An Jntroduction to Shi'i Law

a bibliographical study
Hossein Modarressi Tabiitaba'i
//

Ithaca Press London 1984

THE

SHT'T LEGAL SYSTEM AND ITS SOURCES

prevalent Shi'i school, follow the opinions of their twelve Imzms, especially the s i x t h , AbG 'Abd Allzh Ja'far b . Mubammad al-fjadiq, and for this reason their legal school is also known a s Ja'farT. Chapter One

***

The Qur'En, Tradition ( s u n n o ) , the consensus of the S h i ' i jurists (ijmz') and reason ('oql)' form the sources of S h i ' i law. The Qur'Zn, in i t s apparent literal s e n s e , h a s shaped t h e spirit and foundation of S h i ' i law. The Tradition, i.e. the statements, deeds and tacit consent of the Prophet and t h e ImZms, must be handed down b e reliable n a r r a t o r s . In

A s a doctrinal system, Shi'ism represents a particular tendency of Islam

shaped by a chain of theologico-historicaI analyses. The YodTth olThoqolayn, a tradition which was handed down by both Shi'is and Sunnis from the Prophet, according to which the Prophet called on Muslims to follow the Qur'an a n d his own Family after him,

respect to this reliability, the doctrinal views of the transmitters a r e considered irrelevant. A tradition handed down by a reliable non-Shi'i is viewed a s sound and acceptable just a s one transmitted by a veracious Shi 'i . IjmC', i . e . the unanimity of the views of all S h i ' i jurists on a certain legal question, i s not a source on i t s own, b u t it can become a means through which the opinions of the Imgms may be discovered. This function of iimo" has been explained in various ways, u p to twelve. The most popular among these in contemporary S h i ' i law holds that since ijma' is the unanimity of the views of 'all' S h i ' i scholars, it naturally includes the views of those scholars who lived in the time of the Imams o r the period quite close to i t . Many of these were close companions of the Im&-~s and knew their opinions quite thoroughly. The consensus of these very early jurists, rnost of whom were absolute followers of the Imams, normally demonstrates the view of the ImZms. By 'reason' a s a source4 for S h i ' i law i s meant categorical judgments The common sources of t h e four Sunni legal schools are : the Q u r 'an, Tradition, ijm6' and qiycis. Opinions differ about a number of other sources which have been added by some of the schools to those four. IjmG' is a source on i t s own in the Sunni legal system. QiyFs i s the application of the precept of a certain legal case to a similar one through analogical reasoning. The S h i ' i s maintain that such an application is possible only where there is a basic common denominator between the two cases inasmuch a s one can be certain that the same reason which is behind the precept in the original case, covers the other case a s well (see Karaki, Tor7q istinbGl 01-obkcim, p . 17). It should be noted that these a r e the sources of the predominant U@lT school of S h i ' i law. The AkhbCrrT school resorted only to Tradition. The earliest legal work in which the four sources above are mentioned with the same order is Ibn I d r i s al-lJil1i1s 01-SorG'ir , p . 3. The early ShT'i usJI works did not usually mention reason a s a source of law. See f u r t h e r Mu?affar, 11, p . 122.

' was, along with a number

of other traditions,' the root and original source of this tendency which was later strengthened by f u r t h e r theologico-philosophical and historical reasonings. In religious matters, Shi'ism has generally based i t s views on t h e The main difference between Sunni and S h i ' i legal schools is t h e manner in which they received the Prophet's Tradition a n d in their legal sources. Whereas Sunnis received Tradition a s transmitted by the Prophet's companions, S h i ' i s received it through his Family. In another r e s p e c t , whereas Sunni legal schools follow the juridical opinions of some jurisconsults of Medina and I r a q , Shi'is follow t h e opinions of their Imams, who were descendants of t h e Prophet.
-

instructions ofprominent members (Imzms) of the Prophet's family.

The Twelver Shi'a which is now the

See Ibn Sa'd, 11, p. 194; Abmad, 111, p p . 14, 17, 59, IV, p . 371, V, p p . 181-2; Muslim, 11, p p . 237-8; Tirmidhi, 11, p p . 219-20; Nasa'i, p . 93; Darimi, 11, p 310; Bayhaqi, 11, p . 148, VII, p . 30, X, p . 113; UZkim, 111, p p . 109-10, 533; K h a t i b , 111, p p . 255, 258; TabZwi, 11, p . 307, IV, p . 368; Mundhiri, 11, p . 199; TabarSni, I , p p . 131, 135; alUakim al-Tirmidhi, p p . 68-9; Baghawi, V, p p . 593, 600; Ibn al-Athir , I , p . 187; Ibn al-Turkumani, VII, p . 31; QasfalPni, VII, p p . 4-8; Haythami, IX, pp. 164-5; 'AsqaIZni, IV, p . 65; Ibn 'AsSkir, I , p. 45; Maqrizi, p . 38; S u y i i f i , IbyF', p p . 11-30; Muttaqi, XV, p p . 91, 122-3. Independent works a r e written about this tradition, among them a treatise by ~ a w g m &Din al-Wishnawi (Hofith 01- Thoqoloyn, Cairo, 1374q). mr usmid g u s a y n aI-Laknawi devoted a whole volume of his 'AboqGt 01-onw5 to the chains of authority of this tradition (see the Arabic translation of t h i s book, Vol. I , in which t h e tradition i s quoted from approximately two hundred Sunni sources).
I

See for instance Sharaf aI-Din, p p . 42-51, 130-227.

'

See Mupaffar, 11, p . 107.

A s will be explained l a t e r , reason, in Shi ' i law, i s also employed a s

f g. g:

A N INTRODUCTION TO

SHT'~

L A W

THE SHT'T LEGAL SYSTEM A N D ITS SOURCES

!i

drawn from both pure and practical reason.

A clear instance is the judg-

5.
6.
7.

a/-Wcifi, by Mubarnmad b. MurtadZ al-Kashani, known a s MuQsin al-FayQ ( d . 1091/1680) WasE'il a/-ShT'a, by Muhammad b. uasan al-JJurr al-'xmifi ( d . 11041

ment of practical reason that justice is good and injustice is evil. In S h i ' i ugBI a/-fiqh there is a principle which states that whatever is ordered by reason, is also ordered by religion (kull mF bakam bih 01-'aql, hakam bih a / - s h a r ' ) . In accordance with this principle, which is known as the 'rule of correlation ' (qz'idat al-mulzzama), religious rules may be

'

1693)
Bibcir 01-anwcir, by Muhammad Baqir b ( d . 111011699) 8. Mustodrak 01-Wasci'il, by Uusayn b . Mubammad Taqi al-Nuri ( d . 132011908)' (a/-kutub a/-arba'o). The first four of these books are collectively known as 'the four books' In S h i ' i legal literature these four hold the same The most popular legal work of reference is

. Mubammad Taqi

al-Majlisi

The correlation between the obligatoriness of an act and the obligatoriness of its prerequisites (muqaddomat al-wcjib), o r between prescribing something and prohibiting its opposite (maS"a1ot 01-q'idd), o r , the impossibility of combining command and prohibition in a single case from a single standpoint (ijtima' a/-amr wa'ln a h y ) , are all rational precepts in the methodology of S h i ' i law and sources based on pure reason in the juridical efforts to discover legal rules.

inferred from the sole verdict of reason.

position that the six famous collections of Sunni traditions (a/-kutub alsitta) have among Sunnis. Wosc'il a/-Shi'a which gathers the legal traditions contained in the 'four books' and in many other sources, and since it is limited to traditions concerned with legal subjects, it is the most convenient reference handbook for every jurist. The acceptability of any of the traditions of these books is subject to The reliability and honesty of all the narrators of a chain of transmitters of a tradition must first be proved. This is done by certain conditions. a branch of scholarship known a s 'ilm a/-rijEl (='ilm rijcl 01-badTth) which investigates the narrators of the traditions and their biographies. Traditions are graded and divided in accordance with the levels of their reliability, on the basis of specific principles found in another branch of
" Some other major comprehensive collections of S h i ' i traditions are: JawEmi' a/-kalim by Mubammad b. 'Ali al-Jaza'iri, ' A wzlim a/-'ulzm wa'lma'cirif by 'Abd AllZh b . NCr Allah al-BabrZni , Jzmi' 01-ma'cirif w a 'labka'm by 'Abd Allah b . Muhammad RidZ Shubbar al-IJusayni al-KZqimi and JEmi' abF&th a/-shT'o by JJusayn b . ' ~ l al-Tabafabx'i i al-BurCjirdi. Abu'l-QZsim b . JJasan Yazdi, I , See Shahid 11, DirFya, pp. 62-81; pp. 44-61. he main S h i ' i works on this discipline are: K . Ma'rifat a/-riizl by al-Kashshi, K . a/-Qu'ofd' by al-Ghaaa'iri, K . 01-Rijcil by al-Najashi, K . a/-Fihrist and K . a/-RijEI by Mubammad b . JJasan al-Tiisi. Some impor@ b i altant later works are: Ma'cilim 01-'ulamE' by Ibn ShahrZshCb, T ishtibcih and KhulEpt a/-oqwo'l by al-'AllZma, K . a/-RijFl by Ibn Dawud, a/-Tabrir a/-TiiwCsT by Sahib al-~a'zlim, Manhaj a/-moqEl by Mubarnmad b . 'Ali al-Astarabad'i , Noqd a/-rijZl by al-Tafrishi , Majma' a/-rijcil by alQuhpa'i , Hzw? a/-maqzl by 'Abd al-Nabi al-Jaza'iri , JCmi' a/-ruwiit by Muhammad al-Ardabili , MuntahE 01-maqEl by AbG 'Ali , 01-FowE'id 01rijzliyya by Bahr al-'Ulfim, Tonqit) 01-moqa'l by 'Abd Allah al-MZmaqZni, QiirnGs 01-riizl by Mubammad Taqi al-Tustari , and Mu'jam-rijiil 01-bafith by al-Khu'i. For other Shi'i works on this subject see AghZ Buzurg, Mugoft77 a/-maqa'l fi mugannifi 'ilm a/-rijcil (Tehran, 1959). See Shahid I , DhikrF, p . 4; Ibn Fahd, Muhodhdhab, fol. 2b; MiqdZd, TonqTb, fol. 3a; Karaki , TorTq istinbzi 01-obkEm, p. 10;

***
The traditions handed down from the Prophet and Imams, which conare assembled in special collections. The most renowned of these, which are the usual reference works for jurists, a r e the following:
1. 2.

stitute the most important source for S h i ' i law,

K . ol-KCP, by Abu Ja'far Muhammad b . Ya'qub al-Kulayni ( d . 3291941) K . Man :1 Yabq'uruh al-faqTh , by Mubammad b . 'Ali b . Babawayh al-Qummi , known a s al-saduq ( d . 3811991-2) TahdhFb 01-obkCm, by Muhammad b . IJasan al-Tiisi , Shaykh alTa'ifa ( d . 46011067) a/-lstibgzr, by Muhammad b. Ijasan al-Tiisi
j

3.
4.

the means for thinking, in which sense it simply means rational argument. This sense of reason is described in the traditions of the Imams a s the only means to discover realities (see Karajaki, p . 70). See Mubaqqiq, Mu'tabar, p . 6; Shahid I , Dhikrci, p . 5; idem, QawF'id, p . 25; Miqdad, TonqTb, fols. 2b-3a; Sahib al-Madarik, Hidzyat a/-tzlibin, fols. 2b-3a; Q a f i f i , Kashf a/-fawF'id, p . 130. Muhammad Baqir al-gadr maintains that 'reason1 is a potential rather than an actual source for S h i ' i law. He says that although, according to the methodology of S h i ' i law, reason can on its own discover an injunction and guide toward a certain religious precept, this has never been actualized in practice and all religious commands which can b e discovered through the categorical verdicts derived from reason are to be found in the Qur'Zn and Tradition (Mubammad Baqir al-gadr, FatEwZ, I , p . 98). This is because the traditions indicate duties in particular cases with details, whereas the Qur'an usually has general rules.

'

"

6 a/-badi-th) .

A N INTRODUCTION TO

SHI'T LAW

scholarship known, in S h i ' i literature, a s 'ilm 01-dircya ( = 'ilm dirFyat On these bases, many traditions of the above sources are not, in the view of the jurists, sound and reliable.

