A.
The Meaning of Ijtihad And Non Skill Requirements That Must
be Fulfilled By Mujtahid
1.
The Meaning of Ijtihad
The word ijtihad is a language derived from the word al -
jahd or al - juhd which means al - masyaqqah ( difficulty or
distress ) and ath - thaqah ( ability and capability ). In summary
ijtihad means seriously or work hard to get something .
While the notion of ijtihad is the term generally expressed
in many books of ushul fiqh , namely the deployment of all abilities by a
mujtahid jurist or to gain knowledge of the laws of Sharia. Ijtihad is only applicable in the field of Sharia, does not apply in the field of theology and morals.
According to Drs . Muhammad Musa Towana mentioned two
definitions of ijtihad,
Those are :
1.
Deployment of self an expert ability to issue Sharialaws in the subject field the arguments of i’tiqodiyat detailed.
2.
Pondering the problems of ijtihad with tarjih and tajarrud to
know the law through emanation and inspiration, so God gives guidance to the
mujtahid about these problems
Ijtihad is the opposite of imitation, that is following other people's opinion without scrutinizing the sources of
uptake. The word ijtihad
must be used in difficult
problems, both hissi
and ma'nawi. Intellect is the key to understand the religion, the
teachings and laws of Islam, Especially Muslimswill not be
able to understand Islam without using intellect.
Therefore, the Holy Prophet declared that religion is reasonable, there is no
religion for people who are not intelligent. If this statement is associated
with the law, meaning that the law and the punishment
associated with sense, there is no law and punishment for people who are not
intelligent. So intellect has a high position in the system of the Islamic religion,
because reason is the container that holds Aqeedah, Sharia, and morals.
2.
Non Skill Requirements Must Filled Mujtahid
According to Baqir Sadr, there is great
distances between the social situation when the texts are revealed by the current social situation, when the texts are used as a reference. It is therefore not uncommon, fuqoha or scholars are trapped
in the four form of errors, namelysubjectivity, manipulation, justification, interpolation,
then by Jalaluddin Rahmat added one more, that is inacuration.
And the requirement that have been agreed for mujahid that must be fulfilled are :
1.
Knowing the Qur'an ( knowing the causes of the decline in
verse and knowing Nasikh
and Mansukh)
2.
Knowing the Sunnah (Hadith Diroyah Sciences knowing, knowing
and mansukh Nasikh traditions , and find out the cause wurud hadith)
3.
Knowing Arabic.
4.
Knowing the places of Ijma '.
5.
Knowing Usul Fiqh (knowing qiyas).
6.
Knowing the intentions of Sharia.
7.
Knowing
the Life of Human and the surrounding.
8.
Having character piety and fair.
These requirements consist of two parts, namely the technical
requirements and the requirements of personality (non skill). Technical
requirements can be studied in any ushul fiqh books.
While the personality requirements (non skills) are oftenoverlooked, so we often see people who may be high levels of science,
but his personality is
weak and bad manners, so that
the knowledge can not be expected to mentor people and bring blessings to
humans. Citing the opinion of al - Alamah Abu Zahrah, al -Baqir said some characters that should be possessed by a munjtahid, these are :
First ,
intelligence and wisdom . With this he is able to use science as a tool
teknisdi over the opinions differentiate between true and false , right and
which deviate from the purpose of the Shari'a . Next will facilitate deduce the
true laws of the arguments and the general rules that can be applied to cases
arising out of events .
Second, the sincere intention and good conviction. Sincere intentionmakes heart is illuminated by Allah, so can
penetrate the core of religion is
full of wisdom. If the goal is just purely religion,
there is no other purpose than that, surely God will give light of wisdom that will always guide them on the path of truth and keep them away from the path error. Therefore, sharia is a light which there
is no one who can achieve it, unless anyone whose heart is filled by sincerity. They will not be fanatic in
the last group maintains forcing other groups to follow these opinions as
absolute truths, while another opinion of all are wrong. Great priest in the past said, "our
opinion is correct but contains the possibility of wrong, while the opinions of others wrong but contains likely to
be true"
B.
Absolutism And Deabsolutism The Product of Ijtihad
Basically Islamicteachingscanbe divided
intotwoparts. First, the teaching of Islamthose areabsolute, unchanging and unchangeable,
universalandpermanent. Secondly, the
teachingsof Islamwhichis relative, can bealtered,
changed, andnopermanent. This
secondpartincludesthe teachings of Islamwhichis generated throughthe processof
ijtihad. Amongthe argumentsthat areknownushuliyyinare qath'ianddzanny,eitherits existenceandits
appointment.
