Ijtihad of the sahaba during and after the Messenger of Allah

Bismillah was salatu was salaam `ala rasool Allah , wa ba`d 



1- Ijtihaad and Qiyas are (among the other) valid tools of shar`iah. To understand what Ijtihaad means, how is it applied, when and where is it applicable, who can do it and who should refrain from it, the takhsees and other rulings, one has to study this subject in detail with scholars along with reading the books of scholars who touched upon these issues. There are umpteen books on this, falling under mawsoo al-fiqh especially. 

2- I am compiling this article  for two main reasons. 

(i) I needed this article for another compilation work i am about to upload soon In sha allah (Ruqyah)

(ii) some brothers are very impressed with the dhahahiree madhab. due to which they deny qiyas and Ijtihad (without truly understanding the stance of the dhaahiree school of thought) . Many of our Indo-Pak Ahl al-hadeeth brothers are so fanatic and uneducated that they end up saying : what or why on earth do we need qiyas when we have Qur`an and hadeeth". To be honest, any one who has had 10% of academic education with regards to Islamic laws and studies would literally be astonished hearing such a statement. So to cover both these reasons in brief, i will mentioning some incidents from the ahadeeth itself so such brothers may learn and pay heed. This is a very simple compilation enlisting only some narrations showing examples of qiyas and ijtihad from the sahaba. that's pretty much it. For details of ijtihaad and qiyas you'll have to refer to books. 

Obviously the scholars and our aslaaf have discussed these two tools in great detail. They have not only relied,applied and preserved these methods , but also taught us era by era its various rulings and importance. So as i said in point no.1 above, you will have to study this subject in dept with scholars .

To begin with , i'd like to start this article by saying that obviously the entire lives of the sahaaba has ijtihaad in some or the other moment. I cannot enlist everything and i myself do not know every such instance. So to keep it brief and simple i will enlist only a few reports on this topic and keep adding as and when i find necessary

قال الإمام الشافعي رحمه الله :
" وليس لأحد أبداً أن يقول في شيء : حَلَّ ولا حَرُم إلا من جهة العلم ، وجهة العلم : الخبر في الكتاب أو السنة ، أو الإجماع ، أو القياس " انتهى .

"الرسالة" (39) .

Imam al-Shaafa’i (may Allaah have mercy on him) said: No one has any right whatsoever to say that something is halaal or haraam except on the basis of knowledge, and the basis of knowledge is a text in the Qur’aan or Sunnah, or ijmaa’ (scholarly consensus) or qiyaas (analogy).


[Ref: Al-Risaalah (39)]



وقال الدكتور عبد الكريم زيدان :

"المقصود بمصادر الفقه : أدلته التي يستند إليها ويقوم عليها ، وإن شئت قلت : المنابع التي يستقي منها ، ويسمي البعض هذه المصادر بـ " مصادر الشريعة " أو " مصادر التشريع الإسلامي "، ومهما كانت التسمية فإن مصادر الفقه ترجع كلها إلى وحي الله ، قرآناً كان الوحي أو سنة ، ولهذا فإننا نرجح تقسيم هذه المصادر إلى : مصادر أصلية ، وهي : الكتاب والسنة . ومصادر تبعية أرشدت إليها نصوص الكتاب والسنة ، كالإجماع والقياس " انتهى .


"المدخل لدراسة الشريعة الإسلامية" (ص/153) .


Dr. ‘Abd al-Kareem Zaydaan said: 

What is meant by the sources of fiqh is the evidence from which it is derived and on which it is based. If you wish, you may say: The sources from which it is derived. Some people call these sources the “sources of sharee’ah” or “the sources of Islamic legislation.” No matter what they are called, the sources of fiqh all derive from the Revelation (wahy) of Allaah, whether it is Qur’aan or Sunnah. Hence we prefer to divide these sources into original sources, namely the Qur’aan and Sunnah, and secondary sources to which the texts of the Qur’aan and Sunnah refer, such as ijmaa’ (scholarly consensus) and qiyaas (analogy). 


[Ref: Al-Madkhil li Diraasat al-Sharee’ah al-Islamiyyah (p. 153).]

Note: The sahaaba loved the prophet (s.a.w) immensely which no man can equate thereafter. Thus their loyalty and obedience to his every command was shattering. See 70+ narrations here showing their absolute obedience to his command and practise : 
http://the-finalrevelation.blogspot.com/2014/04/part-1-authority-of-hadeeth-and.html

So despite such unbreakable bond of obedience , if the sahaaba did oppose the prophet (s.a.w) exercising their ijtihaad in some matters (such as see narration no. 3.22 below) then such an action of theirs shows the superiority and necessity of Ijtihaad and Qiyaas within the Islamic shar`iah. 


1) THE PROPHET (salallahu `alayhi wa sallam) HIMSELF INDULGING IN QIYAS (analogy) TO TEACH US ITS PERMISSIBILITY 

Imam Bukhaari titled one of his baab as :

بَابُ مَنْ شَبَّهَ أَصْلاً مَعْلُومًا بِأَصْلٍ مُبَيَّنٍ قَدْ بَيَّنَ اللَّهُ حُكْمَهُمَا، لِيُفْهِمَ السَّائِلَ

Chapter: Comparing an ambiguous situation to a clear well-defined one

and brings the following ahadeeth showing how the prophet used analogy (in one way) to explain something. 

Al-Bukhaari (1852) narrated from Ibn ‘Abbaas (may Allah be pleased with him) that a woman from Juhaynah came to the Prophet (blessings and peace of Allah be upon him) and said: My mother vowed to perform Hajj, but she did not perform Hajj before she died; can I perform Hajj on her behalf? He said: “Yes, perform Hajj on her behalf. Don’t you think that that if your mother owed a debt, wouldn’t you pay it off? So pay off the debt owed to Allah, for Allah is more deserving of having debts owed to Him being paid off.” 

Narrated Abu Huraira:

A bedouin came to Allah's Messenger (ﷺ) and said, "My wife has delivered a black boy, and I suspect that he is not my child." Allah's Messenger (ﷺ) said to him, "Have you got camels?" The bedouin said, "Yes." The Prophet said, "What color are they?" The bedouin said, "They are red." The Prophet (ﷺ) said, "Are any of them Grey?" He said, "There are Grey ones among them." The Prophet (ﷺ) said, "Whence do you think this color came to them?" The bedouin said, "O Allah's Messenger (ﷺ)! It resulted from hereditary disposition." The Prophet (ﷺ) said, "And this (i.e., your child) has inherited his color from his ancestors." The Prophet (ﷺ) did not allow him to deny his paternity of the child.

[Saheeh Bukhaari, 7314] 

See al-Fudool fi’l-Usool (4/48) for details 



Note: when it comes to Imam Bukhaari's madhab in Qiyas war-rai then these two beneficial links shared by brother Abu `Abdur-rahman is to be read : 
1. http://www.ahlalhdeeth.com/vb/showpost.php?s=b5193cf41cc4a071ee4a5ac53ecbb152&p=2021362&postcount=2

2. http://www.almktabah.com/vb/showpost.php?p=3602&postcount=2

In addition, see the sharh of Ibn Hajar under the baad being discussed [ pay attention to Ibn Battals statement] 

http://library.islamweb.net/newlibrary/display_book.php?idfrom=13384&idto=13386&bk_no=52&ID=4011


2) THE ALLOWANCE OF (permissible) IJTIHAD FROM THE PROPHET (sallalahu `alayhi wa sallam) himself 


2.1) The very famous statement , an accepted ruling and law in the muslim ummah, derived from the hadeeth of the prophet (sallalahu `alayhi wa sallam) which means :

إذا اجتهد الحاكم فأصاب فله أجران، وإن أخطأ فله أجر".

If the Hakim (ruler or judge) made his Ijtihad or the extraction of the verdict from original sources of legislation and he reached the correct verdict he will get two rewards. And if he reached the wrong verdict he will only get one reward.”

This is the very source or one of the prime narrations proving the prophetic approval of Itjihaad and Qiyaas. 

2.2) Another such proof is the very fact that the prophet (sallalahu `alayhi wa sallam) sent sahaaba as judges, muftis, across the jazeera and beyond carrying his message and praying for them to exercise a right judgement . The seerah of the prophet (s.a.w) and the sahaaba are enough. One such hadeeth is : 

Mu`adh ibn Jabal said: "When Allah's Messenger (sallalahu `alayhi wa sallam) sent me to Yemen he said: 'How will you pass judgment if a judgment is asked of you?' I replied: 'I shall pass judgment on the basis of Allah's Book.' He said: 'What if it is not in Allah's Book?' I replied: 'Then on the basis of the Sunna of Allah's Messenger -- Allah bless and greet him --.' He said: 'What if it is not in the Sunna of Allah's Messenger?' I replied: 'Then I make a personal effort and I leave no stone unturned (i.e try my best).' Whereupon the Prophet (sallalahu `alayhi wa sallam) slapped my chest and said: 'Praise to Allah Who has graced the messenger of Allah's Messenger with what pleases Allah's Messenger.'"


