Jurisprudential Annotations

Al-Ta’liqāt al-Fiqhiyyah

Jurisprudential Annotations

By Mohammad Reza Nokounam

Bibliographic Information:

• Author: Mohammad Reza Nokounam (b. 1948)
• Title: Al-Ta’liqāt al-Fiqhiyyah (Jurisprudential Annotations)
• Published: Eslāmshahr: Sobhe Farda Publications, 2014
• Physical Description: 114 pages; 9.5 x 19 cm
• ISBN: 978-600-7347-25-6
• Language: Arabic
• Notes: This book is a commentary on four seminal texts: Al-‘Urwat al-Wuthqā by Muhammad Kazim ibn Abd al-‘Azim Yazdi, Tahreer al-Waseelah by Imam Khomeini, Al-Makāsib al-Muharramah by Murtadha Ansari, and Al-Qawā‘id wa al-Fawā’id by the First Martyr (Shahid Awwal).
• Subject: Ja‘fari Jurisprudence — 14th century AH
• Classification: BP183.5/N8T7 1393 (Library of Congress), 297/342 (Dewey Decimal)
• National Bibliography Number: 3503954

Preface

Praise be to Allah, Lord of the Worlds, and peace and blessings be upon Muhammad and his pure progeny, and the curse of Allah be upon their enemies altogether.

Al-Ta’liqāt al-Fiqhiyyah is composed of various annotations on three major works in the field of jurisprudence: namely, Waseelah al-Najat, Al-‘Urwat al-Wuthqā, and Al-Jawāhir al-Kalām, which expound our jurisprudential views in various chapters, especially regarding taqlīd (juristic imitation) and forbidden earnings.

This book is divided into nine parts:

• Parts one and two elucidate the rulings of taqlīd in a hadith-based style and serve as commentary on Al-‘Urwat al-Wuthqā.
• Part three is a commentary on the rulings of congregational prayer and the traveller’s prayer according to Al-‘Urwat al-Wuthqā.
• Parts four and five address forbidden earnings (Al-Makāsib al-Muharramah).
• The book also includes a section on sales based on Waseelah al-Najat, particularly concerning invalid sales (Bay‘ al-Fudhuli).
• Subsequent parts discuss rulings on khums (religious tax), food and drink, and judicial conditions according to Al-‘Urwat al-Wuthqā.
• The final part offers a brief commentary on Al-Jawāhir al-Kalām regarding hudūd (legal penalties) and ta‘zīrāt (discretionary punishments).

Among these, the most important jurisprudential annotations are the one incorporated into Al-‘Urwat al-Wuthqā entitled Haqīqat al-Sharī‘ah fī Fiqh al-‘Urwah (“The Reality of the Sharī‘ah in the Jurisprudence of the Bond”), and the commentary on Tahreer al-Waseelah entitled Tahreer al-Tahreer, as well as annotations on Al-Makāsib al-Muharramah and Al-Qawā‘id wa al-Fawā’id by the First Martyr.

Our final supplication is that all praise belongs to Allah, Lord of the Worlds.

On Taqlīd (Juristic Imitation)

“It is incumbent upon every mukallaf (one who is legally responsible)…”

This obligation is not a taklīfī (legal) obligation per se, nor is taqlīd a general prerequisite for the validity or acceptance of actions. Nor is it in itself a gateway to legal compliance. Rather, it is a mere practical approach and a widespread general practice, such that if a mukallaf reaches the actual legal duty and the shar‘ī ruling without taqlīd or ijtihād (independent reasoning), the act is still valid—even if he omitted the two routes out of forgetfulness. Moreover, he need not consider at the time of acting the possibility of error or invalidity in the act, nor the emergence of the act without intention, nor the absence of any impediment in his intent to seek closeness to Allah through worship. This describes the condition of many worshippers in the domain of taqlīd and their deeds.

Nevertheless, if their acts contain error or invalidity, they are not accepted and they are held accountable.

This principle is not confined solely to taqlīd in jurisprudential rulings but extends to all intellectual or religious guidance and imitative practices. However, in the domain of ‘ismah (infallibility) and obedience to the infallible Imam, the matter is of a different nature: a believer mukallaf requires the Imam in all ranks of conduct and must have spiritual confirmation from the Imam regarding the validity of faith and deeds. The concept of ‘ismah is established for the validity of actions and faith and is not merely a pathway, as it is for non-infallibles.

The Principle Regarding the Extent and Rule of Taqlīd

The question arises: Does the principle of taqlīd necessitate all actions except those exempted by evidence? Or does the principle negate the necessity of taqlīd except where evidence confirms the need, such as the lack of knowledge of the mukallaf concerning the ruling or the subject?

The correct position is the latter: taqlīd is required only in matters unknown to the individual, while in known cases it is unnecessary and even reprehensible to perform taqlīd.

This is because the legislator establishes rulings only where reason or common sense cannot ascertain the ruling or contradicts it, clarifying the matter as the situation requires.

Distinction Between the Infallible and the Mujtahid

The ta‘biyyah (following) of the muqallid (imitator) to the mujtahid differs from that to the infallible. The infallible’s ta‘biyyah is absolute and unconditional, unlike the mujtahid’s which is conditional upon the presence of the required qualifications for issuing fatwā, acceptance of his ruling, necessity for his guidance, and the muqallid’s knowledge of his authority.

Obedience to the infallible is mandatory even in what is already known as obligatory, because the infallible’s knowledge in all matters is definitive and he does not follow rulings other than that of the Truth (Allah). The mujtahid’s knowledge, by contrast, is not definitive, and he is not aware of all that was or will be, so it is not valid to claim equivalence between the mujtahid’s and the infallible’s rulings even in known matters.

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Regarding knowledge, ijtihād, or superior knowledge and the claim of its necessity, it serves to safeguard against attacks from opponents and to repel accusations of lack of ijtihād or superior knowledge by the claimant. It is also a feature of that era that boasting about justice and piety was widespread, alongside the emergence of formalistic clinging by some individuals to an extent unmatched even by a thousand genuine pillars of piety and justice, amid a prevalence of stratagems and treachery.

The Criterion for Identifying the Matter

In my view, the criterion for identifying this matter is that one who is truly faithful and pious in reality does not cling to such matters, whereas those lacking genuine piety and moral virtues cling to these issues extensively. They exhibit various spiritual titles such as teaching ethics, seeking spiritual matters, oratory, counsel, and others, which have become somewhat illusory in the current context. This was a time of desolation and vacancy.

Imitation of the Deceased

There is no objection to imitating the deceased initially, nor to its continuation by necessity. To clarify, I shall briefly outline here

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some explanations of this matter, with detailed discussion reserved for another occasion.

Imitation is acting upon the expert’s verdict in practical jurisprudential matters. Fatwā, in truth, is guidance and a method for elucidating the legal ruling. There is no objectivity in this regard, unlike the concept of infallibility, where the intermediation of the infallibles (peace be upon them) is essential for the validity of faith. Wilaya (divine authority) is the foundation of deeds, and the path to truth is only accessible through them (peace be upon them).

The Status of Knowledge and Criterion of Fatwā

The muftī’s knowledge and justice constitute the standard for referring to him. This status remains as long as spiritual life persists with or without the physical body. The death of the body does not affect this, for knowledge possesses a distinct life that endures with the survival of the human spirit. Likewise, the reference to him remains the same whether his knowledge is preserved in a book or elsewhere. Human identity remains recognized by rational and customary minds after death, so how much more among verified scholars? For the general public, scientific life persists in academic centres and remains established for their members — a matter that continues until the day of the Seal of the Prophets, unless another scholar surpasses them with an addition validated in its place. No one imitates anyone except those who possess insight until the day of the Seal, and if anyone exceeds, questions arise or situations change, the matter is

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referred to them. Even if later scholars confirm the earlier opinion, imitation by those preceding them is necessary, even if the later scholar is more knowledgeable, since otherwise, there would be no ground for imitation for the later jurist. Imitation of the more knowledgeable in other contexts can occur so that it may be said: the truth in imitation is that the common people imitate the holder of the novel ruling even if he is not the most knowledgeable, provided the ruling is comprehensive and the question is fully developed and perfect. Accordingly, imitation is relevant only in contemporary novel issues, while clarifying specific matters and linking them to previous rulings is also the domain of the present jurist, who must also observe trustworthiness in preserving the essence of prior rulings.

No Distinction Between Imitation of the Living and the Dead

The lack of distinction between imitation of the living and the deceased is evident through reason, the understanding of the wise, custom, and the established practice in religious seminaries from past times until now. All seminaries are sustained by the deceased scholars from previous times to this day.

Following this path, neither beliefs vanish nor ijtihāds are annulled, which contributes to the continuation of scholarly life in subsequent eras and the decline of the ages.

