(Note: This small article is written in Arabic which contains certain passages using terminology of the principles of Islamic jurisprudence. The English translation may not present what is attempted to express in Arabic, however, the readers may benefit to some degree from the translation also.)

Ejtihad literally means to endeavor and endure for a hard task and according to the terminology of the scholars of the Islamic Seminaries it means to do ones best to achieve a reliable degree of the knowledge of the rules of Islamic Shari'a. In other words, it means the proper level of education that gives one the ability to find the rules of Islamic Shari'a from the accepted sources by means of the use of the established principles presently or within a short time.

The two forms of ljtihad:

(a) Universal ljtihad: The ability to express a scholarly opinion (Fatwa) on the basis of the established principles about all and any of the rules of Islamic Shari'a.

(b) Partial ljtihad: to have the ability of expressing a scholarly opinion about only some of the rules of Islamic Shari'a.

Ones having the ability of ljtihad can be learned and proved through examination, widespread reports that would establish certainty or by the testimony of two just people who have the ability to examine ones ability of having ljtihad. It is not permissible to follow a person whose ability of having ljtihad is not established even though he be one of the scholars of the Islamic Seminaries

It is necessary that a person who issues Fatwas be a scholar, have the ability of ljtihad, a just one in his dealings, a pious one in the matters of the religion of Allah and that he should not be involved very much in the worldly affairs or be greedy about it to achieve worldly positions and property etc. One Hadith says, "Of the scholars of the Islamic Shari'a those who protect and safeguard their souls against committing sins, protect their religion, oppose their desires, obey the commands of their Lord, people should follow their Fatwas."

It is necessary to follow the Fatwas of the most learned Mujtahid (one who has the ability of ljtihad) if possible according to lhtiyat (precaution). It is necessary to search for such a Mujtahid and if two Mujtahids would be equal in leaming or that it is not known which one of them is more learned one would have the choice to follow the Fatwas of either one. If one of the Mujtahids would be more pious and more just then according to lhtiyat it is better to follow the more pious and more just one. If one may just think that one of the two Mujtahids is more learned then he should, according to lhtiyat, follow that one.

From Tahrir Al-Wasilah of Ayatullah Khomini (may Allah bless his soul).

The noble qualities mentioned in the above Hadith are those expected of the high authority in religion who assumes the position of issuing Fatwas and he is expected to lead the Muslims to progress and happiness in this world and in the hereafter.

These qualities are of two kinds:
(a) Achievements in leaming.
(b) Noble moral qualities.

Those mentioned in the above Hadith are of the noble moral qualities and no one of such qualities is achievable without hard work and serious efforts. In fact, the achievements of such abilities require what is termed by the holy Prophet as the major Jihad (endeavoring, no matter how much would be the hardships, for a noble cause).

It is not possible to present a full account of the positive effects of such qualities in the task of the leadership of the Ummah within few lines. Such an account would require extensive research and studies.

As far as the leaming achievements are concerned, what is mentioned in the Fatwas of the late Imam Khominie points to the significance of knowledge in men in general and in the person of the high authority in religion in particular.

Some scholars believe that it is necessary to follow only the Fatwas of the most learned Mujtahid if the Fatwas of the Mujtahids of ones time are conflicting.

Other scholars believe that even in such a case following the Fatwas of the most learned Mujtahid is not necessary.

Before we would study the idea of 'being the most teamed Mujtahid' to see if it is necessary for the highest religious authority to have it or not, we should examine the following two cases first, even though they may not be part of the subject in the restricted sense but their practical effects in the idea of following the most learned scholar and their being a driving force to follow the most learned Mujtahid is quite obvious, regardless, there is enough reason to prove it necessary to follow the most learned Mujtahid or not.

(1) In normal life it seems that people believe in a co-relative relationship between the opinions of the most learned, let us say, an engineer or a physician and the natural facts about which they express an opinion or report. People prefer the opinions of such engineers or physicians to benefit the most and to the highest degree although a hundred percent revelation of the natural fact is never guaranteed. Preference for the most learned is only considered better but not the only alternative and the only way.

People perhaps consider the case of the Fatwas the same as the opinions of the most learned engineer or physician, because they are not aware of the fact that the case in the Fatwas are different.

In the case of the Fatwas there is no proof to guarantee that the Fatwas of the most learned Mujtahid shows the exact reality or is closer to the reality in comparison with the Fatwas of less learned Mujtahid.

People are not aware of the nature of how proof supporting ones opinion about a certain rule of Shari'a is formulated and how, in what way and manner the validity of such proof and authoritative principles are justified and that whether the nature of the sources of the rules of the Islamic Shari'a are of the revealing nature or that their validity is justified by some other technical manners known and understood by the scholars of shari'a only.

Not knowing all of these, people consider following the Fatwas of the most learned Mujtahid unquestionably necessary, while in fact, after a very little study it becomes evident that the idea 'most learned' is debatable and controversial.

Some scholars believe that it is necessary to follow the Fatwas of the most learned Mujtahid.