[Ref: This is an example of a hadith that is not established from the perspective of isnad but which is considered nevertheless authentic and relied upon by the Ummah of Muhammad since 14 centuries. Narrated by Abu Dawud, al-Tirmidhi who said that a link of its chain was missing, Ahmad, al-Darimi, Ibn Abi Shayba in his Musannaf (4:543, 6:13), al-Tayalisi in his Musnad (p. 76), 'Abd ibn Humayd in his Musnad (p. 72), al-Tabarani in al-Kabir (20:170), Ibn Sa'd in al-Tabaqat al-Kubra (2:347-348, 3:584), al-Khatib in his Tarikh (13:77) and al-Faqih wa al-Mutafaqqih (1:188-189), al-Bayhaqi in al-Sunan al-Kubra (10:114), Ma'rifa al-Sunan (1:173-174 #291) and al-Madkhal (p. 207), Ibn 'Abd al-Barr in Jami' Bayan al-'Ilm (2:844-846 #1592-1594=2:56), al-Baghawi in Sharh al-Sunna (10:116), Ibn 'Asakir in Tarikh Dimashq, and others. Al- Bukhari in al-Tarikh al-Kabir (2:277) stated that it has no sound chain, as reiterated by Ibn al-Jawzi in al-'Ilal al-Mutanahiya (2:758-759 #1264) and Ibn Hazm in al-Ihkam (7:417=6:36). However, because it is unanimously considered authentic by the jurists, it is considered sahih as a hadith as indicated by Abu Bakr al-Razi in Ahkam al-Qur'an (3:179), Ibn al-'Arabi in 'Arida al-Ahwadhi, Ibn Kathir in his Tafsir (1:4), Ibn al-Qayyim in I'lam al-Muwaqi'in (1:202-203), Ibn Hajar in Talkhis al-Habir (4:182), al-Tahanawi in Muqaddima I'la' al-Sunan (2/2:57-58), al-Arna'ut in al-Tahawi's Sharh Mushkil al-Athar (9:213-214 #3584), al-Zayn in Musnad Ahmad (16:164 #21906), and the author of Nibras al-'Uqul (1:82-83) as cited in Hujjiyya al-Sunna (p. 287 n. 6). Al-Arna'ut cites other hadiths of similar type. ] 


So on various occasions, many of them were sent by the Prophet for diverse duties to different areas of the country such as Yemen, Bahrain, Najd, Tihamah, and Yamamah, etc. In that era, which did not have rapid means of communications, it was not practical or even possible for them to contact the Prophet from that distance about every single matter. If they tried to do so, they would have delayed the settlement of disputes and postponed the solution of problems. This could cause unrest in society, and the failure of new administration, which would result in the destruction of the Muslim State. Therefore, it was necessary for them to practice their ijtihad in order to solve their problems expeditiously.

al-Baydawi claimed the unanimity of Muslim scholars about the permissibility of ijtihad for those Companions who were absent from the Prophet (s.a.w) 

[Ref: Minhaj al-Wusul, 3/196] 

Majority of the `ulema favored the view that it was permissible for the sahaaba to exercise their own Ijtihaad (in matters where a revelation wasn't there) both in the presence of and the absence of the prophet (s.a.w). 

Muhammad ibn al-Hasan al-Shaybani, al-Ghazali, Fakhr ud-Din al-Razi, al-Baydawi and al-Amidi were all in favor of this point of view

[Ref: See Al-Amidi, al-Ikham, vol. 3, p. 213.; Minhaj al-Wusul of Baydawi 3/196-197; al-Bihari, Muhibbullah b. ‘Abd al-Shakur, Musallam al-Thabut, vol. 2/ 374; Al-Mustasfa lil Ghazali (2/354); Al Mu`tamad (2/723)]

2.3) 

عن علي قال : قلت : يا رسول الله ، إن نزل بنا أمر ليس فيه بيان : أمر ولا نهي ، فما تأمرنا ؟ قال : تشاورون الفقهاء والعابدين ، ولا تمضوا فيه رأي خاصة

Ali r.a says Oh Messenger of Allah Salallahu `alayhi wassalam: If a matter comes upon us about which there is no information, neither to do it nor to abstain from it. so, What do you command us regarding it? He (the Prophet) said consult your (righteouss) Fuqahaa and (knowledgable) Aabideen(worshipers) and Do not execute (orders) on the opinion of any (one) specific person.


[Al Mu`jam al Awsat, Hadeeth 1641, Classed as Hasan by Abu Yahya noorpuri]

Note: Impermissible Ijtihaad is another subject in its own. A quick example showing that Ijtihaad in certain matters aren't allowed is this fatwa (and more for details refer to scholars) : 

“Be cognizant of the fact that whether the dead can hear or not is an issue of the Unseen related to Barzakh which no one except Allaah عز وجل knows about, so it is not allowed to delve into it based upon qiyaas and opinions, rather, in affirming and negating, one halts at the text about it.”

And he said, “Coming to deductions based upon the intellect … has no place in any issue related to the Unseen.”


[Ref: Tahqeeq al-Aayaat al-Bayyinaat fi ’Adm Samaa’ al-Amwaat, p. 37 and p. 60.]

2.4) 

أخرجه الدارقطني عن عقبة بن عامر، ولم يذكر معه رجلًا آخر، ولفظه في مجمع الزوائد "4/ 195" عن عقبة بن عامر الجهني- رَضِيَ اللَّهُ عَنْهُ: قال: جئت إلى رسول الله -صَلَّى اللَّهُ عَلَيْهِ وَسَلَّم-وعنده خصمان يختصمان، فقال: "اقض بينهما" فقلت: بأبي وأمي أنت أولى بذلك مني: فقال: "اقض بينهما" فقلت: على ماذا؟ فقال: "اجتهد فإن أصبت فلك عشر حسنات، وإن لم تصب فلك حسنة" ثم قال: رواه الطبراني في الأوسط، وفيه حفص بن سليمان الأسدي، وهو متروك.

RT :

Imam ad-Daraqutni and Imam Ahmad in his Musnad (4/205) brings a narration reporting that 'Uqbah ibn 'Amir stated that one day two opposing parties came to the Prophet for settlement of their dispute. He said to me, "O ‘Uqbah, get up and make judgment between them." I said, "May my father and mother be sacrificed for you O Messenger of Allah, you are more suitable for this."  He said, "Anyway, you should make the judgment between them." I said, "On what basis?" He replied, "Exercise your reasoning (Ijtihaad). If your decision is right, you will have reward of ten good deeds. (But) If you are mistaken in your judgement, you will (nevertheless) have a reward of one good deed
Another similar narrative brought by al-Ghazali in his Mustasfa is

One day the Prophet asked his companion, 'Amr ibn al As, to make a judgment about a dispute. He said, "How can I exercise my ijtihad while you are present?" The Prophet said, "Yes (do it), if you achieve the right then will receive two times the reward. Even if you make a mistake in your ijtihad, you will still receive one time the reward

[Ref: Dha`eef. See Al-Kaamil fi Dhu`afa of Ibn `Adi (3/273); Ibn al-Qasrani in Zakheeratul Huffadh (4/1911); Mu`jam al-Awsat fit Tabraani via Hudhayf bin Sulayman al-Asdiy (and he is matrook); Haythami in Majma` az-Zawaid (4/198) and others]

See the discussion of this from a fiqhi point of view from the chapter Kitaab al-Ijtihaad, in the book  روضة الناظر وجنة المناظر , from here : http://madrasato-mohammed.com/mawsoaat_asol_fiqh_03/pg_014_0028.htm


3) THE IJTIHAAD OF THE SAHAABA DURING THE LIFE TIME OF THE MESSENGER OF ALLAH (sallalahu `alayhi wa sallam) 


The Prophet Muhammad (s.a.w) encouraged his Companions to seek knowledge, utilize their reasoning ability, and benefit mankind. It was due to his encouragement that on several occasions, they exercised their ijtihad and practiced their personal reasoning in presence of the Prophet. Sometimes he himself asked them for their opinion and reasoning, while at the other times they expressed it without his demand.

Open any book of battles fought by the sahaaba, see their ijtihaad and their judgement in war fare, in exercising their judgements  in different situations, with regards to the different prophetic ahadeeth they knew . Their deduction of rulings from the prophetic statements they heard or actions they saw. See their ijtihaad during and after the prophet(s.a.w) in battles, in daily lives via their seerah , so on and so forth. These in itself would be in hundreds. 


3.1) The Prophet (sallalahu `alayhi wa sallam) gave instructions to a party of Companions on the Day of [the battle of] the Clans: "Let no-one pray 'asr - another narration states zuhr - before you reach the Banu Qurayza." On the way, one or more of them remarked that 'asr had entered. Some said: "We shall not pray until we reach it." Others said: "On the contrary, we shall pray, because that was not what was meant [i.e. to delay prayer beyond its time]." Later on the incident was mentioned to the Prophet -- Allah bless and greet him -- and he did not reprimand either of the two groups.

[Ref: Bukhari: 894, 3810 Muslim: 3317]

Imam al-Nawawi said in commenting on this hadith that he considers that every mujtahid can be correct. He said: 

In this hadith there is evidence supporting those who act upon the understanding and according to analogy while attending to the actual meaning of words, and also to those who stick to the external letter. There is also evidence that the mujtahid must not be taken to task in what he did through his ijtihad if he did his best. And it can be inferred from this that every mujtahid is correct (wa qad yustadallu bihi 'ala an kulla mujtahidin musib). Those who take the opposite view can say that the Prophet -- Allah bless and greet him -- did not manifest which of the two sides was correct, but he did not take them to task. There is no disagreement that the mujtahid is not taken to task even if he was mistaken, as long as he did his utmost in striving. And Allah knows best.

[Ref: Al-Nawawi, Sharh Sahih Muslim (Kitab al-Jihad, Ch. 23, al-Mays ed. 11/12:341). ]

Ibn Hajar reiterates this position in his commentary on the same hadith in al- Bukhari: 

In this hadith there is evidence that each one of the two mujtahids that differ in a matter of the branches, is correct" (wa fihi anna kulla mukhtalifayni fi al-furu' min al-mujtahidina musib).

