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Taharat » Kurr water → ← Translator’s Preface

Following a Jurist (Taqlīd)

In the name of Allah, the All-Beneficent, the Ever-Merciful.
All praise is for Allah, Lord of the worlds. May there be blessings and peace upon the most noble of the Prophets and Messengers, Muḥammad, and his good and pure progeny. May there be a perpetual curse upon all of their enemies from now until the resurrection on the Day of Retribution.

Ruling 1. A Muslim’s belief in the fundamentals of religion (uṣūl al‑dīn) must be based on personal insight [i.e. grounded in reason], and he cannot follow anyone in the fundamentals of religion; i.e. he cannot accept the word of someone who knows about the fundamentals of religion simply because that person says so. However, in the event that a person has certainty (yaqīn) in the rightful beliefs of Islam and expresses them – even though this certainty may not be based on insight – then that person is a Muslim and a believer and all the laws (aḥkām) of Islam and the faith are applicable to him.
However, in matters concerning the laws of religion – apart from those that are indispensable and indisputable [such as the obligation to perform prayers (ṣalāh)] – a person must either be a jurist (mujtahid)(1) who is capable of ascertaining laws based on proof; or he must follow a mujtahid [i.e. do taqlīd]; or he must exercise precaution (iḥtiyāṭ) by performing his duty in a way that he is certain to have fulfilled his responsibility (taklīf).
An example of exercising precaution [is the following]: if a group of mujtahids consider an act unlawful (ḥarām) and another group say it is not unlawful, the person must not perform that act.
Another example of exercising precaution [is as follows]: if a group of mujtahids consider an act obligatory (wājib) and another group consider it recommended (mustaḥabb), the person must perform it.
Therefore, it is obligatory on those who are not mujtahids and who cannot act on precaution to follow a mujtahid.
Ruling 2. Following a jurist in Islamic laws means acting in accordance with a mujtahid’s instructions. Only a mujtahid who is male, of the age of legal responsibility (bāligh), sane (ʿāqil), a Twelver (Ithnā ʿAsharī) Shia, of legitimate birth, living, and dutiful (ʿādil), can be followed.
A ‘dutiful’ person is someone who does the things that are obligatory on him and refrains from doing the things that are unlawful for him. The sign of being ‘dutiful’ is that one appears to be a good person, such that if [religious, trustworthy Shia Muslims who are] local to him, his neighbours, or associate with him were to be asked about him, they would confirm his good character.
In cases where a person knows, albeit vaguely, that there are differences in the fatwas [as defined in Ruling 4 below] of mujtahids in matters that are commonly encountered, even though he may not know what these differences are, it is necessary for him to follow the mujtahid who is the most learned (aʿlam), i.e. the one most capable of understanding the law (ḥukm) of Allah the Exalted from among all the mujtahids of his time.




