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We are discussing the necessity of following the most-learned juristconsult. Sayyid Kho’ī says that a verdict of a jurist is from the same category of a solitary report and the narrations that permit taqlīd imply ta’yīn, not takhyīr. However, we said in fact they imply takhyīr, and the itlāq of these narrations are badalī. The binding force of takhyīr in the cases of following a jurist as seen in the reports, are not just what the narrations themselves imply, but rather the intellect implies it. It is not rational, that the Imam uses al-itlāq al-shumūli where people are being asked to refer to every single jurist, because of the extreme hardship that it may cause, or because in many cases it is simply not possible.

This is what we discussed in the last session. Let us continue with this discussion and see what else can be said. The narrations we are taking into consideration for this discussion are those where the Imams referred individuals or a group of people to someone specific from amongst their companions, like Muḥammad ibn Muslim, or Zakariyyah ibn Ādam. The question here is, wasn’t the Imam more-learned than these companions, and if so, then why did they refer people to their companions?

Sayyid Kho’ī argued that these narrations cannot be used for our discussion, because our discussion is taking place in a scenario where a mukallaf knows that there is a difference of opinion between an a’lam and a non-a’lam jurist. Whereas these narrations are considering a scenario where the companion of an Imam did not have any difference, or at the very least the individuals who are meant to refer to these companions did not know that differences existed.

We say: If it is really the case that when there is a difference of verdicts, it is obligatory to follow the most-learned, and referring to non-a’lam is prohibited – and this is also the presumption of Sayyid Kho’ī – then we will say that for an Imām to refer someone to a non-a’lam is also detested (qabīḥ), even more detested than a mukallaf referring to a non-a’lam when he knows there is a difference. If it were the case that referring to an a’lam was necessary, then the Imam himself should not be referring people to a non-a’lam as this is something very detestable.

In other words, even if we say that it is possible for an Imam to refer a person to a companion while that person is ignorant of any dispute between the companion and the Imam due to their own limitations with respect to reality, or the fact that they have no real affinity with these companions and thus presume that all which Muḥammad bin Muslim says is exactly what the Imam also says – this possibility of an individual being ignorant is valid, but we cannot say that the Imam is also ignorant with respect to disputes between their own companions with themselves. The Imams know that their companions had differences, and therefore know for example, whether the views of companions like Abān bin Taghlib’s or Muḥammad bin Muslim’s are in complete accordance with themselves or not.

If you say that despite the Imam knowing some of their companions had different opinions than themselves, yet still referred people to them, then this will prove the point of those who say you can follow a non-a’lam. If you say that in all the cases an Imam referred people to certain companions, the Imam knew that these companions did not have any difference with the Imam, then this implies that those companions were infallible as far as their jurisprudential verdicts were concerned. Of course, no one agrees with this implication.

Its other implication is that it results in a different understanding regarding the nature of an Imam referral to a jurist. These referrals are not from the category of taqlīd as it is understood in ‘urf. In ‘urf it is understood and known that it is completely normal for a person who others do taqlīd of, is prone to mistakes. The implication here would be that the Imam’s reference to these specific people is of a type where we know these people do not make any mistakes. If this was the case, these narrations would no longer be relevant for our topic of discussion, and this is against our initial presumption where we say these narrations concern the same type of taqlīd as it is understood in ‘urf – a type were a person being done taqlīd of is prone to mistakes.

Someone might say that the Imam knows that there are cases where someone like Muḥammad ibn Muslim differs from them, but that the Imam is not responsible for acting in accordance to their knowledge. We previously mentioned that in cases concerning specific subject-matters, the Imam acts just like someone who is doubtful and ignorant. This is a similar situation: the Imam does not act with his Divinely given knowledge, but is responsible to act in accordance to what is apparent. So, if they give a reference to Muḥammad ibn Muslim, it is in accordance to what is apparently known.

In response to the aforementioned possibility, what we can say in response to that is: generally speaking a person will know that a person who is not an Imam and is not infallible, will differ from an Imam regardless, and is prone to mistakes.

Someone may also justify these traditions by saying, these references by the Imam were given in cases where an individual did not have easy access to an Imam, or it was not possible for them to access an Imam at all.

In response to this we say: if this is really the case, then they should have referred these individuals to the most learned, not that they should tell one person to refer to someone in Qom, another in Kufa and so on. Those being referred to were not all on the same level of knowledge, and thus it shows that the Imam was not concerned about referring people to the most learned. In other words, those who argue for the permissibility of following a non-a’lam, will say that following a non-a’lam is from the practice of the mutasharri’ah (the religious ones). The religious Shi’ī during the time of the Imams were not concerned about doing taqlīd of the most learned, and rather whichever scholar was easier for them to get access to, they would refer to them. In fact, even if they met one of these scholars coincidentally, they would refer to them, ask them questions and then even act upon them.

From this practice of the religious ones, we can also look at the general practice of ‘uqalā’ (rational people within the society), and we will see that people did not follow the most learned as if it was an obligation upon them. They referred to anyone who they considered an expert.

