By Ayatullah Muhammad Ali Taskhiri
Translated by Mohsen Azimi Etemadi
Meaning of the Adoption of Rukhsahs
Rukhsah (relief or dispensation) stands in contrast to ‘azimah (obligation). It denotes the rules enacted by Allah to lighten the obligation of a mukallaf(a Muslim bound by Islamic rules and obligations) in certain cases that call for such a relief. In contrast, ‘azimah points to those general rules established by Allah which are not peculiar to certain circumstances or mukallafs.(1) We do not intend, in our present discussion, to focus on this meaning of rukhsah. Here ‘azimah means a rule that is established for something with a primary status ( ‘unwan awwali). In contrast, rukhsah is a rule that is made with a secondary status (‘unwan thanawi) in cases of emergency (istirar) or compulsion (ikrah).
This term belongs to uful al-fiqh and is not used in the sense intended by the holy Prophet of Islam (S.A.W.) when he said:
“Verily Allah likes His rukhsahs to be adopted just as He wishes that His ‘azimahs are obeyed.”(2)
The afore-mentioned sense is not meant either by the following statement of Imam Muhammad ibn Ali al-Jawad (A.S.):
“Verily Allah gets furious with whoever does not follow His rukhsah. (3)
The meaning that urf(conventional understanding) perceives from these terms refers to non-obligatory – in contrast to obligatory – rules that are intended by most riwayahs (traditions). However, some traditions point, through one or another evidence, to secondary (thanawi), in contrast to primary (awwali), rules. Anyway, there is no doubt that the conventional ( ‘urfi) sense is meant here.
According to al-Albani, rukhsah generally denotes the permission given by Allah to His servant in order to reduce his burden. This meaning is more encompassing than the definition and typology that scholars of usul have agreed upon. It covers not only what is allowed despite the existence of a forbidding proof, but also what is changed from difficulty to leniency and ease. The purpose of such leniency may be to bestow comfort and abundance upon the weak, let alone the excused. Therefore, every burden contrasts with a rule to lighten that burden, and means the permission that Allah enacted for those who need it, as He sanctioned ‘azimahs for people who deserve that.(4)
The phrase “adoption of rukhsahs” does not mean – as it comes to mind initially – action upon shar’i permission in its cases. Nobody disagrees with this definition and the Shari’ (Legislator, i.e., Allah) encourages it. Sometimes, forgoing adoption of these permissions – like the permission to do iftar [break fast] in travel – may be haram (unlawful). If it is correct to call it rukhsah it will be haram, according to some schools of fiqh -the Imami school for example -to fast while traveling. What is meant by rukhfah here is the makallafs right to examine the verdicts concerning different cases and thereupon follow the one that is void of obligation element in an attempt to combine two matters: first, commitment to shar’i limits and avoiding sin, and second, making the duty as much easier as possible for himself by trying to find the verdict that is lighter and easier, and then following it in various cases.
When is conflict expectable?
The issue of search for rukhsahs reveals only in a broader framework, namely talfiq (combination) of verdicts. Talfiq may also be performed in the case of two obligatory rulings. This may generate for the mukallaf a greater benefit in matters that intrigue, him, thus, making him follow this path as a way of availing himself of that benefit. Another case of talfiq may occur when two verdicts are consistent in expressing the same line. (We will discuss more about this matter later under the advantages of talflq, inshaAllah.)
Consequently, talfiq and the adoption of rukhsahs are not two identical cases for there is no sense in talfiq by a mujtahid (Islamic jurist). Undoubtedly, when a mujtahid reaches the point where he takes, through his istinbats (deductions), clear positions toward the problems in question, it will be obligatory on him to act upon his inferences and he will not be allowed to follow others’ opinions. Talfiq and the adoption of rukhsahs provided by verdicts are conceivable only by non-muj’tahids. This will be correct only if we believe in the permissibility of taqlid and do not take into consideration the view of those, including the Hashawids, who assume its impermissibility. Even in this case, talfiq will not be likely if we consider it obligatory to follow the alam (most learned jurist) who meets all qualifications of his position and is without any peer. If this happens to be the case, he may not turn to others and there will be no sense in talfiq and adoption of rukhsahs by him.
Resorting to such methods is possible only when we do not believe in the necessity of following the alam or else when there are two or more individuals who equally occupy the highest level of knowledge. If this is the case there will be immense opportunity for talfiq and adoption of rukhsahs.(5)
Now we start the main part of our discussion with the analysis of the preliminaries of the subject and then will draw our conclusion.
Ijtihad and taqiid in furu and knowledge of Islamic law
Ijtihad means exhausting whatever is in one’s power to deduce shar’i rules or practical duties – whether based on shar’i (Islamic law) or ‘aql (reason) – from their detailed evidence. It can also be defined as referring furu ‘ (practical laws) to the principles that are relied on in shar’i. Considering these definitions and ignoring the one that puts ijtihad as including also the knowledge of zanni (presumptive) opinions that are not relied on in shar’i, we do not need to discuss about the constant necessity of ijtihad in detail. The reason is that ijtihad is definitely established by the shari’ah [Islamic legal system], in consistence with its perpetuation and as an undeniable kifa’i (collective) obligation, in order to preserve the spirit and essence of the laws of Islam and prevent them from appearing as outdated and obsolete. That is why the shari’ah greatly encourages gaining knowledge in various branches of Islamic law. Allah, the Exalted, says:
“Why should not a company from each group of them go forth to gain competence for understanding the religion and warn their folk -when they return to them so that they may take precautions. ” (al-Tawbah 9:122)
This verse testifies explicitly to the fact that ijtihdd is a collective obligation (wajib kifa’i) not an individual one (wajib ‘ayni) – which is the opinion attributed to the scholars of Halab. Besides, if it was an individual duty, it will cause enormous difficulty. The sirah (practice of the infallible Imams) also endorses reference to the fatwas (verdicts) of companions and narrators.
