Al-Huda
Foundation, NJ U. S. A
the Message Continues ... 4/115
Newsletter for March 2011
Article 1 - Article 2 - Article 3 - Article 4 - Article 5 - Article 6 - Article 7 - Article 8 - Article 9 - Article 10 - Article 11 - Article 12
The Principle of Ijtihad in Islam
by Murtada Mutahhari
(Translation by John Cooper)
The article hereunder translated into English, first appeared in
the collection "Bahthi dar barayi Marja`iyat wa Ruhaniyat" [1],
which was reviewed by Lambton [2]. This volume contained essays
by figures who were then prominent in the anjumanhayi islami,
an organization of groups with a religiously educated leadership
concerned to initiate public debate of, and interest in, Islamic
solutions to contemporary political, economic and social
problems. The occasion for the publication of this volume was
the death of the marja` altaqlid of his time, Ayatullah
Burujirdi, in 1961, and the discussions contained therein dealt
with various aspects of taqlid and the religious institutions.
Summaries and discussion of the articles will be found in
Lambton.
Most of the authors subsequently became leading names in the
1979 Iranian Revolution. Mahdi Bazargan, who had had both a
religious and a secular education and had been influential among
the younger generation as a professor at the University of
Tehran and later as a politician, became the first Prime
Minister of the new Islamic Republic's provisional government.
Ayatullah Taliqani was an active revolutionary figure who had
spent much time in SAVAK prisons. He was particularly well known
in Tehran where he commanded much respect. He died in the early
morning of 10 September 1979 [3]. Sayyid Muhammad Bihishti
became the first head of the Islamic Republican Party, as well
as Chief Justice of the postrevolutionary High Court; he held
both posts until his assassination in the bombing of the Party
headquarters on 29 June 1981. Sayyid Muhammad Husayn Tabataba'i
was much weakened by illness by the time of the revolution, but
was held in universal esteem for his piety and learning. He died
on 15 November 1981. All these figures, except `Allama
Tabataba'i were also important members of the Revolutionary
Council, which had been set up by Ayatullah Khumayni during his
stay in Paris. The author of the present article, Murtada
Mutahhari, had been appointed head of this Council by Ayatullah
Khumayni, and it was he who had first convened it. After the
victory of the revolution, the Council continued to play an
extremely important role in the course of events, even after the
setting up of the provisional government, indeed right up to the
formation of the new Majlis.
Murtada Mutahhari was born in a village some forty kilometres
from Mashhad in 1338/191920. After a primary education mostly
at the hands of his father, he entered, still a child, the
hawzayi `ilmiya, the traditional educational establishment, of
Mashhad, but he soon left for Qum, the centre for religious
education in Iran. Even during the time of his elementary
studies there he was greatly affected by the lessons in akhlaq
(Islamic ethics) given by Ayatullah Khumayni, which Mutahhari
himself described as being in reality lessons in ma`arif wa
sayrusuluk (the theoretical and practical approaches to
mysticism) [4], and he later studied metaphysics (falsafa) with
him as well as jurisprudence (usul alfiqh). He was especially
attracted by falsafa, theoretical mysticism (`irfan) and
theology (kalam), the "intellectual sciences", and he also
studied these subjects with `Allama Tabataba'i. His teachers in
law (fiqh) were all the important figures of the time, but
especially Ayatullah Burujirdi, who became the marja` altaqlid,
and also head of the hawzayi `ilmiya of Qum, in 1945. Murtada
Mutahhari studied both fiqh and usul alfiqh in the classes of
Ayatullah Burujirdi for ten years. He was also deeply affected
at about this time by lessons on "Nahj al-Balagha" [5] given by
Mirza `Ali Aqa Shirazi Isfahani, whom he had met in Isfahan. He
later said that, although he had been reading this work since
his childhood, he now felt that he had discovered a "new
world".[6] Subsequently, Mutahhari became a well known teacher
in Qum, first in Arabic language and literature, and later in
logic (mantiq), usul alfiqh, and falsafa.
In 1952, Murtada Mutahhari moved to Tehran, where, two years
later, he began teaching in the Theology Faculty of the
University. Not only did he make a strong impression on
students, but his move to Tehran also meant that he could become
involved with such organizations as the anjuman hayi islami.
These Islamic Associations were groups of students, engineers,
doctors, merchants, etc., set up during the fifties and sixties;
they formed the nucleus of the movement that was to become,
eventually, the revolution. He was also a founder member of the
Husayniyayi Irshad, which played a central role in the
religious life of the capital during the four years of its
existence until its closure by the authorities in 1973 [7]. At
the same time he maintained his contact with traditional
religious activities, teaching first in the Madrasayi Marvi in
Tehran, and later back in Qum, and also preaching in mosques in
Tehran and elsewhere in the country. Through his lectures and
writings - articles and books - he became a famous and
muchrespected figure throughout Iran, but it was mainly among
the students and teachers of the schools and universities that
he was most influential, setting an example and inspiring them
as a committed and socially aware Muslim with a traditional
education who could make an intellectually appropriate and
exciting response to modern secularizing tendencies. His
wideranging knowledge and scholarship are reflected in the
scope of his writings, which cover the fields of law,
philosophy, theology, history and literature.[8] He was also one
of the few highranking `ulama' to be in continuous contact with
Ayatullah Khumayni during the fifteen or so years in which the
movement which led to the revolution was developing. He was
actively engaged in all the stages of this movement.
His life came to an abrupt and untimely end when he was shot in
the street by an assassin after a meeting of the Revolutionary
Council on the evening of 1 May 1979. Animated mourning
accompanied his funeral cortege from Tehran to Qum, where he was
buried near the shrine of the sister of the eighth Shi`i Imam.
The discussion of taqlid had been important in the wake of
Ayatullah Burujirdi's death for the reasons given by Lambton. A
solution to the problems posed in those articles was never
achieved, and events subsequently altered the whole structure of
the discussion, but the issues raised did open important new
areas for thought. As a result of the revolution, the question
of wilayat alfaqih came to the fore, and taqlid became the
subject of even greater public concern. As long as taqlid had
been restricted in the common understanding as applying only to
matters which belonged to the rubrics of the collections of
fatwas issued by the marja`s, the only real debate took place
within the legal classroom; but during the seventies, and hand
in hand with the reawakening of political sensibilities, the
boundaries of fiqh were seen by the public to expand and
encompass new territory. The definition of these new frontiers
was a source of some confusion, and hence of heightened
interest, and, in the great postrevolutionary surge of
printing, the Burujirdi volume was reissued.
Taqlid had long been a socially important element in Iranian
society, and in Shi`i society in general, for it united people,
at least as inhabitants of the same universe of duties and
obligations, under their marja`s, but the events leading up to
the revolution demonstrated the power that the marja`s could
command through, among other means, their issuing of
proclamations (`ilamiyas); this was reminiscent of the
mobilization of the Iranian people during the tobacco protest of
18912, and during the Constitutional Revolution of 1906-11.
The following article is presented as a description of taqlid
and ijtihad by a leading contemporary Shi`i mujtahid who strove
to make Islam comprehensible to the modern Iranian and to find
answers to the problems of his time within the Islamic
framework. The text has been left in its entirety; there were no
footnotes in the original.
It is not for the believers to go forth all together; but why
should not a party of every section of them go forth, to become
learned in religion, and to warn their people when they return
to them, that they may beware. (9:122) [9]
What is ijtihad?
The question of ijtihad is a very topical one these days.[10]
Many people ask, either aloud or to themselves, what form
ijtihad takes in Islam, and from where Islam got the concept.
Why should one practice taqlid? What are the conditions for
ijtihad? What are the duties of a mujtahid?
Broadly speaking, ijtihad has the meaning of being an authority
in the matters of Islam; but there are two ways of being an
authority and deriving opinions in the matters of Islam in the
eyes of us Shi`i Muslims: one which is in accordance with the
shari`a, and one which is forbidden by it. Similarly, taqlid is
of two kinds: one which is in accordance with the shari`a, and
one which is forbidden.
The kind of ijtihad which is forbidden by the shari'a.
Now, the kind of ijtihad which, in our opinion, is forbidden is
that which means "legislating" or "enacting the law", by which
we mean that the mujtahid passes a judgement which is not in the
Book (the Qur'an) or the Sunna, according to his own thought and
his own opinion - this is technically called ijtihad alra'y.
