The ijtihad which the lawgiver has sanctioned and which is...

The ijtihad which the lawgiver has sanctioned and which is to be employed in the service of fiqh, represents a specific meaning of the term `ijtihad'. In this particular sense it embodies one of the most outstanding characteristics of the spirit of Islam as reflected in Islamic legal studies, and it is in this sense that the Shi`ah have adopted the term.

If the practice of ijtihad is carried on in a correct manner, Islamic fiqh cannot remain static or face any kind of stagnation, nor will there appear any kind of deficiency or vacuum in any of its various branch. The innate dynamism of Islamic fiqh became apparent when the great Shi`i mujtahid al-Hasan ibn Abi `Aqil al-`Umani, a contemporary of al-Kulayni, gave a scientific structure to fiqh.

The practical impact of his work became evident when the great Shi`i legist Shaykh al-Ta'ifah Muhammad ibn al-Hasan al Tusi employed the groundwork prepared by him for deriving ahkam from Shar'i sources for new issues and prob­lems. Thus it was by these two great minds that fiqh was set upon a course upon which it progressed with time and developed with historical change.

The Source of the Inadequacies That which is sometimes referred to as the inadequacy of fiqh is in fact a result of inadequate research effort undertaken in some of the branches of Islamic legal studies. In other words, the main cause of these inadequacies is the failure to study the general and particular elements relating to some branches of fiqh. The reason for this neglect was the absence of any practical background during the past ages.

Accordingly, these inadequacies do not relate to the essence of Islamic law as such. It is we who have not worked hard enough to explore its hidden treasures. Undoubtedly, had we explored them, there would not have remained any unanswered question in this domain. On this account, the inadequacy pertains to our performance, not to Islamic law.

For instance, some issues of fiqh either totally lacked practical relevance in the past before the establishment of the Islamic Republic, or their relevance was very limited. This was true of matters relating to land, limits of private ownership, anfal, jihad, penal laws, judiciary, qisas, ta`zirat, etc., or issues pertaining to civil, economic and social legislation.