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Some Issues in This Field

If a mujtahid becomes insane during his lifetime, forgetful, senile, or corrupt in character or age, is imitation permissible? Our general answer for each case is: if the mujtahid becomes insane during his lifetime, there is no objection to imitation based on prior derivations. However, imitation after the onset of insanity is definitely impermissible due to his loss of knowledge caused by insanity. The same applies in cases of forgetfulness or senility due to impairment of his nerves and intellectual faculties. All this is because of some defect that compromises the validity of consultation and imitation. In a clearly insane person, it is unquestionably impermissible for followers to imitate him, and there is no sin upon the insane mujtahid except when this matter is taken into consideration.

It is also impermissible to imitate him after forgetfulness, although the majority of followers may conceal this rebellion of the mujtahid due to his intention; unlike some types of insanity. Similarly, the matter applies to a sinful mujtahid: permissibility of imitation applies before the sin, and prohibition applies thereafter, due to lack of justice and the presence of sin, not because of defect in his ijtihād. If the sinner is deliberately sinful, there is no discussion. If he is not and the followers conceal his sin and he does not repent, then this imitation is sinful. The same applies if the mujtahid becomes a disbeliever, polytheist, or leaves the path of the People of Truth and Wilaya towards any other path.

Summary of These Matters

Imitation means acting upon the knowledge of a just mujtahid. His physical life or corpse is irrelevant. If the forthcoming mujtahid accompanies the previous mujtahid’s ijtihād, he supports him, provided the fatwā is valid in every respect as a method, goal, proof, and ruling, except where the ijtihād is a new ijtihād with a specific direction.

All this is clear if the proof for imitation is reason or the wise. There is no objection. However, if the proof is based on apparent religious texts such as “whoever is among the jurists,” “the people of knowledge,” or “those who know our rulings,” and similar apparent transmitted texts, despite their weak chains or indications — even if all refer to the living jurists — this does not negate other possibilities. All these expressions generally refer to the majority and indicate what applies in actual novel issues and not to the second group of past matters previously mentioned.

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Transmitted Proofs in Imitation

Apparent transmitted proofs in imitation cannot be considered decisive evidence because they often suffer from weak chains, weak indications, or both, or they are unrelated to imitation and ijtihād. Thus, for the origin of imitation—especially imitation of the more knowledgeable—there is no transmitted proof at all. The proof in this matter is the judgment of reason and the wise. Even if this aligns with superiority of knowledge, the language of the Sharia opposes it—not to fault reason but out of leniency to the community and the ease of religion. The legislator lifted this burdensome or difficult obligation from the believers and facilitated access so that the lawgiver would not benefit from imposing hardship on the community. The law is content with the minimum to direct people in religious matters out of grace, so the proof lies with submission and obedience from the people. Accordingly, there is no foundational evidence for imitating the more knowledgeable. Rather, the proof is to the contrary. After careful review of semantic contexts in imitation and related fields, the matter is clarified as the non-necessity of superiority of knowledge in imitation. Hence, when asked about referring to whom in matters of rulings, they directed to multiple persons or the closest to them, not insisting they must refer to them (the more knowledgeable) even if possible. Rather, they referred them to those in their own town or closer, even if they were not the most knowledgeable in comparison with others, especially regarding referral after the infallible and proofs present in that domain. There is no single transmitted proof for superiority in knowledge.

Critique of All Preferences

Regrettably, passions, inclinations, tastes, and interests influence the establishment of beliefs and rulings in most individuals, including scholars and jurists throughout history. Whether in affirming, denying, or rejecting, scholars cling to every weak argument in proof and sometimes fabricate cold proofs from their own refined souls. Conversely, if affirmation or denial is not aligned with their inclinations, they demolish established proofs as spiders demolish houses without regard for fairness, evidenced in various contexts.

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However, prudence requires silence about this. Among these discussions is the topic of superiority of knowledge, which is often mentioned in claims without regard to external realities, despite its non-actualisation in many cases. These claims serve to repel accusation and clarify positionality.

Some traditions in the field of judicial rulings in resolving disputes say “take from the most knowledgeable” and the like, necessitating the superior knowledge of the muftī in issuing fatwā, especially in judicial matters and resolving conflicts, with no remedy other than this.

It is not valid to invoke consensus to establish superiority of knowledge even if it is authoritative in instances where it refers to the sayings of the infallible transmitted through narrations, not where reason and the wise serve as proof. Such an argument is deceptive because the matter is not ambiguous in these contexts, plus the apparent texts contradict such consensus—if it were established at all. Thus, consensus holds no weight in this domain. Hence, my investigation concludes that the matter of practice has no religious standard except the opposite of what apparent religious texts indicate, which the outward also supports. Practice among believers is contrary to that, to be just, even if the claims and titles are abundant.

Referring to the More Knowledgeable

If one argues the necessity of superiority of knowledge in imitation, is imitation valid by referring to him? If the answer is that it is not necessary, we respond affirmatively, because referring to him is done on two premises that realise the preventive ijtihād for the layperson: the first is his rightfulness to be referred to, and the second is that he is more knowledgeable. He states that there is no need for imitation through referring to the more knowledgeable, which itself is an ijtihād of his in denying the necessity of superiority of knowledge in imitation. If it is said whether referring to him is ijtihād or imitation for the layperson, we say it is customary ijtihād in referring to him. If he says it is unnecessary, unlike referring to the less knowledgeable from the start, because that would be a reference without proof and is invalid without customary ijtihād.

Justice Versus Superiority of Knowledge

In contrast to this unimportant matter in Sharia—the superiority of knowledge in fatwā—there is another important matter which holds greater significance for the Shia both in knowledge and belief, yet regrettably scholars and believers in practice neglect it despite professing it universally compared to the Sunni: it is the belief in the necessity of justice in the muftī and other chief communal affairs.

Definition of Justice According to Scholars

After affirming belief in justice, scholars define it as refraining from major sins, avoiding certainty in minor sins, and abstaining from actions contrary to dignity and propriety. When applying this to concrete examples, they state that refraining from major sins means avoiding acts for which God has promised punishment by fire, such as committing adultery, sodomy, or consuming alcohol. Avoiding insistence on minor sins includes behaviours like drinking water while standing or praying without proper attentiveness. Actions considered contrary to dignity and propriety include drinking and eating in public streets, wearing military attire, and similar acts.

After delineating these major and minor categories, scholars inevitably conclude that, by God’s grace, all scholars—especially those who serve as authorities for emulation, issuing religious verdicts, and providing guidance—are free from all such sins. Accordingly, from this perspective, there is no issue with their justice. However, this is not entirely accurate. The problem lies in the negligence regarding the application of minor sins to the concept of justice, specifically the differentiation between major and minor sins and those acts that contradict dignity. Justice cannot be realised merely by refraining from these acts in a single individual, nor are sins confined to these examples, particularly concerning eminent scholars. This is because the nature of sins varies between different social groups; the sins of common people are not the same as those of scholars.

Moreover, many scholars—despite avoiding the common sins such as alcohol consumption, drinking while standing, or eating while walking—may still be captivated by worldly desires or social status, acting as servants to popular opinion, excessively concerned with outward appearances, or aspiring to leadership and frequent prayer attendance for show. Such a person cannot be considered just by the standards of eminent scholars. Simply avoiding commonly recognised sins is insufficient for justice if the individual is attached to worldly pursuits and indulgent in selfish desires. Therefore, it is inappropriate for such a person to act as an intermediary between God and His believers in matters of religious law and issuing fatwas.

A just person is one who possesses the strength to resist all such vile inclinations and the ability to repel base worldly desires. Justice is not simply about external appearances; it is about the actual purity and integrity of the self. The outward appearance may suggest justice, but true justice lies in the essence of the individual. Among scholars, justice is attributed to those capable of safeguarding themselves from all sins specific to scholars and other faults alike—not to those whose appearance is pleasing but who are enslaved by the world and driven by their passions.

Regrettably, many such faults exist among numerous jurists, who nonetheless continue to issue fatwas without repenting or fleeing from these accusations. This phenomenon is troubling and uncommon among scholars who truly adhere to justice.

Some scholars with many such moral shortcomings still hold positions of authority without dispute or suspicion. In their case, justice is understood like the cleanliness of clothing—something taken for granted without discrimination or invalidation. Hence, scholars’ justice is generally treated as similar to that of Sunni scholars in practice, although with some differences in certain respects, combined with an insistence on the necessity of justice in belief rather than practice.

These two aspects—firm belief in the necessity of justice and neglect in its practical application—are evident among many, which has allowed outsiders and worldly interests to penetrate seminaries, homes, and spheres of influence, thereby controlling various affairs. These issues are well known to insiders, and we pray to God Almighty to reform these matters among scholars and seminaries before the appearance of the awaited Mahdi (may God hasten his reappearance).