According toasy-Syaukani, ijtihad hasa verywidefieldof
all things thatare not foundinlegaltextsdirectly. If
thecategorization ofnashwhichbecomethe starting
point oflimitationof ijtihad, identifiedintwomajorareas ofIslamic law, which isworshipandmu'amalah, it
willbe seenthatmost of the problemsindicated bytextsdzannyis a
problemwhich is included inmuamalah.
Inmu'amalah, texts thatexplainabout itmostly
inform ofgeneralorglobalidentified with dzanny. The
situation ismeant tobe heldthe changesanddeveloped according tothe needs
ofhumansin spaceandtime, andaccordingwiththe benefit.
Throughthe cracksofargument ofdzanny, bothwurudanddalalah,
Islamiclawexpertsattempttofinda conclusionof law. Thereforestem fromargument of dzanny, it can beexpected thatthe results of ijtihadwillbe dzanny.
Thus, many ofthe results ofijtihadof person orgroup of people will be relative, notan absoluteright. Differences of opinionbetween them, is
onereflection oftheopinion ofrelativity.
Moreover Khallafsaid thatif thecasedzannywant
tobe knownthe law of it, there have beenargumentssarih, andqath'iyin terms
ofsourcein thesense which showsof the syar'i law, there
is no chanceforijtihadin it. Whichisrequired
toimplementunderstandingthenashwere shown. Forallargument
thatqath'iyarrivalanddischargeofAllahandhis messengeris not the placeof
adiscussionand shedhard work.
Examplein the case offloggingadulterers, "the woman adultererandman adulterer, then flog both of them a hundredtimes." There's
nowhereelseonlegalijtihadtorturedadultererwithvolumeandnumberof timesvols.
Likewise,there is noijtihadon the lawsthat have beenlimitedthe
punishment.
In contrast toMuhammadShahrurintroduced the theory
of"hudud" (the plural of hadthe
wordetymologicallymeanslimit) in understanding
theversesof the Qur’an. According tothe Qur'anversesthat havea
validqath'iyfieldijtihadin it. He mentionedsixkinds
oftheorieshududnamely: (1) al-had
al-adna (mentioned
minimumlimit), (2) hadal-al-'ala (maximum
limit), (3) hadal-al-al-wa adnaMa'anhadal-a'la (minimum andmaximumlimits,
both arementioned), (4) hadal-al-al-had adnawaal-'ala nuqtahwahidah(called
the minimumandmaximumlimitsto meetinone point); hadal-Khatt al-a'la bilimuqaribmustaqim(not to the maximumandminimumlimitsdo nottouch),
and (6) al-Mujib hadal-a'la muqhlaqlaAjuztajaawuzuh,
waal-had al-adnaa yaasaalibjuztajawuzuh(maximum limit ofpositiveandnegativeminimumlimit, andthe
two metat the midpoint).
For example,in terms ofpunishmentfor thieves. Inthe Qur'anit is
clearexplainedthat the penaltyfor thiefis cuttinghand, cutting handprovisionisal-had al-a'la (maximum limit). That
is, should notgive punishment
exceedofcuttingthe hand, butlets givea lighterpunishment. In determiningthe punishment, mujtahidshould
ijtihaddeterminethe punishment forthievesaccording tosituation and condition.
As for themode, the motivationandthe
valueof goodsstolenmustbe taken into considerationin givingpunishment.
AsIjtihadUmaribnKhattabin punishingthievesat that
timethere was a faminein the communityinthe Arabian Peninsula. In a state
ofsocietyoverwrittenbythefamine, the threat
ofpunishmentto thethief whocalledinthe Qur'anare notimplemented by theUmarunder
consideration(emergency) andbenefit of community mental.
Shahrurhudud’stheoryshows, thatnashof the Qur'anaccording
toUshuliyyunbelieved as qath'iyit stillcan beflexedits meaning. Withthishududtheory, recognizesthe existence
ofnash qathiyand consequencesbecomeirrelevant.This meansalsoshedthe
presumption thatijtihadshould not touchnashqath’iy.
Of the phenomenon, showing the resultsofanijtihadis
strongly influencedbythe conditionsandsituationswherethelawwas formulated.
