How the faqih's outlook on the world affects the legal opinions he issues
The work of a faqih and mujtahid is the deduction and derivation of the precepts [of the shari'a]; but his knowledge and understanding of all things, in other words, his world-view, has a great influence on the decisions he makes. The faqih must have all the information on matters upon which he is going to issue a fatwa. If we imagine a faqih who is always sitting in the corner of his house or his madrasa, and compare him with a faqih who is conversant with the currents of life, both of them refer back to the valid proofs of the shari'a, but each one of them will derive his legal rulings in a particular way, using a particular method.
Let me give an example. Suppose that someone who grew up in Tehran, or in a big town like Tehran, where running water is in plentiful supply and there are reservoirs and tanks and gutters, becomes a faqih and wishes to issue a fatwa concerning the precepts about what is pure and what is impure. When he refers to the hadiths on purity and impurity, such a person will, owing to his own previous experience, make a deduction in a way which will be extremely circumspect and will necessitate the avoidance of many things. But the same person, once he has been to the House of God [the Ka'aba] and seen the conditions of purity and impurity and the lack of water in that place, will find himself changing his outlook regarding the subject of purity and impurity. After such a journey, if he consults the hadiths on this matter, he will see them in a different light.
If someone compares the fatwas of the fuqaha' with each other, and then pays attention to the individual circumstances and each of these scholars' ways of thinking about living problems, he will see how the mental environment of a faqih and the information he has concerning the outside world influence his legal rulings in such a way that the legal rulings of an Arab faqih have an Arabic flavour, those of an Iranian have an Iranian flavour, and those of a country-dweller have a rustic flavour as opposed to the urban feel of those of a city-dweller. This religion is the final religion; it is not exclusive to a particular time or place; it is relevant to all times and places. It is a religion which came to establish order and progress in the life of man, so how could a faqih who is uninformed of the natural arrangement and movement of things and who does not believe in a progression towards perfection in life, deduce the high and truly progressive laws of this upright (hanif) religion in a way which is in perfect accordance with the truth? For this religion came to give order to this natural arrangement, movement and development, and it guarantees its guidance.
The understanding of necessities
At the present time, we have some cases in our fiqh where our fuqaha' have given a definite ruling on the requirement of something only because they have seen the necessity and importance of the matter. In other words, since there is no transmitted evidence from the verses of the Qur'an or from hadith which is explicit and sufficient, and since there is also no valid consensus in the matter, they have used the fourth basic principle of derivation, i.e., the principle of independent reasoning ('aql). In this kind of instance, the fuqaha' become certain that the command of God in such and-such a case is such-and-such, because of the importance of the matter and their knowledge of the spirit of Islam which leaves no important matter in abeyance. For example, in the case of the legal ruling given by the fuqaha' concerning the guardianship (wilaya) of the ruler and the subsidiary problems connected with it, if the importance of this matter had not been realised, no legal rulings would have been issued. The fuqaha' have only issued them to the extent which they understand to be necessary. Other instances similar to this can be found where the reason that a legal ruling has not been given is the fact that the importance and necessity of the matter has not been fully realised.
An important recommendation
Here I have a recommendation which could be most useful for the advancement and development of our fiqh. It was previously put forward by the late Shaykh 'Abd al-Karim al-Yazdi
43, and I am here only reiterating his proposal. He asked what it was that required people to follow only one person in taqlid in all matters. Would it not be better if specialised divisions were established in fiqh? That is to say, there would be groups who, after having completed the general study of fiqh and become experts in it, would specialise in one particular section, and then people would follow them in that particular section. For example, some would take as their specialisation 'ibadat (the rites of Islam), and others mu'amilat (transactions), some siyasat (politics), and other ahkam (criminal law); this is exactly what has been done in medicine where specialised branches have been created, and doctors divided into groups for each speciality, some being heart specialists, some eye specialists, some ear, nose and throat specialists, and others specialists in other branches. If this were done, each person could study his own branch more thoroughly. I believe that there is a discussion of this matter in the book "al-Kalam Yajurru l-Kalam" by the Sayyid Ahmad al-Zanjani.
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This recommendation is a very good one, and I will add only that the need to divide fiqh up and to create specialised branches arose a hundred years ago, and in present circumstances the fuqaha of today will impede the forward development of fiqh and stunt its growth unless they heed this recommendation.
The division of the sciences into specialised branches
The division of the sciences is the result of their development, but also its cause. For a science gradually progresses until it reaches the point where it is no longer possible for a single person to investigate all the problems it raises. It must then necessarily be divided up into branches of specialisation. Thus the division of a science and the creation of branches within it is the result and the effect of the development of that science, while, at the same time, more progress is made when these branches are created, and thought can be concentrated on the special problems in each branch.
In all the world's sciences - medicine, mathematics, law, literature and philosophy - branches of specialisation have been created, and for that very reason progress has been accelerated in each of these branches.
The progress made in fiqh during the last thousand years
There was a time when fiqh was a very limited science. When we refer back to the texts before the time of the Shaykh al-Tusi, we see how restricted it was. By writing his "al-Mabsut", al-Tusi took fiqh into new realms and enlarged its scope, and in the course of time, as a result of the efforts of the 'ulama' and fuqaha, and because of the creation of new problems and the initiation of new investigations to answer them, fiqh progressed even further, to the point where, about a hundred years ago, when the author of the "Jawahir" wrote his complete compendium of fiqh, he was only just able to finish it. It is said that he started his task when he was about twenty years old, and that, thanks to his extraordinary genius, continual work and a long life, he was able to write the last pages right at the very end of his life. The "Jawahir" was printed in six very bulky [lithographed] volumes, while the whole of al-Tusi's "al-Mabsut", which was in his time the example of a comprehensive work on fiqh, is probably less than half of one of these six volumes. After the author of the "Jawahir" died, the foundations of a new fiqh were laid by the Shaykh Murtada al-Ansari, and the epitome of this new fiqh was that great man's "al-Makasib" and "al-Tahara".