Issue 3 — On Precaution (Ihtiyat)

Precaution is not considered a distinct category from the primary rulings, but rather a derivative of them in any case, and, if established, does not confirm anything by itself. This is because acting with precaution in legal rulings and practical branches in this manner is purely a presumption for the legal duty-bearers and occurs rarely. From this, the ruling on the subsequent issue becomes apparent.

Issue 4 — “It is Strongly Permissible to Exercise Precaution…”

It is unquestionably permissible to act with precaution, and the insistence by some on its impermissibility lacks justification, as has been thoroughly demonstrated elsewhere.

Issue 6 — “In Other Cases, Taqlid (Imitation) is Obligatory…”

The meaning of obligation in this context was explained earlier.

Issue 7 — “The Actions of the Layperson Without Taqlid are Invalid.”

Actions performed without taqlid are invalid if they do not correspond to the shar’i (legal) duty. Otherwise, there is no invalidity. The mere attribution to a jurist is inconsequential. Invalidity here means the action does not correspond to the legal mandate.

Issue 8 — “Taqlid is…”

Taqlid is acting according to another’s opinion without evidence in its context. It is not the same as adherence, reliance, or taking taqlid. The text’s wording aligns with common understanding and lay usage, which is of no concern. Thus, there is no doubt in referring to others in any matter, provided the conditions for issuing fatwas by a mujtahid are met.

Issue 9 — “The Stronger…”

The mujtahid’s fatwa is authoritative indefinitely after reaching conclusiveness (hujjah). Death is neither a barrier nor a cause to abandon taqlid of the deceased jurist in all real matters except those where the existence of the jurist cannot be fully assigned. Issue ten clarifies this further.

Issue 11 — “Changing Taqlid is Not Permissible…”

Changing taqlid despite superiority is entirely impermissible in all issues. This is due to the lack of continuous unity concerning the assumption that taqlid means acting upon another’s opinion.

Issue 12 — “It is Obligatory to Follow the More Knowledgeable…”

The obligation to imitate the more knowledgeable and to investigate him is an intellectual obligation, assuming the possibility. However, this must be understood broadly and from various perspectives.

The main problem is accepting the concept of ‘more knowledgeable’ as a technical term among mujtahids and confirming the factual conditions of this matter in practice.

In summary, affirming this matter rationally is possible and appropriate, but establishing it encounters many difficulties from various angles. Although it may be verified in some eras with success attributed to others who renounce desires.

Issue 13 — “If There is Equality…”

Equality in virtue is exceptional and a mere presumption. Some conditions are general, and specifying their instances is very difficult. After these considerations, the standard of prudence (awraiyyah) governs the fatwa, not the mufti himself.

Issue 14 — “If Precaution is Not Obligatory…”

Assuming precaution is not obligatory, then there is no objection to referring to the less knowledgeable provided the rank is respected. There is no difficulty regarding this from the viewpoint of the fatwa of the more knowledgeable mujtahid about the obligation to refer to the more knowledgeable in rulings, because if the first mujtahid does not issue a fatwa in the matter, the more knowledgeable status is achieved in this matter.

Issue 15 — “If One Imitates…”

The criterion is knowledge superiority as explained earlier, with no consideration to life or death in applied issues.

Issue 16 — “The Actions of the Ignorant…”

The condition for the validity of the action is its conformity with reality and correspondence to the correct path. It suffices if the action accords with the fatwa of the more knowledgeable at the time of acting or thereafter. There is no difference in validity between the negligent ignorant and others, or between acts of worship and others when the criterion is considered.

Issue 17 — “The Meaning of…”

Here, the meaning of ‘more knowledgeable’ refers to strength and capacity, not merely memorisation or familiarity. It concerns the substantive knowledge rather than mere cognition or mechanical retention.

It is possible for these attributes to be realised in any non-infallible individual, but the debate lies in their attainment and preservation.

The scholars mention these attributes as types but do not act strictly according to them. It is not necessary for the more knowledgeable jurist to be infallible in self, sound in taste, or have extreme deductive power to reject secondary rulings back to principles while observing the rules. There is no evidence requiring more than this.

Issue 17 (continued) — “Also, the Maraji’ (References)…”

Similarly, expertise is discussed, especially in these times, with its conditions fulfilled by confirmation of the attribute’s truth in a person considering reality and avoiding whims and passions.

Issue 18 — “The Safest (Ahut) is Not to…”

There is no criterion for imitating the inferior once the superiority has been established and the fatwa of the superior is opposed.

Issue 19 — “It is Not Permissible to Imitate…”

This issue is relevant to the knowledgeable duty-bearer who has doubt about ijtihad and capacity to derive rulings. He is either a mujtahid himself, making taqlid forbidden, or not, obliging him to imitate others due to existing doubt. This quality is essential and must be realised by intuition. Endorsement by a teacher or leader is merely a formal indication and not definitive. Likewise, absence of such endorsement is irrelevant if the individual possesses this quality. The core is the certainty of this trait.

Issue 20 — “Knowing the Ijtihad…”

It is possible for the general public to ascertain a form of widespread beneficial knowledge. This knowledge is necessary for the muqallid (imitator) obliged to follow, not for others like local scholars or laypersons.

The term ‘widespread’ here also means natural commonality, not that derived from deceptive means or multiplied cunning tactics. Knowledge of superiority is similar.

Issue 21 — “If There are Two Mujtahids…”

The criterion for designation is reason, not uncertain suppositions. This issue arises from oscillation between designation and discretion, but designation applies where there is a likelihood or probability of superiority in one direction or among non-conflicting aspects. Otherwise, precedence is given to what is most significant in knowledge superiority.

Issue 22 — “Conditions for the Mujtahid…”

Conditions necessary for ijtihad, though overlapping, are collectively complete.

These conditions arise from diverse sources: some rational and scriptural, some scriptural only, some without legal or rational basis but customary and popular — such as avoiding indulgence in permissible desires excessively.

Some conditions have no basis at all, e.g., the impermissibility of taqlid in the author’s view for the mujtahid who performs partial ijtihad even in cases where his partial efforts exceed others.

The ‘desire’ (hawa) mentioned refers to sin and disobedience, nothing beyond that with respect to Shar‘ and intellect. The necessary condition for a jurist is justice alone, and the required degree of asceticism beyond justice is anticipated by customary public opinion regarding mujtahids.

Regarding this narration and the chain of transmission, some points have been noted here:

Firstly, it indicates the necessity of sound belief for the mujtahid — implying obedience to God — which is distinct from justice.

Secondly, ‘hawa’ in the narration refers to sin and disobedience, not more.

Hence, the narration concerning ‘hawa’ is more specific than the text, while regarding obedience it is broader than justice, as the text shows.

Anyone insisting that a mujtahid must avoid permissible desires based on this narration is unjustified.

Conversely, if one argues this narration merely indicates justice and nothing more, that too is flawed because obedience and submission to God indicate doctrinal soundness, a theoretical matter not a practical condition — though an unsound thinker cannot be just either.

This context and literal meaning suggest the narration’s issuance.

The terms ‘absolute’ and ‘partial’ are relative and not absolute in this regard for the mujtahid; the validity is judged case by case, not by general categories or superficial signs.

Issue 23 — “Justice…”

Justice is a practical attribute: fulfilling duties and voluntarily avoiding prohibitions. It is a function of a spiritual power, not the essence itself.

Its establishment and impact can be ascertained in an individual by many means, ranging from intuitive knowledge to ordinary certainty.

Issue 24 — “If There is a New Occurrence…”

If it is established that a condition has been lost, it occurs immediately, and the imitator must not abandon past actions, as retroactive reconsideration is impossible.

Issue 25 — “If One Imitates…”

This applies if the fatwa or action at the time of acting did not accord with the more knowledgeable’s fatwa; otherwise, there is no problem.

Issue 26 — “If One Imitates…”

The criterion for superiority is knowledge, with no difference between the living and the deceased. If the deceased is more knowledgeable, taqlid of the deceased is forbidden, and taqlid of the living is obligatory in all matters, nullifying the taqlid of the living in the matter of remaining with the deceased. If the living is more knowledgeable, taqlid of the living is obligatory due to superiority, nullifying the fictitious taqlid of the deceased. This is because the living’s higher status naturally precedes.

Issue 27 — “It is Obligatory for the Duty-Bearer…”

It is rationally necessary for the duty-bearer to acquire this knowledge as in all normal matters of action. Not acquiring it does not necessarily invalidate acting according to fatwa due to lack of detailed knowledge of error at the time of acting. Otherwise, intention cannot be fulfilled, affecting validity not from the act itself but from this perspective. The following issue affirms this.

Issue 29 — “As it is Obligatory to Follow…”

Taqlid is necessary in matters requiring others’ action in rulings and otherwise. For those not requiring others’ action (e.g., many permissible or rational matters), there is no taqlid. The obligation is intellectual, not legal.

