Imamiyah (Shiite): An Introduction to Islamic Jurisprudential Sects

Endnotes

1- See: Ṣadr, Muhammad Bāqir, al-Fatāwá al-Wāḍiḥah, V. 1, P. 98.

2- See: ‘Allāmah ‘Abd al-Hādī al-Faḍlī, Tārīkh al-Tashrī‘ al-Islāmī.

3- Mudarrisī Ṭabāṭabā’ī, Sayyid Ḥusein, Muqaddamah-’ī bar fiqh-i Shi‘ah.

4- Sheikh ‘Abbās Qumī says: Ibn Abī ‘Aqīl was the first person who purified (Shi’ite) jurisprudence. These two were the starter of this way, afterwards, scholars as Sheikh Ṭūsī continued the progress. Ibn Junayd conveyed this manner to his disciple Sheikh Mufīd. Sheikh Mufīd transferred it to his disciple Sheikh Ṭūsī, and he transported it to his disciples.

5- See: Ibid. Jurisprudential Texts of Uṣūlī Jurists.

6- The writer of al-Wāfī, Mu‘taṣim al-Shī‘ah, and Mafātīḥ al-Sharāyi‘. Despite of being Akhbārī, he was inclined to Muqaddas Ardibīlī’s liberal attitude, and used to follow it in his Akhbārī jurisprudence. Therefore, about many issues that Muqaddas Ardibīlī disagreed with earlier Shi’s jurisprudents, Mullā Muḥsin was in agreement with him, just like other followers of Ardibīlī, especially Sabziwārī and Ṣāḥib Madārik.

7- His important books concerning the issue are as follows: al-Ijtihād wa al-Akhbār (to refuse Akhbārism), Ibṭāl al-Qiyās, al-Fawā’id al-Ḥā’irīyah, Ḥujjīyat Adillah al-Arba‘ah, and al-Radd ‘alá Shubahāt al-Akhbārī. (See: Dr. Gurjī, Tārīkh-i Fiqh wa Fuqahā’, P. 253)

8- For more information, see: Mihrīzī, Mahdī, Kitābshināsī-i Tawṣīfī fiqh-i Muqārin, the quarterly journal of Naqd wa Naẓar, V. 1, 1373.

9- It is a jurisprudential compilation consisted of different subjects from ṭahārah (ritual purification) to dīyāt (blood money and other financial compensations). Its subjects are as follows: ṭahārah (ritual purification), ṣalāt (prayer), ṣawm (fasting), zakāt (legal alms), khums (religious one fifth tax on savings), hajj, nikāḥ (marriage), ṭalāq (divorce), ẓihār (in the time of ignorance an Arab man could say to his wife, “you are to me like the back of my mother” and this was regarded as a divorce), īlā’ (swear to abstain from wife), li‘ān (husband’s affirmation through a cursing oath and before a court of law that the wife has been unfaithful, and a similar affirmation by his wife that the husband is lying), ‘iddah (waiting period for widows or divorced women), Yamīn (oath), nadhr (vow), Kaffārah (religious expiation), ‘itq (manumission of slaves), mukātabah (a contract between the owner and the slave by which the latter acquires his freedom against a future payment), tadbīr (a manumission of slave which takes effect from the time of the owner’s death), Ṣayd wa dhibāḥah (hunting and slaughtering), Aṭ‘amah wa Ashrabah (foods and drinks), bay‘ (selling), shuf‘ah (pre-emption), hibah (donation), ijārah (lease), waqf (endowment), shirkat (partnership), rahn (pledge), muḥārib (fighter), qaḍā (judgment), shahādāt (testimonies), Ḥudūd (penal laws), qiṣāṣ (just vengeance),  dīyāt (blood money and other financial compensations), farā’iḍ (duties), mīrāth (inheritance).