***
The inference of legal precepts, from the four aforementioned sources of S h i ' i law (the Qur'an, Tradition, ijmE' and reason) is carried out through a kind of logical reasoning which, in Islamic terminology,is called ijtihEd. According to S h i ' i teachings, it is always possible for scholars to practise this kind of rational argument in lslamic law, while S u n n i s restrict it to some scholars of the early centuries of Islam. In confronting any legal problem, every S h i ' i jurist must personally investigate these

Chapter Two

GENERAL REMARKS O N

SHT'T

JURISPRUDENCE

The inference and discovery of legal norms (istinbct) from the aforementioned sources, which are in some cases contradictory, follow particular rules which are explained by a special branch of scholarship known as ugzl 01-fiqh (principles of law). This discipline is a collection of general rules and regulations on how to deduce positive precepts from the sources. Some of these rules and principles have been borrowed from other disciplines such a s logic, philosophy, theology and philology. topics of ugiil a/-fiqh, a s i s mentioned in the sources. fiqh by al-Shaykh al-Mufid, Mubammad b . in his book Kon z 01-fowo"id. Next, there is a relatively voluminous work on this subject by al-Sharif al-Murtad:, 'Ali b . Uusayn al-MGsawi ( d . 436/1044), entitled
V

legal sources to take his own decision about i t . imitation of the opinion of a mujtahid, however great he i s , by another mujtahid in legal matters is unlawful.

In the early periods of Islam, S h i ' i scholars wrote treatises on some But the oldest

extant work on ugzl a/-fiqh by a S h i ' i scholar is a/-Tadhkiro bi-ugJI al-

Muhammad b. al-nut man

al-BaghdIdi ( d . 413/1022), a summary of which is included by al-Karajaki

Shahid 11, Dirayo, pp. 19-61; Jjusayn b . ' ~ b d al-$amad, Wugzl ol-okhyEr, pp. 20-56; sahib al-Madgrik, HidEyat a/-frilibin , fol. 5a; BahE' al-Din al-'Amili, Wali-za, pp. 4-5; idem, Mashriq a/-shomsayn, p. 269; Damad, Rawiishib, p p . 115-204; Bihbahani, To'lTqEt, pp. 5-9; Abu '1-Qasim b . Basan al-Yazdi, I , p p . 3-44; Mamaqani , MiqbEs, pp. 35-105. Some main S h i ' i works on this subject are: a/-Dircya and Sharb Risrilot a/-diriiya by al-Shahid al-Thani, WugLii_al-okhyEr by Jjusayn b. 'Abd al-$amad, 01-WalTza by BahE' al-Din al-*Amili , a/-RawFshib olsomEwiyya by al-Damad , TawQCTba/-maqEl by 'Ali al-Kani ; MiqbEs a/-hidEya by 'Abd Allah al-Ma-maqani, and SomE' a/-moqril by Abu '1-Huda al-Kalbasi. Also FawF'id-i shcfiya by al-Farlhi, Lubb 01-LubFb by Muhammad Ja'far al-Astarabadi , QawECid a/-0~6th by al-Gharifi , and Qiy5' a/-dirzya by Qiyii' al-Din al-'Allama. All the above-mentioned principles are according to the Ugiili school of S h i ' i law. The Akhbaris rejected ijtihFd and prohibited the practice of rational argument in law. There are some objections to the practice of ijtihFd in. the traditions from the Imams and in early S h i ' i works too. Most of these, however, refer to the Sunni version of ijtihrid which includes qiycs and istihscn.

"1

1
t
/I
It

The book of Shaykh al-Ta'ifa illuQammad a/-DharT'a il5 ugJl 01-sharF'a. b. Jjasan al-Tiisi,'Uddot 01-ugc14 is the most famous work on ugJl 01-fiqh of early periods. long time. It was a text-book in S h i c i centres of learning for a Another rather old source is the relevant chapter of 01-Ghunyo

11 I(

See Jjasan al-gadr , pp. 310-12. It will be seen later on in this work that a group of early S h i ' i jurists, who were contemporaries of the Twelve ImEms, used rational argument and t h r rules of UTE/a/-fiqh in the inference of legal precepts. KarZjaki , pp. 186-94 (see also Shaykh, 'Udda, p . 2; YFdnEma-yi shoykh-i T J s i , 111, p . 373; Brunschvig, pp. 201 f f ) . Edited Tehran, 1967-9. Al-Murtada had written independent treatises on almost all the topics of ugJl a/-fiqh (see his introduction to a/-DharTCo. I , p . 2). He also discussed the ugzl topic of okhbcr aI-FbEd in his 01DhakhTro, formally a work of kolFm theology (see Shaykh, 'Uddo, pp. 33-7). Edited Tehran, 1313-14q and Bombay, 1312-18q.

22

A N INTRODUCTION TO

SHT'T L A W

includes a survey of land law, and is normally followed by a study of the common property of the community (mushtarokFt), such as water and pasture. 6. 8.

K . 01-luqato = trove property.

Chapter Four

7. K . 01-forFYiq' = inheritance.

K . 01-qoq';'

= arbitration, legal procedure.

9. K . 01-shohCd5t = witnesses. 10. K . a/-budEd w o 'I-taezTrFt = penal law. 11. K . 01-qi~F$ = retaliation, the right of the offended person or his hairs against the offender. 12. K . 01-diy5t = blood-money and other financial compensations. The present legal system of S h i ' i fiqh has developed through various phases, and has been reformed and elaborated by many eminent scholars, among whom a r e Shaykh al-Ta'ifa Mubammad b . Jjasan al-Thsi, al-Mubaqqiq Ja'far b . vasan al-Jjilli , a l - ' A l l h a vasan b . Yisuf b . al-Mufahhar al-villi, al-Shahid al-Awwal Muhammad b . Makki al-'xmili and $54ib al-Madarik Mubammad b . ' Ali two periods,
l

A W THE PERIODS OF S H ? ' ~L

al-' Amifi

( d . 100911600).

In the legal sources, the history of S h i ' i law is usually divided into that of the ancient or early scholars (qudamF' or mutaqaddimJn) and that of the moderns or later scholars (muto'okhkhiriin). In works of the 6th-7th112th- 13th centuries, the contemporaries of the twelve Imams were considered a s the 'ancients' and those who came after this era ( i . e from 2601874 onwards) a s the 'moderns'. At times, the expression 'ancients' is applied to Shaykh al-Ta'ifa and his predecessors Sometimes, howand the expression 'moderns' given to his successors. ever, the expression 'moderns' i s used by writers to mean scholars contemporary with themselves. In later sources the term 'ancients' means In the sources of the 13thl19th those who lived before al-Mubaqqiq or al-'Allama, and the term 'moderns' refers to those who lived after them. century, the expression muto'okhkhiru 'I-muto'akhkhir7n (the moderns of the moderns) is used to mean, in earlier works, those who came after This division is other than that of traditionists in which the S h i ' i traditionists have been divided into ten sections (toboqa). The bases and criteria for these two divisions are quite different a s well. (See AB. 111, p . 137, quoting vasan al-gadr in his Bughyat 01-wu'Ft fitoboqFt mashFYikha/-ij5zFt). *Abd al-Jalil al-Qazwini, p. 209; Mubaqqiq, Mu'tobar, p. 7. Shaykh al-Ta'ifa himself i s considered to be one of 'the ancients' in Shahid 11, Rawdo, 11, p . 73. Nuzho, p . 6. See for instance Mubaqqiq, Nukat, p.438; Yabya b . ~ a ' i d ,

g ,

Ibn Idris, p . 265; Burr

al-' Amili ,

Amol, 11, p. 5.

24 al-Shahid al-Awwall

A N INTRODUCTION TO

SHT'T LAW
'

THE PERIODS OF

SHT'T LAW

25

and in later works those who came after Sahib

times also explained when faced by questions from their followers that the correct replies to their questions could be grasped and derived from general Islamic legal principles.

This division does not adequately reflect the development of t h e law, which can more exactly be defined by a division into eight periods. t h e most eminent scholars4 of each period and their main legal works.
1. T H E PERIOD OF T H E PRESENCE OF THE

'

On some occasions, the ImZms themselves fol-

What

lowed what they advised a s t h e correct method of reasoning and t h u s instructed their followers on the proper procedure for inference of legal precepts. (2) The period of the presence of the Imams is quite distinct from the following periods of S h i ' i history in respect to the variety of kalzrn theological doctrines held by S h i ' i scholars. Many of the Imams' companions were eminent kalFm theologians3 who held significant opinions on theological subjects, some of which have been quoted in t h e general kalFrn works, among them: Hisham b. al-gakam, Hisham b. Salim, ZurZra b . (of t h e 3rdl9th c e n t u r y ) 4 . A'yan, Mu'min al-Taq, Yhnus b . 'Abd al-Rabman (all of t h e 2ndl8th c e n t u r y ) , and al-Bazanfi and Fadl b . Shadhan of t h e early centuries of Islam. Differences of opnions on kalzrn theological subjects resulted in the emergence of a variety of tendencies and groups among t h e companions of the Imams, causing intensive debates and arguments among then. Many of the most prominent companions of the Imams had their own separate Some other kolFm schools of the time had followers among S h i ' i thologians

follows is a brief description of these periods, together with a mention of

IMAMS
This is based on the

It is generally believed that S h i ' i law was undeveloped in this period which began with the Prophet and ended in 2601874. assumption that since the Imams were present and accessible, there was no great u r g e t o develop t h e practice of independent judgment and that law was limited to t h e transmission of traditions. Shi'ism a t the time have to be examined. (1) I t can be clearly seen from religious traditions that S h i ' i Imams had persistently urged their followers to reason and use their minds. theologians of their times. principles; In the case of discussions on KolFrn theology they praised and encouraged S h i ' i In the case of legal problems, the Imams stated explicitly that their own duties lay in explaining general rules and whereas inferences in details and minor precepts for actual The Imams somecases were left to the learned followers of the Imams. KhalkhEli, 111, p . 174. Compare with Radi al-Din al-Qazwini's classification of t h e S h i ' i scholars up to the mid-lOthll6th c e n t u r y into seven genreations. See his TFr7kh-i moshzhhi-r-7 ImCmiyya. By these scholars a r e meant those whose legal opinions have been considered a n d quoted in t h e sources of fiqh. In these sources, the views of different S h i ' i jurists and even sometimes of Sunni ones are usually quoted before examining each case. Obviously, only the views of those scholars who influenced the development of law, were quoted and taken note of. The names of these scholars and their famous reference works have been chronologically listed in the preface of Moqzbis 01-anwFr b y aI-KZ~imi ( p p . 4-19). In the S h i ' i sources of law, there a r e special abbreviations for the names of the scholars and t h e legal s o u r c e s , as well a s some particular terms; many of these a r e explained in al-Khwansari's Rowq'zt, 11, p p . 114-15, and in t h e preface of al-KEzimi's MoqFbis, p p . 19-22. See Kashshi, p p . 268, 278, 484-6, 489-90, 538, 542; Kulayni, I , p p . 169-74; Mufid, To$bi-6 01-i'tiqzd, p p . 171-2; Q u h p a ' i , VI , pp. 223-30, 293-307. "Alayn5 i/qFYaI-u$GI ilaykum wa 'alaykum 01-tafr7" (we must give you t h e principles and you have t o derive-branches): Bazanti , p . 477; Fayd, a/-daqq a/-mubin, p . 7; U u r r al-'Amili, XVIII, p . 41. This idea is not correct In o r d e r t o have a better g r a s p of the situation, t h e circumstances of

'

Mudarris, 111, p . 439.

