1- Archetypes of Shi’i law
The relevance of the Usuli/ Akhbari controversy
A received notion of contemporary Shi’i law is the major division in the history of Ja’farism
between two schools of law, the Usuli and the Akhbari madhhabs (schools), and the dominance of each alternatively since the emergence of Shi’i fiqh. Since the end of the eighteenth century however, it is generally acknowledged that Shi’i law came under complete control of the Usuli school.
Recently, there has been a renewed interest in the two schools, and some good research carried out on the earlier periods of Akhbari dominance, at the beginning of the Safavid period,
as well as the critical period in the eighteenth century
that saw the triumph of the eponym of the present Usuli school, Al-Wahid al-Behbehani, about whom very little is known.
The present analysis is less concerned by the establishment, rise and wane of Akhbarism and Usulism than with the present perception of the debate by modern Shi’i jurists. The emphasis on the contemporary perception is partly related to the difficulty in accessing early documents. But it is also premised on the necessity to emphasise methodologically the relevance of the controversy on the present structure of Shi’i law. Whatever the earlier dissensions and their historical dimension, the differences have to some extent become mooted, since the Akhbari school has been discarded for over two centuries. Usulism rules unchallenged. The extremely limited geographical sway of Akhbarism confines its role, by contrast, to that of a revelator of Usuli characteristics: the distinguishing features of contemporary Usuli Shi’i law can be more clearly perceived in the light of their contrast with Akhbarism.
It is not possible to find in the present legal texts of the Shi’i world a defence of Akhbarism in relation to any particular legal view. But in recent years, some Shi’i’ulama have’revisited’ the Akhbari-Usuli controversy.
The most thorough testimony, and the one which tells most about the present perspectives in Shi’i circles on the controversy, has consisted of a series of studies over three decades by a jurist closely associated with the Najaf Renaissance, Muhammad Bahr al-’Ulum.
Born in 1927 to a family famous for its scholarship,
Muhammad Bahr al-’Ulum appears already in the early 1960s as a close collaborator of Ay at Allah Muhsin al-Hakim (d. 1970), for whom he wrote a detailed critique of the personal status law just passed in Iraq.
With the son of Muhsin, Mahdi (who was assassinated in the Sudan in 1988), he was one of the first ‘ulama of the Najaf Renaissance who took the route of exile after the access to power in Baghdad of the Ba’th party. After a period spent in Iran and in Egypt, where he submitted a doctoral thesis on The Vices of Consent in Islamic Law,
he settled among the Iraqi exile community in England and acts as one of its leading spiritual guides.
Bahr al-’Ulum addressed the Usuli-Akhbari controversy on three occasions, in 1964, in 1978, and in 1987-8.
In these essays, the historical core of the emergence of Akhbarism and its development has remained generally similar, but the areas of difference as he perceived them in the three instances were significantly different.
The renewal of Akhbarism manifested itself in the eleventh century AH in the writings of Mirza Muhammad Amin al-Astarabadi, who, after studying in Najaf, went on to Medina and then to Mecca to found his own school.
Astarabadi was a’dedicated Akhbari’,
and he tried to find roots for his school in the early days of Shi’ism after the ghayba (the occultation of the twelfth Imam in the ninth century). He argued that the Akhbari school was dominant until Kulayni (d. 329/941) and as-Saduq (d. 381/991), and that it only receded in the fourth century AH, after some Shi’i scholars started introducing the concept of’aql (which can be translated briefly as reason, rationality) in the logical system of the law, the usul.
The struggle against the science of usul as then received
was based on the rejection of’common elements and Usuli methods that might distance them from the legal texts’,
and on Astarabadi’s perception of an unacceptable veering towards Sunnism by the propounders of usul among the Shi’i ulama’.
Bahr al-’Ulum argues that the underlying reason for this struggle was related to the precedence of the Sunnis in developing usul, which the Shi’is did not need before the ghayba, since the Imams were still capable of decreeing the proper law to follow without any help from methodological construction.
This view is illustrated in the use by the Shi’is of Sunni Usuli concepts, a matter disfavoured by purists like Astarabadi. For Astarabadi and the Akhbaris, Sunni precedence in the discipline meant Sunni pre-eminence, and rendered the whole field of usul suspect.’ An example is the word ijtihad, which our Imami’ulama took from Sunni fiqh and developed. The Akhbaris, who did not realise the essential transformation in the meaning of the word, concluded that the science of usul among our pairs had adopted the same general direction followed by Sunni scientific thought. They therefore rejected ijtihad’.
In Bahr al-’Ulum’s 1964 account, the essence of Akhbarism appears in the school’s rejection of ijtihad in the interpretive process, and in its literal standing by the reports (akhbar) ascribed to the Prophet and to the Imams in the four Shi’i hadith compilations.
For Akhbarism, as read by Bahr al-’Ulum, these texts are beyond questioning, and there is consequently no need to devise a science of interpretation that might endanger their authenticity by unnecessary glosses.
The room for interpretation generally accorded to the jurists by the Shi’is, through the combination of ijtihad as a general process and laql
as its primary tool, appears at the core of the eighteenth-century controversy between Astarabadi and Behbehani.
But the differences cover a much wider field, and extend to minute details in legal methodology, which tend to indicate that the depth of the rift between the two schools was important historically. But for modern Shi’i jurists, typified by Muhammad Bahr al-’Ulum, the rift appeared less and less considerable. The differences between Akhbaris and Usulis were slowly toned down by logical and legal arguments.
Akhbaris and Usulis: the differences
Some authors have reported up to several dozen major points of difference between Akhbarism and Usulism. Following Yusuf al-Bahrani, Muhammad Bahr al-’Ulum reduces them to twenty-nine points, which are added to the six historical and psychological differences that characterise the shape of the rift between the two schools. Akbarism, it is suggested, forbids ijtihad, reduces the sources of law to the Qur’an and the Sunna, and, for some Akhbaris, only to the Sunna. Only the twelve Imams’ interpretation matters, and their manifest hadith will prevail over the uncertain or general text of the Qur’an. Indeed the whole discipline of usul is superfluous and both usul and ijtihad are rejected as Sunni devices which are alien to the Twelvers. The relationship of Shi’i society to the Hidden Imam during the Great Occultation is done through a literal and exclusive understanding of the texts of the Twelve Imams. No intermediary is needed, and no mujtahids.
For the Usulis in clear contrast, the Qur’an and the Sunna must be supplemented by ijma’ (consensus) and’aql (reason). The role of the mujtahid and his practice of usul as an elaborate science of interpretation are paramount. The Qur’anic text will prevail over the more specific hadith, and it will be up to the mujtahid to reconcile the possible contradictions. On the social level, it is necessary to follow a living mujtahid like the Imam, and this rule is so important that it will be generally prohibited to be the follower (muqallid) of a dead scholar, however prominent he may have been:’Imitation of the dead is forbidden’.
The most significant differences can be regrouped, from the perspective of the form of present Shi’i law, in the two following interconnected themes, which bear on the (i) legal-technical and (2) social structure of Shi’ism.
(1) Legal: The differences in legal interpretation derive from the acceptance by the Usulis of ijtihad. Ijtihad can be described as the elaboration of law with the help of logic, by a constantly creative process. The process of elaboration is necessary for the Usulis, and forbidden by the Akhbaris. The sources of the law which are therefore acknowledged by the Akhbaris are reduced to the two which do not require (in theory) any interpretive effort, the Kitab (the Book, the Qur’an) and the Sunna. Some Akhbaris, according to Muhammad Bahr al-’Ulum, actually recognise only the Sunna as a source of law, because the Sunna is the only scientifically sound and noncontradictable element, coming as it does without need for elaboration from the Ma’sum (the Imam). In contrast, the Usulis admit four basic sources of law, the Kitab, the Sunna, ijma’, and qiyas. Hadith is also matter for contention. The Akhbaris divide hadith into strong and weak, whereas the Usulis distinguish between four hadith layers.
(2) Social: From these technical and legal differences, derive important consequences on the social structure of the Shi’i legal community. In the same way ijtihad appears as the central point of controversy between Usulis and Akhbaris, the existence and authority of the mujtahids are the dividing element in the social configuration resulting from the schools’ differences.
Since science is the prerogative of the sole Imam, the non-Imam will inevitably be a fallible judge. This is readily acknowledged by both schools, but the Akhbaris force the premise into its full logical conclusion, and science, as the knowledge of things certain, becomes therefore impossible for Akhbarism in the absence of the Imam. The whole society is bound to imitate the Ma1 sum, and the fact of his absence during the ghayba does not alter the picture. Since only the Ma1 sum is abreast of religious affairs, the role of any other person, including the most learned jurist, becomes superfluous. In Akhbari society, there is no place for the mujtahid.
The full singularity of Usulism appears in contrast to this aspect of the Akhbari argument. For the Usulis, ijtihad is necessary, and the specialist of ijtihad becomes ipso facto superior in knowledge and status to the nonspecialist, who is relegated to the second rank of imitator. Society is therefore divided between muqallids and mujtahids, and the muqallids must follow the mujtahids in the same way they follow the Imam. Another significant corollary of this supremacy of the mujtahid is the duty for the muqallid, not only to follow a mujtahid, but also to follow a living mujtahid. In Akhbari Usul, only the twelve Imams can be imitated. A fortiori, there is no requirement for the taqlid of any mujtahid, past or present. For the Usulis, in contrast, the imitation of the dead mujtahid is forbidden. The reproduction of ijtihad as a creative process is thereby guaranteed.
Thus appears, in Bahr al-’Ulum’s account of 1964, the perception of the two schools of law and the significance of their differences. By the late 1970s, however, the picture had significantly changed. In a major work on ijtihad, published in 1977,
the subject was again discussed, but Bahr al-’Ulum’s assessment of the controversy was now clearly based on belittling the differences between Akhbarism and Usulism.