According to Shi`i Islam, this kind of ijtihad is forbidden, but
in Sunni Islam it is permitted. In the latter the sources of
legislation, and the valid proofs for determining the shar`ia,
are given as the Book, the Sunna and ijtihad. The Sunnis place
ijtihad, which is the ijtihad alra'y explained above, on the
same level as the Book and the Sunna.
This difference takes its origin in the fact that Sunni Muslims
say that the commands which are given in the shari`a from the
Book and the Sunna are limited and finite, whereas circumstances
and events which occur are not, so another source in addition to
the Book and the Sunna must be appointed for the legislation of
Divine commands - and that source is the very same as we have
defined as ijtihad alra'y. Concerning this matter, they have
also narrated hadiths from the Prophet, and one of them is that
when the Prophet sent Mu`adh b. Jabal to the Yemen, he asked him
how he would issue commands there. He replied: "In conformity
with the Book." "And if it is not to be found in the book?" "I
will make use of the Sunna of the Prophet." "And if it is not to
be found in the Sunna of the Prophet?" "Ajtahidu ra' yi, " he
replied, which means: I will employ my own thought, ability and
tact. They also narrate other hadiths in connection with this
matter.
There is a difference of view among Sunni Muslims as to what
ijtihad al-ra'y is, and as to how it is to be conceived. In his
famous book, the "Risala" [11] which was the first book to be
written on the principles of Islamic jurisprudence (usul
alfiqh), (...) alShafi`i insists that the only valid ijtihad
according to hadith is qiyas [reasoning by analogy]. Qiyas,
briefly, is the taking into account of similar cases, and ruling
in a case from one's own opinion by comparing it with these
other similar cases.
But some other Sunni fuqaha [experts in fiqh, sing.: faqih] did
not recognize ijtihad alra'y as being exclusively qiyas; they
also counted istihsan ["finding the good" by one's own
deliberations] as valid. Istihsan means to see, quite
independently, without taking similar cases into account, what
is nearest to the truth and to justice, and to give one's
opinion according as one's inclination and intellect approve.
Similarly with istislah [determining what is in the interests of
human welfare by one's own deliberationsl, which means the
seeming of one thing as more expedient than another, and
ta`awwul in which, although a ruling may have been reached in
one of the nusus [the textual bases for a precept of the shari`a
sing.: nass], in a verse from the Qur'an or in a hadith from the
Prophet, one still has the right, for some reason, to dispense
with the contents of the nass and to give priority to one's own
independent opinion (ijtihad alra'y). Each of these requires
explanation and a detailed account, and the Shi`iSunni debate
is relevant to such an account. Many books have been written
both for and against this idea, viz., that ijtihad is on a par
with textual evidence, and the best of them is the treatise
written recently by the late `Allama, the Sayyid Sharaf alDin,
called "alNass wa lIjtihad".[12]
Now, according to Shi`i Muslims, such a kind of ijtihad is not
permitted by the shari`a. In the view of Shi`i Muslims and their
Imams, the first basic principle of this matter, i.e., that the
rulings of the Book and the Sunna are not adequate and that it
is therefore necessary to practice ijtihad alra'y, is not
correct. There are many hadiths relevant to this discussion,
and, in general, [they tell us that] there exist rulings for
every eventuality in the Book and the Sunna. In "alKafi" [13],
after the chapter on bid`a [innovation] and maqa'is
[measurements], there is a chapter with the title: "Chapter on
referring to the Book and the Sunna - and there is no halal
[permitted thing] or haram [forbidden thing] or anything which
the people need which does not come in the Book or the Sunna."
The Imams of the ahl albayt have been known since the earliest
days as opponents of qiyas and ra'y.
Of course, the acceptance or nonacceptance of qiyas and ijtihad
alra' y can be studied from two angles. Firstly, from the
aspect from which I have looked at it; that is to say, we count
qiyas and ijtihad alra'y as one of the sources of Islamic
legislation, and place it alongside the Book and the Sunna, and
say that there are cases which have not been ruled upon by
revelation and which mujtahids must explain using their own
opinion. Or alternatively, [we can study it] from the aspect
that ( . . . ) qiyas and ijtihad al-ra'y [arel a means for
deriving the real rulings, just as we use the other ways and
means such as khabar alwahid.[14] In other words, it is
possible to perceive qiyas as either a substantive (mawdu`iya)
[element in law], or a methodological (tariqiya) [principle].
In Shi`i fiqh, qiyas and ra'y are invalid in both of the above
senses. In the first sense, the reason is that we have no ruling
which is not given in the Book and the Sunna; and in the second
case, the reason is that qiyas and ra'y are kinds of surmise and
conjecture which lead to many errors. The fundamental opposition
of Shi`i and Sunni legists in the matter of qiyas is in the
first sense, although the second aspect has become more famous
among the scholars of usul (the principles and methodology of
fiqh).
The right of ijtihad did not last for long among the Sunnis.
Perhaps the cause of this was the difficulty which occurred in
practice: for if such a right were to continue [for any great
length of time], especially if ta`awwul and the precedence of
something over the texts were to be permitted, and everyone were
permitted to change or interpret according to his own opinion,
nothing would remain of the way of Islam (din alislam). Perhaps
it is for this reason that the right of independent ijtihad was
gradually withdrawn, and the view of the Sunni `ulama became
that they instructed people to practice taqlid of only the four
mujtahids, the four famous Imams - Abu Hanifa [d.150/767],
alShafi`i; [d.204/820], Malik b. Anas [d.179/795] and Ahmad b.
Hanbal [d.241/855] - and forbade people to follow anyone apart
from these four persons. This measure was first taken in Egypt
in the seventh hijri century, and then taken up in the rest of
the lands of Islam.
Ijtihad permitted by the shari'a.
The word ijtihad was used until the fifth hijri century with
this particular meaning, i.e., with the meaning of qiyas and
ijtihad alra'y, a kind of ijtihad which is prohibited in the
eyes of the Shi`a. Up to that time, the Shi`i `ulama included a
chapter on ijtihad in their books only because they wanted to
refute it, to emphasize that it was null and void, and to
proscribe it, as did the Shaykh alTusi in some of his works.
But the meaning of this word gradually extended beyond this
specific meaning, and the Sunni `ulama themselves began not to
use 'ijtihad' in the specific sense of ijtihad alra'y, [as a
source] which was on the same level as the Book and the Sunna.
[Such a shift in the meaning of the word can be seen with] Ibn
Hajib [15] in his "Mukhtasar alusul", on which `Adud alDin
alIji wrote a commentary known as al`Adudi, and which has been
till recently, and maybe still is, the authoritatively approved
book on [Sunni] usul, and before him with alGhazali [16] in his
famous work "alMustasfa". It then became used rather in the
unqualified sense of effort or exertion to arrive at the rulings
of the shari`a, and was defined as "the maximum employment of
effort and exertion in deducing the rulings of the shari`a from
the valid proofs (adilla, sing. dalil, see below ). However, it
is another matter to decide what the valid proofs of the shari`a
are: whether qiyas, istihsan, and so forth, are among them or
not.
From this time onwards, the Shi`i `ulama also adopted this word
because they accepted this [general] meaning. This kind of
ijtihad was a kind approved by the shari`a. Although the word
had originally been one to be avoided among the Shi`a, after its
meaning and the concept it denoted had undergone this change,
their `ulama, discarded their prejudice and subsequently had no
reservations about using it. It seems that in many instances the
Shi`i `ulama, were careful to consider unity of method and
conformity among Muslims as a whole. For example, the Sunnis
came to recognize ijma` (consensus of opinion among the `ulama)
as a proof leading to certainty, and, in practice, they also
held it to be fundamental and substantive (mawdu`i) just like
qiyas, whereas the Shi`a did not accept it. However, to protect
the unity of method, they gave the name ijma` to a principle
which they did accept [17]. The Sunnis said that the valid
proofs were four in number: the Book, the Sunna, ijma and
ijtihad (qiyas); the Shi`a said the valid proofs were four: the
Book, the Sunna, ijma` and `aql (reason). They merely
substituted `aql for qiyas.
At any rate, 'ijtihad' gradually found a wider meaning, i.e.,
the employment of careful consideration and reasoning in
reaching an understanding of the valid proofs of the shari`a.
This, of course needs a series of sciences as a suitable
preliminary basis on which to develop the ability to consider
and reason correctly and systematically. The `ulama of Islam
gradually realized that the deduction and derivation of the
precepts from the combined valid proofs of the shari`a
necessitated [the learning] of a series of preparatory sciences
and studies such as the sciences of literature, logic, the
Qur'anic sciences and tafsir (Qur'anic exegesis), the science of
hadith and the narrators of hadith (rijal alhadith), the
science of the methodology of usul alfiqh, and even a knowledge
of the fiqh of the other sects of Islam. A mujtahid was someone
who was a master of all these sciences.