Other scholars believe that it is not necessary, perhaps, because this idea has no practical effect and benefit in the matters of Fatwas. The Imam (peace be upon him) has given authority to the Fatwas of a Mujtahid and there is no mention of the idea of 'most learned' in the Ahadith.

(2) The second case is the Fatwas of the scholars that say it is necessary absolutely or relatively to follow the Fatwas of the most learned Mujtahid, in the case of the existence of conflicts among the Fatwas of the Mujtahids.

The reason for this is perhaps one of the two following matters:

(1) The 'most learned' is taken as an approved priority in favor of the Fatwa which has it.

(2) Perhaps it is simply because of the fact that every Mujtahid believes in himself to be the most learned one.

(a) There is no question that 'most learned' is not one of the reasons that gives priority and preference'to one of the conflicting Fatwas according to the Ahadith of the Imams (peace be upon them). If 'most learned' would be considered a priority and preference it is because of 'Usul not because of Hadith as maintained by the author of Kifayatul usul and late Ayatullah Al-khoee and other scholars.

(b) The 'most learned' does not cause the Fatwa to become closer to the reality or to exactly show the reality, thus its ability to provide preference becomes doubtftil and the doubtful preference is not a preference according to the established principles, therefore, the Fatwas to follow the most learned Mujtahid is because of the belief of the Mujtahids in their own selves as being the most learned ones.

Of the Ahadith that deal with conflicting sources of the rules of Shari'a :

(1) Some of them say that in the case of a conflict among the sources of the rules of Shari'a one has the choice to follow either one. This is the position of Al-Kulayni, the author of Kifayatul 'usul and some other scholars.

(2) Abstaining and leaving the answer for the Imam (peace be upon him).

(3) Settling the case by means of the priorities and preferences mentioned in the Ahadith which deal with the conflicting sources of the rules of Shari'a.

Of the Adith that deal with such cases one is the report by Ibn Hanzalah who has said, " I asked Abu Abdullah (peace be upon him), " two of our people dispute over some loan or inheritance and go to the king or his judges for a decision. Is this permissible? The Imam said, "Whoever, goes to such judges for judgement for a rightful or wrong reason, such people have sought judgement from Devil and Satan which is prohibited by Allah and whatever benefits one may receive through such judgements is unlawful even if it would be ones own already established rights, because it is received through the judgement of Devil and Satan that Allah has commanded to be rejected.

"They seek the judgement of Taghut, the Devil when they are commanded to reject it." ch 4. v. 60.

I asked the Imam, " Then what should they do, they have disputes? The Imam Said, "They must find from among you one who narrates our Hadith, who has studied what we say lawful and what we say unlawful and has learned our laws such a person must be made the judge because I have given him the authority to be the judge for you and when he gives a decision and it is not accepted it will be an insult of the laws of Allah and rejection of us and those who reject us it is a rejection of Allah and this is like considering other things as gods besides Allah.

I then said, " If each one of the disputing parties appoint a scholar as judge and the two judges would give conflicting rules then what should they do?

The Imam said, "The decision will be made by the words of the more just, more thoughtful, more truthful in narrating our Hadith, or the more pious of them and the decision of the other one will not be paid any attention to.

I then said, "how if both of them are just people and people like them and they are equal in all manners?

The Imam said, " you must examine whose decision and report is acceptable by all of your people and the rare one, not well known is ignored because commonly accepted report is free of doubts.

There are three kinds of matters (a) a well known lawful matter to accept (b) a well known unlawful matter that must be avoided (c) difficult matters that should be left for an answer from Allah and His messenger.

The holy Prophet has said, "There are well know lawful matters, well know unlawful matters and doubtful matters. One who stays away from doubtful matters he has safeguarded himself against unlawful matters and one who gets involved in doubtful matters he commits unlawful things and he will be ruined by some thing unknown to him.

I then asked, "What if both reports would be well know to be from you and are reported from you by reliable narrators."

The Imam Said, " Follow the one which is not against the Quran and the Sunnah and is contrary to what is accepted by those who oppose us .... until he said, "leave the answer to Allah because abstaining from doubtful matters is better than becoming involved in ruination.

The above Hadith contains comprehensive means of dealing and solving the problems of conflicting sources of the rules of Shari'a and with the existence of such Hadith there is no need to solve the problems of conflicts by means of established principles, according to those who maintain that in the case of conflicts one has the choice to follow either one of the conflicting sides.

The 'most learned' is not a priority on the basis of the priorities mentioned in the Hadith. It is said that in the case of conflicting Fatwas the authority of the Fatwa of the less learned becomes doubtful and the principle says that doubtful authority is not an uthority.

In fact, the Fatwa of a Mujtahid must be an authority even in a conflicting case because conflict does not come into being between an authority and non-authority.

One must assume that a Fatwa that before the emergence of conflict had due authority still is in authority on the basis of the established principles.

As a matter of fact, with the existence of ljtihadi grounds there is no ground for the use of the established principles.

