Our discussion on a’lamiyyah reached its conclusion in the last lesson, and we said it is only one of the criteria for selecting a jurisconsult, not that it is obligatory to follow the most-learned. A muqallid looks into various different factors when choosing a jurisconsult, some of which are backed up by sharī’ah.
In the second half of issue #12 of al-‘Urwah, it says, it is obligatory to research into who the most-learned is. This is straight forward, and is a preliminary obligation – meaning if it is obligatory to follow the most-learned, then a preliminary to doing that is to research into who the most-learned is. We do not have anything to say here, and this investigation is applicable to all other criteria that a muqallid will factor in when choosing a jurisconsult.
The next issue in al-‘Urwah, issue #13, says:
إذا كان هناك مجتهدان متساويان في الفضيلة يتخير بينهما، إلا إذا كان أحدهما أورع فيختار الأورع
When there are two jurists who are equal in their merit (i.e. knowledge), then one can choose anyone between them, unless one of them is more pious, then the more pious one must be chosen.
In this ruling, the same factor of piety which we discussed in the previous lesson has been alluded to. We said this is an important factor, but Ṣāḥib al-‘Urwah gives priority to a’lamiyyah, and then piety. Before we enter into detailed discussion on this, I want to point out what Shaykh Ḍiyā al-Dīn ‘Arāqī had to say under this issue. He says, preferring a more pious person in this scenario is problematic, because according to the intellect, the only criterion in choosing a jurisconsult is whether a person’s ruling are in accordance with reality or not. Therefore, piety and justice do not play a role in whether a jurist’s ruling is more in accordance with reality or not.
In the first stage, we must first explain what piety means – what do we mean by it. That which we mean by it is that very same ethical trait of being God-conscious. A jurist who has control over his desires, if his ethical and religious traits are a disposition for him, this is what we define as pious. This is what we mean by piety, and even if you decide to name this something else, it doesn’t matter to us. In other words, we are referring to the same qualities that appear in the tradition attributed to Imām al-‘Askarī (a):
فأما من كان من الفقهاء صائنا لنفسه، حافظا لدينه، مخالفا على هواه، مطيعا لأمر مولاه، فللعوام أن يقلدوه
But if there is anyone among the fuqahā’ who has control over his own self, protects his religion, suppresses his lowly desires and is obedient to the commands of his Master, then the people should follow him (yuqallidūhu).
This is what we mean by piety. This quality can affect a legal edict of a jurist in two possible ways. Firstly, as we explained in a previous lesson, a person’s tendencies, affinities and preconceived notions affect their understanding and verdicts. Most of the times, a jurist or any other human may not even be aware they are being affected by such things. This is a part and parcel and an accepted fact of life. Since we have already explained this before, I will not stretch this point any longer.
The second way piety affects a legal edict, is that if a jurist is more pious, the probability of him having done more research and investigation with respects to the deductive process is greater. According to me, both these aspects play a direct role in getting a jurist closer to reality. Someone who has correct religious tendencies, the probability of their rulings being more in accordance with reality is greater. Given research and investigation are a crucial component of ijtihād, a pious jurist will not conclude anything hastily. He will be more cautious before giving a verdict, and this precaution with respects to investigation and research will result in a better understanding. We also explained earlier that the way we understand a’lamiyyah is not in a quantitative sense, but rather a qualitative sense. Therefore, better understanding is what we need, not how many knowledge propositions a jurist has figured out.
Thus – according to us – the view of Shaykh ‘Arāqī is not acceptable and is subject to criticism. He says that the only criterion an ignorant person takes into consideration when referring to a knowledgeable person is that of being in accordance with reality, which necessitates piety and justice to play on role in the selection process. I believe this view is not correct, because piety and God-consciousness are an important and relevant factor in getting a jurist closer to reality.
Some jurists on the other hand, have defined piety in a different way, which is not completely baseless, and it is good if we point it out here. This definition has also appeared in some narrations, or at the very least, the basis of this definition appears in some traditions. This definition says that piety means to stay away from dubious and obscure matters, and that the more a person can abstain from obscure matters, the more pious they are. For example, Sayyid Khū’ī says piety is not a factor for preference:
و لا شبهة في أن الأورعية ليست مرجحة في هاتين الصورتين سواء أُريد منها الأورعية في مقام العمل بأن يكون أحدهما مجتنباً عن المشتبهات دون الآخر
A tradition recorded in Tuḥaf al-‘Uqūl, pg. 489, says:
اورع الناس من وقف عند الشبهة
A narration in al-Khiṣāl from Imām al-Ṣādiq (a) says something similar. We are not trying to investigate the chains of transmissions here, rather we are trying to understand the possible meaning of piety. If we were to understand piety as abstaining from obscure matters, this itself can be understood in two possible ways.
One is that it refers to giving a legal verdict which is on the side of precaution. Thus, a jurist who is more pious, their legal verdicts more often than not happen to be precautionary edicts. This is not a correct understanding, because sometimes we have expectations from ourselves, and at other times we have expectations and edicts for others. As for the first scenario, it does not matter to us and is not even our discussion. No matter how much a jurist wants to be precautionary with respects to their own actions, they are more than welcome to be so. However, when it comes to giving verdicts for others to follow, according to my opinion, such a jurist is drowned in obscurity just as one who is always giving an edict of permissibility (tarkhīṣ). Furthermore, making the lives of followers difficult by giving consistent precautionary edicts and tying their hands may even result in more obscurity and confusion for the followers, as opposed to giving them that freedom.
When you tie the hands of the followers due to obligatory precaution, you end up closing the door to attaining even the probable benefit that could have existed in a given action. However, a jurist who gives an edict of mere permissibility (tarkhīṣ), they keep the hands of their followers open and give them the option to perform an action or abstain fro it. The worse that will happen in this case is that if a follower or a group of followers decide to perform an action which in reality ends up in some sort of harm (mafsadah), they will be harmed due to it. In the latter scenario, a follower has an option, and it is their job to identify whether a certain action results in harm or not, but in the first scenario a jurist makes it obligatory on the person to act on the side of precaution. In this case, a jurist closes the path of even attaining possible benefit that could have existed in some actions.
The discussion on this topic is incomplete and we have mentioned all this only as a preliminary for our next lesson.
 في شرح العروة الوثقي، ج1، ص: 140