The Shari’ah laws (1)
Why we have to pray five times a day? Why dogs and pigs are regarded as ritually impure animals? Why an animals slaughtered un-Islamically is forbidden and ritually impure? These are but few of the many questions asked by our youths about the Shari’ah laws. They want to rationalize every law of the Shari’ah; they want to know the reason and purpose of the legislation of these laws.
This chapter deals with tendency and attempts to explain the validity or otherwise of such a trend. Before explaining the validity or other wise of rationalizing the Shari’ah laws, we would like to clarify the fundamentals attitude of a Muslim towards the Shari’ah.
The Scope of Rationalization.Islam is a din religion. Din means a complete way of life consisting of beliefs and laws (both legal and moral). To find the Islamic attitude about understanding religion, we have to study the Qur’an and the sunnah. In the Qur’an and the sunnah, we find two different attitudes towards two different aspects of din. These two aspects of din are:
(a) the fundamental beliefs known as usulu’d-din the roots of religion,
(b) the Shari’ah laws known in general as furu’ud-din the branches of religion.
As for the “roots” of religion, Islam expects the Muslims to hold their belief in the fundamentals of their religion after attaining conviction of their truth through examination and reflection. The Qur’an clearly condemns those who follow others blindly in matters of beliefs. 1.This chapter was first published in 1984 (Vancouver), and then in 1985 (Vancouver).
There is no compulsion in the religion (of Islam because) truly the right path has become clearly distinct from error. (2:256) Again the Qur’an says: An when it is said to them, “Come to what Allah has sent down, and (to) the Messenger.” They say, “Enough for us is what we found our fathers doings.” What, even if their fathers had knowledge of naught and were not rightly guided? (5:104) This strong condemnation of the idol worshippers for following their fore fathers blindly has been repeated elsewhere: And when it is said to them, “Follow what Allah has sent down,” they say, “No, but we will follow such things as we found our fathers doing.”
Islam says that one may consider the views and opinions of others, but that one should only accept that which is reasonable to believe: so (O Muhammad) give good tidings to My servants who give ear to the word and follow the fairest of it. Those are the ones whom Allah has guided, and those are men possessed of minds.”
Likewise, in the books of Ahadith we find the Prophet and the imams of Ahlul-bait using intellectual arguments in matters of belief to convince their opponents or the seekers of truth. This itself is an example and sunnah for the Muslims to base their belief on understanding and conviction. But as for the “branches” of religion, Islam expects absolute obedience from Muslims. The reason for this expectation is very obvious: Once a person had believed, by his own free will , in Allah as the creator and the wise Author of laws, Muhammad as the infallible messenger of Allah, and in the Qur’an as the authentic message of Allah then it follows as a necessary consequence that he must adhere to the Shari’ah laws. This absolute obedience about the Shari’ah laws can be inferred from the following verses:-
It behoves not a believing man and a believing woman that they should have any choice in their affairs when Allah and his messenger have decided a matter; and whosoever disobeys Allah and his messenger, he surely has strayed off a manifest straying.
O you who believe! Do not take precedence before Allah and his messenger, knowing. (49:1)
O you who believe! Obey Allah, obey the messenger and those who are in authority among you (i.e. the Imams). (4:59).
We have not sent a messenger but to be obeyed (4:64).
To summarize: In Islamic beliefs, a Muslim is expected to believe only after reflection; and in Islamic laws, he is expected to follow them without any reservations.
The Categories of Shari’ah laws.Now we come to the problem that why such and such law of the Shari’ah was legislated. Considering the reasons and purpose of the laws, the Shari’ah can be divided into four categories:
1. The laws whose reasons and purpose are self evident: for example, helping the needy is highly recommended; killing is forbidden; lying is evil; paying taxes like khums and zakat is obligatory. One does not need any expertise or extra ordinary intelligence to know that helping the needy id good, paying taxes is necessary for preserving the financial equilibrium in the society; and that killing and lying is an evil. 2. The laws whose reasons and purpose have been explained in the Qur’an and Hadith: For example intoxicants are forbidden, interest is prohibited, fasting in Ramadhan is obligatory and prayers is a must.
The Qur’an and Hadith have said that intoxicant is one of the main causes of evil because an intoxicated person is no longer in control of himself. Although it took the world a long time and a bitter experience to realize the wide spread harm of drunkenness, Islam declared its harm and evil fourteen centuries ago by saying “its sin is greater than its profit.”
Interest ifs forbidden in Islam. The Qur'an and Hadith have explained the harm of interest. Interest leads to destruction of the poor section of the society, and all wealth gravitates towards the already wealthy group.*
Fasting is a physical and spiritual training which brings the servants of Allah nearer to Him ad makes them more obedient to the Shari’ah. • for a detailed discussion on interest, see ‘Allamah Tabataba’I, al-Mizan Trans S.S.A. Rizvi, vol. 4 (Tehran: Wofis, 1982) pp. 295-303. Prayers is means of expressing our gratitude to Allah O you who believe! Eat of the good things that We have provided you with and thank Allah. (2:172); it is an important way of achieving peace of mind surely by Allah’s remembrance are the hearts set at rest. (13:28); and it also a very effective method of making the believer more obedient to the laws of Islam surely the prayer keeps (one) away from indecency and evil. (29:45). There are may Ahadith of our Imams explaining the reasons and purpose of many laws of the Shari’ah. Shaykh Saduque (a.r), the famous Shiite scholar, has collected many of these Ahadith in his llalu’sh-Saraya.’
