A sample of the two ways of thinking
Adopted from the book : "The Principles of Ijtihad in Islam" by : "Shahid Murtadha Mutahhari"
It has been commanded in many hadiths that the end of the turbanshould always hang down and pass round the neck, not only at the time of prayer, but at all times. One of these hadiths is as follows : The difference between a Muslim and an unbeliever is the passing of the end of the turban round his neck (al-talahhi). A number of Akhbaris have seized upon this hadith and those like it, and said that the end of the turban must always hang down. But Mulla Muhsin Fayd32, although he did not think very highly of ijtihad, did in fact act in accordance with ijtihad in his chapter on apparel and adornment (al-ziy wa l-tajammul) in his "Kitab al-Wafi': and say that in former times the unbelievers had a slogan to the effect that the end of the turban should be tucked in on top, and they called this act iqti'at. If someone did this, it implied that he was one of them, and this hadith ordered that this slogan should be challenged and not followed. However this slogan has for a long time ceased to be current, and thus the subject of the hadith is no longer a matter of concern; on the contrary, since everyone tucks the end of his turban in on top, it is forbidden for someone to drape it round his neck, for it would be dressing in a way which drew attention to oneself, and this is unlawful.
Here the ossified doctrine of Akhbarism ruled that the text of the hadith ordered that the end of the turban must hang down, and it is an interference with it for us to add our words to it and give our own opinion and practice ijtihad. But the thinking of ijtihad is that we have two commands: one is the command to keep clear of the slogan of the unbelievers, which is the spirit of the subject of this hadith; and the other is the command to avoid ostentatious dress. In the days when this slogan had currency, and Muslims were trying to avoid appearing to comply with it, it became an obligation on everybody to keep the ends of their turbans hanging down; but now that this state of affairs no longer pertains and the slogan has fallen into oblivion, and now that ordinarily no-one lets the end of his turban hang down, if someone were to do this, it would be an instance of ostentatious clothing, and this is illicit. This is just one example which I wanted to give you: there are many like it.
It is narrated from Wahid Bihbihani that he said : Once, the new moon of Shawwal [the month following Ramadan] had been established because it had been sighted by many people (tawatur). So many people came and said that they had seen the new moon that certainty had been obtained in the matter for me33, so I gave the order that that day was the 'Id al-Fitr [the feast marking the end of Ramadan]. One of the Akhbaris protested to me that I had not seen it myself, and that it had not been witnessed by people who had been proven to be 'adil [to always act in accordance with the shari'a], and that I should therefore not have given the ruling. I said that it was mutawatir, and that this was a source of certainty for me. He then asked me in what hadith it had been narrated that tawatur was a valid proof leading to certainty.
It is also well known that some of the Akhbaris gave the command that the testimony of belief should always be written on the shroud of the corpse in this way : Isma'il yashhadu an la ilaha illa llah (Isma'il testifies that there is no god but Allah). Now the reason [they say] that the testimony is to be written in the name of Isma'il is that it is narrated in a hadith that the Imam al-Sadiq wrote in this way on the shroud of his son Isma'il. The Akhbaris had never stopped to think that it was written thus on his shroud because his name was Isma'il; and that now, for example, that Hasan has died, they should say: "We should write his own name on the shroud, not that of Isma'il." Instead they argued: "This would be ijtihad, resorting to one's own opinion and relying on 'aql. We are the people of obedience and submission to the words of the Imams al-Baqir and al-Sadiq, and we, for our part, will not interfere."
32. Muhammad b. Murtada b. Mahmud Muhsin al-Kashani (d. 1091/1680).
33. It is to be understood that tawatur is a proof of certainty according to the science of usul al-fiqh, and that it has been so established independently of textual proofs. This rational view was challenged by the Akhbaris precisely because of the lack of textual backing.
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