[Ref: Ibn Hajar, Fath al-Bari (Kitab al-Maghazi, ch. 31, 1989 ed. 7:520)] 

3.2) Abu Sa`eed al-Khudri narrated that two men went on a trip and decided to pray but found no water. They made dry ablution (tayammum) then prayed. Thereafter, they found water and the time of prayer had not yet elapsed. One of them repeated his prayer, while the second one did not. The Prophet sallalahu `alayhi wa sallam said to the latter: "You have followed the Sunna faithfully, and your prayer is complete." He said to the one who repeated his prayer: "You have twice the reward."  

[Ref: Narrated by al-Nasa`ee, Abu Dawud, al-Darimi, and al-Bayhaqi in al-Sunan al- Kubra (1:231). Ibn Hajar in Talkhis al-Habir (1:156 #2112), al-San'ani in Subul al-Salam (1:98), al-Zayla'i in Nasb al-Raya (1:160) and al-Tahanawi in Ila' al- Sunan (1:326) all indicated that it is sound (sahih) as stated by al-Hakim (1:178-179= 1990 ed. 1:286) and Ibn al-Sakan in al-Sihah.]

3.3) 

 ؛ لحديث أبي حميد الساعدي أن النبي صلى الله عليه وسلم استعمل رجلا يقال له ابن اللتبية على الصدقة فجاء فقال : هذا لكم وهذا أُهدي لي ، فقام النبي صلى الله عليه وسلم على المنبر فحمد الله وأثنى عليه وقال : ما بال العامل نبعثه فيجيء فيقول هذا لكم وهذا أهدي لي ألا جلس في بيت أمه أو أبيه فينظر أيهدى له أم لا ، لا يأتي أحد منكم بشيء من ذلك إلا جاء به يوم القيامة إن كان بعيرا أو بقرة أو شاة . رواه البخاري ( 2457 ) ومسلم ( 1832 ) .

 It is reported via the hadeeth of Abu Humayd al-Saa’idi, which says that the Prophet (peace and blessings of Allaah be upon him) employed a man called Ibn al-Latbiyyah to collect the zakaah. He came and said: This is for you, and this was given to me. The Prophet (peace and blessings of Allaah be upon him) stood up on the minbar and praised and glorified Allaah, and said: “What is the matter with an agent whom I send, and he comes and says, ‘This is for you and this was given to me’? Why doesn’t he sit in the house of his mother and father, and see if he is given anything or not? No one of you brings any such thing but he will bring it on the Day of Resurrection, whether it is a camel or a cow or a sheep.”
[Ref:  Narrated by al-Bukhaari (2457) and Muslim (1832). ]

The sahaabi Ibn al-Latbiyyah exercised his ijtihaad in keeping the portion of gift which he received from people and considering it to be his and seperate from the state zaka`h. But the prophet (s.a.w) refuted this ijtihaad (reasoning) and explained that the only reason he was given gifts was only due to his position which people honoured and thus Ibn al-Latibiyyah accepted the hukm of the prophet (s.a.w) and returned back those gifts to the state property.  [See Fath al-Bari 16/290] 


3.4) 

Sometimes, the Prophet accepted his Companions' ijtihad and changed his personal opinion as it happened on the occasion of Badr. When the Prophet decided to camp at a certain place, one of his Companions, Hubab ibn al-Mundhir al-Khazraji, came to him and asked whether stopping at that location was commandment of Allah, or it was a matter of opinion and strategy of war. When he replied that it was merely a matter of opinion and strategy of war, the Companion , Hubab ibn Mundhir  suggested that the Muslims encamp further south on the nearest water well, make a basin of water for themselves, and destroy the other wells to thereby restrict to Quraish’s access to the water. Rasoolullah (saws) approved of his plan and carried it out.

[Ref: Tareekh at-Tabari 2/440;  In the book by Dr. al Sibai, Shaykh Jamal Zarabozo says that this story was not narrated through authentic chains, although it is mentioned in several famous books of seerah (with reliable authors) who were silent about its authenticity. Allahu `Alam. ] 

3.5) 

In the 5th year of Hijra, the Prophet received news that a large army of Quraysh was about to march to attack Madeenah. He summoned his Companions for consultation. Several suggestions were expressed as to what would be the best plan for defense. Salman al-Farisi said: "O Messenger of Allah! In Persia, when we feared an attack (of horsemen), we would surround ourselves with a trench. Let us dig a trench around us now." The Prophet (s.a.w) accepted Salman's suggestions and ordered the digging of a trench to defend the city of Madeenah
[Ref: Ibn Hisham brings it in his seeratun Nabi 3/708; Ibn Sa`d in Kitab ul-Tabaqat al-Kabir (2/47); Tareekh at-Tabari (2/566)] 

3.6) 

During the Battle of the Trench ten thousand troops of Quraysh, Banu Ghatafan, and their allies besieged Madeenah. [1]  This siege was prolonged and the strain on the Muslims increased. Food was beginning to run short and many of the weak in faith, unnerved by hunger, cold, and lack of sleep were losing strength to resist. The Prophet tried to weaken the power of the enemy by splitting them. One night, he sent word to 'Uyaynah ibn Hisn, the chief of Banu Ghatafan, offering him one third of the date harvest of Madeenah if he would quit the Quraysh and turn back along with his men. But 'Uyaynah demanded half of the dates of Madeenah. The Prophet sent for Sa'd ibn Mu'adh, the chief of Banu Aws, and Sa'd ibn 'Ubbadah, the chief of Banu Khazraj. He said, "Uyaynah has asked me half of your dates for leaving Quraysh along with his men and deserting the allied forces, while I offered him one third. However, he refused to accept my offer and insisted on one half. What is your opinion?" They replied, "O Messenger of Allah if you have been commanded by Allah about something, then do it." The Prophet replied: "If I were commanded by Allah I would not consult you. It is just my personal opinion which I am presenting to you for discussion." They said: "Then our opinion is not to give them but sword." The Prophet agreed with them and accepted their opinion [2] 

[Ref:  [1] Tabaqat ibn Sa`d (2/47); Tareekh at-tabari (2/570) | [2] Seerat an-Nabi Ibn Hishaam (3/707); Tabaqaat ibn Sa`d (2/52-53); Tareekh at-Tabari (2/573); Al-Baladhuri (Ansab al-Ashraf (1/346)]


3.7) 

The Messenger of Allah (saw) made Sa’d b. Mu’az to judge over Bami Qurayzah so he gave the judgment that they should be killed and their offspring to be taken prisoners. The Messenger (saw) said: “You gave have given a judgment that is from above the seven arki’ah.” 

[Ref: Muslim:1761, Ahmad: 2/22]

A detailed story is here :
After the Battle of the Trench, the Prophet (along with his Companions) went to the Banu Qurayzah who had broken their agreement with the Prophet and sided with the Makkan forces against the Muslims. This tribe was an ally of the Banu Aws in the pre-lslamic period. The men of Aws requested the Prophet to show the same leniency toward their former allies as he had shown toward Banu Qaynuqa' who had been the allies of Banu Khazraj. He said, "Would you be satisfied if one of you pronounces judgment upon them?" They agreed. He entrusted it to their chief Sa'd ibn Mu'adh who was injured during the Battle of the Trench and whose wounds had not yet healed. The Prophet had placed him in the tent of Rufaydah in his mosque at Madeenah so that he might visit him more often. Rufaydah was a nurse from Banu Aslam. This expert Muslim lady used to tend and treat the wounded people. Some of the clansmen of Sa'd went to him and mounted him on an ass. They brought him to the Prophet saying to him on their way, "Do well to your confederates for the Messenger of Allah has set you in judgment upon them merely to treat them with kindnesses." When they repeated their request again and again, he said, "The time has come for Sa'd to give no heed to the blame of the blamer in the cause of Allah.''
Sa'd was a man of majestic and handsome appearance and a mighty stature. When he approached the camp, the Prophet said, “Stand up in the honor of your chief.” They rose to greet him and said, “Father of 'Amr, the Messenger of Allah has appointed you to judge the case of your confederates.” He said, “Do you swear by Allah and make by Him your covenant that my judgment will be the verdict upon them?” “We do”' they answered. “And is it binding upon him who is here?” He added, with a glance in the direction of the Prophet, but not mentioning him out of reverence. “It is,”   said the Prophet. “Then I judged.” said Sa'd, “that the men of Banu Qurayzah should be slain, the property divided and the women and children made captive.” The Prophet said to him: “You have judged with the judgment of Allah from above the seven heavens

[Ref: Seerat Ibn Hishaam (3/720); Tareekh at-Tabari (2/576)]

3.8) 
. When the Prophet moved closer to the valley of Badr, another Companion Sa'd ibn Mu'adh the chief of Banu Aws, came to him and said, “O Messenger of Allah, let us build for you a shelter behind the battle field where you should stay, and put beside you your riding camels in readiness. Then we will meet our enemy. If Allah strengthens us and makes us victorious over them, that is what we fervently desire. But if something else happens you can mount your camels, and join those people who are left behind. For, O Prophet of Allah, our love for you is not greater  than those Muslims who are left behind (for they love more because). If they had known that you would meet with war they would have not stayed behind. Allah will protect you through them. They will give you good counsel and fight at your side.” The Prophet appreciated his concern and invoked blessings upon him. Then the shelter was built with branches of palms, and he stayed there during the fighting

[Ref: Seerat Ibn Hishaam (2/452)] 


3.9) 

The Battle of Badr left seventy soldiers of the enemy dead and seventy captured. The Prophet consulted his Companions regarding the treatment of the captives. The Companions expressed various opinions. Abu Bakr suggested their release on ransom. He said, “O Messenger of Allah, they are your people, and your family. Preserve them alive. Maybe Allah would turn to them with His mercy. Take from them ransom and strengthen your followers by that money.”

