Alhassanain(p) Network for Heritage and Islamic Thought

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An Introduction toThe Islamic Shari’ah

Author(s): Sayyid Muhammad Rizvi

Publisher(s): Ansariyan Publications - Qum

www.alhassanain.org/english

In this text, Sayyid Muhammad Rizvi has outlined the fundamentals of Shari'ah and how to live by the teachings and laws of Islam. He discusses Taqlid, understanding of the laws and the reasoning behind them, and even the concept of Ijtihad.

Notice:

This version is published on behalf of www.alhassanain.org/english

The composing errors are not corrected.

Table of Contents

Preface 7

The Shari'ah 8

The Place of Shari'ah in Islam 9

What is the need for the Shari'ah? 10

The Superiority or God-made Laws over the Man-made Laws 10

How to Live by the Shari'ah? 12

During the Days of the Prophet 13

During the Days of the Imams 14

During the Ghaybat of the Present Imam 16

Summary 17

Notes 18

Taqlid, Following The Expert 19

The Meaning of Taqlid 20

Is Taqlid Reasonable? 21

Support from the Qur'an & Sunnah 22

Qualifications of a Mujtahid 24

Differences among the Mujtahids in their Legal Opinions 25

Notes 26

The Tendency of Rationalizing The Shari’ah Laws 27

The Scope of Rationalization 28

The Categories of Shari' ah Laws 30

The Right Approach 32

Notes 35

The System of Ijtihad 36

Some Important Terms 37

The Importance of Ijtihad 38

Was not Ijtihad forbidden in the Early Shi’ah Sources? 40

The Process of Ijtihad 41

A. Usulu’l-Fiqh 42

Convincing (Qat’i) & Non-Convincing (Dhanni) Souces 42

Legal (Shar’i) & Rational ('Aqli) Proofs 43

1. Dalil Shar’i 43

(A) The Linguistic Problems 43

(B) The Problems of Authenticity: 44

Examples of how a mujtahid comes to know of a Legal Proof: 44

2. Dalil 'Aqli: 44

The Procedural Rules (Al-Usulu'l-'Amaliyyah) 45

The Problem of Contradiction 46

B. Fiqh 48

Group One: ‘Ibadat -- the Acts of Worship: 48

Group Two: ‘Uqud --Mutual Contracts: 48

Group Three: ‘Iyqa’at --Unilateral Instigations: 48

Group Four: Ahkam -- Miscellaneous: 48

Group One: ‘Ibadat -- the Acts of Worship: 49

Group Two: Financial Laws: 49

Group Three: Personal Laws: 50

Group Four: Social Laws: 50

Notes 51

A Look into the Future of Ijtihad 52

Note 53

Preface

The present work attempts to familiarize the readers with the shari'ah, the Islamic legal system. Chapters One and Two define the need for the shari'ah and explain how a Muslim can live by following the shari'ah. Chapter Three is on taqlid: a process in which the lay Shi'ahsfollow the legal opinions of a living mujtahid (the expert of shari'ah). Chapter Four deals with trend of rational­izing everyshari ' ah law. Finally, ChapterFive, brings the reader closer to the system which a mujtahid uses in reaching to his opinions.

The first chapter is presented here for the first time. Chapter Two is a revised version of what I had written as an introduction to my book “The Ritual & Spiritual Purity (1989)”. Chapters Three to Five are revised editions of booklets printed in the early- and mid-eighties in “The Laws of Shari'ah” series in Vancouver, BC. This series was very well received by the readers in various parts of the world. Imam Mahdi Association of Bombay has translated three booklets (which now form the last three chapters of this book) in Urdu and is using them as text for its study circle programs.

I pray to Allah (S.W.T.) to make this work even more useful than the previous editions.

Rabi'u 'l-Awwal 1413

September 1992

S.M. Rizvi

Toronto, Canada

The Shari'ah

The Place of Shari'ah in Islam

The word “shari'ah” literally means “a way.” In Islamic terminology, it means the legal system of Islam. In this book, however, we will translate the word shari'ah as the laws of Islam or the Islamic laws.

“Islam is a din -- a religion.” What does a Muslim mean when he uses the word din or religion in this sentence? Does it mean just “believing” in the funda­mentals of Islam? Or does it mean just “living” accord­ing to the teachings of Islam without actually believing in God? No, both these explanations are incomplete. The word din or religion, when used for Islam, means believing in the fundamentals as well as living according to the Islamic laws.