The Lawgiver guides rulings toward rational rulings, many of which are natural, requiring no others. However, for the purpose of attribution to the Lawgiver or innocence regarding rulings to ensure valid action, the layperson must verify each act’s conformity with the jurist’s opinion and establish legal proof.

Issue 31 — “If Change Occurs…”

This applies if the change is from one evidence to another. If a mujtahid’s earlier opinion was due to limitations, it is not binding; the superficial opinion excuses the imitator.

Issue 32 — “If Changed…”

Precaution is not obligatory though permissible. The imitator must refer to the more knowledgeable, who is indeed more knowledgeable on the matter.

Issue 33 — “If There is…”

Equality is approximate among mujtahids, with designation assumed in some directions. Otherwise, verifying equality is very difficult.

It is permissible to diversify issues not acted upon by the layperson; otherwise, returning or diversifying is impossible while equality continues.

Acting by any reference after equality in knowledge is rationally valid because the matter is critical and the decline from infallibility during the occultation necessitates this.

Issue 34 — “If One Imitates…”

The basis for taqlid here is superiority without distinction between categories, as noted earlier. Fatwas of others opposing the more knowledgeable have no effect on the layperson, whether he had previously followed another’s fatwa or if the other is more knowledgeable at the time.

Issue 35 — “If One Imitates a Person…”

The imitator’s assumption without basis about taqlid validity is irrelevant. If the imitator’s act accords with the more knowledgeable’s fatwa, it is valid; otherwise, not.

**Issue 36 — “The Taqlid…”

If taqlid contradicts certainty, it is impermissible.

Issue 40 — “The Imitation of the Layperson…”

The layperson is permitted to imitate the mujtahid with the most reliable knowledge and prudence, irrespective of previous taqlid, if the latter is more knowledgeable.

Issue 41 — “Conditions of Taqlid…”

The imitator must be rational, adult, free from coercion, and in a state permitting the obligation.

Issue 44 – “Justice is obligatory in the mufti and the judge…”
There are numerous means of establishing justice, and it cannot be confined to a single method rationally, such as intuitive knowledge, ordinary certainty, and others.
However, possessing the quality (malakah) by being involved in many matters is not necessary. The apparent degree of the matter itself suffices, and it is not incumbent upon others to verify the possession of this quality in a specific individual. The existence of the method (of verification) is sufficient for the authority (hujjah), which is the good apparent that reveals their trustworthiness. It does not necessitate confirming justice in an individual by establishing the possession of this quality, although the case for the mufti and judge is of a higher rank in both aspects.

Issue 45 – “If a certain period passes from the time of reaching maturity…”
It is permissible to rely on the correctness of taqlid (following a jurist) after establishing the correctness of taqlid at the beginning, whether based on the presence of a legal reason or on the principle of continuity (istishhab). The same applies subsequently if the doubt has no valid reason. Verification or the principle of continuity from before suffices for the matter.

Issue 46 – “It is obligatory for the layperson to perform taqlid…”
There is no difference regarding the obligation of taqlid in this issue and other subsidiary issues; the criterion and ruling are one and the same.

Issue 47 – “If there are two mujtahids…”
There is no difficulty in distinguishing between whom to perform taqlid upon, nor in the obligation of taqlid after verifying the knowledge of the more learned (al-a‘lamīyah). However, the important and difficult matter is to establish the more learned one in practice and fact.

Issue 48 – “If a person transmits a fatwa…”
Erroneous transmission and the incompetence of the transmitter are similar; such a person is not required – like others – to notify in matters of obligation only. The mujtahid is also similar in his case.

Issue 49 – “If there is an agreement during prayer…”
The ruling is similar if the intention of the obliged person (mukallaf) is hopeful regarding the action, and if the action accords with the fatwa, it suffices without question, or reliance upon it is permissible. However, the method of attaining certainty and the discharge of responsibility is confined to this.

Issue 50 – “It is obligatory for the layperson…”
It suffices to act according to the possibility of the existence of the more learned individual in a given person, even if his statement is not the most cautious. Without such possibility, the layperson may follow whichever opinion he prefers until he gains knowledge of the more learned.

Issue 51 – “The authorised representative (ma’dhun) and the agent (wakil)…”
The ruling for the first two is agreed upon. The appointment by the mujtahid – if it is by way of guardianship (wilayah) – does not invalidate the guardianship of the guardian if the mujtahid dies, except by dismissal from the subsequent mujtahid. Guardianship and affiliation are null in all cases of unsuitability on the part of the guardian without dismissal, if affiliation is by way of guardianship and authority.

Issue 52 – “If one continues to follow the deceased mujtahid…”
The criterion for the validity of action is its conformity with reality or its accordance with the fatwa of the more learned at the time of acting. The opinion of the living on continuing to follow the deceased and its absence has no effect.

Issue 53 – “If one performs taqlid of a mujtahid who suffices once…”
The ruling is identical in all cases: just as the fatwa of a second mujtahid does not affect past actions, neither does the fatwa of the first affect subsequent actions.

Issue 54 – “The agent in acting on behalf of another…”
Each of the agent or guardian in these types of actions must act according to their own actions, even if contrary to the fatwa of the one they follow. The criterion is the conformity of the action with the function of the person himself.

Issue 55 – “If the seller follows a mujtahid different from the buyer…”
The sale and other actions whose accomplishment depends on both parties are valid despite disagreement between their opinions, since validity for each is linked to their own function. This composition is not one of extrinsic combinations but a limited conventional matter by way of addition.

Issue 56 – “In litigation, the choice…”
The choice of appointing the judge is a necessary part of the claimant’s position. Upon appointment, the defendant must respond to the judge without distinction between cases, whether the judge is more learned, or his view is not the most cautious, or whether there is objective or legal doubt. The criterion is the claimant’s position and reference to the legitimate judge. The exceptions are two: the judge’s lack of legal competence, or the claimant proving the judge’s error by evidence.

Issue 57 – “The ruling of the comprehensive judge…”
The proof for this is religious and rational. If error occurs, it is permissible not to give effect to the ruling if the error is due to invalid ijtihad or contradicts reality necessarily; otherwise, his opinion is respected even if it differs from another mujtahid’s evidence. In such a case, nullification is not valid as there is no ruling to be challenged, rather it is a matter of uncovering disagreement.

Issue 58 – “If a transmitter relays a fatwa…”
The obligation lies with the mufti, whether via this particular or a general transmitter. The conclusion of this issue was cited in issue 48.

Issue 59 – “If two transmitters contradict each other…”
The ruling for all branches is explained in sequence: contradiction between two transmitters results in no reference point. Hearing (sama‘) is preferred in the absence of certainty about negligence by the mujtahid, which may often occur. In contradiction between hearing and written treatise, the same applies. In conflict between transmission and the treatise, ruling depends on attaining certainty from either. The criterion is certainty via existence of supporting evidence without preference for either.

Issue 60 – “If a matter arises…”
There are many aspects; the primary is that postponement is obligatory if precaution is impossible for the layperson. If precaution is possible, postponement is not obligatory. There is no objection to turning to another mujtahid if available. In absence of both, act according to the majority and refine through that. If disagreement becomes evident after acting, follow the more learned mujtahid’s opinion; previous action is void, as in taqlid of another mujtahid. If no specification is given to the majority’s opinion, act hopefully towards its validity, and after clarification if the act corresponds to the more learned’s fatwa, it stands; otherwise, previous action is void due to dropping the obligation, though not due to negligence. There is no difference regarding acting in judiciary or fulfilment.

Issue 61 – “If one followed a mujtahid then…”
Given this scenario, the layperson remains on following the second mujtahid due to the correctness of following the second and the removal of following the first by the second, with no effect of a third’s ruling on what is not within his jurisdiction. Precaution is not necessary here. There is no difference between permissibility and obligation of following.

Issue 62 – “It suffices to achieve taqlid…”
Taqlid, as explained earlier, is action. The layperson after the mujtahid’s death is like one performing taqlid initially regarding what is no longer acted upon, and also regarding what is acted upon, based on the necessity of returning to the living for reason that actions are external existential particulars.

Issue 63 – “Regarding the precautions of the more learned…”
Precaution is not obligatory; the ruling is to return.

Issue 64 – “The aforementioned precaution…”
The difference between the two precautions is the existence of a fatwa in the first and absence in the second. The ruling in the second is the same as in the previous issue: returning to another, and precaution is not obligatory.

Issue 65 – “In case of equality between two mujtahids…”
There is no difficulty in choosing or differentiating even if within the same action. The safest course is to avoid all and act according to one in all rulings, to avoid real-world risks.

Issue 66 – “It is evident that recognising…”
The layperson has no need for precaution at all and may act according to others. Precaution would mean avoiding precaution in such cases and similar ones.