Sayyid Kho’ī critiques this reasoning as well. He says, this once again takes you outside the scope of our initial scenario. He says, did the ‘uqalā’ and mutasharri’ah refer to a’lam and non-a’lam while knowing that there is a difference of opinion amongst them? If you say yes, then we do not agree with this. We do not agree that if the ‘uqalā’ or mutasharri’ah were presented with the option of choosing between two doctors or jurists, that they would go to a non-a’lam, while knowing that there is a difference of opinion amongst them. Yes, if we do not think there is a difference of opinion amongst them, or we do not know of any difference, then people would not have an issue referring to a non-a’lam – but this is not the scenario we are discussing.

Our response to Sayyid Kho’ī is that we must differentiate between two things. At one time, you have specific knowledge (‘ilm tafṣīli) about a difference, and at other times you roughly know there is a difference (‘ilm ijmālī). For example, at one time you know that between two scholars there is a dispute on a specific ruling, but at another time you know that the a’lam and non-a’lam have a difference of opinion, but you don’t know on what specific ruling(s), and to what extent. The point here is that, if we have ‘ilm tafṣīli that there is a difference, then Sayyid Khoeī has a valid argument. However, as for ‘ilm  ijmālī, history is relatively silent on what the mutasharri’ah did in such a scenario, and thus we can’t use it to argue strongly for any position.

But what generally occurs for the muqallidīn is that they roughly know two jurists will differ on a number of issues and will not have the exact same opinion on every single jurisprudential matter. For example, if there is a well-known doctor in your town, and another one just down your street, though you know that there exist differences in their opinions, you will not put yourself through trouble and go out of your way to visit the doctor of your town. You will just visit the doctor down your street. It is in this case where we see that the ‘uqalā’ and the mutasharri’ah will not mind preferring a non-a’lam over an a’lam. However, we can only refer to the practice of the mutasharri’ah if it happened during the time of the Imams, otherwise it is not binding on us.

Nevertheless, in most cases, the muqallidīn are of this type – those who just roughly know that there exist differences between jurists. Based on my historical research, and in particular the history of the Minor Occultation, it is not very clear how the people behaved and what were their exact criteria to refer to scholars, but what can be said for certainty is that the concept of marja’iyyah as it exists today – where one person if followed – did not exist during the time of the Imāms. People either relied on books that they had access to at homes, or they would refer to any scholar they could get access to. Even in the early decades of the occultation, for me it is very clear that such a method did not exist – you cannot prove that during that time there was a group of people who were followers of so and so scholar, and another group of people were followers of another scholar etc. Anyone who has a decent reading of history can affirm this. It was during the end of the 4^th century Hijri and beginning of 5^th century, with the rise of theologians who were also jurists, such as Shaykh al-Mufīd and Shaykh al-Ṭūṣī, that we see some traces of this system developing and getting organized. For example, Shaykh al-Ṭūṣī was seen as a jurisconsult for all Shi’as during his time.

If you look at some of the words of Shaykh al-Ṭūṣī, Shaykh al-Mufīd, or Sayyid al-Murtaḍa, you will see them describing the weak approach to religion by the Ahl al-Ḥadīth, which was the dominant group during the early stages of the occultation of the 12^th Imām. Ijtihād in the meaning it acquired later on, did not exist amongst the earlier Imāmi scholars who were considered Ahl al-Ḥadīth, and their understanding of the narrations was relatively weak. Anyone who had the ability to read books could have become a local scholar for people of their village or town, if they read through works of ḥadīth. Therefore, we cannot use the practice of the religious ones during the time of the Imams to prove the fact that they would refer to the most learned, because mujtahids in the sense we see later on, did not exist. What we perhaps find is that some of the religious folks were more concerned with being precautionary, and others were concerned with other variables such as referring to those who were closer in vicinity to them, to whom they had easier access to. The concept of a’lamiyyah did not seem to have any relevancy for them.

There is not one instance in our works where we find a person attempting to refer to a scholar, but exerts effort to determine who the most-learned of them is. We do not have one instance recorded in our works where a person asks an Imam about the most-learned amongst their companions. Even in the minor occultation when the deputies of the Imam were present, we do not find anyone referring to them asking who the most learned scholar is. If such a practice indeed existed amongst the religious people of the time, we would have definitely seen it reflected in our works.

In conclusion, if we have ‘ilm tafṣīlī on a disputed matter between two experts, we can say that the ‘uqalā’ do not prefer a non-a’lam over an a’lam. However, if we have ‘ilm ijmālī that there exists a dispute, the ‘uqalā’ do not have any such preference. Therefore, some aspects of the critique of Sayyid Kho’ī against those who use this proof (absolute nature of the evidence permitting taqlīd) to establish the permissibility of following a non-a’lam are not valid.

In the next lesson, we will begin looking at the evidence for those who say it is obligatory to do taqlīd of the most-learned.