi said: "Every mujtahid is correct according to one of the two views on the issue." - Al-Nawawi in Sharh Sahih Muslim, Chapter entitled Al-Amr bi al-Ma`ruf wa al-Nahy `an al-Munkar, commentary on the hadith of the Prophet : "Whoever of you sees wrongdoing, let him change it with his hand; if he cannot, then with his tongue; if he cannot, then with his heart, and that is the weakest belief." Of course what is meant here by "every mujtahid" is every qualified mujtahid. As for an unqualified mujtahid, the Prophet said: "Whoever explains the Qur'an with his mere opinion, let him from now take his seat in the Fire."]
Except where ijtihad is based on a demonstrably erroneous premise, it cannot be categorically wrong in the sense that it is invalid. Practically speaking, "weak" ijtihad is differentiated from "strong" ijtihad on the basis of the numbers of persons following it. Nevertheless, weak opinions are still transmitted within the madhhabs, and they may become the preferred rule given certain circumstances. In other words, "weak" opinions often serve as the basis of a legitimate fatwa when certain empirical circumstances are deemed pressing enough to justify a departure from the normal rule. This is close to the distinction between a rukhsa and 'azima. Sometimes, the circumstances are general, in which case the weak opinion becomes the going opinion of the school and (temporarily) displaces the well-established opinion (al-mashhur), while at other times, the fatwa can be given to a particular person based on the questioner's own private circumstances. An example of the former is Malik's opinion that a woman cannot obtain a khul' separation in exchange for relieving the father of the duty to provide for his children. Despite this being the mashhur of the Madhhab, later Andalusi Malikis enforced separation agreements on these terms based on changed circumstances. There are many such instances in all the madhahib, and these rulings are usually prefaced by statements such as "wa 'alayhi al-'amal," or "huwa al-mufta bihi," or "al-maqdi bihi" to distinguish it from the mashhur of the madhhab.
[GFH: An example of the replacement of the mashhur - established - position by a weaker position in the Maliki madhhab is the prevalent fatwa that, for practical reasons, it is not necessary to pray Zuhr after Jumu`a even if the latter was not the "main Jumu`a" i.e. the categorically valid Jumu`a in a given region. References:
Ibn Juzay, al-Qawanin al-Fiqhiyya (p. 56): "Concerning Salat al-Jumu`a in two mosques in a single province (misr) there are three sayings: the third one distinguishes whether or not a river separates the two mosques or something that stands like it (ma fi ma`nah). If we say that it is not allowed, then the valid Jumu`a is that of the oldest mosque."
Mukhtasar Khalil (p. 45): "Section on Exposing the Conditions of [Validity for] Salat al-Jumu`a: ... and in a convening mosque (jami`) constructed (mabni), all-inclusive (muttahid), and the [valid] Jumu`a is that of the older one (al-jumu`a lil-`atiq) even if it is prayed later."
Al-Taj wa al-Iklil li Mukhtasar Khalil by al-`Abdari (2:159-160): "Al-Jumu`a li al-`atiq (Jumu`a prayer counts in the older mosque): al-Jallab: Jumu`a is not prayed in a single province (misr) in two mosques. If they do, then the [valid] salat is the salat of the people who pray in the older mosque. Abu Muhammad said: If they pray in two mosques, then Jumu`a is for whoever prays in the older one, whether the Ruler (al-imam) prays there or in the newer."
Al-Dardir, al-Sharh al-Kabir (1:372, 374): "Chapter: Exposition of the Conditions of validity for Salat al-Jumu`a etc.... [It must be] 'all-inclusive' (muttahid): If there are more than one, it is not valid for each one. 'The [valid] Jumu`a prayer is that of the older' [mosque] i.e. the one in which the Jumu`a was first prayer, even if its construction came later...."
Al-Dusuqi's Hashiya (1:374): "'All-inclusive' i.e. it is not permissible to have several according to the mashhur position, even if the region (al-balad) is large, in keeping with the way of the Salaf and so as to reunite all and obtain lucidity of hearts (jala' al-sudur). On the other hand there is the saying of Yahya ibn `Umar permitting multiple ones [Jumu`as] if the region is large; AND THIS HAS BEEN PUT INTO PRACTICE. His saying: 'wal-Jumu`a lil-`atiq': i.e. it is not valid in the new mosque even if the Sultan prays in it..."]
It should be done within the principles of an established madhhab, wa-allahu a'lam.
This has already been answered, I think.
I have heard such proponents argue that the quality of the output (i.e. the ijtihad) will reflect the calibre of the one who produced it, and thereby one can recognise that this must have been a mujtahid.
To me, this seems like placing the cart before the horse, for why should we even entertain a claim to a valid ijtihad until and unless we know the credentials of the one purporting to make the claim either themself, or on behalf of the one who supposed ijtihad we are being asked to accept? Is my supposition correct here?