The permissibility of taqlid for non-muj’tahids is almost evident to such an extent that the author of Kifayah al-Usul stated that it was a natural function built in human creation.(6) Another supporting indicator is the practice of the wise (sirah al- ‘uqala ‘). Similar was the situation of the early Islamic communities, that is considered as a shar’i evidence in support of this claim. Of course, there are also proofs from the Qur’an and the traditions of the Prophet to support it.
The impermissibility of a mujtahid, reference to the verdicts of others
When a student of Islamic sciences reaches the level of ijtihad, he is not allowed to turn to others for taqlid. In his treatise on ijtihad and taqlid, Shaykh al-Ansari claims consensus (ijma’) over impermissibility. The evidence he presents in support of this claim is the general statements that apparently indicate the permissibility of following whomever that enjoys the malakah (deep- seated ability) of ijtihad, and its restriction to those who cannot acquire such competence.
Muhaqqiq Qummi, the author of al-Qawanin al-Muhkamah, distinguishes between those who are able and those who are unable to perform such functions of malakah. Upon this differentiation, he allows the second group to follow the verdicts of others stating:
The explanation of those who absolutely forbid a mujtahid from taqlid is that it is obligatory on him, according to ijma’, to act upon his conjecture (zann) when he can obtain it in some other way. The ordinary individual (‘ammi) is excluded by proof and the rest remains. It also includes the rejection of ijma’ on what we are discussing and of the ability to achieve conjecture when time is short. Therefore, it becomes clear that the stronger opinion is represented by permissibility in case of shortage (of time) and that the ruling be particular to it.” (7)
In his commentary on the statement of Shaykh al-Ansari, Ayatullah Khu’i says:
The correct opinion is what he states because the real rules (al-ahkam al-waqi’iyyah) are binding for whoever enjoys the malakah of ijtihad through comprehensive knowledge (al-‘ilm al-ijmali), or through the establishment of evidence and proofs that support their positions as ways of obtaining knowledge. Thus, he must discharge himself of his assigned duties, in case of which, it will not be enough to follow the verdicts of others since it will not lead to assured compliance (imtithal)”(8)
It seems that the judgment of the wise concerning reference of the jahil (ignorant)] to the ‘alim (expert) also includes the case of a muj’tahid who is hindered by some obstacle, i.e., shortage of time, etc., from performing istinbat. This argument becomes clearer when we suppose a broader area about which he has not been able to make istinbat so far.
Requirement of a’lamiyyat in the followed jurist
We mean by alamiyyat the greater ability of its holder, in comparison with others, in various aspects of istinbat.(9) This has been the well-known opinion of Shi’i scholars, especially during the recent periods.(10) As quoted from Muhammad ibn al-Hasan,(11) among the adherents of this view are: Ahmad, ibn Surayj, and al- Qaffal(who were Shafi’is), a group of usulis, and al-Ghazzali. (12)
A group of Shi’i scholars after Shahid Thani held that a’lamiyyat was not required.(13)We can only point to some proofs in this regard and postpone the details to their proper places.
The reason for non-stipulation of reference to the a’lam, even when one knows that his verdict is different from those of others, is presented in the following ways:
• Sticking to the generality of the evidence provided in support of the permissibility of referring to a fiqh expert; It is even said that those to whom people in the past referred were often non-a’lams, although the difference among their verdicts was known. This formed a general trait during the centuries since the inception of Islam.
• That it is a very difficult task;
• The judgment of the wise; and
• The agreement and ijma ‘ of the companions on this issue.
The above justifications are subject to dispute. As for the first reason, it is expressed that the context of argument, is when it is known that there is a disagreement between the ‘alim (knowledgeable) and the a ‘lam (most knowledgeable). We do not know whether reference in this case was based on the fact that it was supported literally by tradition, and thus, nothing remained except itlaq (generality) that could not include two contradictory matters – because such an inclusion entails the association of two opposite and contradictory issues (al-jam ‘ bayn al-ziddayn wa al- muta’aridayn). There is no possibility either of believing in takhyir (choice) because renouncing the itlaq of two contradicting proofs has priority over abandoning the very proofs themselves. The reason is that these proofs -as argued by Ayatullah Khu’i- have no nass (literal evidence) and zahir (evident meaning). Instead, their denotations are through zuhur (outward expression) and itlaq. Therefore, it is inevitably concluded that since they could not be combined in an ‘urfi (conventional) way, they are doomed to reject each other. Other justifications have been dismissed and disproved.
The rationales presented for the necessity of reference to a’lam
Rationale 1.
The legitimacy of taqlid is proved by the Qur’an and the sunnah or the sirah. General shar’i proofs may not include two contradictory issues. This is related to our case here since we are discussing a situation in which we are aware of the disagreement between the verdict of the ‘alim and that of the alam.
The rational practice, which is endorsed in this regard, is in line with reference to the a’lam when disagreement is known. When a non-a’lam’s verdict is stripped of hujjiyyat (authority), reference to the a ‘lam will become necessary after having known that ihtiyat (precaution) is not obligatory due to its unfeasibility. The late Ayatullah Khu’i is ostensibly the only scholar who relied on this argument.(14)
This reasoning we will mention when we will set forth the question of tab’id. In brief, the opposite argument is that the presumption of itlaq including two contradictory verdicts is possible, for we are not aware of the existence of any approved rational sirah in this regard. Rational individuals refer to experts, “particularly the closer ones,” while they generally know of the disagreement between them and those who have greater expertise than themselves, regarding several criteria such as the issue of tashil (facilitation) on one hand and the rational probability of conformity with reality, even if they prefer the other one.