The author attempts to reject the accusation that Shi’a jurisprudential verdicts are not convinced by reason. In this book, he shows that a large number of judgments in Shi’a jurisprudence conform to Sunni scholars’ judgments. Regarding judgments that are different from Sunnis, he presents evidence from The Qur‘an, exemplary practice of the Prophet (S.A.W.), Consensus, and Imams’ Ḥadīths.

10- Al-Ṭūsī, Muhammad b. al-Ḥasan, Kitāb al-Khilāf, first impression, Qum, Mu’assisah al-Nashr al-Islāmī, 1407-1414 A.H., four volumes (printed in octavo)

The author wrote this book with the intention of presenting incompatible subjects between jurists of Shi‘a and other sects. He after setting forth a subject, indicates the views of jurists from other sects, and then, by saying: dlīlunā (our reason), starts to provide the proofs of Shi’a opinion. The author, as he mentions in the preface (volume 1, page 45), tries to use the decisive proofs, like The Qur‘an, Prophet’s traditions, and Shi’a Ḥadīths. In most cases, he has disregarded mentioning the reasons of other opinions.

11- It is consisted of nine prefaces and four chapters. The prefaces discuss about the status and value of jurisprudence, and some such subjects. First chapter is about ‘ibādāt, which includes six parts: (ṭahārah, prayer, zakāt, fasting, hajj, jihad) Second chapter discusses about ‘uqūd (contracts), and includes only one part: tijārat (commerce).

‘Allāmah says: my this book enjoys two advantages which differ it from other jurisprudential books, one is being comparative, and the other is containing main and secondary jurisprudential subjects in the abbreviated manner. Usual style of the book is so that, firs, the author proposes the issue as he believes, then presents the views of other Shi’a scholars, after that, mentions the views of the scholars from other Islamic sects. Finally, provides the evidence of his view from The Qur‘an, as well as Islamic and Shi’a traditions. Sometimes, he presents the proofs of other sects’ views, and then criticizes them; expressions like “Abū Ḥanīfah argued…” or “al-Shāfi’ī argued…” indicate these parts. Occasionally, he presents imaginary contrary accusations by an expression that “it is not said”, and then rejects them. At next stage, author discusses about branches of the issue under the title of Far‘ (branch) or Furū‘ (branches).

Jurisprudence group of the research institute of Āstān Quds Raḍawī has set up an inquiry into this book, and the first volume of it has published. It is embellished with a preface by Dr. Mahmud Bustānī, which gives valuable information regarding the book and the writer’s method.

12- The author, in response to his son’s appeal, wrote this book about abridging fatwas, presenting rules, and comparing Islamic sects. The book has four chapters such as ‘ibādāt and contracts. The chapter on ‘ibādāt is consisted from six parts: ṭahārah, prayer, zakāt, fasting, hajj, and jihad, which are the contents of the first volume. The chapter on contracts includes: bay‘, duyūn (debts), amārāt (evidences), ‘aṭāyā al-mu‘ajjal (prompt donations) waṣāyā (testaments), and marriage.

It is a book of Shi’a demonstrative jurisprudence, which contains the views of Sunni experts, too. The views of scholars like: Sa‘īd b. Musayyib, Ṭā’ūs, ‘Aṭā, Ḥasan Baṣrī, Shi‘bī, Isḥāq, Dā’ūd b. Mundhir, Abū Ḥanīfah, Shāfi‘ī, Ahmad b. Ḥanbal, etc. Among Sunni imams, Shāfi‘ī’s views are more favored by the author.

13- This book is compiled from two chapters, ‘ibādāt and personal states. The chapter on ‘ibādāt includes the subjects of ṭahārah, prayer, fasting, zakāt, and khums. The chapter on personal states contains marriage, divorce, irth (inheritance), endowment, and ḥajr (legal interdiction).

            The author compares between jurisprudential views of Shi’a and Sunni four legal schools. While narrating Shi’a attitudes, author regards “Consensus” as a criterion, but in the case of disagreement, selects a view by “fame”. In the case of disagreement among other sects, prefers the former verdict and narrates it.

