Murtada Mutahhari Vol X, No. 1 - The Principle of Ijtihad in Islam [Electronic resources] نسخه متنی

The Principle of Ijtihad in Islam

Murtada Mutahhari Vol X, No. 1

(Translated by John Cooper. This translation was carried out
during the period of tenure of a Fellowship of the British Institute of
Persian Studies, for which the translator would like to express his gratitude.)

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).
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.
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 sharia. 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.

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 Shii 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 Shii 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-Shafii (150/767 ­ 204/820), the founder of the
Shafiiya 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 ''al­Murajaat'' (Sayda, 1355/1936­7; frequently
reprinted), which contains his detailed correspondence with the Egyptian
scholar Salim al­Bishri in defense of Shiism. 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 Shii collections
of hadith, compiled by Muhammad b. Yaqub 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 Jafar Muhammad b. al­Hasan b. Ali al­Tusi
(385/995 ­ 460/1067), the Shaykh al­Ta'ifa (the Chief [scholar]
of the [Shia] 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: ''al­Dharia'', XIV,
p.56).

Abu Hamid Muhammad al­Tusi al­Ghazali (450/1058
­ 505/1 111), who followed the Shafii madhhab. The full title
of his work on jurisprudence is "al­Mustasfa min ilm al­Usul"
(2 vols, Cairo, 1356).

The main substantial difference between Shii 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 Jafar, 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 sharia, 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 sharia.

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 sharia.

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 Shii 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 ''al­Hadaiq al­Nadira Ahkam al­Itra al­Tahira"
(ed. M.T. al­Irwani, 20 vols., Najaf, 1377­ ).

a) Jafar b. Khidr b. Yahya al­Najafi (1164/751 ­
1227/1812), known as "Kashif al­Ghita an Mubhamat al­Sharia
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 al­Ulum. 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 Shii hadith, "Bihar al­A nwar" (110 vols, Tehran,
1376­ [vol. VIII, Tehran, 1304])

The Sayyid Nimat 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.