In other words, no rational necessity is known for reference to the a’lam while the other one enjoys the required qualifications.(15) Since we are discussing from a legal point of view that considers ijtihad as an acceptable, legitimate method, which is presumably provided in both, there would be no sense in equating this case with the cases of contradictory individual reasoning between two experts in crucial matters, as we usually ‘see in the writings of scholars. The reason is that we do not know of any of shar’i endorsement, especially considering this general sirah of the faithful which is characterized by reference to any one of the companions or to the scholars who followed the Imams and who encountered no repudiation and valid prohibition of such a broad phenomenon that has been extended throughout the time. Even the imams directed people to scholars without requiring a’lamiyyat.(16)’
Moreover, the difficulty of the issue increasingly appears to be real, especially assuming the vastness of Islamic territory, the abundance of scholars, and the fact that Islam looks at things comprehensively. This fact becomes particularly clear, upon consideration of the picture we quoted from the author of ‘Urwah regarding alamiyyat.
It is worthwhile here to quote the statement of the great Shaykh Muhammad Hasan Najafi in this regard: “The argument concerns the deputies during the ghaybah (occultation) period (of the 12th Imam) with respect to referring disputes to, and following the less competent of them while having or lacking knowledge of disagreement. The zahir (apparent indication) is Jawaz (permissibility) due to the itlaq of the proofs of nasb (appointment) that is tantamount to the hujjiyyat (authority) of everyone of them for all of the people and also because of the constant sirah concerning issuance of verdict and solicitation of verdict from them (ifta ‘ and istifta’) with respect to competence. The claim of priority (rujhan) based on presumed advantage refutes the aforesaid proofs of nasb while their prohibition is probable in many individual cases in which the opinion of the less competent of his time is mended by acceding to the more competent during the earlier periods and by other factors.
There is no proof – whether based on ‘aql (reason) or according to naql (i.e., hadiths) – for the necessity of acting upon this preference with respect to the matter because the preference is perhaps in the very legitimacy of reference to the less competent, even if the conjectural opinion in support of the verdict of the more competent is stronger, like the testimony of two ‘adils (just Muslims).Then, assuming the absence of any rational obstacle, the generality (itlaq) of the proofs of appointment in the case of a’lam and the validity of his verdict regarding an occurrence entails the hujjiyyat of his conjecture concerning that occurrence in a general way, and that it accords with righteousness, equity, justice, and what is sent down by Allah. Therefore, it is permissible to refer to him by the way of taqlid as well.
Perhaps the very competence of the less learned and his function as an appointed deputy, whose qabd (action and intervention) and wilayat (authority) have been given a power similar to that of the most competent, are irrefutable facts, about which one ought not to have any doubts, especially after looking at the authentic texts that apparently denote the appointment of any one who is characterized by the attributes mentioned above, and do not restrict it only to the most competent of them. Otherwise, as it is obvious in case of the least amount of contemplation, it has to be said: “Look at the most competent of you,” not “to a man from you.” Notwithstanding, it is known that the authentic text in support of preference is stronger to the subject of our discussion here, that is, the reference of disputes for the first time (ibtida ‘) and taqlid for that reason, whether the disagreement is known or not. It is unlikely that the companions relied on these scripts to prove this matter.
Even more remote than that is to base the argument upon the implicit ijma ‘ quoted from Sayyid Murtada in al-Dhari’ah, and the explicit one quoted from Muhaqqiq Thani in his commentaries on the “Jihad” chapter of al-Shara ‘i ‘ over the obligation of primary reference of disputes to, and following the most competent jurist. Some scholars indicate that the less qualified jurist has basically no wilayat while a more qualified one exists, as the necessary result of the absence of any helpful ijma ‘ regarding such cases. However it appears that the contrary is correct because the Imams (A.S.) – despite their presence – used to direct people to their companions, e.g., Zurarah, Muhammad ibn Muslim, Abu Basir, etc. The Messenger of Allah (S.A.W.) also delegated qada ‘ (adjudication) to some of his companions despite the presence of the Commander of the faithful, ‘Ali (A.S.), who was the most competent of them.
It is stated in al-Durus: “If the Imam is present somewhere and is asked to judge about a matter, he may, based on ijma ‘, refer it to others.” We have not confirmed this ijma’ through Muhaqqiq Thani, and the ijma ‘ of Sayyid Murtada is based on the issue of taqlid of the less qualified in the field of grand Imamah (authority) despite the existence of the more qualified. He states at the end: “Therefore, appointing, following and referring of disputes to him will be permissible then, whether the disagreement is known or not.” (17)
The late Shaykh Hurr ‘Amili, traditionist (18) states in refutation of usulis: “Believing in taqlid entails that the follower knows that the person whom he follows is an absolute mujtahid. Since gaining such a knowledge is obviously impossible for the follower, it entails imposing an unbearable task, and also requiring him to discern the alam among several mujtahids.” (19)
The author of Wilayat al-Faqih states: “The opponents of the requiredness of alamiyyat can argue that the sirah during the time of the Prophet (S.A.W.) and the Imams (A.S.) was to turn, and refer others, to anyone of their companions without requiring alamiyyat, although difference in their competence was evident.”(20)
The late Fadil Tuni (d. 1071 h.) says in al-Wafiyah-. “And taqlid means acceptance of the opinion of a person who may err without any reason or proof. A mufti (source of verdict) whose fatwa is solicited is required, besides enjoying the qualifications mentioned above in the way mentioned above, to be a thiqah (reliable) mu’min (believer).” (21) He absolutely does not address the condition of alamiyyat.
Rationale 2.
Another explanation provided for the necessity of reference to the alam is based on ijma’. This explanation is unacceptable in whatever way we interpret ijma’. Whether we mean by it a unanimity of opinions or a consensus that reveals the opinion of the masum (infallible authority), it is incomplete here after it became clear that the opinions did not agree in this respect. Furthermore, a unanimity may be claimed, in certain periods, over the opposite of this opinion. The obviousness of the fact that it does not reveal the opinion of the masum (A.S.) is another problem.
Rationale 3.
Another proof is composed of certain traditions including the following ones:
• Maqbulah of ‘Umar ibn Hanzalah (22) that signifies the priority of the judgment of the afqah (the most knowledgeable jurist) but is related to the subject of adjudication and not juristic ruling.