3. The laws whose reason and purpose have not been explained in the Qur’an or Hadith, but the rising horizon of human knowledge have helped in understanding their purpose and usefulness. For example, why pork is forbidden; why circumcision is highly recommended by the Shari’ah, and why only the fish which have scales is permitted in Shi’ah fiqh.
For the benefit of circumcision, we quote Sherman Silber who ways that: “There are a number of reasons why circumcision is beneficial and why it ought best be performed in infancy. First,.... it prevents cancer of the penis in later life...Cancer of penis generally occurs when there has been carelessness in taking care of one’s foreskin... A second benefit of circumcision is that the wives of circumcised man are less commonly afflicted with cancer of the cervix.. The most common benefit of circumcision is that it prevents accumulation of oils and secretions (called smegma) under the foreskin, which lead to infection, swelling, and sometimes contraction of the foreskin so the tip of the penis is trapped inside.”** About the fish, it has been said that the fish that do not have scales are harmful beings. Based on that research, American troops in the east were directed that “tropical marine fishes without scales were to be left alone.”
It must be mentioned here that the reasons of the Shari’ah laws which have been discovered by human knowledge cannot be regarded as the actual reason (ratio legis) for the legislation of those laws, because the human
• for a detailed discussion on pork, see S.S.A.Rizvi, Pork, (Tehran: Wofis, 1971).
** Sherman Silber, The Male (New York: 1981) pp. 115-116.
Knowledge is still in its infancy whereas Islam, the final Shari’ah of Allah, is to stay in practice up to the end of this world. However, the scientific facts can be used to explain the usefulness and benefits of the sharia’ah laws.
4. The laws whose reasons and purpose have neither been explained in the Qur’an and Hadith, nor the new advancement in human knowledge has been able to explain them: For example, why four rakats (cycles) in noon, afternoon and night prayers while only three in evening and two in subh prayers.
The Right ApproachAs far as the first three types of Shari’ah laws are concerned, there is not much problem in explaining their reasons and purposes. The problem arises when one starts to rationalize the laws, which come under the fourth category.
On the laws of the fourth category, the only thing, which can be said, is that a Muslim should have complete faith that there surely are useful purposes in these types of laws. The purposes can be of material or spiritual nature, or both. Why should we have such a confidence in these laws of the Shari’ah? Because we, the Shi’ah ithna ‘Ashari Muslims, believe that all the actions of Allah have purpose, and that they are for the benefit of human beings; and this includes the laws of the Shari’ah* on basis of this beliefs, we must have confidence that all His laws (including those whose purpose are still unknown to us) have a purpose and benefit for human beings.
One more thing which must be clarified at this point is that it is not only the responsibility of the ‘ulama (the scholars of Islamic religious sciences) to discover and explain the purposes and reason underlying the Shari’ah laws. Their primary duty is to explain the Shari’ah laws to the people. The responsibility for discovering and explaining the purposes of the Shari’ah laws must equally be shared by the muslin intellectuals who are experts of modern science. Unfortunately, very few of the Muslim intellectuals are interested in this aspect of the Shari’ah, and those who are interested lack the knowledge of the Qur’an and Hadith. A bridge must be built between the religious and worldly sciences; and thanks be to Allah, some small steps in that direction have been taken in last few years.
• See ‘Allamah Hilli, al-Babu;l-Hadi ‘Ashar trans. W.M. Miller, (London: Luzac, 1958) pp. 45-46; S.S.A RIZVI, justice of God (New jersey: Pyam-e-Aman, 1992) chap.1.
The belief that although we might not know the reason and purpose of a certain Shari’ah law, it surely has a good reason and useful purpose behind it can be understood from the following episode in the Qur’an. This episode also shows that if we are made aware of its reasons, we would readily admit that it was the very right thing to do.
One day while preaching to his people, Prophet Musa (a.s) thought about himself hat Allah has given him a great privilege and that he is the most learned among the mankind. Allah was not pleased with even such a slight indication of pride in Musa’s mind, and so jibrail was sent to inform Musa that there is a person, among the servants of Allah, who is more learned than him. He was also given an address to go and meet this more learned person. Musa, along with one of his disciples, went to meet the learned person who has not been named in the Qur’an but our Hadith identify him, as Khizr. The Qur’an narrates the details of their meeting:-
Musa: “Can I follow you so that you may teach me the right knowledge of what you have been taught (by Allah)?”
Khizr: “Surely you cannot have patience with me. How can you have patience in ( the things or actions) of which you do not have a comprehensive knowledge?”
Musa: “If Allah wills, you will find me patient and I shall not disobey you in any matter.”
Khizr: “If you would follow me, then do not question me about anything until I speak to you about id.”