11
!
I

See for instance Kulayni , 111, p . 33; V , p . 357; Shaykh, TahdhTb, I , p . 363; VII, p . 297; idem, Istib$Cr, I , pp.77-8; VII, p.297; 111, p . 178; B u r r al-'Amili, I , p . 327; Jzrni' ~ 4 3 t a/-ShT'a, h I , p p . 116-18. See for instance Kulayni, 111, p p . 83-8; 538-9, 542, 546, 547-8. See IqbZl, p p . 75-84. See for instance $ a d h q , TowbTd, p p . 97-104; Mufid, F u ~ 6 1 , p p . 11921; idem, A wz'il a/-rnaqzICt, p . 116, and the whole text for the opinions of Nawbakhtis; Kashshi, p p . 268, 275, 284-5, 490, 540-4; Q u h p a ' i , VI, p. 8; Radi al-Din al- Qazwini , Qiyzfa, p p . 180-1; Majlisi 11, 111, pp. 288, 300, 303, 305; Bihbahani, Tae/7qFt, p . 8; Abh ' A l i , p p . 45, 346; Kaqimi , Kashf 01-qin5' , p p . 198-200; MZmaqZni , TanqTb, the introduction, p p : 208-9. See also s a f a ' i , pp. 36-68. Asad Allah al-KZ~imi, known a s sahib al-Maqabis ( d . 123411818-19) collected the different views of the companions of Imams from early sources in a book entitled alManzhii (see his Kashf a/-qinz', p. 71). See Mufid, Sarawiyya, p . 221; idem, A wz'il a/-rnaqzlzt, p. 77; Murtada, IbtFl 01-'amal bi-akhbCr aI-CbEd, fol. 142b ; Najashi , p . 289; Shaykh, 'Udda, p p . 54-5; idem, Fihrist, p . 190; Ibn ShahrEshhb, Mo'Clirn, p . 126; Q u h p a ' i , V, p . 177; Muhammad al-Ardabili, 11, p . 234; Majlisi 11, 111, p . 304; F u t h n i , p . 4. See sadiiq, Tawhi-d, p . 100; Kashshi, pp. 279-80; pp. 244, 307; Kiizimi, Koshf ol-qinZg , pp. 71-84. Majlisi 11, 111, B u r r al-'Amili, 11, p p .

!
:
:
,

26

A N INTRODUCTION TO SHT'Y L A W

groups of followers1 who sometimes branded each other a s 'infidel' (kbfir)' and many books were produced on these disputations and confrontations. It i s interesting to note t h a t , sometimes, members of one tendency or group would disagree even with their 'leader' on most aspects of ideological principles.

I
I

THE PERIODS OF

~ ~ 7L A .W 1

traditionists of their town were hostile to them'.' The S h i ' i books on rijbl (biographies of the narrators of Tradition), especially that of al-Kashshi, a r e full of reports on different theological tendencies and opinions found amongst S h i ' i s of the first centuries of Islam. The works display the impact of intensive arguments and contro-

'

On the other hand, many S h i ' i s who gathered They did not look favourably upon

around t h e Imams restricted themselves to the transmission of traditions and refrained from theological debates. the S h i ' i theologians. The theologians who were appreciated and favoured

I I I II
I

versies, a s well a s the impact of the support given by the Imams to the theologians and their concerns for the prosperity and productivity of Shi '7 thought. In his reply to the followers of Yiinus b

. * Abd al-Rabman,

by the Imams, strongly resented the reproaches directed against them by the traditionists, and the Imams consoled the accused6 by saying that they should tolerate and act moderately towards their adversaries since the latters' capacity for understanding subtle points and minute nuances was extremely limited. theologians, Some of the traditionists of Qum, too, squabbled with and wrote books in this vein.
lo

who were considered to be 'infidels' by the r e s t of the followers of the Imams, Imam 'Ali al-Rirjl would tell them: of deliverance. 'I see you moving in the path

'

Most S h i ' i jurists during the time of the Imams were among these theologians, a s will be mentioned presently. (3) Certain tendencies could be found in the S h i ' i community of t h e period of the presence of the Imams which were opposed to the traditionally predominant doctrine concerning the nature of the Imams. Some of the companions of the Imams did not accept that the Imlms possessed divine qualities such a s infallibility and impeccability ( 'isma) but believed that they were pious learned men ('ularnb' a b r b r ) , who had merely a

fabricated traditions in condemnation of the latter and attrib-

uted them to the authority of the Imams, theologians and read their books.
l1

On the other h a n d , the Imams recommended their followers to refer to They even encouraged the people of Qum to honour and respect ShT'i theologians 'in spite of the fact that the

I
I

Durust b .Abi Mangiir, p . 161. See Kulayni, VII, p . 285; Kashshi, p p . 279-80. 498-9; 'Amili, VI, p . 385. B u r r al-

scholarly authority.

This view was supported by some of the S h i ' i

theologians of later periods, amongst them Abii J a S f a r Muhammad b . Qiba al-Rlzi, a S h i ' i scholar and theologian of the 4thIlOth c e n t u r y , who was a leading figure in the S h i ' i community of his time,' and whose views were respected and referred to by later S h i ' i scholars. He supported the idea that the Imlms were merely pious scholars, who had a comprehensive knowledge of the Qur'Zn and Tradition. He also refuted the idea that the Imams had knowledge of the unperceivable ('ilrn a/-ghayb). Yet, in spite of these opinions, his doctrinal stand was appreciated by later S h i ' i scholars. At least some of the traditionists of Qum , who were considered

For instance Hisham b . al-gakam's treatise in refutation to Mu'min al-Taq (Najashi, p . 338); Risbla fT rna'nb Hishbrn wa %nus by 'Ali b . Ibrahim b . Hashim al-Qummi (ibid., p . 197) ; Risbla fi' 'I-radd 'alb 'AlT b . Ibrbhirn b . Hbshirn fT rna'nb Hishbrn wa Yinus by Sa'd b . 'Abd Allah al-Ash'ari (ibid. , p . 134). See for example Shaykh, Fihrist, p . 132, the biography of ~ b i ~ i a'far al-SakkZk .

'

See Kashshi, e . g . pp. 279, 487-8, 496, 498-9. See also $adiiq, Tawbid, pp. 458-60; Ibn Tawus, Kashf a/-rnabajja, pp. 18-19; Jjurr al-'Amili, XI, p p . 457-9. See Kashshi , pp . 498- 9. I b i d . , p . 488.

Kashshi , p . 489. Ibid., p . 499. See $adiiq, Khi$m, p. 354; Jjurr al-'Emili, XI, pp. 429-30; al-'Uliim, 111, pp. 219-20.
' '"

, I , p . 459, Ibid., p . 489, also p p . 483, 506; Mubammad a l - ~ r d a b i l i 11, p . 357; Abii 'Ali, p . 28. Kashshi , p . 4 9 7 . For examples of those traditions see p p . 491-6, 540-4; B a r q i , RijCI, p . 35; Bazanti, p . 478.
For example K . Mathmib Hishbrn wa Yinus by Sa'd b . 'Abd Alllh a l - ~ s h ' a r i (Najashi , p . 134) and K . a/-TaSn 'alb Yinus by Ya'qiib b . Yazid b . Jjammad al-Katib al-Anbari al-Sulami al-Qummi (ibid. , p . 350).
l1 lo

Babr

*'

I
'
I

'

*AllZma, Khulb$a, p . 143. Kl3imi, p . 305.

Ibid. , p . 200. Some other opinions of this scholar, which a r e different from S h i ' i traditional and popular views, a r e quoted in the works of al-Sharif al-MurtarjZ (see a s an example his a/-Shfi, p . 100). Shaykh, Fihrist, p . 132; Ibn Shahrashfib, Ma'blirn, p . 85; 'Allama, K h u l b p , p. 143. All stating that Ibn Qiba was 3abTo a/-madhhab o r basan a/-i'tiqbd.

Kashshi,

p p . 483-5, 506; NajZshi, pp. 346-8.

28

A N INTRODUCTION TO SHi.7 L A W

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L A W

a s the backbone of the S h i ' i school, also held similar opinions with regard to the Imzms. extent. Some of the companions of the I m a m s even believed that t h e Imams, just Iike the jurists of those times, practised independent judgment ( r a ' y ) analogical reasoning ( q i y z s ) . the traditionists of Qum. or

Shi'i thought, those cases of dispute ought to have been taken to the ImSms for their judgment, a practice usually followed by most faithful believers.

'

It seems that the Nawbakhtis, too, thought likewise to some

'

(4) As mentioned already, the inference of legal precepts in S h i ' i law is fundamentally based on logical analysis and reasoning within the framework of Qur'anic texts and Tradition. Rational argument is accepted on the

'

This position was also accepted by some of

Abii Mubammad Layth b . al-Bakhtari al-MurZdi ,

known as Abii Bagir, one of the most competent scholars among the companions of ImZm Ja'far al-$ldiq6 who, according to many narratives was praised by the ImEms7 and was one of the four elite of the S h i ' i religion, did not accept the Iegal opinions of the seventh Imam, M6sZ al-KEgim, and thought that the latter had not yet acquired an adequate knowledge of law. A number of other companions of the Imams a r e said to have held
l

1, I

'

basis of Aristotelian deduction, which brings certainty according to the principles of that logical system. The kind of analogical reasoning which because it leads only to a Some cases of qiyEs is entitled qiyzs in Islamic law was rejected by the Shi'a from the time it came into Islamic law, in the 2nd18th c e n t u r y , probable cause for a precept, not to the certain one. accepted in Shi'T law.

in which the real cause of a precept is found a r e , a s mentioned before, In the first centuries, the traditionists who were opposed to any kind of rational argument held that this mode of arriving at categorical judgments amounted to qiyzs and was therefore unlawful. called it permissible qiyFs, Some later scholars

simiIar views.

On this basis, some of the companions of the I m l m s openly disagreed with them in scientific questions, l 1 and sometimes they even argued with them over points of disagreement l 2 or asked them to present the reason for the positions they held in legal questions.
' breaking up friendships permanently, l l

I
I I

' while in fact

this mode of analysis bears no

Such controversies bet-

connection with the Sunni concept of qiyzs.

'

It seems that in the religious

ween the companions of the ImZms sometimes culminated in serious quarrels while, according to customary

mentality of the Shi'a of t h e first centuries, all kinds of rational argument were considered a kind of qiyiis.

'

This was perhaps caused by some outThen, traditionists believed that the

Mufid, Ta$bTb a/-i'tiqzd, p p . 218-19. See their views in similar cases in al-Mufid's AwE'il a/-rnaqzliit, for example pp. 78, 79, 80, 84. Babr al-'Uliim, 111, p . 220. Also $affar, Ba$E'ir, p . 301; Mufid, Sarawiyya, p . 224; idem, Ikhti$F$, p . 274; JFrnie aba'dth a/-ShT'a, I , p . 273.

) [

ward or terminological similarities.

injunctions found in S h i ' i Tradition which forbade the practice of qiyzs were also applicable to any other mode of rational analysis. These traditions also forbid practising independent judgment, which is called ra'y in legal terminology. In the legal usage of the early periods, the term ijtihzd was u s e d 7 in the sense of personal judgments including r a 'y.' See Kashshi, p . 539; Abii Mangiir al-Tabrisi, 11, p. 284. Ibn JJazm, IbkFrn, VII, p . 177; idem, Mulakhkha$ ibtzl 01-ra'y wa 'Iqiyzs, p . 5. Karaki, TarTq istinbzt a/-abkzrn, p. 17. Because of the same interpretation, later Akhbaris accused Ugiilis of following the practice of qiyzs in their legal judgments. See for instance JJusayn al-Karaki, chapter 8. Al-MasF'il a/-Muhannz'iyya, fol. 92a; Shahid 11, Rawda, 111, p . 65. See also BihbahEni , Tabqiq fi 'I-qiyzs, fol. 85a.

I
I

'

KEgimi , p . 83. Mufid, Ta$bTb a/-i'tiqzd, p . 219. Kashshi , p . 238; Tustari , QZrnEs a/-rijzl, VII, p . 451.

'

Kashshi, pp. 136-7, 170; Quhpa'i, V, p . 83; Mubammad alA r d a b m , 11, p . 34. Kashshi, pp. 238-9. The others are Zurara b . A'yan, Muhammad b . Muslim and Burayd b . Mu'Ewiya al-'Ijli. I b i d . , p . 173; QuhpE'i, V, pp. 84-5.
lo

'

Kashshi, pp. 147, 148, 158. K E ~ i m i ,p p . 71-2. Ibid., p . 72.

l1

l2

( I

Al-MasE'il a/-Muhannz'iyya, fol. 92a; Miqdad, TanqTb , fol. 3a; BihbahIni , TabqTq fi 'I-qiyzs, fol. 85b.

'

'
a

See Kashshi, p . 189; Mubaqqiq, Ma'zrii, p . 127.

