We went through some of the evidence for those who believe it is not permissible to refer to a non-a’lam in taqlīd, and that one must refer to the most learned. We will now look at one of their other proofs.
Fatwa of the most learned is closer to reality
The third evidence used by those who say it is obligatory to follow the most learned, suggests that a legal edict of the most learned jurist is closer to reality (aqrab tarīqin ila al-waqi’). This is accompanied by the fact that the probative force of a fatwa of a jurist is based on nothing more than this criterion. Let us explain this further.
If you remember what Shaykh al-Anṣārī had mentioned in his al-Rasā’il, in the discussion concerning the binding force of a solitary report, he alluded to two schools of thoughts. One school was termed as tarīqiyyah and the other sababiyyah. The criterion for the binding force of a solitary report according to all Shī’as is tarīqiyyah, meaning that a solitary report is only binding from the perspective that it is a path leading to reality.
The second school is that of sababiyyah. This is the view of most of the Ahl al-Sunnah – who believe that the very report or amārah (authorized conjectural proof) itself becomes the cause for a maṣlaḥah coming to existence. If you act according to such a report, and it was not in accordance to reality, the meaning signified by the report itself had maṣlaḥah and therefore a person was in a sense, insured from error.
Of course, within sababiyyah itself, there are other groups – the views of the Ash’arī school is different than the views of the Mu’tazlīs.
A legal edict of a jurist is an amārah. This binding force of this amārah is due to tarīqiyyah, because sababiyyah needs specific proof. This is besides the fact that some understandings of sababiyyah, like that of the Ash’arī are dependant on circular reasoning and are fallacious. In any case, it is due to tarīqiyyah that the binding force of many other types of amārāt (like solitary report of a thiqa, or a person’s testimony in court) is established.
Therefore, it is true that the legal edict of a jurist is binding due to tarīqiyyah. In that case, when we compare the verdict of the most learned with just a learned jurist, we see that the edict of the more learned is stronger with respects to tarīqiyyah (towards reality). The probability of a legal edict of the most learned jurist being in accordance with reality, is greater. Thus, the tarīqiyyah his legal edict has towards reality, is stronger – and in other words, it is closer to the truth. As opposed to a legal edict of just a learned scholar, whose tarīqiyyah towards the truth is weaker.
To put it in simpler words, when two amārāt contradict without the possibility of reconciliation, while both of them are binding, that amārah which is stronger in the actual criterion upon which its probative force was established. In other words, the weaker amārah loses its binding force, and referring to such means one referred to a legal ruling that was not binding.
These arguments are decent, but the whole discussion is based on the presumption that we have accepted the binding force of a fatwa of a jurist qua fatwa of a jurist, and that we have explicit evidence for this. In other words, a fatwa of a jurist is in the same category of a solitary report of a thiqa. Those who believe this to be the case, for them, this argument is not weak. However, based on our opinion with regards to the binding force of a fatwa of a jurist, we were not able to establish such a thing for a fatwa of a jurist qua fatwa of a jurist. We will briefly summarize what we had established in our discussions on this topic elsewhere.
We know there are three options available for a person. The possibility of ijtihād is not available for all. The possibility of precaution in all rulings is not possible, and it is not even known whether such a position is even desirable. On the other hand, we know based on our knowledge of the takwīn and the realm of tashrī’, that the Legislator has been lenient in informing people of His Divine Laws – especially during the period of occultation.
In terms of what we know about the takwīn, we know that that deriving of law is an extremely difficult process, and at the very most, a jurist is operating within the realm of speculation. Just look at how many times Shaykh al-Anṣārī – with all his greatness – in his works goes back and forth on just one issue. He explains and critiques, explains again and then critiques, then clarifies and then critiques again, but eventually does not even reach a clear-cut conclusion, not makes a person’s responsibility clear. In many matters, he suffices with something speculative and uses terms like “it is not free from strength”. God’s wisdom necessitated that His law and rulings were to be understood in such an atmosphere, where there is always a degree of obscurity present.
In the realm of tashrī’, we see that the Imams (a) would refer people to their companions many times, who were not infallible. Not only were they prone to making mistakes, but some of these companions would make clear mistakes, while other times their responses would contradict one another. Despite this, the Imams (a) would refer people to them. What we notice here is that when it comes to seeking legal verdicts from a jurist, the Legislator seems to have been lenient – at least until the final Imam (a) appears, when certain – rather than speculative – laws will be conveyed and established.