  'Umar ibn al-Khattab advised him to kill all of them. He said, “O Messenger of Allah, these people accused you of lying, expelled you from Mecca and fought against you. They are the leaders of infidelity. Allah has made you free from the money of their ransom. Bring them forward and cut their heads off.”

‘Abdullah ibn Rawahah said, “O Messenger of Allah, find a valley of plentiful firewood and burn up these captives in the fire.” Sa'd ibn Mu'adh insistently said, “O Messenger of Allah, kill them and do not take the ransom.” The Prophet accepted the suggestion of Abu Bakr and released the captives for ransom. 

[Ibn Kathir, Tafsir al-Qur'an al-'Azim, vol. 2, p. 325, ; al-Tabari, al-Tarikh, vol. 2, p. 476., Al-Waqidi, Muhammad b. Human b. Waqid, Kitab al-Maghazi, vol. 1 (London, 1965), p. 110., Al-Tabari, al-Tarikh, vol. 2, pp. 474-475.; Ibn Hisham, Sirat al-Nabi, vol. 2, p. 452. ]
.
THE NEXT DAY THE PROPHET CALLED UMAR (r.a) AND FAVOURED HIS OPINION AS ALLAH HAD REVEALED THE VERSES : 


"It is not for a Prophet that he should have prisoners of war (and free them with ransom) until he had made a great slaughter (among his enemies) in the land. You desire the good of this world (i.e. the money of ransom for freeing the captives), but Allah desires (for you) the Hereafter. And Allah is All-Mighty, All-Wise. Were it not a previous ordainment from Allah, a severe torment would have touched you for what you took." [Al-Qur'an 8:67-68]

3.10) 

On the occasion of Hudaybiyah, when the Quraysh did not let the Prophet enter Makkah to perform the pilgrimage to Ka`bah, a treaty was signed between him and the Quraysh on their terms. According to it, the Muslims had to return to Madeenah that year without performing the pilgrimage, however, they were allowed to come back next year and perform the ritual rites of of the Ka'bah. The Prophet asked his Companions to rise, sacrifice their sacrificial animals, and then shave their heads. He repeated it a second and a third time, but no one moved. They were perplexed by this demand because, according to pilgrimage tradition, the sacrifices had to be performed within the sacred territory of Makkah after some special ritual rites. The field of Hudaybiyah was outside of the Makkan sanctuary, and they had not yet performed the other special rituals. Besides this, perhaps, they regarded the sacrifice at Hudaybiyah as a victory for the Quraysh, which they did not like. The Prophet was somewhat dismayed by their silence. He withdrew to his tent and told his wife Umm Salamah about the situation, wondering what was the matter with the people. She said, “O Messenger of Allah you know their deep sadness and grief which has seized them. Say no word to any man. Go to your sacrificial animal and sacrifice it, then call for your barber who should shave your head.” Carrying out the advice of Umm Salamah, the Prophet went out and did not speak to anyone. He sacrificed his animal, and then called for his barber who shaved his head. Upon seeing this, the Companions leaped to their feet and raced falling over each other in eagerness to follow the practice of their beloved Prophet

[Ref: Saheeh al-Bukhaari; Tareekh at-tabari (2/637); Tafseer ibn Katheer] 

3.11) 

Abu Qatadah reported, “We went along with the Messenger of Allah in the year of Hunayn. When we met the enemy, we suffered a reverse. I saw one of the polytheists getting the better of one of the Muslims. I struck him on his shoulder blade with my sword and cut his coat of mail. He turned to me and pressed me to him so hard that I felt death was near. However, he let me go when he was overtaken by death. I then saw 'Umar ibn al-Khattab and asked him what was the matter with the people, to which he replied that it was what Allah had decreed. Then the Muslims returned and defeated the enemy. After that the Prophet sat down and said, “Anyone who killed an enemy, and could prove it, he will get his share of the spoils.” I asked “Who will testify for me?” and then sat down. The Prophet made the same announcement a second time, and I again asked, “Who will testify for me?” and sat down. The Prophet repeated his word a third time, and I again got up. He saw me and said, “What is the matter with you, Abu Qatadah?” When I told him my story, a man verified my statement and said, “He had spoken the truth, O Messenger of Allah. I have his share of the spoils, so gratify him by giving something else in exchange.” Upon this, Abu Bakr said, “Never, I swear by Allah, the Prophet will never do so in the case of one of the Allah's heroes who fights for Him and His Messenger, and then he should give you his share of the spoils.” The Prophet said “He (Abu Bakr) has had spoken the truth” and asked the man to hand it over to me

[Ref: Saheeh al-Muslim] 

3.12) 


When the Prophet migrated from Makkah to Madeenah, the Muslim community at that time did not have any regular system of calling the people for the prayers. He consulted his Companions regarding this matter. Some suggested the use of a bell as the Christians did, while others advised him to use a horn like that of the Jews. At first, the Prophet was inclined towards the horn, but then, he did not like it and ordered a bell to be made so that it might be struck to gather the Muslims for prayers. Meanwhile, one night Abdullah ibn Zayd, a Companion of the Prophet, had a dream. Early in the morning, he rushed to the mosque, met the Prophet and said, “O Messenger of Allah, last night when I was sleeping, I had a dream. A man dressed in two green garments carrying a bell in his hand appeared to me. I said to him, “O servant of Allah will you sell me this bell?" He asked, “What would you do with it?” I replied that we would use it to call people to the prayers. He then asked, “Shall I show you something better?” I said, “What is that?” So he told me the words of the adhan' (call to prayers). The Prophet said, “It is a true vision.” He then ordered Zayd to get up along with Bilal so that Bilal should repeat the words because his voice was louder than Zayd

[Ref: lbn Hisham, Sirat al-Nabi, vol. 2, pp. 354-355; Fath al-Baari (2/77-82); Saheeh al Bukhaari ; Sunan at-Tirmidhi ]

Another hadeeth reported that `Umar (r.a) had similar visions along with some other sahaaba too. 


3.13) 


Ibn 'Abbas reported that the Prophet used to lean against a dry trunk of a datepalm during his sermons. When the number of audience increased, one of his Companions Tamim al-Dari suggested for him to have a pulpit similar to the Syrians. The Prophet approved it and Maymoon, a carpenter of Madeenah was ordered to make a wooden Pulpit, which the Prophet used during his sermons afterwards

[Ref: Ibn Sa`d, al-Tabaqat, vol. 1. part 2, p.9;; Fath al-Bari (1/486)]

3.14)

It is mentioned that the righteous predecessors, may Allaah have mercy upon them, used to take the crowd around the Ka‘bah into account when touching the Black Stone. For instance, it is narrated that when ‘Abdur-Rahmaan ibn ‘Awf, may Allaah be pleased with him, found a crowd around the Stone, he would turn his face to it and glorify Allaah The Almighty, saying “Allaahu Akbar!” and supplicating to Him, then he would perform his Tawaaf, and he would only touch it when he found a gap.7 When the Prophet, sallallaahu ‘alayhi wa sallam, asked him why he touched the Stone sometimes and left it sometimes, he told him about what he was doing. The Prophet, sallallaahu ‘alayhi wa sallam, approved his act, saying: "Well-done." 


[Ref: Ustadh Talaal ibn Muhammad Abu Noor in his book stated ‘Al-Azraqi narrated it with a good chain of narrators in Akhbaar Makkah (1/101)” Muwatta Malik has a similar narration as well via Hisham ibn Urwa via his father ]

3.15) 

(Obey Allah and obey the Messenger, and those of you who are in authority.) 

This verse was  revealed about `Abdullah bin Hudhafah bin Qays bin `Adi, who the Messenger of Allah sent on a military expedition.'  Imam as-Sha`fee and some other salaf say that this verse means to obey the commander in general and similar authorities, whereas some other scholars say it means to obey whoever is in authority including the scholars. 

This statement was collected by the Group, with the exception of Ibn Majah . 

Imam Ahmad recorded that `Ali said, "The Messenger of Allah sent a troop under the command of a man from Al-Ansar. When they left, he became angry with them for some reason and said to them, `Has not the Messenger of Allah commanded you to obey me' They said, `Yes.' He said, `Collect some wood,' and then he started a fire with the wood, saying, `I command you to enter the fire.' The people almost entered the fire, but a young man among them said, `You only ran away from the Fire to Allah's Messenger.  [1] Therefore, do not rush until you go back to Allah's Messenger, and if he commands you to enter it, then enter it.' When they went back to Allah's Messenger , they told him what had happened, and the Messenger said,

«لَوْ دَخَلْتُمُوهَا مَا خَرَجْتُمْ مِنْهَا أَبَدًا، إِنَّمَا الطَّاعَةُ فِي الْمَعْرُوف»

Had you entered it, you would never have departed from it. Obedience is only in righteousness. [2] 

[Ref: Saheeh Bukhaari (7145)]

[1] Meaning they were guided away from the hell fire by Allah towards the proper deen and obedience to allah and his messenger. i.e they were saved from one type of fire (i.e the hell fire) and directed towards the prophet (s.a.w) so why would they then again jump into the fire when they were running away from it during their pre-islamic days? 