See for instance Kulayni , 111, p . 30; gadiiq, FaqTh, I , pp. 56-7; idem, 'Ilal, I , p p . 264-5; Shaykh, TahdhTb, I , pp. 61-2; idem, Istib$Er, I , pp. 62-3; Burr al-'Amili, I , p . 291, 11, p . 980.
l4

See a s examples Abu '1-ljusayn al-Bagri, pp. 689, 722, 761-6; QZQi Nu'mEn, IkhtilFf u$El a/-MadhFhib, pp. 203-28; Mufid, Fu$El, p. 68; Murtagz, Dhari'a, pp. 672-3. See further the article idjtihzd in El, 111, p . 1026.

See Kulayni, I , p p . 409-11;

Nfiri, I , p . 555.

30

A N INTRODUCTION TO

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~ ~ 7L .AW 7

31

This explains why S h i ' i s refrained from the use of the term ijtihcd until the 6th112th century. It also explains the objections raised in S h i ' i and the refutation of i t s legitimacy in 'Abd Allah b . theological works toward ijtihad, 'Abd al-RabmZn-al-Zubayri

I I I

some chapters of fiqh such a s p r a y e r , alms t a x , marriage and inheritance, ZurEra b . A'yan al-Kiifi

'

Jam2 b . DarrZj, the most learned companion of 'Abd Allah b . Bukayr, a great S h i ' i It is almost

the sixth Imam, Ja'far al-$Idiq,

works written by S h i ' i theologians like the Nawbakhtis,

jurist of the 2ndl8th c e n t u r y 4 and a number of other famous companions, who were accused of and blamed for their practice of qiyzs. and not of the Sunni concept of qiyzs. certain that the above were supporters of the analytical mode of reasoning Their judgments, many of which confirm this point. have been collected by Asad Allah al-Kazimi

and Abu '1-Qasim 'Ali b . Abmad al-Kiifi.

All these were against ijtihzd in the above sense. Otherwise ijtihzd, a s a rational hode of reasoning, was quite an acceptable phenomenon among many S h i ' i s from the 2nd18th century onwards, and from late 4thllOth century it emerged a s the only method by which legal subjects were appr~ached.'~ these analytical and rational methods of S h i ' i scholars of the early centuries of Islam appeared to amount to r a ' y and qiyiis in the eyes of strict traditionists who objected to the rational analytical modes of reasoning in law. ( 5 ) In some traditions, it is reported that some companions of the Imams practised qiyEs on occasions when instructions over a particular problem were not explicitly and clearly given in the Qur 'an and Tradition, that some of them were practising the method of r a ' y . and Some of the most

It i s evident from what has been said in the five sections above that in the period of the presence of the Imams, two legal tendencies existed in

I I

the S h i ' i community.

One of them adhered to an analytical, rational apThe other was a traditionalist

proach toward legal problems within the framework of the general principles of the Qur 'an and Tradition. ential derivation of law. approach which relied on transmitting traditions without any f u r t h e r infer.

.I

knowledgeable companions of the Imams whose opinions and judgments are cited in legal sources, have been accused of following the practice of qiyEs. Among them a r e Fa Jl b . Shadhan al-Naysabiiri , author of a l - T ~ E b( d . 2601873-4) whose opinions on some legal subjects such a s divorce and inheritance, and on some questions of ugEl a/-fiqh are quoted in the sources, ~iinus b . 'Abd al-RabmIn, whose opinions are cited in

I I

'
lo

Many S h i ' i jurists of this period are mentioned in the S h i ' i works on 'ilm a/-rijElg and other sources.
he names of some of them are also
"

mentioned together with their works in Ibn al-Nadim's K . a/-Fihrist.

120-1, 142, 145-6, 148-9, 161-2, 168; Sadiiq, FaqTh, IV, p . 197; i b i d . , Muqni', p p . 170, 175-6; Mufid, FugEl, p p . 123-4; Murtada, Intigzr, p . 286; Ibn Shahrashiib, MathCIib, fols. 233b-234a; Shahid I , DurEs, p . 263; idem, Qawz'id, p . 316; Najafi, XVI, p . 90. See Kulayni, VII, p p . 83-4, 115-16, 121-5; Sadiiq, Muqni', p . 175; Murtada, I n t i ~ F r , p p . 77-8; ' Allama, Mukhtalaf, I , p . 136; Shahid I , DurEs, p . 57; idem, Qawz'id, p . 325; 'abd Allah al-Tiini, fol. 97. Kashshi, p . 156. See for some of his legal views Kulayni, VII, pp. 97, 100-1. Kashshi, p. 375. Some of his legal opinions a r e quoted in the sources, e . g . Kulayni, VI, p . 141, VII, p . 256; Shaykh, TahdhTb, X, p . 137; idem, Istibga'r, IV, p . 253. Kashshi, p . 345. Sadiiq, FaqTh, IV, p . 197; Murtada, Ibfzl aalcamal bi-akhbzr alEbCd, fol. 142b; Futiini, p . 44; Babr al-'Uliim, 111, p p . 215-19; KZzimi, p . 83. See also Shaykh, 'Udda, p . 51.

See Mubarnmad Baqir al-$adr , DurEs , I , p p . 55-64. See for instance Mufid , A wz'il a/-maqzlzt , p . 127; idem, FugEl , p p . 66-9. Also Nu'mZni, TafsTr, p p . 95-6; Murtagz, DharT'a, p p . 792-5; idem, IntigEr, p . 98. Iqbal, p p . 94, 117, 118, 120. NajLshi, p . 163. I b i d . , p . 203. This is according to the predominant U$iili school of Shi 'i law. The Akhbaris rejected the validity of a11 kinds of rational argument in law, a s noted before.
7 ' Books such a s a/-Radd 'alz man r a d d Cthzr 01-RasEl wa i'tamad 'ala' natz'ij a/- 'uqEl by Hi151 b . IbrZhim b . Abi '1-Fatb al-Madani (Najashi , p . 344) a r e written with the same understanding.

, p p . 82-3, 198, 244 a s some examples. See his Kashf a/-qinER

See Kashshi , p . 156. See also Khumayni, Risa'la fi 'I-ijtihzd wa 'I-taqlTd, p p . 125-8. For instance Kashshi , p p . 238, 375, 556, also p . 484; Shaykh, Fihrist, p . 52; Ibn Dawiid, p . 272.
O A s an example Mufid, Al-Radd 'alz a~b?ib a/-'adad, p. i28; Shaykh, Tahdhrb, VIII, p . 97. See also uasan al-$adr, p p . 298-305. l1

Durust b. Abi Mangiir, p . 165; B a r q i , hlabiisin, I , p p . 212-15; Ijimyari, p . 157; Kashshi, p . 239; Mufid, IkhtigEg, p . 275; u u r r al'Am=, XVIII, p p . 33, 38; Niiri, 111, p p . 176-7; JEmi- abEdTth a/-ShT'a, I , p p . 274-6. B a r q i , MabEsin, I , p p . 212-15;
lo

Kashshi, p p . 156-7.

See Ibn al-Nadim, p p . 275-9.

s e e Kulayni, VI, p p . 93-6, VII, p p . 88-90, 95-6, 98-9, 105-8, 116-18,

THE PERIODS OF the opinions of t h e jurists of this period a r e quoted in the legal works of later periods. 2. THE FIRST CENTURY OF THE OCCULTATION those mentioned in t h e traditions.

S H T " ~LAW

33

The legal works of t h i s group of

traditionists were collections of traditions compiled according to their subject matter, and sometimes with the omission of t h e chain of transmitters (isnzd) (i) (ii)

In the period of t h e 'Minor Occultation' (2601874-3291941) and until t h e latter p a r t of t h e 4thllOth c e n t u r y , three different legal schools existed in t h e S h i ' i community. I. The School of the traditionists (Ah1 a/-badTth)

Traditionists such a s :

Mubammad b . Ya'qub al-Kulayni Mubarnmad b . al-JJasan b . Ahmad b. al-Walid ( d . 3431954-5)

(iii) Muhammad b. 'Ali b Babawayh al-Qummi , al-$aduq The legal choices4 of al-Kulayni and al-$adfiq fall into this group. have been quoted in the legal sources. ( b ) The other group followed traditions without compromise and completely ignored the principles of u$E/ a/-fiqh and t h e rules by which a tradition could be examined. They completely ignored t h e procedures of debate, The extreme tendencies of these reasoning and modes of discourse.

This was a continuation of the conservative legaI tendency of the period of t h e Presence, and likewise devoted i t s efforts to collecting, recording and preserving t h e traditions from the ImEms. The adherents of this school, like their predecessors in the time of the Imams, were not sympathetic to rational arguments in religious matters, and condemned even those efforts which applied rational argument to religious questions in o r d e r to s t r e n g t h e n t h e S h i ' i point of view.

S h i t i traditionists were comparable to the tendency of the ljashwiyya in Sunnism which was t h e most extreme and inflexible S u n n i traditionist school. However, in the works of S h i ' i theologians of the 4th-6thl 10th-12th centuries, terms such a s boshwiyyaB and rnuqallidag together and akhbzriyya l 1 were applied to all with t h e terms a$bo'b a/-badTth

This school resembled in i t s out-

look the S u n n i school of traditionists, where Abmad b. ljanba13 and his followers4 rejected kalzrn even when used in defence of Islam. In their legal approach, there were two groups of traditionists who differed among themselves: ( a ) Those who only accepted traditions which were related by transmitters Their knowledge of the traditions dealing with legal questions was extensive. They recognized and implemented those principles of u$El a/-fiqh which were contained in the traditions of t h e ImEms. Like S u n n i traditionists, however, they were c h a r y of writing about legal subjects with words other than exactly See for instance t h e introduction to al-Mubaqqiq's a/-Mu'tabar, p . 7, in which he s a y s that he will quote the views of five jurists of that period. Also S5bib al-Mad5rik1s Hido'yat a/-[iilibin, fol. 4b. Also the Preface to al-K5qimits Maqzbis a/-anwo'r, p . 23, in which six such scholars a r e mentioned. See also Shaykh, Tahdhib, VIII, p . 97. S a d u q , I 'tiqzdzt, p . 74. 70; Shaykh, Ghayba, p . 3. See also Mufid, Ta$bib 01-i'tiqo'd, whose reliability had been thoroughly examined.

'

Shaykh, Mabsijl, I , p . 2; Amin al-AstarEbEdi , op. cit . , fol. 101b.

K . 01-Muqni' s y Sadiiq i s an example of this sort 0-f 'legal works'. See especially p . 2 of this book. Shaykh, Fihrist, p p . 135, 156, 157; T u s t a r i , Sahw a/-Nabi, p . 9. See also AngZri , Raso"i1, p 87.

Both al-Kulayni and al-$adiiq in t h e introduction to their two main works, viz. K . a/-KCfl and Man lo' yabq'uruh a/-faqTh respectively, acknowledged the authenticity of what they transmitted in those books. Thus in the cases of conflict between traditions, the one t h e y accepted and narrated in their works, demonstrates their viewpoints in each specific case. Mubaqqiq , M u 'tabor, p . 7; Sahib al-Madarik, Hido'yat a/-[alibrn , fol. 46; Klqimi, Maqo'bis, p. 23. Shaykh, 'Udda, p . 248; Kgzimi, Kashf a/-qina", p. 202. See Mufid, Ifso'b, p . 77; idem, A wo"i1 a/-rnaqo'lo't , p . 65; Murtad.5 al-Razi, p . 46. Mufid, Ukbariyya, fol. 59a; idem, A wci'il a/-rnaqZlFt, p. 86; idem, Jawzb a h / a / - u c ' i r , p . 114; 'abd al-Jalil al-Qazwini , p p . 3, 235, 272, 285, 529, see also Muhaqqiq, Mu'tabar, p. 6; Fayq, a/-U$Gl a/-a$Tla, p .61. Mufid, Jawo'b ah1 01-uo"ir, p . 112; Shaykh, 'Udda, p . 54. l o and t h e like (a$bFb 01-akhbzr, a h / a/-badTth, ah1 a/-akhbo'r etc. ) . See Mufid , a/-Radd 'a15 a$bo'b 01- 'adad , p . 124; idem, A wz'il a/-rnaqzlzt , p p . 80-1, 87, 88, 89, 92, 101, 108, 118; idem, Ta$bTb a/-i'tiqzd, p p . 186, 222; idem, Sarawiyya, p p . 222, 223; Murtad.5, TabbFniyyFt, fol. 2; idem, a/-Mow~iliyyaa/-thzlitha, fol. 40a; idem, TarEbulusiyyzt, fol. 110; idem, a/-Radd '01; o$bo'b 01-'adad, fol. 130b; Shaykh, ' Udda, p. 248; idem, Chayba, p . 3 ; Ibn I d r i s , pp. 5, 249. See also Shaykh, Mabsljt, I , p. 2. l 1 ' A ~ al-.Tali7 A a l - I I ) ~ ~ w i n Tn n . . 3. 236. 272. 282. 285. 458. 529. 568-9;

p p . 169-

Ibn al-Jawzi , Mano'qib Abrnad, p . 205. Ibn Qudama, Tabrim a / - n o ~ a rfT kutub ah1 a/-kalErn, p. 17. Later traditionists followed their predecessors in t h i s case. Al-JJurr al-'Amili, the renowned AkhbZri scholar of the late 11th. 17th c e n t u r y , wrote a treatise against studying 'ilrn 01-kalzrn (AB, XXIV, p . 431). S h a y k h , 'Udda, p . 248; KZqimi, Kashf a/-qinc', p p . 207-14; 'Abd Allah al-Tiini, p . 97; Amin al-AstarEbZdi, Jawzb rnasz'il a/-Shaykh u u s a y n , fol. 101b. See 'Abd al-Majrd, p p . 288-9.