So they went their way until they reached a river where they embarked on a boat. When they were close to their destination, Khizr made a hole in the boat.
Musa: “Have you made a hole in it to drown its inmates? Surely you have done a grievous thing.”
Khizr: “Did I not say that you will not able to have patience with me?”
Musa: “O Khizr, do not blame me for what I forgot, and do not constrain me to a difficult thing in my affair.”
Then they went on until they met a young man. Khizr killed that person.
Musa: “Have you killed an innocent person who had not killed anyone? Certain you have done an evil thing.”
Khizr: “Didn’t I say to you will not be able to have patience with me.”
Musa: “If I ask you about anything after this, then do not keep me in your company; indeed, you shall then have found an excuse in my case (to dismiss me form your company).”
They went on until they came to a town. They asked food from the people of that town but no one accepted them as guests. In that town, they found a wall, which was on the point of falling in ruin, so Khizr repaired the wall and put it into the right state.
Musa: “If you had wished, you might certainly have taken a payment for this work,”
Khizr: “This is the parting between you and me. But before you leave, I will inform you of the significance of my actions, which you could not, understands:
As for the boat, it belonged to some poor men who worked on the river. I wished to make the boat slightly defective because a king was coming behind them who seized every perfect boat by force.
As for the young man, his parents were believers and I feared lest he would oppress them by rebellion and disbelief. And we desired that their lord might give them in his place a better one than him in purity and nearer to having compassion.
As for the wall, it belonged to tow orphan boys in the city, and there was beneath it a treasure belonging to them; so I rebuilt the wall because your lord desired that when they attain maturity, they should take out their treasure, which was a mercy from your lord...
“And moreover, I did not do it of my accord. This is the significance of that on which you could not have patience.”
There are many morals in this story. What is relevant to our discussion is that if a great Prophet of Allah like Musa (a.s) could not fully comprehend the significance of the actions of a fellow human being who was more learned than him, then now can we expect to know the wisdom and purpose of every Shari’ah law which has been legislated by Allah, the wise, the Omniscient and the Omnipotent Creator of the humans and the world in which they live!
THE SYSTEM OF IJTIHADSome important terms
Ijtihad literally means “to endeavor, strive put oneself out, work hard.” In Islamic legal terminology it means “the process of deriving the laws of the Shari’ah from its sources.”
Mujtahid, means a person who does Ijtihad or who is an expert of Islamic laws. Fiqh literally means knowledge, and in Islamic terminology it means the science of Islamic laws. Fiqh (pl. Fuqaha) means the expert of Fiqh. The term’s “mujtahid” and “faqih” mean the same.
The Importance of Ijtihad.Is Ijtihad necessary? If Islam is a religion, which is to say till end of time, then there must always be some people who can guide the Muslims in the changing circumstances of time and of place. After the Prophet of Islam, the most ideal persons to guide Muslims were the imams of Ahlul-bait. However, the present Imam, Muhammad al-Mahdi (a.s) has gone into the Occultation and will reappear when Allah wishes him to appear. So what is to be done in the mean time? Are the shi’ahs to suspend the shari'ah? No, of course, not ! Islam is the religion for all times and places. The Imams of Ahlul-bait had foreseen the time of the occultation and had prepared their followers for the situation in which they will not be indirect contact with their Imam. This preparations was done by training the shi'ahs in the science of Islamic laws, or in other words, in Ijtihad. Ijtihad is an essential phenomenon for the survival of the Islamic shari'ah during the occultation of the Imam(a.s). without the system of Ijtihad, we would not be able to apply Islamic laws in the rapidly changing circumstances of human society.
Ijtihad is not permissible, but essential from the Islamic point of view. It is on obligation in Islam to study everything, which is necessary for the spiritual development and material well being of the Muslim community. However, this obligation is of the category, which is known as “Wajib Kifai”*. In the present instance, for example, Islamic society needs experts in the medical sciences, in physics, and chemistry, in engineering, education; and as long as there is lack of expertise in these areas, it is an obligation on the community as a whole to acquire it. This means that a group of Muslims must devote themselves to research so as to benefit the Islamic people. Similarly, an Islamic society without experts in the Shari’ah cannot properly consider itself Islamic, and so it is an obligation for a group of persons from this society t devote themselves to the study of the religious sciences to provide proper guidance to all Muslims.
This is such and important obligation that Allah has exempted those who go to seek religious knowledge from the duty of jihad. He says, “It is not (right) for the believers to go forth all together (for jihad). Os why should not a party from every section of them (believers) go forth to become learned in the religion, and to warn their people when they return to them so that happy they may beware?”
It is clear from many narrations that the Imams of Ahlul-bait (a.s) used to be pleased whenever any of their companions taught religion or gave legal rulings (fatwa) to others. There are several documented cases of shi'ahs who lived far from median asking the Imam of their time to appoint someone in their area to adjudicate between them in religious problems: Zakariyyah Ibn Adam
• An obligation which is on every member of the community as long as it is unfulfilled; but as soon as some person or persons has fulfilled it, it is no longer and obligation on those who have not fulfilled it.