This consequences inthe process
ofijtihadcarried outoftenresulted in the formulationvariedproblems that
arisewhendifferentcontexts. Asaproductijtihad, the
law that is establishedis notsomething sacredandclose thedoorof differences andchanging.
C. Naqdul Ijtihad (Criticism of ijtihad)
The muslim scholars agree that ijtihad in understanding the adjustment of a case with
an existing law remains opened. Ijtihad this category does not include the provision of ijtihad
according to the provisions of usul fiqh. Dissent occurred on ijtihad by
definition usul fiqh. Most of muslim scholars believe that the door of ijtihad has been closed.
Someof them have a notion that the door of ijtihad remains open and
accessible to anyone who meets the requirements.
When a mujtahid perform ijtihad in a case of a case law to determine the
law of the case then what is alleged to dominate ( formula ) the law of the
case if he make ijtihad for himself. Then the assesment of the legal status changes, then he should undo what has been produced by the first results
of ijtihad. For example, a wife who has been divorced twice done khul'a. Then
he make ijtihad that the result is that khul'a is not included in divorce, so he returned with his wife. Once it was clear
to him that khul'a is includingdivorce, then he should divorce his wife because it means he has divorced
his wife three times ( bain ) and to be able to come back to go through
mukhallil.
But if he is a judge and give legal provisions as indicated by his ijtihad then suddenlyassesment toward law status changes, then he is not allowed to cancel ijtihad,
because if the results of ijtihad was canceled by another ijtihad, there will
be a cancellation of ijtihad and that will never end up disabling certain law and can not be trusted.
If any ijtihad can be removed, there will be what is called the chain law
tasalsul vicious. This of course will lead to difficulties both for legal
activists ( jurists ) and for the general public to get a definite law. Because
the results will continue to cancel each other ijtihad, first ijtihad is canceled by the current ijtihad, current ijtihad will be canceled by future ijtihad and so on. The absence of provisions of
this law can result in great hardship and chaos.
It was narrated from Ibn Sibagh : "Actually Abu Bakr gave legal decisions on several issues.
Then Umar ibn al-Khattab gave a different legal decisions over these issues.
But Umar did not overturn the decision of Abu Bakr and still admit " .
Similarly, Umar gave the decision twice in a variety of problems. Where the
first decision Umar different from the second decision and he did not cancel
the earlier decision. Associated with the different decision, Umar said :"
Tilka hadzaa wa ala ala ma maa qadlaynaa naqdly " ( It was that we decided
in the past, and this is our decision today )".
From this statment, indirectly Umar ra has made clear that all judicial decisions that have
been taken previously by his predecessor, Abu Bakr ra., permanently valid as a decision which has been taken by him then he transforms it by itself. Departing from this perspective, then scholars ' take the interpretation of the law that the ijtihad of Umar ra. can not change the outcome of ijtihad Abu Bakr. And
from this side too, sparked a consensus ( ijma ' ) friends, that al - ijtihad
bi al - la yunqadu ijtihad, as reported by al - Suyuti.
The reason for the absence of ijtihad results canceling second ijtihad is not necessarily stronger than
the first ijtihad, as well as both are obtained ( produced ) are difficult and
convoluted. Thing that distinguishes them is not at the same time the context
of when it was decided. In addition, if often occur the canceling of law product, then that will arise is the lack of
legal certainty for the community, as explained upfront .
In a study of contemporary ijtihad, mention things that could derail
ijtihad into error, although this is done by experts, in place and with the
terms. Yusuf Qardawi tells where the mistake is ignoring the law nash, nash
misunderstood or deliberately distort understanding, turned from the ijma ' is
believed to be, to use an analogy not in place, unaware of the reality of the
times, exaggerated in regard beneficiaries despite the exclusion of texts, the benefit that is opposed by nash is dubious nash, and eliminate rukhshah that has been predetermined by shariaby reasons that is not needed anymore.
Shatibi quotes Malik’s following code for the exercise of ijtihad,
spelling out the various step of the process:
The rule is that you examine the given case in the light of the sharia. If
it correct according to the sharia then consider its consequences in the
context of the condition of its time and its people. If by mention it your mind does not recall any evil then submit it
to reason. If you feel that it will be accepted by reasonable people, then you
may give your opinion in general term if the case relates to a matter that is
generally acceptable. If it cannot be generalized then give specific opinion. If the case in
question does not accept this process, then it is better to keep silent that
would be more in conmirmity with the welfare of the people, legal as well as
rational.
