Ijtihād bi al-Raʿy
The legal term ijtihād bi al-raʿy denotes the personal effort of a qualified jurist to arrive at a sound legal judgment. The word ijtihād derives from the root j-h-d, connoting effort or struggle, while raʿy is a derivation of the root r-ʿ-ā, to see or perceive—an indication of the essentially subjective nature of the process. In practice, ijtihād bi al-raʿy refers to the quest, via techniques such as analogical reasoning (qiyās), to discover the divine command on an issue regarding which no unambiguous authoritative statement can be found in the revealed sources, viz. the Qurʿān and the sunnah. Raʿy could thus be seen as a subfield within the general category of ijtihād, distinct from related activities such as the authentication of ḥadīth reports; however, no universally accepted categorization of ijtihād exists. The primary justification for the practice is taken from the ḥadīth that records Muḥammad's approval of the legal methodology of Muʿādh ibn Jabal, his appointee as judge to Yemen. Muʿādh states that in solving a legal problem he would first consult the Qurʿān, then the sunnah; if they remain silent he would strive to form a sound opinion (ajtahid raʿyī).
Several early authorities, including the caliphs Abū Bakr (r. 632–634 CE) and ʿUmar (r. 634–644 CE), were reported to have engaged in ijtihād bi al-raʿy, and their opinions constitute an early normative corpus alongside prophetic ḥadīth reports. In the eighth century, raʿy began to be used to address hypothetical questions, leading to the emergence of Islamic law as a discipline with a distinct literature and fields of inquiry (fiqh and uṣūl al-fiqh). This activity was strongly criticized by traditionalist scholars (ahl or aṣḥāb al-ḥadīth), who decried what they viewed as the attribution of subjective human preferences to God and the neglect of the genuine prophetic example contained in ḥadīth. Some Muʿtazilī theologians pointed out that the use of raʿy implied a theological paradox, rendering obligatory obedience to God conditional on the subjective and uncertain procedures of raʿy—a situation that they believed was not compatible with divine justice. Most Shīʿīs also opposed raʿy, as its acceptance as a valid and sufficient method of deriving law would have entailed the superfluousness of the infallible imams.
Over time, ijtihād bi al-raʿy developed in a direction that assuaged most of the criticisms of both traditionists and Muʿtazilī theologians, though Shīʿīs were never reconciled with the concept. The more subjective elements of raʿy such as juristic preference (istiḥsān) were either dropped or tied more rigorously to the sources, and analogical reasoning on the basis of the revealed sources came to constitute the core of raʿy. An emerging consensus ranked the validity of single-transmitter traditions (akhbār āḥād) above that of raʿy, and shifted the locus of legal reasoning from the provision of a single correct outcome to the earnest effort to reach the best possible conclusion. The resultant agnosticism regarding the truth is expressed in the widely accepted principle “every result of a qualified jurist's effort is valid” (kull mujtahid muṣib).
In the modern era, ijtihād bi al-raʿy has been significant in two ways. First, modernizing jurists such as Muhammad ʿAbduh (1849–1905) successfully delegitimized the four dominant schools of Sunnī law (madhāhib, sing. madhhab) by portraying the schools’ doctrines as “mere” (i.e., inevitably subjective) raʿy. In this, the modernists have drawn selectively on medieval critiques of raʿy. Second, elements of the methodological repertoire of earlier raʿy, including the concept of juristic preference (istiḥsān) as well as the emphasis on benefit (maṣlaḥah), have been reintroduced by the same modernizers, and have in many instances come to constitute the dominant feature of their legal reasoning.
- Coulson, Noel. A History of Islamic Law. Edinburgh, 1964. See chapter 14 on modernist “neo-ijtihād.”
- Schacht, Joseph. The Origins of Muhammadan Jurisprudence. Oxford, 1950. See part I (chapter 9) and part IV for a discussion of ijtihād bi al-raʿy in the classical period.