Al-Qummi and Yunus Ibn ‘Abdu’r-Rahman, for example, were named by Imam ‘Ali ar-Reza (a.s), to solve dispute in their own districts,* In a famous Hadith, ‘Umar Ibn Hanzalah asked Imam Jafar as-Sadique (a.s) about the legality of two shi'ahs seeking a verdict from an illegitimate ruler in a dispute over a debt or a legacy. The Imam’s answer was that it was absolutely forbidden to do so. Then Ibn Hanzalah asked what the two should do, and the Imam replied: “They must seek out one of your own who narrates our traditions who is versed in what is permissible and what is forbidden, who is well acquainted with our laws and ordinances, and accept him as judge and arbiter, for I appoint him as judge over you...** Beside these Ahadith, we have quite a few sayings of the Imams which tell us what to do if we come across two Ahadith which are contradictory or semi contradictory and solving the contradictory Ahadith is one of the function of Ijtihad. These types of Ahadith are known as al-akhbar al-‘ilajiyyah, the Hadith which solve the problems in the process of Ijtihad.
What we have mentioned above, clearly shows that Ijtihad is necessary for the perpetuity of the Islamic legal system.
Was not Ijtihad forbidden in the Early Shi’ah sources?
There are some sayings of the shi'ah Imams (a.s) some writings of their companions and that of our early ‘ulama’ which severely condemn the use of Ijtihad. This has created confusion among non-specialist readers and given rise to the question whether or not Ijtihad was permitted in Shi’ah Islam. This confusion can be easily sorted out by studying the changers undergone by the word “Ijtihad”. The word Ijtihad was used for the first time by a Sunni school of fiqh in the meaning of ra’iy. Ra’iy means “a subjective opinion, an opinion based on one’s personal judgement as opposed to that of the Qur’an and the Hadith.” In this sense, “Ijtihad” was by itself an independent
• al-Amili, Shaykh Hurr, Wasa’ilu’sh-Shiah, vol. 18 (Beirut Dar ihyai’t-Turathi’l-Islami, 1391 AH) p. 106-107.
• Al-Kulayni, al-Furu’min al-kafi, vol. 7, p. 412.
Source of the shari'ah laws besides the Qur’an and the sunnah. Abu Hanifah, the founder of the Sunni Hanafi school of fiqh, was the main proponent of this system of Ijtihad.*
The term Ijtihad continued to be used exclusively in the meaning of ra’iy up until the early seventh Islamic century. In the seventh Islamic century, some of the shi'ah ‘ulama’ started the term Ijtihad in a different and new meaning. They used the term “Ijtihad’ for ‘the process of deriving the laws of the Shari’ah from its sources”. In the first meaning, “Ijtihad” stands alongside the Qur’an and the sunnah as an independent source of the Shari’ah laws, in its new meaning, “Ijtihad’ is a process of deriving the Shari’ah laws form the Qur’an and the sunnah. The first Shi’ah scholar to use the term “Ijtihad” in its new meaning was Muhaqqi al-Hilli (d. 676 AH) in his al-Ma’arij. Al-Hilli says “Ijtihad means to strive for deriving the Shari’ah laws from their sources.”**
The change through which the meaning of “Ijtihad” has undergone clears the confusion about the legality of Ijtihad: some of the sayings of the Imams (a.s). the writings of the companions and the early shi'ahs ‘ulama’ condemn Ijtihad in its pre- 7th century meaning of “ra’iy”; they are not opposing the Ijtihad in the post-7th century meaning of “the process of deriving the Shari’ah laws from their sources”. The condemned Ijtihad is a source of the Shari’ah laws, while the recommended Ijtihad is only the process of deriving the Shari’ah laws from their sources. The permissibility of Ijtihad in its post-7th century meaning is beyond any doubt.
The process of Ijtihad.The process of deriving the Shari’ah laws from their sources is based on two main branches of Islamic sciences: usulu’l-fiqh and fiqh. “usulu’l-fiqh” is • Istihsan, istislah or maslahah, and ta’awul are different forms of Ijtihad in the meaning of ra’iy. All these terms mean the application of personal discretion in legal decisions.
• See as-Sadr, S. Muhammad Baqir, Durus fi’llmi’l (Usul, vol. 1 *Beirut: Daru’l-Kitab, 1978) pp. 55-60; also see Mutahhari, M., “Ijtihad dar Islam”, in bahsi dar-barah-e-Marji’iyyat wa Ruhaniyyat (Tehran: Shirkat-e-Intishar, 2nd EDT.) pp. 37-42. Mutahhari mentions ‘Allamah Hilli (d.726 AH) as the first user of the term Ijtihad in its new meaning but Sadr has sown shown that I was used before ‘Allamah by his uncle the Muhaqqiq al-Hilli. The science of the method of deriving the Shari’ah laws; it is the methodology of Ijtihad. “Fiqh” is the practice of Ijtihad; it is the process of deriving the Shari’ah laws. In usulu’l-fiqh, the mujtahid studies the method of Ijtihad; in fiqh, he uses that method to derive the Shari’ah laws. Thus, usulu’-fiqh is the theory of Ijtihad whereas fiqh is the practice of Ijtihad.