• What is stated in the epistle of Imam Ali (A.S.) to Malik Ashtar which reads: “Select for judgment among the people the most competent of your folk.”(23) This tradition concerns adjudication as well.
• The tradition that is mentioned in al-Ikhtisas, quoting the Prophet (S.A.W.) as saying: “Leadership does not befit anyone except those who are entitled for it. Therefore, whoever invites people to him whereas there exists someone more knowledgeable than him, Allah will not look at him on the Day of Judgment” (24) Not only this tradition is mursal but it is related to the field of wilayat and government.
• What is quoted from Imam Muhammad ibn ‘Ali al-Jawad, who told his paternal uncle: “O uncle! It is a very serious matter before Allah that you stand in front of him tomorrow and he says to you: “Why did you issue verdicts for my servants concerning what you had no knowledge, whereas there existed in the Ummah someone who was more knowledgeable than you?”” This tradition is mursal and is not considered a valid proof. Moreover, it points, particularly, to a case in which the issuer of verdict lacks knowledge.
Rationale 4.
It is also argued that since the alam’s verdict is closer to reality, it is the only one that must be followed. In response to this argument, the late Ayatullah al-Khu’i stated that if this proximity was taken to mean that his verdict was actually closer, he would not accept it, and if it meant that his verdict had the potential of being closer, he would say that natural proximity had not been made a criterion either for taqlid or for its necessity.(25)
Rationale 5.
This rationale is a reference to the rational principle concerning the problem of a circle between ta’yin (specification) and takhyir (choice) between the alam and others. However, after the establishment of the ijtihadi proof (sirah) for us, there would be no room for reference to this principle due to its subordinate status. Surprisingly, some scholars referred to it directly before discussing any claimed ijtihadi proofs. The argument that this principle results in the specification of the a’lam, for example, calls for a discussion on which there is no room here for elaboration. (26)
Anyway, as we said, the most popular opinion among the more recent scholars of the Imami school is the requisiteness of alamiyyat.(27)
Rules of Tab’id and Talfiq
By talfiq we mean non-restriction to the verdict of one mujtahid, and reference, when it comes to action, to the verdicts of more than one mujtahid concerning either compound inter-related actions or actions that are independent of each other.
Al-Albani defines talfiq as acting in a form that mujtahid does not recommend, by combining, with respect to a single matter, two or more verdicts, and hence, achieving a compound entity adhered to by no one. An example could be one’s masah (ritual wiping) in -wuzu (ritual ablution), just on a part of his head’s hair in accordance with the ruling of Imam Shafi’i, and touching an ajnabiyyah (28) following Imam Abu Hanifah’s way (without his wuju ‘ being nullified). This form of wudu ‘ represents a compound entity that is addressed by none of the two jurists.”(29)
Clearly, al-Albani talks about a single action in his example without talfiq being done in the case of interdependent parts. In fact, the individual in this case follows one authority regarding one part of wuju, and complies to another authority concerning the touching of an ajnabiyyah. Naturally, whoever believes in the permissibility of talfiq in the case of an interdependent compound action, he certainly accepts it with regard to independent actions too.
The sources of Imami fiqh allude to the talfiq method as tab’id, a term that I prefer due to the negative implications of the term talfiq.
The late Sayyid Muhammad Kazim Yazdi states in al- ‘Urwah al-Wuthqa (question 33): “If there are two mujtahids who are equal in terms of knowledge, the mukallaf may follow whom ever of them he wishes, and it will be permissible for him to discriminate with respect to different issues.”
He further indicates in question 65: “In the case of agreement between two mujtahids the mukallaf has a choice to follow whomever of them he wishes as he is allowed to discriminate even with regard to the rules of a single action, and even if the verdict of one of the mujtahids endorses, for example, the necessity of jilsah al- istirahah (relaxation sitting) (30) and the desirability (istihbab) of taslis (triple recitation) of al-tasbihat al-arba’ah (quadruple glorification hymns) (31) whereas the other’s verdict is contrary. In such a case, the follower may act according to the verdict of the former regarding the desirability of taslis and according to that of the latter concerning the desirability of jilsah”
Imam Khumayni states: “If two mujtahids are alike in terms of knowledge, an ordinary person has the choice to refer to either of them. Moreover, it is also permissible for him to discriminate with respect to issues, following one mujtahid in certain matters and following the other in certain other matters.”(32)
The opinions expressed on the issue and its history
Shaykh al-Albani tried to present a survey of a number of opinions in this regard and stressed that although talfiq did not exist in the era of the Prophet (S.A.W.) – since it is considered a phenomenon that cannot emerge during promulgation and inception of divine laws – it was practiced during the time of the Prophet’s companions and their disciples (tabi’in). It frequently happened that someone asked a certain question from some of them, then asked other questions from others. Nothing has been narrated from any of them regarding the follower’s obligation to observe the rules of the madhhab of whomever he follows. Such a view has not been known of any one of the Four Sunni Imams (Abu Hanifah, Ibn Hanbal, Shafi’i and Malik ibn Anas) and other mujtahids either. Rather, the statements that have been quoted from them point to the contrary.
Al-Albani states as a digression: “It becomes clear from this that during the early Islamic period, the compliance by a solicitor of verdict with the opinion of one of the scholars from the Prophet’s companions regarding a certain issue, and his compliance with the opinion of another Companion or tabi’i regarding another issue, was not called talfiq, although the result was a compound entity that was not believed by any of the two scholars. Rather, it resembles the overlapping of scholars’ opinions in an unnoticeable and unintentional natural way, like the overlapping of words’ in the Arabic language.”(33)Hence, al-Albani considered proposing the issue of talfiq in this form as a new phenomenon.
