Our discussion is regarding imitating a jurisconsult who is not the most-learned. In other words, if there is a jurisconsult who is the most learned, can one imitate someone other than him or not. We discussed the arguments for those who deem it permissible, some of them were not too weak, and we responded to the critiques laid against them. In summary, we can say that the argument for doing taqlīd of a non-a’lam is not that weak, and it enjoys some strength.
Now we want to evaluate the arguments of those who claim it is obligatory to follow the most-learned.
The first evidence that can be seen in their words, is their claim to consensus (ijma’). I tried to research into the first person who made the claim to consensus on this matter, but was not able to figure out. However, in our works of Fiqh, they attribute this claim to Muḥaqqiq Thānī (Muḥaqqiq Karakī)– a 10th century hijri scholar. I looked into his works as well, but was not able to find anything.
One thing we should know is that the issue of taqlīd is a relatively new issue. Initially when discussions on the permissibility of taqlīd were carried out, it was considered a part of Uṣūl and was not discussed in Fiqh. If you look into the Fiqh works of our past scholars, you will not find any discussion on taqlīd. It was considered an Uṣūlī discussion.
Even amongst the past scholars, those who actually wrote treatises or works on Uṣūl, and actually wrote about taqlīd in those works are extremely few. Thus, it can be said this is a relatively new issue in contrast to other Fiqhi issues. Therefore, this claim to consensus must be looked into in light of later scholars, and its value needs to be evaluated from that perspective. How can Muḥaqqiq Thānī claim consensus on this matter and attribute such a verdict to all the past scholars, even if you want to stretch them out all the way till ‘Allāmah al-Ḥillī.
The second point is, that taqlīd is completely subject to a jurist’s opinion. As a matter of fact, some scholars did not even permit taqlīd at all – they considered it ḥarām. They would believe people need to refer to the narrations themselves. This trend is what we may refer to as the trend of Ahl al-Ḥadīth, which sprung up during the early days of the occultation, and as well as during the 11th and 12th century amongst the Akhbārīs. How can we say there is a consensus on this matter, while there was a significant amount of scholars who didn’t permit taqlīd at all to begin with.
Furthermore, from amongst those who did permit taqlīd, you will still find a number of them permitting taqlīd of a scholar who is not the most-learned. If we really decide to open up this discussion, then we can even argue that the discussion on taqlīd is madrakī (i.e. we have the sources used to derive this ruling). It is possible that those who claimed consensus on this topic may have been referring to what is understood from some of the traditions, or were referring to the practice of the religious ones (mutasharria’), or the practice of the commoners (‘uqalā). Given that this consensus is madrakī, its value diminishes, and it cannot be used as evidence.
A side point I would like to mention is that some of the nature of some of our jurists was very lenient in claiming consensus. Wherever they found it even a little appropriate, they would claim consensus with respect to the verdict they had given. For example, if all the teachers of a jurist agreed on a verdict, this jurist would have come and claimed consensus on the matter. There are many examples of this in history, but we cannot get into that in this discussion.
The verdicts of past jurists that were given due to these claims to consensus, were definitely excusable. Today it is easier for us to look up and see the different rulings that existed throughout the centuries – from the beginning of Islam until contemporary times – while this was not easy to do in the past. In the past, most of the books did not even have a table of content and neither did they have search features like we do today on our computer software.
The term ijma’ that is generally cited in the books of our jurists, is usually referring to a group of scholars that existed from 4th century hijri on wards. For example, Ibn Abī ‘Aqīl or Ibn Junayd, then Shaykh al-Mufīd, Sayyid al-Murtaḍa, Shaykh al-Ṭūṣī. It was these few scholars who had given opinions in Fiqh, and had written works. Subsequent scholars who claimed ijma’, were more often than not, looking into the works of these few scholars. In many cases, their claim of ijma’ was in fact a reference to the practice of the mutasharria’. For example, when Shaykh al-Ṭūṣī says there is consensus on referring to a trustworthy person on matters of jurisprudence – this is while his teacher and his teacher’s teacher explicitly say this is not allowed – in fact, al-Ṭūṣī is referring to the practice of the religious ones.