Issue 67 – “The place and source of taqlid…”
The impermissibility of taqlid in the roots of religion (usul al-din) is not well-founded; otherwise, regarding scope and detailed evidence, there is no objection to taqlid in these as is the reality for most religious scholars and others.
The foundational principles, derivation methods, linguistic and customary topics, and pure subjects are all included. The criterion in each is the usual lack of knowledge by the layperson. There are many differences among sources in different respects, but if an individual knows one source appropriately, whether the matter is subtle (e.g., issues of music or land) or general, he does not need taqlid. He is not a layperson in this regard but has full opinion in this matter, especially if the layperson is less knowledgeable even if his view differs from the jurist’s. The difference is only in the external reality of each matter, not in the general legal principle of taqlid.

Issue 68 – “More learned status is not considered in matters requiring…”
The previously mentioned learnedness in taqlid is commendable and appropriate. However, real verification of it in an individual and establishing it externally for the general public is extremely difficult, especially with temporal and social obstacles. Other matters remain in the hands of trustworthy mujtahids and proofs supported by transmitted texts alongside rational rulings observing the priority of the important over the important, and the more learned over the more learned, to avoid social complications from neglecting these two principles.
The same applies in judiciary: the judge must observe the priority of the important and the more learned as far as reasonably possible.

Issue 69 – “If an opinion changes…”
Notification of obligation is necessary; detailed discussion aligns with the presence or absence of precaution.

Issue 70 – “The layperson is not allowed to undertake…”
No difference between rulings and subjects in such procedures; all are under the mujtahid’s authority. However, rulings require examination and the layperson is incapable, unlike in subjects where examination is not obligatory and the layperson is capable if necessary.

Issue 71 – “The non-just mujtahid…”
The ruling is valid in reality from this mujtahid even regarding the affairs of others, provided the external condition is present in all general matters. However, this does not benefit the layperson who must obtain proof in such matters. The distinction is that if this unknown mujtahid acts while the condition exists externally before it is proven for the layperson, and the justice is later proven before God, this suffices and proof is established.

Issue 72 – “Speculation is a fatwa…”
What is required for taking a fatwa is certainty of reassurance (ittiḥān). These cases are among the methods to attain reassurance; otherwise, mere speculation, even if among these methods, is insufficient to establish proof. There is no difference between speculation derived from apparent texts or others in the absence of reassurance except with ordinary reassurance from any method.
The subsidiary issues in this chapter, though numerous, suffice for practice according to the main text. The truth is supported and established.

Rulings on Congregational Prayer

Issue 31 – “It is permissible to follow one of the mujtahids or…”.(1)

The permissibility of following each individual (one mujtahid) by another in each specific juristic issue is established; even if there is no direct singular evidence (al-jihah al-wahidah) between them in the matter — whether the difference arises from independent reasoning (ijtihad) or imitation (taqlid), whether obligatory (wajib) or recommended (mandub), whether the disagreement is in the fundamental principles or subsidiary matters — there is essentially no difference in this permissibility.

The sole evidence for this is that the validity of the action, whether by imitation or independent reasoning, is assessed in reference to the actor himself, not in reference to others. Each person regards their own action as valid, without requiring the proof relied upon by another. The corruption or invalidity of an action as considered by one person does not affect the validity for another. Everyone considers the validity of their own act, and regards others’ acts as they consider their own validity in relation, not solely by the nature of the action or its evidence. Thus, the validity for Zayd, for example, is the same as for ‘Amr — even if the evidence, according to Zayd, is not itself valid proof. The validity is judged with respect to the actor’s perspective alone, and this suffices.

(1) Al-‘Urwah, vol. 3, p. 173.

The knowledge of the evidence according to one’s own perspective, or the general knowledge of invalidity and composite evidence in some instances, cannot logically lead to anything else given this principle. The absence of obligation according to one individual’s evidence is an obligation according to another’s, and the validity and binding nature of the action for one corresponds to non-binding for another. Hence, it is unnecessary to multiply branches and discussions on these issues that are not acted upon practically, nor are they pertinent in the moment of acting, even among scholars and experts.

This exact principle applies in judicial matters where differences arise in rulings among judge, plaintiff, defendant, witnesses, or other similar scenarios. Since the validity of each party’s position is valid for all, the preference in judgment lies with the judge, and the issue of preferring the judge is resolved since this preference exists inherently as a legal superiority granted to the ruler and judge over all. Therefore, the criterion for validity is the ruling (fatwa) of the judge or ruler (even if the judge is a follower), and the judge acts upon his own opinion regardless of whether it agrees or conflicts with the opinions of plaintiff, defendant, or others — without distinction.

Rulings on Congregational Prayer

Issue 15 – “It is not permissible for the individual praying alone to switch to following the congregation midway through.”

If the worshipper initially prays alone, it is not permissible for him to abandon this and join the congregation midway due to doubt and the absence of certainty in the matter. However, if he is praying in congregation behind an imam and the imam completes his prayer midway, then joining another imam’s congregation thereafter is not problematic, assuming all other conditions are met, since the meaning of ‘abandonment’ (ad-dulūl) does not apply here.

Various issues arise in this context that differ in subject and ruling, a few of which are briefly noted: it is impermissible to follow a congregant (ma’mum), so the imam should not himself be a follower of another; similarly, transferring one’s intention from one imam to another without valid reason is impermissible — even if the second imam is superior in all respects. However, if the first imam’s prayer is complete or interrupted obligatorily or prevented, it is permissible to intend congregational prayer and a second intention of following the other imam, and likewise a third and fourth intention within one prayer.

On Substitute (Contracted) and Makeup Prayers

Issue 2 – “The validity of the worker’s act is considered…”

Accepting payment for acts of worship does not contradict the act being an act of devotion (ibadah) or seeking nearness to God (qurbah). This is because the agent intends nearness primarily on behalf of the principal, and this intent is realised for the latter. Moreover, the agent’s own intention also encompasses seeking nearness to God, which legitimises receiving payment and realising worship and discharge of debt, as such worship can only be achieved through nearness. Although in instrumental matters this may differ, in such acts nearness to God can be intended in this manner. Hence, in this act, two kinds of nearness are realised or one nearness from two aspects: one for the principal (part of worship) and one for the agent, and this does not affect the description of the act as worship.

On Travel Prayer

Issue 31 – “If one travels for hunting, if for sustenance and provision for family, shortening (qasr) is permitted, but if for amusement as done by worldly people, full prayer is obligatory.”(2)

This is supported by numerous sound texts and others. The prohibition applies clearly to those who consider the balance of divine justice, as hunting for mere amusement is considered a form of debasement and heedlessness. Such behaviour exceeds the limits of acceptable conduct and is among the clearest examples of sinful travel.

Hunting is exempt from prohibition when for sustenance and provision for family or similar reasonable grounds, which are considered legitimate changes affecting the heavens, earth, and what they contain based on the objective of the travel. These are among the reasonable and acceptable objectives.

The theme of travel and shortening prayer

The subject of shortening prayer (qasr) is travel itself, without additional conditions of turmoil or other factors. The condition mentioned in the verse can be interpreted either as limitation in the acts of prayer, related to prayer during fear, or as a general qualification, connected with the travel itself or other considerations. The latter is the correct interpretation. Thus, travel itself constitutes the subject for shortening prayer without needing further specification.

The limit of travel for shortening prayer is a day’s journey or eight ‘marāsikh’ (traditional measure) and the daylight period or similar. This condition applies equally to both measures as the basis for shortening prayer.

The homeland (waṭan) is known according to common language and custom, and the texts indicate this. It is the usual place of residence, without conditions or restrictions of permanence, even if the residence is temporary. The length of residence does not affect the validity of the homeland, and there is no requirement for six months or ownership or other factors.

Issue 1 – “Earning through impure items is not permissible…”

Earning from impure or contaminated physical objects is not problematic once the benefit is lawful in type, and impurity itself does not prevent earning. Provided that the limits on usage and prevention of spread to unsuitable places are maintained, the same applies to all contracts and transactions. Impurity as a legal category does not have a special subject of prohibition in sale or other contracts when the benefit is accepted by reason.

Issue 7 – “Selling cats is permissible…”

The permissibility of selling animals is generally based on the existence of benefit recognised by reasonable people. Thus, there is no absolute objection to selling all animals if benefit is achievable in various ways.

Issue 11 – “Selling weapons is prohibited…”

The prohibition of selling weapons to all enemies of religion applies specifically to cases where such sale causes weakness among Muslims and the people of truth, or strengthens falsehood — even against weaker opponents or infidels. Preference lies with the side of truth if these conditions are met.

Issue 12 – “The depiction of living beings is prohibited…”

Creating images (depictions) is generally permitted nowadays without objection because the harm related to this does not occur. The narrations on this matter are interpreted as limited to times or places of harm. Similarly, earning through depiction is permissible in all cases.

Issue 13 – “Singing is forbidden…”

The prohibition of singing is confined to the frivolous or licentious voice, and this limited prohibition is a consensus among the Shia and many Islamic sects.