[2] See: http://the-finalrevelation.blogspot.com/2012/09/warning-there-is-no-obedience-in.html

3.16) 

When 'Ali ibn Abu Talib was in Yemen, a tragic case was brought to him for settlement. Some people had dug a pitfall to hunt a lion. When the lion fell in, many people gathered on the brink. By chance, one man slipped into the pitfall and gripped another person so that he might be rescued. The latter grabbed someone else who seized another one. All four men fell into the pitfall and were killed by the lion. 'Ali announced his decree that those who were standing on the brink should pay compensation to the kindred of the slain. He fixed one fourth of blood money as indemnity for the first slain, one-third for the second, half for the third, and full blood money (one hundred camels) for the fourth one. Later on somebody mentioned it to the Prophet who smiled and approved it
[Ref: Ibn al-Qayyim in  I ‘Lam al-Muwaqqi’in (2/58); and see the seerah of `Ali by Shaykh `Ali Muhammad as-Sallabi Vol. 1 Page 198]

The full story is as follow (taken from as-salabi) :
It was narrated from Hanash that 'Ali (^) said: The Messenger of Allah (^jg) sent me to Yemen, and they came to some  people who had built a trap for a lion. 509 They began to push one 'Ali ibn Abi Tdlib in Makkah  another, and one man fell, so he grabbed onto another one, who then grabbed onto another one 510 , until all four of them ended up in the  trap, and the lion wounded them. Then a man came and killed the lion  with a spear, and they all died of their wounds. The next of kin of the  first man went to the next of kin of the last man, and they took out  weapons to fight, so 'Ali (^) came to them right away 511 and said: "Do you want to fight one another when the Messenger of Allah (3jg|) is still alive? I wdl judge between you, and if you agree, then that is the verdict. Otherwise, keep away from one another until you go to the Prophet (|g), and he will be the one who judges between you, then whoever transgresses after that will have no right. Collect from the tribes of those who dug the hole one-fourth of the amount of compensation for a life, one-third of the amount, one-half of the  amount and a complete amount. For the first man (who fell in), there will be one-fourth because he caused the death of the one who came after him; for the second one, there is one third; for the third, there is half; and for the fourth, there is the complete amount." They refused to accept that, so they went to the Prophet (j|j) when he was at Maqam Ibraheem and told him the story, and he said: "I will judge between you." One of the people said: 'Ali (^) has already passed judgement. They told him about it, and the Messenger of Allah (H|) approved it

3.17) 


Once during the military expedition of Dhat al-Salasil, 'Amr ibn Al-'As happened to have a nocturnal emission. The weather was extremely cold. Fearing his death due to the intense chill, he did not take a bath for prayers. Instead, he performed ablution with dust and led his companions in prayer. On their return to Madeenah, somebody informed the Prophet about it. He said, “O 'Amr did you lead your companions in prayer while you were in the state of grave impurity?” In reply, 'Amr expressed his excuse and supported his action with a verse of the Qur`an which reads: “Do not kill yourselves, Allah has been most Merciful to you(4:29)”. Hearing this explanation, the Prophet smiled and did not say any word against his reasoning

[Ref: Narrated by Abu Dawood, 334; classed as saheeh by al-Albaani in Saheeh Abi Dawood ; Also by Bukhaari in his Jaami` as-saheeh.]

3.18) 


Once, during a journey, 'Umar ibn al-Khattab and 'Ammar ibn Yasir happened to have nocturnal emissions, and could not get water to take baths. When the prayer time came, 'Umar did not pray and delayed it until he could have access to water. But 'Ammar rolled himself on the ground to perform tayammum (ablution with dust) and offered the prayer. {He exercised his ijtihad and compared through analogy the tayammum for grave impurity with the tayammum for minor impurity}. On return to Madeenah, he mentioned to the Prophet who said, “It is enough for you to strike the ground with your hands, then blow into them, then wipe up your face and the palms of your hands with them

[Ref: Saheeh al-Bukhaari] 

3.19) 


Once the Messenger of Allah sent a military expedition to the western sea coast in order to watch the Quraysh's caravan. They were three hundred men under the command of Abu 'Ubaydah ibn al-Jarrah. They stayed at the seashore for half a month and were struck with severe hunger. One day the sea threw out a dead fish so big, the like of which they had never been seen, and it was called "Anbar''. They did not have any instructions from the Prophet about the lawfulness of this huge animal. The commander Abu 'Ubaydah exercised his ijtihad and pronounced it lawful and asked them to eat of it. They ate of it for half-a-month. On arrival at Madeenah they informed the Prophet about it. He said, “Eat of it, for it is a food which Allah has brought out for you.” Then he said, “Feed us if you have some of it.” There upon one of them gave him a portion which he ate

[Ref: Saheeh al-Bukhaari (5493)]


3.20) 

Once some of the Prophet's Companions went on a journey until they reached a certain Arabian tribe. They stopped there for rest, and asked them for hospitality, which the tribe refused. The chief of the tribe was then by chance bitten by a snake. His tribesmen tried their best to cure him but it was in vain. One of them said, “Nothing is benefiting him. If you go to the people who stopped here, some of them might have something useful.” They went to the Prophet's Companions and told them that their chief had been bitten by a snake, and they had tried everything but it was in vain. Then they asked them if they had any useful thing. One of the Companions replied, “Yes, by God , I can use a spell but when we asked you for hospitality you refused, now I am not going to use a spell for your chief unless you fix a remuneration for it. They agreed to pay them a flock of sheep. Upon this the Companion started the recitation of the Qur'an's  first chapter "Alhamdu lillahi Rabbil 'alameen'', and puffed over the chief who recovered instantly as if he was released from a chain; he started walking and there was not a bit of sickness with him. The tribesmen paid what they had agreed to pay. Some of the Companions suggested to divide the earnings, but the one who used the spell said, “Do not do it until we come to the Prophet, and tell him the whole story, and then wait for his orders.” So they went to the Messenger of Allah and reported it to him. He said to that one  who used the spell, “How did you come to know that the first chapter of the Qur'an was a spell?” Then he added, “You people have done the right thing, divide the earnings, and assign a share for me as well.” Then the Prophet smiled

[Ref: Saheeh al-Bukhaari]

3.21) 

During the last year of the Prophet's Makkan life, the city of Madeenah became the base for the Islamic movement. In a very short period of time Islam grew to be one of the two major religions of that city; the other was Judaism. The majority of the two pagan tribes of Madeenah, Banu Khazraj and Banu Aws, had embraced Islam. One day some devoted Muslims of Madeenah held a meeting and discussed the need for a weekly fixed day for special religious services. They did not have any divine instruction in this regard and did not have access to the Prophet because he had not yet migrated and was still at Makkah. They said to each other that the Jews had a fixed weekly day, Saturday, in which they get together, just as the Christians had Sunday. Let the Muslims have a fixed day also on which they should meet together every week, remember Allah, offer prayers, and pay thanks to Allah. They selected the day of Friday for this purpose, and assembled to As'ad ibn Zurarah, a very knowledgeable companion of the Prophet, who led them in the prayer which was the first Friday prayer in the history of Islam
[Ref:  Al-Alusi -  Bulugh al-‘Arab fi Ma’rifat Ahwal al-‘Arab, vol. 1  p. 274; Ibn Hisham, Sirat al-Nabi, vol. 2, p. 296. Even in the pre-Islamic era, Friday had been selected as the day for special gathering. The Quraysh of Mecca assembled every Friday in front of Ka’b ibn Luwayy, the grand father of the Prophet Muhammad (PBUH), who delivered to them a lecture. See al-Alusi, Bulugh al-‘Arab, vol.1 p.272]

Another hadeeth states :
AbdurRahman ibn Ka'b ibn Malik said: When Ka'b ibn Malik heard the call to prayer on Friday, he prayed for As'ad ibn Zurarah. I asked him: What is the matter that when you hear the call to prayer, you pray for As'ad ibn Zurarah? He replied: This is because he held the Friday prayer for the first time for us at Hazm an-Nabit of Harrah belonging to Banu Bayadah in Naqi', called Naqi' al-Khadumat. I asked him: How many were you at that time ? He said: Forty.

[Ref: Sunan Abi Dawood (1069)]

3.22) 

Anas reported that a person was charged with fornication with the slavegirl of Allah's Messenger (may peace be upon him). Thereupon Allah's Messenger (may peace be upon him) said to 'Ali: Go and strike his neck. 'Ali came to him and he found him in a well making his body cool. 'Ali said to him: Come out, and as he took hold of his hand and brought him out, he found that his sexual organ had been cut. Hadrat 'Ali refrained from striking his neck. He came to Allah's Apostle (may peace be upon him) and said: Allah's Messenger, he has not even the sexual organ with him.

[Ref:  Sahih Muslim Chapter 11, Book 37, Number 6676. Imam Nawawi made the chapter with the name of "THE EXONERATION OF THE SLAVEGIRL OF ALLAH'S APOSTLE (MAY PEACE BE UPON HIM) FROM A FALSE CHARGE"]
So here we come to know that Prophet peace be upon him was not witnessing or Present that is why Prophet peace be upon him did not know about the case of slave girl. Next hadith clears this issue. When Ali ra told Prophet peace be upon him that he has not sexual organ, Prophet peace be upon him said to Ali (r.a) (agreeing with his ijtihaad)
الشاهد يرى ما لا يرى الغائب

The absent can not see what the witness see. 

