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Islam and the Issue of Jurisprudency

Islam and the Issue of Jurisprudency

Islam and the Issue of Jurisprudency

Islam and the Issue of Jurisprudency

 

Islam and the Issue of Jurisprudency (Ijtihad)

 

The article hereunder translated into English, first appeared in the collection "Bahthi dar barayi Marjaiyat 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 maarif 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 Shii 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 marjas, 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 Shii society in general, for it united people, at least as inhabitants of the same universe of duties and obligations, under their marjas, but the events leading up to the revolution demonstrated the power that the marjas 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 Shii 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 Shii Muslims: one which is in accordance with the sharia, and one which is forbidden by it. Similarly, taqlid is of two kinds: one which is in accordance with the sharia, 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 Shii 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 sharia, 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 sharia 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 Muadh 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), (...) alShafii 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 taawwul in which, although a ruling may have been reached in one of the nusus [the textual bases for a precept of the sharia 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 ShiiSunni 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 Shii Muslims, such a kind of ijtihad is not permitted by the sharia. In the view of Shii 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 bida [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 (mawduiya) [element in law], or a methodological (tariqiya) [principle].

 

In Shii 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 Shii 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 taawwul 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], alShafii; [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 Shia. Up to that time, the Shii 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 alAdudi, 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 sharia, and was defined as "the maximum employment of effort and exertion in deducing the rulings of the sharia from the valid proofs (adilla, sing. dalil, see below ). However, it is another matter to decide what the valid proofs of the sharia are: whether qiyas, istihsan, and so forth, are among them or not.

 

From this time onwards, the Shii ulama also adopted this word because they accepted this [general] meaning. This kind of ijtihad was a kind approved by the sharia. Although the word had originally been one to be avoided among the Shia, 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 Shii 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 (mawdui) just like qiyas, whereas the Shia 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 Shia 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 sharia. 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 sharia 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 Shia 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 Shia is ra' y and qiyas, which were originally called ijtihad, whether this is counted as a source of the sharia 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 sharia 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 Shia 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 Shii 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 Shiis, 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] (qati alsudur).

 

In his book, ''Uddat alUsul", the Shaykh alTusi mentions a group of former Shii 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 masumin [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 alUlum 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 masumin said."

 

In the chapter on ihtiyat and bara'a (precaution and exemption from obligation) in his "Fara' id alUsul" the Shaykh alAnsari quotes from Nimat 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 masumin ordered and that everywhere there was no word from the masumin 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 masumin (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 masumin, but submission to ignorance. If it is really certain that the masumin 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).

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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 iqtiat. 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 sharia], 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:

 

Ismail yashhadu an la ilaha illa llah (Ismail testifies that there is no god but Allah).

 

Now the reason [they say] that the testimony is to be written in the name of Ismail is that it is narrated in a hadith that the Imam alSadiq wrote in this way on the shroud of his son Ismail. The Akhbaris had never stopped to think that it was written thus on his shroud because his name was Ismail; and that now, for example, that Hasan has died, they should say: "We should write his own name on the shroud, not that of Ismail.'' 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 sharia.

 

Let us now turn to taqlid. It is [as was said before] of two kinds: licit and illicit [in terms of the sharia]. 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 (alalim), 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 sharia 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.

 

Footnotes

 

[1] Tehran, 1962.

 

[2] 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)

 

[3] For further information on these two persons, refer to the section by Yann Richard on 'Contemporary Shii Thought' in: Keddie, N.R., Roots of Revolution: an Interpretative History of Modern Iran, New Haven, 1981.

 

[4] See the author's introduction to the new edition of: Mutahhari, M., "llalGirayish bi Maddigari' Qum, 1980, pp. 89.

 

[5] The collection of orations, homilies and letters of the first Shii Imam, Ali b. Abi Talib, compiled by the Sharif alRadi (d. 406/1015).

 

[6] 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.

 

[7] It was reopened after the revolution.

 

 

[8] For a complete list of his published and unpublished works, refer to: Abd alKarim Surush, op. cit., 436556.

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