This concept of religion is beautifully conveyed in the terms used by Islamic scholars to describe the fundamental beliefs and the practical laws of Islam. The “beliefs” are described as “the roots of religion” (usulu 'd -din). The “shari'ah laws” are described as “the branches of religion” (furu’ 'd -din). Beliefs without practice is incomplete Islam; and practice without belief may be useful in this world but not of much use in the hereafter.

The shari'ah is a complete way of life; no aspect of human life is outside its domain. Islam expects a Muslim to follow its laws in every aspect of life: personal and familial, religious and social, moral and political, eco­nomic and business, etc. After all, “Muslim” means one who submits to God.

The Qur'an says:

When Allah' and His Messenger have decreed a matter, it is not for any believing man or believing woman to have a choice in their affair. And whosoever disobeys Allah and His Messenger has gone astray into clear error. (Surah Al-Ahzaab, 33:36)

What is the need for the Shari'ah?

Man's nature dictates that he can only function prop­erly within a society, and a society depends for its existence on laws and regulations. Islam teaches that God has sent a series of messengers and prophets with divine laws for man's guidance from the very first day of his creation. The last Messenger was Prophet Muham­mad (may peace and blessings of God be upon him and his family) who brought the final and the perfect mes­sage, Islam, as a guide for mankind till the end of time.

Many people think there is no need for God-madelaws, we can make laws by ourselves. Islam believes that human being is a very sophisticated creature; and since he has not made his own body, nor did he create the world in which he lives, he, therefore, is not the best candidate for making laws abouthimself . Common sense says that when you a buy a complicated equipment (for example, a computer), you should use it according to the “instruction manual” prepared by the manufacturer of that particular machine. To learn the computer by trial and error is not the smart way. Similarly, God as the Creator of man and the earth knows better how the human being should live.

The “instruction manual” that God sent for us is known as the Qur'an. But human being is not just any ordinary machine; rather he is more complicated than the most advanced computer a human can ever produce. So God did not only send the Qur'an -- He also sent an instructor known as Prophet Muhammad (PBUH). The Prophet of Islam brought the Qur'an to us and also provided practical examples in his own life. According to Shi'ah Islam, after the Prophet, the Imams of Ahlul-Bayt are the protectors of the Qur'an and the interpreters of its laws.

The Superiority or God-made Laws over the Man-made Laws

At this point, I would like to point out the superiority of the Islamic laws over the man-made laws. Man-made laws are by necessity influenced by the law-makers' social and racial biases. The United Nations Organisa­tion is the best example of how policies are enforced only when it suits the interest of the super-powers. The rule of the game in man-made laws is not honesty andjustice, it is “the might is right”.

God-made laws are superior because of the following facts:

God is above class status;

God is above racial prejudice;

God is above the gender rivalry;

God, as the Creator, fully knows the humans as well as the world in which they live.

God-made laws will be just and based on fully informed decision. Let me demonstrate the superiority of God-made laws by using the example of capital punishment.

The secular system always swings according to the mood of the people: sometimes, the people feel that capital punishment for murder is not right and so they pressure their representatives to vote against capital punishment. But when crime rates increase and serial murder cases occur more frequently, public opinion changes and the legislators are influenced in favour of capital punishment.

Actually both sides of this issue reflect the Judeo-­Christian basis of the Western society. Judaism, on the one hand, insists on the principle of justice which demands “an eye for an eye”. On the other hand, Chris­tianity promotes the principle of mercy by saying “turn thy other cheek.”

Islam, the final version of God-made laws, takes a balanced look at the issue of capital punishment and has beautifully accommodated both the principles of justice and mercy in its system. The Western system did not realize the difference between the two principles of justice and mercy: while justice can be demanded and legislated, mercy cannot be forced or made into a law. You can always plead for mercy but you can never demand mercy.

Islam takes this difference into full consideration, and, therefore, it talks about the capital punishment on two different levels: legal and moral. On the legal level, it sanctions the principle of justice by giving the right of retaliation to the victim. But, immediately, the Qur'anmoves on to the moral level and strongly recommends the victim to forgo his right of retaliation and either to forgive the criminal or to settle for a monetary compen­sation. This issue has been clearly' mentioned in the following verse of the Qur’an:

In it (the Torah),We wrote to them: “A life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and there is retaliation for wounds.” But (before you act according to your right, remember that) whosoever forgoes (his right of retaliation), it shall be an expiation for him (against his own sins). (Surah al-Maaida, 5:45)

Thus Islam has very beautifully provided the legal safeguard for human life on the social level and also encouraged mercy from a moral point of view on the individual level. If human beings are left on their own in this issue, they will always swing between the two extremes of justice and mercy -- only Islam, the final version of God-made legal system can accommodate both these principles.

