Reading Level: Intermediate

The following is a translation of a section of a lesson from Ay. Shahidīpour’s advanced jurisprudence classes (link here). In this discussion Shahidīpour touches on the difference of opinion that exists on whether or not the layman is able to apply asālat al-barā’a (hereby referred to as the “principle of innocence”)¹ in the absence of reliable legal edicts. He ends up defending the position of Syed Sistānī and Shaykh Tabrīzi (d. 2006) who argue that it is allowed.

There exists a discussion amongst the scholars of legal theory on whether or not the probative nature of the indicators (amārāt) and procedural principles (usūl al-amaliya) is restricted exclusively to the mujtahid, or whether it includes the layman as well. For more background reading on this topic one can refer to the advanced legal theory classes of Shaykh Jawād Lankarāni here.

Translation

Our discussion was in respect to shaving the beard and we concluded that the evidence available to consider this impermissible is insufficient. That being said, to avoid breaking what is considered a consensus and out of respect for contemporary religious practice we will pass the verdict of precaution, just as many great scholars have done so.

From this another discussion arises which is in the instance that all the jurists, whose verdicts are legally binding, rule on precaution, or no jurist gives a ruling of impermissibility or permissibility, or one jurist says it is impermissible and another says it is permissible and these two verdicts contradict [and undermine] each other, is it allowed [in this hypothetical scenario] for the layman to apply the principle of innocence and shave his beard?

Shaykh Tabrīzi and Syed Sistānī both said yes. If a reliable verdict of impermissibility could not be found, then after investigation (fahs) the layman is considered an instance of the tradition which stipulates “lifted from them is [the obligation] that they don’t know”. The application of the principle of innocence is dependant upon the individual investigating to his utmost ability [for the ruling] and then reaching a state of despair of finding it. The type of investigation that a person is legally required to undertake is in relation to his ability. So in the instance of a mujtahid, his type of investigation would involve reading the books of traditions, and in the instance of the layman, it would be looking up the verdicts available to him.

In the tradition of Mus’ada ibn. Ziyād it says “a person shall be brought on the day of Judgement and asked: Did you perform [your obligations]? He will respond: I did not know. Then it will be said to him: Why did you not learn so that you may have performed [them]?”. In this tradition it is clear to see the person is being condemned on his failure to learn [so that he may have acted on his religious obligations]. However in this tradition is the person being condemned for not referring to the books of traditions or is he being condemned for not referring to the available religious edicts? The obligation of learning in respect of the layman is in him learning the religious edicts, when he becomes incapable of that due to the absence of reliable edicts [such as] on the issue of shaving the beard he will then become an instance of lifted from them is [the obligation] that they don’t know. The layman doesn’t know how to act on this issue and the mujtahid tells him [in this instance] that he is allowed to apply the principle of innocence so long as he is unable to find a edict of impermissibility. The mujtahid passes the ruling that a layman can apply the principle of innocence in the situation where he is unable to find a reliable edict, and the layman then applies this principle where it is applicable.

Sāhib al-‘Urwa in his discussions on ijtihād and taqlīd says that it is not allowed for a layman to apply the principle of innocence. Syed Khoie also accepted this. Why? The reasoning for this opinion is that learning isn’t obligatory in and of itself (wājib nafsī) rather it is an instrumental obligation (wājib tarīqī), and on this basis a person cannot apply the principle of innocence when the possibility of learning is there. The layman still has the potential to learn the religious rulings from the traditions, it’s only because he hasn’t been trained [in the method of derivation] that we say he doesn’t have the ability to learn. It’s similar to a mujtahid saying that I don’t have access to the right amount of books, or if he is travelling he won’t have books available to him [to look up traditions on a specific matter]. In this circumstance can we say that the jurist can apply the principle of innocence? No, he can’t, because he still has the potential to derive the right ruling, it’s only that his current situation has prevented him from doing so. The layman also has the potential to learn the religious learnings if he studied, just because he currently lacks the ability doesn’t mean he can apply the principle of innocence.