The requirement inprinciple above is considering particular circumtances of the individual does not, however,
warrant arbitrary interpretation of Islamic law. That would render ijtihad
invalid. There may, however, there will be cases where error is not intentional, for example when some
evidence was not known or was not obvious to the scholar at the time of
judgenment. In such cases, the judgement becomes invalid if it was repugnant to
the sharia. It shall not even be counted as a difference of opinion because it
does not constitute ijtihad at all.
Another type of onvalid ijtihad is when it is motivated by a hidden desire
leading the scholar to ignore clear fact and evidence. His opinion is sometimes
in conflict partially and sometimes totally with the universals and general
principles of the sharia. This situation may arise when a scholar considers
himself a mujtahid or others believe him to be so and his opinion is counted as
such. An ijtihad based on hasty judgement and interpretation does not exhaust
all the meanings and implication of the text.
D.
Examples ijtihadiyah Differences Among The Companions of the
Prophet Period
Muslims at the time of the Prophet did not intend right to
perform ijtihad, because in those days they will generally asked the Prophet
Mohammed if facing problems. They asked , and Prophet Mohammed replied with a
hint of revelation that was revealed to the Prophet or with his ijtihad
that gets the revelation of
truth. And if they occasionally need to use due diligence can asked, they use ijtihad and they delivered it the Prophet, and the Prophet gave the verdict. After the
Prophet 's death, then they need ijtihad. Due to the nature of Al - Quran Kully,
whereas problems that arise in the community more and more. However, during the
Prophet's, there were some differences in ijtihad when
they can not ask the Prophet. Some examples of the difference of ijtihad that
have occurred in the time of Prophet Muhammad as follows :
1.
There were two companions of the Prophet who were on their
way, they both prayed without her ablutions and tayammum only becausethere is no water, after they prayed, suddenly both found water. Then one of them repeated
hid praying because there was still time to pray, while the other did not repeat his prayer because he considers prayer that he did remain valid. When
the two met with the Prophet. and recount his deeds, Apostles justify both their opinion. Apostlesaid to companion who did not repeat his praying,
"your opinion appropriate and lawful permanent sunnah and your praying is valid", Apostlesaid
to companion who repeated his praying, " you get double the reward ."
2.
One time there were a group of companions
of Prophet Muhammad. They
were in trip, between them there are
Umar Ibn al – Khattab
ra and Muaz Ibn Jabal ra. Along the
way came Shubuh prayer time, while they do not get water when they are in condition of great hadas (junub) which causes them had to take a bath.Mu'az made an analogy that cleanse is the same legal dust with purification by water, and on the
basis of qiyas that he overturned his whole body roll on the ground (deserts )
to tayammum and do the morning prayers on time. In contrast to ijtihad Muaz,
umar kept looking for water and for that he was forced to end ( delay ) subuh prayer. Coming home from a trip, they asked
the matter to the Messenger of Allah. And it turns out the two are not justified.
Then the Prophet explained that qiyas is imperfect because it is contrary to
Surah Al - Maidah : 6 which means :" ... and if you are ill, on the way,
out of the discharged waste water or touching women ( sexual intercourse ) then
you do not get water, then you should tayamum with soil (
dust ) good ( holy ), then wipe the face and both hands " ( Surah Al -
Maidah : 6 )
3.
One time the
Prophet Muhammad sent a group of companions to Bani Qurayzah, and ordered them
not to pray Ashar except in Bani Qurayzah. Time for praying Ashar was almost exhausted, even though they have not reached the
placethat is being ordered to carry out the Ashar. Because the group of companions divided to be two parties, there is pray Ashar and the other one does not pray Ashar, because they have
not reached the place. After met the Prophet, they describedit to the Prophet and
the Prophet even justify both.
Some histories above suggest that the
Prophet Muhammad saw. train, educate, and guide some friends for ijtihad. However
ijtihad in the days of the Prophet can not be regarded as legal digger,
considering ijtihad
that is done by the companions are still in early stages of choosing an
alternative, while the final determination of the legal issues at that time essentially remained in the hands of the Prophet.
That is why the results of
ijtihad of the Companionsare
justified by Prophet, it is not named by result of their ijtihad, but it is called as the Sunnah of the Prophet.
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