How to Live by the Shari'ah?

During the Days of the Prophet

The Muslims during the days of the Prophet Muhammad (PBUH) lived by the shari’ah by following the Qur’an and thesunnah . Sunnah means the example of the Prophet.

Was not the Qur'an enoughon its own ? The Qur'an is a book of guidance which was sent for the entire human world till the end of time. As such, it only deals with the general issues and mentions only the basic principles underlying the Muslim way of life. The Qur'an is more like a constitution than a book of law. The details were left to the Prophet (PBUH). This is quite clear from the following verses of the Qur'an:

He raised up among the common people a Messen­ger from among themselves to recite to them His revelations, to purify them, and to teach them the Book and the wisdom. (Surah al-Jumu’a, 62:2)

AndWe have revealed to you (O Muhammad) the Reminder (that is, the Qur'an) so you may clarify to the people what has been revealed to them, and so that they may reflect (Sura an-Nahl, 16:44).

These two verses definitely prove that Prophet Mu­hammad (PBUH) was not just a 'mail-man' whose only job was to deliver the Qur’an to us. He was a teacher and a commentator of the Qur'an. Even his actions are a source of guidance for Muslims:

You have a good example in Allah's Messenger for whosoever hopes for God and the last day, and remembers God oft (Surah al-Ahzaab, 33:21).

The obedience to the Prophet (PBUH) has been considered as the proof of loving Allah (SWT):

Say (OMuhammad), 'If you love Allah, then follow me; (if you do so) Allah will love you and forgive for you your sins.'(Surah aal-‘Imraan, 3:31).

To show the importance of obeying the Prophet (PBUH), Allah (SWT) further says,

Whoever obeys the Prophet has surely obeyed Allah. (Surah an-Nisaa, 4:80)

The Qur'an is not only silent on the details of things which can change overtime, it is also silent on the rules of worship which can never change. For example, the Qur'an in twenty-five different places commands the Muslims to say the daily prayers (salat), but not once has Allah (SWT) explained how the Muslims are to say their prayers. (The only exception is that of salatu 'l-khawf, the prayer said in a battle-field or when one is in danger.) This silence on the part of the Qur'an, I believe, was for the specific purpose of forcing the people to go to the Prophet (PBUH), ask him for details and follow his example.

During the Days of the Imams

After the Prophet's death, the Muslims were very much divided on the issue of leadership. This gave birth to the two groups known as the Shi'ahs and the Sunnis. The Shi' ahs believed in the leadership of Imam' Ali bin Abi Talib (a.s .) and the Sunnis believed in the leadership of Abu Bakr.

The Shi'ahs lived by the shari'ah by following the Qur’an, and thesunnah of the Prophet and of the imams.

Thesunnah , in Shi'ah definition, means “the sayings, deeds and silent approval of the Prophet and the twelve Imams of Ahlul-Bayt.” Although the issue of the lead­ership is beyond the scope of this study, I would like to mention one reason why the Imams of Ahlul-Bayt are preferable as the source of theshari ' ah than anyone else.

The Muslims of the early days realized the impor­tance of the Prophet'ssunnah and started to memorize his sayings known as hadith. Later generations pre­served the saying they had heard from the companions of the Prophet in the books of hadith. Even the actions of the Prophet, observed by his companions, were pre­served in writing. But this process of preserving thesunnah of the Prophet was not immune from mistakes and forgery. Many sayings were invented and wrong­fully attributed to the Prophet during the early period of the Islamic history,specially during the Umayyid era. At times, the rulers bribed the companions to fabricate 'hadith' in their favour. At other times, some people invented ahadith for apparently good causes not realiz­ing that they were using wrong means of trying to make people more religious!