The argument proceeds in the chapter on’The Akhbariyya and the prohibition of ijtihad’
by a division of the long history of the Akhbari trend into three major periods. The first period is blurred in the sources. Perusal of the earliest texts mentioning Akhbarism shows a brief and inconclusive quotation of Hilli (d. 726/1325) and, in a much later text by the important Akhbari jurist mentioned earlier, al-Astarabadi (d. 1036/1626), Astarabadi’s projection of his own Akhbari tenets back to the early scholars and compilers of recognised Shi’i hadith works, al-Kulayni and al-Qummi.
The second period is more significant. It starts with Astarabadi, who heavily criticised the Usulis in al-Fawd’ed al-Madaniyya:
The correct position was that of our Akhbari forebears... the Qur’an has mostly come by way of obfuscation (tcfmiya) of the people’s minds (adhhan ar-ra’yya) and so did most of the prophetic rules (sunan nabawiyya), and we have no way to know about legal rules, whether principal or secondary,
except to hear the two Sadeqs [the two Imams Muhammad al-Baqer and Ja’far as-Sadeq]. It is forbidden to deduce theoretical conclusions from the manifest [texts] in the Qur’an, or from the manifest texts of the Prophet’s Sunna as long as their contexts (ahwal) are not known according to the ahl adh-dhikr [the Imams].
This passage clearly shows, comments Bahr al-’Ulum, that the only accepted sources for Akhbarism are the Kitab and the Sunna as told by the Imams.’This means the prohibition for xhefaqih to interpret and deduce (ijtihad wa istinbai) except in the limits drawn from the akhbar related to the Imams’.
The third period introduced the compromising position of Yusuf al-Bahrani.
This’stage of moderation’ serves Bahr al-’Ulum as a model for the assessment of the controversy. The major differences between the two schools are analysed to show that they are in reality much less significant than the drawn out history of the tug-of-war between the schools seems to suggest.
The new analysis is nowhere more developed than in Muhammad Bahr al-’Ulum’s recent reconsideration of the Akhbariyya.
Absolute rapprochement
Bahr al-’Ulum’s most recent study of the subject shows the significance of his departure from his earlier views on Akhbarism:’The allegation of the prohibition of ijtihad of the Akhbaris is unfounded, and their practice contradicts this allegation.’
Usulis are deemed not to be different from Akhbaris, as the rapprochement has become even more absolute than in Muhammad Bahr al-’Ulum’s 1977 opus on Ijtihad. Bahr al-’Ulum does not only try to relativise the differences, as he did then through an emphasis on the moderate attitude of Yusuf al-Bahrani. This time, the analysis is set towards complete obliteration of the two schools’ differences.
The process by which this diametrically opposite conclusion to the 1964 description is reached consists of a mixture of legal and functional arguments.
In 1964, the differences between the two schools appeared considerable both from a legal and a social point of view. To deflect them, Bahr al-’Ulum reduced the differences between the Akhbaris and the Usulis to two main headings, which correspond to our description of the differences between Akhbarism and Usulism as technical-legal and social.
(1) Legal: The legal differences are now approached by Muhammad Bahr al-’Ulum in a way that blurs them so much that they disappear.’The Archetypes of Shili law essential debate -as it appears to me -is limited to the two parties’ views on the [accepted] methods of the law (the tools of legislation, adillat at-tashri’).
For the Akhbaris, they are only the Kitab and the Sunna, whereas they are four for the mujtahids [the Usulis], that is, in addition, ijmai and’aql, and other corollary methods like istishab, istihsan etc.’
But ijma Muhammad Bahr al-’Ulum argues quoting Muhammad Rida al-Muzaffar,
’ in that it is ijma’ contains no scientific value, as long as it does not unveil (yakshuf) the word of the Ma’sum. If it unveils with certainty (qaf) the Ma’sum’s word, the evidence (hujja) is in truth the [matter] unveiled (jnunkashaf) and not the [method of] unveiling (kashef). Ijmai therefore enters the realm of the Sunna and does not constitute an independent argument (dalil) beside it.’
In other words, ijmai as consensus is subsumed under the Sunna, and does not represent a new methodological tool which would be so autonomous as to constitute a separate source or method of the law.
For the Usuli-Akhbari controversy, such an incorporation of ijma’ carries important consequences, and reveals an unsuspected characteristic of modern Shi’ism. Bahr al-’Ulum actually suggests that Akhbarism was right in its rejection of the originality of ijma1, and that there is no ground for the assertion of its autonomy as a source of law. Seen in this light, ijma1 cannot be considered logically or historically as’a source of Islamic law’.
As for laql, Bahr al-’Ulum uses a logical argument which also deflects the differences between Usulism and Akhbarism. This time, however, the argument undermines the Akhbari, not the Usuli, assertion. Like Muhammad Taqi al-Hakim,
Muhammad Bahr al-’Ulum considers that llaql is the source of arguments (hujaf). Arguments lead unto it, as the sole reference (marjai) in the principles of religion and in some of the branches (furu’), which the Legislator cannot issue a rule in, such as orders of submission (ita’a), and the subsequent subdivisions of duties as to knowledge and ignorance...’
In other words,’aql is the inevitable organiser of religious principles, and the way by which secondary rules can be reached. It is the inevitability of resorting to reason even for relatively basic rules that makes the Akhbari jurist, willy nilly, a mujtahid.
(2) Social: The second important difference, which we have described as social, focuses in the recent manuscript, as well as, less emphatically, in the earlier work of Muhammad Bahr al-’Ulum on ijtihad
on the jurist’s function and role in society. Bahr al-’Ulum had argued in 1964 that the mujtahid was not necessary for Akhbarism, as he, unlike the Imam, is fallible.
There was consequently no need for an interpreter who would introduce law to the non-initiate. In contrast, Bahr al-’Ulum argues now for a reconciliation on the ground that’ the Akhbari faqih is a mujtahid without admitting it, because when he goes back to the two essential sources [of the law, the Kitab and the Sunna], he needs to exercise a faculty (malaka) to understand the legal rule, and transmit it to his muqallid (imitator)’.
As in the argument over (aql, Bahr al-’Ulum uses a logical device to show that whatever the theory of ijtihad, and whether it is accepted or rejected by the schools, it remains inevitable that at least some construing and interpretive exercise should be undertaken in any reading of the law. The jurist, any jurist, is a mujtahid malgre lui.
Conclusion: The significance of the controversy
The development of the contemporary perception of the Usuli/Akhbari controversy in Muhammad Bahr al-’Ulum’s works has instructive value going beyond marshalling legal arguments for the one or other school, or the advocacy of their ultimate concordance. As argued in the introduction to this section, the importance of the Akhbari/Usuli controversy for the present research lies less in the reconstruction of the historical’ truth’ of the debate, than in the emphasis on its contemporary impact.
The reading of the controversy casts new light on the institutional and legal structure of present day Shi’ism. When Bahr al-’Ulum concluded that a jurist can but be an interpreter, a mujtahid, in that even a minimal reading exercise involves extrapolation, he subsumed the difference between Akhbarism and Usulism under a more general argument which has important implications for the modern theory of Islamic law.
According to his argument, whenever the jurist, in society, reads the law, he must interpret it. When the Akhbaris tried to limit the jurist’s power, they were defeated because they were trying to solve an essential -and unsolvable -contradiction. A jurist, whose task and duties in society are so diminished as in the Akhbari theory, must ultimately abdicate his title. If a jurist must remain of use, there is no alternative but to assume his legal interpretive social role. It is not possible to limit ijtihad by imposing constraints on logic, as the Akhbaris do by denying’aql. Nor is it possible suddenly to declare interpretation illegal by decree, as in the received absurd notion of the socalled’closing of the gate of ijtihad.
Two caveats might add perspective to the Shi’i controversy and to Islamic law in general. The first is functional. If a jurist is in any case a mujtahid malgre lui, as suggested by Bahr al-’Ulum, then the whole relevance of the celebrated Akhbari/Usuli controversy becomes moot, as does the theory of the closing of bob al-ijtihad. In other words, these notions appear as pure casuistry.
In logical terms, the controversy may be irrelevant. But there are dimensions of greater depth, which call this conclusion into question. Such questions, as is suggested by modern semiotics, show that, despite their functional vacuity, they remain essential as the locus of a superior realm of contention, only taking the form of legalism. Legalism, in the Shi’i eighteenth-century Akhbari/Usuli controversy, and in the Sunni tenthcentury alleged theory of the closure of the gates of ijtihad, might just be a facade hiding a more significant social issue.
The second caveat is related to the distinctiveness of Shi’ism. The triumph of Usulism is ultimately the triumph of the jurists. But the jurists are not so much interpreters of the law as the exclusive interpreters of religious law, of law qua religion. The uniqueness of modern Shi’ism lies in the autonomous body of Shi’i mujtahids who are vested with the protection of the law -and religion -through their interpretative power. The fact that a lay Shi’i, a muqallid, must follow a living mujtahid in all walks of life is the most telling indication of the mujtahids’ importance as a compact and constantly rejuvenated body. Their significance becomes paramount on the social level, because the mujtahids are established in Usuli theory as living referents for society in the most sensitive and crucial element, the law.
In the following chapters, the argument on the paramount role of the jurist will be carried further. But first, more should be said on the material circumstances of the inheritors of Usulism, particularly in the educational mechanisms which, in modern Shi’i society, streamline scholars, legitimise them, draw the intellectual configuration of their expertise, and make a relatively strict hierarchy of their leadership.
Shi’i law colleges, traditional curriculum and new concerns
Muhammad Baqer as-Sadr was intellectually precocious. But the insistence on his genius among his biographers seems disproportionate to the importance of the theme, even in the quasi-hagiographic descriptions of his students and followers who wrote about him.
Sadr’s written work
speaks for itself, and there is little doubt that in the world of Islam in the twentieth century, he will rank with time as highly as the great reformists of the calibre of Jamal ad-Din al-Afghani and Muhammad’Abduh.
But there was perhaps more to the assertion of Sadr’s intellectual superiority than a biographer’s laudatory inclination.