Allamah al-Kawakibi is quoted as challenging the opponents of talfiq’s permissibility in his book, Umm al-Qura’, saying: “The fact is that what they call talfiq is nothing but taqlid.” Then he adds: “And every follower is naturally unable to distinguish between the ranks of mujtahids. Therefore, he is allowed to follow some mujtahid with respect to every religious matter. Does any Muslim have the misimpression that Abu Hanifah rejected to follow Malik or to eat from the animal slaughtered by Ja’far? Never! Their personalities were greater that such prejudice could penetrate their minds.”
Ibn Taymiyyah is quoted as making an argument that can be briefly put as the following: Obliging an ordinary mukallaf to follow the alam involves great difficulty and limitation. The ordinary people of every period still continue to follow one mujtahid in a certain issue, and another mujtahid in another issue, and another concerning a third issue, and so on in numerous cases. Nevertheless, no objection to such a practice of theirs has been recorded; neither they were ordered to search for the most learned and competent in their views.
Then, he alludes to the conventional view that commitment to a particular madhhab is not obligatory. Then, he goes on supporting this view by quoting different opinions.
It is appropriate here to quote a statement by Shaykh ‘Abd al- ‘Ali Ansari in Fawatih al-Rahmut fi Sharh Musallam al-Thubut by ibn ‘Abd al-Shakur saying: “It is told that continuation is not necessary and transference is valid. This is the truth that ought to be accepted. However, transference should not be done for entertainment since entertainment is definitely haram, whether it is in the belief in a madhhab or else. The reason is that there is no obligatory duty but what Allah decreed so, and the hukm (authority to rule) only belongs to him. He did not make it obligatory on any body to follow the madhhab of anyone of the four Sunni Imams. Therefore, making such a thing wajib is considered a new tashri’ (legislation) and you may reason against it by saying that, based on nass disagreement of scholars is a blessing and a relief for the creatures.”
As for the Imamis, apart from the permissibility of tab’id that we quoted from one of their great scholars – and it is quoted from scholars other than him too – it is not ma’ruf (widely endorsed) among them. The reason is the enormous reputation of the verdict that admits the necessity of following the a’lam and the rarity of cases in which scholastic equality is known so, that such a situation can emerge.
Anyhow, the important matter is to reason for the issue and refer to the proofs of ijtihad and taqlid in order to find out the truth. As for the aforementioned opinions, they can only be consulted with, if they do not amount to the level of an ijma ‘ that indicates the wish of the Shari’ (legislator).
Opinion of the late Ayatullah al-Hakim
Imam Sayyid Muhsin al-Hakim states in his Mustamsak commenting on mas’alah 33 of al-‘Urwah al-Wuthqa: “I came to know that due to the disagreement of the mujtahids ‘ verdicts, the itlaqs of the proofs of hujjiyyat ceased to be a source of reference and ijma’ became the exclusive reference. Therefore, the lawful ness of tab’id depends on the inclusion of the case of tab’id by the ijma’ on the takhyir [choice] between them while such an inclusion by ijma ‘ is not clear and I do not know, at the time being, of any body claiming it. Some of the proofs presented by the opponents of ‘udul (transference) in cases other than the one in which someone has followed the mujtahid, seem to imply the forbiddance of tab’id. You can know this by yourself through conferring their statements. Another proof claiming that sirah was based on it during the era of the infallible Imams(A.S.) is similar. Therefore, tabid is not void of problem.
Yes, if we consider taqlid a commitment to act upon the opinion of a particular mujtahid, nothing will be wrong with tab “id
because of the generality of the proofs of hujjiyyat. (34)
Ayatullah al-Hakim explains this point on another occasion too, saying what can be summarized as the following: Taqlid is to act relying on the opinion of others. If mujtahids agree with each other, every one of them may be followed and ta’yin (specification) will not be required. However, if they disagree, all of them cannot possibly be hujjahs because this entails mutual in validation that leads to contradiction. No particular one may exist either, because no one has any advantage over others. Tasaqut (mutual dismissal) is also impossible since it is against ijma’ and sirah. Therefore, hujjat is the one whom he chooses; and this choice represents commitment, and commitment is the primary stage of taqlid not taqlid itself.(35)
Commenting on mas’alah 65 ofal-‘Urwah al-Wuthqa, Imam al-Hakim states that one may find fault with an interrelated single action concerning which, action has been performed according to two verdicts, claiming that both verdicts oppose such an action. He answers to this objection by saying that after assuming the permissibility of tab’id, the individual disagreement of each mujtahid concerning cases other than the one in which he is followed, does not damage the permissibility of such a taqlid. He then adds:
If you say that a mujtahid whose verdict is jilsah al-istirahah are not necessary issues, such a verdict only with respect to prayers that include the triple tasbihs, just like the one whose fatwa is to confine one- self to a single tasbih believes so only in the case of prayers that contain jilsah al-istirahah, the result of which would be that forgoing jilsah al-istirahah and confinement to a single tasbih is not considered as acting upon the fatwas of the two mujtahids even in a combined form, I would say that relation among the parts in thubut (emergence) and suqut (dismissal) is not concomitant with relation between the two as verdicts.
Therefore, Ayatullah al-Hakim does not look at this as a problem. In his view, the problem is that proofs fall short of inclusion of two contradictory verdicts issued by two equal mujtahids. No ijma’ or sirah covers them to provide them with hujjiyyah (legitimacy) either. We can extend this idea to include a case in which we hold a’lamiyyat as unessential to taqlid and in which the verdicts of two scholars disagree with each other. However, even if we accept his basis about taqlid as being an action not a commitment to action, we can say that proofs include the two cases of contradiction between two verdicts due to the aforementioned sirah that prevailed during all earlier periods and endorsed reference to mujtahids. Naturally, this was done while the mujtahids’ disagreement was known; a matter that determines the inclusion of this case too.