In the following pages, we would like to give an out line of usulu’l-fiqh and fiqh to familiarize the reader with the system of Ijtihad.
The first and fore most issue to be discussed in usulu’l-fiqh is about “the binding authority of conviction” (hujjiyyatu’l-qat’). The validity of conviction is determined by intellectual reasoning. This is the corner- stone of Ijtihad; it means that the main basis of determining a source of Shari’ah is to see whether or not one can achieve conviction about the laws derived from that source. If a mujtahid fins that particular source, for example, the Qur’an, is such that he can achieve conviction about the laws derived from it, then such a source is considered by him as a valid and reliable source for Ijtihad. This process divides the potential sources of Shari’ah laws into two convincing and non-convincing.
Convincing (Qat’i) and non-convincing (Dhanni) sources:
In examining the potential sources of the Shari’ah, a mujtahid may find two kinds of sources; either the source creates conviction about the laws derived from it or not. In the first case, it is known as dalil Qat’i a convincing proof, a cogent proof, a proof which creates conviction about the proven laws. In the second case, the source is named dalil Dhanni a presumptive proof, a proof based on mere assumption. The mujtahid will consider the dalil Qat’i (the convincing proof) as a valid source for the Shari’ah laws. But he will not conside4 the dalil Dhanni as such because dalil Dhanni does not create conviction, it just gives rise to assumption. A mujtahid cannot rely on a Dhanni proof or source for deriving laws unless the Shari’ah itself approves its use for this purpose. Below I will give examples of two Dhanni sources, one approved by the Shari’ah and another disapproved by it.
The first example: Among the various categories of Hadith, there is a category known as khabar wahid thiqah- a Hadith reported by a single reliable person. Khabar wahid thiqah is a Dhanni source. Why? Because a Hadith reported by single person does not create conviction about its content even it the reported is reliable there is the chance of forgetting, misunderstanding or unintended misquotation on the part of the truthful, reliable reporter.
However, inspite of being a Dhanni source, khabar wahid thiqah is considered by most of Shiah mujtahids as valid source for the Shari’ah laws. Why? Because the Shari’ah itself has approved it. Verse six of chapter forty-nine says that if a single report (khabar wahid) comes from an unreliable (fasiq) reporter, then it should not be accepted without further verification. The implication of this verse is that if a single report comes from a reliable (thiqah) reporter, then accept it without any need for further verification. Therefore, the mujtahids accept the single Hadith narrated by a reliable reporter as a source for Shari’ah laws because the Quran has implicitly approved it.
The second example: One of the Dhanni sources for the Shari’ah laws is qiyas. In Islamic laws, qiyas means analogy. In qiyas, you look at a Shari’ah law for one issue and then apply it to another issue because of the similarity that exists between the two. Let us suppose that “wine is haraam” is a proven law of the Shari’ah. You then look at beer and says that ‘beer is like wine’; and then you apply the law of wine on beer here the prohibition of beer has been proved on basis of qiyas. Qiyas is a Dhanni proof, it does not create conviction because one cannot always know the real reason (illah in Arabic, ratio legis in Latin) of the Shari’ah laws. And since the Qat’i sources of the Shari’ah have not approved the use of qiyas as a way of deriving Islamic laws, qiyas is not accepted by our mujtahid as a valid source for Shari’ah laws.*
However, according to most mujtahids, if the Shari’ah has explicitly explained the ratio legis (‘illah) of a particular law, then the mujtahid can *For the sayings of the Imams of Ahlul-bait in rejection of qiyas as a source of the Shari’ah laws, see the last chapter of Wasa’ilu’sh-Shi’ah, vol.18. Generalize that laws for other similar things by the means of qiyas. And in such cases, it is known as qiyas manususi’l-illah- an analogy based on the ratio legis explicitly explained (by the shari'ah).
In order to use the legal proofs in ijtihad, the mujtahid has to study the following issues in usulu’l-fiqh:
LEGAL (SHAR’I) AND RATIONAL (AQL'I) PROOFS:
All sources of the shari'ah, whether qat’i or dhanni, can be of two types: dalil Shar’i and dalil ‘aqli. Dalil Shar’i means a source which emanates from religious texts; we May translate it as “legal proof”. Dalil ‘aqli means a source which emanates from intellectual arguments. 1. Dalil Shar’i:
Dalil Shar’i or the legal proof. The dalil Shar’i consists of the Qur’an and the sunnah the two main sources of the shari'ah. The dalil Shar’i is divided into two: (a) Oral proof like the Qur’an and the hadith. (b) Non oral proof like the practice of the ma’sum and his ‘silent approval’ of the action done in his presence. The silent approval of a ma’sum is known as “twaqrir”. However, even the non-oral proof reaches to us through the oral reports of the witnesses; therefore, all practical purpose, both the oral and non-oral proofs are on the same level. In order to use the legal proof in ijtihad, the mujtahid has to study the following issues in Usulu’l-fiqh:
(A) The Linguistic Problems:
Some of the questions studied in this areas are: I. Should I take all the words in dalil Shar’i in their literal meaning?
