NATURE OF JUDICIARY

First, let us dwell on the word. The word "ijtihad" is from the root "Ce-He-De", meaning effort, strength, and endeavor, and from the word "iftial". (86) In Islamic terminology, it is the decision of a mujtahid jurist to reach a conclusion by exerting all his strength on an issue that is not definitely found in the Book, Sunnah, and Ijma. (87)

• "Just as it is not considered ijtihad for a person who is not a mujtahid to use all his strength on a secondary issue and reach a new conclusion, it is not considered ijtihad for a mujtahid to use all his strength on an issue other than jurisprudence." (88)
• The Messenger of Allah (PBUH) said: «If a judge who makes a correct decision based on his ijtihad receives two rewards. If a judge makes a mistake based on his ijtihad receives one reward. (89) It is known that he said. It is also mentioned in reliable sources that the Messenger of Allah (PBUH) encouraged the Companions to perform ijtihad. (90)
• For ijtihad to be acceptable, all the qualities sought in a mujtahid must be present in a single person. (91) Because the fact that any ijtihad is put into practice is closely related to the mujtahid being just, faithful and pious. (92) Because in matters of religion, the word of a sinner is not valid. In recent years, the claim of forming a "Committee" by taking one person from each branch of science for "ijtihad" has been put forward. However, those who put forward the claim that "ijtihad should be done" cannot even state in which subjects ijtihad is needed.
• Imam-i Shafi'i (may Allah have mercy on him) stated the qualities sought in a "Mujtahid" as follows: "A person who does not possess all the necessary means for ijtihad cannot perform ijtihad by analogy. A person who does not know the rulings of the book of Allah Almighty (swt), its fard, its adab, its abrogated and abrogated, its amma and hash, and its guidance is definitely not qualified for this task. It is necessary to explain the verses of the Quran that are amenable to interpretation by providing evidence from the Sunnah of the Messenger of Allah (pbuh), and if this issue is not present in the Sunnah, it is necessary to provide evidence from the consensus of the believers, and if it is not present in that either, it is necessary to provide evidence from qiyas." Without knowing the Sunnah of the Messenger of Allah (PBUH), without understanding the words of the righteous predecessors, the consensus and disagreements of the Muslims, and the subtleties of the Arabic language, ijtihad cannot be performed by comparison. It is definitely not correct for someone who does not have sound intellect and whose ability to distinguish and choose similarities is not strong to perform ijtihad by comparison.

A person who opposes a matter is also listened to. Because in this act, there is a need for on-site determination in order to eliminate heedlessness and reveal the truth. In addition to all these, great effort and strength will be exerted and fairness will be shown so that it can be known on what basis something was taken or abandoned. Without truly penetrating the matter, a person who meets the above conditions cannot perform ijtihad. Because it is also necessary to have the ability to comprehend the essences. A person who does not have a sound mind or who is not competent in the subtleties of the Arabic language (even if he is a hafiz in the Nass) cannot perform ijtihad by comparison. Because his contract and knowledge are deficient in the means of ijtihad.» (93)