There is also the problems of discerning the 'most learned'.

The author of 'urwatul wathqa says, "The most learned can be discerned by personal knowledge, by the testimony of two just people which would not conflict such other testimonies and by means of wide spread reports that would establish certainty. The 'most learned' means one who knows more about the rules and the sources of an issue and has more information about such like cases and more knowledge of the Ahadith, more better understanding of Ahadiht, in short, has better ability to use inference and reasoning and such person can be discerned by the experts and by means of inference and reasoning....

To this the late Ayatullah Shahroodi has this comment.. such definition is difficult and discerning is even more difficult, however, according to other definitions discerning is possible.

From the above opinions it is evident that the experts also in discerning the 'Most learned' need to use inference and reasoning for comparison which perhaps may involve themselves being most learned to be able to judge and if so, this would involve a never ending process or a confusing circle of inference.

Do the experts need to judge the grounds for every Fatwa or only some of them for comparison? This by itself poses more problems.

The highest authority in religion

The highest authority in religion and the walayat of the affairs of the Muslints.

In 'Usul Al-kafi it is narrated from the fifth Imam (peace be upon him) who said when asked about this verse of the holy Quran :" Believers obey Allah, obey His messenger and those of you who are in control of your affairs". "Do you observe that those who has been given a share from the book they believe in Devil and Satan and say to the disbelievers that they are more rightly guided then the true believers"..

There is the document signed by the twelfth Imam (peace be upon him) that says, " In the emerging cases in your (lives) ask the rules (laws of Allah) for such cases from those (of our followers) who narrate our Hadith because I have appointed them as my authority over you and I am the authority of Allah .... From Wasael Al-shi'a.

One Hadith says, "Of the scholars of the Islamic Shari'a those who protect their souls from committing sins, safeguard their religion, oppose their desires, obey the commands of their Lord, people should follow their Fatwas."

Imam Al-saadiq has said, " Beware of taking one another to the unjust judges, but you must find a man from among yourselves who knows some facts from our rulings then make him to judge for you because I have made him a judge for you, accept him as your judge... Mu'tabarah of Abu Khadija.. Wasael Al- shi'a.

It is reported by Ibn Hanzalah who has said, " I asked Abu Abdullah (peace be upon him), " Two of our people dispute over some loan or inheritance and go to the king or his judge for a decision. Is this permissible? The Imam said, "Whoever, goes to such judges for judgement for a rightful or wrong reason, such people have sought judgement from Devil and Satan which is prohibited by Allah and whatever benefits one may receive through such judgements is unlawful even if it would be ones own already established rights, because it is received through the judgement of Devil and Satan that Allah has commanded to be rejected.

"They seek the judgement of Taghut, the Devil when they are commanded to reject it." ch 4. v. 60.

I asked the Imam, " Then what should they do, they have disputes? The Imam Said, "They must find from among you one who narrates our Hadith, who has studied what we say lawful and what we say unlawful and has learned our laws, such a person must be made the judge because I have given him the authority to be the judge for you and when he gives a decision and it is not accepted, it will be an insult of the laws of Allah and rejection of us and those who reject us it is a rejection of Allah and this is like considering other things as gods besides Allah.

It become clear from the above that obeying Allah, His messenger and those of the Muslims who has the control of the affairs of the Muslims is obligatory for the Muslims.

This is the way to salvation, protection against Devil and Satan, the way to universal justice, honor, true freedom and respect and wisdom. It also becomes clear that rejecting the commands of the judge of the Islamic Shari'a is disrespecting the commands of Allah and rejecting the Imam (peace be upon him) and that The Imam (peace be upon him) has appointed the Mujtahid as the high religious authority for the people.

On this basis the high authority in religion assumes the leadership of the Ummah after the holy prophet and the infallible Imams called 'those in control of the affairs' of the Muslims by the holy Quran to defend the rights of the ummah her dignity and honor and to establish justice and equality among the members of the Ummah and to execute the vital laws such as commanding people to do what is good and stop them from committing sins and to implement such rules and laws to the highest degree in all walks of life.

It is, thus, the duty of the Muslims to support the highest authority in religion, defend his policies, take part seriously and sincerely in his programs small or big, established for the well being of the Muslims.

All responsible Muslims must think carefully and take lessons from the past and the sufferings through out the history to stand up and fulfill their duty in supporting the Mujtahid in control of the affairs of the Muslims and defend the highest authority in religion who is capable to defend the integrity of the Muslims, their faith, the laws of their religion and their land; the leader who has the means at his disposal to establish the Islamic judicial system to make such justice work for all Muslims according to the laws of Allah and save people from seeking the judgement of Taghut, the Devil and Satan.

This blessed opportunity is a great favor from Allah for the Muslims of our time. The Muslims must not lose this valuable opportunity, to benefit from participating in the good and virtuous deeds of supporting the highest religious authority the Mujtahid in control of the affairs of the Muslims.

All praise belong to Allah.
Muhammad Sarwar
New York
1/6/95