Whether for Sadr’s personal life, or in the larger terms of Shi’i law, this chapter would like to suggest that intellectual superiority is not neutral in Shi’i circles. On it depends recognition, and recognition in Shi’i civil society
entails financial as well as social establishment, and in the State (whether as opposition or government), recognition means leadership. The crucial question in the case of Sadr was whether he could, whilst still alive, claim the highest intellectual achievement among the Shi’i jurists. As was just seen, a main point of divergence between the Usulis and the Akhbaris revolved over the imitation, taqlid, of a dead jurist. By establishing the necessity to choose a living jurist as the source of emulation, the Usulis had succeeded in institutionalising a pattern of active competition in the scholarship of the law.
Competition, thus, is of the essence in the legal and social structure of Shi’ism. It determines the barometer of learnedness and the subsequent number of followers in the Shi’i civil society, let alone in the State when it is, like in Iran, based on the government of the most learned faqih.
Two episodes of Sadr’s life serve well the purpose of unveiling characteristics of the Shi’i law schools, and the consequent repercussions on the Islamic state. The first event is taken from Sadr’s early life, and introduces the description of the schools of law in the Iraqi South. The second event was far more dramatic, and sheds light on the higher echelons of the Shi’i hierarchy. These episodes are used here to introduce the structure of the law schools where the jurists were assembled in a specific hierarchy, and to exemplify the ladder of this hierarchy, as well as the repercussions of these structures on the constitution of the Islamic State.
An early episode: when did Sadr stop imitating?
I asked the ustadh [The master, Sadr] one day if he followed sometime a’alim ? He answered: I followed (qalladtu) before reaching the age of responsibility (qabl bulughi sinn at-taklif) the late Muhammad Rida Al Yasin. But after this age, I stopped following anyone. And I [Ha’iri] cannot recall whether he said: I worked since adulthood after my own opinion (ra’yi), or I used to waver between working with caution (ihtiyat) or after my opinion (bir-ra’i).
Even before the 1958 Revolution, the young apprentice-’w/ama in Najaf had come to realise that short of a renewal, their position might be irreversibly jeopardised. Sadr was among the discontented, as were Mahdi al-Hakim, Muhammad Bahr al-’Ulum, Muhammad Mahdi Shamseddin, and Muhammad Husain Fadlallah. The respect earned by’martyrdom’ of the Communist leader Fahd on the gallows in the wake of the 1948 revolt, furthered a well-grounded fear of the Shi’i’ulama: they were losing their audience.
In the early 1950s, an intellectual renewal had already occurred at the highest hierarchical level with the publication by the great mujtahid Muhammad Husain Kashif al-Ghita’ of al-Muthul al-’Ulya fil-Islam la fi Bhamdun, and of his Muhawarat after the visit to his home in Najaf of the British and American ambassadors.
These books, which went into numerous editions, meant for the enthusiastic young Najafi’ulama that a door was opened to a new kind of literature. In them, as already suggested, two essential messages of Kashif al-Ghita’ were charting the way ahead: (1) that a renewal of Islam was the only solution; and (2) that short of this Renaissance the two threats that had made violent inroads into Islamic society, Zionism and Communism, would remain unchecked.
The problem with opening the door widely to a new type of literature was the challenge posed to the Najaf curriculum, and it is understandable that some of the older mujtahids, including Kashif al-Ghita’, would have had second thoughts over the matter. It was inconceivable to overhaul the curriculum completely. But Communism was on the rise, and there was not much room to manoeuvre.
Between the slow ladder towards scholarship which put reins on the young scholars’ enthusiasm, and the daunting Communist threat, a compromise had to be sought. A by-product of this compromise appears in this remembrance of Ha’iri on Muhammad Baqer as-Sadr’s spirit of independence in ijtihad from the acknowledged pundits, quoted at the beginning of this section.
In this recollection, Sadr’s independence appears in contrast to the constraints of a lalim within a relatively precise hierarchy which he could not bypass without endangering his juristic rank. It was all very well to write about the village of Fadak and the early problems of Sunni and Shi’i legitimacy,
or a few years later, as he turned thirty, about an Islamic philosophical system that would put Communism in check,
but the traditional studies required for a’alim could not be forgotten lest the advancement of the young Sadr be jeopardised. In those early years, little in terms of his works was directly related to the teachings in the law that the Najafi schools were supposed to produce. The answer of Sadr to Ha’iri about his refusal to imitate any other’alim is therefore a testimony of rebellion, both against the received curriculum of Najaf and against the hierarchical structures, the ladder of which any’alim, however gifted, had patiently to climb.
Interestingly, the rebellious answer Muhammad Baqer as-Sadr gave his student Ha’iri was couched in the traditional language: taqlid, ra’i, ihtiyat.
This respect for the tradition was also enhanced by the hesitation reported in the last sentence of the quote. Ha’iri could not remember whether Sadr’s ijtihad was qualified, or whether it was total.’Amal (or ijtihad) bir-ra’i means a complete independence towards the other’ulama, and the ability to issue decrees accordingly. Ihtiyat on the contrary suggests that Sadr was indeed independent, but that he kept his conclusions, out of caution or insecurity about their absolute correctness, to himself.
The essential dilemma facing the whole structure of the Shi’i schools appears in the balance between tradition and renewal. In the particular case of Sadr, the Iraqi apprentice-jurist did not, for his own sake, and the promising future that awaited him, completely discard the received scholarship, and he chose to work in parallel over the most arcane areas of usul alfiqh.
Much as the debate appears rhetorical, it remains quite significant in terms of Sadr’s legal-political development. But it is also important against the background of the teaching in Najaf, which was perceived in the Shi’i circles themselves to have become dangerously obsolete. The genius of Sadr appears in his capacity to offer new insights both into questions at the heart of the changes rocking a troubled society, and to prove his intellectual capacity as a Shi’i’alim.
Sadr’s earliest works suggest a clear preference for matters of the law akin to such fields as economics, philosophy, or institutional and historical legitimacy. He was at the same time careful not to remain on the fringe of the hierarchy. But how was the hierarchy organised in the turbulent 1950s ? How was law taught in Najaf to and by the ‘ulama ? And did Sadr exert renovation, ijtihad in the wider sense, on both the traditional and modern worlds of the law?
Legal studies in Najaf, or how one becomes a mujtahid
Teaching in Najaf has triggered in the past few decades an interest that stems from several concerns. Among these, which appear in the writings of several Shi’i scholars, was the longevity of the city as a centre of Shi’i learning, and the continuity of this pre-eminence,
along with the fact that, in the Arab world, it was for the Shi’is the equivalent of Cairo’s Azhar for the Sunnis.
The Azhar, in contrast to Najaf, was a recognised centre of Islamic learning, known and celebrated worldwide. Arab Shi’is rightly thought that their city deserved no less consideration, having been founded as a place of learning (according to their history books) when Shaikh at-Ta’ifa Abu Ja’far at-Tusi emigrated from Baghdad to settle in Najaf towards the year 448/1056. This was when Cairo was barely fifty years old as a city,
and al-Azhar still in its infancy.
But if al-Azhar’s history had been written and rewritten, and its reputation spread worldwide, there was scant literature on Najaf.
To date, no definitive history of the’University of Najaf
has been published. However, some shorter works have dwelt in one way or the other on Najaf as an educational centre, and from these scattered sources, a picture can be reconstituted of the curriculum at Najaf in the 1940s and the 1960s, the structure of the course of studies, and Najaf s link with the body of Shi’i In the early 1960s, there were about 5,000 students in the religious schools of Najaf.
Education was free for all students. Muhammad Jawad Mughniyya, a prominent Najaf’graduate’, recorded that one of the reasons why a poor student like him was able to go to Najaf was because he could’ find, in the worst case, enough bread, a small room in the city and a learned teacher to educate him’.
Free education for students, of course, is not particular to Najaf. What is unique is the fact that the teachers themselves were not remunerated in Najaf, and that they even offered, in several cases, to support with their own sources of income the students who had no family resources for their studies. This changed slowly, as awareness grew for a more stable and fairer educational system (since all the’ulama could probably not afford to help their pupils), and as the state started to compete with the Shi’i schools for free higher education.
By 1964, this relationship was to some extent institutionalised by Muhsin al-Hakim, who organised an academic body on a more permanent basis. This body,’al-marjaiyyaa ad-diniyya al-’amma’ (the general religious marja-’iyya),’ represents the highest marja1 of the Shi’is [Muhsin al-Hakim] by giving out monthly stipendia to the students each according to his [social] status (tabaqaty .hl The Iraqi Government, or the governments of origin of the students (who came from the four corners of the world, Pakistan, India, some African countries, Bahrain, Syria, Lebanon, Iran), had no contact with the Najaf schools, which relied solely on the individual revenues of the’ulama.
The non-interference of the rulers in educational matters, in this case the Iraqi Government, is an old phenomenon which is one further sign of the relative independence of the Shi’i’ulama. At least since the nineteenth century, when the Ottomans controlled the South of Iraq, the Shi’i’ulama had retained a much cherished financial autonomy, which allowed them not only to decide on teaching and rituals (such as their celebration of non-official occasions like’ Ashura), but also secured the avoidance of the military draft.
This situation was probably perceived as a bane both to Najaf and to Constantinople, since the domination of the frontier-like Iraqi Southern region had been uneasy for four centuries both for the Ottomans and the powerful Shi’i Persian empire which sometimes controlled the city.
Being self-financed, the ulama’ could also set their own course of studies in accordance with their traditions and beliefs. How far back the system (as it appeared in the 1950s and 1960s) goes is difficult to determine. But the relative laxity of the overall structure must have harkened back to times when degrees were unknown and the word shahada (diploma) had not yet acquired its educational connotation.
Although still somewhat hazy in terms of degrees and educational levels, a hierarchy started to crystallise towards the middle of the twentieth century in the Najaf schools. In fact, the first detailed testimony of the curriculum, written in the 1940s,
does not mention a first stage of studies which was related in the 1964 description of Muhammad Bahr al-’Ulum.