Opinion of the late Ayatullah al-Khu’i
Ayatullah al-Khu’i considers taqlid as reliance on another’s opinion in action arguing that this sense is stressed by Arabic usage and comes to mind from traditions.(36)
When he discusses the issue of equally competent mujtahids whose verdicts disagree and the context in which the proofs of hujjiyyat include both verdicts, he emphasizes that takhyir between them – although it is ‘urf widely accepted among the companions is inadmissible. Therefore, itlaqs cannot possibly include two contradictory matters, and the current rational sirah concerning takhyir between them is not proven. Instead, rational individuals rely on ihtiyat (precaution) and it has not been confirmed that the sirah of devout Muslims is connected to the time of Shari’. Besides, since ijma ‘ is reported just by the narration of a single narrator, we cannot rely on it on the one hand, and on the other, it is a novel issue that has not been addressed by the scholars in their discussions.
We expressed the opinion that whoever deserves this wide spread situation in all times, particularly during the early Islamic period, can claim, and even be perfectly sure of, the sirah of devout Muslims in this regard. The reason is that we may assume the inclusion of two contradictory verdicts by the proofs of hujjiyyat, not due to the consideration of mukallaf as being aware of the import of both verdicts together, which entails joining of opposites or contradictories (al-jam’ bayn al-ziddayn and al naqidayn), but by the way of concoction of the two verdicts. There would be no problem if the legislator’s tendency is directed at either of these two individual verdicts that satisfies his purpose. Or it has been said that the advantage of facilitation for mukallafs through referring them to different mujtahids inspite of knowing their disagreement creates a general tendency toward the mukallafs’ action upon one of the verdicts that are arrived at through a legitimate operation. We do not find any fault or disagreement with any rational principle in this argument.
For instance, a government sets up various institutions for issuing orders while it is aware that the judgments of these institutions concerning interpretation of laws and detection of the intentions of a ruler sometimes differ. However, the government overlooks the unintentional infringements that result from this in order to actualize the supreme good, namely the implementation of its laws to the farthest possible extent. To put this point clearly, we consider the possibility that the ruler indicates this matter outrightly feeling no problem in accepting it.
As for the term ihtiyat, we may find no room for it in most general legal situations, especially when we consider the matter on n global human scale.
In the closing of his discussion about this topic, Ayatullah al Khu’i assumes that the validity of each of the two verdicts is conditional upon commitment to it. This is a rational assumption positively (thubutan) but he argues against it substantively (ithbatan) by saying that the evidence gives hujjiyat to the verdict of the jurist without making it conditional upon the element of commitment to it.
Here, someone may argue that inspite of the lack of restriction by commitment in ordinary cases it may be claimed that ‘urfi understanding (common sense) resorts, in confrontation with a situation of disagreement between two cases, to such restriction.
This common sense becomes clearer when we consider what is mentioned in the traditions relating to expansion (tawsi’ah) with respect to two discrepant traditions, and to the mukallafs right to act upon every one of them he wishes by the way of submission naturally if we overlook what exists in their chains of transmission and generalize their indication to the tradition other than the two discrepant ones. Even if we do not generalize and their chains of transmission arc not perfect they will indeed disclose a common sense form of understanding.
It might be said that those who believe in taql’ld as commitment do not confront this problem. This group includes scholars such as the author of al-Kifayah and that of al- ‘Urwah who says:
“Taqlid is a commitment to an action according to the opinion of a certain mujtahid even if one has not been doing so until then.”
However, sometimes it is said in this regard that what is considered here is instrumentality, even against the opinion of the aforementioned group, and that it is not meant to take commitment as an independent subject by itself to make its inclusion by itlaqs possible.
Besides, according to the opinion of most scholars of the four schools of Sunni fiqh, there is no choice except to accept: the permissibility of talfiq or tab’id after they did not consider a’lamiyyat as a requirement on the one hand, and considered that all of them led to haqq (truth). We have not obtained a firm evidence: supporting the opinion of those who oppose tab’id.
In his discussion of this subject, Sayyid al-Khu’i distinguishes between two cases: the case of the lack of knowledge about the disagreement of the two verdicts, and the case of being aware of the disagreement while acting upon them in a single interdependent, compound form. Then, he allows it in the first case and does not allow it in the second one despite assumption of generalization of evidence for the validity of interdependent parts is also interdependent and, hence, if one performs some part according to someone’s verdict and assumes that it is probably null and void in reality, and performs another part according to another’s verdict and thinks that it is probably null and void, as well he doubts about the validity of his payers and has no legitimate proof regarding its validity. Since none of the mujtahids endorses its validity, he will have to redo it, and this is the meaning of revocation (butlan).
The opinion expressed by the late Sayyid al-HakIm seems more plausible and we could not figure out the distinction between the two cases in this regard.
Adoption of Rukhsahs
We already said that this issue is a branch of talfiq. Therefore, when the discussion about its permissibility is exhausted, we will talk about the adoption of rukhsahs.
The author of Fawatih al-Rahmut states: “It may be concluded from this – namely, from what was mentioned concerning the unnecessity of continuation to follow a specific school of fiqh that a mukallaf may follow their rukhsahs. He said in Fath al-Qadir. “Perhaps, the opponents of transference objected only so that nobody adopts the rukhsahs of the schools of fiqh.” He stated: “No shar’i deterrent forbids it because a person has the right to choose a way that is the easiest for him provided that he has the right to go through it, or in other words, if sharh poses no objection or prohibition against it.”(37)
The author of Fawatih adds: “But the adoption of rukhsahs should not be for the sake of entertainment: like playing chess by a Hanafi according to the opinion of Shafi’i for the sake of lahw (amusement), or like drinking muthallath by a Shafi’i in order to be entertained by it. Such an action may be haram based on ijma’ because seeking amusement is prohibited according to the explicit texts.(38)
Then what is the position toward this situation?
The permissibility of the adoption of rukhsahs is the consequence of the permissibility of talfiq even if rukhsahs are adopted on purpose. Therefore, what encouraged some scholars to oppose it? The following arguments may be mentioned as the motives behind such an objection:
First: That if such a process is allowed it will lead to frailty. The Human being has a strong tendency to alleviate the burden of his duties, therefore, if he takes advantage of rukhsahs he will lose the virtue of being a committed mu’min.