34

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s ~ i 'LAW i

the adherents of the traditionist tendency, even the former group. In the sources of 'ilm a / - r i j a the names of some jurists of this branch of the traditionists have been recorded, such a s Abu '1-gusayn al-Nlshi', 'Ali b . 'Abd AllZh b . Wusayf ( d . 3661976-7) who is said to have discussed law in the same way a s ah1 a / - ~ G h i r . However, due to the school's refusal and failure to apply reason and rationality and also due to the absence of any ideas and original thought of their own, the decisions of i t s adherents2 did not gain any legal validity and were totally ignored in the sources. traditions.
'

described and criticized in the works of al-Mufid and al-MurtagZ. 11. 'Qadimayn'

'

While the traditionist schooI was predominant in S h i ' i academic circles

in the second half of the 3rd19th and a greater part of the 4thllOth

centuries, two important figures emerged among S h i ' i scholars, each of whom had his own particular approach to law. Both practised rational reasoning in legal thought. Hence, their methods can be considered a s a continuation of the exercise of analytical and rational thought in law which existed in the period of the presence of the Imams. They are regarded2 as c o n s t i t ~ t i ~ the g first school of S h i ' i deductive law, based not merely on collections of traditions but on speculative analysis and rational argument. Although these two personalities represented two different legal perceptions and approaches, in many cases, they arrived at the same conclusioi~s and issued similar opinions on legal problems. Their legal judgments a r e , therefore, quoted jointly in the sources a s the opinion of the Qadimayn, the Two Ancient (scholars). (i) They a r e : Ibn Abi 'Aqil, Abfi Mubammad Ijasan b . ' ~ 1 i b . Abi 'Aqil al'UmEni al-IJadhdha', of the first half of the 4thllOth century.' He i s the author of a legal work entitled a/-Mutamassik bi-bob/ 21 a/-Rasil, which was one of the most renowned legal sources during the 4th and 5th/lOth and 11th centuries. (ii) Ibn a l - ~ u n a ~ d Abu , 'Ali Mubammad b . Ahmad b . al-Junayd al-Katib al-IskZfi, of the middle of the 4thllOth century. He i s

As noted, their judgments were nothing but references to

The traditionist school which, in the period of the Presence, was one of the two prevailing tendencies of S h i ' i scholarly circles, gradually gained control over the whole S h i ' i intellectual community, and totally suppressed the rational theological and legal tendencies which were based on reasoning. The school of Qum, which in those days was the most prominent religious centre of the S h i ' i s , was completely dominated by this c u r r e n t and the Qummi scholars were all traditionists' objecting to any kind of reasoning and analytical thought in the S h i ' i community. late 4thllOth century were adherents of this school of thought.
A s will be explained later, in the last decades of the 4thllOth and early

The

overwhelming majority of S h i ' i jurists during this period and up to the

5 t h / l l t h centuries, the school was swept away by the teaching of al-Shaykh al-Mufid and his disciple al-Sharif al-Rlurtadl. Although a small number of i t s adherents survived, here and t h e r e , in later periods6 none of them gained prominence or influenced S h i ' i thought. The methodology and beliefs of the adherents of this school have been

'Alllma, Nihcyat a/-wu$iil, fol. 200b. See also ShahrastSni, pp. 169, 178; Sharif al-Jurjiini , p . 629; Fakhr al-RZzT , Mob561 (quoted in KEqimi , p . 203). Shaykh, Fihrist, p . 89. It should be noted here that there were differences of opinions among the adherents of this tranch of traditionists too, a s the traditions of the Imams were sometimes contradictory, and each of those jurists was deciding legal problems according to those traditions he had received. MurtadE , a/-Radd 'a15 agbiib a/-'adad, fol. 130b; idem, TobbEniyyEt , fol. 2 ; idem, a/-Mawgiliyya a/-thiilitha, fol. 40a. MurtadZ, Ibtzl a/-'amal bi-akhbcr a/-EbFd, fol. 142b; Futiini, p . 4 . See also Shaykh, Fihrist, p . 157. Shaykh, 'Udda, p . 248; 'Alhma, NihGyat a/-wu$fil, fol. 200b. 'Abd al-Jalil al-Qazwini, p. 568.

See Mufid, Sarawiyya, p p . 222, 223; idem, TaSbTI, a/-i'tiqzd, p . 222; idem, 'Ukbariyya, fol. 59a; idem, lawo'b ah/ a / - y z ' i r , pp. 112, 116; idem, a/-Radd 'alF a56Gb a/-'adad, p. 24; MurtadE, 01-Maw~iliyyaa/-thiilitha, fol. 40a; idem, Tabbo'niyyZt, fol. 2; idem, a/-Radd '015 a5bo'b a/-'adad, fol. l30b; idem, IbtGl a/-'amal bi-akhbzr aI-Eba'd, fol. 142b. See also Shaykh, Ghayba, p.3; idem, Mabsiit, I , p . 2; idem, 'Udda, pp. 54, 248; ' Abd al-Jalil al-Qazwini , pp. 529, 568. See ~abral-'Uldm, 11, p . 218. This name was invented by Ibn Fahd al-Mill7 ( d . 84111437-8) in early 9th115th century. See his a/-Muhadhdhab a/-bEric , fol. 3a. See also his a / - M u q t a ~ a r ,fol. 2a. In a letter to Ja'far b . Mubammad b. Qulawayh ( d . 3691979-80), lbn Abi ' ~ permitted ~ 2 him to narrate his works ( NajEshi , p . 38). Najsshi, p . 38; AB, XIX, p . 69.

'

'

He was in NaysSbGr in 3401951-2 and enjoyed the respect of its people (Mufid, $cghEniyya, p . 17). One of his works is a book of answers he gave to the questions of the Buyid Mu'izz al-Dawla, who died in 3561967 (NajZshT , p . 301) .

36

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37

the author of Tahdhrb al-ShT'a li-abka'm 01-sharT8a and a/-Abmaaif;' 'I-fiqh al-Mubarnma&. Ibn Abi ' Aqil , was a kalzm theologian. He may well be considered a precursor of the legal method of the kalzm theologians who slightly preceded Ibn al-Junayd, These scholars were, thus, nearly contemporaries.

validity of akhbzr a/-ZbZid a s a source of law and because of this, al-Mufid He relied, however, on rational ranged him among the traditionists. analysis when it came to comprehending, inferring and extracting legal principles from the sources and contrary to the traditionists who looked at the literal meaning of tradition alone, he appears to have aimed at a general legal interpretation of each tradition through comparison with other similar traditions. In accordance with a commonly accepted practice in later Shi'T law, he appears to have tried to discover the rationale ( 'ilia) As mentioned, this method which establishes general of a precept. principles in legal matters without the need to rely on the specific texts in traditions in every case, was held to be a kind of qiyzs in the early rejected the Sunni concept of qiya's. centuries and was rejected by S h i ' i jurists in the same way that they Like the adherents of rational reasoning in the time of the Presence, among whom was Fadl b . ShldhZn, As a result, Ibn al-Junayd was accused of employing qiyZs5 and rb'y. the works of Ibn al-Junayd were abandoned, in contrast to the works of Ibn Abi 'Aqil. Thus, his legal opinions did not receive much attention during the third and fourth stages of S h i ' i law,' in which legal thought was affected to a great extent by the school of the traditionists. In defence of his methodology, Ibn al-Junayd wrote a number of books, the titles of some of which indicate his method in law, notably Kashf altamwTh wb'l-ilbCs "oC aghmaF al-ShT'a f i amr 01-qiyEs and Izha'r mE satarah ah1 a/-'ina'd min a/-riwzya 'an a'immot al-'ltra fT amr al-ijtihzd.

'

of Baghdad who formed the third era in the development of S h i ' i law to be discussed later. Like other kalZm theologians, he did not consider traditions transmitted by a single or a few transmitters (akhbEr 01-EbZd) a s valid. It is evident from his judgments that his legal approach was firmly based on general Qur'anic principles and widely transmitted traditions. In cases where there was a general principle in the Qur'an to which an exception was made in traditions, Ibn Abi 'Aqil would maintain the general validity of the Qur'anic principle and ignore the traditions, unless the latter had been universally and unquestionably accepted. view of the proximity of his time to that of the Presence, however, the uncertainty with regard to the reliability of many traditions affecting later discussions was not yet felt to be a serious problem and there was less disagreement concerning the opinions of the Imams on fundamental legal principles arising from contradictory traditions. Because of this, the traditions which Ibn Abi 'Aqil attributes to the Imams in his book His legal and his legal opinions are In

have come to be accepted entirely by S h i ' i scholars after him. method also was appreciated by later scholars, quoted in most S h i ' i sources.

Ibn al-Junayd was not held in such high esteem and his legal method was criticized by both his contemporaries and by later scholars. He, too, was a kalCm theologian and produced many works on theology. Among these was one written in defence of Fadl b. ShZdhZn, a supporter of Among prominent S h i ' i theologians, AbG Mubarnmad uasan b . MuSz al-Nawbakhti (early 4thllOth century) also maintained the same opinion (see Najlshi, p . 50). It is already well-known that mush disagreement existed among the Mu'tazili the:logians of the time, too, about the validity of akhbo'r 01-ZbZd (see Abd al-Majrd, p. 94). Mufid, Sarawiyya, p . 223.
-

'

reasoning in law and theology.

In legal matters, Ibn al-Junayd held the

Babr a l - ' ~ l h m , 11, p . 218. Tustari , QZmZs, 111, p . 198. For similar legal appoaches in Sunni school see 'Abd al-Malid, pp. 219-24, 236. See for example $abib al-Madarik, p . 219. 5 e Allama, Mukhtolaf, 11, pp. 157, 167; Miqdad, TanqTb, fol. 88b. ' See also ' Abd al-Majid, p p . 267-8 for similar cases in Sunni law. NajZshi, p . 38; Ibn Idris, pp. 99, 192, 397, 398. Najashi, p p . 301-2; Najashi, p . 302. Shaykh, Fihrist, p . 134.

Uasan al-$adr , p. 302. Babr al-'UlEm, 111, p. 214; T u s t a r i , Qo'mZs, XI, p. 94. Mufid, $CgghCniyya, p . 19; idem, Sarawiyyo, pp. 222-3; NajZshi, p . 302. Shaykh, Fihrist, p . 134; Ibn Shahrlshfib, Ma'Clim, p . 87; 'Alllma, KhulG~a,p . 145; Ibn DZwud, p. 292; YabyE al-Babrani, p. 306; Amin al-AstarZbZdi , p. 30; ljusayn al-Karaki , chapter eight; Babr al-'Ulum, 111, p. 207; Abfi 'Ali, p . 346. Mufid, Sarawiyya, p . 223; MurtadZ, IntijEr, p . 238. Mufid, $EghZniyya, p . 19; Shaykh, Fihrist, p . 134; Ibn DSwEd, p . 292. Mufid, $5gho^niyyy p . 19; KZzimi, pp. 297-8.

'

NajHshi, p.38;

Shaykh, Fihrist, pp.64, 194; Ibn Dawiid, p . 111.

NajZshi , p. 301.