The lack of an established and precise structure indicates how the Najaf cycle of studies has gained its reputation of a’Freie Universitdt’.
But with the importance of Najaf both educationally and politically in later years, this vagueness left room for much abuse, especially as some of the young students who went to Najaf from far places in the Shi’i world could rely on their mere stay in the city as the basis for their social fame in their countries of origin. Legally, as will be suggested later, this hierarchical haziness was at the root of many uncertainties in the structure of political parties and public institutions which emerged prominently in the wake of the Iranian Revolution.
Before turning to the qualitative change that befell the Shi’i hierarchical and educational system with the access of the’ulama to state power in Iran, the hierarchy will be assessed against both the stages of education and the curriculum background.
Study cycles
Three levels, or cycles (halaqat), are required to complete the course of study of the would-be Shi’i mujtahid.™ There are no examinations; nor is there any prescribed time for the completion of the studies. The aim of the student is clear, he must acquire enough scholarship to become a’mujtahia", a title’which is only reached by the most outstanding students’
On average, the two first cycles combined require a minimum of ten years of study;
the student starts at a young age, generally between fourteen and twenty.
The first of the three prescribed cycles, which was not mentioned in the earlier report on the schools, and appears only in Bahr al-’Ulum’s text,
is called’the prolegomena’, al-muqaddimat. The student learns grammar, syntax, rhetoric and logic. The books used in this cycle are difficult, and tend not to be covered completely in the course of the cycle.
In grammar, they include Ibn Hisham’s (d. 761/1360) Qatr an-Nada and al-Ajrumiyya, glosses on Ibn Malik’s (d. 672/1273) Alfiyya by other grammarians like Ibn Hisham and Ibn an-Nazim (d. 686/1287). Mughni al-Labib, also by Ibn Hisham, is used at the last stage of the first cycle. In rhetorics, the books generally used are Taftazani’s (d. 791/1388) al-Mutawwaland al-Mukhtasar, and al-Hashimi’s (fourteenth century) Jawahir al-Balagha. Non-Arab-speaking students are introduced to Arabic in special books. The Iranians use for instance Jami1 al-Muqaddimat, and go on to perfect it with the books of Suyuti and ar-Radi on Arabic. In logic, the student reads Najafi’s (d. 981/1574) Hashiya, Qutb ad-Din ar-Razi’s Shamsiyya, and the modern book on logic by Muhammad Rida al-Muzaffar (d. 1964). In usul al-fiqh, are used Hasan ibn ash-Shahid ath-Thani’s (d.
966/1559) Ma’alem, Muzaffar’s first two parts of the Usul, as well as Haidari’s Usul al-Istinbat. In the early sixties, the new -and much more accessible -al-Ma’alem al-Jadida of Muhammad Baqer as-Sadr was also introduced.
In fiqh, al-’Allama al-Hilli’s (d. 726/1325) Tabsira and Mukhtasar an-Nafel, as well as al-Muhaqqiq al-Hilli’s (d. 676/1277) Shara’e’ al-Islam are taught, along with the more recent works by Muhammad Kazem at-Tabataba’i (d. 1337/1919) (al-’Urwa al-Wuthqa) and Muhsin al-Hakim (d.1970) (Minhaj as-Salihin).
The more able students at the prolegomena stage can try their skills at some other topics, such as kalam and literary disciplines. Old-style mathematics is also provided for those interested. At this stage, the student meets a teacher of his own choosing, reads (in theory) the books he prefers, and spends between half an-hour and one hour daily with his professor. All classes are held on a personal, tutorial basis. According to Bahr al-’Ulum, a student spends an average of three to five years at the prolegomena stage.
The second cycle is called sutuh: surfaces. Sutuh introduces the study of the substance of deductive jurisprudence (al-fiqh al-istidlali), as well as usul al-fiqh. Generally, courses are arranged in series which are also conducted on a tutorial basis, although tutorials would involve groups of seven to ten students, rarely more than twenty. According to Faqih,
sessions last between half an hour and an hour. Students whose absence recurs or who seem incapable of following the class are encouraged to withdraw, or to return to easier courses.
Sutuh requires three to six years, sometimes longer. At the end of the cycle, the student gets to be considered a murahiq, literally adolescent. This title indicates his proximity to the maturity of ijtihad.
Teachers, as well as books, are also freely chosen by the student, who familiarises himself with kalam, philosophy, tafsir (Qur’anic exegesis), hadith, as well as law and usul.
The books most widely used at this stage are, in fiqh, ash-Shahid ath-Thani’s Sharh al-Lumla ad-Dimashqiyya, Ansari’s (d. 1329/1911) Makasib, as well as ash-Shahid ath-Thani’s Masalik al-Ifham. In usul, the student reads Qummi’s (d. 1231/1816) Qawanin, Muhammad Kazem al-Khurasani’s (d. 132S/1910) Kifaya, Ansari’s Rasa’el, the third part of Muzaffar’s Usul. In recent years, the comparative work on usul of Muhammad Taqi al-Hakim,
which was also used in Baghdad, has been introduced as a work of reference in Najaf.
The third and ultimate cycle is called bahth al-kharej, literally graduate or outside research. The system at this stage is completely different. Instead of tutorials, the student chooses to attend the important public lectures of the most prominent mujtahids of Najaf, who conduct their discussions as lectures and seminars organised in series (dawrat), over a period of months or years.
The classes, depending on the prominence of the teacher, can be heavily attended, not only by the murahiqs, but also by other mujtahids. Discussion is free in the class, but the lectures are generally intricate, and sometimes result in books being compiled by the students and eventually published.
Muhammad Taqi al-Faqih described the studies of bahth al-kharej in some detail. They generally consist of lectures that dwell on a subject over several days. The lecturer must painstakingly prepare his class. Although he would not read from an already written text, he is expected to have exhausted the texts related to the topic discussed, and be ready for an intricate discussion to which students will subject him,’as disputes are numerous’ :
The lecturer will differ from the authors [whose books are used in these courses] in that he might not be in agreement with the classification of themes from the perspective of their presentation or conclusion, or with the discussion or silent acknowledgment of some hypotheses. He might even contradict traditional authorities in their exposition (naql) or in their understanding of some questions. He can be in agreement with the conclusion or not, or could agree with it without accepting the evidence that they provide. He can realize what they have missed or undermine in part or in totality of the evidence they have constructed.
If the teacher has reached such level, then he will have become a mujtahid.
And if he has shown competence in these subjects that surpasses his colleagues, then he will be even greater (a’zam).
It is therefore not sufficient, writes Faqih, to know the works of jurists in a given topic well, because most students who attend the lectures will have studied them beforehand. Those who can only reproduce arguments are not considered mujtahids. They go under the name of muhassils, and are apt to teach these works only superficially (tadris sathi, from sutuh). In contrast, a mujtahid is required to answer a theoretical argument by a theoretical argument, and must have reached the ability’to bring any hypothetical argument to a definitive argument, however long the argument’s chain’.
Muhammad Bahr al-’Ulum mentions three levels in bahth al-kharej. At the first level, formed by students who have just completed the study of sutuh, it is usual to address the chapters of a legal treatise in a general manner, without insisting on the sequential logic of the text, and to add in some commentaries by other ‘ulama. The teacher will thus train his students with the logic of a given work, and introduce them at the same time to his own method.
At the second stage of bahth al-kharej, exposition is more elaborate. For instance, the second part of Khurasani’s Kifaya can give way to lengthy analyses, which are supplemented by Murtada al-Ansari’s Rasa’el, and the commentaries of Muhammad Husain Na’ini (d. 1936). Texts are thus presented, discussed, and choices are made by the teacher as to the most cogent interpretations.
The third stage, which is the most advanced in the curriculum, is what’ has made the glory and fame of the teaching bestowed’ at Najaf, and has allowed for the great renovations and progress in Shi’i ijtihad, as can be noticed, suggests Muhammad Bahr al-’Ulum, from an even perfunctory comparison between present texts and works from the fourth or fifth centuries AH.
The teacher at this third stage is absolutely free to arrange his own course, choose the arguments he prefers, and end up’ with a new opinion, and with a mature approach which will be very different from his predecessors".
The’diploma’
The issue of the Najaf diploma is closely connected with the nature of the education dispensed in the Shi’i colleges.
There is no formal examination at which a student would, like in the Western world, sit to answer questions and write essays. Instead, the process of the appreciation of the student takes place over a long period corresponding to the apprenticeship. This system is said to prevent’ any kind of cheating or bribery, intermediation (wasita), favouring for kin or friendship.
The authorities (sulta) cannot intercede for the student. Intercession means an absolute failure for the student who seeks such protection.’
Assessment of the student is based on three elements, which are in fact a process of discovering his talents and potential:’ (1) the freedom of thought with the teacher and his fellow students... (2) the various discussions with his colleagues’, technically known as’ study in confrontation, bahth muqabala’ This confrontation is a substitution of the teacher by the students, who address their colleagues with a given topic that they discuss together. The discussion allows the refinement of the argument and the display of knowledge. The third aspect is known as’mudhakara’ Mudhakara takes place in public when a student provokes a colleague into discussing a topic.
Through mudhakara, the students bring the debate into the open with colleagues belonging to other schools, and the various circles ihalaqd) so discover each another. All three exchanges take place over a long period of time, and a natural distillation develops among the students who get to know their colleagues’ strengths and weaknesses.
In this way also, in contrast with examinations which suggest a rigid gradation, a wide range of appreciation becomes possible. For the few students who remain in the city after’graduating’, their familiarity with the groups of scholars and students ensures that they get known better, almost intimately. For the students who leave, however, a more official form of recognition is required: the shahada or diploma.
The students who leave Najaf for good [as opposed to those who leave only temporarily] take their diplomas from their professors and from the religious leader (the supreme marja’) [ar-ra’is ad-dini, al marja’ al-a’la]. These diplomas include formulas which express the level of achievement of their bearers. This terminology is understood only to the few initiate (khassa), who in turn give the diploma holder a position [recognised] by the general people (as-sawad).