I think it extremely likely, though I cannot state this
categorically, that the first person among the Shi`a to use the
words ijtihad and mujtahid [positively] was the `Allama
alHilli.[18] In his work " Tahdhib alusul'', he puts the
chapter on ijtihad after the chapter on qiyas, and there he uses
the word in the same sense in which it is used today.
[We can therefore say that] the ijtihad which is forbidden and
rejected in the eyes of the Shi`a is ra' y and qiyas, which were
originally called ijtihad, whether this is counted as a source
of the shari`a and as an independent basis for legislation, or
taken as a means for deriving and deducing true precepts;
whereas the ijtihad which they deem correct according to the
shari`a is that which means effort and exertion based on expert
technical knowledge.
In answer to the question: what is the meaning, the use and the
place of ijtihad in Islam, it can thus be said that it is
ijtihad in the meaning that it is used today, i.e., competence
and expert technical knowledge. It is obvious that someone who
wants to refer to the Qur'an and hadith must know how to explain
the meaning of the Qur'an, he must know the meaning of the
verses, which verses abrogate which verses, which ones have
clear meanings and which ones ambiguous meanings [19] - and he
must be able to distinguish which hadith is valid and
authoritative and which not. In addition, he must understand, on
the basis of correct rational principles, incompatibilities
between hadiths to the extent that it is possible for him to
resolve them, and he must be able to distinguish the cases in
which the `ulama of the Shi`a sect have consensus (ijma`). In
the verses of the Qur'an themselves, and similarly in the
hadith, a series of general principles [for verification and
interpretation] are laid down, and the use and exercise of these
principles need training and practice, just as in the case of
all other basic principles in every science. Like the skilled
technician who knows which material to choose from all the
materials available to him, the mujtahid must have proficiency
and ability. In hadith, especially, there is a great deal of
fabrication, the true and the false are mixed together; the
expert must have the power to distinguish between them. In
short, he must have enough preliminary knowledge so that he can
exercise competence, authority and technical expertise.
The appearance of the Akhbaris in Shi'i Islam
Here we must mention an important and perilous current which
first appeared around four centuries ago in the Shi`i world over
the question of ijtihad - Akhbarism. If a group of the `ulama
had not been forthright and challenged it, and had not taken a
stand against this current and destroyed it, there is no knowing
in what position we should be today.
The actual school of the Akhbaris is no more than four centuries
old. Its founder was a man by the name of Mulla Muhammad Amin
alAstarabadi [d. 1033/1624], who was, personally, a gifted man
who found many followers among the `ulama'. The Akhbaris
themselves claimed that the original Shi`is, up to the time of
the Shaykh alSaduq [20], were all followers of the Akhbari
doctrine, but the truth is that Akhbarism as a school with basic
postulates did not exist more than four centuries ago. These
postulates were: the denial of the possibility of arriving at
certainty through exercising reason (`aql); the denial of the
validity and the proof (dalil) of the Qur'an on the pretext that
the understanding of the Qur'an lay exclusively in the hands of
the Prophet's ahl albayt, and that our duty is to consult the
hadith of the ahl albayt [for its interpretation and
understanding]; the assertion that ijma` was the innovation of
the Sunnis; the assertion that, of the four valid proofs
(adilla), i.e., the Book, the Sunna, ijma` and `aql, only the
Sunna is able to lead to certainty, the assertion that all the
hadith that appear in the "four books"" are true and valid, and
of categorical provenance [from the Imams] (qat`i alsudur).
In his book, ''`Uddat alUsul", the Shaykh alTusi mentions a
group of former Shi`i scholars under the name of the
"Muqallida", and adversely criticises them; but they had no
school of their own, and the reason that the Shaykh called them
"Muqallida" was that even in the fundamentals of dogmatics (usul
aldin) they constructed their proofs with hadith.
At any rate, the school of the Akhbaris took its stand against
the school of ijtihad and taqlid. They denied the legal
competence, jurisdiction and technical expertise that the
mujtahids believed in; they considered taqlid of anyone else
than the ma`sumin [22] to be illegal. According to them, only
the hadith are authoritative, and since there is no right of
ijtihad or deriving of opinions, people must necessarily have
recourse directly to the texts of the traditions and act upon
them, no scholar calling himself a mujtahid or a marja`
altaqlid [23] can act as an intermediary.
Mulla Amin alAstarabadi, the founder of this school, and
personally a very gifted man, learned and welltravelled, wrote
a book called "al-Fawa'id alMadaniya" in which he went to war
with the mujtahids with astonishing stubbornness. He
particularly tried to refute the principle of the authority of
`aql. He claimed that it was only a proof in matters which had
their origin in the senses, or which were related to sensory
objects (such as in mathematics), and that in matters other than
these it was inadmissible as a proof.[24]
It so happens that this idea was practically contemporary with
the appearance of empirical philosophy in Europe. The latter
denied the validity of pure reason, and alAstarabadi denied its
validity in religion. Now where did he get this idea? Was it his
own original idea, or did he get it from elsewhere? We cannot
say.
I remember that in the summer of 1322 [Sh./1943] I went to
Burujird, and at that time the late Ayatullah Burujirdi was
still living there, not yet having come to Qum. One day, the
talk was of this idea of the Akhbaris, and he criticised it,
saying that the appearance of this idea among them was the
effect of the wave of empiricism that had arisen in Europe. I
heard this from him at that time. Afterwards, when he came to
Qum, and his lessons in usul alfiqh reached this topic, i.e.,
the validity of certainty as a proof (hujjat al qat`), I was
waiting to hear this opinion again from him, but unfortunately
he did not say anything about it. Now, I cannot say if this had
only been a conjecture which he had voiced, or whether he had
evidence, but I, myself, have not till now found any evidence
for it, and I feel it is extremely unlikely that empirical
thinking had then reached the East from the West. However,
against this is the fact that Ayatullah Burujirdi never spoke
without evidence. I now regret that I never asked him for an
explanation at the time.
The struggle with Akhbarism
In brief, Akhbarism was a movement in opposition to `aql. An
amazing ossification and inflexibility ruled in their doctrine.
Fortunately, some discerning individuals like Wahid Bihbihani
[25], famous as "Aqa", whose descendants are even now known as
"Ali Aqa (Family of Aqa)", and his pupils, and afterwards the
late Shaykh Murtada alAnsari [26], took a stand and fought
against this doctrine.
Wahid Bihbihani lived in Karbala.[27] At that time, the author
of the "Hada'iq"[28] an erudite Akhbari, was also in Karbala,
and both of them had a following of students. Wahid was a
follower of the doctrine of ijtihad, and the author of the
"Hada'iq" of the Akhbari doctrine, and occasionally there were
bitter disputes. In the end, Wahid Bihbihani defeated the author
of the "Hada'iq", and it is said that the outstanding pupils of
Aqa Wahid, such as Kashif alGhita', Bahr al`Ulum and the
Sayyid Mahdi Shahrastani [29], had first of all been pupils of
the author of the "Hada'iq" and had afterwards left him and
joined the lessons of Wahid Bihbihani.
Of course, the author of the ''Hada'iq'' was a moderate Akhbari;
he claimed that his doctrine was identical with that of Muhammad
Baqir al-Majlisi [30], half way between Akhbari and Usuli.
Moreover, he was a pious and godfearing man of faith, and
although Wahid Bihbihani fought against him vociferously and
forbade congregational prayers behind him, he, quite the
contrary, said that congregational prayers behind Aqa Wahid were
valid. It is said that at the time of his death he left in his
will that Wahid Bihbihani should recite his funerary prayer.
The struggle of the Shaykh alAnsari was such that he managed to
build a solid foundation for the science of usul alfiqh; and it
is said that he maintained that if Amin alAstarabadi had been
alive he would have accepted his usul.
Naturally, the Akhbari school was defeated as a result of this
opposition, and now it has no following except here and there.
However, not all the ideas of Akhbarism, which penetrated
people's minds so quickly and securely after the appearance of
Mulla Amin, and which held sway for more or less two hundred
years, have disappeared. Even now we see many who do not
recognize the permissibility of an exegesis of the Qur'an unless
a hadith is quoted. The inflexibility of Akhbarism still reigns
in many of the matters of akhlaq (ethics) and in social
problems, even in some parts of fiqh. But now is not the time
for me to expand on this.
