The Principle of Ijtihad in Islam

Footnotes

1. Tehran, 1962.

2. Lambton, A.K.S., 'A reconsideration of the position of the marja` taqlid and the religious institution., Studia Islamica, XX (1964), 115­135. (See also, al­Serat, Vol Vll, No. 1 (1981), p. 12­27)

3. For further information on these two persons, refer to the section by Yann Richard on 'Contemporary Shi`i Thought' in: Keddie, N.R., Roots of Revolution: an Interpretative History of Modern Iran, New Haven,

5. See the author's introduction to the new edition of: Mutahhari, M., "llal­Girayish bi Maddigari' Qum, 1980, pp. 8­9.

6. The collection of orations, homilies and letters of the first Shi`i Imam, `Ali b. Abi Talib, compiled by the Sharif al­Radi (d. 406/1015).

7. For these and many other details of Mutahhari's life and times, reference should be made to the article 'Sayri dar zindigi­yi `ilmi va inqilabi­yi ustad shahid Murtada Mutahhari', in: `Abd al­Karim Surush (ed.), Yadnama­yi Ustad Shahid Murtada Mutahhari, Tehran, 1981, pp. 319­380.

8. It was reopened after the revolution.

9. For a complete list of his published and unpublished works, refer to: `Abd al­Karim Surush, op. cit., 436­556.

10. The translation of Qur'anic verses and hadiths has been made in accordance with the author's own Persian translation except where this is more an interpretation than a translation, in which case a more literal English translation is given.

11. This address was given on 1 Urdibihisht 1340 Sh. (21 April 1961), three weeks after the death of Ayatullah Burujirdi.

12. (Cairo, 1940) The main work in jurisprudence by Abu `Abdillah Muhammad b. Idris al-Shafi`i (150/767 ­ 204/820), the founder of the Shafi`iya legal school. He laid the foundations for the systematic treatment of qiyas.

13. The Sayyid `Abd al­Husayn al­Musawi Sharaf al­Din (1290/1873­4­ 1377/1957­8), born in Kazimayn, educated in Najaf, but subsequently resident mostly in the Lebanon. He is popularly famous for his ''al­Muraja`at'' (Sayda, 1355/1936­7; frequently reprinted), which contains his detailed correspondence with the Egyptian scholar Salim al­Bishri in defense of Shi`ism. His "Al­Nass was l­Ijtihad" was published in Najaf in 1375/1955­6, and has also been reprinted several times. He is also the author of "Abu Hurayra" (Sayda, n.d.), a book about the controversial narrator of hadith.

14. "Al­Kafi fi `Ilm al­Din", (ed `A. A. Ghaffari, 8 vols., Tehran, 1377­9) the first and largest of the Shi`i collections of hadith, compiled by Muhammad b. Ya`qub b. Ishaq al­Razi al-Kulayni (d. 328/939). It contains over 16,000 traditions from the Prophet and the Imams covering all aspects of the usul (the 'roots', mainly theological) and the furu` (the 'branches', mainly preceptual) of the religion.

15. The khabar al­wahid is that kind of tradition which has not reached the status of tawatur, i.e., has not been narrated by so many traditionalists that there is no doubt about its validity. Under certain conditions, such traditions are admissible as proof (hujja) in the derivation of precepts.

16. Abu Ja`far Muhammad b. al­Hasan b. `Ali al­Tusi (385/995 ­ 460/1067), the Shaykh al­Ta'ifa (the Chief [scholar] of the [Shi`a] Sect), author of ''`Uddat al­Usul" (Tehran, 1314).

17. Jamal al­Din Abu `Amr `Uthman b. `Umar b. Abi Bakr b. Yusuf, Ibn al­Hajib (570/1174 ­646/1249), the Maliki legist, author of "Muntaha al­Su'al wa l­Amal fi `ilmay al­Usul wa l­Jada"' which he condensed into his "Mukhtasar al­Usul". Besides al­Iji's commentary on this abridgement, there is also one by the `Allama al­Hilli (see below, note 19), called "Ghayat al­Usul" which he wrote to refute al­Iji's (see: ''al­Dhari`a'', XIV, p.56).