In this book, author prefers to quote opinions rather than presenting reasons. It not contains critique, and sources are rarely mentioned.

14- This book introduces jurisprudential views of Sunni four legal schools (Mālikī, Ḥanafī, Shāfi‘ī, and Ḥanbalī). Jurisprudential subjects are divided into four sections: ‘ibādāt, mu‘āmilāt, personal states, and ḥudūd wa dīyāt. The subjects presented in the book, in terms of its volumes, are as follows:

V.1: ṭahārah, prayer, fasting, zakāt, hajj,

V.2: ḥaẓr wa ibāḥah (prohibition and permissibility), oath, vow, bay‘, salam (contract for delivery with prepayment), rahn (pledge), qarḍ (loan), ḥajr,

V.3: muzāri‘ah (lease of agricultural land with profit sharing), musāqāt (crop-sharing agreement for a date plantation or orchard), muḍārabah (sleeping partnership), shirkat (partnership), ijārah (lease), wikālah (procuration), ḥawālah (transfer of debts), dhimān (guarantee), wadī‘ah (deposit), ‘ārīyah (borrowing things), donation, testament,

V.4: marriage and divorce,

V.5: ḥudūd,

Some subjects are not mentioned in the book, like endowment, judgment, jihad, qiṣāṣ, dīyāt, and some other. First four volumes are the writing of the author, but fifth volume is written by Professor Ali Ḥasan al-‘Arīḍī, based on ‘Abd al-Raḥmān’s notes. At the beginning, the author intended to write four volumes in subjects of ‘ibādāt, mu‘āmilāt, and personal states. While compiling fourth volume, he wanted to write the fifth volume in order to add the subjects of ḥudūd, endowment, judgment, and jihad. However, he passed away, and the book left incomplete.

The author’s style is mentioning the jurisprudential subjects that are in agreement of at least two sects, at top of the page. Then, he indicates different views of other sects. Author usually presents the views of four legal schools in bellow order: Mālikī, Ḥanafī, Shāfi‘ī, and then Ḥanbalī.

In preface of first volume, author notifies that he tries to present the philosophy of every verdict in this book. But, in the preface of second volume disregards it and offers an excuse that providing justification for legislating decrees, leads to increase book’s size, and requires long time. He also abstains from presenting argumentations, for ease of reading. Therefore, the book mostly quotes only the views.

15- This book counts the factors that cause jurists get into a dispute over deducing verdicts. The book also compares between views of Sunni, and sometimes Shi’a, sects; and evaluates them.

The book has two chapters. First chapter introduces and explains the sources of deduction. Subjects of The Qur‘an, Sunnah, ijtihad, and imitation are discussed in this chapter. The author believes in the necessity of ijtihad, and rejects the reasons presented by opponents.

Second chapter is to talk about the factors of disagreement. It presents a valuable research regarding these factors in six sections. Factors propounded by the research are as follows: commandments, prohibitions, predicating an unconditioned subject on a conditioned one, particularizing the general expressions, generic reference before specifying, homonym, recognizing abrogated and abrogating parts of The Qur‘an and Sunnah, the quantity of information about exemplary practice of the Prophet (S.A.W.), giving credence to isolated traditions (the Ḥadīths emanated from a single transmitter) in some cases, way of preference, disagreement over outward aspects of meaning (like concept of attribute), and exercising qiyās, consensus, and istiḥsān.

Besides being comparative and innovative, different opinions are pondered and analyzed in the book. Moreover, at the end of every subject, one opinion is selected.

16- This book is consisted of two parts:

First part presents some general statements concerning jurisprudence and concurrent jurisprudence. Some subjects are as follows: dividing Sharī‘ah (religious law), factors of jurists’ disagreement, jurisprudential books, ijtihād and imitation, and sources of law and concurrent jurisprudence.