[Ref: Musnad Ahmad 1/83, Ziaa in al-Mukhtarah 1/248, Silsilah as-Saheeha no: 1904]

3.23) 


مسلم بن أبي بكرة عن أبيه أن نبي الله صلى الله عليه وسلم مر برجل ساجد وهو ينطلق إلى الصلاة فقضى الصلاة ورجع عليه وهو ساجد فقام النبي صلى الله عليه وسلم فقال من يقتل هذا فقام رجل فحسر عن يديه فاخترط سيفه وهزه ثم قال يا نبي الله بأبي أنت وأمي كيف أقتل رجلا ساجدا يشهد أن لا إله إلا الله وأن محمدا عبده ورسوله ثم قال من يقتل هذا فقام رجل فقال أنا فحسر عن ذراعيه واخترط سيفه وهزه حتى أرعدت يده فقال يا نبي الله كيف أقتل رجلا ساجدا يشهد أن لا إله إلا الله وأن محمدا عبده ورسوله فقال النبي صلى الله عليه وسلم والذي نفس محمد بيده لو قتلتموه لكان أول فتنة وآخرها

Muslim ibn Abi bakr from his father (Abi Bakr) narrates that , Once the Prophet (s.a.w) went for prayer and found a man (on the way lying down) prostrating. Upon his return the man was still prostrating. The Messenger of Allah stood there and said : Who will kill this (man)? A man then stood up (in obedience to the Messenger of allah), straightened his arms , holding his sword (in determination and coming towards that man). Then he said Oh Prophet of Allah,  may my father and mother be sacrificed for you; how can I kill someone who is prostrating and testifies that there Is none worthy of worship  but Allah and Muhammad is his slave and Messenger”? 

The prophet repeated : “ Who will kill this (man)? “ Another man stood up, straightened his arms , holding his sword (in determination to obey the Messenger) but even his hands hesitated (or shivered) and he said : “ Oh Prophet of Allah; how can I kill someone who is prostrating and testifies that there Is none worthy of worship  but Allah and Muhammad is his slave and Messenger”?

Therefore the Messenger of Allah (s.a.w) said : “ By he , in whose hands my soul is, if you were to kill this man, then it would be the first and last of trials” 

[Ref: Musnad Ahmad (19918) ; Saheeh]

3.24) 

Hushaym [ibn Bushayr] narrated to us from abu az-Zubayr from Jaabir .:tce. who said ,

We were under the leadership of abu (Ubaydah during an expedition on which the Prophet sent us, and we ran out of supplies. We passed by a whale that had been washed ashore, and we wanted to eat from it, but abu (Ubaydah did not allow us to do so, [saying it was dead meat]. Then later on he said, 'We are the envoys of the Messenger of Allah ~ and [travelling] for the sake of Allah, so eat [from it]'. So we ate from it for several days. When we came back, we told the Messenger of Allah ~ about that and he said, 'If you still have any of it left, give it to us."'


[Ref: (Musnad Ahmad, Vol. 3, p . 304. The isnaad of this hadeeth is saheef1 according to the conditions set by Muslim.] 


4) THE IJTIHAAD OF THE SAHAABA AFTER THE DEATH OF THE PROPHET (sallalahu `alayhi wa sallam)



4.1)

 An example  of Ijtihad is what Ali (ra) said regarding punishment (Hadd) for the crime of drinking alcohol. He said: ‘Whoever drinks it will speak nonsense, and who did so would fabricate lies, so I see that he must be punished like the fabricator of lies.’  Ali (ra) made an analogy between drinking and fabrication because he understood from Shar’a that it could be considered that which is likely to happen to be the same as that which actually happens. All these are examples of Ijtihad from the time of the Sahaba and Ijma’a as-Sahaba on the issue of Ijtihad. The fact that the Companions resorted to ijtihad in the absence of a text is established by continuous testimony (tawatur). 

[Ref: See Ghazali's Mustasfa, 2/106; Ibn al-Qayyim, I'lam, I / 176; Kassab, Adwa', p. 19.]

4.2) 


It was narrated from Shuraih that:

ﺃﺧﺒﺮﻧﺎ ﻣﺤﻤﺪ ﺑﻦ ﺑﺸﺎﺭ ﻗﺎﻝ ﺣﺪﺛﻨﺎ ﺃﺑﻮ ﻋﺎﻣﺮ ﻗﺎﻝ ﺣﺪﺛﻨﺎ ﺳﻔﻴﺎﻥ ﻋﻦ ﺍﻟﺸﻴﺒﺎﻧﻲ ﻋﻦ ﺍﻟﺸﻌﺒﻲ ﻋﻦ ﺷﺮﻳﺢ ﺃﻧﻪ ﻛﺘﺐ ﺇﻟﻰ ﻋﻤﺮ ﻳﺴﺄﻟﻪ ﻓﻜﺘﺐ ﺇﻟﻴﻪ ﺃﻥ ﺍﻗﺾ ﺑﻤﺎ ﻓﻲ ﻛﺘﺎﺏ ﺍﻟﻠﻪ ﻓﺈﻥ ﻟﻢ ﻳﻜﻦ ﻓﻲ ﻛﺘﺎﺏ ﺍﻟﻠﻪ ﻓﺒﺴﻨﺔ ﺭﺳﻮﻝ ﺍﻟﻠﻪ ﺻﻠﻰ ﺍﻟﻠﻪ ﻋﻠﻴﻪ ﻭﺳﻠﻢ ﻓﺈﻥ ﻟﻢ ﻳﻜﻦ ﻓﻲ ﻛﺘﺎﺏ ﺍﻟﻠﻪ ﻭﻻ ﻓﻲ ﺳﻨﺔ ﺭﺳﻮﻝ ﺍﻟﻠﻪ ﺻﻠﻰ ﺍﻟﻠﻪ ﻋﻠﻴﻪ ﻭﺳﻠﻢ ﻓﺎﻗﺾ ﺑﻤﺎ ﻗﻀﻰ ﺑﻪ ﺍﻟﺼﺎﻟﺤﻮﻥ ﻓﺈﻥ ﻟﻢ ﻳﻜﻦ ﻓﻲ ﻛﺘﺎﺏ ﺍﻟﻠﻪ ﻭﻻ ﻓﻲ ﺳﻨﺔ ﺭﺳﻮﻝ ﺍﻟﻠﻪ ﺻﻠﻰ ﺍﻟﻠﻪ ﻋﻠﻴﻪ ﻭﺳﻠﻢ ﻭﻟﻢ ﻳﻘﺾ ﺑﻪ ﺍﻟﺼﺎﻟﺤﻮﻥ ﻓﺈﻥ ﺷﺌﺖ ﻓﺘﻘﺪﻡ ﻭﺇﻥ ﺷﺌﺖ ﻓﺘﺄﺧﺮ ﻭﻻ ﺃﺭﻯ ﺍﻟﺘﺄﺧﺮ ﺇﻻ ﺧﻴﺮﺍ ﻟﻚ ﻭﺍﻟﺴﻼﻡ ﻋﻠﻴﻜﻢ

He wrote to 'Umar, to ask him (a question), and 'Umar wrote back to him telling him: "Judge according to what is in the Book of Allah. If it is not (mentioned) in the Book of Allah, then (judge) according to the Sunnah of the Messenger of Allah [s.a.w]. If it is not (mentioned) in the Book of Allah or the Sunnah of the Messenger of Allah [s.a.w], then pass judgement according to the way the righteous passed judgement. If it is not (mentioned) in the Book of Allah, or the Sunnah of the Messenger of Allah [s.a.w], and the righteous did not pass judgement concerning it, then if you wish, go ahead (and try to work it out by yourself) or if you wish, leave it. And I think that leaving it is better for you. And peace be upon you."

[Ref: Sunan an-Nasa`ee (5399); Hasan] 


4.3) 


حَدَّثَنَا إِسْمَاعِيلُ بْنُ مُوسَى الْفَزَارِيُّ، حَدَّثَنَا شَرِيكٌ، عَنْ أَبِي حُصَيْنٍ، عَنْ عُمَيْرِ بْنِ سَعِيدٍ، عَنْ عَلِيٍّ، رضى الله عنه قَالَ لاَ أَدِي - أَوْ مَا كُنْتُ لأَدِيَ - مَنْ أَقَمْتُ عَلَيْهِ حَدًّا إِلاَّ شَارِبَ الْخَمْرِ فَإِنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم لَمْ يَسُنَّ فِيهِ شَيْئًا إِنَّمَا هُوَ شَىْءٌ قُلْنَاهُ نَحْنُ .

’Ali said:

I shall not pay blood-money or (he said) : I am not going to pay blood-money for him on whom I inflicted the prescribed punishment except for the one who drank wine, for the Messenger of Allah (ﷺ) did not prescribe anything definite. It is a thing which we have decided (by agreement) ourselves.


[Ref : Sunan Abi Dawud 4486. Saheeh] 


4.4) 


Sometimes they used their ijtihaad to hide the knowledge and sometimes they used it to spread the knowledge. 

8 – Muhammad bin al-‘Alaa narrated to us, Ibn Idrees narrated to us, from Mis’ar, from Abu Husayn, he said: Mu’aawiyah (radiallah anhu) said: “Who is more worthy of this matter (of khilafah) than us?” The narrator said, Ibn Umar was also present there. He said: “I wanted to say that more worthy than you is the one whom you and your father struck, but then I remembered the warning of Allaah against disputing so I remained silent lest my speech should become a trial” 


[Ref: Juzz al-Humayree hadeeth 8]
Abu Hazim reported: I was standing behind Abu Huraira and he was performing ablution for prayer. He extended washing his hands up into his armpit. I said to him, “O Abu Huraira, what is this ablution?” He said, “O tribe of Farukh, you are here and had I known you were here, I would not have performed ablution like this, but I heard my dear friend, peace and blessings be upon him, say: The adornment of a believer will reach wherever his ablution reaches.”