Ruling 3. A mujtahid or the most learned can be identified in one of three ways:
1. a duty-bound person (mukallaf)(2) is certain himself [that someone is a mujtahid or the most learned]. For example, the person is a scholar himself and is able to identify a mujtahid and the most learned;
2. two learned and dutiful people who are able to distinguish a mujtahid and the most learned confirm that someone is a mujtahid or the most learned, provided that two other learned and dutiful people do not disagree with their statement. In fact, being a mujtahid or the most learned is also established by even one expert (ahl al‑khibrah) whom one trusts;
3. a mukallaf attains confidence (iṭmiʾnān) that a person is a mujtahid or the most learned by rational means. For example, a group of scholars who are able to distinguish a mujtahid and the most learned and from whose statements one gains confidence, confirm that someone is a mujtahid or the most learned.
Ruling 4. There are four ways to obtain a fatwa, i.e. an edict issued by a mujtahid:
1. hearing it from the mujtahid himself;
2. hearing it from two dutiful people who narrate the mujtahid’s fatwa;
3. hearing it from someone whose word one trusts;
4. reading it in the manual of Islamic rulings (risālah) of the mujtahid, on condition that one has confidence in the manual being correct.
Ruling 5. As long as a person is not certain that the mujtahid’s fatwa has changed, he can act according to what is written in his manual of Islamic rulings. Furthermore, if a person deems it probable that a fatwa has changed, it is not necessary for him to investigate.
Ruling 6. If the most learned mujtahid gives a fatwa on any matter, a follower (muqallid) of his cannot act upon another mujtahid’s fatwa in that matter.
However, if he does not give a fatwa and says that based on precaution, such and such action must be taken – for example, he says: “Based on precaution, in the first and second units (rakʿah) of a prayer, a complete chapter (surah) of the Qur’an must be recited after Sūrat al-Ḥamd” – then the follower must either act in accordance with this precaution, which is known as ‘obligatory precaution’ (al‑iḥtiyāṭ al‑wājib) or ‘necessary precaution’ (al‑iḥtiyāṭ al‑lāzim),(3) or he must act in accordance with the fatwa of the next most learned mujtahid;(4) and if the next most learned mujtahid regards the recitation of only Sūrat al-Ḥamd as being sufficient, he can choose not to recite the other surah.
The same applies [i.e. it amounts to saying that the ruling is based on obligatory precaution] when the most learned mujtahid says the matter is one of ‘deliberation’ (maḥall al‑taʾammul) or ‘problematic’ (maḥall al‑ishkāl).
Ruling 7. If the most learned mujtahid, before or after giving a fatwa on a matter, expresses precaution – for example, he says: “An impure (najis) utensil that is washed once in kurr(5) water becomes pure (ṭāhir), although based on precaution it should be washed three times” – his follower does not have to perform this precautionary measure [but is recommended to]. This is called ‘recommended precaution’ (al‑iḥtiyāṭ al‑mustaḥabb).
Ruling 8. If a mujtahid whom a mukallaf is following [i.e. doing taqlīd of] dies, his authority after his death is the same as his authority when he was alive. Therefore, if he is more learned than a living mujtahid, a mukallaf who has a general notion about there being a difference of opinion between the two mujtahids in rulings (masāʾil) that he commonly encounters, even though he may not know what these differences are, must continue following him. However, in the event that a living mujtahid is more learned than him, he must refer to the living mujtahid.
If it is not known who the most learned among the mujtahids is, or if they are equal [in knowledge], in case it is established that one of them is more cautious than the other – i.e. he exercises more caution in matters pertaining to giving fatwas, deriving legal opinions, and is a person who thoroughly researches and investigates – then that mujtahid must be followed. However, if it is not established which one is more cautious, then the follower has the choice to act according to the fatwa of whichever mujtahid he wants, except in cases of ‘non-specific knowledge’ (al‑ʿilm al‑ijmālī) or the arising of ‘non-specific authority’ (al‑ḥujjah al‑ijmāliyyah) over responsibility. For example, in case there is a difference of opinion with regard to performing the shortened (qaṣr) or complete (tamām) form of the prayer [in a particular situation], he must, based on obligatory precaution, observe the fatwa of both mujtahids.(6)
‘Taqlīd’ simply means an undertaking to follow the fatwa of a particular mujtahid; it does not mean acting in accordance with his instructions(7).
Ruling 9. It is necessary for a mukallaf to learn those rulings that he considers he probably needs to learn in order to avoid sinning. ‘Sinning’ means not performing obligatory acts or performing unlawful acts.
Ruling 10. If a mukallaf comes across a matter for which he does not know the Islamic ruling, it is necessary for him to act with caution or to follow a mujtahid according to the aforementioned conditions. However, in the event that a person does not have access to the fatwa of the most learned mujtahid, it is permitted (jāʾiz) for him to follow the next most learned mujtahid.
Ruling 11. If someone relates a mujtahid’s fatwa to a second person, in the event that the mujtahid’s fatwa changes, it is not necessary for him to inform that second person that the fatwa of the mujtahid has changed. However, if after relating a fatwa a person realises that he has made a mistake and his statement will cause that second person to act against his legal duty, he must, based on obligatory precaution, rectify his mistake if possible.
Ruling 12. If for a period of time a mukallaf performs his actions without following a mujtahid, there are two situations to consider: the first is that his actions were in actual fact correctly performed, or they happened to be in accordance with the fatwa of a mujtahid who at present could be his marjaʿ;(8) in this case, his actions are valid (ṣaḥīḥ). The second is that he was inculpably ignorant (al‑jāhil al‑qāṣir),(9) and his defective actions were not elemental actions (arkān)(10) and suchlike; in this case as well, his actions are valid.
Similarly, [one’s actions are deemed to be valid] if he was culpably ignorant (al‑jāhil al‑muqaṣṣir)(11) and his defective actions were of the type that if performed unknowingly they are valid, such as reciting [Sūrat al-Ḥamd and the second surah in prayers] aloud (jahr) instead of reciting them in a whisper (ikhfāt), or vice versa.(12)
Similarly, if a person does not know how he performed his actions, they are deemed to have been performed correctly, apart from a few cases that are mentioned in Minhāj al-Ṣāliḥīn.(13)