Second: It will lead to trickery in matters of sharh and provision of opportunity for committing haram through combination of two rukhsahs for example.
Third: It leads to defiance of the order of the legitimate ruler.
Fourth: It causes damage and evil consequences (mafsadah).
Fifth: It generally leads to a situation that is certainly wicked and forbidden.
Sixth: Accusation of the follower of rukhsahs as a fasiq (sinner) according to what is narrated from Imam Ahmad Ibn Hanbal. Seventh: It is not consistent with the exclusive limitation of madhhabs to the four well-known schools of Sunni fiqh and the ijma’ upon the necessity of following only one of them. It is note worthy here that what is mentioned in the seventh reason is very odd. The adoption of rukhsahs does not contradict with the restriction of madhhabs in itself and there is no ijma’ on the necessity of compliance to only one of the four madhhabs. Besides, there is no ijma’ on the necessity of restriction of madhhabs to four schools of fiqh because none of the reasons that call for the restriction is justified although it could be claimed that they were justified previously. This is what we reject too, as many scholars and researchers have done so.(39)
What I believe is that the reasons listed above exist in a general form in some cases. That is why scholars prohibit this very adoption by the way of elimination of excuses and outlawing to do haram. Besides, some of these arguments and barriers if actualized – establish a proof for rejection of all cases. This is what was mentioned in the fifth argument where a general knowledge is shaped that prevents action upon its sides.
The right conviction is that we cannot illegalize that – if accomplished – agrees with shar’i rules merely based on the argument that it is a matter in which deception is easy, or that it may lead to evil results, or defiance of sh.ar’i rule, except when these matters prevail in that case and in an extraordinary way.
The truth is that few people follow rukhsahs personally and with the intention of amusement, and we cannot rely here on poets and the tales of story-tellers. Therefore, the door is open by itself.
Some of the benefits that presumably result from the permissibility of tab’id and adoption of rukhsahs
The presumable advantages of the permissibility of tab’id may be summarized as follows.
First: We may not prohibit something that is opened by rules merely for the sake of facilitation. Why do we prevent an individual who can take advantage of the rukhsah of a madhhab that generally recognizes its legitimacy? Perhaps, there may be cases in which this rukhsah has a great effect as in marriage and divorce, for instance.
Second: Occasionally, planning an Islamic agenda for managing certain vital affairs calls for resorting to a certain verdict and we do not insist on its inclusion of rakhsah – that is consistent with public good, and which forms a developed structure along with other verdicts, and is what we sometimes call inherent motives for the choice of verdict. This may be true in the case of issues like unification of the beginnings of the lunar months, or invalidness of divorce while one is angry, etc.
Third: A Muslim researcher, who looks for a vital doctrine like Islamic economic or social doctrines, may find consistent verdicts issued by several jurists that constitute a uniform aspect of a general guideline. In this case, the researcher can put forward this guideline in the form of an ijtihadi representation of that madhhab.
This is what the Martyr al-Sadr, who was a great scholar, did in his book, Iqtisaduna, explaining this phenomenon in the following way:
The exploration of economic doctrine is accomplished through an operation of ijtihad in understanding authentic texts (nass, classifying them, and reconciling their indications in a uniform manner, and we saw that ijtihad differs and varies as a result of the mujtahids’ difference, in the way they understand the authentic texts and resolve the contradictions that occasionally emerge among those texts, and the difference in the rules and general jurisprudential methodologies that they employ. We also saw that ijtihad enjoys a shar’i characteristic and an Islamic attribute as long as it fulfills its obligation and provides a picture and defines its limits and contours in the framework of the Book and the Sunnah, and according to the general conditions that are not violable.
It is concluded from what we said that the increase of our reserve with respect to Islamic economy and the emergence of numerous forms of it, are all legitimate and Islamic, and we can possibly select, in every field, the strongest element that we find in that form and the most powerful one in solving the problems of life and realizing the exalted ideals of Islam. This is an opportunity of inherent choice where a researcher holds his freedom and opinion.
Then he adds:
Taking advantage of this inherent opportunity and conferring the doer a right in selection in the general framework for ijtihad in Islamic law is sometimes necessary condition from the technical viewpoint of exploring operation.
Then he asks:
Is it necessary that the ijtihad of each mujtahid along with the rulings that it entails – reflects a certain economic persuasion and unified foundations that are consistent with the structure of those rulings and their nature? We reply to this question negatively because the ijtihad on which inference of those rules is based is subject to error. As long as it is so, a mujtahid’s ijtihad may contain an element of law that is alien to the real nature of Islam. Therefore, we have to differentiate between the real nature of Islamic legislation – as the Prophet (S.A.W.) brought it – and the ijtihadi form that is devised by a certain muj’tahid.(40)
So we say that allowing tab’id and even the adoption of rukhsahs – in a way that excludes abuse – is a desirable matter, and Allah is the Knower.
Notes:
1. Khallaf, Ilm Usul al-Fiqh, p. 138, quoted in Sayyid Muhammad Taqi al-Hakim, al-Uful al-Ammah lil-Fiqh al-Muqaran.
2. Ahmad ibn Hanbal, Musnad, chapter 2, hadith 108.
3. Shaykh Abbas al-Qummi, Safinah al-Bihar, vol. I, p. 17,
term “rakhasa.”
4. ‘Umdah al-Tahq’iq fi al-Taqlid wa al-Talfiq, p. 114.
5. It may be said that talfiq is consistent with the opinion that reference to the a’lam is confined to cases in which the difference of the two mujtahids in verdict is known. However, if there is no knowledge of their agreement or disagreement, he will be free to choose either of the two. The problem with this argument is that our assumption here is that their difference is known, therefore, he may follow the relieving verdict instead of the binding one.