Honestly speaking this is quite a strong critique [against those who think the layman can apply this principle]. If the evidence for the permissibility was limited to just the tradition where it is said why didn’t you learn you could argue that this tradition can’t be condemning the layman for not going and learning how to be a mujtahid as becoming a mujtahid isn’t something that everyone is required to do. However we have other traditions that say prior to learning a person should adopt precaution. For example, “take care and act with precaution until you ask and find out [about the ruling]” or “seeking knowledge is an obligation on every Muslim”. Someone could take this issue with the view of Syed Sistānī and Shaykh Tabrīzī…in addition it could be claimed that the tradition “lifted from them is [the obligation] that they don’t know” does not include instances of uncertainty in respect to the law prior to investigation (shubuhāt al-hukmiyya qabla al-fahs). This is the argument put forward by those who don’t accept that the layman can apply the principle of innocence.

That being said I want to defend the first opinion [of it being permissible]. It’s possible those that support this position, like Syed Sistānī and Shaykh Tabrīzī, would argue that the principle of innocence can only be applied by the layman after they have exhausted their efforts in finding a reliable edict. However my defence is slightly different [as I will focus on the traditions that are being used to refute this position]. I accept the tradition that says “seeking knowledge is an obligation on every Muslim”, yet how can you interpret this tradition to assert that seeking ijtihād is an obligation [on every Muslim]? Or is the scope of “seeking knowledge” beyond merely just ijtihād [as I posit]?  The layman is unable to emulate a jurist since he can’t find an edict, however this tradition doesn’t then mean it is obligatory [in this situation] for the layman to now go and do ijtihād. The prima facie (dhuhūr) of this tradition does not necessitate that the layman has an absolute imperative (wajib al-aynī) to go and become a mujtahid, (which by doing so would then invalidate the application of the principle of innocence). The understanding of “seeking knowledge” refers to the concept that people should go seek knowledge, not that prior to seeking knowledge the principle of innocence is invalid. This is a separate discussion. The literal meaning of this tradition is that it is trying to motivate people to go and learn. [Are you really suggesting that] this tradition is telling everyone to go and gain ijtihād? This understanding contradicts its prima facie understanding and contradicts how religious people have understood this tradition.

As for the tradition “Why did you not learn so that you may have performed [them]?”, it was argued that the literal understanding of this is if the potential for learning [ie. Ijtihād] is there then a person should not apply the principle of innocence. While this isn’t quite clear it’s fair to say this tradition is rebuking the layman on not learning [i.e. not learning ijtihād] . However [my response] is that the layman is not being rebuked for not gaining ijtihād but rather for not finding a reliable edict, yet as we said, in this scenario there is no reliable edict available. Again, on the tradition of “seeking knowledge”, the prima facie understanding isn’t that the layman needs to go and become a mujtahid or act on precaution because there is no edict available. As if the tradition is telling the layman to go and buy Wasā’il al-Shī’a! Look properly at the direct meaning of this tradition and see if [your understanding] is correct or not. The direct meaning of this tradition has nothing to do with the principle of innocence. It is the implied meaning that the principle of innocence should not be applied where it is possible for a person to gain knowledge [of the edicts].

This tradition is saying, people! Go and gain knowledge! Now this knowledge can be gained either via ijtihad or emulation (taqlīd). Is the common understanding of this tradition, that it isn’t necessary to become a mujtahid and being a muqallid suffices, and in the event of not finding an edict (either because the edicts amongst the jurists are contradictory, one saying it is halāl to shave the beard, another saying it is harām), it should be said to him “since you have the possibility [no matter how unreasonable or far-fetched it may be] to become a mujtahid you don’t have the right to apply the principle of innocence”? In all honesty this type of reasoning is gravely problematic. In our more extensive discussions on this topic in Ijtihād and Taqlīd I have tried to argue for a solution to this via a combination of either taqlid, ijtihād and precaution. Where a person can’t become a mujtahid then they should do taqlid, and where they can’t find an edict to follow, they should take precaution, however that being said I’m not completely convinced on my solution and on this basis the opinion of Syed Sistānī and Shaykh Tabrīzi is worthy of defending.

[Question…Answer:] Gaining ijtihād is obligatory only on a few, it isn’t obligatory on everyone. Our discussion is not on whether or not people should become jurists, it’s about a situation where jurists have different opinions, one jurist says shaving the beard is harām, the other says it isn’t, or all of the jurists have given obligatory precaution and not given any edicts. In this situation are we really telling the layman that they can’t apply the principle of innocence? If so, why? Because the Prophet said “seeking knowledge is an obligation on every Muslim”’? Does the average person really understand this argument from the tradition? Does the layman think that the principle of innocence is dependant only on exhausting every avenue to search knowledge even if he has to become a mujtahid in the process?