The granting of the diploma indicates the way stratification in the Shi’i learned world operates. In this stratification, only the elite is capable of recognising the importance of a given graduate from Najaf. The diploma is not however the end of the road. The student who leaves Najaf with a diploma in his hands will be tested by the ‘ulama of his home country or his new destination as soon as he arrives, and they will make sure that the content of the graduation letter matches the real ability and expertise of the young The process of delivering the diploma -or rather the letter of graduation -can be lengthy. It might involve several weeks or months of reflection, and a student who does not achieve the required work is told eventually of the impossibility of his teacher vouching for him. In the case of students who are unknown to prominent teachers whose recommendation is sought,’the paper [diploma] remains for days with the teacher’.
Only after an investigation among the select circles of the upper strata of the hierarchy will the diploma be drafted, redrafted, and finally handed over to the prospective’alim.
The nuances are infinite in the kinds of degrees which are granted upon the apprentice leaving Najaf, since the diploma is in effect no more than a letter of recommendation stamped with the seal of the high marja1. A’alim might also want to encourage a student to pursue his studies further, although’the student might think he is abler than he really is or he might be young and there are worries about the danger of him drifting... The student is then advised to stay in Najaf until his scientific abilities are strengthened.’
Some students leave Najaf temporarily, often out of the necessity of supporting their family financially. They might be given in this case a special letter’directed to the believers [the lay Shi’is], or to some of their sponsors [at home], which enjoins them to follow their preaching and guidance’.
This permission is known as’waraqat khubz [literally a paper for bread], which means that its carrier produces it for financial help, since the faithful are accustomed to support with grants the carriers of such papers’.
There are therefore several types of titles that Najaf grants its students.
For Faqih, this extreme flexibility is no surprise:’Najaf supplies society to the degree needed.’
After all, he adds, there is no need to profess a profound scholarship just to perform rituals or dispense simple legal rules, such as supervising marriage or divorce. Too much scholarship might even be detrimental: what is the point of explaining the existence of God or the legitimacy of’Ali’s leadership to the layman by an arduous legal and logical terminology when a simple causality line will convince him better?
A softspoken and casual speaker can have a better impact than a highly theoretical mujtahid, and Najaf is there to embrace and cater for all social needs.
This apprenticeship of the’ulama of Najaf, and the graduation in the city of several layers of’men of religion’, brings the analysis to the two other levels of Najafi influence on contemporary constitutional theory. How one becomes a mujtahid must be supplemented with the place of mujtahids in civil society and with its corollary: the sensitive issue of the pre-eminence of some mujtahids over others.
The structure of civil society
There are, in theory, two categories of persons who are recognised by modern Shi’i law: the mujtahids and the muqallids. A mujtahid ought’to be capable of deduction in all fields of fiqh’
or at least in one of these fields.
The muqallid is the layman, who is devoid of such knowledge. He or she is bound to follow the mujtahid’s decrees. The rule admits no exception:
The act of a layman, tammii who proceeds without taqlid or without ihtiyat [defined as’ the act which is certain in good faith when in presence of an unknown matter’] is void, except in two cases: (i) if the muqallid acts in accordance with the fattua of the mujtahid he follows; (2) if the act performed is a matter of worship, in case of an approximation of the situation [i.e. its close resemblance to rituals usually performed].
Nonetheless, in the latter occurrence, it is recommended that the act be consonant with thefatzva of the mujtahid whom the muqallid should have related to at the time of performing of the act.
Against this description of Shi’i civil society by Ayat Allah Abul-Qasem al-Khu’i, the graduation process of Najaf and the schools’ curriculum can now be judged. When the apprentice becomes a mujtahid’ and chooses to leave Najaf to go to Iran, India, Afghanistan, or Lebanon, he carries with him a recommendation which might be influential for a position of judge or of religious leader at his destination. A stay in Najaf, like a stay at the Azhar for a Sunni, is a priori very prestigious. The content of the letter of recommendation, the shahada, will further testify to the graduate’s particular abilities. The reputation of the scholar trained in Najaf, which might have been already enhanced by the network of the Shi’i’ulama, the visits to the shrines of Najaf by compatriots, and all the intricate contacts between the civil society and the hierarchy of’ulama, will put him in a position which commands respect in the society. This position is also the key to his financial survival in the city or village where he resides.
Voluntary taxation is the other aspect of the network created by the legal structure. The sahm al-imam, which is the tax levied for the lalim in his capacity as representative of the Hidden Imam, constitutes one of the two essential revenues of the’ulama, the other being the khums, which is paid to most mujtahids in their capacity as sayyeds, or descendants of the Prophet through his daughter Fatima and the first Imam’Ali.
The degree to which the tax is paid varies naturally with the relative wealth of the society where it is levied, and with the fame of the lalim to whom it is paid. Since the state system is completely independent from the Shi’i structure, such tax cannot be enforced with the help of coercive measures.
Depending on the religious commitment of the followers of a lalimy financial contributions will consequently be more or less forthcoming. But there is competition among the’ulama for the pool of financial support.
The pooling of religious taxes is obviously not structured. This is due in the first place to the impossibility of enforcing taxation without state power.
It is due, further, to a combination of the international character of the Shi’i civil society system and to the absolute freedom for a muqallid to choose his or her own mujtahid.
Shi’i internationalism
Internationalism is at the heart of the Najaf network, as the description of the schools suggests. It also derives from the constant interaction between the’ulama of the various parts of the Shi’i world after they have graduated from Najaf, and internationalism is enhanced at the level of the population generally by the visits and pilgrimages, as well as by a mystique surrounding the burial in Najaf, the’valley of peace’. In this context Najaf represents the most prominent pilgrimage. In Qum and in Mashhad, visitors stream to the holy places, and the structure of pilgrimages suggests a dense network of varying intensity. Political and more arcane scholarly reasons will influence the various flows of visitors. The most dramatic recent example is, of course, the barring of Najaf to Iranian visitors after the outbreak of war with Iran, but even in more relaxed times, the stream of visitors will be subject to some turbulence or other in Middle Eastern affairs.
On the scholarly level, the history of Najaf and the central Shi’i places suggests that the reputation of a particular Shi’i centre of learning will significantly affect the ebb and flow of its visitors. At the turn of the century, Karbala and Kazimiyya were more important in Iraq than Najaf, and in the thirties, the foundation of Qum as a centre of learning under the scholarship of Ayat Allah al-Ha’eri pushed Najaf momentarily into the background.
From the mid-1940s however, until the 1970s, Najaf recovered its importance in the Shi’i world as the most respected centre of learning.
Legal scholarship and religiosity are peculiarly intertwined in Shi’i civil society. The pilgrimage to Najaf or to Qum depends to a large extent on the importance of the scholars in the city. This appears in remarkable contrast to the Sunni world, where the pilgrimage to Mecca is completely independent of the reputation of the city as a centre of Islamic learning. Of course, there is, in the same way as the hajar in Mecca, as-sahn ash-sharif in Najaf, where the first Shi’i Imam is believed to be resting. But in comparison to the Sunni mazars (religious places to’visit’), there is a further dimension to the connection between the Najaf scholars and the visitors to the city. This supplementary characteristic is due to the structure of Shi’i civil society and the mujtahid-muqallid dichotomy.
The choice of a muqallid by the layman is absolutely free. In theory, it is compulsory for the muqallid to choose a living mujtahid, and this feature of Usulism figures, as suggested earlier, as the most important distinctive mark in the Usuli school in contrast to the Akhbaris. This explains the more intense dimension to the pilgrimage at Najaf: the pilgrim pays homage not only to the memory of the Imams, he also salutes those living’ulama who bear the flame of Imamism.
If Usulism compels taqlid, it does not interfere in the choice of the jurist who is imitated. As a consequence, the way a’alim becomes important comes not only from the superiority of his knowledge of the law as is recognised in his educational training. It is also vital that he relates to the mass of lay persons, and that they also recognise his religious leadership. Since the muqallids are free to choose the mujtahid they prefer, a mujtahid’s importance will grow proportionally to the number of his muqallids. This importance is not only scholarly. The mujtahid is also rewarded financially by his muqallids as the recipient of sahm al-Imam.
Internationalism is decisive in this respect, since a muqallid can choose beyond his own limited geographical confine, and reach in his taqlid the far away’ulama whom he knows by reputation. Thus, it is common for a Shi’i in Lebanon for example to profess taqlid of an Iraqi mujtahid. Nationality in this respect is neutral. Shi’i civil society transcends state boundaries. Until his death in August 1992 it is said that the mujtahid who commanded the largest number of muqallids was Abul-Qasem al-Khu’i in Najaf. Why this importance, and the number of muqallids, is disputed now appears evident.
The system is essentially oral. There is no register of taqlid. But were there a central register, it would be meaningless. The lay Shi’is have several ways of’practising’ their taqlid. Since there is no coercion at any level in the system, the gamut of taqlid will run from absolute passivity to hearty financial and religious commitment. The only constraint, which is the hallmark of Usulism, is the necessity of following a living mujtahid. This trait guarantees the smooth reproduction of the system.
‘Reputation’ and the new concerns
The internationalist dimension of Shi’i civil society is one of the two major characteristics of the system. The other characteristic lies in the proper hierarchical structure of the students who have’graduated’ from the Shi’i law colleges, the mujtahids. It is the hierarchy of mujtahids of which he is now part that counts most for the Najaf graduate. This hierarchy, in the contemporary world of Shi’ism, is the key to important political events.
Naturally, education is only part of a much wider context which transcends pure knowledge, and the Shi’i hierarchy has meant much more to societies with a significant Shi’i population, both as a social weight or corrective, and as a focal organisation for popular movements that have rocked the Islamic world in recent years.
As suggested earlier, the key word for understanding Najaf is reputation.