In this background of the early development of hadith, we must find an authentic and informed source for thesunnah of the Prophet. When you look at the Muslims of the Prophet's days, you can find no one who was more knowledgeable, informed, reliable and closer to the Prophet than the Ahlul-Bayt, the family of the Prophet: Fatimah, 'Ali and their sons. After all, it is the Qur' an which testifies to their spiritual purity of the highest form by saying,

“'Verily Allah intends to purify you, O Ahlul-Bayt, a thorough purification.” (Surah al-Ahzaab, 33:33)1

Combine this verse about the Ahlul-Bayt's purity with the following:

“It is the holy Qur'an in a preservedtablet, none shall touch it but the purified ones.” (Surah al-Waqia, 56:79)

The real sense of this verse is that the Qur’an which is “in a preserved tablet” is not accessible to anyone except those who are purified by Him. This shows that the Ahlul-Bayt could understand the Qur'an better than any other Muslim. It is for this very reason that Allah (SWT) commanded His Messenger to ask the people to love his Ahlul-Bayt:

“Say (0 Muhammad), 'I do not ask from you any reward (for teachinf Islam to you) except to love my near ones.'“ (Surah ash-Shura, 42:23)2

This love was made obligatory because it would automatically entail obedience of those whom one loves. If the Ahlul-Bayt were not truthful, reliable, and worthy of following, wouldAllah( SWT) command us to love them?

These few verses are enough to show that the best commentators of the Qur' an and the most authentic source for the Prophet'ssunnah are the Imams of Ahlul-Bayt. The Prophet (PBUH) himself said, “I am leaving among you two worthy things. As long as you hold fast on to them both, you will never go astray after me. One is greater than the other: the Book of Allah (which is a rope suspended from the heaven to the earth) and my descen­dants, my Ahlul-Bayt. They will not separate from each other until they come to me at the (fountain of) Kawthar (in the hereafter). Therefore, see how you recompense me by the way you deal with them.”

This is not the place to discuss the authenticity of this hadith, but it will suffice to quote Ibn Hajar al-Makki, a famous Sunni polemicist. After recording this hadith from various companions who had heard it from the Prophet at vari­ous places and times, Ibn Hajar says, “And there is no contradiction in these [numerous reports] since there was nothing to prevent the Prophet from repeating [this statement] at those various places because of the impor­tance of the holy Book and the pure Family.”3

We can conclude from these verses and the hadith mentioned above that the Ahlul-Bayt are the divinely appointed commentators of the Qur' an, and the most authentic and the best source for thesunnah . It is for this reason that we prefer them to all other sources. Even when we quote a hadith from the Imams of Ahlul-Bayt, it is actually the hadith of the Prophet which they have preserved as the true successors of the last Messenger of God.

Imam Ja'far as-Sadiq (a.s.) says, “My hadith is the hadith of my father, the hadith of my father is that of my grandfather, the hadithof my grandfather is that of Husayn [bin' Ali], the hadith of Husayn is that of Hasan [bin 'Ali], the hadith of Hasan is that of Amiru ‘l-mu’minin ['Abi bin Abi Talib], the hadith of Amiru ‘l-mu’minin is that of the Messenger of God (s.a.w.), and the hadith of the Messenger is a statement of Allah, the Almighty, the Great.”4

The historical circumstances did not allow the op­portunity to the first three Imams of Ahlul-Bayt to teach and train their followers in the matters of the shari'ah. It was after the tragedy of Karbala that the Imams, especially the fifth and the sixth Imams, got the oppor­tunity to formally train their followers in the shari'ah laws. The training by these Imams actually laid the foundation for the development of ijtihad and taqlid among the Shi'ahs after the occultation of the twelfth Imam Muhammad al-Mahdi (a.s.).

During the Ghaybat of the Present Imam

During the Minor Occultation (ghaybat) of the pre­sent Imam, it was still possible for the Shi'ahs to present their problems to the Imam through his specially ap­pointed representatives. These representatives were 'Uthman bin Sa'id al-'Amri (260-265 A.H./ 875-879 C.E.), Muhammad bin' Uthman al-'Amri (265-305 A.H./ 879-917 C.E.), Husayn bin Ruh (305-326 A.H. /917-937 C.E.) and 'Ali bin Mu­hammad al-Samiri (326-329 A.H./ 937-940 C.E.).

However, after the Imam went into the Major Occul­tation, the problems of the shari'ah were resolved through the process known as ijtihad and taqlid -- the two most important ways of living by the shari'ah.

Summary

During the days of the Prophet (PBUH), the Muslims lived by the shari'ah by following the Qur'an and thesunnah .

During the days of the eleven Imams and the Minor Occultation of the Present Imam, the Shi'ahs lived by the shari'ah by following the Qur'an and thesunnah of the Prophet and the Imams.