The matter of singing is confined to three aspects: the ruling, the subject matter, and the exceptions. The prohibition applies strictly to what is certain, namely the frivolous voice, which is originally subject to prohibition.

The exceptions are disregarded by the legislator and cannot be subject to specification or specialization. The main issue in this context is the problem concerning the subject of singing, its boundaries, and its sources, both in essence and in its instances.

The clarification of the text, like other jurists, is limited to collecting what is present in the sayings of jurists and linguists without rigorous investigation into the topic. This shortcoming in their noble minds has caused many widely divergent opinions among them.

The investigation in this regard, as mentioned, can be approached by distinguishing between the ‘pleasant voice’ and the ‘frivolous voice’ both ontologically and externally. The criterion for differentiating between the two is the clear custom without deviation or rigidity in their nature. From the ruling standpoint, prohibition is confined to the latter and never applies to the former. Accordingly, the basis of prohibition in singing is not the voice, repetition, or the resultant enjoyment per se, whether the vocal tones are rhythmic or not, whether the doer is aware or unaware, but rather the presence of the frivolous nature as realized in external reality.

Moreover, there is a significant distinction between the forbidden frivolous voice and the permissible pleasant voice, and between the use of musical instruments intended for amusement. The former falls under the category of vocal expression while the latter concerns the nature of the instruments, which emanate from the human being in their essential nature. It is possible for a person to produce some of these sounds with their voice or tongue, even if rarely, yet there is fundamentally no difference in their ruling because the tongue in such a case is the instrument producing the sound.

Additionally, there is a distinction between the voice and the use of amusement instruments from a legal perspective. The voice is divided into two types: one forbidden, which is the frivolous voice, and the other permissible, which is the pleasant voice. However, the ruling on the use of amusement instruments is an absolute prohibition except that the universal prohibition and the absence of the permissible category stem from the legislator’s context during the time of revelation and infallibility. In our time, there is no ruling from the standpoint of the imperative command on using amusement instruments since it is possible to derive benefit from them in permissible, commendable, obligatory, recommended, or permissible contexts. The necessity of confirming this ruling and its obligation after the Islamic revolution and under the Islamic government is very apparent. However, it is crucial to exercise precision and caution in distinguishing the two categories and not to confuse the matter in their various aspects.

Issue 14 – “Assisting the oppressors…”

The criterion for the prohibition of assisting oppressors is the corrupt intention and the type of assistance provided in terms of benefits and harms to oneself or others.

Issue 15 – “It is forbidden to keep books of misguidance…”

The prohibition in such matters and actions without a valid intellectual purpose is rationally and legally established. With a valid purpose, permissibility is preserved. However, the prohibition is generally stated for the guardians of Muslims and society to continuously and effectively promote Islam and its principles so that this prohibition is not especially required in these astonishing modern times for the well-informed people of the age.

Issue 16 – “Practicing and learning magic…”

Teaching and learning magic in all its categories and related subjects, with the correct assumption that it does not oppose any prohibition, provided the necessary readiness and certainty are achieved, is entirely permissible. Furthermore, the necessity for truthful scholars to analyse such issues and adjudicate on the cases relevant to all scholars and others is partial but obligatory. This is the status of teaching and learning. As for practice and application, the ruling is otherwise: it is absolutely forbidden except in some rare and necessary cases without harm, permitted only by the authority of the jurist. The text clarifies that some of the mentioned cases are not magic at all, and their domains are clear to specialists, though some disagreement exists on certain cases. Other related issues are less severe regarding prohibition, though the criterion in all is unified, and the prohibited cases from other causes are clearly defined.

Issue 17 – “Cheating is forbidden…”

Cheating involves three aspects and three extensions: extension to the cheater or those related to them by title, extension to the cheated party, i.e., the buyer, and extension to the type of goods cheated. Following this introduction, it is stated that cheating without the knowledge of the buyer is absolutely forbidden. However, if the buyer is aware, it is not forbidden for the cheater unless there is no customary benefit or unless it leads to spoilage of the goods, in which case it is forbidden due to its corrupting effect. Such a case may exist regardless of the buyer’s knowledge or presence since the prohibition is due to the spoiled goods, not the relationship to the buyer. The prohibition here is a constructed one. Cheating is forbidden if it causes spoilage, and spoiled goods justify prohibition regardless of benefit. Other cases are clear as presented in the text.

Issue 18 – “It is forbidden to take wages for a duty…”

If the work is obligatory upon someone, the worker may not take wages for it unless it benefits the provider. Otherwise, there is no problem with the worker receiving wages. This payment does not affect the spiritual closeness or acceptance of the act. The obligation or closeness of the act does not prevent taking wages if the work is beneficial and permissible for the provider. The rationale for prohibition is the failure of the money to return to its original provider. Otherwise, obligation or spiritual closeness is a matter of authority and does not prevent taking wages for generally prescribed beneficial acts, whether obligatory or spiritual. The prohibition arises if the monetary exchange is not genuine, and permission applies otherwise due to the absence of valid proof.

Issue 19 – “As in the Law, transactions…”

After prohibition in some types of earnings, permissibility prevails essentially in others. However, some earnings are naturally noble and religiously and rationally emphasized, while others are base, and earning through them is considered degrading to religion and human morality. Each group has specific rational evidence and conclusive criteria, whether these earnings are intentional or not explicitly so. The principal criterion is that Islam does not entice people toward base earnings; rather, it detests and discourages earnings harmful to morals, the self, or public social dignity. Clarification of this through appropriate context and evidence requires detailed discussion, God willing.

“Fifth: Among what is forbidden to earn by is what one is required to do…”

This issue remains contentious with many differences and partial incompleteness in all opinions. The consensus is that the discussion falls outside the scope if the work’s benefit no longer accrues to the one obliged.

Issue 13 – “Singing is forbidden…”

The prohibition of singing is limited to frivolous or licentious vocalisation, and this extent of prohibition is unanimously agreed upon by the Shia and many Islamic sects.

The matter of singing is confined to three aspects: the ruling, the subject matter, and the exceptions. The prohibition is restricted to what is certain, namely the frivolous voice, which is originally subject to prohibition.

Exceptions are disregarded by the legislator and cannot be subject to specification or qualification. The principal issue in this domain is the problem concerning the subject of singing, its boundaries, and its instances, both in essence and in application.

Clarification of the text, like other jurists, is confined to collecting what is found in the sayings of jurists and linguists, without rigorous inquiry into the topic. This limitation in their esteemed minds has led to a wide divergence of opinions among them.

The investigation here, as mentioned, can be approached by differentiating ontologically and externally between the pleasant voice and the frivolous voice. The criterion for distinguishing between them is clear customary practice without deviation or rigidity in their natures. From the perspective of ruling, prohibition is confined to the latter, never applying to the former. Accordingly, the basis for prohibition in singing is not the voice itself, nor the repetition or the pleasure derived from it; whether the vocal rhythms are measured or not, whether the agent is aware or not, but rather the presence of the frivolous nature as realised externally.

Moreover, there is a significant distinction between the forbidden frivolous voice and the permissible pleasant voice, and between the use of amusement instruments. The former pertains to vocal expression, while the latter concerns the nature of instruments which originate from the human being essentially. It is possible for a person to produce some of these sounds with their voice or tongue, albeit rarely, but there is fundamentally no difference in their ruling because in this case the tongue serves as the instrument producing the sound.

Furthermore, there is a distinction between the voice and the use of amusement instruments in terms of ruling: the voice is divided into two categories, one forbidden — the frivolous voice — and the other permissible — the pleasant voice. However, the ruling on the use of amusement instruments is an absolute prohibition, except that the universal prohibition and the absence of the permissible category stem from the legislator’s circumstances during the time of revelation and infallibility. In our present time, there is no ruling from the standpoint of the imperative command concerning the use of amusement instruments, as it is possible to derive benefit from them in permissible, commendable, obligatory, recommended, and allowed contexts. The necessity of establishing this ruling and its obligation following the Islamic revolution and under Islamic governance is very evident. However, it is crucial to exercise precision and caution in distinguishing the two categories and to avoid confusion regarding their respective aspects.

Issue 14 – “Assisting the oppressors…”

The criterion for the prohibition of assisting oppressors lies in the corrupt intention and the nature of their assistance, in terms of benefits and harms to oneself or others.

Issue 15 – “It is forbidden to keep books of misguidance…”

The prohibition in such matters and acts, without a valid intellectual purpose, is rationally and legislatively established. With a valid purpose, permissibility is retained. However, this prohibition is generally articulated for the guardians of Muslims and society, to continuously and effectively promote Islam and its principles, thereby obviating the need for such prohibition, especially in these astonishing contemporary times for the enlightened generations.