In the absence of a strict examination system and of an’honours’ diploma, it is the student’s reputation in legal competence which allows him to pass from one stage to the next, and it is again his reputation, as recognised by his peers or by other mujtahids, which decides ultimately his right to accede to the elite of the marjaiiyya.
The importance of reputation does not stop with graduation. Its centrality from the early days of apprenticeship recurs throughout all the stages of the process of knowledge, and is even more important for the various degrees in the ladder towards supreme ijtihad.
Whether the graduate’alirn remains in Najaf or goes to another city across the Shi’i world (traditionally in the East, including Pakistan and India, but since the late 1960s also in places like Germany, the United Kingdom, and the United States), he is part of both the educational structure and of Shi’i civil society at large.
From the educational point of view, he can start teaching at various levels, depending on the students who come to him. His circle will obviously depend on the place where he teaches. A’alim in Najaf and in Qum will carry more importance than his colleague in Jabal’Amil or in Pakistan. The competition of the various schools and hauzas will also affect the mujtahid’s educational importance and rayonnement. To this extent, and bearing in mind the flexibility built into the system of’ registration’ which will allow any Shi’i to find a teacher and means of livelihood in university towns like Najaf and Qum, the mujtahids as professors function like their counterparts in Western universities to a limited degree only.
The difference from Western teachers is notable. This is true in the educational field, in the civil society at large, as well as in the fiscal dimension of the mujtahids’ sway. Financially, as mentioned earlier, the mujtahids are independent from state support, and their revenues will vary largely according to their reputation, to the degree of religiosity in the society generally, and of course, according to the wealth and commitment of their muqallids. Since the muqallids’ financial support cannot be constrained, the reputation of a given mujtahid will constitute in the final analysis the criterion for his taqlid.
The challenge to the law curriculum
It is in the light of the Najaf curriculum that the personality of Muhammad Baqer as-Sadr appears best, and his answer to his disciple Ha’iri, mentioned at the beginning of this section, is indicative of the intricacies of Najaf s world of learning. The contradiction inherent to scholarship which requires, on the one hand, the gradual recognition of fellow’ulama after long years of study, and on the other, the necessity of improving the received tradition, is at the heart of the Najaf educational structure.
The risala’amaliyya (the comprehensive legal treatise mentioned earlier) comes for the most talented young scholars as the crowning of the long years of their apprenticeship. This risala will be produced in the form of commentaries over the accepted legal compendia written by the great mujtahids of the nineteenth and twentieth centuries, or it can be a compilation according to the views of the author asserting his capacity to offer a comprehensive picture of state-of-the-art Shi’i law.
The risala seldom offers real novelties in legal research.
It represents an element in Shi’i education which preceded the turmoil of the twentieth century. The educational structure in the law schools might well have encouraged the constant renewal of glosses and commentaries over the received Shi’i fiqh. Yet the renewal remained constrained by the nature of the texts which were out of step with the contemporary age.
The description of the various texts of reference in the curriculum has pointed out how dated some of these works could be. Grammar texts of the twelfth century were still the basic tools followed by the colleges for language teaching, and the study of usul, despite improvements introduced with the simplified treatises of Muhammad Baqer as-Sadr and Muzaffar, have remained of little relevance to the modern period.
Notwithstanding the’official’ texts listed in the curriculum, there was a more fundamental adaptation under way in the law schools of Najaf. A turning point occurred in the 1940s with the writings of Muhammad Husayn Kashif al-Ghita’, and a reading of his two short works mentioned earlier, al-Muthul a/-’ Ulya and al-Muhawarat3 as well as his introduction to Shi’ism for the layman,
shows the distance rapidly covered in the probing of new interests around Najaf.
In view of the number of editions published in a few years,
these works certainly appealed to the uninitiated Shi’is, and even more to the younger’ulama. They opened the way to a more decided interventionism in the daily life of the city, but they cannot be considered scholarly departures from the legal tradition. Their subject-matter remained outside the legal sphere.
The new generation, which was the generation of Muhammad Baqer as-Sadr and his Najaf companions, welcomed the literature which Kashif al-Ghita’ permitted in his considerations of the 1940s. From a specific legal perspective however, the renewal of Islamic law required more than just opening the door to politics. The elaborate educational system of Najaf was not being challenged in these works, and the scholarly training of Kashif al-Ghita’ remained inevitably underused in books introducing Shi’ism or railing against Western colonisation or injustice. More fundamental alternatives were awaited.
The most conspicuous alternative issues, which straddled the legal tradition and the new worldly interests, were understandably undertaken in the realm of public law, and Muhammad Mahdi Shamseddin’s System of Governance and Administration in Islam
is a good example of the new legal literature. But the effort was not limited to public law, and Shamseddin’s work was in any case as much an overview of the way an Islamic state should conform with the tradition, as a polemical work against the Sunni legal conception. A deeper and more interesting dimension of the new juristic interests in Najaf appears in a multi-volume treatise by Muhammad Husayn Kashif al-Ghita’ on civil law, which addressed in remarkable detail the technicalities of the most influential civil code of the time, Majallat al-Ahkam al-’Adliyya.
The Majalla, Iraq’s Civil Code for decades, is an Ottoman Sunni text of great repute, which had no equivalent in the Shi’i world. Kashif al-Ghita"s article-by-article four-volume commentary, Tahrir al-Majalla, represents the practical answer from a jurist’s point of view to the dominance of Sunni law in Iraq. To date, Tahrir al-Majalla represents the most interesting compendium of differences between Sunnism and Shi’ism in the understudied (from the point of view of the shari’a) but crucial questions of civil law. Beyond the minute details of this work, it is clear that the interest in such worldly matters came from a legitimate concern with the protection of the Shi’i message in its creative manifestation, and in its ability to address contemporary legal problems. Such awareness is spelled out in the introduction, which presents Kashif al-Ghita"s contribution as a necessity, considering that’al-Majalla al-’Adliyya or Majallat al-Ahkam is the book taught in law colleges from the times of the Turks to the present’.
Kashif al-Ghita’ decided therefore to undertake a long and minute commentary on each of its articles and maxims:’The main object [of the work] is twofold: (i) to explain and comment [on the Majalla] and solve some of its complexities and problems; (2) to show what concords in it with the Imami school and what is different.’
The result of this endeavour is a remarkable compendium of practical Shi’i law, which is much closer in its relevance to the modern world than any of the traditional Shi’i works normally taught in Najaf.
Kashif al-Ghita’ was disappointed with the way the book was received.
Tahrir al-Majalla was published over a period of three years starting in 1940.
In the second volume, published in 1941, the lack of serious attention to the book was ascribed by the Najaf mujtahid to’the difficult circumstances of the times the world convulsions, and the raging wars’.
The reference is to the outbreak of the Second World War. Iraq, like many other Mashreq countries, was directly affected by coups and countercoups of pro-British and pro-German generals. In the longer term however, misfortune befell the commentary of Kashif al-Ghita’ as the Majalla itself was superseded by the new Iraqi Civil Code, and the painstaking commentary of the Najaf ialim fell into sudden disuse.
In any case, it was clear that, as a prominent Shi’i jurist of the time, Muhammad Husayn Kashif al-Ghita’ was interested in a more critical say in contemporary law. Tahrir al-Majalla can be considered as the first scholarly endeavour for a Renaissance which culminated in the works of Muhammad Baqer as-Sadr and in the Iranian experience under the Ayatollahs. Since then, the Islamic jurists were keen to offer a key to a comprehensive understanding of critical contemporary issues, from the question of women to the articulation of Islamic banks.
Relevance to the present
So far, the analysis of the schools of law in Najaf and the juristic efforts carried out by some of the Shi’i’ulama has mainly touched upon the intellectual exercise undertaken against the unstable background of the Iraqi scene towards the middle of the century. Clearly, some conscious attempts were directed at revamping the approach to law in order to enhance its contemporary relevance, but Muhammad Kashif al-Ghita’ had remained the exception at the time. The law curriculum offered little comfort for the daunting social problems and the obsolescence of the Shi’i schools. This is when Muhammad Baqer as-Sadr and his companions took to overhauling the legal field, until by the end of the 1970s a comprehensive alternative Islamic system was almost completed. Rooted as it was in the law colleges and their early curriculum, the importance and effective impact of the ulama’ and of the colleges did not emerge fully until the present period.
Regardless of the educational content dispensed at Najaf, the very structure of the schools represents a unique element in the Islamic state which the’ulama would eventually try to build. The hierarchy which brought the apprentice up the ladder of knowledge to the position of ijtihad offers a constitutional blueprint which is perhaps unique in the history of modern nation-states, The way in which the apparently anodyne shell of the’University of Najaf turned into the most decisive element in the construction of the Islamic state in Iran, and how it succeeds in explaining the strength and weaknesses of the opposition of Islamic groups in countries like Iraq and Lebanon, as well as the structure of the’ Shi’i International’ so prominent in the 1980s, is the object of the next section. As in the remarks of Sadr towards the end of his apprenticeship, an odd exchange of letters between Ruhullah al-Khumaini and Muhammad Baqer as-Sadr in 1979 provides the starting point of analysis.
A late episode: Sadr and the exchange of letters with Khumaini in 1979-80, or’who is the most learned jurist?’
The relationship between Muhammad Baqer as-Sadr and Ruhullah al-Khumaini, in the long years that Khumaini spent in Najaf, has remained unclear. Despite the closeness in the outlook of the two leaders, the common protection of Ayat Allah Muhsin al-Hakim, and the physical neighbourliness, it does not seem that they met regularly. Their exchange seems to have remained sporadic. To an extent, this is the result of Khumaini’s reserved attitude throughout his stay in Najaf, partly because of a shy nature and some apparent difficulty in spoken Arabic, but mainly because of a deliberately cautious political attitude. Khumaini knew the difficulty of finding a safe place of exile. In the aftermath of the Khordad Revolt, which ultimately led to his departure from Iran on 4 November 1964, he spent a few months in Bursa near Istanbul. In Turkey Khumaini was no doubt completely isolated in a society which is overwhelmingly Sunni, and which in any case is completely dominated politically by a secularist state. In October 1965, he left Bursa for Najaf. From October 1965, and until he was forced to go to France on 6 October 1978, Khumaini remained with his family in the small Iraqi city, where he was liable to immediate deportation by a wary and unfriendly government. It is in this light that his connections with the Iraqi world must be viewed. Even with the local ulama, Khumaini remained at a distance.