It was due to this explanation, that we concluded that it is sufficient for a person to choose a jurist for his own personal rulings. The narrations that we went through earlier, that mention the Imams (a) referring people to jurists, also solidify our argument. If we were to put it in another way, we would say we have accepted the fatwa of a jurist due to insidād.
For us, being the most learned then becomes one factor of desirability. When someone choses between two jurists, they may prefer one over another due to them being more learned, but this is just one factor. It is important to remember what more-learned means in these discussions. The definition the scholars have given does not say anything about such a jurist having more knowledge with respects to the number of legal verdicts over another, nor the nature of their knowledge being different than another.
It is possible that a non-a’lam jurist spent much longer time doing ijtihād in different issues, and therefore has derived more legal verdicts during his time. While it is also possible that the more learned jurist only has a handful of those legal verdicts derived, maybe because he is younger, or for whatever other reason. There is no causal relationship between having derived more rulings and being more learned.
Neither does the nature of their knowledge have any role to play in being more learned. For example, if one of the jurist has ḥaqq al-yaqīn, but the other has ‘ilm al-yaqīn or ‘ayn al-yaqīn – these have nothing to do with being more learned. At the very most, the jurists may arrive at ‘ilm al-yaqīn, and you will not find any jurists making claims of ḥaqq al-yaqīn or ‘ayn al-yaqīn on these matters.
The only criterion that can be taken into consideration within the discussion of ‘alamiyyah is the knowledge and ability to apply principles of deduction on their instances. These principles can be principles derived in Uṣūl, or Fiqhi, or any other principle that is used in deriving law. According to this definition, being more learned is a concept compound of two aspects: one is the knowledge of principles, and second is the ability to apply these principles. It is possible for someone to be very good in applying these principles, but they are weak in their knowledge of the principles themselves, or their research was not as extensive and thorough.
This is why we see that one jurist may be very strong in their understanding of these principles, but the legal edicts of another jurist are more sensible and appropriate due to the latter’s ability to better apply these principles. There are numerous examples of this, and one instance I can point towards is that of Ayatullah Nā’īnī and Ayatullah Sayyid Abū al-Isfahānī. What appears to me is that Ayatullah Nā’īnī had an upper hand when it came to knowledge of the various principles, but one who has a taste of jurisprudence, can testify that the legal edicts of Ayatullah al-Isfahānī seem more appropriate.
Another instance is that of Akhund Khorasānī and Ṣāḥib al-‘Urwah. The effort Akhund Khorasānī put in discussions of various principles was not only a lot, but was perhaps a lot more than Ṣāḥib al-‘Urwah. However, the greater ability of implementing these principles on their instances is a lot more apparent in Ṣāḥib al-‘Urwah.
There are other factors as well that are important to consider. One of them is being more precautionary. Someone who is more precautionary in giving legal verdicts, the probability of their rulings being in accordance to reality is greater than someone who is less precautionary (though he may be more learned). For those who deem ‘alamiyyah important because verdicts from such a jurist are closer to the truth, should know that being precautionary is an even stronger factor than a’lamiyyah.
Another factor that can be considered is the access a person has to the jurist himself. It is possible for a jurist to be the most learned, but the access a person has to such a jurist is further than another jurist who lives in my country, or my city. For example, it is possible that Sayyid Sīstānī for to be the most learned, but my access to him and his rulings is through multiple mediums. Intuitively, people know that these multiple mediums make the transmission of what Sayyid Sīstānī says, prone to error. You ring the office of a jurist in one city, you get one response or one explanation of a ruling, you ring an office in another city and you get a different answer. If the path to reality is what we are concerned about, then access to a jurist also needs to be taken into consideration.
There are possibly other factors as well if you think about it. Furthermore, there are possibly other arguments as well regarding the obligation of following the most learned, but this amount of discussion suffices. In conclusion, what we can say is that following the most learned in it and of itself is a good thing and is one criterion for selecting a jurisconsult. A muqallid should take this into consideration amongst other factors. Also, because taqlīd is something a muqallid will have to decide for themselves – it is proven through their own ijtihād – they need to choose someone based on these factors. This does not mean if they choose to follow a jurisconsult who is not the most learned, based on factors that also in fact lead one closer to the truth, that their taqlīd was not sufficient, and that all their actions are invalid.
In other words, the view claiming that the actions of someone who follows a non-‘alam in our given scenario, invalidates their actions, is not something established for me.