II. Are metaphorical meanings of any use in dalil Shar’i or not?
III. What are the imperative form of words and what are their implications: does a command to do something automatically means the one is forbidden from it’s opposite?
IV. What are the implication of the unconditional use of the word: do we generalize its contents?
V. What is the implication of a conditional sentence: do we restrict its application?
VI. What are the implications of a nass? (Nass means an oral proof containing a word, which has only one meaning).
VII. What are the implications of a mujmal? (Mujmal means an oral proof containing a word, which has more than one meaning and I used in those meanings equally).
VIII. How do we use the context of the sentence to understand the mujmal word? For example, the word “yad” is used in the Qur’an in the verses of wudu, tayammum and punishment of theft. The word “yad” in such verses? Well, in the verse of wudu it is simple because we have context; the verse says that wash your “yad up to the elbows”. The context (“up to the elbow”) helps us in under standing the meaning of “yad” in the verse of wudu.
(B) The Problems of Authencity:
The mujtahid has also to study the ways of determining the Authencity of the legal proofs. This problem has given rise to the development of tow sciences known as ‘ilmu’r-Rijal and Dirayatu’l-hadith. ‘ilmu’r-Rijal literally means ‘knowledge about men,’ it deals with the biography and character of the narrators of hadith. On basis of this knowledge, the ‘ulama’ classify the classifying the hadith as authentic or acceptable or weak or fabricated or unreliable, etc. There are at least 38 different classification of hadith. Dirayatu’l-hadith means the sciences of hadith, and it deals mostly with the “chain of narration” as a whole instead of the individual narrators. This sciences helps the mujtahid in classifying certain narrators into groups and expedites their judgement about hadith narrated through those particular channels.
Example of haw a mujtahid comes to know of a legal proof.
i. Tawatur: a narration reported be so many people that the very number of its reporters is enough to create conviction about the truth of its contents. A hadith or an account of a ma’sum action narrated in such a way is known mutawatir.
ii. Khabar wahid thiqah: a hadith narrated by a single reliable narrator. We have already mentioned khabar wahid thiqah earlier.
iii. Siratun mutasharri’ah the general attitude or practice of the religiously minded companions of our imams about a particular issue which is not found in the existing hadith literature. This general attitude or practice’ is known as Siratun mutasharri’ah. This sirah indicated that an oral proof must have existed during their time. For example, is the prominent companions of Imam ja’far as-Sadiq (a.s) did not attend the Friday prayers led by persons appointed by the rulers, then attitude proves that the Friday prayer behind a person appointed by an illegitimate government is not valid otherwise, the Imam would have objected to the actions of this companions.
iv. Ijma means consensus. In Usulu’l-fiqh, it refers to the consensus of the early shi'ah ‘ulama on an issue which is not found in the existing hadith literature. Such an ijma indicates that an oral proof must have existed in their time on which they based their ruling. In shari'ah jurisprudence, ijma is not by itself a source of the shari'ah; instead. It is means of proving the existence of an oral proof, which is now extinct.
2. Dalil ‘Aqli:
Dalil ‘aqli means the intellectual reasoning or rational argument. In Usulu’l-fiqh, dalil ‘aqli means the intellectual prepositions which can be used as a source of deriving shari'ah laws. However, the scope of intellectual preposition in shari'ah is limited; it is not like ijtihad bi ‘ra’iy (application of independent opinion).
The intellectual prepositions are only used for deriving the details of the shri'ah laws which exist. For example, one such intellectual preposition says, “If an act is made obligatory (wajib by the shari'ah, then it automatically follows that its essential preliminaries are also wajib.” This intellectual preposition is known in Arabic as “muqaddimatu’l-wajib, wajibun”. So, if the shari'ah says, “Hajj is wajib,” then the mujtahid can use the above mentioned intellectual preposition and derive the following laws: to travel to Mecca is wajib; to acquire the means of transportation is wajib, and to apply for a passport is wajib because without these preliminaries, Hajj would not be possible. The intellectual prepositions which are used in ijtihad are formed by studying, among other things, the following relationships between the shari 'ah laws:
i. The relationship between haram (forbidden) and batil (invalid) : if an act is haram, is it automatically batil also?
ii. The relationship between haram (forbidden) and sahih (valid) : can an act be valid but haram at the same time?
iii. The relationship between legislation of law (ja’l) and its application on an individual (fi'iyyah).
iv. The relationship between the laws and those on whom they are to be applied.
v. The relationship between laws and its essential preliminaries as explained in the example of Hajj.
THE PROCEDURAL RULES(Al-Usulu’l-‘Amaliyyah):
After defining the sources of the shari'ah, the mujtahid has to set up a mechanism to solve the problems which have not been mentioned in the Qur’an and the sunnah. For example, when a mujtahid looks into his sources for the ruling on smoking, he does not find anything specific on it. in Usulu’l0Fiqh, the mujtahid establishes some “intellectual rules” or “practical principle” which he will use in such cases. These rules or principle are known as “al-usulu’l-amaliyyah”.