There are, therefore, few recorded instances of contacts with Sadr, who by 1965 had already become famous in Shi’i circles for his scholarship.
In Sadr’s biographies, despite great efforts to show that strong contacts and deep friendship had tied the two revolutionaries together, there is not a single significant instance of any close contact before the revolutionary days in 1979-80. Indeed, only one (unreliable) biography of Khumaini mentions familiarity and connivance, reporting that the Iranian’alim,’who was shunned by all the clerical establishment of the Iraqi city [which in any case was incorrect, since Khumaini had been invited by Muhsin al-Hakim]’, was visited in 1967 by’Mohammad-Baqer Sadr,... who was trying to mobilise the religious leaders in view of what he called the decisive battle against Israel’.
It is difficult to imagine, however, that the two men were not acutely aware of each other’s existence. But in those early days, and until 1977-8, Khumaini was not an important character in Najaf. By the time of the first demonstrations against the Shah, the problems between central government and Shi’i leadership in the city had acquired a significance and reached a level compared to which Khumaini’s presence was marginal.
But things radically changed as the revolution overtook Iran. At that time, Iraq had been witnessing two major developments: the assertion of Sadr’s unquestioned leadership among the militant’ulama after the death of Muhsin al-Hakim in 1970, and the rapid rise of the Iraqi revolutionary Islamic tide. By then, Khumaini and Sadr had become the unchallenged heroes of the day, and they were thrown together into the realm of confrontation.
If Iran saw the decisive victory of the Islamic revolution led by Khumaini, the situation in Iraq was in 1979 more elusive. The new nickname of Sadr,’ Iraq’s Khumaini’ inevitably came, but in his case the confrontation with the state failed. By then, in contrast with their earlier relationship, the contacts between the two Shi’i leaders had acquired an important public dimension, and every single word or gesture of the one towards the other was carefully observed.
In 1979, the Iraqi situation appeared to be on the verge of an explosion similar to that in Iran.
Two years earlier, in 1977, the riots in Najaf at’Ashura had rocked the country, and echoed even inside the higher councils of the Ba’th party.
It is important to note in this respect that disturbances came before the success of Khumaini, who was still living in Najaf, and who was completely unknown internationally. But the demonstrations in the South of Iraq turned him into a first-hand witness of organised anti-governmental demonstrations. For fear of immediate expulsion, and also probably because his own network was directed solely towards the Iranian scene, Khumaini remained in February 1977 on the margins of Iraqi turmoil.
None the less, his stay under the protection of the Najaf tulama is important in the light of the subsequent negative developments.
Two years later, Tehran became in turn the model for those in Najaf to follow, and tension rose in Iraq very quickly after the victory of Khumaini.
When, in 1979-80, pressure increased on Sadr, the Iraqi leader naturally considered seeking refuge in the new Iran. But Khumaini did not reciprocate the Najaf hospitality.
Khumaini sent Sadr a telegram which was broadcast on Radio Tehran:
Samahat [Your grace] Hujjat al-Islam al-hajj sayyid Muhammad Baqer as-Sadr: we have been informed that your holiness has decided to leave Iraq because of some events [disturbances, hawadeth]. I do not see good [min as-saleh] coming from your leaving the city of Najaf, the place of Islamic sciences, and I am worried about this matter, and hope, God willing, that the worries of your holiness vanish, peace and God’s mercy be on you.
Sadr’s answer came on the 5th of rajab 1399/1 June 1979:
Samahat Ayat Allah al-’uzma al-imam al-mujahid [literally’Your holiness the great sign of God and the fighting imam’] sayyid Ruhullah al-Khumaini, I have received your respectable telegram, which embodied (jassadat) your fatherhood (ubuwwat) and spiritual protection for a Holy Najaf that has kept living your grand victories since parting with you; I draw from your honouring guidance a spiritual breath, as I also feel the depth of responsibility for the protection of the scientific existence of Holy Najaf. I would like to express to you on this occasion the salutations of millions of Muslims and believers in our dear Iraq, which found in the light of Islam, now shining again thanks to you, a guiding beacon for the whole world, and a spiritual energy to strike the atheist (kafer) colonialism, and American colonialism in particular, and to free the world from all the forms of its crimes, foremost among which the crime of the rape of our holy land Palestine; we ask God almighty to grant us the perenniality of your precious presence, peace on you and God’s blessing and mercy.
Behind the flowery language and the emotional charge of the exchange, significant details appear in these telegrams. Before examining those details, it is also worth mentioning parts of the message of Khumaini when he learnt, on 22 April 1980, of the certainty of Sadr’s execution:
According to the report sent by the Foreign Minister which is based on several sources in the Islamic countries and also other sources, with utmost grief I have come to know that the martyr Ayatollah Sayyid Mohammad Baqir Sadr, and his illustrious, noble sister, who held a high station [i.e. rank] among the scholars and possessed a radiant position in the literary field, have attained martyrdom under the most heart-rendering circumstances at the hands of the perverse regime of Iraq... It is no wonder that Sadr and his sister have attained martyrdom; what is strange is that the Islamic nations and in particular the noble nation of Iraq and the tribes of the Tigris and Euphrates, and the proud young men of the universities and all other dear youths of Iraq may pass indifferently by this great calamity that has affected Islam and the Household of the Messenger of God (S), and give their opportunity to the damned Ba’th party that it may martyr their illustrious leaders one by one in the most atrocious way... I do not have any hopes from the higher officials of the Iraqi Armed Forces, but I have not lost my hopes from the officials, non-commissioned officers and soldiers of the Iraqi Army. I expect them to rise courageously against this regime and overthrow the structure of crime from its very foundations -as it happened in Iran...
The striking element in these letters is of course of a political nature. It is epitomised by Khumaini’s calling the Iraqi army to rise in rebellion after Sadr’s assassination. It is also important in view of the deterioration of the situation between Iraq and Iran, which soon led to the bloodiest Mideastern war of the century. But politics aside, it is the legal dimension, in the light of the Najaf schools and the structure of Shi’i civil society, which constitutes the more interesting dimension revealed by the exchange.
Sadr’s initial request was an appeal for help. His situation in Najaf had become critical. After many arrests, and the rise in tension in the wake of the Iranian Revolution and the problems facing the Ba’th internally, the security deriving from his position as religious leader had been spent, and he could only think of exile as a way out of the impending confrontation with the government. He therefore appealed to Khumaini, naturally expecting a positive answer. After all, the pattern was well established since the 1920s, and many of the most prominent ‘ulama had taken the route of exile,
long before Khumaini’s own exile from Iran and his protracted stay in Najaf. The answer of Khumaini was therefore puzzling: it was partly rooted in the belief that the Ba’th would not dare humiliate Sadr more than it had already done.
But the misjudgment of Khumaini might not have been merely caused by a political error.
There is a subtler dimension to Khumaini’s telegram. In his address, Sadr acknowledged Khumaini’s prominence. The maximal title appears in the Iraqi scholar’s letter repeatedly. Khumaini is not only called Ayat Allah alluzma.
He is also addressed as imam, an indication of Sadr’s absolute deference. This appears more clearly when contrasted with Ayat Allah al-Khu’i’s message of congratulation to Khumaini after the victory of the Revolution. Khu’i addressed Khumaini as Hujjat al-Islam, and not, as could have been expected, as Ayat Allah, a matter which was understandably shocking in Shi’i circles,
since it meant that whatever Khumaini’s success, he remained second in learning to all the recognised Ayat Allahs and to Khu’i himself.
The exchange between Sadr and Khumaini is in the same vein. Khumaini did not reciprocate the title with which he was honoured, and he addressed Sadr as Hujjat al-Islam. For a scholar like Sadr who, by 1979, had done more for the renewal of Islamic scholarship than any other writer in the century, this constituted a humiliating, and indeed a puzzling episode. In the countries that count the largest Shi’i communities, the denial by Khumaini of the supreme degree of ijtihad to Muhammad Baqer as-Sadr reveals an uneasy strain, which is typical of the competition between’ulama. As in the case of Khu’i and Khumaini, and more recently between Khumaini and Muntazeri,
the competition for recognition of the most learned jurist developed at the highest echelons, between the two foremost political’ulama of Iran and Iraq, with the dramatic result of trapping Muhammad Baqer as-Sadr in the deadly course of collision with the Ba’th. This is the more ironic in view of the posthumous title given to Sadr by Khumaini, when in the 22 April message, he was acknowledged as Supreme Ayatollah and as the’prize’ of Islamic learning.
This episode in Sadr’s life, as well as his early rejection of taqlid quoted at the beginning of the section, constitute the manifestations of a deeper problem in the structure of Usuli Shi’ism. Until the state became the terrain of competition between the’ulama, this problem never appeared as a critical question for the hierarchy, and whatever antagonisms have surfaced in the marja’iyya after the death of leading scholars, the fact that the lay person was ultimately free to choose his or her own marja1 deflected the impact of competition. When, in the late 1970s, the line between leadership of the state and religious leadership became blurred upon the’ulama’s access to power in Iran (and the threat they represented in Iraq), the problem became a constitutional issue.
Until this level was reached, there were significant intermediary stages in which Sadr played a central role. Before turning to these developments, it will be helpful to put the Shi’i legal structure in a more general perspective.
Conclusion: the Renaissance and the marjaiyyaa
With all the Renaissantist efforts among the Shi’i’ulama, the renewal in the aftermath of the Iraqi Revolution of 1958 managed to take place within the traditional educational structure. There was a conscious effort to salvage the structure of learning, and the bulk of legal production remained in the hands of old-style’ulama. Muhammad Husayn Kashif al-Ghita’ himself was wary of too much involvement in politics, and the defeat and exile of the’ulama in the 1920s must have been constantly on his mind.