6. Akhund al-Khurasani, Kifayah al-Usul, vol. 2, p. 359.
7. Ayatullah al-Khu’i, al-Tanqih fi Sharh al-‘Urwah al-Wuthqa, Kitab al-Ijtihad -wa al-Taqlid, p. 30.
8. Mirza Qummi, al-Qawanin al-Muhkamah, vol. 2, p. 163.
9. Sayyid Muhammad Taqi al-Hakim, al-Usul al-Ammah li al-Fiqh al-Muqaran, p. 659, quoting al-‘Amidi, Ihkam al-Ahkam, vol. 3, p. 173. The author of al-‘Urwah says: “The meaning of a’lam is the one who is the most knowledgeable about the rules and evidence of the issues and the most familiar with similar cases and with traditions, and the best in terms of understanding traditions, and consequently, in terms of istinbat.
10. The author of Ma’alim, Shaykh Hasan the son of Shahid Thani, states (p. 388): “And if some of them were preferable in terms of knowledge and ‘adalat [probity], it will be wajib on him to follow him. This is the opinion of the companions whose word has reached us. Their reasoning is that confidence in the a’lam’s view is more probable and firmer. Takhyir (choice) has been ascribed to some people as well.”
11. ‘Umdah al-Tahqiq, p. 54.
12. Ghazzali, al-Mustasfa, vol. 2, p. 125.
13. Sayyid Muhsin al-Hakim, Mustamsak al-‘Urwah al-Wuthqa, vol. I, p. 26.
14. Al-Tanqih, expositions of Gharawi, Kitab al-Ijtihad wa al Taqlid, p. 142.
15. Imam Khumayni put forward this idea in his Tahdhib a-Usul (vol. 2, p. 550) by saying: “Then, it is appropriate to discuss whether the priority given by bina al-uqala (the judgement of rational persons) to the opinion of a’lam in the case of disagreement, either in general or in detail, is by the way of necessity or due to the merit of ihtiyat (prudence)?” The probability of the latter alternative is not remote because both opinions meet the criterion and conditions of hujjiyyat (authority) and amariyyat (circumstantial indicativeness), but he returns and discusses what he brought up considering the affair of shar’ as being so important to it may not be neglected.
16. This fact is attested to by numerous traditions in which the Imam (A.S.) refers to Muhammad ibn Muslim al-Thaqafi, Abu Basir, Yunus ibn ‘Abd al-Rahman, and Ma’adh ibn Muslim, etc., while ignoring this condition. There is no sense in claiming that the Imam knew that they did not disagree in verdict, further, it may be claimed, based on the nature of the situation, that there is no doubt in their difference. As an example, we quote the following tradition from Mu’Jam al-Rijal written by Ayatullah Khu’i, (vol. I, p. 96), rooted from the late al-Kashshi in chapter Fadl al-Riwayah wa al Hadith: “From Ja’far ibn Wahab saying: “Ahmad ibn Hatam talked to me about Mahawayh saying: “I wrote to him – meaning the third Abu al-Hasan (A.S.) – asking him whom I obtained my religious knowledge from.” His brother also wrote so. He replied to them writing: “I understood what you mentioned. Rely, in your religion, on whoever is great in his love for us and is highly advanced concerning our matter (amrina). They will indeed suffice you if Allah wills.”
17. Shaykh Muhammad Hasan Najafi, Jawahir al-Kalam, vol. 40 p. 46.
18. Akhbaris are traditionists who perform their actions based on, ihtiyat and do not believe in the necessity of following a mujtahid.
19. Shaykh Hurr ‘Amili, al-Fawa’id al-Tusiyyah, p. 411.
20. Wilayat al-Faqih, vol. 2, p. 179. Although he is discussing about “qada”, his statement includes, just like that of the author of Jawahir, the issue of verdict as well. However, the statement of the author of Jawahir is more explicit and emphasizes the case in which disagreement is also known.
21. Al-Wafiyah (new Qum edition), p. 299.
22. Shaykh Hurr ‘Amili, Wasa’il al-Shi’ah, ch. 9 of chapters concerning the characteristics of a judge.
23. Nahj’al-Balaghah (Beirut), ch. 4, p. 30.
24. Al-Ikhtisas, quoted in Bihar al-Anwar, vol. 2, p. 110.
25. Al-Tanqih, p. 147.
26. See Sayyid Muhammad Baqir al-Sadr, Durus fi Ilm al-Usul, vol. 3, part I, p. 185-87.
27. This opinion is held by the majority of members of the Assembly for Fiqh of Ahl al-Bayt (A.S.) based in Qum, the Islamic Republic of Iran.
28. A woman who is not mahram with whom a man should observe strict rules in his relation with her. For instance, he may not look at any part of her body especially those parts other than face and hands, voluptuously or have sexual relationship with her, etc., unless they are married.
29. ‘Umdah al-Tahqiq, p. 91.
30. Jilsah al-istirahah means to sit idle for a short time after performing the second of the two sajdahs (ritual prostrations) before rising for recitation of the next rak’ah in prayers.
31. Tasbihat al-arba’ah are subhana Allah, -wa al-hamdu li Allah, wa la ilaha illa-Allah, wa Allah Akbar.
32. Imam Khumayni, Tahrir al-Wasilah, vol. I, p. 6.
33. ‘Umdah al-Tahqiq, p. 94.
34. Mustamsak al-Urvah al-Wuthqa, vol. I, p. 62.
35. Ibid., pp. 11-13.
36. Al-Tanqih, al-Ijtihad wa al-Taqlid, expositions by Mirza Gharawi, pp. 77-81.
37. AI-Ghazzali, Hashiyah al-Mustasfa (published by Dar Sadir), vol. 2, p. 406.
38. Al-‘Urwah al-Wuthqa (Tehran: al-Maktabah al-‘llmiyyah), eighth mas’alah of the sections on taqlid, p. 4.
39. One may refer here to what is written by our great mentor,Sayyid Muhammad Taqi al-Hakim in al-Usul al-Ammah lil-Fiqh Muqaran, p. 599.
40. Sayyid Muhammad Baqir al-Sadr, Iqtisaduna, vol. 2, p.380