Author divides Sharī‘ah into two main sections: principles, and precepts of positive law. First section discusses about rules of jurisprudence and uṣūl. Second section is to talk about: ‘ibādāt, rules regarding household, civil transactions, economical precepts, punishments, murāfi‘āt (lawsuits), imperative rulings, and governing precepts.

Al-Khaṭīb presents a comprehensive controversy about the factors that cause jurists to have different understanding of The Qur‘an, Sunnah, and other religious sources. He, respectably, criticizes usual jurisprudential texts, and suggests some offers to reform them.

He propounds concurrent jurisprudence in five fields: considering the consistent and inconsistent religious precepts among different sects; considering reasons; conducting a research into Āyāt al-Aḥkām (verses of the revealed prescripts) and Sunnah; conducting a research into rules and bases of jurisprudence and statute law; comparing between religious precepts and statute law.

Al-Khaṭīb enumerates eight advantages for concurrent jurisprudence such as proximity of Islamic sects, utilizing Sharī‘ah, and attaining the trustworthy rulings.

Second part is allocated to a comparative argument regarding concurrent jurisprudence. In this part, author discusses about testament, inheritance, and some other jurisprudential subjects. Concerning each subject, he mentions the opinions of Sunni four legal schools, as well as Egypt’s statute law. Al-Khaṭīb, also, analyzes and criticizes the views and reasons of different sects, and, at the end of every subject submits his own idea. He also points out that Egypt’s statute law is congruent with which jurisprudential sect. He, sometimes, indicates Shi’as’ opinions, and narrates them through intermediary.

17- The book compiles jurisprudential subjects through six main titles: ‘ibādāt, most important jurisprudential views, mu‘āmilāt (transactions), possession, general jurisprudence (precepts regarding government), and personal states.

Title arrangement of the book in volume order is as follows:

V.1: ṭahārah, prayer,

V.2: prayer, fasting, i‘tikāf (voluntary retreat in a mosque for a specified period with intention of praying), zakāt,

V.3: Hajj and ‘umrah (lesser pilgrimage of Ka‘bah), oath, vow, Kaffārah, ḥaẓr wa ibāḥah, Aṭ‘amah wa Ashrabah, qurbānī wa ‘aqīqah (sacrifice and sacrifice made on behalf of a new-born child), ṣayd wa dhibāḥah,

V.4: jurisprudential views, contracts,

V.5: contracts, possession,

V.6: ḥudūd, jināyāt, qiṣāṣ, dīyāt, judgment, jihad, mu‘āhidāt (agreements),

V.7: marriage, divorce, the rights of children,

V.8: testaments, endowment, inheritance,

In preface of the book, author presents eightfold particulars of Islamic jurisprudence in contrast with statue law. He, also, divides jurisprudential subjects in different chapters in an innovative way. At the end, he mentions a short history of Islamic eightfold sects.

Author sets forth eight features for this book:

1-    Being based on The Qur‘an, Sunnah, and reason,

2-    Presenting jurisprudential views of Sunni four legal schools in comparative way,

3-    Eliciting sound Ḥadīths, and using them as a source of the book,

4-    Containing all jurisprudential rules,

5-    Focusing on practical subjects, and avoiding the issues (such as slavery) that are irrelevant to daily life,

6-    Preferring author-favored view, in the case of being, otherwise, the view accepted by most jurists is applied as a criterion,

7-    Trying to present jurisprudential issues in eloquent and accessible way,

8-    Presenting new issues, by taking inspiration from religious general rules,

Advantages of the book:

1-    Obvious classification of subjects at the beginning of book and in every section,

2-    In addition to deductive and theoretical arguments, the book clarifies the justification and place of Islamic rules,

3-    Considering new subjects. The subject of ḍarūrah (exigency) (V. 3, PP. 514-532), could be mentioned as an example,

4-    Thematic index at the end of eighth volume has made the book more valuable.

5-    Providing sources as footnote, and a short introduction of them at the end of eighth volume, has enhanced the credibility of the book.