Comparing a layman to a mujtahid who temporarily doesn’t have books with him isn’t correct. Yes while the mujtahid does not have his books he can’t apply the principle of innocence, the mujtahid can’t say because I don’t have my books [I’m going to ignore what is potentially there in the books and] I will apply the principle of innocence. It’s like a layman arguing that since he doesn’t have his jurist’s book of laws (risālat al-amaliyya) he will apply the principle of innocence. These examples are incorrect and I accept that it is not allowed in these scenarios to apply the principle of innocence. However, the situation I am referring to is where the layman has put the effort in, he hasn’t cut corners or been negligent in his duty, the jurist isn’t giving an edict, or the jurists differ in opinion, what should the layman then do? Is it reasonable to argue with him using the tradition of “seeking knowledge” and tell him since you still have the possibility of becoming a mujtahid you can’t apply the principle of innocence? Is this what the tradition wants to tell us? This kind of reasoning is problematic.

[Question…Answer:] I accept that the maxim “lifted from them is [the obligation] that they don’t know” does not include instances of uncertainty in respect to the law prior to investigation (shubuhāt al-hukmiyya qabla al-fahs). However this exclusion isn’t that vast that it also negates the layman in our scenario from this maxim.

To explain it in more detail, let’s look at the tradition “take care and act with precaution until you ask and find out [about the ruling]”. It’s not clear whether this tradition is talking about being precautious in a person’s individual actions [or being precautious in giving rulings]. The tradition is authentic. A companion says it was asked from them about two people who went hunting whilst wearing ihram, is it required for both of these invidiuals to pay kafāra independently or can they do it collectively [and pay once]. The companions didn’t know the answer and the Imam tells them “in the instance where you are asked about something like this [where you don’t know] then take precaution…”. It seems that the Imam is telling the companion that when it comes to giving the edict for something be careful. On this basis I would be inclined to say this tradition has nothing to do with a person’s own action but rather to do with giving edicts.

That being said I would conclude that it isn’t far-fetched to argue in favour of Syed Sistānī’s opinion being correct on this. Even though this would be slightly different to what I have argued to differently in my discussions in Ijtihād and Taqlīd.  The maxim of “lifted from them is [the obligation] that they don’t know” does not exclude the layman in our scenario. The traditions presented to prove the obligation of learning [i.e becoming a mujtahid] is normally one of the three traditions we have discussed…[and none of them are complete]…imagine I wanted to find an edict but I wasn’t able to. I went to the jurist in my neighbourhood and asked what I should do. He tells me the maxim “lifted from them is [the obligation] that they don’t know”. The fact that I have tried to find the edict is itself an instance of seeking knowledge. The jurist recognising this will tell the layman that applying the principle of innocence in this scenario is fine.

[Question…Answer:] Our example is where someone wants to apply the principle of innocence. The layman in question is illiterate to the technical details [of ijtihād, usūl, fiqh etc]. It was you scholars who told him to apply the principle! Shaykh Tabrīzi told him to apply the principle! Syed Sistānī told him to apply the principle? If this isn’t an instance of knowledge [or seeking knowledge], then what is?!

[Question…Answer:] In our example all the jurists have said obligatory precaution. Imagine for a moment we all went to Syed Sistāni and Shaykh Tabrīzi and asked him “if a jurist does not give an edict, or their edicts contradict each other, can the layman apply the principle of innocence?” They both respond saying yes. In our question we didn’t ask specifically about the context of shaving the beard, [we’re asking about the principle which can then be applied in numerous instances]. Syed Sistāni and Shaykh Tabrīzi have made it very clear in their discussions in Ijtihād and Taqlīd that there is no problem with the layman applying the principle of innocence. What issue is there in the layman applying the principle after he’s tried to search for a reliable edict? [The argument] that some layman might misuse this to go and do everything that jurists have obligatory precaution on is another discussion. What I’m saying is where a layman is unable to find a reliable edict then if we don’t accept the application of the principle as an instance of seeking knowledge then at the least we shouldn’t make the erroneous argument that the “seeking knowledge” tradition prevents the layman from doing this.

1. For a detailed explanation on what the Principle of Innocence is, refer to “An Introduction to Procedural Principles” by Shaykh Abd al-Hakeem Carney here.