One thing which is a cause of the popularity of the Akhbari way
of thinking is their selfrighteousness, which is pleasing to
ordinary people, because their ideas are formulated in such a
way that they seem to be claiming: "we are not saying anything
we have invented ourselves, we are people of obedience and
submission; we say nothing except what the Imam alBaqir (or the
Imam alSadiq, etc.) said; we do not speak ourselves, we only
say what the ma`sumin said."
In the chapter on ihtiyat and bara'a (precaution and exemption
from obligation) in his "Fara' id alUsul" the Shaykh alAnsari
quotes from Ni`mat Allah alJaza'iri [31], who maintained the
doctrine of the Akhbaris:
Can any rational person conceive the possibility that on the day
of Resurrection they will bring forth one of the slaves of Allah
(i.e., the Akhbaris) and ask him how he acted, and that when he
says that he acted according to what the ma`sumin ordered and
that everywhere there was no word from the ma`sumin he desisted
as a precaution, they will take such a person to Hell, while
they will lead a thoughtless person who was inattentive to the
words of the ma`sumin (i.e., an Usuli who follows the doctrine
of ijtihad), who rejects every hadith on the slightest pretext,
to heaven? It is not possible!
The answer which the mujtahids give is that this kind of
obedience and submission is not submission to the words of the
ma`sumin, but submission to ignorance. If it is really certain
that the ma`sumin said something, then we must submit; but these
people wanted to submit ignorantly to everything they heard.
I will give as an example something which I have recently come
across, so that the difference between the rigid Akhbari way of
thinking and the ijtihadi way of thinking can be seen.
A sample of the two ways of thinking
It has been commanded in many hadiths that the end of the turban
should always hang down and pass round the neck, not only at the
time of prayer, but at all times. One of these hadiths is as
follows:
The difference between a Muslim and an unbeliever is the passing
of the end of the turban round his neck (altalahhi).
A number of Akhbaris have seized upon this hadith and those like
it, and said that the end of the turban must always hang down.
But Mulla Muhsin Fayd [32], although he did not think very
highly of ijtihad, did in fact act in accordance with ijtihad in
his chapter on apparel and adornment (alziy wa ltajammul) in
his "Kitab alWafi': and say that in former times the
unbelievers had a slogan to the effect that the end of the
turban should be tucked in on top, and they called this act
iqti`at. If someone did this, it implied that he was one of
them, and this hadith ordered that this slogan should be
challenged and not followed. However this slogan has for a long
time ceased to be current, and thus the subject of the hadith is
no longer a matter of concern; on the contrary, since everyone
tucks the end of his turban in on top, it is forbidden for
someone to drape it round his neck, for it would be dressing in
a way which drew attention to oneself, and this is unlawful.
Here the ossified doctrine of Akhbarism ruled that the text of
the hadith ordered that the end of the turban must hang down,
and it is an interference with it for us to add our words to it
and give our own opinion and practice ijtihad. But the thinking
of ijtihad is that we have two commands: one is the command to
keep clear of the slogan of the unbelievers, which is the spirit
of the subject of this hadith; and the other is the command to
avoid ostentatious dress. In the days when this slogan had
currency, and Muslims were trying to avoid appearing to comply
with it, it became an obligation on everybody to keep the ends
of their turbans hanging down; but now that this state of
affairs no longer pertains and the slogan has fallen into
oblivion, and now that ordinarily noone lets the end of his
turban hang down, if someone were to do this, it would be an
instance of ostentatious clothing, and this is illicit. This is
just one example which I wanted to give you: there are many like
it.
It is narrated from Wahid Bihbihani that he said:
Once, the new moon of Shawwal [the month following Ramadan] had
been established because it had been sighted by many people
(tawatur). So many people came and said that they had seen the
new moon that certainty had been obtained in the matter for me
[33], so I gave the order that that day was the `Id alFitr [the
feast marking the end of Ramadan]. One of the Akhbaris protested
to me that I had not seen it myself, and that it had not been
witnessed by people who had been proven to be `adil [to always
act in accordance with the shari`a], and that I should therefore
not have given the ruling. I said that it was mutawatir, and
that this was a source of certainty for me. He then asked me in
what hadith it had been narrated that tawatur was a valid proof
leading to certainty.
It is also well known that some of the Akhbaris gave the command
that the testimony of belief should always be written on the
shroud of the corpse in this way:
Isma`il yashhadu an la ilaha illa llah (Isma`il testifies that
there is no god but Allah).
Now the reason [they say] that the testimony is to be written in
the name of Isma`il is that it is narrated in a hadith that the
Imam alSadiq wrote in this way on the shroud of his son
Isma`il. The Akhbaris had never stopped to think that it was
written thus on his shroud because his name was Isma`il; and
that now, for example, that Hasan has died, they should say: "We
should write his own name on the shroud, not that of Isma`il.''
Instead they argued: "This would be ijtihad, resorting to one's
own opinion and relying on `aql. We are the people of obedience
and submission to the words of the Imams alBaqir and alSadiq,
and we, for our part, will not interfere."
The kind of taqlid that is forbidden by the shari`a.
Let us now turn to taqlid. It is [as was said before] of two
kinds: licit and illicit [in terms of the shari`a]. There is a
kind of taqlid which is the blind following of one's
surroundings and of habit, which is, of course, forbidden, and
it is this which is condemned in the Qur'an when those who say:
Behold, we found our forefathers agreed on what to believe - and
verily, it is but in their footsteps that we follow. (42:23)
are condemned. We have said that taqlid is of two kinds: licit
and illicit. What we meant by illicit taqlid is not confined
solely to the kind of taqlid which is the blind imitation of
one's surroundings, of habit, of one's parents or ancestors, but
we wanted also to say that taqlid between those who do not have
[the necessary] knowledge (al-jahil) and those who do
(al`alim), the consultation of the faqih by the ordinary
person, is of two kinds: licit and illicit.
We occasionally hear these days from some people who are looking
for a marja` altaqlid, that they are looking to find someone to
whom they can give unqualified allegiance. We want to say that
the taqlid which Islam has commanded is not "unqualified
allegiance"; it is the opening, and keeping open, of one's eyes,
of awareness. If taqlid takes on an aspect of devotion,
thousands of evil affects will come about.
Now there is a wellknown and detailed hadith on this subject
which I shall quote for you:
Whichever of the fuqaha can protect his self [34], who can
preserve his religion, who fights his desires and is obedient to
the commands of his Master, should be followed by the people in
taqlid.
This is one of the textual proofs for taqlid and ijtihad. The
Shaykh alAnsari said about this hadith that the signs of truth
are evident in it.
It is an appendage to the following verse from the Qur'an:
And there are among them unlettered people who have no real
knowledge of the divine Book, only wishful beliefs, and they
depend on nothing but conjecture.(2:78)
This verse comes in condemnation of the ignorant and illiterate
Jews who followed, and practiced taqlid of, their religious
scholars and leaders, and it comes after some verses which
mention the unattractive behaviour of the Jewish religious
scholars. It points out that a group of them were such ignorant
and illiterate people that they knew nothing of the divine Book
except a string of imaginary beliefs [about it] and such things
as they wished to believe, and that they had gone after surmise
and illusion.
The hadith of the sixth Imam concerning the kind of taqlid which
is illicit
The following hadith is connected to the previous verse. Someone
said to the Imam alSadiq that the ordinary, illiterate Jews had
no other alternative but to take in everything they heard from
their religious scholars and to follow them. If there is any
blame, it should be directed towards the Jewish scholars
themselves. Why should the Qur'an censure helpless ordinary
people who knew nothing and were only following their scholars?
What difference is there between the common Jew and the common
Muslim? If taqlid by ordinary people and their following of the
learned is forbidden, we Muslims, who follow our scholars, this
person reasoned, must also be the objects of reprehension and
censure. If the former should not have accepted what their
scholars said, then the latter should not accept what their
scholars say.
The Imam said:
In one respect there is a difference between the ordinary Jew
and the Jewish scholars, and the ordinary Muslim and the Muslim
scholars, and in another respect there is a similarity. In so
far as there is a similarity, God has commanded the ordinary
Muslim also not to practice that kind of taqlid of scholars, but
in so far as there is a difference, He has not.
The person who had asked the Imam then said: O son of the
Messenger of Allah, please explain what you mean.