45 Since his time, no-one could even conceive of teaching a complete cycle of fiqh with such thorough explanation and research.
At the present time, after this advance in the development of our fiqh, which occurred in the same way as similar advances in other sciences all over the world, and which has been the result of the efforts of the 'ulama' and fuqaha' of the past, the scholars of today will find themselves faced with the choice of either curbing any further progress in fiqh or putting this sensible and progressive recommendation into practice and creating branches of specialization, as a result of which people will come to discriminate in their taqlid, in the same way as they discriminate in referring to a doctor.
A council of fuqaha'
There is another recommendation which I wish to make, and the more fully I explain what I have in mind the better it will be. At the present time, when branches of specialization exist in every science, resulting in breathtaking advances in these sciences, there is another practice which, in its turn, has acted as a contributing factor, and this is practical and theoretical cooperation between first rank scientists and specialists in all the branches of science. Now, solitary theorising or experiment no longer has any value, nothing is to be achieved from going one's own way. In every branch, scholars and scientists are constantly engaged in exchanging ideas; they put the results of their thinking at the disposal of other specialists, and the scientists of one continent cooperate with those of another. The result of this theoretical and experimental cooperation between first rank scientists is that if a useful and valid theory is put forward, it can be published and establish itself more quickly, whereas, if a theory is weak, its failing can be discovered and it can be eliminated sooner, so that in the future the pupils of the authorities who developed these theories will be saved from these errors.
Unfortunately, we still have not created any division of labour or specialization among ourselves, no practical or theoretical cooperation, and it is clear that as long as this is delayed, progress and the solution of difficulties cannot be achieved. There is no need for a proof of the need for scientific cooperation and the exchange of ideas since it is so self-evident, but so that it may not be doubted, I shall show, by quotations from the Qur'an and "Nahj al-Balagha ", that this recommendation, this progressive order, is to be found within Islam itself. In the Qur'an, in the sura called al-Shura (Counsel), it is said :
And those who answer their Lord, and perform the prayer, their affair being counsel between them, and expend of that We have provided them with. (42:38)
This verse describes the true believers and followers of Islam in this way: they reply to the call of God, they establish prayer, they do their work in consultation with each other, and they dispose of that which God has bestowed on them. So, in the view of Islam, consultation and the exchange of ideas is one of the basic principles of life for people of faith, the true followers of Islam.
In "Nahj al-Balaqha" it is said : Know that a group of the slaves of Allah with whom knowledge of Allah was entrusted keep His secret; they cause His springs to flow (i.e., they open the springs of knowledge for the people), they have friendly relations with one another and feelings of affection, they meet each other with warmth and cheerfulness and love, they quench each other's thirst from the cup of their acquired knowledge, and they emerge with their thirsts quenched. If scientific consultation were to come into existence in the science of fiqh, and the principle of the exchange of ideas were to be thoroughly practiced, many of the differences between legal opinions would be resolved, quite apart from the advances that would be made in the science as such. There is no alternative: if we maintain that our fiqh is also one of the world's genuine sciences, we must make use of the methods used in the other sciences. If we do not, the result will be that it will no longer be considered a science.
I have other useful and urgent recommendations, but my time is running out and I cannot mention them now, for it would take almost another three quarters of an hour, and I know that some people have a long way to go to reach their homes. The verse of the Qur'an which I quoted at the beginning was :
It is not for the believers to go forth all together; but why should not a party of every section of them go forth, to become learned (yatafaqqahu) in the religion, and to warn their people when they return to them, that they may beware. (19:122)
This verse explicitly instructs that a group of the Muslims should study (tafaqquh) their religion and let others benefit from what they have studied. Tafaqquh is from the root f-q-h. The meaning of fiqh is not mere understanding: rather, it is deep understanding of, and perfect insight into, the truth of something. In his "Mufradat", Raghib
46, says : Fiqh is the reaching for hidden knowledge by means of manifest knowledge. Taffaquh is defined as : Going after something and becoming expert in it. This verse is addressed to Muslims whose understanding of Islam is not superficial, telling them to think deeply and discover the meaning and the spirit of the rules of Islam. This verse is the evidence for ijtihad and the study of fiqh, and it is also the evidence for our recommendations. Just as this verse lays the foundation for ijtihad and tafaqquh in Islam, so also it advocates that these two things should be more widely practiced. More attention should be paid to what is required, the 'ulama' should start to sit in fiqh counsels, the individualistic approach should be discouraged, and branches of specialization should be created, so that our fiqh may continue on its path of perfection.
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43. The Shaykh 'Abd al-Karim b. Muhammad Ja'far al-Mirjirdi al-Yazdi al-Hairi (1276/1859-60 - 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 al-Husayni al-Zanjani (1308/1890 - 1393/1973), a Qummi scholar. His "al-Kalam Yajurru l-Kalam" (3 vols, Tehran, 1363/1944) is a compendium of historical, literary, biographical and hadith information.
45. By the Shaykh al-Ansari.
46. "Al-Mufradat fi Gharib al-Qur'an", (ed. M. S. al-Kilani, Cairo, 1961), by Abu l-Qasim al-Husayn b. Muhammad b. al-Mafdal al-Isfahani (d. 502/1108-9), a famous lexicon of obscure meanings in the Qur'an.