One should never accept an opinion of someone without knowing the credentials of the person giving the opinion. Taqlid is permissible only where the opinion is "qualified" opinion. Wa-allahu a'lam.
For those on this list who can read Arabic, I commend to them the book of Imam al-Qarafi with the title, "al-Ihkam fi tamyiz al-fatawa 'an al-ahkam wa tasarrufat al-qadi wa-l-imam." There is an excellent Syrian edition of this work which, I believe, was edited by Shaykh Abu Ghudda, rahimahu allah. Unfortunately, many of its examples are technical and required familiarity with the detailed rulings of the Maliki school. For those of you who are interested in this subject, Professor Sherman (Abdalhakim) Jackson has written extensively on Imam al-Qarafi in English, and has a good discussion of this work. He has an article with the title "From Prophetic Actions to Constitutional Theory," which appears in the International Journal of Middle East Studies, I think circa 1995 or 1996, and he also has a book by the title of "Islamic Law and the State: The Constitutional Jurisprudence of Shihab al-Din al-Qarafi." Although very expensive, it should be available in the campus libraries of major research institutions.
At any rate, the primary difference between a fatwa and a qada is that the latter is binding and the former is not. Only a government official with wilaya can issue a qada`. Although the rule used by the judge is substantively the same as the rule used by the mufti, the fact that the judge enjoys wilaya means that his opinion, although it is only an opinion, carries with it coercive effect (ilzam hissi), whereas the fatwa, because it is only an opinion and there is no political wilaya associated with it, relies solely on the good faith of the mustafti (the petitioner) to comply with its terms. A qada is also distinguished from a fatwa in terms of its scope -- although a qada is coercively binding, meaning it is obligatory to obey it (the fuqaha' describe it as "removing the controversy (yarfa' al-khilaf," thereby rendering the ruling as though it were a subject of consensus [GFH: Consensus being universally binding]), it applies **exclusively** to the parties in the dispute and no one else. A fatwa, however, applies to everyone until the Day of Judgment, with the limitation that no one has to obey it as a matter of force.
Sometimes, a judicial ruling, qada`, can be intermingled with a fatwa, in which case, only that portion of the judge's decision which is necessary to resolve the dispute is binding, and the rest remains a fatwa. For example, while all the four schools agree that a marriage contracted during a woman's 'idda is invalid, the Maliki position goes further and holds that when this occurs, the two are **forever** forbidden to marry one another. Suppose a man marries a woman during her 'idda, and the case comes before a Maliki judge. He declares their marriage invalid, and proclaims that it is haram for them ever to be remarried. The parties separate pursuant to the judge's decree that the marriage is invalid, and this ruling, because it is a qada`, must be respected by all, i.e., no one can give a fatwa that the couple is still married. But, suppose, after the woman goes through her 'idda, in violation of the judge's command that it is haram for them to remarry, they do get remarried. What is the status of their second marriage? Suppose the case is brought before a Shafi'i judge. He will rule that the marriage is valid, except that they have already gone through one divorce. The earlier ruling by the Maliki that they are forever forbidden to each other will be treated merely as a fatwa. Suppose instead, however, that they again went to a Maliki judge. In this case, if he ruled that the marriage was invalid, as he would, the Maliki rule that they are forever prohibited from marrying one another would no longer be a fatwa, but is instead a qada`, and no one could challenge the conclusion that they are forever prohibited from one another. Indeed, if they subsequently attempted to remarry, they might be deemed fornicators.
Every qada` is necessarily based on ijtihad, although it is the ijtihad based on empirical knowledge. Knowledge of the appropriate rules to apply in a given dispute can be gained from following the opinions of the mujtahid imam.
The term "hukm" is equivocal, and can imply either "hukm allah," which is a fatwa, because of its generality, or "hukm al-hakim," in which case it means the qada` of a government official, e.g., a judge. Not all acts of government officials that are binding, however, are "qada`" or "hukm." Remember, the distinguishing feature of a qada` is that it removes disagreement and settles the question forever. When the government decides to seize a piece of property for a public purpose, for example, this is called a tasarruf, because the government can change its mind! These discretionary acts of governments are valid insofar as they don't clearly order an act that is haram, and they increase the welfare of the community (yajlib al-ahsan/al-aslah) [Note: where the government seizes private property for a public purpose, it is obliged to compensate the owner the fair market value of the property so taken]. Thus, when a government establishes a college, for example, and states that admission is conditional upon achieving a certain score on a certain test, that is a tasarruf, because it does not resolve any dispute about the meaning of revelation in the context of a private dispute, and subsequent governments are perfectly free to change the criteria of admission so long as by doing so, they believe the status quo will be improved. Tasarruf, however, is a type of ijtihad, but it is ijtihad in the empirical domain, not the domain of revelation, and therefore, it is more particularly in the domain of empirical and technical specialists.
