Re: Ijtehad..
not quite… at the very least the condition “it cannot be found by analogy to something in the Quran or Sunnah” is misplaced here…
in its loosest meaning, ijtihad (lit. struggle or effort) applies to EVERY process by which a qualified jurist (or even someone unqualified) considers the source texts to arrive at a ruling… a jurist deciphering and implementing the laws of inheritance as stated in the Qur’an for example is in fact applying ijtihad, i.e. he is making an “effort”, even though the answer to his ijthad is “found directly in the Quran” (the verses on inheritance in Surah al Nisa)
a mujtahid (one who is versed in ijtihad) therefore isn’t so named just because he resolves “new” queries on which the source materials (e.g. Qur’an) are silent… he also employs ijtihad to make “independent” legal decisions by extracting them right out of the Qur’an, Sunnah etc… an example: the matter of whether one is obliged to recite Surah al Fatiha in every unit of every salah is a point of difference between say the Hanafi and Hanbali schools… their differences are based on their understanding of certain Qur’anic and hadith texts that speak about reciting the Qur’an in salah and about reciting Surah al Fatiha… so it’s not that they couldn’t find anything in these two sources to solve the problem, it’s just that their independent ijtihads (efforts) resulted in interpreting the same textual evidence differently…
typically, however, according to common usage, ijtihad is applied to resolve questions for which no clear answers are found in the source materials… and so before applying this form of ijtihad a jurist first assures himself that a direct solution isn’t already available in:-
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the Qur’an
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the Prophetic Sunnah
(note: quite rightly, the above two should be considered in tandem)
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a consensus of the Prophet’s companions on the issue at hand (or, according to most, a consensus of the companions or later mujtahid jurists)
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the individual judgements of the companions
the overriding majority of Sunni jurists would be satisfied with an answer in any of the above sources in the order given (Imam Malik of course also gave weight to the practice of the people of Madinah)… if no answer is found in the above then a jurist applies ijtihad using such tools as qiyas (analogy or deductive reasoning), istihsan (discretion), urf (local custom) etc.
so qiyas and ijtihad are intertwined… one arrives at analogous qiyas-based rulings by means of ijtihad (by making an “effort”)…
a ruling on which the sources are silent and which is arrived at independently by one mujtahid is not binding on another mujtahid either of that time or of a future date