Our discussion is on the obligation of doing taqlīd of the most-learned. The conclusion we arrived at is that there is no evidence that can with certainty establish for us such an obligation. However, ‘almaiyyah is a preferred quality, that a muqallid should factor in when they choose a jurisconsult. But to consider ‘alamiyyah as a factor to such an extent that other factors – like more pious, more precautionary, closer to them – are treated as non-existent, such a notion is not established for us.
In any case, if we want to investigate the concept of ‘alamiyyah further, another important point that is mentioned in these discussions is, those who believe it is obligatory to follow the most learned, say that taqlīd of a non-‘alam while the most-learned existed, is invalid. In which case, at the very least, a person must reorient all their actions with the rulings of the most-learned, and if these actions were against the rulings of the most-learned, if possible, he or she must perform their qaḍa.
We don’t believe such a thing is established, and there is no evidence that can confirm this for us with certainty. There is nothing that would make the necessity of following the most learned so obligatory that following a non-a’lam would result in you performing actions without any binding force. In other words, if a muqallid does not take the option of precaution, and suffices with the edicts of a jurist – there is on difference in this jurist being learned or more learned, such that if a person follows the learned, their actions are invalid, and valid if they followed the more learned. The proofs really do not have such strength in establishing this point.
Thus, all branches of discussion that open up with respects to a’lamiyyah in ‘Urwah al-Wuthqa, for us they become irrelevant and we do not need to discuss them in any extensive detail. These details are dependant on the presumption that a’lamiyyah has been accepted.
One point that needs to be mentioned here is that, amongst the scholars who wrote their notes on ‘Urwah al-Wuthqa, you will not find anyone with our opinion. There is one comment made by Shaykh Āl Yāsīn, which resembles our view a little, who says that:
و إن كان الأقوى جواز تقليد المفضول مطلقاً، لا سيّما مع عدم العلم بمخالفته لفتوى الأفضل فضلًا عن صورة الموافقة، و عليه فيسقط الكلام في الفروع الآتية المتعلّقة بتقليد الأعلم
Even though the stronger view is that it is permissible to do taqlīd of the mafḍūl (one who is considered meritorious over another, and thus it is not restricted to someone being most-learned) – especially when one does not have knowledge of a difference between the edicts of the more learned with the learned, let alone in a situation where both their edicts are the same. Based on this view, discussion on the details that follow, related to taqlīd of the most-learned, are rendered irrelevant.
There is one question that arises here. Which of these factors is preferred over the other – more-learned, piety, or more precaution, or being accessible?
More-Learned and piety are definitely important factors. I feel that with respect to piety, it has not been given enough attention in the words of the scholars. This is while the narrations that speak about the permissibility of following a scholar or a jurist, you will see that a’lamiyyah has not even been mentioned, but rather the characteristics listed out in those traditions are ethical traits. For example, in the popular tradition it says:
اما من کان من الفقهاء: صائناً لنفسه، حافظاً لدینه، مخالفاً علی هواه، مطیع لامر مولاه
This tradition has nothing to do with being more-learned, but all the qualities can be summarized into the concept of piety. There should be more discussion concerning this. When we discuss issue #13 from al-‘Urwah which speaks about two equal jurists, where many scholars have said in that case you should prefer the more pious one, you will see that Sayyid Kho’ī says piety has no relevancy as a factor of preference in this situation. It appears, even if you are a strong proponent of ‘alamiyyah, like Sayyid Kho’ī was, piety can be a relevant factor.
The only way a more learned can be preferred over a learned is when there is a greater probability of the edicts of the more learned to be in accordance with reality. In this regard, what presumptions and baggage you carry with you in the process of deriving law plays an important role. I have looked into this topic, have even written on it, and can say with certainty that you cannot separate your views from your experiences and internal tendencies. This is a reality and these tendencies do effect religious edicts. This may be uncomfortable for some to hear, but I have to say this, not only do I have personal experience in this, but it is also apparent in history where jurists changed their edicts as their tendencies and experiences changed.
For example, if a jurist develops an affinity to remove an obligation from a duty, and of course if there is room within the deduction process to do so, this very affinity becomes a reason for him to review their ruling and to alter it. This is very obvious and clear for me. Therefore, if these tendencies are not worked on, they can effect the edicts, and opinions of a jurist.
All of this can be summarized in the term ‘piety’, where we perceive such a jurist as a safer option. This is of course relative, we cannot say anything here with certainty. Anyone who speaks with certainty in discussions that are naẓarī is showing signs of an ignorant person, and is one who suffers from a weak ability to contemplate.
If there is more focus on the concept of piety, it can itself become a factor in improving the various tendencies and affinities of a jurist. This however does not mean, if you find the most pious jurist, that they will not be under the influence of some such tendencies. This is simply a part of human nature. In any case, a jurist who when one looks at him, causes people to forget about the vanities world, and makes one remember the hereafter, this is itself a very important factor.