It is worth mentioning that with regard to many of the recommended acts (mustaḥabbāt) mentioned in this manual, their recommendation is based on the ‘principle of leniency in evidence for recommended acts’ (qāʾidat al-tasāmuḥ fī adillat al-sunan).(14) As we do not regard this to be an established principle, if a mukallaf wishes to perform these acts it is necessary he do so ‘rajāʾan’, i.e. in the hope that they are desired by Allah. The rule regarding many disapproved acts (makrūhāt) is the same, meaning that the mukallaf should avoid doing them ‘rajāʾan’, i.e. in the hope that their avoidance is desired by Allah.(15)

(1) A mujtahid is a person who has attained the level of ijtihād, qualifying him to be an authority in Islamic law. Ijtihād is the process of deriving Islamic laws from authentic sources.
(2) A mukallaf is someone who is legally obliged to fulfil religious duties.
(3)To avoid over-complicating the text, and given that ‘al iḥtiyāṭ al wājib’ and ‘al iḥtiyāṭ al lāzim’ refer to the same thing, both terms have been translated in the present work as ‘obligatory precaution’.
(4) In the terminology of Islamic jurisprudence, acting on the fatwa of the next most learned mujtahid when one’s marjaʿ has stated that a ruling is based on obligatory precaution is known as ‘rujūʿ’.
(5) A quantity of water greater or equal to approximately 384 litres. See Ruling 14.
(6)The terms mentioned in this part of the ruling refer to concepts discussed in the Islamic science known as the ‘Principles of Jurisprudence’ (uṣūl al‑fiqh). Although the scope of the present work does not allow for a detailed explanation of these concepts, it would be appropriate to expand a little on the example used in the text concerning ‘non-specific knowledge’. Suppose a person finds himself in a situation where he is certain that he must perform prayers but he does not know whether his duty is to perform prayers in their shortened form – as a traveller would be required to – or in their complete form. This state of knowledge (i.e. the certainty of the general duty to perform prayers) that is accompanied by doubt concerning one’s exact duty (i.e. whether to perform the shortened or the complete form of the prayer) is known as ‘non-specific knowledge’. In this example, the person would need to perform both possibilities – i.e. the shortened and complete forms of the prayer – in order to be certain that he has fulfilled his duty.
As for ‘non-specific authority’ (al‑ḥujjah al‑ijmāliyyah), this is similar to ‘non-specific knowledge’ except that the mukallaf is not certain himself about there being a duty in general but comes to know it though other authoritative evidence that he is obligated to follow. (See Tawḍīḥ al Masāʾil i Jāmiʿ, vol. 1, p. 47, Ruling 12, footnotes 1 and 2.)
(7) Therefore, one is considered to be a muqallid from the time he makes the intention to follow a particular mujtahid, even if he has not yet acted in accordance with that mujtahid’s fatwas.
(8)A marjaʿ is a jurist who has the necessary qualifications to be followed in matters of Islamic jurisprudence (fiqh). See Ruling 2.
(9)‘Inculpably ignorant’ (al‑jāhil al‑qāṣir) is a term used to refer to someone who has a valid excuse for not knowing; for example, he relied upon something that he thought was authoritative but in fact was not.
(10)Arkān is plural of rukn and refers to the elemental components of ritual acts of worship. There are specific rules that govern the validity of ritual acts of worship if a rukn is omitted or added. For example, with regard to prayers, the omission of a rukn renders the prayer invalid (bāṭil). See Ruling 928.
(11)‘Culpably ignorant’ (al‑jāhil al‑muqaṣṣir) is a term used to refer to someone who does not have a valid excuse for not knowing; for example, he was careless in learning religious laws.
(12)See Ruling 981.
(13)Minhāj al‑Ṣāliḥīn is al-Sayyid al-Sistani’s more detailed work on Islamic law.
(14) According to this principle, traditions attributed to an Infallible (maʿṣūm) whose chains of transmission are weak can be relied upon if these traditions state a certain act merits reward and there is no evidence to indicate it is not permitted.
(15) In Islamic jurisprudence, when a jurist declares something ‘mustaḥabb’ or ‘makrūh’, it means that in his or her opinion the action has an established legal status, i.e. it is something that the sharia has legislated as being ‘recommended’ or ‘disapproved’. A jurist will only make such a declaration if he or she is convinced that there is sufficiently strong evidence to support it. If on the other hand the jurist deems the evidence weak but finds no reason to suggest the act should not be performed/avoided, then he or she may say, just as al-Sayyid al-Sistani has done here, that it can still be enacted but with the intention of ‘rajāʾ’ (shorter form of ‘rajāʾ al-maṭlūbiyyah’), i.e. in the hope that it is desired by Allah. In this way, the jurist has not attributed something to the sharia that may not have actually been sanctioned by it, nor has he or she dissuaded their followers from performing/avoiding the action just in case in reality it is something that has been divinely legislated and carries with it abundant blessings and rewards.
Taharat » Kurr water → ← Translator’s Preface
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