Shia Fiqh in Relation to Various Islamic Sects

The article, which was written by Dr. Abulqasim Gorji, Discusses of how Shia fiqh and Usul al-Fiqh is viewed in other Islamic Sects.

 

Usul al-Fiqh (Principles of Jurisprudence)

Ijma’

1. There is no considerable difference as to the principle which maintains that inference of religious decrees can be based on or supported by consensus of opinion (ijma’). But there are some dif­ferences as to what are the criteria of authority and authenticity (hujjiyyah) of ijma’ (consensus of ‘ulama’).

The Sunnis consider ijma ‘ as a credible and an authoritative source (hujjah) by itself as soon as a consensus is reached. But the Shiites say that id’ (consensus of ‘ulama’) is absolutely valid only if confirmed by an infallible Imam (imam ma’sum).

 

Qiyas

2. Also, there are some differences as to the validity of reasoning by analogy (qiyas mustanbat al‑‘illah). All the Sunnis, with the excep­tion of the Zahiris, believe this kind of analogical reasoning (qiyas) to be a legal authoritative source (hujjah). But the Imamiyyah Shiites, in addition to rejection on logical and rational basis of all the arguments of the Sunnis in favour of qiyas, consider it as unwarranted in the light of explicit traditions (riwdyat) of their infallible Imams.

 

Istihsan

3. As to the practice of istihsan (application of discretion in a legal decision; something that looks “good” and “advisable” to a jurist, but he can’t argue convincingly in its favour), there are some differences among various Islamic sects. The Malikis, the Hanafis and the Hanbalis believe istihsan to be hujjah (an authoritative source for legal decisions). But the Shi’ah, the Shafi’is and the Zahiris do not regard it as In this respect, the Shi’ah say: Some of the definitions given for “istihsan” supply no credible reasons for their support, whereas other acceptable arguments advanced under its title affirm the validity of something which is not “istihsan”.

 

Al-Masalih al-Mursalah

4. As to the “expediencies of the situation” (al‑masalih al­-mursalah), many Sunnis, including Malik and Ahmad, consider them to be That is, they infer religious decrees in accordance with expediences.

But the Shiites and the Shafi’is do not regard al‑masalih al‑mursalah as hujjah. On the whole, in cases where inference has been made from expediences, in absence of a specific nass(explicit religious text or decree), the issue can be deduced from “general decrees” (nusus ‘ammah), or based on definite rational reasons; in such cases, no doubt, the inference is valid; however, its validity depends not on the basis of “expedience”, but because of its compatibility with the “general decree” or on account of its rational basis. Otherwise, one cannot base an argument solely on “expediences” and pronounce a decree on this basis.

 

Taswib and Takhti’ah

5. The Mu’tazilites and many of the leaders of Ahl al‑Sunnah believe that in cases other than those explicitly defined or ordered (ahka mansusah), the interpretation of the Divine decree is subject to the opinions of mujtahidin (authorities on religious law); or, if a real decree (hukm) does exist and the opinions of mujtahidin turn to be the contrary of that hukm, the real hukm undergoes change and the new one will be considered the real

This viewpoint is called “taswib”(ratification). The Imamiyyah Shiites, as well as many other Muslims, believe that in all cases, whether an explicit decree (nass) exists or not, there is, in fact, a fixed unchange­able decree (hukm) which the mujtahid may or may not find out. This viewpoint is called “takhtiah” (fallibility of mujtahids).

 

Fiqh (Islamic Jurisprudence)

In this category, many details and secondary issues (al‑furu’) such as al‑‘ibadat (worships), mu’amalat (transactions), ‘uqud wa iqa’at (contracts) and other matters have been propounded, and the views of various Islamic sects, especially the Imamiyyah Shi’ah, have been explained. Here, to avoid prolongation, we refrain from mentioning all the furu’, and confine ourselves to pointing out only few of them.

 

Ḍaman (suretyship)

1. Daman (suretyship): The Sunnis believe that besides the main debtor, the surety (the person who has stood surety for the debtor) will be held responsible for the due; but contrary to the opinion of the Sunnis, the Shiite believe that after suretyship the creditor can no longer ask the main debtor for the due, but can simply demand its return from the person standing surety.

 

Mut’ah

2. Mut’ah (usufruct or temporary marriage): This decree of tempo­rary marriage is considered abrogated by the Sunnis. But the Shiite believe that according to ijma ‘ and as suggested by Quranic verses and reliable traditions (riwayat), the decree of mut’a stands valid, and its permissibility which existed in the time of the Holy Prophet of Islam (S) remains as it was, and no change has occurred in that decree.

 

Witnesses

3. The presence of witnesses: The Sunnis believe the presence of witnesses in nikah (marriage contract) to be requisite for its validity. The Shiites believe that it is not necessary to have the witnesses present at the time of nikah, and contrary to the belief of the Sunnis, the Shiites believe it is requisite for the validity of divorce that two “just” (‘adil) individuals should be present at the time of divorcing.

 

Inheritance (Irth)

4. Regarding inheritance (irth), too, some cases of difference are observed, of which just two points shall be mentioned here:

If after paying the shares of the heirs, anything is left over from the property of the deceased person, the Sunnis allocate the remainder merely to the male relatives of the deceased person and call it “ta’sib “. But the Shiite divide the remainder among all those who have inherited from the deceased person in accordance with their shares and call it “radd “.

For example, if the heirs of a (deceased) person are his father and a daughter of his, half the estate will be the share of his daughter and one‑sixth the share of his father. As for the two‑sixths of the estate which is still left, the Sunnis believe it to be the share of the father of the deceased person and the Shiites believe that it (the remaining two­ sixths) should be divided into four parts, and of these remaining four shares, three shares will be given to the daughter and one share to the father of the deceased person.

On the contrary, if there is a deficit and the estate of the deceased person is less than the shares of his or her heirs and it is not possible to give all the shares of the heirs, for instance, if the heirs of a woman are her husband, her parents and a daughter of hers, half (1/2) the estate will be the share of her daughter, two‑sixths (2/6) will have to be given to her parents and a quarter (1/4) to her husband, and if we add up the shares, it will become thirteen‑twelfths (13/12) shares. In this case, the Sunnis deduct the one‑twelfth (1/12) lacking from the shares of all the heirs in accordance with their own shares.

That is, instead of dividing the estate into 12 parts, the Sunnis divide it into 13 parts and give six shares to the daughter, four shares to the parents and three shares to the husband of the deceased person. Obviously, in this way, the shares of all the heirs will somewhat dimi­nish. And this is called (awl). But in the opinion of the Shiites, the deficiency will have to be borne by some of the heirs, in this case by the daughter of the deceased person.

The selection taken from “Shi’ism in Relation to Various Islamic Sects” by Dr. Abulqasim Gorji.