In summary, the consensus that is binding on us, that which uncovers for us the opinion of an infallible Imam, does not exist on this matter. A mere claim is not enough and does not prove anything.
The second evidence used by those who say it is obligatory to follow the most-learned, are a number of ḥadīth traditions. I have categorized these traditions into three:
1) Narrations that are concerned with the issue of caliphate (khilāfah)
These traditions by their very nature are outside the subject of our discussion. For example, one of these traditions is what Sulaym ibn Qays al-Hilālī records in his work – volume 2, pg. 637 – on the authority of the Prophet (p):
وَ قَالَ رَسُولُ اللَّهِ ص مَا وَلَّتْ أُمَّةٌ قَطُّ أَمْرَهَا رَجُلًا وَ فِيهِمْ أَعْلَمُ مِنْهُ إِلَّا لَمْ يَزَلْ أَمْرُهُمْ يَذْهَبُ سَفَالًا حَتَّى يَرْجِعُوا إِلَى مَا تَرَكُوا
No community will hand over any of its commands to a man when there is a more knowledgeable one among them, except that that affair will not cease to diminish, until they return to what they had abandoned.
This is related to the issue of caliphate and leadership – it has no relationship with the matter of taqlīd, which is the notion of referring to someone for legal verdicts.
Another tradition is in Tafsīr al-‘Ayyāshī, volume 2, pg. 85:
عن عبد الملك بن عتبة الهاشمي عن أبي عبد الله ع عن أبيه قال: قال من ضرب الناس بسيفه - و دعاهم إلى نفسه و في المسلمين – من هو أعلم منه فهو ضال متكلف
This is a tradition from Imam al-Sadiq (a) who narrates from his father, who said: Anyone who hits people with his sword and invites them to accept his leadership position, while amongst the Muslims there is someone who is more learned than him, then such a person is someone who misguides and is involved in something he has no business in.
These types of narrations that exist in different books as well, are related to political matters concerning leadership and caliphate. In matters of taqlīd, we are not concerned about whether this jurisconsult has a political leadership position or not. It is possible for him to just be in the corner of his house, while we knock on his door to ask him about religious verdicts. The discussion on taqlīd is simply about referring to a mufti (one who gives religious edicts) and we do not care whether he makes claim of political leadership for himself or not.
In conclusion, besides the fact that these narrations also have issues with their chains of transmission, as far as their content is concerned, they are irrelevant to our discussion.
2) Narrations that are regarding judgement
The most famous tradition in this regard, which coincidentally also uses the term afqah (most-learned), is the maqbūlah of ‘Umar bin Ḥanẓalah. Shaykh al-Kulaynī has brought this tradition in his al-Kāfī. In a part of this tradition, the narrator asks the Imam what one should do if two judges have a dispute on a verdict due to different opinions on the very tradition which is the source of the law – what should one do.
The Imam mentions four qualities – more just, more learned, more truthful, and more pious – by which one judge should be preferred over another:
الْحُكْمُ مَا حَكَمَ بِهِ أَعْدَلُهُمَا وَ أَفْقَهُهُمَا وَ أَصْدَقُهُمَا فِي الْحَدِيثِ وَ أَوْرَعُهُمَا
The judgment will be the judgment of the one who is more just, has better understanding of the law, who is more truthful in Hadith and is more pious of the two. More just, more learned, more truthful, and more pious.
This tradition is termed a maqbūlah, because ‘Umar bin Ḥanzalah has neither praise or condemnation, and we do not have evidence for his trustworthiness. However, since the scholars have accepted this tradition, and have even given verdicts based on it, it has been termed maqbūlah (an accepted tradition) – even though technically ‘Umar bin Ḥanzalah is majḥul (unknown). Some who are strict in accepting traditions, like Sayyid al-Kho’ī have not accepted this tradition and have not given a verdict based off of it. From what I recall, I don’t believe there is another tradition in our ‘Ilm al-Dirāyah which has been termed maqbūlah.
In any case, can we use this tradition to prove that one should refer to the most-learned? This tradition and its like, also have no relationship with the issue of taqlīd. They are concerned with judgement and court-law. In order to understand this, we need to know why we even refer to a judge in the first place.
