In some areas of the text and in the footnotes, I have made use of the work A Glossary of Shiite Methodology of Jurisprudence, by Alireza Hodaee, to denote legal terminology, and have given reference to the page number from this work in the footnotes.
Our discussion was on doing taqlīd of the most-learned, and whether it is obligatory or not. We said we can address this question from different perspectives, and the perspective we are discussing right now is when a mukallaf has knowledge – albeit ijmālī – that there is a difference between a verdict of the a’lam and non-a’lam.
The first thing we need to investigate are the proofs brought by those who say doing taqlīd of a person who is not the most-learned, is permissible. In other words, referring to the most-learned is not obligatory. We presented their general arguments in the last session, although we have not critiqued them fully yet.
In the last session, we were discussing the evidence through the absolute nature (iṭlāq) of the textual evidence that exists. The Ahl al-Bayt (a) have told us to refer to the jurists, or narrators of the ḥadīth, but have not said if these individuals need to be the most-learned or not, thus the narrations are absolute (not conditional). We can use this iṭlāq and deem taqlīd of a non-a’lam to be permissible. In fact, if we go a step further, we will see that a person will attain assurance and even certainty that the Imams also meant non-a’lam in their words. How so? Because generally speaking, people are not equal in their level of knowledge. For all scholars to be equal in their knowledge, would be an extremely rare scenario. Thus, when the Imam refers people to the narrators of hadith or to the jurists, it is already a given that this group of people are not on the same level of knowledge.
If someone says that perhaps the Imams did intend that rare scenario, we will say that in a state of doubt, understanding these words in their absolute nature is preferred over understanding them to be discussing a rare scenario. Consider this as an example: It is permissible for you to eat an apple. Now if we come and start saying, this apple could be referring to only a red apple, from a certain area, only after you have eaten xyz before, and abc after eating the apple, etc. we have made up a scenario that rarely occurs in reality. We say, it is unreasonable, especially for an Imam, to speak in such general and absolute terms, while his intent was something so specific, precise and rare.
Therefore, those who use this argument say that these narrations are not just apparent in permissibility, rather they are explicit (naṣṣ) in their permissibility. In this argument, they resort to the contextual evidence of what occurs habitually in a society, and therefore the absolute nature of the traditions definitely includes those who are non-a’lam. Just to add a final point, when an Imam asks people to refer to Zakariyyah bin Ādam, or Abān bin Taghlib, we know that the most-learned person, i.e. the Imam himself, is alive and present, yet he (s) still permits – or rather, asks – people to follow a non-a’lam.
Critique by Sayyid Khoei
Ayatullah Khoei in response to this argument says, we know that the companions of the Imams had different levels of knowledge, some were very learned and some were not, and despite that the Imam asked people to refer to them. Nevertheless, we should not forget the scenario under which we are having this discussion, which is when a mukallaf has knowledge that there is a difference of opinion between the most-learned and the non-a’lam. In other words, the Imams referring people to their companions should be understood in the first scenario we mentioned earlier (when the mukallaf knows there is no difference of opinion between the a’lam and non-a’lam).
In essence, Sayyid Khoei says there are two parts to this argument: 1) Claiming that generally speaking people are at different levels of knowledge, and 2) claiming that people generally know that scholars have different verdicts on a matter. While the former is true, the second cannot be claimed to be habitually true, because most people do not generally know that scholars have different verdicts. Therefore, we cannot rely on the absolute nature of these traditions and claim the permissibility of following a non-a’lam.
Critique of Sayyid Khoei
Our response to Sayyid Khoei is that firstly, we can definitely say people habitually know – albeit ijmāli – that jurists have differences in their verdicts (fatwa). In the very time that the Imam was giving these references to people, you will find that Shi’ī jurists had many differences of opinions in their verdicts. This is because referring to the Imam was not always easy, and in fact in most cases it was not possible at all, particularly when they were in prison. Secondly, many of the companions also lived a lengthy distance away from the Imams, many lived in Qom or Neshabour and visiting the Imam in Medina or elsewhere would have taken months to do so.
Thirdly, the number of traditions by the Imams under dissimulation had resulted in confusion, where at times one would not know if a ḥadīth had been said by the Imam under dissimulation or not. Fourthly, due to the limitations back then, there would be many errors made in scribing and recording traditions. A good example of this is Zurārah, who is perhaps one of the most prolific narrators and best jurists, yet we know how much discussion has taken place on his narrations concerning the principle of continuity (istiṣḥāb), just to understand what exactly he was trying to say.
Due to these reasons, we know that there were enough factors that would have led to mistakes by scholars of ḥadīth and subsequently jurists. We have numerous recorded cases where we see differences of opinions between Shi’ī scholars, not just in jurisprudence, but also in Uṣūl al-Dīn. Therefore, generally speaking, differences of opinions and beliefs did exist amongst the scholars. The Imams most certainly knew this and still asked people to refer to them.
Additional Critique by Sayyid Khoei
Sayyid Khoei then says, let us presume that all we have is just the iṭlāq of the traditions – no extra context. When a tradition says refers to the narrators of our ḥadīth, this is simply inclusive of both a’lam and non-a’lam narrators. He resorts to a discussion in Uṣūl al-Fiqh regarding ta’ādul and tarājih, in where it is established that two contradictory amārāt (evidence that results in speculation) never become ḥujjah (binding and probative). It does not make a difference if they are about a doubt concerning a subject-matter (shubhah mawḍuiyya) or a doubt concerning the actual rule (shubhah ḥukmiyyah).
