Ways to Knowledge of the Sharī‘ah
The Muslim becomes obliged to abide by the Sharī‘ah and to carry out its duties (Takleef; becoming a Mukallaf) upon a certain age or upon certain signs…
For the male, it is on reaching the age of 15 Hijri years (14 years and 7 months in the Roman calendar), or on the appearance of rough hair on his pubis (under the abdomen and above the penis), or the production of semen, whether as a result of a dream or otherwise.
As for the female, she becomes a Mukallaf when she reaches the age of 13 Hijri years, or when she has her first period, provided that this happens before the age of thirteen. However, it is preferable to get her acquainted with wearing the Hijab (veil) and performing prayers from the age of nine Hijri years.
The ways to knowledge of the Sharī’ah rulings - besides the necessary rulings that are known as a matter of certainty - are threefold:
a- Ijtihad, i.e. the formulation of rulings by the specialist, who is the mojtahid.
b- Teqlīd, i.e. following the rulings of a mojtahid.
c- Ihtiyat, i.e. the cautionary way, which is the way to ensure the correctness of the acts through observing all the probabilities that could be part of a person’s duties.
The details of the above can be divided into three parts:
Part one: Ijtihad
1. Ijtihad, as a term, means ‘spending the effort to arrive at the rulings of the Sharī’ah from dependable sources’, and this takes place following the possession by the specialist of the necessary knowledge related to the Sharī’ah that gives him the ability to carry it (ijtihad) out.
2. Ijtihad is an obligation under the condition of sufficiency (wajib kifa’ī) on every person, but if it is taken on by those who can meet the needs of the Muslim nation (ommah), it becomes no longer obligatory on the rest of Muslims.
3. The Mojtahid is either a Motlaq or a Motajezzi’: the first is one who has had the chance and the circumstances to arrive at all the rulings that are needed, while the second has not got the circumstances to arrive at all of them, but at some of them. Thus, the capability and scope of Ijtihad is not a matter for dividing into parts, but becoming a Motlaq Mojtehid or a Motajezzi’ Mojtahid takes place according to the amount of the effort spent and the breadth of judgement, as related to the external circumstances.
4. The (competence of the) Ijtihad of the scholar – also his prevalence over other scholars – can be ascertained through the following:
First: The immediate knowledge of the expert – even if he is not a Mojtehid himself – who is capable of making distinctions in a way that certainty or satisfaction is achieved within the scholar’s competence.
Second: His competence becoming commonly accepted amongst people or in the Islamic specialist schools (Hawzeh ‘ilmiyyeh), in a way that offers certainty or satisfaction as well.
Third: Expert witness; this is satisfied by the witness of two just individuals, or one just individual, or the trustworthy. Such an expert – at the lowest level – is one who has reached a degree of specialist knowledge and knowledge in jurisprudence and (jurisprudence) fundamentals (ossūl) that make him capable of differentiating between the (competent) Mojtahid and the others.
5. When the experts differ in their opinion, the opinion of the one who has a stronger knowledge is to be followed. And when they are the same, or when one cannot discern the difference between them, the number of witnesses is to be observed; however, if the degree and number of such witnesses are equal, they all become independable.
6. The Mojtahid has (in this capacity) two responsibilities:
First: Issuing the rulings; the title given for such person is the Merji‘.
Second: Ruling between people in the position of a judge, or in probation (asbiyyeh) issues such as Islamic trusts (awqaf) and children (qairīn); or in dealing with the public affairs of the nation if he has attained the position of rule or general guardianship/authority (wilayeh ‘ammeh), for which he is given the title of hakim shar‘ī or al-walī al-feqīh (the jurist ruler or guardian).
7. The conditions/requirements that must be satisfied in the Marji‘ are:
1- He has reached the Islamic legal age (baligh).
2- He possesses full reason/mental sanity.
3- He is male.
4- He was born within a marriage.
5- He follows the Imami Ithna-‘Asherī school.
6- He embodies justice; that is, he follows and observes the line of obedience to Allah, the Most High, observing His do’s and don’ts. Such justice disappears with committing a sin, and returns only after true repentance.
7- He should not suffer from more than average forgetfulness, since this affects the process of deduction and arriving at a ruling (Istinbat).
8- The ability to arrive at a ruling (Ijtihad) should be linked to the long practice of teaching and research in jurisprudence, so as to have attained maturity in jurisprudence ruling.
Some of the first five conditions are a matter of Ihtiyat (cautionary standpoint).
8. It is an obligatory precautionary condition (Ahwat Wojūben) not to follow a dead scholar at the outset (of teqlīd). However, if someone follows a Mojtahid then he dies, he has the choice of either continuing to follow him or switching to another, living one, either wholly or partially.
9. Being the most knowledgeable (a‘lamiyyah) is not a condition for the Merji‘; and so it is allowed to follow another Merji‘ when the most knowledgeable is present, although it is better to follow the most knowledgeable when he is present.
10. The most knowledgeable (al-A‘lem) is the most capable of the process of deduction (istinbat), and this is because he is the most capable and skilful in understanding the Qur’an and Sunnah, and in coming up with the ruling from them through the known methods in the Arabic language, and is more precise in the field of osūl and its applications, and is more capable of understanding the spirit of Islam in its rulings and its deduced issues and inferences.