The concept of judgement is related to resolving disputes first and foremost. For example, if two people have a conflict – as has been described in the tradition of Ibn Ḥanzalah as well – they refer to a judge. They refer to two different judges, and both give different responses. One gives a response which is to the benefit of one of the parties, and the other gives a response which is in benefit to the other party.
In order to resolve conflicts, there is no way we can say ascribe to the view of takhyīr (either side being optional). This will not resolve the conflict, because both parties will act on the judgement of that judge who ruled in their favour. Therefore, in matters concerning judgement, it is reasonable to assume that one should refer to one who is more-learned. Today, so that these sorts of problems do not arise, a state comes and outlines all procedures, principles and rules for court judges. Their job then becomes simply to implement these principles. In the past however, a jurist himself would have been able to derive a principle or a law, and would also identified how a law is to be implemented.
In the matter of taqlīd, there is no such conflict between two or more parties that needs to be resolved.
In matters of judgement, one judge needs to be identified, to whom people can refer to, in order to resolve their disputes. Thus, these qualities have been mentioned by the Imam. In other words, the Imam is trying to say, you should refer to a judge who is afḍal (better). In matters of judgement, either there should be one judge, or the criteria for judging should be the same. For example, in our country (Iran), we have the latter.
If you refer to the letter Imam ‘Alī wrote to Mālik al-Ashtar, there the Imam uses the phrase afḍal as well:
ثُمَّ اخْتَرْ لِلْحُكْمِ بَيْنَ النَّاسِ أَفْضَلَ رَعِيَّتِكَ فِي نَفْسِكَ
For the settlement of disputes among people select him who is the most distinguished of your subjects in your view.
The term afḍal is inclusive of a’dal, afqah, aṣdaq and awra’.
3) Narrations that speak of the obligation of referring to a muftī
There is a mursal tradition where Imam al-Jawād (a) is addressing his uncle, recorded in the work Ithbāt al-Wasiyyah, of Mas’ūdi (d. 364 hijri) pg. 221:
يا عمّ انه عظيم عند الله أن تقف غداً بين يديه فيقول لك: لم تفتي عبادي بما لم تعلم، وفي الأمة من هو أعلم منك؟
O my uncle, it is a great thing for you to be able to stand in front of Allah tomorrow, while He (swt) says to you: Why did you give a fatwa to my servants, regarding that which you did not know, and while there was someone in the nation who was more learned than you?
In the published version of al-Mas’ūdi, the term al-imāmah is written instead of al-ummah (nation) – but it is more plausible for it to have been al-ummah since later books record it as such too. Furthermore, if the word is indeed al-imamah, then this would restrict the topic to matters concerning divine leadership. The root-word of fatwa has been used in this tradition, however what was meant by fatwa back then is different than what is understood from it today. Fatwa in its real meaning, simply means a response or a reply to a question. However, the fatwa that we understand today would also be inclusive of such a meaning.
As far as this tradition is concerned, besides the fact it is mursal, its content also has room for thought. It says, why did you give a fatwa towards that which you had no knowledge of. That which is being condemned is a response given without knowledge. Our discussion on taqlīd presumes that both the learned and the non-learned, are scholars and give a response based off their knowledge, not out of ignorance.
In Dalāil al-Imāmah of Muḥammad bin Jarīr al-Ṭabarī, the same tradition has been recorded, but with slight differences:
فَقَالَ لَهُ: يَا عَمِ، اتَّقِ اللَّهَ، وَ لَا تُفْتِ وَ فِي الْأُمَّةِ مَنْ هُوَ أَعْلَمُ مِنْكَ
The Imam (a) said to him (his uncle): O my uncle, fear Allah, and do not pass edicts while there is someone in the nation more learned than you.
The primafacie of this tradition is that one should not give a fatwa when there is someone more-learned than them. From this perspective, it is better worded for what we want to establish than the tradition in Ithbāt al-Wasiyyah. However, this tradition is mursal and we cannot rely on it to give a religious verdict.
In conclusion, there is no reliable tradition by which we can prove the obligation of following the most-learned jurisconsult.