The Usulu’l-Amaliyyah are four: asalatu’l-is-tishab; asaltu’l-bara’ah; asalatu’l-ihtiyat; and asalatu’l-takhyir.
i. Asalatu’l-istishab means the principle or rule of continuity,. The principle is used in a case in which a person has “ a previous certainty” and “ a present doubt” about the same thing. For example, there is a glass of water on my table. I am sure that it was ritually pure (tahir) in the morning, but now I doubt in its spiritual purity. The principle of istishab says that act on your previous certainty and ignore your present doubt because doubt cannot over ride certainty.
This procedural rule has been taken from the following hadith of Imam ja’far as-Sadiq (a.s) who said in answer to Zurarah that “doubt cannot over ride certainty; it can be over ridden only by another certainty.”
v. Asalatu’l-Bara’ah means the principle of exoneration. This procedural rule is applied in a case, which has not been mentioned, explicitly or implicitly, in the sources of the shari'ah. Asalatu’l-Bara’ah says that since the shari'ah has no opinion in this issue, the Muslims are free to do whatever they like. For example, when dealing with the question of smoking, the mujtahid does not find any opinion about it in the sources of shari'ah. In such a case, he would apply the principle of exoneration and say that “smoking is not haram”.
vi. Asalatu’l-ihtiyat means the principle of precaution. This principle is applied in a case where there is only partial knowledge about the law, that is in cases of al-‘ilmu’l-ijmali—where there is a semi doubt and a semi certainty. In such cases, the shari'ah expects us to act precautionarily. A most familiar example where this principle is applied is the case of Friday prayer during the major occultation of the present Imam. We know that on Fridays, one of the two prayers either Fridays or noon prayer definitely wajib, but we do not know which one. Application of aaslaltu’l0ihityat in this case would mean that it is precautionrily better to pray both prayers to ensure that we have performed what was expected of us.
vii. The last procedural rule is known as Asalatu’l-Takhyir. Asalatu’t-takhyir which means the principle of choice. This principle is applied in cases similar to that of asalatu’l-ihtiyat, that is, semi doubt and semi-certainly. However, the principle of choice is applied where it is not possible to act on both sides of the issue, for example, when dealing with the noon or Friday prayer issue, some mujtahids may conclude that saying both prayers is not practical and specifying one without a clear evidence is not correct therefore, they apply the principle of choice and say that one can say either Friday prayer or noon prayer.
THE PROBLEM OF CONTRADICTIONThe last topic to be discussed in Usulu’l-Fiqh deals with the problems of contradiction in the proof of the shari'ah. The mujtahid has to lay out a mechanism, which he will use in case he comes upon contradiction in his sources. Our Imams have given quite a few guide lines to solve problems; as mentioned earlier, the ahadith dealing with these problems are known as al-akhbarau’l-ilajiyyah.
The contradiction between the proofs can be found in different forms and has to solved in different ways:
(a) The contradiction between two oral proofs can occur in following ways:
i. A nass and a hadith with an “apparent” meaning: the former is preferred over the latter. For example, one hadith says, “pray (salli) the midnight prayer;” and another hadith says, “Midnight prayer is recommended (mustahab).” The first example is of a hadith with an “apparent” meaning: it contains the word “pray” in imperative form, which is used both for obligatory acts as well as for recommendation. The second example is of a hadith, which is a nass: it contains the words “recommended” which only means that the act is recommended and not wajib. In this case, the nass will be preferred and used as a qualifier for the “apparent” hadith.
ii. One is of a general nature and the other is conditional: the conditional proof curbs the generalization of the former. For example, one hadith says, “if you break your oath, then you must free slave;” where as another hadith says, “if you break your oath, then you must free a Muslim slave.” The second hadith will be preferred and used to curb the general implication of the first hadith.
iii. One deals with the legislation of laws and the other restricts its application on certain individuals: the later over rides the former. For example, one hadith says, “respect the ‘ulama;” while another hadith says, “Do not respect the fasiq ‘ulama.’ The latter hadith limits the application of the former hadith.
(b) if two authentic ahadith contradict each other in such a way that it is not possible to reconcile them together, then both are to be discard.
(c) If the contradiction is between “convincing oral proof” and an non-oral, non-convincing proof, then the former is preferred.
(d) If there is contradiction between a convincing proof and a dhanni proof on the one hand and a procedural rule on the other, then the former is accepted because the latter is applied only when there is no proof at all.
(e) If there is a contradiction between the principles of bara’ah and of istishab, then the latter is preferred.
In fiqh, the mujtahid derives the shari'ah laws from the sources determined by him in Usul’l-fiqh. All the issued discussed in fiqh are traditionally classified into four main groups. This classification was made by Muhaqqiq al-Hilli (d. 676 AH) in his famous work of jurisprudence Sharaya ‘ul-Islam. The following is a list of the subjects discussed in fiqh according to the traditional classification: Group one: Ibadat the Acts of Worship:
Cleanliness. Prayers. Fasting. Wealth tax. Annual tax. Pilgrimage. Jihad. Bidding the good and forbidding the evil. Group Two: Uqud Mutual Contracts:
Business transaction (bay). Mortgage (rahn). Bankruptcy (Muflis). Limitation of one’s legal competence (hajr). Liberty (ziman). Compromise in financial disputes (sulh). Partnership (shirkah). Silent partnership in trade (mudarabah). Silent partnership in agriculture (muzara’ah and musaqat). Trust (wadi’ah) lending (ariyah). Hiring (ijarah). Representing others (wikalah). Endowments (waqf). Deeds of gifts (hibah). Making of wills (wisayah). Marriage (nikah).