The Prophet stated that whosoever becomes entrusted with some aspect of the public welfare of the Muslim community, and fails to discharge that duty using sincerity (nasiha), and is unconcerned about improving their lot, then janna is forbidden to him, we ask Allah to guide us and preserve us. Given that, it is amazing that the countries of the Muslims are rife with public corruption! Private virtue will not avail someone who is betraying the amana of the Muslims in his public office by exploiting his position to shower favors on friends and family (muhaba). Public corruption has become so entrenched in Egypt that, according to a recent story related to me by one in whom I place trust, a government official, not necessarily a minister, took as his bribe a ticket to perform 'umra! Inna li-llahi wa inna ilayhi raji'un.
Our master 'Umar stated that it is necessary to pay judges a hefty salary so that they are not tempted to seek or accept bribes. Yet, we pay our public officials so little that they must demand bribes to feed their families. There is no doubt that our failure to have rational systems of administration is a great failing and we will be answerable for it on the day of Judgment, just as we shall be answereable for all other furud kifaya that we are remiss in, wa-allahu al-musta'an.
This depends on the genre and the period in which the term is being used. 'Alim, however, applies generally to any person with knowledge of Allah. Faqih came to be used exclusively for the persons with knowledge of the rules that apply to Muslims in this life. See Ihya` ulum al-din, kitab al-'ilm, by al-Ghazali. The rules of fiqh, though important, are only a means to an end, and fuqaha`, according to al-Ghazali, practice a worldly science, akin to the mission of physicians. Their science is a necessary condition for salvation, but not a sufficient one. Essentially, the role of fiqh is to ensure that the world is sufficiently secure to allow you reach your destination (Allah) safely.
A qadi is a faqih who has been appointed by the government to resolve disputes among people according to the rules of Islam as developed by the mujtahid imams and their followers, whereas a mufti communicates the rules of Islam, according to his own interpretation, if he is a mujtahid mutlaq, or according to his Imam, if he is a muqallid, in a manner that is non-binding (in the secular sense).
[GFH: See also the post "Have you seen a Faqih?" on rkx_e.html ]
Or, say, an article which examines the fiqh of a particular issue - and may even quote authorities - yet again is not attributed to a person, but an entity.
I think this would depend upon the circumstances. Remember the first principle articulated above -- you must follow the best evidence available. Also, you could avoid these issues simply by avoiding speculation on matters that are merely hypothetical. Remember the hadith of Rasulallah prohibiting his umma from incessant questioning on matters that do not concern them.
Finally, it is haram to follow a fatwa permitting you to do something if you think it is wrong to do the questionable act. The Prophet said to follow the fatwa of your heart even if the people give you fatwas to the contrary.
I don't know whether this is a formal consideration. The point is that the mufti should have 'ilm. Ijazas are evidence of possessing 'ilm. Whether they are the exclusive means of demonstrating the requisite 'ilm is another question.
[GFH: It is questionable whether Imam al-Suyuti actually meant he *was* a mujtahid mutlaq although he did claim *being qualified* to be one: "I did not mean by this that I was similar to one of the Four Imams, but only that I was a School-affiliated mujtahid (mujtahid muntasib). For, when I reached the level of tarjih or distinguishing the best fatwa inside the school, I did not contravene al-Nawawi's tarjih. And when I reached the level of ijtihad mutlaq, I did not contravene al-Shafi`i's school." He continued: "There is not in our time, on the face of the earth, from East to West, anyone more knowledgeable than myself in hadith and the Arabic language, save al-Khidr or the Pole of saints or some other wali - none of whom I include in my statement - and Allah knows best." Al-Suyuti, al-Radd `ala man Akhlada ila al-Ard wa Jahila anna al-Ijtihada fi kulli `Asrin Fard ("Refutation of the Shiftless Who Have no Idea that Ijtihad is a Religious Obligation in Every Age") (p. 116).]
People can say whatever they want. Allah, subhanahu wa ta'ala, however, says "wa qul: ja`a al-haqqu wa zahaqa al-batil. inna al-batila kana zuhuqa." In another verse which I do not have memorized, Allah tells us that He throws truth against falsehood, destroying the former, and preserving the latter. Likewise, another aya speaks of Allah's preserving that which is useful and destroying that which is not. Accordingly, the proof of the pudding is in the tasting, not in declaring it to be pudding. Whether someone is or is not a mujtahid is irrelevant. What is relevant is whether that person's opinions are sound and consistent with Allah's will, and wherever it is, the umma of Muhammd will recognize it, and benefit from it, inshallah. Wa-allahu a'lam.
Wa-al hamdu li-llahi rabb al-'alamin, wa al-salat wa-l-salam 'ala ashraf al-mursalin, wa 'ala ahli baytihi al-tahirin, wa sahbihi ajma'in.