These are class-notes taken from Sayyid Muhammad Sadiq ‘Alam al-Hoda’s Bahth al-Khārij on al-Ijtihād wa al-Taqlīd which began on October 11th, 2017 in the city of Qom – and are a continuation from last year. This year the Sayyid is beginning one of the most important rulings within contemporary discussions on Ijtihād and Taqlīd which concerns the necessity of following the a’lam – the most-learned – jurisconsult.

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مسألة 12 : يجب تقليد الأعلم مع الإِمكان على الأحوط، ويجب الفحص عنه

Issue #12: It is obligatory (wājib) to follow (taqlīd) the most-learned (a’lam) when possible, based upon precaution; and it is obligatory to exhaust all efforts to identify him

The notion of following the most-learned appears in issue #12 of al-‘Urwah of Sayyid Yazdi (d.  1337 Hijri), and we do not really find any significant difference of opinion amongst subsequent jurists on this matter. Those who have made remarks on this verdict usually take issue with the statement ‘based upon precaution’, and change it to ‘ala al-aqwa (i.e. they give an explicit verdict on its obligation, rather than base it on precaution). You can see this change in the footnotes written on this work by Ayatullah Nā’īni, Ayatullah Borojerdi, Ayatullah Ḥakīm, Ayatullah Montazeri and many others.¹ One jurist who was completely against this ruling was Shaykh Muḥammad Riḍa Āl Yāsīn (d. 1370 Hijri), whose verdict was that even someone who is not a’lam can be chosen for Taqlīd.

The relationship between a verdict of the a’lam with that of a non-a’lam can be conceptualized in three ways:

1. We know that the verdicts of the a’lam and non-a’lam do not oppose one another
2. We know that the verdict of both oppose each others (even if our knowledge is indeterminate knowledge – ‘ilm ijmāli – meaning, we roughly know that they have opposing views and don’t necessarily know which of their verdicts are specifically – ‘ilm tafsīli – different)
3. We do not know whether their verdicts oppose each others or not (we have doubt)

There is not much dispute in the first scenario, and no one says doing Taqlīd of a non-a’lam here is problematic. The only time this can be problematic is if one holds the view that the intention of a person doing Taqlīd with respect to who they are following is a relevant condition for the validity of their actions. In this case, one can argue, because their actions were not derived from the verdict of the most-learned, they were not valid.

Proving this premise is extremely difficult. The consequence of this would be, if a person did all their actions correctly and in accordance to reality, but they had not done it while following the most learned, rather they did it by following someone who was not a’lam (even though the opinions of both were exactly the same), they would still be held accountable on the Day of Judgement. That is to say, a person should have relied on an a’lam when performing their actions. There is no way to prove this, and I do not believe this view ever had any proponents.

Therefore, there is no difference in following an a’lam or non-a’lam in the first scenario. Many scholars – such as Ayatullah Ḥā’irī, Ayatullah Montazeri, Ayatullah Gulpaygāni – have therefore said, that the obligation of following the most learned is only relevant in the next two scenarios.

The main dispute occurs in the second scenario, even if we merely have indeterminate knowledge, where we roughly know that there are conflicting verdicts. We know that the verdicts of the jurisconsults are not all the same. If we can figure out a response for the second scenario, we will be able to resolve the third scenario as well.

We can look at the second scenario from two perspectives:

1. Ijtihād that a Muqallid (follower) must do before doing Taqlīd, and
2. Ijtihād that a Mujtahid must do when giving a verdict

A Muqallid must be a Mujtahid in the matter of Taqlīd. Taqlīd in the actual ruling of doing Taqlīd will result in a circular argument, therefore we must look at how a Muqallid evaluates this situation. When a Muqallid generally looks at this issue, they are going based off of Sīrah al-‘Uqalā (practice of the commoners/rational people).

If you have two doctors and know that their opinions and methods are different, but you also see that one has a stronger ability than the other, what does the Sīrah of the ‘Uqalā say in this situation? Does it say it is permissible for us to follow any of them, or does it make it obligatory for us to follow the most learned of the two? We see that when all things are equal, rational people will go to the doctor who is known to be more precise and has a greater ability. This is the extent of Ijtihād that is required from a Muqallid and not more.

As for the second perspective, which is that of a Mujtahid’s, the discussion is a lot more technical. There are three main arguments put forth by those who say it is permissible to follow a jurisconsult who is not the most-learned.

