Reza Babaei's essay 'The Act and Locus of Ijtihad'

Religious intellectuals and traditional mujtahids differ both in the “method of ijtihad” and in the “locus of ijtihad.” The difference in method is that, for example, the first group (religious intellectuals) places greater importance on rational requirements and customary rules than the second group (traditional mujtahids), while the second group adheres more strictly to the literal meanings of texts and explicit sources than the first. However, in my opinion, the main difference is not in the method of ijtihad; it is in the “locus of ijtihad”—that is, in the area where the mujtahid or intellectual sees a need for innovation and ijtihad.

The main difference is not that one is committed to religious texts and sources and the other is not. Perhaps traditional mujtahids have issued fatwas opposing the content and substance of certain religious texts and propositions no less than religious intellectuals. Many fatwas also have no basis other than practical principles (usul ‘amaliyya); that is, no textual evidence can be found for them in religious sources. If we cannot find clear and explicit evidence in religious texts for some of the views and ideas of religious intellectuals, neither can we for some traditional views. It is not the case that one has valid and solid evidence for all their views and fatwas and the other does not. The main difference lies in the areas where they have undertaken ijtihad to arrive at new rulings. If religious intellectuals have spoken differently on issues such as the extent and nature of hijab, penal law, qisas (retaliation), women’s inheritance, jihad, and the method of governing people, traditional mujtahids have also introduced new rulings on issues such as Friday prayer and i‘tikaf (ritual retreat). So the difference is not in both groups’ inclination toward change; the difference is in the area where they see a need for change and perform ijtihad.

For instance, one can look at the history of the rulings on “Friday prayer” and “i‘tikaf” to see that the more we have progressed, the more the rulings on these two have changed. Most of the great Shi‘a jurists in earlier eras considered Friday prayer forbidden except during the presence of the Infallible Imam or his specific deputy.[1] Regarding i‘tikaf, most earlier jurists also did not deem it permissible except in a mosque where the Infallible Imam had prayed (such as Masjid al-Haram, the Mosque of Medina, and the Mosque of Kufa).[2] There are also many narrations supporting these fatwas. Despite this, many of our contemporary jurists have been able to find a religious justification for Friday prayer during the Occultation and for i‘tikaf in any mosque. Why? Because they have found spiritual benefit in those two practices and did not deem it appropriate to confine them to a specific time or place. Therefore, through ijtihad in the texts, they have arrived at fatwas that are clearly contrary to the apparent meaning and content of numerous narrations with sound chains of transmission. If they had deemed the same amount of ijtihad, revision, and innovation appropriate in other matters (for example, in women’s inheritance or penal law), the path would have been just as open to them as it is for the permissibility of i‘tikaf and Friday prayer.

In contrast, religious intellectuals have chosen other subjects and issues for ijtihad; issues such as women’s inheritance, penal law, and blood money. Because religious intellectuals and new religious thinkers have greater sensitivity and concern for matters such as criminal affairs, human rights, civil liberties, and minority rights, they have also reached new conclusions in these very subjects. If traditional mujtahids had acted in these matters as they did, for example, in the case of i‘tikaf and Friday prayer, they might have reached the same conclusions that religious intellectuals have.

From this very point, one can understand that adjectives such as "traditional" and "intellectual," rather than indicating two methods in ijtihad and religious studies, speak of two kinds of sensibility and problem-awareness, and of two perspectives on humanity, society, and the future. If their methods in ijtihad and religious studies also differ, this depends more on extra-religious sensibilities and the worldview of the two groups than on their religious and scholarly capital. Therefore, one cannot say that the main difference between religious intellectuals and traditional mujtahids lies in the extent of their knowledge or their adherence to religious texts and propositions; for both, more or less, go beyond the explicit texts and sources to the same degree—but each where they deem it necessary. One strives to update jurisprudence regarding spiritual retreat (i'tikaf), Friday prayer, the expansion of the realm of guardianship (wilayah), and the like, while the other does so regarding hijab, blood money (diyat), women's inheritance, and human rights. If traditional mujtahids do not update jurisprudence in matters of inheritance, blood money, penal law, and hijab, it is because they see no need for change in these areas, not because their method of ijtihad is such that they are incapable of innovation in these domains. In other words, the difference is not in the "act of ijtihad" but in the "locus of ijtihad." If they, like religious intellectuals, were to one day reach the conclusion that the inheritance and blood money of women and men should be equalized, that a different definition of hijab should be given, that human rights should be enumerated, and that freedom should be considered the primary and authentic foundation of spiritual education, they would do the same thing that religious intellectuals do today. But when would that day be? It would be the day their sensibilities and interests change, not the extent of their adherence to texts and explicit sources or the amount of their religious knowledge. For even with this same traditional method of ijtihad and with this same degree of adherence to the apparent meanings of verses and narrations, one can reach the conclusions that some religious intellectuals have reached—provided that new concerns replace traditional needs-assessment.

In any case, transformation in traditional religious studies requires, more than and prior to anything else, a change in the mentalities, sensibilities, and perspectives of religious scholars regarding humanity and society, and this change occurs outside the apparatus of ijtihad. The notion that the quality of religious studies is influenced by the quantity of religiosity is erroneous, for what makes religious studies differ is more the extra-religious beliefs and concerns of human beings than the extent of their adherence to texts and explicit sources. No one can prove by any means that the religiosity of one group of religious scholars is greater or lesser than that of another group.

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[1] Shaykh Tusi, al-Khilaf, vol. 1, p. 593; Sayyid Murtada, Rasa'il al-Sharif al-Murtada, vol. 1, p. 272; Ibn Idris, al-Sara'ir, vol. 1, p. 290; …

[2] Sayyid Murtada, al-Intisar, p. 199 and Rasa'il al-Sharif al-Murtada, vol. 3, p. 60; Shaykh Tusi, al-Nihaya, p. 171; idem, al-Khilaf, vol. 2, p. 225; Ibn Idris, al-Sara'ir, vol. 1, p. 421; Ali ibn Babawayh Qummi, Fiqh al-Rida, pp. 190 and 213; …

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The Act and Locus of Ijtihad

Reza Babaei, Khordad 1396

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