[Ref:  Sahih Muslim 250]

107 - حَدَّثَنَا أَبُو خَيْثَمَةَ ثنا حَجَّاجُ بْنُ مُحَمَّدٍ، عَنِ ابْنِ جُرَيْجٍ، أَخْبَرَنِي عَطَاءٌ، أَنَّهُ سَمِعَ أَبَا هُرَيْرَةَ، وَالنَّاسُ يَسْأَلُونَهُ يَقُولُ: " لَوْلَا آيَةٌ أُنْزِلَتْ فِي سُورَةِ الْبَقَرَةِ لَمَا أَخْبَرْتُ بِشَيْءٍ، فَلَوْلَا أَنَّهُ قَالَ {إِنَّ الَّذِينَ يَكْتُمُونَ مَا أَنْزَلْنَا مِنَ الْبَيِّنَاتِ وَالْهُدَى مِنْ بَعْدِ مَا بَيَّنَّاهُ لِلنَّاسِ فِي الْكِتَابِ أُولَئِكَ يَلْعَنُهُمُ اللَّهُ وَيَلْعَنُهُمُ اللَّاعِنُونَ} [البقرة: 159] "

Ibn Juraij reported: 'Ataa informed me that he heard Abu Hurairah say while he was being asked questions by the people: 'If it were not for an ayah that was revealed in Surah Al-Baqarah, I would not have informed you of anything. If it were not that He said: 'Verily, those who conceal what We have sent down from the clear evidences and the guidance, after We have explained it clearly to the people in the Book, they are the ones cursed by Allaah and cursed by those who curse [Surah Baqrah 159]

[Kitaab al-`Ilm of Abi Khaithama an-Nasa`ee (107). Its chain of narration is saheeh according to the standards of the two Shaikhs. Al-Bukhaaree (1/42) has
transmitted it from the path of Al-A'araj on Abu Hurairah]

4.5) 


On the authority of Abdul-llaah bin Al-’Abbaas-Allaah is pleased with them-: `Umar bin Al-Khattaab departed for Shaam and when he reached Sargh (a village in the edge of Shaam near Hijaaz), the commanders of the (Muslim) army, Abu ‘Ubaidah bin Al-Jarraah and his companions met him and told him that an epidemic had broken out in Shaam. `Umar said, “Call for me the early emigrants (Muhajirs).” So `Umar called them, consulted them and informed them that an epidemic had broken out in Sham. Those people differed in their opinions. Some of them said, “We have come out for a purpose and we do not think that it is proper to give it up,” while others said (to `Umar), “You have along with you. other people and the companions of Allaah’s Messenger- peace is upon him- so do not advise that we take them to this epidemic.” `Umar said to them, “Leave me now.” Then he said, “Call the Ansaar for me.” I called them and he consulted them and they followed the way of the emigrants and differed as they did. He then said to them, Leave me now,” and added, “Call for me the old people of Quraish who emigrated in the year of the Conquest of Mecca.” I called them and they gave a unanimous opinion saying, “We advise that you should return with the people and do not take them to that (place) of epidemic.” So `Umar made an announcement, “I will ride back to Madinah in the morning, so you should do the same.” Abu ‘Ubaidah bin Al-Jarraah said (to `Umar), “Are you running away from what Allaah had ordained?” `Umar said, “Would that someone else had said such a thing, O Abu ‘Ubaidah! Yes, we are running from what Allaah had ordained to what Allaah has ordained. Don’t you agree that if you had camels that went down a valley having two places, one green and the other dry, you would graze them on the green one only if Allah had ordained that, and you would graze them on the dry one only if Allaah had ordained that?” At that time `Abdur-Rahmaan bin `Awf, who had been absent because of some job, came and said, “I have some knowledge about this. I have heard Allah’s Messenger-peace is upon him- saying, ‘If you hear about it (an outbreak of plague) in a land, do not go to it; and if plague breaks out in a country where you are staying, do not run away from it”. `Umar thanked Allaah and returned to Madinah.

[Ref: This hadeeth is in Bukhaaree no 5729 and Muslim no 2219.]
An-Nawawee rahimahul-llaah extracted few benefits from this hadeeth in Sharh Saheeh Muslim. From them:
1-It is recommended to consult people of knowledge and sound opinion at times of events,  and to give precedence to those who came early.

2-The dwelling of people in their due positions and giving precedence to people of virtue over others and to start with them.

3-The permissibility of striving (to reach an opinion) at times of war.

4-The permissibility of accepting narration from single man, for that they accepted the narration of Abdur-Rahmaan.

5-The plausibility of analogy and permissibility of acting upon it.

6-The scholar can initiate the knowledge he possesses [to others] before he is asked like Abdur-Rahmaan did.


7-Avoiding causes of destruction.

4.6) 

Mu’awiyyahs (RadhiAllaahu Anhu) ijtihad was that if a claimant does not have 2 witnesses then one witness would suffice with the claimant taking an oath. Mu’awiyyah (RadhiAllaahu Anhu) was not alone in this ijtihad but the rightly guided Khulafa, the 7 jurists of Madinah and also the fatwa of the three imams, namely Malik, Shafi and Ahmad. 

[Ref: Refer to Nayl al-Awtaar 8/290] 

Imam Nawawi stated, “The majority of the scholars of islam, the companions and the taboeen and the scholars after them in the various lands also concluded the same. This is also the fatawa of Abu Bakr, Ali (RadhiAllaahu Anhuma), Umar bin Abdul Azeez, Malik, Shafie, Ahmad, the jurists of madinah and all the scholars of hijaz and most of the scholars of the different lands also agreed with this ijtihad and verdict.” 

[Ref:  Sharh Sahih Muslim 2/74).

we don't know if muawiyah r.a knew this hadeeth or not 

أَنَّ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ «قَضَى بِشَاهِدٍ، وَيَمِينِ الطَّالِبِ» . وَقَضَى بِهِمَا عَلِيٌّ عَلَيْهِ السَّلَامُ بَيْنَ أَظْهُرِكُمْ

 Abu Kurayb narrated to us Ibn Idrees narrated to us, from Yahya bin Sa’eed, from Ja’far bin Muhammad, from his father (Abu Ja’far Muhammad al-Baaqir), that the Messenger of Allaah (sallallaahu alayhi wasallam) passed judgement on the basis of a single witness and an oath from the claimant.

(Imaam Baaqir said) And Ali (peace be upon him) has also ruled this way amongst you. 

[Ref: Juzz al-Humayree hadeeth 9;  Saheeh See the tahkeeq of the translator of this book raza hasan ] 

4.7) 

“A grandmother came to Abu Bakr Siddiq and asked him for her inheritance. Abu Bakr said to her: ‘You have nothing according to the Book of Allah, and I don’t know of anything for you according to the Book of Allah, and I don’t know of anything for you according to the Sunnah of the Messenger of Allah (ﷺ). GO BACK UNTIL I ASK THE (knowledgable) PEOPLE.(of what to do in this case so they can exercise their Ijtihaad)’

So he asked the people and Al-Mughirah bin Shu’bah said: ‘I was present with the Messenger of Allah (ﷺ) and he gave her (the grandmother) one sixth.’ Abu Bakr said: ‘Is there anyone else with you (who will testify to what you say)?’

Muhammad bin Maslamah Al-Ansari stood up and said something like what Mughirah bin Shu’bah had said. So Abu Bakr applied it in her case.”

[Ref: Tirmidhi, no. 2100 and 2101, Abu Dawud, no. 2894, Ibn Majah, no. 2724, Musnad Ahmad 4/226, Muwatta Malik, no. 1098; This hadeeth shows that Abu Bakr (r.a) also undertook the permissibility of Ijtihaad) 

4.8) 

حَدَّثَنَا ابْنُ السَّرْحِ، قَالَ وَجَدْتُ فِي كِتَابِ خَالِي عَبْدِ الرَّحْمَنِ بْنِ عَبْدِ الْحَمِيدِ عَنْ عُقَيْلٍ أَنَّ ابْنَ شِهَابٍ أَخْبَرَهُ أَنَّ عَبْدَ اللَّهِ بْنَ عَبْدِ الرَّحْمَنِ بْنِ الأَزْهَرِ أَخْبَرَهُ عَنْ أَبِيهِ قَالَ أُتِيَ النَّبِيُّ صلى الله عليه وسلم بِشَارِبٍ وَهُوَ بِحُنَيْنٍ فَحَثَى فِي وَجْهِهِ التُّرَابَ ثُمَّ أَمَرَ أَصْحَابَهُ فَضَرَبُوهُ بِنِعَالِهِمْ وَمَا كَانَ فِي أَيْدِيهِمْ حَتَّى قَالَ لَهُمُ ‏ "‏ ارْفَعُوا ‏"‏ ‏.‏ فَرَفَعُوا فَتُوُفِّيَ رَسُولُ اللَّهِ صلى الله عليه وسلم ثُمَّ جَلَدَ أَبُو بَكْرٍ فِي الْخَمْرِ أَرْبَعِينَ ثُمَّ جَلَدَ عُمَرُ أَرْبَعِينَ صَدْرًا مِنْ إِمَارَتِهِ ثُمَّ جَلَدَ ثَمَانِينَ فِي آخِرِ خِلاَفَتِهِ ثُمَّ جَلَدَ عُثْمَانُ الْحَدَّيْنِ كِلَيْهِمَا ثَمَانِينَ وَأَرْبَعِينَ ثُمَّ أَثْبَتَ مُعَاوِيَةُ الْحَدَّ ثَمَانِينَ ‏.‏

Narrated Abdur Rahman ibn al-Azhar:

A man who had drunk wine was brought before the Prophet (ﷺ) when he was in Hunayn. He threw some dust on his face. He then ordered his Companions and they beat him with their sandals and whatever they had in their hands. He then said to them: Leave him, and they left him. The Messenger of Allah (ﷺ) then died, and AbuBakr gave forty lashes for drinking wine, and then Umar in the beginning of his Caliphate inflicted forty stripes and at the end of his Caliphate he inflicted eighty stripes. Uthman (after him) inflicted both punishments, eighty and forty stripes, and finally Mu'awiyah established eighty stripes.