During the Major Occultation of the Present Imam, the Shi'ahs, based on the training given to them by the previous Imams, developed the system of ijtihad and taqlid. Under this system, one group of the community studies the science of Islamic laws, specializes in that field and produces mujtahids. The non-mujtahid Shi'ahs, who obviously forms the majority, follows the opinions of the mujtahids of their time in shari'ah matters.

Notes

1. For details on this verse, see Rizvi, S.S.A.,Imamat : the Vicegerency of the Prophet (Tehran: Wofis, 1984) pp.49-54

2. For details on the love for the Ahlul Bayt, see Mutahhari, M., Wilayah: the Station of the Master (Tehran: Wofis, 1982) p.50-62.

3. Al-Makki, Ibn Hajar, as-Sawd'iqu 'l-Muhriqah, chapter 11, section 1. Also see S.S.A. Rizvi, Imamat;Sharafu 'd -Din a1-Musawi, The Right Path; and S.M.H. Jafry, The Origin and Early Development of Shi'a Islam.

4. In Shi'ah sources, see al-Kulayni, al-Usul mina 'l-Kafi, vol. 1 (Tehran: Daru ‘l-Kutubi 'l-Islamiyyah, 1388 AH) p. 52; in Sunni sources, see ash-Sha'rani, at-Tabaqatu 'l-Kubra, vol. 1, p. 28; Abu Nu'aym, Hilyatu 'l-Awliya', vol. 3, p. 193, 197.

Taqlid, FollowingThe Expert

Note: This chapter was first published in al-Serat (London: vol. IX, No. 2, 1983); then it was published as a booklet in 1985/ 1405 in Vancouver.

The Meaning of Taqlid

Taqlid literally means “to follow someone”, “to imi­tate someone”. In Islamic legal terminology it means “to follow the mujtahid in religious laws.” However, this following is based on an informed decision taken by the individual Shi'ah man or woman. Before you start fol­lowing the opinions of a mujtahid in theshari ' ah laws, you have to ascertain that he has the required expertise and that he is of upright character.

Taqlid of a mujtahid, as explained in previous chap­ter, is only when we do not have direct access to our Present Imam (a.s.). If the Imam had been accessible to us, then we do not have to follow any mujtahid.

Is Taqlid Reasonable?

It is not always unreasonable to follow others and to hold uncritical faith in them. We can logically distin­guish four possible forms of imitation:

that of an ignorant person by an ignorant person;

that of a learned person by a more learned person;

that of an ignorant person by a learned person;

that of a learned person by a less learned person.

It is quite clear that the first three forms of imitations are unreasonable and can serve no purpose. However, the fourth kind of imitation is obviously not only rea­sonable, but also necessary and matter of common sense; in our everyday life we follow and imitate others in many things; we like to feel that we are taking the advice of experts in matters outside our own knowledge.

Someone who wishes to build a house explains the basic idea of what he wants to the builder and then submits to his advice as to how he should go about the actual construction. The patient follows the treatment advised by his doctor; a litigant consults a lawyer when drawing up his case for a court. The examples are abundant; in most cases the advice is taken voluntarily, but sometimes the citizen may be required by law to seek expert advice and act upon it, before, for example, he is allowed to take some particularly dangerous drug. The clearest example is obviously in case of a legal dispute between two parties, when they are required to take their grievances before a judge and abide by his decision if they cannot settle their dispute amicably.

The practise of taqlid is an example of the same kind: the person who is not an expert in Islamic jurisprudence is legally required to follow the instructions of the expert, that is, the mujtahid. And in this case, the require­ment is an obligation which must be observed, for it is an essential part of the divine law.

Once a person has come to accept Islam, it follows as a necessary consequence that he must adhere to the shari'ah either by following a mujtahid (taqlid) or by undertaking the acquisition of learning and piety to such a degree that he becomes a mujtahid himself (ijtihad).

Support from the Qur'an & Sunnah

This sensible practise of following the mujtahid in shari'ah laws has been endorsed by Islam.

The Qur'an strongly exhorts at least a group of Muslims to devote their time and energy in studying religion. This obligation is of such importance that Allah (SWT) has exempted such persons from the duty of jihad.

He says:

“It is not (right) for the believers to go forth all together (for jihad). So why should not a party from every section of them (the believers) go forth to become learned in the religion?... ” (Surah at-Tawba, 9:124).

