Fatawa >Preamble to the Science of Jurisprudence --- Taqleed and Ijtihad

 

Preamble to the Science of Jurisprudence --- Taqleed and Ijtihad



Foreword                                        

1. In the religion of Allah there are orders and prohibitions. He holds His creation accountable for them. There is no way the mukallaf would know that he carried out a devotion prescribed by Allah, and refrained from what He has decreed unlawful, only if he is, in all what he upholds or forsakes, a mujtahid in the rules of shari’a law, or a follower of a competent authority, or one who practices ihtiyat (prudence, or precaution,: level of legal opinion, or ’muhtat’ - a person who is neither a mujtahid nor a follower, but bases his religious practice on either his own knowledge and ijtihad in the precepts of religion or follow a mujtahid). 

This is true of matters that are not commonplace, such as the obligations of fasting, prayer, the prohibition of adultery and usury. The same is also right of matters that are clear-cut, i.e. they do not require a lot of effort or study, like some obligations, and the majority of the mustahab (voluntary and meritorious act of worship, and most of the mubah (permissible act)؛ such is known by people with a religious upbringing; and example of this is the obligation on a wife of observing a waiting period after the death of her husband; the same goes for a young wife who is divorced after the marriage has been consummated; taking to remembrance and dua’ (supplication) and the permissibility of consuming fruits. These rules require none of these: ijtihad, taqleed, and ihtiyat.

Taqleed is not called for in reaching personal satisfaction through applying one’s own acquired knowledge in accepting what is true or distinguishing between the nature of things. To give an example, you may be able to differentiate between, wine, and vinegar when they are presented to you; the marji’ may not, since he is absent. Therefore, you must exercise your discretion according to your knowledge.

2. Ijtihad is the scientific capability of the person to deduce a legal opinion from the whole body of principles of the faith.
Ihtiyat is the execution, by the mukallaf, of any act which may involve an order or an obligation where prohibition is not possible. It is also refraining from doing that which may prove prohibitive or haraam where it is not possible that it is an obligatory one.

3. Taqleed is emulating a jurist as a paradigm. It is realized by acting, or intending to act, as may the circumstances dictate, upon the fatwa of a given mujtahid. This is sufficient for taqleed to be considered sound; this also opens the way for the follower to stick by the fatwa, even after the death of the mujtahid he was following, as will be discussed later.


Taqleed                                               

4. Taqleed is the most practical way for people to resort to. It is quite natural to seek the guidance and help of those specialized in the different disciplines. Taqleed is therefore an obligatory duty on everybody who has not attained the level of ijtihad.

The person who should be followed must be adult, sane, of a legitimate birth, believer, mujtahid - practicing ijtihad is a prerequisite - and just. As for the condition that the mujtahid be male, it is a matter for contemplation. As a matter of ihtiyat, it is also conditional that the mujtahid be among the living, if he was to be followed for the first time. This should not the case, if the follower were to adhere to the fatwa of the mujtahid, he followed during his life time, even after his death; this is also true, if the follower has sought the approval of a fully-fledged living mujtahid for remaining on his following of the dead mujtahid.

5. Suppose there were many jurists around. Is it permissible to emulate any of them, or does it have to be the most learned among them?
A. It is not obligatory to emulate the most knowledgeable. It suffices to follow any one of them, provided that he is a practicing mujtahid as has been discussed.

6. How can a person know the mujtahid so described?
A. He can be recognized by a number of ways, among which are:
a. The testimony of two just witnesses among the competent mujtahids, or luminaries, who are capable of academic appraisal. The meaning of ’just’ will be discussed under paragraph (27) of this chapter.
b. The follower’s own experience and first hand knowledge, i.e. if he had the knowledge that allows him to express an opinion, even though he is not a mujtahid himself. Finally, any other means that may lead the follower to reach certitude that particular alim he has followed is a jurist. Thus, he can be justified in following the jurist in matters of religious practice. 
An example of this method is the jurist’s popularity, in that it could be widely believed within the circles of Ulama and dignitaries, or within the Islamic nation (Ummah) that he is capable of deducing legal opinion. This may lead to personal satisfaction that the alim you have entrusted your religious affairs to is really mujtahid.