[Ref: Sunan Abi Dawud 4488 Another narration wherein ali also says this and says “ Abu Bakr gave 40, umar gave 80 and all of it is sunnah” ] 

4.9) The companions exercised their ijtihaad to even wage a war 


When Rasool Allah (s.a.w) breathed his last and Abu Bakr was appointed as his successor (Caliph), those amongst the Arabs who wanted to become apostates became apostates. 'Umar b. Khattab said to Abu Bakr: Why would you fight against the people, when RasulAllah (saw) declared: I have been directed to fight against people so long as they do not say: There is no god but Allah, and he who professed it was granted full protection of his property and life on my behalf except for a right? His (other) affairs rest with Allah. Upon this Abu Bakr said: By Allah, I would definitely fight against him who severed prayer from Zakat, for it is the obligation upon the rich. By Allah, I would fight against them even to secure the cord (used for hobbling the feet of a camel) which they used to give to The prophet (as zakat) but now they have withheld it. Umar b. Khattab remarked: By Allah, I found nothing but the fact that Allah had opened the heart of Abu Bakr for (perceiving the justification of) fighting (against those who refused to pay Zakat) and I fully recognized that the (stand of Abu Bakr) was right.” 


[Ibnu'l Jawzi, Muntazam 4/76; Bukhari; Muslim; Abu Dawud 1556; Nasai, Mujtaba 5/14, 15; Tirmidhi 2733; Balazuri, Futuhu'l Buldan 1/113; Ahmad, Musnad; Bayhaqi, S. Kubra; Hakim 2/522; Abdurrazzak no 6916, 10020, 18718; Hatib 9/315, 10/464, 12/201; Bukhari Tarihk Kaber 3/367, 7/35; Ibnu Abi Shayba 10/122, 123, 12/374, 376, 377, 380; Tabarani Kaber 2/198, 347, 6/161, 8/382; Said b. Mansur Sunan 2901, 2933 etc]


4.10)


Narrated Ibn `Umar: When these two towns (Basra and Kufa) were captured, the people went to `Umar and said, "O the Chief of the faithful believers! The Prophet (ﷺ) fixed Qarn as the Miqat for the people of Najd, it is beyond our way and it is difficult for us to pass through it." He said, "Take as your Miqat a place situated opposite to Qarn on your usual way. So, he fixed Dhatu-Irq (as their Miqat)."

[Ref: Saheeh al-Bukhari 1531] 


4.11) 

Narration that Umar increased (the amount of Jizyah) that which the Messenger of Allah
fixed, but he (`Umar) did not decrease it. 

[Ref: Sahih, Maalik (1/279/43)]


 وَقَالَ ابْنُ عُيَيْنَةَ عَنِ ابْنِ أَبِي نَجِيحٍ: قُلْتُ لِمُجَاهِدٍ مَا شَأْنُ أَهْلِ الشَّأْمِ عَلَيْهِمْ أَرْبَعَةُ دَنَانِيرَ، وَأَهْلُ الْيَمَنِ عَلَيْهِمْ دِينَارٌ؟ قَالَ: جُعِلَ ذَلِكَ مِنْ قِبَلِ الْيَسَارِ.

Narration of Ibn Abu Najeeh, I asked Mujaahid, „Why are the Syrians charged four Dinaars
as Jizyah while the Yemenites are charged one Dinaar only?‟ He replied, „This (tax) has
been fixed on the basis of the degree of prosperity.‟ 

[Sahih, Bukhaari (2/291)]

4.12) 

 The Khulafa Rashideen of Islam imposed compensation  on the manufacturers, makers and producers if they lose anything of the customers, because, they often, neglect the preservation of the deposits of the people who are in dire need to their services, because, Imposing compensation on the artisans saves the interests of the people and preserves their rights.  `Ali (may Allah be pleased with him) said in this issue: "Nothing can make the people right, but this."  He means imposing compensation.

[Ref: al-`Itisaam of ash-Shatibi] 

4.13) 

(خبر الأحنف بن قيس: " أن عمر شرط على أهل الذمة ضيافة يوم وليلة , وأن يصلحوا القناطر وإن قتل رجل من المسلمين بأرضهم فعليهم ديته

Narration of Al-Ahnaf bin Qays: “Umar put a condition upon the people living in a Muslim country to receive (Muslims) as guests for a day and night and also that they should repair the bridges. If a Muslim is killed in their land they will have to pay his blood money.” Ahmad narrated it

[Ref: Ahmad ; Sheikh Saalih said in Al-Takmeel: I found its chain from Ahmad in Maaji of Al-Khilaal. Ibn Al-Qayyim also mentioned it in Ahkaam-u-Ahlidh-dhimmah.] 

(خبر أسلم: " أن أهل الجزية من أهل الشام أتوا عمر رضى الله عنه فقالوا: إن المسلمين إذا مروا بنا كلفونا ذبح الغنم والدجاج فى ضيافتهم , فقال: أطعموهم مما تأكلون ولا تزيدوهم على ذلك

Narration of Aslam. “The people of Syria who used to pay tax came to Umar and said, „Indeed, when the Muslims pass by us they force us to slaughter a goat or chicken for them for their hospitality.” He said, „Feed them out of what you eat and not more than that

[Ref: Sheikh Saalih said in Al-Takmeel: Al-Alaabi did not mention any reference for it, while it is a part of a renowned narration from Aslam which is a correct narration. (Al-Takmeel:69)]

4.14) 


 (خبر إسماعيل بن عياش عن غير واحد من أهل العلم قالوا: " كتب أهل الجزيرة إلى عبد الرحمن بن غنم إنا شرطنا على أنفسها أن لا نتشبه بالمسلمين فى لبس قلنسوة ولا عمامة ... الخ


Narration of Ismaa`el bin Ayaash reported from many knowledgeable people, they said,
„The people of Al-Jazeerah (who were ahl adh-dhimma) wrote to `Abdur-Rahmaan: We are bound with the condition that we will not copy the Muslims in wearing hats and turbans………..‟

[Ref: Sheikh Saalih said: I found this in Ahkaam-u-Ahlil-Milal of Al-Khalal and Ibn Al-Qayyim also narrated it from Al-Khalaal in Ahkaam-u-Ahlidh-dhmmah. Ibn Al-Qaayim said commenting on the narration: “The popularity of these conditions suffice for its chain, because all the Imams accepted these narrations, mentioned them in their books and
took them as proof. These conditions stipulated by `Umar always remained on their tongues and in their books and the later caliphs after `Umar enforced them and acted accordingly. [Al-Takmeel:70-71]] 

(وعن ابن عباس من قوله: " أيما مصر مصرته العرب فليس للعجم أن يبنوا فيه بيعة ولا يضربوا فيه ناقوسا ولا يشربوا فيه خمرا ولا يتخذوا فيه خنزيرا 


4.15) 


Ibn `Abbas (radhiallahu `anhu) narrated : 

Any city which has been established by the Arabs (Muslims), non-Arabs are not allowed to build a place of worship, to blow trumpets, to drink alcohol, or keep pigs there

[Ref: narrated by Abu Ubayd in Am'waal (269) and Al-Bayhaqee (9/201-202); Weak with this chain but the conditions are widely known and accepted ] 


4.16) 


 (خبر أن عمر: " أمر بجز نواصى أهل الذمة وأن يشدوا المناطق وأن يركبوا الأكف بالعرض "

`Umar (radhiallahu `anhu) ordered the disbelievers (living in a Muslim country) to keep the forelocks shaved, to wear the belts, and they should ride animals keeping both legs to one side and back to the other side.

[Ref: Narrated by Khalal ; Shaykh Albaanee said this chain is weak] 



4.17) 



(1777) - (حديث جابر: " بعنا أمهات الأولاد على عهد رسول الله صلى الله عليه وسلم وعهد أبى بكر فلما كان عمر نهانا فانتهينا " رواه أبو داود (2/131) .

Hadeeth of Jaabir : “We sold slave-mothers during the time of the Messenger of Allah and of Abu Bakr . When Umar was in power, he forbade us and we stopped.”  [1] 

[Ref: Abu Dawood (3954) and Ibn Habbaan (1216)]

Maybe the other sahaaba didn't know of the prophetic prohibition : 

حديث ابن عمر مرفوعا: " نهى عن بيع أمهات الأولاد وقال: لا يبعن ولا يوهبن ولا يورثن , يستمتع منها السيد مادام حيا فإذا مات فهى حرة " رواه الدارقطنى ورواه مالك فى الموطأ والدارقطنى من طريق آخر عن ابن عمر عن عمر موقوفا (2/130) 


[1] Hadeeth of Ibn `Umar as Marfu: He forbade the sale of female slaves who gave birth to a child by their masters. He said, „They must not be sold, neither be gifted nor be taken as inheritance.‟ The master enjoys her as long as he lives and she is free when he dies. Al-Daaraqutnee and Maalik narrated it in „Al-Muatta‟ and Al-Daaraqutnee narrated through another way from Ibn Umar on the authority of Umar as Mawqoof. [Shaykh Albaanee said It is Weak as Marfu]


4.18) 


 شاورنى عمر فى أمهات الأولاد فرأيت أنا وعمر أن أعتقهن فقضى به عمر حياته وعثمان حياته , فلما وليت رأيت أن أرقهن " (2/131) .

Sa`eed narrated from Ubaydah through his own chain, he said: `Ali addressed the people and said: `Umar discussed with me the sale of the slave-mothers. `Umar and I thought to set them free. So `Umar gave this decision during his life and then Uthmaan in his life, but when I was appointed as leader, I thought to keep them as slaves‟.” 

[Ref: Saheeh, Al- Bayhaqee (10/348)]

I'll keep adding more in sha allah as and when i get the time. For now this article shows the importance and validity of Ijtihaad and Qiyaas.