For my self, the factor of piety is on par with the factor of a’lamiyyah and both of these go hand in hand. Another factor which I believe needs to go hand in hand with a’lamiyyah, is the jurisconsults’ knowledge of life and the world it self. Someone who intends to take on the responsibility of people’s religious actions, should definitely be familiar with the practice and the lives of the commoners (‘uqalā). Giving a ruling without taking into consideration how it will be implemented in a society, or without taking into consideration the realities of life, or being excessively precaution in their edicts, all of these can really harm a society and its people.
There is no individual, let alone a jurist, who was able to bring positive change in the world, except that they had to let go of excessive precaution. An excessively precaution jurist has tied his own hands, and its natural result will be that the hands of his followers will also be tied. This can only be resolved if a jurisconsult understands the world around him today, and understands the complicated lives of people.
In all these factors, one should not become excessive and extreme. We also do not want to end up in a situation where we pick a jurisconsult who is the most learned when it comes to the world around him, but is weak in their ability to derive law. Shahīd al-Ṣadr has mentioned that these precautions in the religious edicts of jurists have really caused a lot of problems in society. Unfortunately, the harms of excessive precaution are often seen amongst the religious folks, it is they who get put off by religion. For example, if a jurist gives an edict out of precaution that no one should have any interaction with a bank, their followers will face tons of issues. Despite the issues that exist in the banking system, we should also know that these banks also save and secure money that people deposit. Such a person would then have to secure their money elsewhere, which may not be as secure as a bank.
The lives of people are carried out based on the religious edicts of a jurisconsult. If a jurisconsult does not understand the lives of people correctly, he will cause a lot of harm. If we were to put this in technical term, we can say, that knowing the mawḍū’ (of the law), is a part of knowing the law itself. We do not believe someone can be considered a’lam, when they know the law well, but are ignorant with respects to its mawḍū’āt.
It is possible that certain edicts can be defended really well based on the evidence that is in our hands, and amongst scholarly circles we can defend it. However, when it comes to its relevancy, or implications in the practical world, they are detrimental. One of the contemporary jurists gave a ruling based on evidence that he considered reliable – the report he uses is a reliable report – that if a blind person intentionally kills someone, neither does he have retaliation (qiṣāṣ), and neither does he have to blood-money (diyyah). If this ruling became a law of a state, it will make it easy for the blind to commit such an action, or others to use blind people to commit such actions for them. Such a religious edict is an example of an impractical for society.
Our discussion here concerns those jurisconsults whose edicts impact citizens of a country, or someone who has followers beyond just the country they themselves reside in. If a jurisconsult were to give precautionary ruling to the people for a limited amount of people, for his own family, or for his own neighbourhood etc. perhaps there is not a huge issue over there.
Another point I want to mention at the end is, some students may complain why I am entering and concluding some of these discussions without certainty. I have tried to develop such a quality on purpose, that I should not arrive at certainty hastily. We have learned this from our great scholars, such as Shaykh al-Anṣārī and others – who very rarely claimed anything with absolute certainty in matters that are naẓarī. My advice to you is the same – do not become afflicted with certainty so quickly. One of the issues we have with Dā’esh is exactly this. They are afflicted with certainty in all their actions, to such an extent that they are willing to chop up the person in front of them into pieces. We have seen the destructive impact of that in society and in the world at large.
The weaker your contemplative ability is, the quicker you arrive at certainty. Unlike what some people may think, being a genius or more intelligent does not mean that the number of propositions they believe in with certainty are greater than others, or that the number of propositions they know with certainty are greater than the propositions they are doubtful about. As a matter of fact, the situation is completely opposite. The weaker the mind is, the weaker their ability is to perceive other possibilities, and probabilities, and therefore they are weaker in their ability to consider a matter from various different perspectives and in different scenarios. Subsequently, they arrive at certainty quicker and express it quicker. As a matter of fact, they are willing to give up their life for this certainty, a certainty that is not worth anything from the perspective of someone who has researched the matter, or is an expert – individuals who actually become the cause of such certainty.
For example, a jurisconsult may have preferred to give one ruling over another based on a procedural principle, but their muqallid may hold on to that ruling with so much certainty that they would be willing to give up their life on it. This is while the jurisconsult himself feels nothing like that towards this ruling, because he knows under what circumstances he gave such a ruling.
My advice to those who are working on the methods of ijtihād, that they should not be expecting or chasing after certainty all the time, and also those who are always speaking in certain terms one should be cautious. In naẓarī matters like this, where there is so much obscurity, even if a jurist was to put in all their effort, they would still not be able to reach certainty with respects to a law. This is a reality that the experts know of very well. The door to certainty with respects to majority of the law is closed.
 Reflective, as opposed to badīhī which is self-evident or axiomatic