Fatawa >Preamble to the Science of Jurisprudence --- Introduction
Preamble to the Science of Jurisprudence --- Introduction
In the Name of Allah, the Compassionate, the Merciful
Praise be to Allah, Lord of the Worlds, and Peace and Benediction be
with the Seal of the Prophets, Mohammad, his Pure Progeny and
When Allah, the Exalted, revealed to the Seal of the Prophets the most
honorable of Heavenly Messages, He has guaranteed that it is on a par
with man’s nature. Allah has further ensured that this Message
encompasses man’s whole being from the cradle to the grave.
This is clearly manifested in the Islamic Shari’a Law. It is
the law for all aspects of life that guides man’s steps throughout,
taking account of his special aptitudes and circumstances.
The Need for Ijtihad
The main sources of the Shari’a is the Holy
Book and the Sunnah (modes, practices, customs, and traditions
of the Prophet Mohammad ’s.a.w.’ ). Had the rules of Shari’a
been expressed in a straightforward and explicit manner, the process
of arriving at such rules from the Book and Sunnah would have
been accessible for many people. But, it had not been the case, i.e.
the rules have permeated the body of the Book and Sunnah in
such a way that the process has called for scientific effort in the
study, comparison, and deduction of the rules. Such scientific effort
becomes even more necessary, its tools and means more complex and
subtle, because of the time separating us from that of revelation.
This is particularly so when we know that the time lag has been
responsible for the loss of many a Hadith) Recorded account of
the sayings and actions of Prophet Mohammad ’s.a.w.’).
There has also been the need to verify the veracity of narrators of Hadith,
let alone coping with the change of modes of expression; such change
has made it necessary to develop new ways of making the text more
intelligible. False Hadith that have pervaded the authentic
ones have called for extra vigilance and scrutiny. Furthermore, the
advances in the pace of life and its complexities have created
unprecedented situations which calling for new rulings that should be
deduced from a body laws.
All these and other reasons have led to making the job of deriving the
legal ruling a rather complicated one requiring toil and research,
although this may not be the case in some instances where the rules
are very clear.
The Need for Taqleed
In all its spheres, life has continuously posed man
with situations drawing on experience. So, no matter what discipline
of life you are in, you will know that practicing it requires certain
knowledge and expertise, and that part of this may generally be
available; however, a greater part is not easily accessible, in that
it requires scientific skill. For example, in the field of public
health, it is commonplace that when you are exposed to cold weather,
you may catch cold. Yet, when it comes to the advice on precaution to
avoid falling ill and prescribing medications, this is, to a large
extent, the exclusive domain of the doctor, or chemist, who are
trained in this field. The same goes for the other fields, such as
construction, agriculture, and industry.
Every human being is therefore aware that he cannot
shoulder the responsibility of scientific research in each and every
discipline. This is because it is beyond man’s ability and life span
on the one hand. If, on the other, this were the case, it was bound to
restrict man’s thorough coverage of all the different spheres. Hence
the recognition by the human race of the specialization of groups of
people in the various disciplines. This has been a kind of
distribution of work man has adopted by virtue of his nature since the
dawn of history.
Islam is not an exception; it has followed this example by devising
the principles of Ijtihad)’lit. Exertion’: the process of
arriving at judgments on points of religious law using reason and the
principles of jurisprudence (and Taqleed) the following, by a
lay person, of a learned jurist ’Mujtahid’ in matters of
religious practice (. Ijtihad is the specialization in the
science of Shari’a, and Taqleed is the
trust of the laity put in the experts in this field.
Every Mukallaf (The person
obligated to observe the precepts of religion), who needs to know the
rules of Shari’a law, should rely on his religious general
knowledge for a start. For those aspects of religious dictates, the Mukallaf
is ignorant of, he should rely on the Mujtahid) a jurist who
has studied sufficiently and achieved the level of competence
necessary to interpret Shari’a law (. Allah, the Most High,
did not make it incumbent on everybody to assume the responsibility of
Ijtihad and toil to arrive at the legal judgment, only as a way
to saving time and managing resources in all arenas of life. Allah,
Almighty, also did not require the layperson to try to derive the
legal judgment directly from the Book and Sunnah. He made it
obligatory on them to know such rulings from the learned Ulama(scholars
or doctors of religion).