Issue 16 – “Practising and learning magic…”

Teaching and learning magic, in all its forms and related topics, assuming no contradiction arises, provided the necessary readiness and confidence are achieved, is entirely permissible. Furthermore, the necessity for sincere scholars to analyse such matters and adjudicate the relevant cases, serving scholars and others, is a partial but obligatory duty. This pertains to teaching and learning. As for practice and application, the ruling differs: it is absolutely forbidden except in some rare, necessary cases without harm, permitted only by the authority of the jurisconsult. The text clarifies that some mentioned cases do not constitute magic at all, with their specifics clear to specialists. Although disagreement exists regarding some cases, other related titles are less severely prohibited, though the criterion remains unified. The prohibited cases for other reasons are clearly defined.

Issue 17 – “Cheating is forbidden…”

Cheating involves three dimensions and three extensions: extension to the cheater or those connected to them by title; extension to the deceived party, namely the buyer; and extension to the nature of the goods cheated. Following this introduction, it is stated that cheating without the buyer’s knowledge is absolutely forbidden. If the buyer is aware, it is not forbidden for the cheater unless no customary benefit arises or it leads to spoilage of the goods, in which case it is forbidden due to its corrupting effect. Such a case may exist regardless of the buyer’s knowledge or presence, as the prohibition stems from the spoiled goods, not from the relationship to the buyer. This prohibition is constructed (wadh’i). Cheating that causes spoilage is forbidden, and spoiled goods justify prohibition regardless of benefit. Other matters are clear as explained in the text.

Issue 18 – “It is forbidden to take payment for obligatory work…”

If the work is obligatory for someone, the worker may not take payment for it unless it benefits the provider. Otherwise, there is no objection to the worker receiving payment. This payment does not affect spiritual closeness or acceptance of the act. Obligation or spiritual closeness does not prevent payment if the work benefits and is permitted for the provider. The rationale for prohibition is the failure of the money to return to its rightful provider. Otherwise, obligation or spiritual proximity is a matter of authority and does not prevent taking payment for generally prescribed beneficial work, whether obligatory or spiritually meritorious. The prohibition arises if monetary exchange is not genuine; permission applies otherwise, due to absence of valid evidence.

Issue 19 – “As in Islamic law, transactions…”

After prohibition in some earnings, permissibility generally prevails in others. However, some earnings are noble by nature and religiously and rationally emphasised, while others are base and considered degrading to religion and human morals. Each category has specific rational evidence and complete criteria, whether earnings are intentional or not explicitly so. The main criterion is that Islam does not encourage base earnings but detests and discourages earnings harmful to morals, the self, or public social dignity. Clarification of this with supporting evidence requires detailed discussion, God willing.

“Fifth: Among what is forbidden to earn by is what one is required to do…”

This issue remains a field of debate with many divergent opinions and partial incompleteness in all views. The consensus is that the discussion falls outside the scope if the work’s benefit no longer accrues to the obliged party.

Book of Khums (Tax on War Booty and Other Items)

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Kitab al-Khums

The Khums, as delineated in the doctrine of the Shia school of thought, serves as a symbolic emblem of loyalty to the Imams, peace be upon them, to whom the adherents attribute themselves. It constitutes one of the core tenets of the school, along with its specific distinctive rulings, and represents a form of miraculous preservation by the school to maintain its foundational elements. This is done out of reverence and honour towards the Imams in opposition to adversaries and their supporters. The narrations in this chapter testify to all these points.

Section: What incurs Khums — Seven categories:

The first is: the spoils taken from the disbelievers who are the people of war… (2)

1. This commentary is drawn from the Kitab al-Khums section of Al-‘Urwa al-Wuthqa.
2. Muhammad Kazim al-Tabatabai al-Yazdi, Al-‘Urwa al-Wuthqa, vol. 4, Qom, Islamic Publishing House affiliated with the Assembly of Teachers, First edition, 1420 AH, Book of Khums, p. 230.

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It is universally agreed among all Muslim sects that the spoils taken from the disbelievers engaged in warfare constitute part of the Khums revenue. This is the primary basis for establishing other sources as well. Consequently, we are obliged to affirm the Khums on any increase in spoils, with authentic narrations from the khassah (special group) serving as the principal evidence in this matter.

“Compulsion through fighting…”

Seizure during combat, or even absent direct combat, is considered a circumstance rather than a restrictive condition.

“Including transported goods and others…”

Its scope, as stated in the text, is unqualified according to the verse and should not be restricted to transported goods, as some have suggested.

“After deducting provisions…”

Deduction in all these cases is a specification rather than an exception, as the overarching title does not apply in these instances.

“Excluding the spoils of the kings… likewise the tribal allocations…” (1)

Regarding the spoils of kings, like all royal allocations, these belong exclusively to the Imam.

1. Al-‘Urwa, vol. 4, p. 231.

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This is a subtle discussion requiring careful contemplation and precision. Islam has legislated specific rulings to allow ample latitude for the Imam in all individual and social affairs, ensuring that no deficiency or deprivation enters these matters—even material and worldly ones. Safeguarding this principle is essential during the period of occultation (ghaybah) and throughout all governing bodies in these domains and others. This is to ensure that no doubt, grievance, or shortcoming enters their hearts, and that they do not conceal deprivation or hardship out of ostentation or blame. Moreover, no suspicion of betrayal should arise in their minds from these matters whatsoever.

“Even during the time of occultation…” (1)

The legitimacy of spoils for the community during the Imam’s presence requires his permission; in his absence, all spoils belong to him. Similarly, during occultation, this remains the case, and the jurist’s permission is mandatory. With his permission, giving Khums is also obligatory. Under Islamic governance, war spoils and other items restricted to government control reside in the hands of the Islamic state—even if given to others in exchange.

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Issue 2: “It is permissible to take Nisab money wherever found…” (2)

1. Al-‘Urwa, vol. 4, p. 231.
2. Al-‘Urwa, vol. 4, p. 234.

The permissibility of acquiring money at or above the nisab (minimum threshold) and others depends on the existence of war, sedition, or aggression from their side against the sanctity of Islam. Otherwise, the act itself is forbidden and contravenes the affairs of Islam and Muslims, even though the permissibility of taking some of their property is practically preserved due to their lack of ownership and the Imam’s ownership over all.

Issue 5: “The spoils taken forcibly must have one-fifth given as Khums to the taker.” (1)

Forcible seizure of spoils also obliges Khums for the one who takes it, without contradiction to the duty of Khums.

Second: Minerals from the earth… (2)

Minerals refer to all that is extracted from the earth, regardless of being above ground or not, and do not require removal before Khums is due. There is no distinction in the obligation of Khums between individuals, Muslim or otherwise. The nisab for minerals is twenty (units), and no Khums is obligatory for less than that. The threshold applies individually to each person even if pooled for Khums payment.

Issue 12: “If one trades with what was extracted before paying Khums…”

Profit gained before paying Khums is shared between the person and the owners of Khums, regardless of intent to pay or not.

Issue 13: “If there is doubt regarding reaching the nisab, it is preferable to test.” (1)

In this case, nothing is obligatory, and testing is recommended but not mandatory.

Third: Hoarded wealth (kanz), which… (2)

Ownership in these cases belongs to the finder and Khums is due, without needing to define the original owner due to the generality of texts and objective nature of the thing. The principle of permissibility applies. Investigation or despair is unnecessary, as it is considered a legal appointment by the legislator affirming ownership of the finder. The Khums is accordingly due.

“If a previous owner claims it, the finder has precedence…” (3)

Existence of hoarded wealth in someone’s possession does not establish their ownership, nor does claim alone suffice without conclusive proof. The finder is preferred unless definitive evidence proves otherwise.

1. Al-‘Urwa, vol. 4, p. 245.
2. Al-‘Urwa, vol. 4, p. 245.
3. Al-‘Urwa, vol. 4, p. 246.

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Section: Categories subject to Zakat

Zakat is obligatory on nine categories: the three types of livestock, the two types of currency, and the four types of crops; it is not obligatory on anything else. (1)

The obligation of Zakat on these nine items and its non-obligation on others is unanimous. Claims of necessity by Muslims or religious scholars do not override this consensus. The basis of all is the numerous, clear narrations on their obligation and the absence of obligation on others, confirmed by the infallible. Therefore, any assertion denying that the obligation is limited to these categories is a satanic whisper, disregarding God’s benevolence.

Issue 8: “It is permissible for a woman to lead other women in prayer.” (2)

It is permissible, albeit disliked, for a woman to lead other women in prayer, reconciling different narrations. It is especially permitted in cases of necessity where women must lead other women, even if a righteous male scholar is unavailable.

1. Al-‘Urwa, vol. 4, p. 28.
2. Al-‘Urwa, vol. 3, p. 188.

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Issue 10: “It is permissible for a non-adult to lead another non-adult.” (1)

There is no objection to a discerning non-adult leading another non-adult, provided other conditions are met. The evidence opposing a non-adult leading an adult remains, though the adult’s leadership is preferable.