More interesting is the reason and purpose of their knowledge:“ ... to warn their people when they return to them, hopefully they may beware.” (Surah at-Tawba, 9:124) This verse divides the people into two groups: those who are learned in religious sciences and those who are not. It is the duty of the learned to “warn” (a broad term which implies advice and guidance) the common people, and it is expected of the common people to “beware” (take heed of the learned persons' advice and follow). In shari'ah matters, this process of guiding the common people is technically known as “ijtihad,” and the process of following the guidance by the common people is technically known as “taqlid”.

The Imams of Ahlul-Bayt (peacebe upon them all) have endorsed this system in theory as well as in prac­tise:

In Theory: In a famous hadith, 'Umar ibn Hanzalah asked Imam Ja'far as-Sadiq (a.s.) about the legality of two Shi'ahs seeking a verdict from an illegitimate ruler (or a judge appointed by such a ruler) in a dispute over a debt or a legacy. The Imam's answer was that was absolutely forbidden to do so; and then he read the following verse:

“ (Yet in a dispute) they desire to summon one another to the judgment of the taghut1 though they were commanded to reject and disbelieve in him.”(Surah an-Nisaa, 4:60)

Then 'Umar ibn Hanzalah asked, “What the two (Shi'ahs) should do then?” The Imam replied, “They must seek out one of your own who narrates our tradi­tions, who is versed in what is permissible and what is forbidden, who is well-acquainted with our laws and ordinances, and accept him as judge and arbiter, for I appoint him as judge over you. If the ruling which he based on our laws is rejected then this rejection will be tantamount to. ignoring the order of Allah (SWT) and rejecting us and rejecting us IS the same as rejecting Allah (SWT), and this is the same as polytheism.2

In another hadith, Abi Khadijah relates that Imam Ja'far as-Sadiq (a.s.) sent him to his companions with the following message: “If a dispute or a difference occurs among you about a property, then take care not to seek judgment from those illegitimate [judges]; in­stead, you must seek a person who knows what is permissible and what is forbidden by us, for I appoint him as a judge over you. And take care that you do seek judgement against one another with an unjust ruler.”3

The least that these two narrations prove is that the Shi'ahs are not allowed to refer to unauthorized judges for solution to their problems, instead they are advised to seek the guidance of those who are well-versed in the teachings of the Ahlul-Bayt. In these ahadith, the prac­tise of seeking the advice of experts in shari'ah laws is taken for granted.4

In Practise: There are several documented cases of Shi'ahs who asked the Imams of their time to appoint someone to adjudicate between them in religious prob­lems. Such questions were raised by those who lived far from Medina or those who could not gain access to their Imam in Medina itself.

1. 'Ali ibn al-Musayyab asked Imam 'Ali ar-Riza (a.s .): “I live far away and cannot always come to you, so from whom should I take the guidance for my relig­ion?” The Imam replied, “From Zakariyyah bin Adam al-Qummi ...”

2. 'Abdu ‘l- ‘Aziz and Hasan bin 'Ali bin Yaqtin asked Imam 'Ali ar-Riza (a.s.), “I cannot always reach to you to ask about our problems about religious teach­ings. Is Yunfis bin' Abdu 'r-Rahman trustworthy enough for seeking religious guidance?” The Imam replied in affirmative.

3. 'Abdullah bin Abi Ya'fur asked Imam Ja'far as­-Sadiq (a.s.), “I do not meet you all the times nor is it possible for me to come [to you], and at times one of our friends would come to ask a question from me for which I would have no answer.” The Imam said, “What does prevent you from [seeking guidance from] Muhammad bin Muslim ath-Thaqafi, for he has heard [many ahadith] from my father and was respectable in his views.”

4. Shu'ayb al-'Aqraqufi asked Imam Ja'far as-Sadiq (a.s .), “Sometimes we need to ask about certain things, so whom should we ask?” The Imam replied, “Take guidance from [Abu Basir] al-Asadi.”5

These few examples prove beyond doubt that the practise of seeking the guidance of those who are well­ versed in religion has been practically endorsed by the Imams of Ahlul-Bayt (a.s.).

Let me end this section with the statement of Imam Muhammad al-Mahdi (a.s .) in answer to a letter sent by Ishaq bin Ya'qub. The Present Imam (a.s .) says, “As for the newly occurring circumstances, you should turn (for guidance) to the narrators of our hadith, for they are my proof over you and I am Allah's proof.”6

Qualifications of a Mujtahid

Becoming an expert in fiqh and other Islamic sci­ences is not in itself enough for qualification as a mujta­hid whom the lay Shi' ahs can follow.

