(Series of Answers by the Eminent Scholar Ata bin Khalil Abu al-Rashtah, Ameer of Hizb ut-Tahrir, to the Questions of His Facebook Page Visitors: "Fiqhi")
To: Numan Abo Ali
Question:
Assalamu Alaikum. Is the Prophet’s ﷺ violation of what is "better" (Khilaf al-Awla) considered Ijtihad, or is it something else? I hope for clarification. May Allah bless you, guide your steps, and support you with His victory.
Answer:
Wa Alaikum Assalam Wa Rahmatullahi Wa Barakatuh,
Perhaps in your question, you are referring to what was mentioned in The Islamic Personality (Al-Shakhsiyyah), Volume 1, that it is not permissible for the Prophet ﷺ to perform Ijtihad, but it is permissible for him to act Khilaf al-Awla (contrary to what is better). Consequently, you asked about the difference between Ijtihad and Khilaf al-Awla.
To answer this question, it is necessary to understand the reality of "Ijtihad" and the reality of "Khilaf al-Awla"...
First:
Ijtihad linguistically means exerting one's utmost effort to achieve a matter that involves hardship and toil. As for its technical definition among the scholars of Usul (principles of jurisprudence), it specifically refers to "exerting the utmost effort in seeking a probabilistic opinion (Dhann) regarding a Shar’i rule, in a manner that the individual feels incapable of doing any more."
This means that the Shar’i rule on a matter is not known to the Mujtahid; therefore, he strives (Ijtihad) to discover the Shar’i rule. He exerts effort in understanding the reality of the issue, investigates the Shar’i evidences related to it, exhausts his capacity in studying them, and deduces an opinion that he predominantly believes to be the Shar’i rule for that issue.
Ijtihad in this sense is not valid for the Prophet ﷺ due to the explicit verses indicating that everything the Messenger ﷺ conveys is restricted to being from Wahy (revelation):
قُلْ إِنَّمَا أُنْذِرُكُمْ بِالْوَحْيِ
"Say, 'I only warn you by revelation.'" (QS Al-Anbiya [21]: 45)
إِنْ أَتَّبِعُ إِلَّا مَا يُوحَى إِلَيَّ
"I only follow what is revealed to me." (QS Al-Ahqaf [46]: 9)
وَمَا يَنْطِقُ عَنِ الْهَوَى * إِنْ هُوَ إِلَّا وَحْيٌ يُوحَى
"Nor does he speak from [his own] inclination. It is not but a revelation revealed." (QS An-Najm [53]: 3-4)
This means that the Messenger ﷺ conveys Shar’i rules through revelation and not through his own Ijtihad.
Furthermore, a Mujtahid is subject to error; if he is correct, he has two rewards, and if he is wrong, he has one reward. As stated in the Hadith of the Messenger of Allah ﷺ:
إِذَا حَكَمَ الْحَاكِمُ فَاجْتَهَدَ ثُمَّ أَصَابَ، فَلَهُ أَجْرَانِ، وَإِذَا حَكَمَ فَاجْتَهَدَ ثُمَّ أَخْطَأَ، فَلَهُ أَجْرٌ
"When a judge gives a ruling, having tried his best to decide correctly (Ijtihad), and is right, he will have a double reward; and when he gives a ruling, having tried his best to decide correctly, and is wrong, he will have a single reward." (Narrated by al-Bukhari and Muslim)
The Messenger ﷺ is Ma’sum (infallible) regarding errors in the Shar’ah. Therefore, Ijtihad is absolutely not permissible for him ﷺ because Ijtihad involves the possibility of being right or wrong, whereas everything the Messenger ﷺ conveys of the rulings—whether by his speech, action, or silence—is revelation from Allah the Almighty and nothing else.