“A mother is not obliged to breastfeed her child and may claim payment for nursing…” (2)

The non-obligation is supported by Qur’anic verse and narration, and conditioned on the presence of the father or the child’s means. The obligation is contextually limited and does not apply categorically to the mother, who, like others under this condition, may claim payment since the father bears the child’s expenses.

1. Al-‘Urwa, vol. 3, p. 188.
2. Ja‘far ibn al-Hasan (al-Muhaqqiq al-Hilli), Shara’i‘ al-Islam fi Masa’il al-Halal wal-Haram, vol. 2, Tehran, Esteqlal Publications, second edition, 1409 AH, p. 566.

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Book of Foods and Drinks
Discussion on Non-Animal Edibles and Drinks

Issue 2: “It is forbidden to consume anything harmful to the body…” (1)

Everything harmful to the body is absolutely forbidden, whether causing death or general malaise of any kind. The criterion of prohibition is damage caused to the body or harm to temperament, as well as proven financial harm, with no compensating benefit. Harm here is understood as that acknowledged by reason and common custom, not hypothetical or uncertain harm.

1. Tahrir al-Wasilah, vol. 2, Qom, Dar al-Kutub al-‘Ilmiya (Isma‘iliyya), p. 163.

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This harm is not restricted to immediate damage but includes any damage resulting from repeated use, even if initially permitted. Repetition itself is forbidden from the outset, even if the initial act was not prohibited.

This means tobacco and similar smokes were not originally prohibited due to the absence of confirmed harm at the time, although smoking is frivolous and inherently disliked. Some argue its minimal benefit—such as stimulation—is also doubtful or imaginary, and its damage to body or wealth is clear. The critical matter is whether the harm is established and recognized by reason and custom.

The use of opium—whether ingested or smoked—is problematic in terms of permissibility and prohibition. Its use once or twice may not be forbidden, but repetition and addiction are highly prohibited. The corruption caused by addiction exceeds many explicit prohibitions. Those denying its prohibition are considered spiritually afflicted, even among the elite. Addiction and repeated use of opium is forbidden from the outset, even if the initial act was not.

The basis for this ruling includes the principle of “no harm,” rational judgment, and experiential evidence. The harmful effects of addiction are self-evident, and denying this is tantamount to denying reason itself. There is no need for specific scriptural evidence; observation of addicts suffices as evidence.

Judiciary, being the lowest in social scope, affirms the necessity of judicial ijtihād (independent reasoning) in the judge, and the indispensability of this matter. Coupled with the absence of explicit evidence mandating it, this is tantamount to the suspension of the judiciary by the hands of the faithful during the Occultation, causing the judiciary to fall outside the bounds of Shariah and into the hands of the corrupt and immoral. There is hardly a more recent manifestation in this era than the occurrence of chaos; that is, disorder arising from the multiplicity of differing opinions within the bounds of a single, general Islamic government.

The consequence of false ijtihād is often either the emergence of disorder and confusion or the suspension and usurpation of the judiciary by the immoral, wicked, and ignorant in matters of religion. Although the importance of ijtihād in judicial matters alongside the necessary considerations is indisputably great.

Following the legitimacy of judicial authority vested in a just mujtahid (jurist capable of independent reasoning) who is fully informed and meets the general conditions, there is no objection to appointing a just mujtahid ruler to preside over judicial matters by virtue of wilāyah (guardianship) and its extensive scope once its subject matter is established, as previously stated.

Therefore, the most important qualities for a judge in the general Islamic state, after the fulfillment of the general conditions, are justice, religious reliability (thiqa), broad understanding of public and private social issues, coupled with proper taqlīd (following established jurisprudential opinions).

The Book of Hudud (Fixed Punishments) and Ta‘zīrāt (Discretionary Punishments)

The term “Hudud and Ta‘zīrāt” (singular: hadd and ta‘zīr) must be clarified initially with regard to their definition in the determination of subject matter and judgment, as well as the manner of their implementation. There is no doubt that Islam is a complete religion, without any deficiency; however, the discussion concerns its actualisation among people and the possibility of implementing all its rulings, both in part and in whole, from the beginning to the end.

Despite the impossibility of this to some degree, it is not correct to enforce some of its rulings forcibly, especially its penal and hudud punishments, when other rulings and matters cannot be properly realised among the people, particularly due to the lack of proper channels for enforcement. This is strongly so in the case of applying hudud to those subject to these limits, which contradicts justice and reason, besides the absence of explicit legal evidence except for the general universal principles and laws.

Indeed, the implementation of rulings is relative in all respects from beginning to end, in hudud, punishments, and other matters, within a correct procedural system; otherwise, the feared consequences would recur. It is not appropriate to implement hudud alone, and this does not conflict with preventing crime and necessity of its deterrence, or with the fact that the criminal is ignorant; the discussion here concerns the realisation of matters and their minor cases, not major ones.

Ta‘zīr (disciplinary punishment) is preventive and disciplinary, and in Shariah, ta‘zīr is always less than hadd without any difference in meaning between the legal and linguistic senses. The punishment of beating mentioned in the narrations is a particular type of ta‘zīr and is not limited to this. Textual rulings related to ta‘zīr have been cases specific to incidents according to the time, place, and other conditions; however, ta‘zīr is not confined to beating alone but includes imprisonment, confiscation of money, and other possible or newly introduced disciplinary measures.

Not all such measures come under the rubric of governance and guardianship, but rather as enforcement of punishments by the ruler’s authority. Hadd is a fixed punishment, unlike ta‘zīr, which is discretionary in certain specified cases. Even when ta‘zīr is specified, it is by the ruler’s authority and specification alone does not constitute hadd, although hadd may be specified; such specific cases may also be altered according to changing personal rather than general circumstances.

Accordingly, the scope of imprisonment is not confined to the specified texts, as these texts themselves relate only to certain sections apparent in the Shariah of that time.

The crucial point in ta‘zīr is to determine what is less severe than hadd, and the meaning of “less than hadd” in quantity and quality—particularly balancing between beating, imprisonment, or confiscation of money—is extremely challenging. However, with reliance on the ruler’s understanding, customary knowledge, Shariah science, trustworthiness, and justice, this task becomes easier. Thus, the discretion in determination lies with the ruler.

“I say: there is no discussion regarding the punishments explicitly defined as hudud; the discussion rather concerns those punishments not explicitly defined in Shariah that fall under the category of hadd…” (1)

Hadd has two meanings: firstly, hadd in opposition to ta‘zīr; secondly, hadd that encompasses ta‘zīr. The entirety of ta‘zīr without hadd and other acts that resemble ta‘zīr as opposed to hadd fall under the first meaning. The phrase “Hudud repel doubts” and other particularities belong to the second meaning. Accordingly, it is correct to consider those without explicit limits as hadd in a procedural sense without distinguishing between these meanings in these respects.

Regarding Zina (Adultery and Fornication)

Its prohibition is unanimously agreed upon in all communities to protect lineage, and thus it is one of the five fundamental principles that must be upheld in every Shariah (2).

The prohibition of zina is an established matter in every divine law and is a major sin. It is acknowledged even by rational individuals and observed in some species of animals, although in others it is practiced or insignificant, which is irrelevant here.

There are two main issues: firstly, whether the prohibition is intrinsic or extrinsic, i.e., due to external reasons such as preservation of lineage or else it is intrinsically evil, and the ugliness and harm lie in the act itself. Most narrations and evidence on prohibition consider the external reasons, while some regard the act itself as reprehensible and detestable.

Secondly, regarding the actions of Adam in relation to the marriage of his children: whether their marriage was between siblings or with beings other than humans (such as jinn or huris), or a mixture of both. This raises difficulty since if the first case is true, then all of Adam’s descendants are considered forbidden relatives (mahram), which is established legally and factually with Adam’s permission and divine infallibility. If the second is true, then the descendants of Adam would not be entirely human or could be considered descendants from incestuous marriage. No scholar’s writings resolve these issues satisfactorily.

The truth, in my view, is that while fornication and adultery are detestable and disgraceful acts, their prohibition is not intrinsic but rather dependent on the Shariah’s rulings in each context, regarding who is forbidden and the details of prohibited relatives, which differ according to circumstances and specifics.

“Zina is the loss of the hymen before or after intercourse.” (1)

Zina is the prior rupture of the hymen, and intercourse through the woman’s anus constitutes liwat (sodomy), as with men. Although its hadd punishment is the same as zina, its legal effect is similar due to the unity of hadd and its consequences.

This commentary was completed in 1407 AH.

Our final supplication is praise be to Allah, the Lord of the worlds.

References:

(1) Jawahir al-Kalam, Vol. 41, pp. 256, 260.
(2) Jawahir al-Kalam, Vol. 41, p. 258.