7. Is it permissible to switch one’s following from one jurist another?

Yes, it is.

8. In taqleed, is it good enough to follow a particular jurist in certain matters and another in other matters?
A. Yes, it is permissible, provided that when you switch to another jurist in a particular matter, you should abide by his fatwa, especially when you know that changing your mind again would certainly entail committing a wrongdoing (mukhalafah). For example, if you have shifted to a jurist who is of the opinion that a given act is haraam, then changed course again to another jurist who sees it is wajib (an obligatory act of worship), you are not allowed to change again.

9. The follower can know the fatwa of his jurist by one of these ways:
a. Face to face contact.
b. The fatwa can be communicated to him through two witnesses of impeccable character. Their testimony should serve as evidence.
c. The follower can be notified by a person of unblemished character, or another whom he knows to be truthful, and reluctant to tell lies, even though he may not be just or devout in all his conduct; we describe this type of person as ’trusted’, and wherever we mention such an adjective, it also covers that of the "just".
d. The follower may find the fatwa in a book written, or endorsed, by the marji’, such as the dispensation on matters of religious practice (ar- risalal amaliyah).

10. Suppose that the follower came to know, from two different people - both are of impeccable character, of two conflicting fatawas. What should he do?
A. If the two sources were quoting two different dates for their knowledge of the fatwa, the follower has to act on the fatwa with the more recent date. For example, the first person may be talking of a fatwa he knew of a year ago, whereas the second may be talking of a fatwa he knew of a month ago; the fatwa which should be acted upon should be the one related by the second person.
If both of them were talking of the particular fatwa, quoting the same date, the follower should not rely on any one of them. Instead, he should resort to ihtiyat until the matter is clarified.

11. The follower may doubt that the fatwa of the marji’ has changed, and that it is possible that he has already changed to a new one. In this case, he must stick by the previous fatwa on the basis that it is still valid, unless there is a legal proof to the contrary.
The follower may doubt that the marji’ has failed in meeting all the conditions necessary to be marji’. In this case, he must take the initiative to investigate the matter. During the investigation period, he must adhere to the fatwa of his existing marji’. If he finds out that the marji’ is still fulfilling all the conditions, he should stay loyal to him. 
He may find out that the marji’ has fallen short of satisfying all the conditions. Or he may not find anything, yet the doubts have dented his confidence. In such a case, he should change to the marji’ who fulfils all the conditions. As for legitimizing his past acts, he should resort to the new marji’, if he knows how to go about it. Otherwise, he should consider them correctly executed.


12. While offering prayer, the follower may experience a situation where he thinks it could have detracted from the validity of his prayer. He may not be that conversant with the guidelines of rectifying the situation. What should he do, especially when it is known that he cannot ask about the remedial action while praying?

A. It suffices that he does what he believes to be right under the spur of the moment. However, he should consult his marji’ for the right directive and act upon it. He cannot forsake such a consultation and rely solely on the action he took there and then.


13. If the marji’ dies, what should the follower do?
A. He has the choice of sticking by the marji’ or changing to another one.

14. If the follower chose to change to another marji’, how should he go about the acts of worship he had performed, such as prayer and fasting?
A. He is not required to repeat any of the previous acts of worship, where the opinion of the newly adopted marji’ differs from the previous one in such matters where the person who is not conversant with the rules cannot be held responsible. For example, under the previous marji’, the follower was required to say once, the tasbih (utterance of subhanal lahi wal hamdu lillahi, wala illaha illal lahu wallahu akbar) in the third and fourth ruku’ (the bowing position) of prayer. However, under the new marji’, he must repeat it three times. Differences of this kind do not warrant repeating previous prayers.