18. Abu Hamid Muhammad al­Tusi al­Ghazali (450/1058 ­ 505/1 111), who followed the Shafi`i madhhab. The full title of his work on jurisprudence is "al­Mustasfa min `ilm al­Usul" (2 vols, Cairo, 1356).

19. The main substantial difference between Shi`i and Sunni ijma` is that the former must contain the opinion of the Imam in the consensus. The discussion of how this can be achieved during the Imam's occultation forms one of the important parts of the science of usul.

20. Jamal al­Din Abu Mansur, Hasan b. Yusuf b. `Ali b. Mutahhar, the `Allama al­Hilli (648/1250 ­ 726/1325), the famous legist, philosopher and mutakallim, author of "Tahdhib Tariq al­ Wusul ila `ilm al­Usul'' (Tehran, 1308).

21. Abu Ja`far, Muhammad b. `Ali b. al­Husayn b. Babawayh al­Qummi (d. 381/991).

22. These are: "al­Kafi" (see note 13); "Man la Yahdurahu l­Faqih " (ed. H. M. Khirsan, 4 vols, Najaf, 1957, by 1958­62), also by al­Tusi.

23. The fourteen "impeccables": i.e., the Prophet, his daughter Fatimat al­Zahra, and the twelve Imams.

24. After the student of fiqh has mastered the necessary sciences, he may, if his teacher considers him to be capable of deriving his own legal opinions, receive a certificate authorizing him to do so; but he still cannot be followed by others in taqlid. For this to happen, he must rise to the final degree and become a marja` al­taqlid, where other qualities besides just his scholarship, e.g., his piety and conformity to the shari`a, cause him to be respected above other mujtahids, and thus to become a source of certainty to his muqallids that in following him they will not deviate from the shari`a.

25. This is a question of certainty (qat`, yaqin): the evidence for the existence of a precept must be such as to leave no room for any kind of doubt in the mind of the person who models his behaviour according to it; in the case of proofs concerning sensory evidence, the very data themselves are only probablistic, so no proof employing them can arrive at demonstrable certainty. Therefore, in such a proof, other probabalistic elements such as `aql are admissible, but these cannot be used to derive the precepts of the shari`a.

26. Muhammad Baqir b. Muhammad al­Bihbihani (1116­8/1704­7 ­ 1208/1793­4).

27. The Shaykh Murtada b. Muhammad Amin b. Shams al­Din b. Ahmad b. Nur al­Din b. Muhammad Sadiq al­Shushtari al­Dizfuli al­Ansari (1214/1799 ­ 1281/1864), whose "Rasa'il", on usul al­fiqh were published as "Fara'id al­Usul''(Tehran, 1296). His works in usul and fiqh now form the backbone of the present­day teaching of these subjects.

28. One of the `atabat, the Shi`i sacred towns in Iraq, the site of the battle where the third Imam, al­Husayn, and his followers were massacred on 10 Muharram 61/680. It is about 95 kms. S.S.W. of Baghdad.

29. The Shaykh Yusuf b. Ahmad al­Bahrani (d. 1186/1772), author of ''al­Hada`iq al­Nadira Ahkam al­`Itra al­Tahira" (ed. M.T. al­Irwani, 20 vols., Najaf, 1377­ ).

30. a) Ja`far b. Khidr b. Yahya al­Najafi (1164/751 ­ 1227/1812), known as "Kashif al­Ghita `an Mubhamat al­Shari`a al­Gharra" (Tehran, 1271). b) The Sayyid Muhammad Mahdi b. Murtada b. Muhammad b. ` Abd al­Karim al­Hasani al­Husayni (1154­5/1741­2 ­ 1212/1797), known as the Sayyid Bahr al­`Ulum. c) The Sayyid Muhammad Mahdi al­Shahrastani al­Ha'iri b. Abi'l­Qasim al­Musawi (d. 1216/1801).

31. Muhammad Baqir b. Muhammad Taqi b. Maqsud `Ali al­Majlisi al­Isfahani (1037/1627 ­ 1111/1700), compiler of the encyclopaedic collection of Shi`i hadith, "Bihar al­A nwar" (110 vols, Tehran, 1376­ [vol. VIII, Tehran, 1304])

32. The Sayyid Ni`mat Allah b. `Abdillah b. Muhammad al­Musawi al­Jaza'iri (d. 1112/1700), a pupil of the `Allama al­Majlisi (see previous note).