AN INTRODUCTION TO

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I
I

A W THE PERIODS OF SHT'Y L legal problems.

39

He also justified his approach in his book: at-MasF'il at-Miyiyya. Al-Mufid, the prominent S h i ' i scholar at the beginning of the M h l l l t h c e n t u r y , who praised Ibn al-Junayd's intelligence his works, including his 01-MasC'il a/-$FghCniyya,' al-Junayd7 ;la^ ah1 Misr, came to disagree al-MasC'il alseriously with his legal method, subjecting it to criticism in a number of Sarawiyya4 and in two special treatises, one entiled: Naqd risFlat a refutation of Ibn al-Junaydls a/-MasE'il alMisriyya, and another called al-Naqd 'a15 Ibn a/-Junayd fT ijtiha'd at-ra'y. Al-Mufid's s t u d e n t s too have cited and rejected some of Ibn al-Junayd's legal opinions in their works. Ibn al-Junayd's legal method which, on the one hand (and in contrast to al-Mufid and his followers), accepted ZbFd traditions a s valid and considered them a s t h e principal source of law, a n d , on t h e o t h e r , gave formal recognition to reason a s the means through which precepts could be ascertained, was closer to the more developed S h i ' i legal methodolog-, I t is evidently because of t h i s similarity of methodology that two centuries after him, his legal opinions were quoted for t h e first time with a degree of reverence, b y Ibn I d r i s , the S h i ' i scholar of the late 6thl12th c e n t u r y . From the second half of the 7th113th century onwards, when rational analysis pentrated more deeply into ShT'i law, t h e works of t h i s scholar received much praise and admiration. Al-'AllSma regarded him a s one of the outstanding e x p e r t s of jurisprudence, ments in his own works.
l1 lo

Al-Shahid al-ThZni, one of t h e later scholars of t h i s same

stage says of Ibn al-Junayd that the s h a r p n e s s of his g r a s p of problems, and his analysis was exceptional among classical S h i ' i jurists. Ibn Abi 'Aqil and Ibn al-Junayd t h u s must be considered a s the founde r s of S h i ' i systematic law, a s distinct from the Traditi0n.P 111. The Intermediate School In this same period, t h e r e existed in S h i ' i c e n t r e s of scholarship a group of jurists who, while holding the validity of many a'bCd traditions and while not offering an analytical systematic law comparable to that of the Qadimayn, followed the practice of ijtihCd, t h u s differentiating themselves from t h e conservative and narrow approach of t h e traditionists. In s h o r t , they held an intermediary position between the two tendencies described above. The school formulated i t s juridical opinions through t h e process of extracting specific precepts from the general principles implied in t r a d itions, o r through selection o r reconciliation when traditions were contradictory. Opinions formed on this basis were not always uniform, and this sometimes caused intense arguments on certain issues among t h e followers of t h i s school. The case of "adad' ( i . e . the argument a s to

I1/

i
I li
\

ical practices of later periods than to those of his time.

1:

whether the number of days of t h e month of RamadZn like the d a y s of other months, conform to t h e laws of astronomy or have a fixed and unalterable measure) was such a case about which t h e scholars of this school were in disagreement among themselves, and produced many treatises in defence of their own, or in refutation of the opposing views. The most important scholars of this tendency, whose views a r e sometimes mentioned in the legal sources, a r e : (i) (ii) 'Ali b . Bgbawayh al-Qummi ( d . 3291904-1) Abu '1-Fad1 Mubammad b . Abmad al-SZb8ni al-Ju'fi, author of a/-Fa'khir ( f i r s t half of the 4thllOth c e n t u r y ) Ja'far b . Mubammad b . Q8lawayh al-Qummi ( d . 3691979-80) Ahmad b . Muhammad b. DSwGd b. 'Ali al-Qummi ( d . 3681978-9)

and cited many of his legal judg-

The jurists of t h e fifth s t a g e , especially

al-Shahid al-Awwal, al-FErJil al-MiqdZd and Ibn Fahd, paid careful attention to Ibn al-Junayd's opinions, and narrated his views on many Mufid, Sarawiyya, p . 224. Idem, Siighzniyya, p p . 18-19. I b i d . , pp. 17-22. Idem, Sarawiyya, pp. 222-4.
\

(iii) (iv)

I b i d . , p . 224; NajSshi, p . 312. NajEshi, p. 315. See MurtaQZ, IntisFr, p p . 77-8, 80-1, 83, 217, 227, 237-43, 244, 246; idem, a/-Mawsiliyya al-thcniya, fol. 34a; Ibn al-BarrSj, Sharb Jurnal, p p . 244, 251.

'

T u s t a r i , QZmGs, XI, p . 94. See Ibn I d r i s , p . 99. See also Babr a l - ' ~ l u m , 111, p p . 205-6;

I
t

Shahid 11, MasFlik, 11, p . 222. Babr al-'UlGm, 11, p . 218. Mubaqqiq , Mu 't a b a r , p fol. 4b. See also Mufid, Sarawiyya, p . 222. 8Zbib al-Madarik

. 7;

, HidFyat

al-ta'libTn,

See 'AllSma, T d ~ b , p p . 88-9. AB, IV, p . 510, XX, p . 177.

lo
l1

See 'Allama, Khuliip, p . 145; idem, TdZb, p . 89.

See especially Ibn TZwGs, IqbFl, p . 6. pp. 236-8.

Also KZ~imi,p . 139; AB, V ,

40 3.

A N INTRODUCTION TO THE RATIONALISTS

S H T " ~L A W

THE PERIODS OF

SHT'T L A W

41

most outstanding of the Qummiyyunl' and 'the head of the traditionists', al-Mufid criticized him harshly in some of his works, among them Ta$bTb a/-i'tiqzd, a commentary on al-$adiiqts 01-1 'tiqzdzt , 01-Mosz'il ol-saroIn wiyya3and JawFb ah1 a/-UC'ir. The words he used in Jawzb ah/ a/- OF'ir were so h a r s h 4 that some scholars doubted if it had indeed been written by al-Mufid, while some suggested that it was written by al-Sharif It is clear, however, that this treatise is by al-~utaga o~ r someone else.

A s has been seen, the school of the traditionists gained control over the
S h i ' i centres of learning from the early years of the period of Minor Occultation (2601874) until the second half of the 4thllOth century. the last decades of that c e n t u r y , however, the emergence of a new school placed the traditionists under pressure and exposed them to severe criticisms which gradually weakened, and finally reduced them to silence. The founder of this school was the theologian and jurist al-Shaykh al-Mufid,
l

al-Mufid,' since much of i t s content is similar to statements in his other works, notably in TasbTb a/-i'tiqcd. These harsh words, and al-Mufid's other criticism of the opinions of the traditionists, l o reflect his great concern about the latterst domination over the S h i ' i intellectual community, and his determination to revive the rational approach in law and theology. His pupil, al-Sharif al-MurtadZ In
l2

Abii 'Abd A115 Mubarnmad b . Muhammad al-Nu'mZn al-

BaghdZdi Ibn al-~u'allim ( d . 41311022). He had studied under Abmad i BFbawayh b . Muhammad b . al-Junayd al-IskZfi , Muhammad b . ' ~ l b. al-sadiiq, ~ a ' f a rb . Muhammad b. Qiilawayh, Abmad b. Mubammad b. DZwiid b . 'A17 al-Qummi and Abu '1-uusayn ' ~ l b i . Wugayf al-Nzshi',' and was accordingly, very well acquainted with the three legal schools of the 4thllOth century. In order to pave the way for the r e t u r n of rational analysis in S h i ' i doctrine, he attacked and criticized the conservative approach of the traditionists in an attempt to break their position of dominance. he was to be successful. In this, One factor which was instrumental in his sucI

also played an important part in weakening the school of traditionists. many of his works, notably JabFbFt a/-rnasF'i1 a/-Mawsiliyya al-thzlitha, IbtFl a/-'arnal bi-akhbzr a/-coo'dl being religious deviationists, and a/-Radd 'ale as@b a/-'adad
l4

cess was that the traditionists of Qum, who spearheaded that school, maintained certain special views with regard to the ImZms, and considered the attribution of any supernatural thing to them a s a mark of extremism (ghuluww) and religious deviation. inadvertence (sahw). Some even considered a s an extremist (gha'li-) anyone who believed that the Prophet was immune to In this matter, most later S h i c i AkhbZris a s well These views a s some Ugiili scholars sided with these early traditionists.

E I I

1 I

he

was very critical of the traditionists, and even accused all 'Qummiyyiint of with the only exception of al-Sadiq, toward whom he adopted a more moderate approach. The attacks by al-Mufid, al-MurtadZ and other S h i ' i theologians in the Shaykh, F i h r i s t , p . 157.

I
1

'

BabrZni, Uadc'iq, I , p . 170. See p . 2 2 2 . Bahrani ,

See pp. 112, 116, 118, 120. Also JazZ'iri, IV, pp. 34-5; KashkZl, I , pp. 218-19.

presumably were not popular among the common people who preferred to elevate the spiritual status of their ImZms, and al-Mufid took advantage of this unpopularity to break the power of his opponents. In spite of the fact that he had studied with al-Sadiiq who was 'the

' Ali b . Muhammad al-'Amili, a/-Durr a/-Manthcr, I , p . 100. See also Macdermott , p . 41.
JazZ'iri, IV, p . 34; BabrZni , KashkEl, pp. 218-19. AB, V, p . 176. KZzimi, p . 211; T u s t a r i , Sahw a/-NabT, p . 2. XVII, p . 123, CX, pp. 165-7. See p p . 156, 160, 178, 182-3, 186, 211, 222.
lo

See also Majlisi 11,

See especially Amh al-AstarZbZdi, p . 30. Mufid, Lamb a/-burhzn (quoted in Ibn T a w i s , IqbFI, p . 5 ) ; Shaykh, Fihrist, pp. 89-90, 134, 136, 157. See MFimaqZni , the introduction, p . 212, V, p p . 84, 249. See Sadiiq, I , pp. 234-5; Majlisi I , Rawg'o, 11, p p . 451-2. JazZ'iri, 111, p . 131, IV, p p . 35-40. Among the ancient Ugiili S h i ' i scholars al-Tabrisi supported this view. See his Majrnas a/-bayen, I , p . 181 (also IV, p . 317). See also Abii 'Ali, p . 45.

For instance 'Ukboriyya, fol. 59a. He also devoted a book to his criticisms to the traditionists, entitled Maqcbbh a/-anwcr f i 'I-radd 'a15 ah/ a/-akhbzr (NajZshi, p . 315; AB, XXI, p . 375).
l1

KZzimi, pp. 205, 211.

II

l4

Fol. 130b. Murtaga, IbtEl a/-'arnal bi-akhb& 01-*Zd, fol. 142b.

l5

42

A N INTRODUCTION TO SHi"I L A W

first half of the S t h l l l t h c e n t u r y , resulted in the decline and fall of the school of traditionists. Aspects of this severe controversy a r e recorded Al-Mufid in some of the sources2 in which the traditionists are referred to a s the IokhbCriyya' , and the 'rationalists' a s 'rnu'tazila' or 'kalCrniyyal. 'rnubaqqiq5n1 a s against that of the 'traditionists'. 'u$Gliyyol. and al-Sharif al-Murtada too, speak of the approach of 'mutakallirn~n'and

precepts from the appropriate sources was done through rational analysis, the procedures and rules of conduct of which were familiar to the theologians because of the lattersl daily involvemtns with hard theological debates.

'

In later S h i ' i sources,

I
1
,

Nevertheless it should be noted that long years of entrenched traditionist influence on S h i ' i scholarship had left deep marks on the overall patterns of S h i ' i thought, patterns. and h a d , over time, become an integral part of these The different standpoints over certain problems between the

the adherents of this rationalist school a r e referred to by the term Al-Mufid was taught law by Ja'far b . Mubammad b . Qfilawayh, and was familiar with the whose legal However, because of his rational and one of the jurists of the Intermediate tendency, other legal Schools of his time. approach was similar to his own. The approach of the rationalists, as was described under the discussion of the legal methods of Ibn Abi 'Aqa, relied firmly on general Qur'znic principles and on widely transmitted (mutawCtir) traditions, and excluded those traditions which did not provide certainty (CbCd). Instead of the l a t t e r , they conformed to those legal views which were accepted and continually practised among S h i ' i s (ijmC'Ct). e 'Abd al-Jalil al-Qazwini, p . 568. For instance Shahrastini , p . 178. It is strange that al-Babrani, who belonged to t h e later Akhbaris of the sixth stage of S h i ' i law, thought that 'nothing happened between the traditionists and mujtahids (rationalist jurists) in the first centuries, although those ages were full of both types of scholars' (dadC'iq, I , p . 169). Shahrastani, pp. 169, 178; Sharif al-Jurjani, p . 629; Fakhr alRZzi , MobsGI (quoted in KFqirni, p . 203). The process of inferring

theologians of the Period of the Presence and those of later periods, spring from this fact.