However, the differences between the two marji’s may be in the rules governing wudhu (ablution required before the performance of certain acts of worship), tayamum (lit. intending or proposing to do a thing - dry ablution, i.e. using dust instead of water, as in the cases of wudhu and ghusl when, for specific reason, these acts are not possible), ghusl (obligatory bathing which is required after certain acts or occurrences), or the fundamental parts of prayer. In such a case, the person who is not aware of the rules would be held accountable, when contravening them. 
In ghusl, for example, the previous marji’ may not call for the sequential washing of both the sides of body, whereas the new believes that the order of washing must be observed. Here, the follower should regard all his bygone acts of worship [of this nature] as null and void. Thus, he should hasten to repeat the same, time permitting. If not, he should perform them qadha(in lieu - when any act of worship is performed at a later time, see ada’).

15. The agent or the guardian of any person should act according to the taqleed of that particular person, for the simple reason that if he were to resume his affairs in person, he would certainly abide by the fatwa of his own marji’. 

However, if a certain action runs contrary to the agent’s own taqleed, he should resort to ihtiyat. This is the case in ibadaat (acts of worship). Insofar as mu’amalaat (transactions) are concerned, the agent should act according to the remit of the power of attorney without exception.

As for the actual person, he should be acting pursuant to his own taqleed, in that he has to consider the opinion of his marji’ as the final authority; this should be the case not only when conducting his own affairs, but rather in all matters relating to him. For example, a particular person embarks on a given transaction, by selling one Pound sterling in cash to be repaid in a Pound sterling and a half at a later date; his arbiter in so doing is the fatwa of his own marji’. That said, the other party to the deal happened to be following a marji’ who sees otherwise. In such a case, the second party should abide by the fatwa of his marji’, thus ruling the deal to be null and void, and the money received by the first party illicit. He should therefore not allow himself to be party to such a transaction. 

Any two parties may enter into a sale contract which involves offer by the seller and acceptance by the buyer. In this case, it is not permissible to either party to rule the deal valid, unless it concurs with the opinion of their respective marji’. The party who concludes that it does can go ahead, should the other party be intent on agreeing on the text of the contract.

The only exception here is when a person commits a wrongdoing through ignorance, i.e. not knowing the rules. In such a case, his action is deemed correct.


Ijtihad                                                

16. Ijtihad is a collective type of obligation )wajibun kifa’ie(, i.e. it is imposed on the Muslim community at large, in that if some members take it upon themselves to discharge it, the rest are absolved of the responsibility. Conversely, if all Muslims neglect the obligation of ijtihad, all will be deemed sinful.
The shari’a has not prescribed a ceiling for the number of mujtahids. It is determined by the need that may arise from time to time.

17. Ijtihad is of two types:

One is complete; the jurist who attains this level of ijtihad is called "an absolute mujtahid" - mujtahid mutlaq. Such a mujtahid is capable of deducing legal opinion from its respective source in the different fields of fiqh (jurisprudence).The other is incomplete; the jurist who manages thus far is partially equipped, i.e. having attained ijtihad only in some branches of the shari’a. Thus, he is capable of deducing a limited legal opinion.
Both the mujtahids can practice ijtihad, within the bounds of their own capability of arriving at legal judgments from their respective sources. Each one of them can express his views and fatwa.

 However, they are dissimilar in some other aspects as will be discussed in the following paragraph.
18. If the fully-fledged, or absolute, mujtahid meets all the conditions laid down by the shari’a for the marji’, discussed under para(4), the mukallaf can follow him. The mujtahid can also exercise general guardianship (wilayah aammah) over the affairs of Muslims, provided that he is competent all round. 
The absolute mujtahid qualifies to head the judiciary; by virtue of this he is called judge, or religious authority, (al-hakimush shari’i).

The fledgling mujtahid cannot exercise general guardianship over the affairs of Muslims, but his legal judgment, [i.e. in a judiciary setting], has a legal force, even in cases where he might not be more knowledgeable than some other mujtahids. It is permissible for the common man to follow his legal opinion, although his knowledge could be inferior to that of some other mujtahids.