11. The conditions/requirements for the Hakim shar‘ī or Walī feqīh are all the same as those listed for the Merji‘, except the A‘lemiyyeh (being the most knowledgeable), as this is definitely not required of him. As for the ability of absolute Ijtihad, i.e. in all fields, it is a condition/requirement for the Merji‘ who attains the position of general leadership, but not as a judge only.
In addition, the scholar who takes over the general leadership must have courage that is manifested in his bravery and firmness in stances, and knowledge of the issues of his age and time in a way that helps him to achieve wisdom in his political and administrative performance.
12. If the scholar takes over general leadership, he will have guardianship/authority and rule over the general affairs of people that are in need of his guardianship. These general affairs include: whatever is related to the public order on which the stability of the life of Muslims and non-Muslims depend; and whatever protects their political, economic, and social security and other affairs, and so whatever their system as a society depends on.
13. When the scholar (Merji‘) issues an order, it must be obeyed and it is prohibited to violate it within the field where he has guardianship and within the area that is subject to his guardianship. Moreover, obeying him is not confined to what the Muslim believes in regarding his Ijtihad or his Taqlīd (i.e. following another Marji‘), rather his obedience is obligatory in what the Muslim follows as rulings, such as if he is ordered to pay the khoms (20% levy) or zekat (tax) to a certain party and in a certain way.
14. He who believes – as a matter of Ijtihad or Taqlīd – that obedience to the walī faqīh (general guardian) is not obligatory, is not allowed to be open in his disobedience in a way that leads to disturbance in the public order.
15. There is no objection in having more than one Merji‘ taking over the responsibility of public affairs in more than one Islamic country, unless this multiplicity harms, partially or wholly, the correct order of the public affairs of Muslims; in this case it is obligatory to stand under the rule of one walī in whatever satisfies the need, protects unity and protects the nation.
16. Al-Walī al-Faqīh must consult the experts and specialists even in things about which he has knowledge, then issue his master ruling after consultation; this should take place through a certain process to be agreed upon.
17. If someone is absolutely certain of the incorrectness of al-Walī al- Faqīh in matters that are not related to the public order, he should not obey him.
18. It is prohibited to seek legal rulings from judges whom the Sharī‘ah does not see fit for such a position, and any money or property taken according to his ruling is forbidden, even if the one taking it was actually right - unless getting what is his right cannot be achieved except through that judge, and in this case if the ruling was related to something that is defined externally, such as ‘this house’, he is allowed to take it without the need to get the permission of the Islamic judge; otherwise he must turn to the Islamic judge if the subject of ruling was money owed.
Part two: Teqlīd
19. Teqlīd takes place when one decides to follow a mojtehid and abide by his rulings when needed, even if one does not actually need to do that.
20. If the Muslim performs his duties without teqlīd, his performance of these duties is void, unless two things take place:
First: His performance of his duties was the same as the rulings of the Merji‘ he should follow;
Second: The intention (of compliance with the orders of God) (qad al-qorbeh) was present in his acts of worship in which intention (niyyeh) is obligatory.
21. Tab’eed, i.e. following more than one living scholar/Merji‘, is not allowed except when compelled to do so, but when it is allowed, then when he changes to the second Merji‘ he is not allowed to turn back to the first, or to any other, if this will definitely lead to violating the Islamic ruling that will take place. For example: if he follows a Merji‘ who rules that prayers should be qassr (2 rak‘ahs instead of 4) in the second homeland, then he changes to another whose ruling is temam (praying full prayer), here he is not allowed to return to the first Merji‘, or whoever has the same ruling, because he knows for certain that one of the two prayers would become void.
22. If the child follows a Merji‘ before reaching bolūgh (the Islamic legal age), his following of him is correct, so is his continuing to follow him after he reaches bolūgh, provided that the Merji‘ has all the necessary qualifications.
23. It is obligatory that one should seek the living Merji‘’s permission to follow the previous, dead Merji‘, so that the living Merji‘ can specify for the Muslim whether he can continue to follow the dead Merji‘ and how far such following can go.
24. The teqlīd is only specific to rulings related to Ahkam (do’s and don’ts), so the Muslim is free to disobey his Merji‘ in mawthū‘at (issues of other than the do’s and don’ts).
Part three: Ihtiyat
25. The Muslim is free to use Ihtiyat, whether it entails repeating the act (such as when the ruling is either qassr or temam), or not (such as when the act is either allowed or obligatory, or either allowed or prohibited). However, if the matter is either obligatory or prohibited, Ihtiyat cannot be used, and in this case it must be decided using either ijtihad or teqlīd.
26. In this book, some expressions used have to be explained:
1- Al-Ahwat Wojūben: The Muslim has the choice of either following that ruling, or turning to another scholar to seek his ruling.
2- Al-Afdal: This is an alternative way of saying al-Ahwat Istihbaban that scholars use, and it means that it is recommended to be followed although not obligatory.
3- Al-Awla: This is the same as al-Afdal.
4- Al-Aqwa: More probable, hence the given ruling.