'
The

The characteristic of the rationalist school, according to the above account, i s their refusal to relay on Chzd traditions a s a source of law. Al-Mufid, al-Murtarl.5 and their students' all emphasized this point. three eminent scholars of the school, each of whom made his own original

analytical tendencies he was an admirer of Ibn Abi 'Aqil,

'

I
1 1

contribution to i t , were : (i) Al-Mufid, author of numerous legal treatises and texts such a s a/-Muqni'a, a/-/'/Ern bi-rnC ittafaqat 'olayh a/-IrnCrniyya rnin a/-AbkCrn and a/- 'A w 7 ~ fi 'I-abkCrn (ii) (iii) Al-Sharif al-MurtadZ, author of a/-IntigCr, 01-MasC'il a/-NCgiriyyCt and many other treatises Abu '1-$alZb Taqi al-Din b . Najm al-Din al-galabi , author of a/-Ka'fT fi 'I-fiqh and a pupil of al-Mufid Other scholars of this school and interpreters of i t s views, whose original contributions are less conspicuous, a r e :
(i) (ii)

l I
1

'

Mufid, A wC'il a/-maqClCt, p . 98; Murtaaa, TabbCniyyCt , fol. 2 .

i
(
I

SallZr b . ' ~ b d al-'Aziz al-Daylami, author of a/-MarCsirn al-

'A llawiyya wa 'I-abkCrn a/-Nabawiyya

QEdi 'Abd al-'Aziz b . al-BarrZj al-Shimi, author of al-Muhadhdhab, a/-JawChir and Shar!, Jurnal a/-'ilrn wa 'I-'arnal Abu '1-gasan Mubammad b . Mubammad al-Bugrawi, a student of al-MurtadZ and author of al-Murd fi 'I-takrf

See for instance 'Abd al-Jalil al-Qazwini, p p . 3 , 178, 179, 190, 231, 235-7, 240, 272, 281, 282, 284, 415-16, 459, 481, 504, 506, 528, 569; 'Allzma, Niha'yat a/-wugGl, fol. 200b. NajZshi , p . 95. Ibid., p . 38. "ee works of al-Mufid and al-Murta(I.S. Also Rawandi , Fiqh alQ u r 'Cn , I , p . 4 . However, there were some differences between the approach of al-Mufid and al-MurtaaZ. See f u r t h e r Brunschvig, p p . 208-11. They had such a difference in theological matters a s well. Al-RZwandi ( d . 57311178) collected the cases of disagreements between al-Mufid and al-Sharif al-MurtadZ in their works, in an independent treatise. He gathered ninety-five theological cases upon which their opinions differed. Al-RZwandi thought it would need a large book to gather all t h e cases on which they had taken different standpoints (Ibn TZwfis, Kashf a/-mahaija, p. 20). Likewise, there were many cases of disagreement between alSharif al-Murta(I.5 and Abu '1-SaEb aI-galabi Al-Kariijaki collected these cases in a book entitled Ghzyat a/-ingcf f7 mas?i'il a/-khilzf in which he tried to support al-Murtadii's opinions (Nfiri, 111, p . 498/AB, XVI, p . 9 ) .

(iii)

,
I

These differences were, however, in theological matters. In legal discussions, they followed the same approach. The invalidity of CbCd traditions, which was the main characteristic of this school of law, was for instance supported by Fadl b . ShZdhZn a s well. See Babr al-'Ulfim, 111, p . 232; AB, XXIV, p . 287. See his: TagbTb a/-i'tiqCd, p p . 179, 212, 227-9; Tadhkira, p . 193; Sarawiyya, pp. 223-5; Jaw& ah1 a/-VC'ir, pp. 112, 116. See also Ibn Idris, p . 409; Mubaqqiq, Ma'Crij, p . 127.

In most of his works, a s example: a/-Mawgiliyya a/-thClitha, fol. 40a; DharTRa,p p . 528-55. For instance al-balabi , Taqr7b a/-MaR%if, fol. 91a; Karzjaki , p . 296; ' Ibn al-BarrZj, Sharh Jumal, p p . 170, 177, 256. See also ~ a h g al-Din al-'Amili, Warza, p . 6; KZzimi, p . 442.

'

44 (iv)
4.

A N INTRODUCTION TO

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THE PERIODS OF

SHT'P L A W

45

Abu '1-Fath Muhammad b . 'Ali al-Kariijaki

legal scholarship for three centuries. During this time, it passed through three stages: ( a ) The disciples of Shaykh al-TZ'ifa The century after his death was the period of his pupils and imitators. None of the S h i ' i jurists of this period produced any major novel ideas. They merely quoted and explained rl-Shaykh's statements and therefore have been called 'muqallido' (imitators).

THE SCHOOL OF SHAYKH

AL-TA'IFA

The rationalist school based its legal theories on the Qur'an and on wellknown widely transmitted traditions. Jho'd traditions on their own were not considered-to be a reliable source for law. Shaykh al-Ta'ifa, Mubammad b . gasan al-Tiisi ( d . 46011067), known simply a s 'al-Shaykh' in S h i ' i legal works, strove to retain the authority of EhEd traditions a s a source of law, rational method of law; of S h i ' i law up to the present time. ists.

' while preserving the analytical and

'
(

Sadid al-Din Mabmud al-gimma$i in the latter part of the 6thl12th century said that after al-Shaykh, the Shi'a had no muftT him were merely narrators and expounders of his views. The most prominent scholars of this period, whose names and works a r e mentioned in the legal sources, a r e : (i) Abii ' ~ l gasan i b . MuPammad b . gasan al-TEST, son of al-Shaykh ( d . after 515/1121), author of Shorh 01-Niho'ya and a/-Murshid ilE sabTl 01-ta'abbud (ii) (iii) (iv) (v) (vi) (vii) NiqZm al-Din SulaymZn b . Basan al-$ahrashti, a student of alShaykh and author of I$bEh a/-ShT'o bi-mi~bEtJ01-shari'a 'AlZ' al-Din 'Ali b . gasan al-galabi, author of Isho'rat a/-sabq ilo' ma'rifat a/-haqq Abii 'Ali Fad1 b . gasan Amin al-IslZm al-Tabrisi ( d . 54811158), author of a/-Muntakhab min Moso''i1 01-khilEf 'ImZd al-Din Mubarnmad b . 'AE b . gamza al-Tiisi ( d . after 5661 1171) , author of a/-Wasila i16 nay1 01-fafila Qufb al-Din Sa'id b . Hibat AllZh al-RZwandi ( d . 573/1178), author of Fiqh a/-Qur 'En Qufb al-Din MuPammad b meaning a jurisconsult with independent judgments) and that all S h i ' i jurists after

a method which has remained the characteristic

The method of Shaykh al-TZ'ifa, in effect, combined the method of the rationalists with that of the traditionThe legal works of Shaykh al-TZ'ifa opened up much new ground in His K . a/-Mabsijt treated many cases which S h i ' i jurists had His K . a/-KhilEf was the first notable work in S h i ' i law.

not dealt with previously.

the field of comparative law among S h i ' i s . These two books were modelled upon Sunni works, and through them an important part of Sunni legal scholarship passed into S h i ' i law facilitating i t s f u r t h e r development. S h i ' i law at this stage benefited much from the heritage of Sunni legal At the same time, non-Shi'i concepts, which were alien to traditional S h i ' i thought, also crept into S h i ' i law and created some inconsistencies in i t . In his two works, Shaykh al-Ta'ifa cited the text of some Sunni legal works literally and then added his judgments on the basis of S h i ' i general principles or His efforts to adjust nonS h i ' i concepts to his own legal system were not always successful. As a consequence, some confusion and inconsistencies are apparent in his works, which were later refined by al-Mubaqqiq al-Jjilli S h i ' i traditions in the form of marginal notes. thought of the early centuries of Islam.

. Busayn al-Kaydari

al-Bayhaqi ( d . after

More consonant with traditional S h i ' i legal thought, was Shaykh alp ' i f a ' s K . a/-Niho'ya, which became the most authoritative Shi'T text for two centuries. Apart from this, his a/-Jumal wa 'I- 'uqzd and some other legal treatises of his have also survived. His two collections of traditions Tahdhib ol-otJk?irn and a/-lstib$Er, became important sources of the law. His approach towards contradictory traditions in these two books, and his legal interpretation of them, deeply influenced S h i ' i law. The school of Shaykh al-Ta'ifa maintained i t s predominance in S h i ' i See the chapter on okhbEr 01-o'tJEd in his 'Udda, p p . 25-63. For this second, he was accused by the Akhbiiris of following the practice of qiyEs. See Busayn al-Karaki , chapter 8.

57611181), author of 01-I~bo'h (viii) Rashid al-Din Mubammad b . 'Ali b. ShahrZshiib al-Sarawi ( d . 5881 1192), author of MutashEbih 01-Qur'o'n wa mukhtolifuh ( b ) The period of criticism A century after the death of al-Shaykh, in the second half of the 6thl 12th c e n t u r y , a number of scholars arose in opposition to the fundamental principles of his school. Rejecting t h e validity of EhEd traditions a s a source of law, they revived the rational method of al-Sharif al-Murtaqii.

1
!

'

See KZ6imi, p . 4 4 2 . Ibn TZwEs, Kashf a/-Mabajja, p . 127; Jjusayn b . 'Abd al-$amad,

WUSEI a/-akhyZr, p. 33; $Ebib al-Ma'alim, p . 179; Abu '1-~Zsim b. Basan al-Yazdi, I , p . 2 0 ; K h w 5 n d r i , V I I , p . 161.

46

A N INTRODUCTION TO S H ~ ' ? L A W

!
(iii)
- (iv)
(v)

THE PERIODS OF SHY? L A W Zayn al-Din Muhammad b. Qzsim al-Barzifi al-Nayszbfiri (alive in 66111263) Najm al-Din Mubammad b . Ja'far b . Hibat Allzh b . Nimz ( d . 6451 1248) Sadid al-Din Yiisuf b. al-Mutahhar al-uilli (alive in 66511267) Abmad b . M i i s 5 b

The prominent representatives of this new tendency, which did not develop any further after them, are: 1. Sadid al-Din Mabmiid b. 'Ali al-uimmagi al-REzi ( d . after 5831 1187)
2.