Then Imam said:
The ordinary Jews could see from their scholars and the way that
they behaved that they were quite clearly lying: they did not
refrain from accepting bribes, they changed the laws and the
rulings of the courts in exchange for favours. They knew that
they displayed partiality to certain individuals. They indulged
their personal likes and dislikes, they would give one man's
right to someone else. .. On account of natural, common sense,
which God has created in everyone, we all know that we must not
accept the speech of people who behave in such a way as this; we
must not accept the word of God and the prophets from the
tongues of such people as this.
What the Imam meant here was that noone can say that the
ordinary Jewish people did not know that they should not act in
accordance with what had been said by those of their scholars
who acted contrary to the divine commands of their religion.
This is not something that someone might not know. Knowledge of
this kind is put by God into every person's nature, and
everyone's reason acknowledges it. In the terminology of logic,
it is a 'inborn' proposition; its proof is contained within
itself. According to the dictate of every intellect, one must
not pay any attention to the utterance of someone whose
philosophy of life is purity and the rejection of the human
passions but who pursues what his desires tell him to. Then the
Imam continued:
It is the same thing for our people: they too, if they
understand or see with their own eyes that there is behaviour
contrary to the shari`a on the part of their scholars, strong
prejudices, a scramble after the ephemera of this world,
preference for their own supporters however irreligious they may
be, and judgement against their opponents even when they deserve
verdicts in their favour, if they perceive such behaviour among
them and then follow them, they are just the same as the Jewish
people and should be reprimanded and censured.
So it is clear that unquestioning allegiance and shutting one's
eyes to the truth is not the kind of taqlid which is encouraged
or permitted by the shari`a. Licit taqlid means having one's
eyes open and being observant and alert; otherwise it is
accepting responsibility for, and being an accomplice to, an
illicit act.
Regarding the popular belief that the `ulama cannot be tainted
by immorality
Some people imagine that the effect of sin on individuals is not
of only one kind: that sin has an effect on ordinary people
which annuls their piety and right behaviour, but that it has no
effect on the `ulama' who have some kind of immunity. It is like
the difference between a little water and a lot which, if it is
more than one kurr [35], cannot be tainted by any unclean thing.
Now, in fact, Islam does not consider anyone to be untaintable,
not even the Prophet. For why then should God have said:
[O Prophet] say: 'I also, if I commit a sin, fear punishment on
the Great Day.'?
Why should He have said:
If any kind of attributing godhood to other than Allah (shirk)
enters your actions, your work will be spoilt?
All this is to show that there is no kind of partiality or
discrimination, there is no immunity from sin for anyone.
The story of Moses and God's righteous servants, which is in the
Qur'an, is a wonderful story. One moral which can be drawn from
it is that the follower should surrender to the one he is
following up to the point where basic principles and the law are
not contravened. If it is seen that the leader does something
against these principles, one must not remain silent. It is true
that the fact that in the story the things which the servant of
God does are not, in his view, against these basic principles,
since he sees a wider horizon and can see into the heart of the
matter; they were, rather, his very duty and responsibility. But
the question here is why Moses was not patient, and why he gave
vent to his criticisms, despite the fact that he had promised
[the servant of God] and himself that he would not make any
objection? Why, then, did he protest and criticise? The defect
in Moses' actions was not his protesting and criticising, but
the fact that he was not aware of the undivulged aspect of the
matter, the inward and secret side of the events. Of course, if
he had been aware of the hidden reasons for what happened, he
would not have objected, and he would have wanted to discover
the secret of the affair; but as long as his actions were, from
his own point of view, against basic principles and the divine
Law, his faith would not allow him to remain silent. There are
those who have said that if the actions of that servant of God
were to be repeated on the Day of the Resurrection, Moses would
still object to them and criticise them, unless, by that time,
he were to become aware of the hidden reasons behind them. Moses
said to the servant of God:
"Shall I follow you so that you may teach me, of what you have
been taught, right judgement."
"Assuredly you will not be able to bear with me patiently."
Then he explained the reason very clearly:
"And how should you bear patiently what you have never
encompassed in your knowledge?"
Moses said:
"Yet you will find me, if Allah will, patient, and I shall not
rebel against you in anything."
Moses did not say that he would be patient whether he discovered
the secret of the matter or not. He merely said that he hoped he
would have that patience. Of course, this patience did exist
within Moses as long as he understood the reason for things.
Then the servant of God wanted to have something more definite
from him; that, even if he did not discover the reason for what
had happened, he would remain silent and not protest until the
time came for him to explain.
"Then, if you follow me, do not question me on anything until I
myself introduce the mention of it to you." (117:6670)
Here, the verse does not say if Moses accepted; it only says
that after this they both set out together and continued till
the end of the story which we all know.
At any rate, I wanted to show that the ignorant person's taqlid
of the learned should not be blind allegiance. The unlawful kind
of taqlid between one who is ignorant and one who has knowledge
is that kind in which unquestioning obedience exists, which
takes some such form as: "an ignorant person cannot quarrel with
a learned person; we don't understand, perhaps the duties
imposed by the shari`a necessitate its being like this."
I have mentioned this story as evidence and corroboration for
what was in the hadith of the Imam alSadiq.
Taqlid permitted by the shari`a
After what I have narrated concerning the kind of taqlid
forbidden by the shari`a, the Imam went on to explain the kind
of taqlid permitted by the shari`a the kind which is to be
praised, in these words:
Whichever of the fuqaha' can protect his self, who can preserve
his religion, who fights his desires and is obedient to the
commands of his Master, then he should be followed by the people
in taqlid.
Of course, it is clear that the struggle of a spiritual `alim
with his weaker desires is very different from the struggle of
an ordinary person, because the desires of each individual are
associated with specific activities. The desires of a youth are
one thing, the desires of an old man another; everyone, in
whatever position, degree, stage or age he may be, has a
particular kind of desire. The standard for subservience to
inferior desires for a spiritual `alim is not what we see: for
example, whether he drinks alcohol or not, whether he has
stopped praying and fasting or not, whether he gambles or
not.[37] The standard for the subservience to inferior desires
for such a person is whether he desires position, to have his
hand kissed, to become famous and popular and have people walk
behind him, to use the wealth of the Muslims to lord over
others, to allow his friends and relatives, especially his sons,
to benefit from the wealth of the Muslims. Then the Imam said:
Only some of the Shi`i fuqaha have these great qualities and
traits of character, not all of them.
This hadith, on account of its final phrases, is one of the
pieces of evidence in the question of ijtihad and taqlid.
So it is clear that both ijtihad and taqlid can be divided into
two kinds: that which is permitted by the shari`a and that which
is not.
Why is taqlid of a dead person not permitted
We have a principle in fiqh, which is one of the indisputable
points of our fiqh, that taqlid of a dead person in the first
instance is not permitted. If taqlid of a dead person is
permitted, it is only when taqlid is carried on from someone who
was followed [by the same person] while he was alive and is now
dead.[38] Moreover, the carrying on of the taqlid of a dead
person must also be with the permission of a living mujtahid. I
am not concerned here with the reasons in fiqh for this
principle, so I will only say that it is a very basic idea, but
only on the condition that the aim of the principle is clearly
understood.
The first purpose of this principle is that it should be a means
for the survival of the traditional centres of learning of the
Islamic sciences, so that there should be continuity, and that
the Islamic sciences should be perserved - not only preserved,
but that they should advance day by day and be perfected, and
that those matters which had not previously been solved should
be solved.
It is not the case that all our problems have been solved in the
past by our `ulama', and that now we have no more problems and
no more work. We have thousands of riddles and difficulties in
kalam (theology), Qur'anic exegesis, fiqh and the other Islamic
sciences, many of which have been solved by the great `ulama' of
the past, but many of which remain, and it is the duty of those
who follow on to solve them and to gradually write better and
more complete texts in each subject, to continue each subject
and develop it, just as in the past, too, exegesis, theology and
law were gradually developed. The caravan must not be brought to
a halt in midjourney. So people's taqlid of living mujtahids,
and their heeding them, is a means to the continuance and
development of the Islamic sciences.
Another reason is that every day Muslims are faced with new
problems in their lives, and they do not know what there duty is
in these matters. It is necessary to have living fuqaha', aware
of the contemporary situation, to respond to this great need. It
is narrated in one hadith concerning ijtihad and taqlid:
As for alhawadith alwaqi`a, refer concerning them to the
narrators of our hadith.