1) Difficulty in Identifying the Most-Learned

While it is possible for a ‘most-learned’ jurisconsult to exist – thubūtan –, identifying that individual – ithbātan – is extremely difficult, or even impossible. It would require one to have knowledge of all the jurisconsults, while no one except Allah (swt) has such comprehensive knowledge. It is difficult for even a Mujtahid to identify the most-learned, let alone for a Mujtahid to expect a Muqallid to determine who the most-learned is. In its syllogistic form, the argument is as follow:

Minor Premise: Identifying & following the most-learned for purposes of Taqlīd is not possible, or it results in extreme difficulty (ḥaraj)

Major Premise: Everything that is not possible, or results in extreme difficulty is not obligatory

Conclusion: Therefore identifying & following the most-learned is not obligatory

There are two matters we can address within the minor premise. One is with regards to the very concept (mafhūm) of a’lam and the other is with regards to its instance (miṣdāq) in external reality. What is the meaning of a’lam? A’lam does not mean someone who has mere knowledge of numerous rulings (furū’āt). A’lam in this discussion literally means afham – one who has the most understanding of a ḥukm from the evidence available. It is possible for someone to know all the chapters of Fiqh, and even have all the related narrations and verses memorized, but their understanding and ability to deduce a ruling from them be weak.

Therefore, we find Sayyid Khoei defining the most-learned as:

فإن الأعلم فیها هو من علم بقواعدها و کبریاتها و کان له حسن سلیقة فی تطبیقها علی مواردها و صغریاتها

He says that the most-learned is one who has knowledge of the principles and major-premises, but also possesses good skills in applying those principles and premises on specific instances and minor-premises. Thus, two things which are important in the definition of the ‘most-learned’ is having knowledge of the principles, and also greater ability than others in the implementation of these principles.

The question here is whether it is really possible to identify such a person? Sayyid Khoei and some others say there is no ḥaraj in doing so. How so? They say we have a few ways, such as ‘ilm wijdāni (person’s intuitive knowledge), the testimonies of two just people, and popularity or fame of a jurisconsult. The first way is intuitive and is sufficient, while the other two are ta’abbudi – but that also means their probative-force (ḥujjiyyah) needs to be established.

But is this really the case? It doesn’t appear so. It is not that easy to determine who has greater ability to apply these principles and deduce law, especially today. Even seminary students who have studied a few years find it difficult to determine this. Therefore, in this day and age we cannot say there is absolutely no ḥaraj in determining the most-learned jurisconsult, rather we know that in some cases it does result in extreme hardship. What we know today is that some jurisconsults are most definitely not the most-learned, but at the same time we have a group of jurisconsults who all seem to display strong abilities in their ability to do Ijtihād.

Therefore, the minor premise should be changed to: Identifying & following the most-learned is sometimes not possible, or sometimes results in extreme difficulty.

As for the major premise, we cannot say that just because something results in extreme difficulty sometimes and in some instances, that it therefore becomes prohibited in all of its instances (even those instances where it does not result in extreme difficulty). Whenever it actually results in such difficulty, only then we can say it is not obligatory to follow the most-learned.

2) Absolute Nature (Iṭlāq) of the Evidence Permitting Taqlīd

This is one of the most important arguments used by those who say you can follow someone who is not the most-learned. Whenever an argument through iṭlāq is made, we must look for some sort of textual evidence (like a verse of the Qur’ān or narrations). For example, if in a narration an Imām (a) says, ‘people must do taqlīd of the Fuqahā’, or ‘people must refer to the narrators of our words’, none of these narrations say anything about following the most-learned. The narrations of this nature are so many that we must pay attention to them.

We (i.e. Sayyid ‘Alam al-Hoda) have an opinion in Uṣul al-Fiqh where if the same ruling (ḥukm) appears in an absolute manner (muṭlaq) in many different narrations, but in a few rare cases we find that ruling to be conditional (muqayyad), we cannot take the conditional ruling over the unconditional ruling for granted. For example, if in fifty different narrations we see that an Imām (a) says to his companions, ‘free your slaves’, and in one or two narrations we find him (a) saying, ‘free your slaves who are believers’, we cannot say that the first ruling (obligation of freeing your slave) is restricted to the second ruling (obligation of freeing a slave who is a believer). Rather we will take it as an istiḥbāb (recommendation) – meaning it is obligatory to free your slave, and it is recommended to do so if they are believers. This notion of recommendation within an obligation exists in some of our rulings and is not a strange concept.

Another aspect of this argument is when we see, as an example, the Imam (a) asking one of his followers to go and refer to Zakariyyah bin Ādam (r) in the city of Qom. Now if another person in Qom becomes more-learned that Zakariyyah, can this person still refer to Zakariyyah or not? The absolute nature (iṭlāq) from the command of the Imam would suggest yes, they can continue referring to Zakariyyah. Furthermore, we see that the Imāms during their own lifetime have repeatedly asked people to refer to their companions, even though the most-learned – i.e. the Imam himself – existed. This is not even iṭlāq, rather this is naṣṣ (explicit signification) permitting the following of a non-a’lam.

In the next lesson we will see what critiques and responses have been made against this argument.

¹ Sayyid Sīstāni for example has the same ruling, see footnote #12 https://www.sistani.org/arabic/book/22/1663/