Fatawa >Preamble to the Science of Jurisprudence --- Introduction

 

Preamble to the Science of Jurisprudence --- Introduction


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 Companions.
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.


Ijtihad 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 times.

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”. (9/122).

On the other hand, Allah has made it clear that the believers should hold fast to the Ulama and have recourse to them,

“. .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 religious practice".

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 turn".(11/88);

and may the last of our prayers be: Praise be to Allah, Lord of the worlds.