Jurisprudence

Adopted from the book : "The Principle of Ijtihad in Islam" by : "Shahid Murtadha Mutahhari"

We have a principle in fiqh, which is one of the indisputable points of our fiqh, that taqlid of a dead person in the first instance is not permitted. If taqlid of a dead person is permitted, it is only when taqlid is carried on from someone who was followed [by the same person] while he was alive and is now dead.38Moreover, the carrying on of the taqlid of a dead person must also be with the permission of a living mujtahid. I am not concerned here with the reasons in fiqh for this principle, so I will only say that it is a very basic idea, but only on the condition that the aim of the principle is clearly understood. The first purpose of this principle is that it should be a means for the survival of the traditional centres of learning of the Islamic sciences, so that there should be continuity, and that the Islamic sciences should be perserved - not only preserved, but that they should advance day by day and be perfected, and that those matters which had not previously been solved should be solved.

It is not the case that all our problems have been solved in the past by our 'ulama', and that now we have no more problems and no more work. We have thousands of riddles and difficulties in kalam (theology), Qur'anic exegesis, fiqh and the other Islamic sciences, many of which have been solved by the great 'ulama' of the past, but many of which remain, and it is the duty of those who follow on to solve them and to gradually write better and more complete texts in each subject, to continue each subject and develop it, just as in the past, too, exegesis, theology and law were gradually developed. The caravan must not be brought to a halt in mid-journey. So people's taqlid of living mujtahids, and their heeding them, is a means to the continuance and development of the Islamic sciences. Another reason is that every day Muslims are faced with new problems in their lives, and they do not know what there duty is in these matters. It is necessary to have living fuqaha', aware of the contemporary situation, to respond to this great need. It is narrated in one hadith concerning ijtihad and taqlid : As for al-hawadith al-waqi'a, refer concerning them to the narrators of our hadith.

These hawadith al-waqi'a are exactly these new problems which arise as time passes. Study and research into the books of fiqh from different epochs and centuries shows that gradually, according to the needs of the people, new problems arise in fiqh, and that the fuqaha' set out to answer them. It is for this reason that the dimensions of fiqh have increased.

If a researcher were to make a tally, he could discover, for example, in what century, in what place and for what reason, such-and-such a problem arose in fiqh. If it were not necessary for a living mujtahid to give answers to these problems, what difference would there be between taqlid of a living person and taqlid of a dead person? It would be better to follow in taqlid some of the dead mujtahids like the Shaykh al-Ansari, who, on the admission of the now-living mujtahids themselves, was the most knowledgeable and learned. Basically, the 'secret' of ijtihad lies in applying general principles to new problems and changed circumstances. The real mujtahid is one who has mastered this 'secret', who has observed how things change, and subsequently how the rulings on them have changed. For there is no skill in only thinking about things which are in the past and have already been thought about; or, at the most, changing an 'ala l-aqwa into an 'ala l-ahwat.39 or vice versa; there is no need to make a song and dance about any of this. Of course, ijtihad has many preconditions and prerequisites; a mujtahid must have acquired the various [preliminary] sciences. It is necessary that he should have applied himself to the study of Arabic language and literature, to logic, to the study of usul (jurisprudence), even to the history of Islam and the fiqh of the other sects, so that he might become a true and thorough faqih. No one can ordinarily lay claim to ijtihad just by reading a few books on Arabic grammar, or rhetoric and logic, then three or four of the set books for the intermediate stage, such as the "Fara'id", the "Makasib" or the "Kifaya"40, and then spending a few hours in the dars-i kharij.41 He does not then become qualified to sit with the "Wasa'il" and "Jawahir"42, in front of him and issue legal opinions. He must be completely knowledgeable in exegesis and hadith, that is to say in the several thousands of hadith which appeared in the two and a half centuries from the time of the Prophet to the time of the Imam al-Hasan al-'Askari, and of the circumstances in which they appeared; he must also know Islamic history and the fiqh of other Islamic sects, and the narrators of traditions and their biographies and reliability.

Ayatollah Burujirdi was a true faqih. It is not my habit to mention people by name, and while he was alive I never mentioned him in my lectures. But now that he has died and there can be no ulterior motive, I can say that this man was truly a distinguished and outstanding faqih. He was conversant with, and proficient in, all these sciences, in exegesis, hadith, knowledge of the narrators of hadith, in the sciences of the evaluation of hadith ('ilm al-daraya), and in the fiqh of the other sects of Islam.

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38. According to a commonly accepted ruling, this applies only to those matters which the muqallid formerly performed according to the fatawa of the subsequently deceased marja' al-taqlid. If any new matter arises for him, he must follow the fatwa of a living, 'adil mujtahid.

39. Two principles (usul 'amalia) for the preponderance of one opinion over another in fiqh. If one opinion is chosen over another 'ala l-aqwa, it is chosen because the proof for it is thought to be stronger; if it chosen 'ala l-ahwat, it is because of the principle of precaution (ihtiyat) which requires that what is least likely to be at variance with the shari'a should be adopted. It will be appreciated that there may be a good deal of rather trivial argument as to whether one or the other of the two opinions should be chosen, according to which of these two principles is preferred.

40. a) for "Fara'id al- Usul", see above, note 26. b) "Kitab al-Makasib", also by the Shaykh al-Ansari, an extensive exposition of the section in fiqh on transactions. c) "Kifayat al-Usul" (2 vols, Tehran, n.d.) by "Akhund" Mulla Muhammad Kazim al-Khurasani (d. 1329/1911), a systematic text on usul al-fiqh.

41. After the student (talaba, lit. 'seeker') has completed his reading of the main texts and mastered the necessary preliminary sciences, he may continue to the more detailed, but also more specialised, courses given by the main teachers of the subjects concerned. These lessons, the dars-i kharij, are kharij to (outside, beyond) the texts, and the teacher will expound his own opinions, thus teaching the actual practice of ijtihad. The teacher will be able to assess the abilities of his pupils in these classes, and, in the case of fiqh, may subsequently award a certificate of ijtihad to those he considers to have mastered all the required skills and to be consequently in a position to employ them to arrive at their own legal opinions (see also above, note 23).

42. a) "Wasa'il al-Shi'a" (ed. 'A. al-Rabbani M. al-Razi, 20 vols, Tehran, 1376 -1389), by the Shaykh Muhammad b. al-Hasan al-Hurr al-'Amili (d. 1104/1693); the most comprehensive collection of hadith relevant to fiqh, arranged according to subject matter. b) "Jawahir al-Kalam" (ed. 'A. Quchani et al., 43 vols, Najaf-Qum-Tehran, 1377-1401), by the Shaykh Muhammad Hasan b. Baqir al-Najafi (d. 1266/1849); an extensive commentary on the "Sharayi' al-Islam" by the Muhaqqiq al-Hilli (602/1202 - 676/1277).