There falls under the definition of guardianship of the mujtahid such things as safeguarding the affairs of minors, such as the orphan and the mentally handicapped, public endowments, should they have no guardians of their own. The guardianship of the mujtahid over such affairs could be direct or through intermediaries.

If the mujtahid appointed someone for this purpose, then , he passed away, is the appointee justified in continuing to exercise his attorney?
A. If the dead mujtahid had appointed the agent (wakeel) to run the affairs of a particular party on his behalf, the attorney is no longer operative after the death of the mujtahid. The agent should therefore turn to a living mujtahid.

However, if the deceased had granted the person guardianship, by such wording as, "I make you the guardian over the possessions of this orphan", it remains enforceable, even after his death.
If the religious authority (al-hakimush shari’i) rules in a case based on the public interest, all Muslims should uphold the ruling. There should be no excuse for anyone who may think that such public interest is not important. To give an example, the shari’a has prohibited the monopoly of certain essential merchandise, leaving it to the religious authority to use his discretion to ban free trading in other types of goods by fixing such prices to serve the public interest. If he exercised such mandate, he must be obeyed.

19. It is forbidden for someone who is not mujtahid to issue a fatwa. However, it is not forbidden for someone who is a Mujtahid, but not wholly qualified to be marji’, to issue a fatwa by way of making his opinion known; it is forbidden for him, though, to declare himself an authority for the others to follow.

20. It is forbidden for someone to be judge, if he is not trained and consequently qualified in the discipline. By the same token, it is forbidden for defendants to be tried by him; the same goes for those who are called to give evidence before him. Any judgment of compensation, for instance, passed in favor of any party of a lawsuit is unlawful to be had.

However, it is permissible for the side to have redress before such a judge. Should his judgment on the matter be sound, and the disputed claim relates to something tangible he should receive back the same; if it were debt, he should obtain the permission of the religious authority to restore it.

21. The fully-fledged mujtahid may pass judgment in a dispute between two persons. Provided that he spares no effort in applying justice, no other mujtahid shall have the right to overturn the decision, even if the latter is absolutely sure that the party in whose favor the judgment was passed is not in the right.

22. Suppose the mujtahid passed judgment in a disputed ownership of a house in favor the plaintiff. There might be someone who knows that the house belongs to the defendant. Should this person conduct himself in terms of the truth he knows, or according to the judgment of the mujtahid. For instance, if he were to rent the house, whom should he approach, the first party or the second?
A. He should act according to his own knowledge. As for those who are not in a position to know for sure that the house does not belong to the plaintiff, they should abide by the judgment of the mujtahid; it is not permissible for them to disobey it.


Ihtiyat                                                 

23. Ihtiyat is the third way to pious deeds.
It is of two kinds. The first requires repetitive action; the second does not require it.
Here is an example taken from the duty of prayer. In the repetitive action, the mukallaf may not be aware that, in certain circumstances, it is obligatory on him to perform Dhuhr prayer by way of quasar (a shortened form of prayer - a concession for a musafir ’traveller’ to perform a two-raka’a prayer instead of the full four-raka’a one; see tamam), i.e. two raka’a instead of four; it could also be the case that what is required of him is that he must say it tamam (a full four-raka’a prayer; see qasr). Yet he is at loss as to the right course of action. If he resorts to ihtiyat, he must offer that particular prayer in both modes, that is to say, once qasr and the other tamam.

In the second, which does not require repetitive action, the mukallaf may not be aware of the rule governing iqamah (a shortened form of adhan, heralding the inauguration of prayer), in that he does not know whether it is wajib or mustahab (a voluntary, and meritorious, act of worship; see wajib - obligatory). Should he choose to apply ihtiyat, he could utter iqamah and offer prayer. This does not entail repetition. 

Both the types of ihtiyat are permissible, regardless of whether or not the mukallaf was capable of arriving at the legal requirement with utmost precision, by way of taqleed, or indeed was not in a position to do so.