Thus, Taqleed has become a religious
obligation. Accordingly, Taqleed means the charging with
responsibility. It has been termed as such because it entails
entrusting the Mujtahid with the responsibility as though you
are putting a necklace around his neck. In a way it is a symbolic
contract between the layman and the Mujtahid before Allah. That
said, Taqleed does not mean blind bigotry and believing in
other peoples’ ideas ignorantly and without proof.
Therefore, there is a difference between someone
expressing an opinion and you hasten to adopt it without trying to
verify or substantiate it, and an express one that you follow with the
full knowledge that those proposing it stand to bear the consequences
of your advocating it. The first kind resembles aping, which is
censured by both the Shari’a and logic; the second is the law
of life has sanctioned the true following that.
To make Taqleed a watertight enterprise, some
jurists have ruled that it is obligatory on the Mukallaf to
follow the most erudite among the Mujtahids, where they have
expressed different legal opinions. Others have made it clear that the
layperson has to follow those jurists renowned for their probity; all
of this is in a bid to safeguarding the follower’s interest in
achieving the correct legal opinion of his religious authority. They
have also been unflinching in their opinion of requiring the follower
to switch allegiance to the jurist who is believed to be more capable
and more knowledgeable than the one he follows in Taqleed. This
approach has been adopted to steer Taqleed clear from blind
following and fanaticism.
This has been the route followed by the believers from
the days of the Imams )a.s.( to our present time. The Imams (a.s.)had
made it their duty to instruct the faithful in the different regions
to resort to the following of the jurists there; they did not tolerate
any dereliction of duty in this regard.
The Prohibition of Taqleed in
the Fundamentals of Religion
While allowing Taqleed in matters of Hallal (Lawful for use,
consumption, or to act upon) and Haraam (unlawful or forbidden for
use, consumption, or to act upon) in the branches of religion in the
way we have described, the Shari’a law did not allow the Mukallaf
to resort to Taqleed in matters of religious beliefs. This is
because what is required of him in the fundamentals of religion is
that he should conclude his own conviction in the belief of his Lord,
Prophet, Imam, and religion. The Shari’a has called upon
every human being to be responsible for the tenets of his religion,
instead of following other people and entrusting them with such a
responsibility. The Holy Quran is unequivocal in rebuking anyone who
bases his approval or disapproval of religion on aping others, such as
their forefathers, under the pretext of preserving their way, or as an
excuse of doing away with searching for the truth.
Of course, the fundamentals of religion are (a) well
defined, (b) generally in line with the human nature in such a way
that understanding them directly and clearly is commonplace in the
main, and (c) playing an essential part in the human life. For all
these reasons, it is quite natural for the Shari’a to call
upon man to make a direct effort in looking for these fundamentals and
satisfying himself with the truth. In most cases, such search for the
truth is not an arduous one. However, if there were any hitches on the
way, man is capable of going that extra mile to attain certainty, for
his faith is an integral part of his being.
Nevertheless, the Shari’a has catered for
man’s individual intellectual and cultural differences. Hence the
tolerance in demanding the minimum from him in reaching his own
conclusions and eventually having peace of mind in a measure
commensurate with his own capacity.
and Taqleed, Ever-present Principles
Since all the sources of Shari’a are
preserved in The Holy Book and the numerous Hadith, the need
for Ijtihad as a scientific skill has to be continuous. This is
to follow those sources and deduce legal opinions from them. It is
quite natural too that the expertise of the jurists is widened as time
goes; thus equipping contemporary ones with the skills necessary to
making them more competent in arriving at legal judgments. This is one
of the reasons why lay people should not stick by the opinion of any
jurist for a long time during the occultation period; it is like
adhering to the advice of a doctor despite the advances of medicine
made after his departure.
That is why the relationship between the follower and the Marji’
(lit. reference point for emulation, or religious authority - a jurist
who, by virtue of whose knowledge and probity, is qualified to be
followed in all matters of religious practice and law by the
generality of Shiite Muslims) is a dynamic one. It is further
strengthened by the sanctity bestowed on the Marji’ in his
capacity as the deputy of the Awaited Imam (a.s.).
The Role of Ulama in the Shari’a
The Shari’a has recognized the existence of Ijtihad
and Taqleed as two continuous practices going hand in hand with
The Holy Book and Sunnah. It has also identified the Mujtahid
as playing a pivotal role in the religious affairs of the laity. It
has therefore used everything possible to guarantee the successes of
both the practices so that they may deliver their message at all
On the one hand, the Shari’a has made Ijtihad wajibun kifa’i (a collective obligation imposed on the
Muslim community.), as will be discussed in section 17 of the chapter
on Taqleed and Ijtihad.