In addition to this expertise, the Shi' ah laws lay down that a mujtahid should be an Ithna-'Ashari Shi'ah and ‘Adil. 'Adil can be translated as “just”, but it includes other moral and legal qualities such as piety and absten­tion from all that the shari'ah forbids and fulfillment of all its obligations.

Imam Hasan al-'Askari (a.s .) quotes a long hadith from Imam Ja'far as-Sadiq (a.s.) in which the latter condemned the Jews for following the rabbis. Then the Imam said, “And, similarly, if the lay people of our ummah know in their fuqaha’7 open sinfulness, strong racial solidarity, greed for the vanities of this world and its forbidden things, opposition to their opponents who deserve to be helped, and help to their supporters who deserve to be opposed, then whoever from our people follow such fuqaha’, then they are like the Jews who have been condemned for following their rabbis.”

Then the Imam says: “But if there is anyone among the fuqaha’ who is in control over his own self, protects his religion, sup­presses his evil desires and is obedient to the com­mands of his Master, then the people should follow him (yuqalliduhu).”

“And these qualities will not be found except in some Shi’ah fuqaha’,not all of them…”8 These condi­tions in general and the above hadith in particular, make it incumbent upon the believers to be vigilant.

How Can a Believer Know who is a Mujtahid?

There are three recognized ways by which a person can discover who is a mujtahid:

by his own personal knowledge if he is himself a religious scholar;

by the testimony of two ‘adil and knowledgeable persons to someone's being a mujtahid;

by a degree of popularity which leaves no doubt about a person's being a mujtahid.

Once a mujtahid is followed by the Shi’ah commu­nity, he is known asmarja'u ’t -taqlid -- one to whom people refer in taqlid.

Most present day 'ulama' maintain that it is highly desirable not to just follow any mujtahid but to follow a mujtahid who is al-a'lam. In a general sense this means “the most learned”, but in this specific context it means the mujtahid who has the greatest expertise in deriving the rulings of theshari ' ah from its sources. The a'lam may be recognized in any of the three ways mentioned above.

However, it is sometimes difficult for the Shiah 'ulama' to distinguish who among all the prominent mujtahids is the most learned, and, as a result, more than one mujtahid may be followed in taqlid at one time (though not, of course, by the same person). This has been the case in the seventies and the eighties; but such multiplicity rarely results in any practical disagreement on legal matters within the Shi'ah community.

Differences among the Mujtahids in their Legal Opinions

Many people wonder why it is that the mujtahids sometimes differ in their religious opinions, or fatwas, when the bases of their ijtihad are the same.

Firstly, any difference in the fatwas is never such as to be contradictory; it is almost impossible to find a case of one mujtahid saying some action is wajib and another saying it is haram.

Take, for instance, the case of the Friday prayer (salatu 'l-jum'ah). All Shi'ah mujtahids believe that in the presence of the ma'sum Imam, this salat is obliga­tory on Fridays because it is the Imam or his repre­sentative who has the right to call the people to the Friday prayer; but they differ as to what is the correct course of action when the Imam is in Occultation.

The late Ayatullah Sayyid Muhsin al-Hakim (d. 1970) was of the opinion that salatu 'l-jum'ah is not obligatory during the Occultation of the Imam, but it does not matter if someone performs it supposing that it is expected of him, if he also prays the noon prayer (salatu 'z-zuhr). Ayatullah Sayyid Abul Qasim al-Khu'i says that “one can choose between performing salatu 'z-zuhr or salatu 'l-jum'ah; but once the latter is estab­lished with all its conditions (fulfilled), then it is precau­tionarily obligatory (ihtiyat wajib) to participate in it.”

Ayatullah Sayyid Ruhullah al-Khumayni says that “one can choose between performing salatu 'z-zuhr or salatu 'l-jum'ah; but if one chooses the latter, then it is advis­able (mustahab) to precautionarily perform salatu 'z-­zuhr also.” Although there are differences in the opinions of these mujtahids, there is no clash that would, for example, prevent the followers of one of them par­ticipating in salatu 'l-jum'ah if it were established.

Secondly, the existence of differences in scientific opinions is not to be taken as a sign of a substantial defect in the quest for knowledge and a reason for abandoning it altogether; it is, rather, a sign that knowl­edge moves in progressive steps towards perfection. Differences of opinions are to be found in all sciences, not just in fiqh.

