The Effect of the Discovery of Error in Permissible Ijtihad According to the Malikis A Foundational Study of the Legal Maxim “Does Ijtihad Remove Error?” and Its Applications in Acts of Worship

Abstract

This research examines the effect of the discovery of error in permissible ijtihad according to the Malikis, through establishing the foundations of the legal maxim: “Does ijtihad remove error?” and tracing some of its applications in the area of acts of worship. The research problem lies in clarifying the effect of discovering the error after the act has been performed, where such error has resulted from permissible ijtihad based on due diligence and verification of the proper application of the legal rule to the particular case, and the legal rulings that consequently arise. The research aims to clarify the concepts of permissible ijtihad, error, and the discovery thereof; establish the foundations of the legal maxim; clarify the Maliki position regarding it; and identify the effect of the discovery of error with respect to sin, discharge of the obligation, repetition, and making up the act.
The research adopts the descriptive, inductive, and analytical approaches in explaining the concepts and issues under study, examining the relevant texts and jurisprudential applications, and analyzing them to identify the bases underlying the rulings and their relationship to the legal maxim.
The research concludes that permissible ijtihad removes sin and liability from the mujtahid when he has exerted his utmost effort and has not been negligent; however, it does not, in absolute terms, remove the effect of error with respect to the declaratory legal ruling (al-ḥukm al-waḍʿī). Rather, the effect of discovering such error varies between discharge of the obligation, its repetition, and its being made up, depending on the subject matter of the ijtihad, the nature of the error, the possibility of rectifying it, and the evidence, legal maxims, and considerations relevant to the case. The research also demonstrates that the variation in Maliki rulings in the applications is attributable to differences in the underlying legal bases that affect the ruling, and that the maxim “Does ijtihad remove error?” cannot be treated in isolation from the other principles and legal maxims of Islamic jurisprudence.