Moreover, the Messenger ﷺ used to wait for revelation regarding many rulings despite the urgent need for a clarification of Allah’s ruling. If Ijtihad were permissible for him, he would not have delayed the ruling but would have performed Ijtihad. Since he delayed the ruling until revelation descended, it proves that he did not perform Ijtihad and that Ijtihad was not permissible for him; for if it were, he would not have delayed a ruling when it was needed.
Accordingly, everything that came from the Messenger of Allah ﷺ was through revelation and not through his own Ijtihad.
Second:
As for Khilaf al-Awla, it means that the Shar’i rule is already known and has been revealed as "Mubah" (permissible), but some of his actions are better (Awla) than others. Or, the Shar’i rule is "Mandoob" (recommended), but some of his actions are better than others.
For example, it is Mubah for a person to live in cities or in villages. However, living in cities is better (Awla) for one who deals with matters of governance and accounting the rulers. If he chooses to live in a village, he has acted Khilaf al-Awla.
Similarly, giving charity secretly or publicly is recommended (Mandoob), but giving it secretly is better than giving it publicly. If he gives it publicly, he has acted Khilaf al-Awla.
In this sense of Khilaf al-Awla, it is permissible for the Messenger ﷺ to perform an action that is contrary to what is better. Indeed, he did act Khilaf al-Awla, and Allah admonished him for it with His saying:
عَفَا اللَّهُ عَنْكَ لِمَ أَذِنْتَ لَهُمْ حَتَّى يَتَبَيَّنَ لَكَ الَّذِينَ صَدَقُوا وَتَعْلَمَ الْكَاذِبِينَ
"May Allah pardon you, [O Muhammad]; why did you give them permission [to remain behind] until those who told the truth were evident to you and you knew the liars?" (QS At-Tawbah [9]: 43)
This does not indicate Ijtihad, because the ruling that it was permissible for the Messenger ﷺ to grant leave to whomever he willed had been revealed before this verse. It was mentioned in Surah An-Nur, where Allah says:
فَإِذَا اسْتَأْذَنُوكَ لِبَعْضِ شَأْنِهِمْ فَأْذَنْ لِمَنْ شِئْتَ مِنْهُمْ
"So if they ask your permission for some of their affairs, then give permission to whom you will of them." (QS An-Nur [24]: 62)
This Surah (An-Nur) was revealed after Surah Al-Hashr during the Battle of the Trench (Al-Khandaq), while the verse "May Allah pardon you..." was revealed in Surah At-Tawbah regarding the Expedition of Tabuk in the ninth year of the Hijrah. Thus, the ruling was already known, and the verse in An-Nur explicitly indicates that it was permissible for the Messenger ﷺ to grant them permission.
However, in that specific incident for which the verse in At-Tawbah was revealed—namely the Expedition of Tabuk and the preparation of the Army of Hardship (Jaysh al-Usrah)—it was better (Awla) for the Messenger ﷺ not to grant the hypocrites permission to stay behind. When he permitted them in that specific instance, Allah admonished him for that action—meaning He admonished him for acting Khilaf al-Awla. The verse is not a correction of Ijtihad, nor is it a legislation for a ruling that contradicts a ruling the Messenger ﷺ had reached through Ijtihad in that same incident; rather, it is an admonition for choosing the less optimal option.
Third:
Based on this, it is not permissible for the Messenger ﷺ to be a Mujtahid; rather, he is a recipient of revelation (Wahy) from Allah the Almighty. This revelation is either in both wording and meaning, which is the Noble Qur'an, or in meaning only, which the Messenger ﷺ expresses either through his own words, his silence as an indication of a ruling, or his actions—all of which constitute the Sunnah.
Thus, the difference between Ijtihad and Khilaf al-Awla becomes clear: Ijtihad is not permissible for the Messenger ﷺ because he is Ma’sum (infallible) from error, whereas it is permissible for him to act Khilaf al-Awla because acting contrary to what is better is not considered an error (Khata').
Your brother, Ata bin Khalil Abu al-Rashtah
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