There may, for example, be more than one opinion about the therapy for a particular patient's disease, and all of these opinions may be superseded later on by the development of a new method of dealing with that disease. Thus these observations can be seen to be relevant not only to differences between the opin­ions of contemporary scientists but also to historical differences, and all these differences should be regarded as signs of the dynamism within a science and as stages to be passed in its route to perfection.

It should be remembered that the mujtahid formu­lates his opinions after pushing his research and study as far as he can; that is all that is expected of him, for he is neither inerrant (ma'sum) nor knower of the unseen (‘alimu ‘l-ghayb). If the available sources of the shari'ah lead a mujtahid to a particular conclusion and, let us suppose that on the judgement, he comes to know that the actual shariah law was something else -- then neither will he be punished for issuing that fatwa nor will his followers be punished for acting accordingly, because both had done what was humanly possible for them to do.

Notes

1. “Taghut” means any thing or person who is followed without authorization of God or his representatives. It is used for Satan, an Idol or even a human being who misleads others.

2. Shaykh al-Kulayni, al-Usul mina ‘l-Kafi, vol. 1 (Tehran: Daru ‘l-Kutubi ‘l-Islamiyyah, 1379 AH) p.67; al-Furu’ mina ‘l-Kafi, vol.7, p.412. In al-Hurr al ‘Amili, Wasa’ilu ‘sh-Shi’ah, see vol.18 (Beirut: DarIhyai ‘t -Turathi ‘l-‘Arabi, 1391 AH) p.99.

3. A1-'Amili, Wasa'ilu 'sh-Shi'ah, vol. 18, p. 100 who has quoted it from at-Tusi, Tahzibu 'l-Ahkam, vol, 6, p. 303.

4. Both the narrations quoted above are accepted by most of the Shi’ah scholars of fiqh and hadith. The hadith narrated by ‘Umar ibn Hanzalah is considered as a “maqbulah “ (acceptable) and that by Abi Khadijah is considered as a “mash-hurah” (famous) hadith, See, for example, the par excellent mujtahid of the last century, Shaykh Murtaza al-Ansari, Kitabu ‘l-Makasib (Tabriz: 1375 AH) p. 154. Moreover, these ahadith have been used here as a secondary argument in favour of taqlid; they are not initiating a process but just endorsing it.

5. Wasa’ilu sh-Shi’ah, vol. 18, pp. 106, 107, 105, 103.

6. Shaykh as-Saduq,Kamalu ‘d -Din wa Tamamu ‘n-Ni’mah (Tehran: Maktabatu 's-Saduq, 1395 AH) p. 484; Shaykh at-Tusi, Kitabu ‘l-Ghaybah (Najaf: Maktabatu 's-Sadiq, 1385 AH) p. 177; at-Tabrasi, al-Ihtijaj, vol. 2 (Najaf: Daru ‘n-Nu’man, 1966) p. 283. The text quoted above is from at-Tabrasi (c 6th cent. AH). There is a variation in the last part of this hadith in books of at-Tusi (385-460 AH) and as-Saduq (d. 381). Shaykh at-Tusi's version says,“ ... and I am Allah's proof over you” referring to all Shi'ahs whereas Shaykh as-Saduq’s version says, “ and I am A1lah's proof over them” referring to the mujtahids only. Saduq’s version, who lived before Tusi, leaves absolutely no room for the speculation done by a contemporary writer (Sachedina, Islamic Messianism, p. 101) that Tusi's version “seems to have been tampered with” by the 'ulama' of later or Safavid period (10th cent. AH) to promote their own power and status!

7. Fuqaha’ is plural of faqih which means expert of Islamic laws, mujtahids.

8. At-Tabrasi, al-Ihtijaj, vol. 2, p. 264.

The Tendency of RationalizingThe Shari’ah Laws

Note: This chapter was first published in 1984 (Vancouver), and then in 1985 (Vancouver).

Why we have to pray five times a day? Why dogs and pigs are regarded as ritually impure animals? Why an animal slaughtered un-Islamically is forbidden and ritually impure? These are but a few of the many ques­tions asked by our youths about theshari ' ah laws. They want to rationalize every law of the shari'ah; they want to know the reason and purpose of the legislation of these laws.

This chapter deals with this tendency and attempts to explain the validity or otherwise of such a trend. Before explaining the validity or otherwise of rational­izing theshari ' ah laws, I would like to clarify the fun­damental attitude of a Muslim towards the shari'ah.