These hawadith alwaqi`a are exactly these new problems which
arise as time passes. Study and research into the books of fiqh
from different epochs and centuries shows that gradually,
according to the needs of the people, new problems arise in fiqh,
and that the fuqaha' set out to answer them. It is for this
reason that the dimensions of fiqh have increased.
If a researcher were to make a tally, he could discover, for
example, in what century, in what place and for what reason,
suchandsuch a problem arose in fiqh. If it were not necessary
for a living mujtahid to give answers to these problems, what
difference would there be between taqlid of a living person and
taqlid of a dead person? It would be better to follow in taqlid
some of the dead mujtahids like the Shaykh alAnsari, who, on
the admission of the nowliving mujtahids themselves, was the
most knowledgeable and learned.
Basically, the 'secret' of ijtihad lies in applying general
principles to new problems and changed circumstances. The real
mujtahid is one who has mastered this 'secret', who has observed
how things change, and subsequently how the rulings on them have
changed. For there is no skill in only thinking about things
which are in the past and have already been thought about; or,
at the most, changing an `ala laqwa into an `ala lahwat.[39]
or vice versa; there is no need to make a song and dance about
any of this.
Of course, ijtihad has many preconditions and prerequisites; a
mujtahid must have acquired the various [preliminary] sciences.
It is necessary that he should have applied himself to the study
of Arabic language and literature, to logic, to the study of
usul (jurisprudence), even to the history of Islam and the fiqh
of the other sects, so that he might become a true and thorough
faqih. No one can ordinarily lay claim to ijtihad just by
reading a few books on Arabic grammar, or rhetoric and logic,
then three or four of the set books for the intermediate stage,
such as the "Fara'id", the "Makasib" or the "Kifaya"[40], and
then spending a few hours in the darsi kharij.[41] He does not
then become qualified to sit with the "Wasa'il" and "Jawahir"[42],
in front of him and issue legal opinions. He must be completely
knowledgeable in exegesis and hadith, that is to say in the
several thousands of hadith which appeared in the two and a half
centuries from the time of the Prophet to the time of the Imam
alHasan al`Askari, and of the circumstances in which they
appeared; he must also know Islamic history and the fiqh of
other Islamic sects, and the narrators of traditions and their
biographies and reliability.
Ayatullah Burujirdi was a true faqih. It is not my habit to
mention people by name, and while he was alive I never mentioned
him in my lectures. But now that he has died and there can be no
ulterior motive, I can say that this man was truly a
distinguished and outstanding faqih. He was conversant with, and
proficient in, all these sciences, in exegesis, hadith,
knowledge of the narrators of hadith, in the sciences of the
evaluation of hadith (`ilm al-daraya), and in the fiqh of the
other sects of Islam.
How the faqih's outlook on the world affects the legal opinions
he issues
The work of a faqih and mujtahid is the deduction and derivation
of the precepts [of the shari`a]; but his knowledge and
understanding of all things, in other words, his worldview, has
a great influence on the decisions he makes. The faqih must have
all the information on matters upon which he is going to issue a
fatwa. If we imagine a faqih who is always sitting in the corner
of his house or his madrasa, and compare him with a faqih who is
conversant with the currents of life, both of them refer back to
the valid proofs of the shari`a, but each one of them will
derive his legal rulings in a particular way, using a particular
method.
Let me give an example. Suppose that someone who grew up in
Tehran, or in a big town like Tehran, where running water is in
plentiful supply and there are reservoirs and tanks and gutters,
becomes a faqih and wishes to issue a fatwa concerning the
precepts about what is pure and what is impure. When he refers
to the hadiths on purity and impurity, such a person will, owing
to his own previous experience, make a deduction in a way which
will be extremely circumspect and will necessitate the avoidance
of many things. But the same person, once he has been to the
House of God [the Ka`aba] and seen the conditions of purity and
impurity and the lack of water in that place, will find himself
changing his outlook regarding the subject of purity and
impurity. After such a journey, if he consults the hadiths on
this matter, he will see them in a different light.
If someone compares the fatwas of the fuqaha' with each other,
and then pays attention to the individual circumstances and each
of these scholars' ways of thinking about living problems, he
will see how the mental environment of a faqih and the
information he has concerning the outside world influence his
legal rulings in such a way that the legal rulings of an Arab
faqih have an Arabic flavour, those of an Iranian have an
Iranian flavour, and those of a countrydweller have a rustic
flavour as opposed to the urban feel of those of a citydweller.
This religion is the final religion; it is not exclusive to a
particular time or place; it is relevant to all times and
places. It is a religion which came to establish order and
progress in the life of man, so how could a faqih who is
uninformed of the natural arrangement and movement of things and
who does not believe in a progression towards perfection in
life, deduce the high and truly progressive laws of this upright
(hanif) religion in a way which is in perfect accordance with
the truth? For this religion came to give order to this natural
arrangement, movement and development, and it guarantees its
guidance.
The understanding of necessities
At the present time, we have some cases in our fiqh where our
fuqaha' have given a definite ruling on the requirement of
something only because they have seen the necessity and
importance of the matter. In other words, since there is no
transmitted evidence from the verses of the Qur'an or from
hadith which is explicit and sufficient, and since there is also
no valid consensus in the matter, they have used the fourth
basic principle of derivation, i.e., the principle of
independent reasoning (`aql). In this kind of instance, the
fuqaha' become certain that the command of God in such andsuch
a case is suchandsuch, because of the importance of the matter
and their knowledge of the spirit of Islam which leaves no
important matter in abeyance. For example, in the case of the
legal ruling given by the fuqaha' concerning the guardianship (wilaya)
of the ruler and the subsidiary problems connected with it, if
the importance of this matter had not been realised, no legal
rulings would have been issued. The fuqaha' have only issued
them to the extent which they understand to be necessary. Other
instances similar to this can be found where the reason that a
legal ruling has not been given is the fact that the importance
and necessity of the matter has not been fully realised.
An important recommendation
Here I have a recommendation which could be most useful for the
advancement and development of our fiqh. It was previously put
forward by the late Shaykh `Abd alKarim alYazdi[43], and I am
here only reiterating his proposal.
He asked what it was that required people to follow only one
person in taqlid in all matters. Would it not be better if
specialised divisions were established in fiqh? That is to say,
there would be groups who, after having completed the general
study of fiqh and become experts in it, would specialise in one
particular section, and then people would follow them in that
particular section. For example, some would take as their
specialisation `ibadat (the rites of Islam), and others
mu`amilat (transactions), some siyasat (politics), and other
ahkam (criminal law); this is exactly what has been done in
medicine where specialised branches have been created, and
doctors divided into groups for each speciality, some being
heart specialists, some eye specialists, some ear, nose and
throat specialists, and others specialists in other branches. If
this were done, each person could study his own branch more
thoroughly. I believe that there is a discussion of this matter
in the book "alKalam Yajurru lKalam" by the Sayyid Ahmad al-Zanjani.[44]
This recommendation is a very good one, and I will add only that
the need to divide fiqh up and to create specialised branches
arose a hundred years ago, and in present circumstances the
fuqaha of today will impede the forward development of fiqh and
stunt its growth unless they heed this recommendation.
The division of the sciences into specialised branches
The division of the sciences is the result of their development,
but also its cause. For a science gradually progresses until it
reaches the point where it is no longer possible for a single
person to investigate all the problems it raises. It must then
necessarily be divided up into branches of specialisation. Thus
the division of a science and the creation of branches within it
is the result and the effect of the development of that science,
while, at the same time, more progress is made when these
branches are created, and thought can be concentrated on the
special problems in each branch.
In all the world's sciences - medicine, mathematics, law,
literature and philosophy - branches of specialisation have been
created, and for that very reason progress has been accelerated
in each of these branches.
The progress made in fiqh during the last thousand years
There was a time when fiqh was a very limited science. When we
refer back to the texts before the time of the Shaykh alTusi,
we see how restricted it was. By writing his "alMabsut",
alTusi took fiqh into new realms and enlarged its scope, and in
the course of time, as a result of the efforts of the `ulama'
and fuqaha, and because of the creation of new problems and the
initiation of new investigations to answer them, fiqh progressed
even further, to the point where, about a hundred years ago,
when the author of the "Jawahir" wrote his complete compendium
of fiqh, he was only just able to finish it. It is said that he
started his task when he was about twenty years old, and that,
thanks to his extraordinary genius, continual work and a long
life, he was able to write the last pages right at the very end
of his life. The "Jawahir" was printed in six very bulky
[lithographed] volumes, while the whole of alTusi's "alMabsut",
which was in his time the example of a comprehensive work on
fiqh, is probably less than half of one of these six volumes.