Allah, the Exalted, has urged the believers to acquire
knowledge and study the sciences of Shari’a,
"...why should not then a company from every
party among them go forth that they may apply themselves to obtain
understanding in religion, and that they may warn their people when
they come back to them that they may be cautious”.
On the other hand, Allah has made it clear that the
believers should hold fast to the Ulama and have recourse to
“. .so ask the followers of
the Reminder, if you are not firm in the knowledge of the clear
arguments and scriptures (16/43-44).
The Ulama were also praised by the Sunnah;
The Prophet (s.a.w.) was quoted as saying, "The Ulama are
the inheritors of the Apostles". It has also been narrated from
him, "Oh Allah! have mercy on my successors." and when he
was asked as to whom his successors were, he replied, "Those who
come after me, narrate my Hadith and Sunnah, and impart
the same to the people".
There is many a Hadith where the Shari’a
has induced the believer to be closer to the Ulama to make use
of their knowledge that it has deemed the looking into the face of the
alim akin to an act of worship.
The enormous responsibility the Shari’a has
placed on the shoulders of the Ulama is equal to the stringent
requirements it has laid down for conducting themselves; a conduct
that exudes piety, faith, honesty, and probity; a conduct free from
any pomposity that may be induced by scientific achievement. This is
designed to make them true inheritors of the Prophets (a.s.).
It has also been related from Imam al-Askari (a.s.), "Whomsoever
among the jurists was mindful of his own soul, careful of his own
faith, acting contrary to his own whims, submissive to the dictates of
his Creator, the generality are allowed to follow him in matters of
This is indicative of the meaning of the Prophetic
tradition, "The jurists are the repositories of the Apostles, so
long as they remained untainted by worldly gains".
The Hadith have also stressed the practicable
and continued need for Ijtihad as well as its continued legal
legitimacy, in that the religion shall not be bereft of Ulama
competent enough to be firm in the doctrine, refuting the fallacies
spread against it, and disseminating its true message to the people.
This has further been stressed by the Prophetic Hadith,
"Throughout the centuries, the bearers of this religion shall be
just people, who rebut the false interpretations of the impostors, the
malice of the misguided, and the claims of the ignorant, in the same
way the blow torch dissipates the impurities of iron".
Sources of the Fatwa
Before we conclude this introduction, we have to
mention, although briefly, the sources we relied on in issuing these Fatwa
(singular Fatwa - religious edicts) which we called
"manifest". As is evident, the two main sources are the Holy
Book, and the Sunnah that has been handed down by pious and
trusted transmitters, irrespective of their denomination. As for Qiyas(deduction
by analogy) and Istihsan (application of discretion in a legal
decision), and other principles, we do not see any legal justification
to espouse them.
Despite its being a contentious issue between the theologians and the
experts of the study of whether rational judgment (ad-daleel al-aqli)
should be admissible as a vehicle to reaching a legal decision, we
could be considered among its supporters. That said, we are yet to see
a single legal opinion that may require substantiating by way of
rational judgment. All what can be proved by reason is already proved
by the Book or Sunnah.
As for the so-called Ijma’ (consensus - of
the authorities in a legal question), it is not a source for arriving
at a legal judgment besides the Book and the Sunnah; it should
be adopted only as a means of proving the Sunnah in some cases.
Thus, the only two sources for Fatwa are the
Book and the Sunnah. We pray to Allah, the Most High, to make
us among those who hold fast to them,
".. Therefore, whoever disbelieves in Satan and believes in
Allah, he indeed has laid hold on the firmest handle, which shall not
break off, and Allah is Hearing, Knowing”(2/256).
Divisions of this Book
We have inaugurated this discourse with Taqleed,
discussing the rules governing the follower, Ijtihad, and Ihtiyat.
Then, we discussed the obligation) Takleef (and its
requirements, concluding with the classification of legal rules and
regulation into four categories.
1. Ibadaat (acts of worship)
2. Funds, both public and private.
3. Personal conduct.
4. Public conduct.
We pray to Allah Almighty to guide us in His path. There is no success
except with the help of Allah;
".. and with none but Allah is the direction
of my affair to a right issue; on Him do I rely, and to Him I
and may the last of our prayers be: Praise be to
Allah, Lord of the worlds.