33. Muhammad b. Murtada b. Mahmud Muhsin al­Kashani (d. 1091/1680).

34. It is to be understood that tawatur is a proof of certainty according to the science of usul al-fiqh, and that it has been so established independently of textual proofs. This rational view was challenged by the Akhbaris precisely because of the lack of textual backing.

35. Protecting the nafs, the soul, the greater, moral jihad, as opposed to the lesser jihad of protecting Islam against the external enemy.

36. One kurr of water is approximately 377 litres. In religious law if an amount less than this comes into contact with a religiously impure thing, the water too becomes impure, whereas above this amount the purity is not endangered.

37. `Abd Salih, the "Righteous Servant". For this story see the sura of "al­Kahf', 60 ­ 82.

38. Since he obviously refrains from such activities.

39. According to a commonly accepted ruling, this applies only to those matters which the muqallid formerly performed according to the fatawa of the subsequently deceased marja` al-taqlid. If any new matter arises for him, he must follow the fatwa of a living, `adil mujtahid

40. Two principles (usul `amalia) for the preponderance of one opinion over another in fiqh. If one opinion is chosen over another `ala l­aqwa, it is chosen because the proof for it is thought to be stronger; if it chosen `ala l­ahwat, it is because of the principle of precaution (ihtiyat) which requires that what is least likely to be at variance with the shari`a should be adopted. It will be appreciated that there may be a good deal of rather trivial argument as to whether one or the other of the two opinions should be chosen, according to which of these two principles is preferred.

41. a) for "Fara'id al­ Usul", see above, note 26. b) "Kitab al­Makasib", also by the Shaykh al­Ansari, an extensive exposition of the section in fiqh on transactions. c) "Kifayat al­Usul" (2 vols, Tehran, n.d.) by "Akhund" Mulla Muhammad Kazim al­Khurasani (d. 1329/1911), a systematic text on usul al­fiqh.

42. After the student (talaba, lit. 'seeker') has completed his reading of the main texts and mastered the necessary preliminary sciences, he may continue to the more detailed, but also more specialised, courses given by the main teachers of the subjects concerned. These lessons, the dars­i kharij, are kharij to (outside, beyond) the texts, and the teacher will expound his own opinions, thus teaching the actual practice of ijtihad. The teacher will be able to assess the abilities of his pupils in these classes, and, in the case of fiqh, may subsequently award a certificate of ijtihad to those he considers to have mastered all the required skills and to be consequently in a position to employ them to arrive at their own legal opinions (see also above, note 23).

43. a) "Wasa'il al­Shi`a" (ed. `A. al­Rabbani M. al­Razi, 20 vols, Tehran, 1376 ­1389), by the Shaykh Muhammad b. al­Hasan al­Hurr al­`Amili (d. 1104/1693); the most comprehensive collection of hadith relevant to fiqh, arranged according to subject matter. b) "Jawahir al­Kalam" (ed. `A. Quchani et al., 43 vols, Najaf-Qum-Tehran, 1377­1401), by the Shaykh Muhammad Hasan b. Baqir al­Najafi (d. 1266/1849); an extensive commentary on the "Sharayi` al­Islam" by the Muhaqqiq al­Hilli (602/1202 ­ 676/1277). 43. The Shaykh `Abd al­Karim b. Muhammad Ja`far al­Mirjirdi al­Yazdi al­Hairi (1276/1859­60 ­ 1355/1937), whose move from Arak to Qum in 1920 began the modern history of that city as a centre of Shi`i learning.

44. The Sayyid Ahmad al­Husayni al­Zanjani (1308/1890 ­ 1393/1973), a Qummi scholar. His "al­Kalam Yajurru l­Kalam" (3 vols, Tehran, 1363/1944) is a compendium of historical, literary, biographical and hadith information.

45. By the Shaykh al­Ansari.

46. "Al­Mufradat fi Gharib al­Qur'an'', (ed. M. S. al­Kilani, Cairo, 1961), by Abu l­Qasim al­Husayn b. Muhammad b. al­Mafdal al­Isfahani (d. 502/1108­9), a famous lexicon of obscure meanings in the Qur'an.