Group three: Iyqa’at Unilateral instigation’s: Divorce (talaq). Marital disputes (khul, mubarat dhihar, Iy’an, iyla). Emancipation of slaves (itq). Confessions in legal matters (iqrar). Reward (ja’alah. Vows (yamin).
Group four: Ahkam Miscellaneous:
Hunting and Slaughtering (sayd and dhibahah. Eating and drinking (at imah and ashribah). Misappropriation (ghasb). Neighbour’s and Partner’s first right to buy (shaf’ih). Revival of virgin land (ihya’ul mawat). Inheritance (irth). Arbitration (qada). Testimony (shahadah). Punishment (hudud). Retaliation (qisas). Blood money or indemnity for bodily injury (diyah). This was the old classification, which has been used with slight changes till the present time. Here I would like to present a modern classification of fiqhi issues done by the late Sayyid Muhammad Baqir as-Sadr in his al-Fatwa al-Wadhiha.* Ayatullah as-Sadr of Najaf, Iraq was a shining star among the new generation mujtahids; unfortunately the shi'ah world was deprived of his knowledge and leadership when he was tortured and killed by Saddam’s regime in 1981. According to his classification, which we hope will be adopted by the fiqhi circles of our time, all the shari'ah laws are divided into four groups.
Group one : Ibadat the acts of worship:
Cleanliness. Prayers. Fasting. Pilgrimage to Mecca.
Group two: financial laws:
(a) On social level:
Zakat. Khums and land tax (khiraj), tax on the non-Muslims under the protection of an Islamic government (jaziyyah), and spoils of was (anfal). (b) On individual level:
• Sadr, S.M. Baqir, al-Fatawa al-Wadihah (Najaf, 1976) pp. 46-47. i. The laws about the means of possession: revival of virgin land; hunting; by products of one’s property; inheritance; loan; mortgage; deeds of gifts; etc.
ii. The laws about the use of possessions: business transactions, exchange of commodities based on compromise, partnership, endowment, legacy, etc. Group Four: Social laws:
Governance, judiciary, penal code, jihad, etc. We may add in the list of “Social laws” the new chapter started by Ayatullah al-Khui known as Kitabu’l-Mushtarikat (the book of public property)* which deals with the laws about public road, mosques, school welfare homes, rivers and streams. Lakes and oceans, and mines.
A look into the future of ijtihad.The sciences of Usulu’l-fiqh, like any other science, have evolved and expanded with the passage of time. But during the last hundred years, especially since the emergence of Shaykh Murtaza al-Ansari (1214-1281 AH), these two sciences have expanded greatly and rapidly. In the light of this positive developments, and idea has been floating among the experts of fiqh since the death of Ayatullah Husayn Burujardi about compartmentalization of ijtihad.
The first person who raised this issue was Shaykh ‘Abdu’l-karim Ha’iri Yazdi (1276-1355 AH), who has the credit of revitalizing the Hawza ‘Illmiyyah of Qum. Shaykh Ha’iri student, Shahid Murtuza Mutahhari brought this idea in a public forum for the first time in a speech at the seminar organised after the demise of Ayatullah Burujardi in early sixties. He says, “it is better that fiqh be divided into different compartments, and that each group, after general ability of ijtihad, should specialize in one particular are of fiqh.”**
*Khui, S. Abu’l-Qasim, Minhaju’s-Salihiyin, vol. 2 (Najaf, 1394 pp. 174-181).
**Mutahhari, Ijtihad dar Islam,” p. 61.
This idea is very noble. But two recent developments in shi'ah world have made this idea into a necessity. First, the Islamic revolution in Iran had availed an unprecedented opportunity for the shi'ah mujtahids to work on political, economic, social and moral problems which the shi'ah community faces in Iran. Second, the large-scale migration of Muslims to the west had given rise to issues and problems, which were unheard of before. Expecting a single person to fully and comprehensively provide guidance for all problems is asking for too much. The only solution for the future of the shari'ahs is nothing but the compartmentalization of ijtihad.
However, this is not something, which can emerge or be created over night; it has to take its due course. After a couple of generations, hopefully, we might have mujtahid specializing in four different areas of fiqh 1. Acts of worship (Ibadat) 2. Economic problems; 3. Personal laws; 4. Social and political issues. And the shi'ahs of that time will be doing taqlid of either four different mujtahid or of council of ijtihad composed or mujtahids specializing in their respective fields.
In short, the dynamic spirit inherited by the shi'ah ‘ulama from their Imams will keep the light of ijtihad shining in one form or another. The future al-Hamdu’lil lah, is bright.
• Mutahhari, “Ijtihad dar Islam”, p. 61.