24. However, this does not mean that the layman can do away with taqleed by taking to ihtiyat. This is because acquiring knowledge, of the manner through which ihtiyat is achieved, requires wide expertise in the field of jurisprudence. It is therefore necessary that the person who applies ihtiyat be conversant with all the situations that may entail obligatory action to be taken, on the one hand. On the other hand, he should also be acquainted with all the things that may require him to steer clear from committing what could be haraam. 

25. In addition to that, applying ihtiyat may not be feasible at all, in that the devotee may be apprehensive that his action may put him at loggerheads with the dictates of Allah, the Exalted, in any case. Thus, he will not be in a position to ascertain that he complied with what Allah has decreed lawful or otherwise, unless he has full and specific knowledge of the rules.

26. There is many a situation where the worshipper is not quite sure that he has conducted himself in the most acceptable manner insofar as the legal requirements are concerned, hence the need for prior knowledge of the rules governing his conduct. This is because falling back on ihtiyat at a given situation may not be feasible without that knowledge. For example, the doubt in the number of raka’a in prayer requires the worshipper to be aware of the rules, so that he could take remedial action. The worshipper must also acquire knowledge of the means of addressing any inadvertent additions or omissions in a given act of worship.

In general, it is incumbent on every mukallaf, man and woman, to be knowledgeable in matters of religion and the laws governing them. Equipped with such acquired knowledge, the mukallaf will be capable of dealing with any eventuality.
Neglect of duty under the pretext of ignorance, as to whether or not they are obligatory, is not excusable; so is improperly discharging them due to lack of detailed knowledge. To absolve oneself of the responsibility before Allah, the Most High, one should be sensitive to what is required of him in discharging his obligations, such as prayer and fasting, in the most acceptable manner. 


Probity                                                                              

27. As we have already concluded, probity is one of the conditions the marji’ should fulfill. It is also a legal requirement in numerous other situations, such as:
Probity could be defined as strict adherence to the Islamic shari’a law. Allah The Almighty, has declared in His Holy Book,

"Continue then in the right way as you are commanded, as also he who has turned (to Allah) with you, and be not inordinate (O men!), surely He sees what you do". (11/112).

He also said,

"And that if they should keep to the (right0 way, We would certainly give them to drink of abundant water,.." (16/72). 

That said, probity should come naturally and be constant, as though it is part and parcel of the character of the person thus described. There is no difference here between refraining from commissioning a serious sin or a petty one, nor between embarking on a tiring obligatory act of worship or any other act, so long as submission of the devotee is an integral part of obeying what Allah has ordained halal, and shunning what He has decreed haraam. As for him who is lethargic vis-à-vis Allah’s laws, he is among those referred to in the ayah (lit. a sign - a unit, or verse, of the Holy Qur’an),

"And seek assistance through patience and prayer, and most surely it is a hard thing except for the humble ones". (2/45).

Among other instances where probity should be manifest are public guardianship of Muslim affairs, the judiciary, leading congregational prayer, giving evidence in court, and witnessing a divorce procedure. All these responsibilities call for anyone involved in them to be of an impeccable character and unwavering faith in the dictates of the shari’a. The heavier the responsibility, the more deep-rooted rectitude is required, for it is the safety net against lapses. This is true of the high standard of morality and integrity required of those who take it upon themselves to be marji’. 

28. Probity can be proven by any of the following:
a. First hand information and personal experience.
b. Testimony of two witnesses of unblemished character.
c.. Testimony of a trusted person (thiqah).
d. The person in question can readily be identified, through the way they conduct themselves, to be righteous, pious, and God-fearing; this is sufficient to call them thus, without the need to reach certainty.

29. If the just person succumbs to his frailties and, in a moment of indiscretion, commits a sin, they can no longer be described as being upright. If they repent, they may be recognized thus afresh, so long as obedience of Allah is the overriding characteristic of their psyche.