After the author of the "Jawahir" died, the foundations of a new
fiqh were laid by the Shaykh Murtada alAnsari, and the epitome
of this new fiqh was that great man's "alMakasib" and "alTahara".[45]
Since his time, noone could even conceive of teaching a
complete cycle of fiqh with such thorough explanation and
research.
At the present time, after this advance in the development of
our fiqh, which occurred in the same way as similar advances in
other sciences all over the world, and which has been the result
of the efforts of the `ulama' and fuqaha' of the past, the
scholars of today will find themselves faced with the choice of
either curbing any further progress in fiqh or putting this
sensible and progressive recommendation into practice and
creating branches of specialization, as a result of which people
will come to discriminate in their taqlid, in the same way as
they discriminate in referring to a doctor.
A council of fuqaha'
There is another recommendation which I wish to make, and the
more fully I explain what I have in mind the better it will be.
At the present time, when branches of specialization exist in
every science, resulting in breathtaking advances in these
sciences, there is another practice which, in its turn, has
acted as a contributing factor, and this is practical and
theoretical cooperation between first rank scientists and
specialists in all the branches of science. Now, solitary
theorising or experiment no longer has any value, nothing is to
be achieved from going one's own way. In every branch, scholars
and scientists are constantly engaged in exchanging ideas; they
put the results of their thinking at the disposal of other
specialists, and the scientists of one continent cooperate with
those of another. The result of this theoretical and
experimental cooperation between first rank scientists is that
if a useful and valid theory is put forward, it can be published
and establish itself more quickly, whereas, if a theory is weak,
its failing can be discovered and it can be eliminated sooner,
so that in the future the pupils of the authorities who
developed these theories will be saved from these errors.
Unfortunately, we still have not created any division of labour
or specialization among ourselves, no practical or theoretical
cooperation, and it is clear that as long as this is delayed,
progress and the solution of difficulties cannot be achieved.
There is no need for a proof of the need for scientific
cooperation and the exchange of ideas since it is so
selfevident, but so that it may not be doubted, I shall show,
by quotations from the Qur'an and "Nahj alBalagha ", that this
recommendation, this progressive order, is to be found within
Islam itself.
In the Qur'an, in the sura called alShura (Counsel), it is
said:
And those who answer their Lord, and perform the prayer, their
affair being counsel between them, and expend of that We have
provided them with. (42:38)
This verse describes the true believers and followers of Islam
in this way: they reply to the call of God, they establish
prayer, they do their work in consultation with each other, and
they dispose of that which God has bestowed on them. So, in the
view of Islam, consultation and the exchange of ideas is one of
the basic principles of life for people of faith, the true
followers of Islam.
In "Nahj alBalaqha" it is said:
Know that a group of the slaves of Allah with whom knowledge of
Allah was entrusted keep His secret; they cause His springs to
flow (i.e., they open the springs of knowledge for the people),
they have friendly relations with one another and feelings of
affection, they meet each other with warmth and cheerfulness and
love, they quench each other's thirst from the cup of their
acquired knowledge, and they emerge with their thirsts quenched.
If scientific consultation were to come into existence in the
science of fiqh, and the principle of the exchange of ideas were
to be thoroughly practiced, many of the differences between
legal opinions would be resolved, quite apart from the advances
that would be made in the science as such. There is no
alternative: if we maintain that our fiqh is also one of the
world's genuine sciences, we must make use of the methods used
in the other sciences. If we do not, the result will be that it
will no longer be considered a science.
I have other useful and urgent recommendations, but my time is
running out and I cannot mention them now, for it would take
almost another three quarters of an hour, and I know that some
people have a long way to go to reach their homes.
The verse of the Qur'an which I quoted at the beginning was:
It is not for the believers to go forth all together; but why
should not a party of every section of them go forth, to become
learned (yatafaqqahu) in the religion, and to warn their people
when they return to them, that they may beware. (9:122)
This verse explicitly instructs that a group of the Muslims
should study (tafaqquh) their religion and let others benefit
from what they have studied. Tafaqquh is from the root fqh.
The meaning of fiqh is not mere understanding: rather, it is
deep understanding of, and perfect insight into, the truth of
something. In his "Mufradat", Raghib [46], says:
Fiqh is the reaching for hidden knowledge by means of manifest
knowledge.
Taffaquh is defined as:
Going after something and becoming expert in it.
The above verse is addressed to Muslims whose understanding of
Islam is not superficial, telling them to think deeply and
discover the meaning and the spirit of the rules of Islam. This
verse is the evidence for ijtihad and the study of fiqh, and it
is also the evidence for our recommendations. Just as this verse
lays the foundation for ijtihad and tafaqquh in Islam, so also
it advocates that these two things should be more widely
practiced. More attention should be paid to what is required,
the `ulama' should start to sit in fiqh counsels, the
individualistic approach should be discouraged, and branches of
specialization should be created, so that our fiqh may continue
on its path of perfection.
Footnotes
Tehran, 1962.
Lambton, A.K.S., 'A reconsideration of the position of the marja`
taqlid and the religious institution., Studia Islamica, XX
(1964), 115135. (See also, alSerat, Vol Vll, No. 1 (1981), p.
1227)
For further information on these two persons, refer to the
section by Yann Richard on 'Contemporary Shi`i Thought' in:
Keddie, N.R., Roots of Revolution: an Interpretative History of
Modern Iran, New Haven, 1981.
See the author's introduction to the new edition of: Mutahhari,
M., "llalGirayish bi Maddigari' Qum, 1980, pp. 89.
The collection of orations, homilies and letters of the first
Shi`i Imam, `Ali b. Abi Talib, compiled by the Sharif alRadi
(d. 406/1015).
For these and many other details of Mutahhari's life and times,
reference should be made to the article 'Sayri dar zindigiyi `ilmi
va inqilabiyi ustad shahid Murtada Mutahhari', in: `Abd
alKarim Surush (ed.), Yadnamayi Ustad Shahid Murtada Mutahhari,
Tehran, 1981, pp. 319380.
It was reopened after the revolution.
For a complete list of his published and unpublished works,
refer to: `Abd alKarim Surush, op. cit., 436556.
The translation of Qur'anic verses and hadiths has been made in
accordance with the author's own Persian translation except
where this is more an interpretation than a translation, in
which case a more literal English translation is given.
This address was given on 1 Urdibihisht 1340 Sh. (21 April
1961), three weeks after the death of Ayatullah Burujirdi.
(Cairo, 1940) The main work in jurisprudence by Abu `Abdillah
Muhammad b. Idris al-Shafi`i (150/767 204/820), the founder of
the Shafi`iya legal school. He laid the foundations for the
systematic treatment of qiyas.
The Sayyid `Abd alHusayn alMusawi Sharaf alDin (1290/18734
1377/19578), born in Kazimayn, educated in Najaf, but
subsequently resident mostly in the Lebanon. He is popularly
famous for his ''alMuraja`at'' (Sayda, 1355/19367; frequently
reprinted), which contains his detailed correspondence with the
Egyptian scholar Salim alBishri in defense of Shi`ism. His "AlNass
was lIjtihad" was published in Najaf in 1375/19556, and has
also been reprinted several times. He is also the author of "Abu
Hurayra" (Sayda, n.d.), a book about the controversial narrator
of hadith.
"AlKafi fi `Ilm alDin", (ed `A. A. Ghaffari, 8 vols., Tehran,
13779) the first and largest of the Shi`i collections of
hadith, compiled by Muhammad b. Ya`qub b. Ishaq alRazi al-Kulayni
(d. 328/939). It contains over 16,000 traditions from the
Prophet and the Imams covering all aspects of the usul (the
'roots', mainly theological) and the furu` (the 'branches',
mainly preceptual) of the religion.
The khabar alwahid is that kind of tradition which has not
reached the status of tawatur, i.e., has not been narrated by so
many traditionalists that there is no doubt about its validity.
Under certain conditions, such traditions are admissible as
proof (hujja) in the derivation of precepts.
Abu Ja`far Muhammad b. alHasan b. `Ali alTusi (385/995
460/1067), the Shaykh alTa'ifa (the Chief [scholar] of the [Shi`a]
Sect), author of ''`Uddat alUsul" (Tehran, 1314).