Explanation: We have evidence for the ḥujjiyyah of a bayyinah (evidence, generally used in court law, like the testimony of two just individuals) in a doubt concerning subject-matter. Assume that we have a bayyinah established for Zayd being the owner of a certain property, and another bayyinah which establishes the same for Amr over the same property. The evidence for both contradicts one another, and so Sayyid Khoei says both of these are not ḥujjah as they are contradictory.
Or for example, we have evidence for the ḥujjiyyah of a report of a trustworthy person in matters of law. Assume that one report says the rabbit meat is prohibited, and another says it is permissible. Due to the contradiction, both these reports lose their authority and probative force and so cannot be used.
This is something many scholars of Uṣūl have said, because each report necessitates doing the opposite of the other report. If the ḥujjiyyah was to become inclusive of only one of the narrations or testimonies, this will become tarjīh bilā murajjih (preferring one over the other, for no reason). If one wants to argue that these two become ḥujjah through takhyīr (either side being optional), Sayyid Khoei says there is no issue here in it and of itself (thubūtan – rationally speaking), but the problem is there is no evidence for us to say takhyīr is ḥujjah in these cases. All the evidence points towards ḥujjah of there being ta’yīn (one side being specified) of one of the sides of the argument.
Due to this, Sayyid Khoei says, even if there is iṭlāq in the words of the Imams, you cannot predicate them on a situation where the Imams are referring a person to scholars who hold contradictory opinions. Thus, this iṭlāq is only for those cases where one knows that there is no difference of opinion amongst the jurists.
Response to Sayyid Khoei
This is not a valid critique. He says the language of the evidence proving the authority of a verdict of a jurist is not that of takhyīr, rather it is of ta’yīn. We say that as a matter of fact, the language of the evidence points towards it being takhyīri, not ta’yīni.
The evidence for the ḥujjiyyah of a bayyinah or a report of a trustworthy narrator have inclusive absoluteness (al-iṭlāq al-shumūli), and therefore includes all instances of these testimonies and reports – and in this case Sayyid Khoei’s point is correct: you cannot have ḥujjiyyah of two contradictory testimonies or reports. However, the language of the narrations which establish the ḥujjiyyah of a verdict of a jurist do not have al-iṭlāq al-shumūli, rather they have substitutional absoluteness (al-iṭlāq al-badalī). Meaning, they ask one to simply act on the verdict of one of the jurists and that will suffice. How so? The evidence that establishes the ḥujjiyyah of a verdict of a jurist is of two types:
1) Those narrations that very explicitly suggest that the iṭlāq is badalī. For example, one of the arguments used – I am not saying whether this specific narration can truly be used or not – is that of ‘Umar bin Ḥanẓalah, where it says:
یَنْظُرانِ مَنْ کانَ مِنْکُمْ مِمَّنْ قَدْ رَوى حَدیثَنا وَ نَظَرَ فِی حَلالِنا وَ حَرامِنا
Those two should look at who from amongst you narrates our ḥadīth, and looks into our ḥalāl and ḥarām.
This narration says to go and look at one of the narrators or jurists from amongst the Shi’ī – this is al-iṭlāq al-badalī. It is as if one says, respect one of the Shi’ī scholars. Though I personally consider the example, and as well as the narration a case of al-‘umūm al-badalī, but according to the general opinion this would be considered al-iṭlāq al-badalī.
Another tradition that is generally referenced is:
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 al-iṭlāq al-badalī, meaning if you find one person with such qualities, you are allowed to follow them, even if there remain ten other people with such qualities.
2) Some narrations use a plural when making reference to who one should follow. For example:
فارجعوا الى رواة حديثنا
Refer to the narrators of our ḥadīth.
Some might say, due to the plural being used in this narration, this iṭlāq is shumūli and one needs to refer to each and everyone of these narrators. However, we need to see what ‘urf understands from this. Do they really understand an obligation to refer to each and every single one of the narrators? This is not the case. If you are ill and one says to you: go visit the doctors, do you really understand that you have been commanded to go to every single doctor or do you believe that visiting one will suffice to fulfill this command?
Furthermore, referring to every narrator of ḥadīth for all people is either not possible, or it results in extreme hardship. Based on this, I believe that the language of the narrations is indicative of al-iṭlāq al-badalī, not al-shumūli, which also means that these narrations give you an option to pick any one of the jurists even if one knows that there is or could be a possible difference of opinion.
 Page 93: Equilibrium and Preferences: This expression is used in the discussion dealing with the question of contradiction of proofs.
 Page 87: When the duty-bound knows the precept, but wonders whether certain thing is an instance of the object. For instance, one definitely knows that drinking wine is forbidden but wonders whether this liquid in this glass is wine or not.
 Page 85: When the doubtful is a universal precept, such as doubting whether smoking is unlawful or it nullifies fasting.
 al-Iṭlāq al-Shumūli is when a concept relayed through a sentence is inclusive of all of its instances. For example, if a prohibition says: Do not lie, al-Iṭlāq al-Shumūli entails all instances of lies are prohibited. However, in al-Iṭlāq al-Badalī one instance of a concept is sufficient. For example, if a command says: Pray, al-Iṭlāq al-Badalī entails that even one instance of any prayer is sufficient to fulfil the command.
 The difference between al-‘umūm and al-iṭlāq can be read on page 87 and 88 of the first volume of Shahīd al-Ṣadr’s al-Ḥalaqāt, titled Lessons in Islamic Jurisprudence, translated by Roy Mottahedeh.
Sayyid Ali Imran studied in the seminary of Qom from 2012 to 2021, while also concurrently obtaining a M.A in Islamic Studies from The Islamic College of London in the summer of 2018. He continued his seminary studies in legal theory, jurisprudence and philosophy, eventually attending the advanced kharij of Usul and Fiqh in 2018. He is also a regular instructor for Mizan Institute.