• Imam Ghazali mentions being loyal, just and pious among the qualities sought in a "Mujtahid". (94) The ijtihad of a person who is independent of political administrations and the people cannot be acted upon. Jihad against the taghuti forces, who find the rules revealed by Allah Almighty (swt) ugly and create rules according to their own desires and whims, is "Fard al-Ayn". A person who accepts the guardianship of taghuti forces and takes on duties from them loses the qualities of "being loyal and just". Therefore, even if he has knowledge at the level of a mujtahid, his "Fatwa" cannot be acted upon.
• Ibn Abidin mentions the following ruling: "There is no knowledge whose owner needs it more than a mujtahid. Because a mujtahid is related to every aspect of the world and the hereafter. A jurist has to know people's serious and non-serious attitudes and tricks. He must also grasp the oppositions between people, their interests and desires, and their nature. He has to know the current affairs, customs and traditions among people. This can be obtained by interviewing people, meeting with people who follow different schools of thought, discussing and conversing with them, and collecting and studying their treatises." (95)
• According to the narration from Hazrat Sa'id b. Musayyib (RA); upon the question of Hazrat Ali (RA) on how to rule on issues for which there is no definite text, the Messenger of Allah (SAW) said, : “Gather the learned and pious believers and consult them. Do not judge by the opinion of one person.» (96) It is recorded that he said: Both the Noble Companions and the Mujtahid Imams were very meticulous about this issue. Today, those who propose to bring together some people from every branch of science for ijtihad and to form an "Ijtihad Council" are right in theory. However, the secondary issues that will be the subject of ijtihad can be definitively resolved in an Islamic state. Moreover, a large number of mujtahids are needed for the formation of the "Ijtihad Council". While there are no ulema at the level of mujtahids; «Ijtihad Council» The proposal is nothing more than a dream.
• It is certain that the "Qadi" is at the forefront in making decisions based on ijtihad. In societies where the hudud are not established and the rulings are not executed, attempting to make decisions based on "ijtihad" is nothing more than showing off.
• The Messenger of Allah (PBUH): «Allah Almighty (swt) does not take back knowledge by force after He has given it to you. However, He takes away knowledge from you when the scholars die, and only the ignorant remain. They are asked for their fatwa and they give fatwa based on their own opinions, and thus they go astray and mislead others. (97) It is known that he said: "The Messenger of Allahthere may be a period in which there will be no Ulema at the threat level»  It has been evaluated as evidence. Islamic scholars agree that this is related to signs of the apocalypse. (98)
• Imam Shafi'i (may Allah have mercy on him) : "Every responsible person is obliged to either make ijtihad by comparison or to follow a mujtahid. Nothing else can be said except these two cases" (99) Some circles claim that following a mujtahid and taqlid are different things. However, it is not possible to find any evidence to support this claim. Because taqlid of a mujtahid consists of acting on the rulings that the mujtahid has derived from the religious evidence. It does not mean seeing the mujtahid as the "Ruler". Essentially, every believer knows that no power other than Allah Almighty (swt) and His Messenger (pbuh) has the authority to "impose a ruling" on the "Religion" without relying on definitive evidence.

(86) Mahmud b. Omar Az-Zamakhshari — Essasü'l Balaga – Beirut: 1965, Page: 156.

(87) Kemaleddin ibn-i HUmam – «Et Tahrir» Bulak: 1316, Vol: 3, Page: 291.

(88) As-Sayyid Muhammad Musa – Al-Ijtihad – Cairo: 1973, Page: 98.

(89) Imam Shafii – Er Risale – Cairo: 1979 (2nd edition), Page: 494, Article: 1409.

(90) Ebû Bekir El Cessas – El Ahkâmû'l Kur'an – Beirut: 1335, C: 2, Sh: 212 et al.

(91) İmam-ı Gazali – El Mustasfa Mln İlmû'l Usûl – Beirut: 1937, C: 2, Sh: 351-352.

(92) Kamaluddin Ibn Humam – ibid. C: 3, Page: 292-304, also Ash-Shatibi -Al-muwafakat – Cairo: ty, C: 4, Page: 107.

(93) Imam Shafii – Er Risale – Cairo: 1979 (2 eds) Pp: 509-511, Article: 1469-1478.

(94) İmam-ı Gazali – El Mustasfa Mn İlmû’l Usûl – Beirut: 1937, C: Z, Sh: 350 Vd.

(95) Ibn Abidin – Mecmuati'r Resail – Istanbul: 1325, Vol: 2, Page: 140.

(96) İbn-i Abdi'lber – Camiû'l Beyani'l İlra – Cairo: 1346, C: 2, Page: 59.

(97) Sahih-i Bukhari – Istanbul: 1401, Cagrı Yay. Vol. I, Page: 33-34, also Sunan-i Ibn-i Majah – Vol. I, Page: 20, Hd. No: 52.

(98) Abdu'rrauf Elmtinavî – Feyzü'l Kadir – Beirut: 1356, C: l, Sh: 11-12.

(99) Imam Shafii – Er Risale – Cairo: 1979 (2nd edition) Page: 511, Article: 1479. 

(Yusuf Kerimoğlu, Trust and Driving License, Vol. 1, p: 45-48) Abdullah AZİZ