Jamal alDin Abu `Amr `Uthman b. `Umar b. Abi Bakr b. Yusuf, Ibn
alHajib (570/1174 646/1249), the Maliki legist, author of "Muntaha
alSu'al wa lAmal fi `ilmay alUsul wa lJada"' which he
condensed into his "Mukhtasar alUsul". Besides alIji's
commentary on this abridgement, there is also one by the `Allama
alHilli (see below, note 19), called "Ghayat alUsul" which he
wrote to refute alIji's (see: ''alDhari`a'', XIV, p.56).
Abu Hamid Muhammad alTusi alGhazali (450/1058 505/1 111),
who followed the Shafi`i madhhab. The full title of his work on
jurisprudence is "alMustasfa min `ilm alUsul" (2 vols, Cairo,
1356).
The main substantial difference between Shi`i and Sunni ijma` is
that the former must contain the opinion of the Imam in the
consensus. The discussion of how this can be achieved during the
Imam's occultation forms one of the important parts of the
science of usul.
Jamal alDin Abu Mansur, Hasan b. Yusuf b. `Ali b. Mutahhar, the
`Allama alHilli (648/1250 726/1325), the famous legist,
philosopher and mutakallim, author of "Tahdhib Tariq al Wusul
ila `ilm alUsul'' (Tehran, 1308).
Abu Ja`far, Muhammad b. `Ali b. alHusayn b. Babawayh alQummi
(d. 381/991).
These are: "alKafi" (see note 13); "Man la Yahdurahu lFaqih "
(ed. H. M. Khirsan, 4 vols, Najaf, 1957, by 195862), also by
alTusi.
The fourteen "impeccables": i.e., the Prophet, his daughter
Fatimat alZahra, and the twelve Imams.
After the student of fiqh has mastered the necessary sciences,
he may, if his teacher considers him to be capable of deriving
his own legal opinions, receive a certificate authorizing him to
do so; but he still cannot be followed by others in taqlid. For
this to happen, he must rise to the final degree and become a
marja` altaqlid, where other qualities besides just his
scholarship, e.g., his piety and conformity to the shari`a,
cause him to be respected above other mujtahids, and thus to
become a source of certainty to his muqallids that in following
him they will not deviate from the shari`a.
This is a question of certainty (qat`, yaqin): the evidence for
the existence of a precept must be such as to leave no room for
any kind of doubt in the mind of the person who models his
behaviour according to it; in the case of proofs concerning
sensory evidence, the very data themselves are only probablistic,
so no proof employing them can arrive at demonstrable certainty.
Therefore, in such a proof, other probabalistic elements such as
`aql are admissible, but these cannot be used to derive the
precepts of the shari`a.
Muhammad Baqir b. Muhammad alBihbihani (11168/17047
1208/17934).
The Shaykh Murtada b. Muhammad Amin b. Shams alDin b. Ahmad b.
Nur alDin b. Muhammad Sadiq alShushtari alDizfuli alAnsari
(1214/1799 1281/1864), whose "Rasa'il", on usul alfiqh were
published as "Fara'id alUsul''(Tehran, 1296). His works in usul
and fiqh now form the backbone of the presentday teaching of
these subjects.
One of the `atabat, the Shi`i sacred towns in Iraq, the site of
the battle where the third Imam, alHusayn, and his followers
were massacred on 10 Muharram 61/680. It is about 95 kms. S.S.W.
of Baghdad.
The Shaykh Yusuf b. Ahmad alBahrani (d. 1186/1772), author of
''alHada`iq alNadira Ahkam al`Itra alTahira" (ed. M.T.
alIrwani, 20 vols., Najaf, 1377 ).
a) Ja`far b. Khidr b. Yahya alNajafi (1164/751 1227/1812),
known as "Kashif alGhita `an Mubhamat alShari`a alGharra"
(Tehran, 1271). b) The Sayyid Muhammad Mahdi b. Murtada b.
Muhammad b. ` Abd alKarim alHasani alHusayni (11545/17412
1212/1797), known as the Sayyid Bahr al`Ulum. c) The Sayyid
Muhammad Mahdi alShahrastani alHa'iri b. Abi'lQasim alMusawi
(d. 1216/1801).
Muhammad Baqir b. Muhammad Taqi b. Maqsud `Ali alMajlisi
alIsfahani (1037/1627 1111/1700), compiler of the
encyclopaedic collection of Shi`i hadith, "Bihar alA nwar" (110
vols, Tehran, 1376 [vol. VIII, Tehran, 1304])
The Sayyid Ni`mat Allah b. `Abdillah b. Muhammad alMusawi
alJaza'iri (d. 1112/1700), a pupil of the `Allama alMajlisi
(see previous note).
Muhammad b. Murtada b. Mahmud Muhsin alKashani (d. 1091/1680).
It is to be understood that tawatur is a proof of certainty
according to the science of usul al-fiqh, and that it has been
so established independently of textual proofs. This rational
view was challenged by the Akhbaris precisely because of the
lack of textual backing.
Protecting the nafs, the soul, the greater, moral jihad, as
opposed to the lesser jihad of protecting Islam against the
external enemy.
One kurr of water is approximately 377 litres. In religious law
if an amount less than this comes into contact with a
religiously impure thing, the water too becomes impure, whereas
above this amount the purity is not endangered.
`Abd Salih, the "Righteous Servant". For this story see the sura
of "alKahf', 60 82.
Since he obviously refrains from such activities.
According to a commonly accepted ruling, this applies only to
those matters which the muqallid formerly performed according to
the fatawa of the subsequently deceased marja` al-taqlid. If any
new matter arises for him, he must follow the fatwa of a living,
`adil mujtahid
Two principles (usul `amalia) for the preponderance of one
opinion over another in fiqh. If one opinion is chosen over
another `ala laqwa, it is chosen because the proof for it is
thought to be stronger; if it chosen `ala lahwat, it is because
of the principle of precaution (ihtiyat) which requires that
what is least likely to be at variance with the shari`a should
be adopted. It will be appreciated that there may be a good deal
of rather trivial argument as to whether one or the other of the
two opinions should be chosen, according to which of these two
principles is preferred.
a) for "Fara'id al Usul", see above, note 26. b) "Kitab
alMakasib", also by the Shaykh alAnsari, an extensive
exposition of the section in fiqh on transactions. c) "Kifayat
alUsul" (2 vols, Tehran, n.d.) by "Akhund" Mulla Muhammad Kazim
alKhurasani (d. 1329/1911), a systematic text on usul alfiqh.
After the student (talaba, lit. 'seeker') has completed his
reading of the main texts and mastered the necessary preliminary
sciences, he may continue to the more detailed, but also more
specialised, courses given by the main teachers of the subjects
concerned. These lessons, the darsi kharij, are kharij to
(outside, beyond) the texts, and the teacher will expound his
own opinions, thus teaching the actual practice of ijtihad. The
teacher will be able to assess the abilities of his pupils in
these classes, and, in the case of fiqh, may subsequently award
a certificate of ijtihad to those he considers to have mastered
all the required skills and to be consequently in a position to
employ them to arrive at their own legal opinions (see also
above, note 23).
a) "Wasa'il alShi`a" (ed. `A. alRabbani M. alRazi, 20 vols,
Tehran, 1376 1389), by the Shaykh Muhammad b. alHasan alHurr
al`Amili (d. 1104/1693); the most comprehensive collection of
hadith relevant to fiqh, arranged according to subject matter.
b) "Jawahir alKalam" (ed. `A. Quchani et al., 43 vols,
Najaf-Qum-Tehran, 13771401), by the Shaykh Muhammad Hasan b.
Baqir alNajafi (d. 1266/1849); an extensive commentary on the "Sharayi`
alIslam" by the Muhaqqiq alHilli (602/1202 676/1277).
The Shaykh `Abd alKarim b. Muhammad Ja`far alMirjirdi alYazdi
alHairi (1276/185960 1355/1937), whose move from Arak to Qum
in 1920 began the modern history of that city as a centre of
Shi`i learning.
The Sayyid Ahmad alHusayni alZanjani (1308/1890 1393/1973),
a Qummi scholar. His "alKalam Yajurru lKalam" (3 vols, Tehran,
1363/1944) is a compendium of historical, literary, biographical
and hadith information.
By the Shaykh alAnsari.
"AlMufradat fi Gharib alQur'an'', (ed. M. S. alKilani, Cairo,
1961), by Abu lQasim alHusayn b. Muhammad b. alMafdal
alIsfahani (d. 502/11089), a famous lexicon of obscure
meanings in the Qur'an.
Courtesy: al-Serat, Vol X, No. 1, published by Muhammadi Trust,
London, England
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