For the new generation, threatened as it was by the Communist appeal, intervention was urgent. Its most successful paragon was, in due course, Ay at Allah al-Khumaini. The way he saw and legitimised political intervention by the’ulama will be discussed in the following chapters. But Khumaini owed a lot to the structure of the Shi’i schools, which was to be reproduced by the Iranian State. The shell offered to activism by the Shi’i educational tradition, at the level of apprenticeship, then for the hierarchy of the mujtahids itself, will now be summarised.
As described earlier, it is only after a long and hard period of study, which averages some twenty years, that the apprentice-’alim becomes a mujtahid.
The apprentice-’ulama were expected to live in difficult conditions, with scarce resources, and they were dependent on favours from their elders.
Those who did not come from well-known families depended on the established mujtahids, some of whom also lived in dire poverty. It is normal in this context, especially in an Iraq where the urban poor were overwhelmingly Shi’i,
that the appeal of social justice and revolutionary ideas from the left could prove so attractive to students and even to the’ulama.
In theory, the Najaf curriculum was very flexible, but this Freie Universitdt was not without any control or regulation. In fact, the marjaiyyaa oversaw the whole process of selecting material to be taught and of the students’ progress.
Some legal works were necessary to the studies of the young scholars, and only the mastery of these works would open up the ladder to the apprentice.
This was inevitable to some extent. A young student could hardly find his way through the maze of the scholarship of Islamic law without the guidance of his tutors in the recognised legal authorities of Shi’i history.
In strictly educational terms, recognition of the apprentice’s legal aptitude took place in one of two ways. Either it was an absolute recognition by his peers and students, or a formal admission by two recognised mujtahids. He could then, with this prestigious achievement, go back home and start teaching and exercising as a religiously recognised expert in his country, and eventually have his own muqallids. Or he could choose to stay in Najaf or move to other towns with a religious educational infrastructure in Iraq and Iran to pursue his studies and teachings. Whether he stayed or left, he was now part of the’good companions’,
closely interconnected by past experience and present recognition, and organised into an efficient and competitive hierarchy.
The distinguishing features of the hierarchy of the Shi’i’ulama appears most dramatically in the ways of their relation to their muqallids and in their relations to each other.
To a large extent, the hierarchy within the mujtahids reflects the early stages of apprenticeship. The students rise through the various stages of apprenticeship by a process which rests ultimately on various criteria acknowledging aptitude to ijtihad based on reputation and recognition. As with murahiq to mujtahid, so with the ascent from lesser to higher mujtahid:
the mujtahids rise through the hierarchy of the marjaiyyaa by a process combining lectures, seminars, and publications in the field of fiqh, as well as the growing acceptance and support of the muqallids at large.
In the same way as the stages of apprenticeship were never made truly precise, but acquired gradually an unofficial mould which divided them in approximate numbers of years, a mujtahid was in theory no different from any other mujtahid. In strict law, the categories of mujtahid and muqallid are discrete. The individual is either a mujtahid or a muqallid, with no degree in between and no differentiation between various mujtahids or different muqallids. This derives naturally from the flexibility built into the theory of reputation.
Reputation also meant that in due course, a difference could be discerned between a successful and’true’ mujtahid, and between less brilliant and competent ulama’. This was reflected in the titles bestowed on the mujtahids, such as Ayat Allah, Hujjat al-Islam, Thiqat Allah, etc. At a time when the whole structure of the Shi’i schools was on the wane, as in Najaf from the 1920s to the 1960s, the differences between these degrees were not considerable. In effect, they were so fluid that one could not make a case for a precise distinction between the various titles.
Within the hierarchy and the grades mentioned, there was, in effect, little difference. The structural reason for this fluidity was the absence of a criterion to differentiate between say, a Thiqat Allah and a Hujjat al-Islam.
But more fundamentally, the flexibility came from the external element constituted by the cooptation by the muqallids of their own mujtahid. The more muqallids a mujtahid was said to have, the more important he was amongst his peers. Ultimately, a mujtahid with a consistent and huge number of muqallids became a reference, a marja1, which is synonymous with Ayat Allah in the hierarchy.
The highest degree of Ayat Allah, or marja’, was somewhat distinct from the other appellations from two points of view.
Socially, it was not possible for a mujtahid to be more than a marja’, so the muqallids would more readily follow a marja’ than a Thiqat Allah. Although there was a vicious circle within the system because of the inevitable competition among the maraji’, this democratic process (in its demos literal acceptation, since the people ultimately decide whom to follow) ensured at the same time flexibility and uncertainty.
To an extent, this did not really matter. Since the whole structure of civil society was operating at the margins of the state, the uncertainty of the title was independent of any form of coercion. A muqallid’s willingness to contribute support and his readiness to acknowledge a particular mujtahid as his reference were the only elements which counted.
Legally, matters were more rigid because legal theory, although not adopting a more specific structure than the general dichotomy between mujtahid and muqallid, had built in a differentiation between a lesser mujtahid, and a more accomplished one. There was indeed some difference between a jurist who could operate in all fields of the law, and a jurist whose competence was limited to narrower matters.
This distinction between more competent and less competent mujtahids appears in Abul-Qasem al-Khu’i as between’the absolute and the partial mujtahid (al-mujtahid al-mutlaq wal-mutajazzi’)’.
Ijtihad being’the deduction of the legal rule from its proven premises’,
the absolute mujtahid is defined as’the one who is capable of deduction in all fields of fiqh’ whereas the partial mujtahid can operate’in some branches (furu’) without others’.
The debate will be enriched by taking a glance backward, to a time when the mujtahids’ arena was much less politicised. The testimony of the Lebanese Muhammad Taqi al-Faqih in the 1940s will serve once again to clarify, from the top of the hierarchy downwards, the operation of legal scholarship in the Shi’i world. The central question was formulated by Faqih thus:’How is the leader [ra’is, the highest recognised leader], chosen [elected, muntakhab]}’
The theoretical structure of Shi’i civil society depends on the answer to this question. More crucially for the present agitated state of affairs, the interface between the tradition and the constitutional model in Iran will help explain the parameters of the struggle for power in Tehran and its intricacies.
For Faqih, the answer to the question is’extremely difficult’, because the’new leader is not chosen immediately after the loss of the first leader. He is not elected by a known, precise, body, and the leadership is not defined after the loss of the leader by [the remittance of leadership] to one single person.’
The list of the traditional criteria necessary for acquiring the virtues of leadership offers no absolute clue to the process. Not only must the religious leader have lilm,’aql, taqwa (piety), idara (administrative skills), and hilm (clemency), he must also prove to be superior in all these virtues.
But who, from those who are inevitably of a lower degree than the position which they must allocate, will designate the leadership?’ The learned non-scholar, how can he be called upon to testify to the scholarship of the’alim, and how can a person who does not have the skills of administration testify to the good skills of another’a/zra?’
To answer these questions, one must look into the qualities of the electors (nakhibin):
For instance, there are a number of persons who are known for their scholarship and virtue, and they can be mutlaq (absolute), mutajazzi’ (partial), or murahiq (apprentice) mujtahids. They are called’the people of discernment’, ahl at-tamyiz. This means that they can discern the most learned from the less learned, for they have tested (mumarasat) the most reputable’ulama by attending their classes, by sharing their scholarship, and by mudhakara in the intricate questions which are the focus of interest of the great’ulama. Then the superior’alim becomes known to them, through his comprehensive scholarly scope, his faculties of induction and his ability to bring the legal branch back to its root, the usuli and fiqhi rule to its base, uncertain evidence to certainty (dalil zanni ila dalil qat’i), and through his ability to address [the arduous questions] which forebears and contemporaries failed to solve. If this is all ascertained, then they [the people of discernment] admit his intellectual supremacy, ala’lamiyya.
Another possibility of recognising who is the’most’ learned scholar can be achieved by the testimony of’very’ learned scholars. Those scholars who have proven their intellectual abilities can so qualify the person who is characterised in a way which elevates his degree beyond his peers’, they will say he is a’lam:
For example, the late Ayat Allah an-Na’ini testified to Isma’il as-Sadr’s [Muhammad Baqer as-Sadr’s grandfather] a’lamiyya. Then he changed his mind, and when he was asked about it, explained that he has seen his ability in [his knowledge in the law of] the traveller’s prayer, but discovered afterwards that he was not so competent in other matters.
The choice of the ultimate marja’ is therefore difficult to assess. It can be described as a ladder of recognition, with three levels: (i) at the bottom of the ladder, the free choice of the muqallids, who plebiscite a mujtahid over others by providing support, both in sheer number (the more the muqallids, the greater the mujtahid’s reputation) and in the intensity of their taqlid (where intensity is evaluated by financial support and religious devotion); (2) the’people of discernment’, who, after a long practice, will elevate a mujtahid to a’lamiyya; (3) the recognition of established Ay at Allans. The process is long, complicated, and uncertain. The mechanisms are, like in the case of the access to ijtihad of the apprentice’alim, dependent on the hazy notion of reputation. Faqih summed up the difficulties:
Thus you can see that the election is not limited to a category of people, or to a limited number. It is subject neither to religious power, nor to temporal power. The religious leader himself cannot appoint a successor. If he does, his choice can only be considered as one further significant [but not decisive] testimony. On this election process is built the glory of the University of Najaf. This is a natural election, it comes from all (majmu1), and is under the supervision of all.
Muhammad Taqi al-Faqih wrote his analysis in the 1940s. The difficulties he acknowledged in the choice of the ultimate marja’ were to reemerge in the aftermath of the Iranian revolution, when the Islamic state had to decide whom its leader would be. The model offered by the Shi’i law colleges constituted the blueprint of the overall model of government in the new system. But it needed to be translated into a constitutional language, which Muhammad Baqer as-Sadr provided.
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Author: CHIBLI MALLAT