'Izz al-Din Abu 'I-Maklrim Ijamza b . 'A17 b. Zuhra al-IJalabi ( d . 5851

1189-go), authpr of Chunyat a l - n ~ z i j ' ~ 3. Mubammad b. Mangiir b . Ahmad b. Idris al-villi ( d . 59811202), author of a/-SorZ'ir To this list some other scholars of the same period could be added, who in their positive legal doctrine followed al-Shaykh, and hence we mentioned them among his disciples, but in theory and under the influence of the works of al-Sharif al-Murtada, they maintained the invalidity of ZbEd traditions. Among them were Qutb al-Din al-fllwandi4 and Ibn Shahrzshiib

(vi) (vii) (viii)

. TOwiis al-uilli

( d . 67311274-5), author of

B ushrb a/-mubaqqiqin

YahyZ b . Sa'id al-uilli ( d . 68911290), author of Jcmi' al-sharo'i' and Nuzhat a/-nZ?ir 'ImZd al-Din Basan b . 'A17 al-Tabari (alive in 69811299), author of a/-'Umda, Nahj a/-'irEn and a/-Fa$Tb a/-munhij

( C) Al-Mubaqqiq and al- 'Allzma The legal heritage of al-Shaykh, though fertile in new perspectives, was, nevertheless, a s yet immature and inconsistent, and needed further refinement and organization. Some of the elements which he adopted from Sunni law remained tied to their original framework, and were not well absorbed and adjusted to the new system. If S h i ' i law was to benefit fully from these elements, the whole system had to be adjusted and reorganized in order to accommodate them. This task was accomplished by al-Mubaqqiq, Najm al-Din Abu '1-Qssim Ja'far b . Basan al-uilli ( d . 67611277) author of SharZ'i' 01-lslzm, a/-Mukhta~ara/-ncfi * , a/-Muetabor , Nukat 01-NihCyo and other legal works. He refined the Shaykh al-T5'ifats legal heritage in detail, collected and rearranged his opinions on various subjects, harmonized his legal doctrine and thus restored its authority which had been discredited by Ibn Idris's criticism. He contested these criticisms vigorously and defended al-Shaykh's legal doctrine. Al-Mubaqqiqts main contribution to Shi '7 law, therefore, was his reconstruction and refinement of al-Shaykhts legal system, which placed S h i ' i law on a firmer bases enabled i t s further development. His student al-'Allzma, gasan b. Yfisuf b . al-Mutahhar al-villi followed this same course. He strove to elaborate and expand the law on the basis of alShaykhts legal doctrine and of al-Mubaqqiqts reorganization. He wrote many books on different branches of law, which all became important works of reference for later jurists. Among them were Mukhtalaf a/-Shi'a, Tadhkirat al-fuqahz, Muntaho a/-Moflab, TabrTr a/-abkzrn a/-shar'iyya, Tabsirat a/-muta'allimin, Qawz'id a/-abkFm, Irshzd a/-adhhZn, Nihzyat a/-ibkCm and TalkhTs a/-marzm. Al-'Alllma contributed to the development of S h i ' i law particularly in

The most radical proponent of this tendency was Ibn Idris. His criticism of the views and the legal approach of al-Shaykh was so strong that it was considered by some later scholars to have exceeded proper bounds. Although Ibn IdrTsts critical views did not attract many supporters, they did stimulate efforts to take S h i ' i law out of its static mould, and thus furthered its evolution. The main characteristics of Ibn Idris's approach were his critical eye and his independent thought, which are observable even in the preface and conclusion of his a/-Sarz'ir. During the 7thl13th century, a number of jurists offered some new opinionss which are cited in the legal sources. They are: Muhadhdhab al-Din uusayn b . Mubammad al-Nili (early 7thl13th (i) century ) (ii) Musin al-Din Salim b. Badran al-Migri (alive in 621311231), author of Tabrir a/-farc'id and a/-,Ma'Ena
-

See his opinions about CbFd traditions in Ibn Idris, Sarz'ir, pp. 40911, quoting from al-gimmagits a/-Magodir. 2 See his view about akhbZr 01-ZbZd in his Chunya, pp. 537-9. See his view on akhbzr al-obzd in his a/-Saro'ir, p . 4. See his view in that case in his Fiqh a/-Qur'Zn, I , p. 4. See his opinion in his MutashZbih a/-Quim'Zn, 11, pp. 153-4. See a s an example of those judgments Najafi, X I X , D. 37. See i t , p p . 4, 404. It is to be noted that this book is full of useful philological, genealogical and biographical information which demonstrates that Ibn Idris was well acquainted with different branches of Islamic scholarship. See '~llZma, MuntahZ, p . 4. their general methodology. These scholars followed al-Shaykh in

48 two areas.

AN INTRODUCTION TO

SHT'T L A W

I
i I

THE PERIODS OF SHT'T L A W after this, and with the appearance of his a/-Mabsljt and 01-Khilaf which incorporate Sunni legal methods and concepts, some fundamental changes appeared in the form and content of Shi 'i law. With regard to form, the new expositions of the law turned into a mixture of the two legal systems. They usually covered legal topics on the basis of Sunni legal texts, first citing the views of Sunni jurists, usually those quoted in 01-KhilCf, and then presenting the opinions of S h i ' i scholars. AI-Abi, a student of al-Mubaqqiq and author of Kashf a/-rumzz, was one of the first Shi'i authors who did not follow the approach and refrained from quoting the opinion of Sunnis in his own book. The students of al-'Allzma, notably Fakhr al-Mubaqqiqin in his book T#Fb 01-fawZyid, followed al-Abi's lead and omitted the analyses and opinions of Sunni scholars. With regard to content, the additional subsidiary legal cases first discussed in 01-Mabsu't and later in the works of al-'Allama in the section on transactions, were borrowed from Sunni works and continued to be presented on the basis of the principles of Sunni law. Hence, a study of the foundations of Sunni law became crucial to the understanding and study of Shi'f legal sources. Al-Shahid al-Awwal, Shams al-Din Mubammad b. Makki al-'Amili ( d . 78611384) in his 01-QowC'id wa 'I-fawz'id reformulated the fundamental rules and principles of S h i ' i law, and in applying them, changed the contents of Shi'i law and provided it with an independent identity. On the basis of the same principles, al-Shahid opened up new grounds for Shi'i law and introduced discussions of many new subsidiary cases. Thus his legal system was quite distinct from those of his predecessors both in methods and contents. His legal works, such as 01-QawF'id wa 'Ifowii'id, al-DurGs 01-shar'iyya, GhFyot 01-muriid, a/-Baya'n, 01-Alfiyya and 01-Lum'a 01-Dimashqiyya a r e among the most important works of Shi'i law. Scholars after him for about one and a half centuries continued to mostly directed their efforts towards explaining his views. adhere to his school and, though they offered c e r ~ a i n novel opinions, they The most renowned among them were: (i) (ii) (iii) Ibn al-Khlzin, Zayn al-Din, 'Ali b . I;Iasan b . al-Khzzin al-Ijz'iri (early 9th115th century) Ibn al-Mutawwij, Ahmad b . 'Abd AllSh al-BabrSni ( d . 82011417-18), author of a/-NihGa f7 tafsTr a/-Khamsmi'at Fya A1-FZQil al-MiqdZd , Miqdzd b

He greatly enlarged the section on legal transactions on the

basis of I'elevant general rules mainly taken from Sunni law. His efforts in this area reflect his thorough knowledge of Sunni legal principles. His second contribution was the introduction of mathematics, in which he was well versed, into the law. He seems to be the first prominent scholar to use advanced mathematical rules in the relevant legal subjects such a s the law of inheritance, the times of prayer (awqat 01-$slat) and the direction of prayer (qibla). He also made great contributions to the development of S h i ' i law through his criticism of the transmitters of the traditions, his implementation of a novel classification for the Shi'i traditions according to the degree of authority of their narrators2 and his refinement of u@l a/-fiqh through his numerous u$Gl works. To sum u p , the legal doctrine of Shaykh al-Ta'ifa which had become predominant in the S h i r r community from the middle of the S t h l l l t h century onwards, reached its highest level of refinement in the latter half of the 8th114th century as a result of al-Mubaqqiq's clarification and systemization, and al-'Allzma's elaboration and expansion. Its definitive formulation appeared in the works of these two scholars. The pupils and followers of them all worked within this same legal framework. The most renowned of them, whose views have been cited in the legal works, are : (i) (ii) (iii) Abh Mubammad gasan b . Abi Tllib al-Yhsufi al-Abi , Ibn Zaynab, author of Kashf 01-rumilz (composed in 67211274) 'Amid al-Din 'Abd al-Muffalib b. Mubammad al-I;Iusayni al-A'rajr ( d . 754/1353), author of Konz a/-fawa'id Fakhr al-Mubaqqiqin, Mubammad b. IJasan al-I;Iilli , son of al'AllZma (d. 771/1370), author of Td?ib 01-fowz'id 5. THE SCHOOL OF AL-SHAHTD AL-AWWAL It was in the second stage of its development that Shi'i law emerged as an independent and systematic legal structure. The legal works which have survived from the second and the third stages, reflect the traditional But

style of Shi'i law which Shaykh al-TE'ifa followed in his 01-NihFyo. He had been rules in this case AB. 111, p. 377), Na$ii-iyyo (ibid.,

preceded in the application of advanced mathematical by Mu'in al-Din al-Migri in his TahrTr a/-farE'iQ' (see followed by NasG al-Din al-Thsi in his a/-FarEYi#alXVI, p. 150).

Jams al-Din Abmad b . Mils5 b . Taw&, author of Bushrz 01-hlubaqqiqTn

This novel classification was originally initjated by al-'Allama's teacher

(Turaybi, JFmi' al-maq51, chapter 56) and gained popularity through its vast implementation by al-'Allzma in his works.

. 'Abd

AllZh al-Suyhri al-uilli

( d . 826/1423), author of Kanz 01-'irfin and a/-TanqTL, 01-rF'i'

50 (iv)

A N INTRODUCTION TO

~ ~ fLA 'Wi

THE PERIODS OF

SHT'T

L A W

51

Ibn Fahd, Ahmad b . Mubarnmad b. Fahd al-Asadi al-lJilli ( d . 8411 1437-81, author of 01-Muhadhdhab a/-bcri', a/-Mi7jaz 01-hew7 and a/-Muqtasar

iI Jo'mi' al-maqo'sid, Ta't7q al-lrsho'd and Fawr'id al-Sharz'i' and also wrote
I

(v) (vi) (vii) (viii) (ix)

Shams al-Din Mubarnmad b. Shuja' al-Qattan al-lJilli (first half of the 9thl15th c e n t u r y ) , author of Ma'iilirn a/-dTn fT fiqh A / Yesin Muflib b . Ijusayn al-Saymari ( d . after 87811473-4), author of GhFyat a/-marcm, Kashf a/-iltibcs and Jawchir a/-kalimet Ibn Hilzl, 'Ali b . Muhammad b. Hi151 al-Jazl'iri 1504- 10) Ibrohim b . Sulayman al-Qatifi ( d . after 945115391, author of T d ~ b a/-NFfit Al-Shahid al-Th5nT , Zayn al-Din, b . 'Ali b . AQmad al-'Amili ( d . 96611559), author of a/-Rawda a/-bohiyya, MasEIik al-afho'm and Rawd a/-jincn ( d . 909-9151

separate treatises on some of them. Most of the S h i ' i jurists who succeeded al-Karaki up to the end of the Safavids, were influenced by his legal approach. The more well-known of these scholars whose names and views a r e cited in legal sources are: Ijusayn b . 'Abd al-$amad al-'xmili ( d . 98411576) (i) (ii) (iii) 'Abd al-'Al~ b . 'A17 b . 'Abd al-'Ali al-Karaki , his son ( d . 9931 1585), author of Sharb 01-lrsha'd Bahz' al-Din Muhammad b . uusayn al-'iimili ( d . 1030116311, author of Mashriq 01-shomsayn , J?imi'-i 'Abbcsi, 01-babl al-matin and a/-IthnG'ashariyyo't (iv) (v) (vi) (vii) (viii) Mubammad Bzqir b. Shams al-Din Mubammad al-Astarzbzdi, al-DZnlld ( d . 104011630-I), author of Sh?iriCal-najot Sultan a l - ' ~ l a m l ' , Jjusayn b . ~ a f i 'al-Din Mubammad al-Mar'ashi ( d . 106411653-4) uusayn b . Jams al-Din Mubammad al-KhwZnslri ( d . 109811687), author of Mosha'riq a/-shumiis Jams1 al-Din Mubammad b

6.

THE L A W OF THE SAFAVID PERIOD

S h i ' i law during the period of t h e Safavids (907-113511502-1722) may be divided into three schools which although appearing one after another, continued to exist and evolve side by side for a long time. ( a ) The school of al-Mubaqqiq al-Karaki Al-Mubaqqiq 'Ali b . Ijusayn b . 'Abd al-'Ali al-Karaki ( d . 9401 1534) was a leading figure in S h i ' i scholarship in the early Safavid period and made a major contribution to the development of S h i ' i law. Al-Karaki's law differed in two respects from earlier formulations. Firstly, he was able through stringent legal reasoning to place S h i ' i law on a more stable and solid footing by way of reconstructing and strengthening its principles. He analysed legal problems thoroughly, paying meticulous attention to the discussions and arguments previously advanced about them, and used his power of reason and analysis to arrive at his own judgment. inadequate. Earlier analyses of legal questions were rather superficial and He based his judgments on a thorough investigation both in

. Pusayn al-Khwlnszri

( d . 1125117131,

author of UGshiya 'ala '/-Rawdo a/-bahiyya Al-Fadil al-Hindi , Mubammad b . al-yasan al-Igfahani ( d . 11371 1725), author of Kashf a/-lithzrn and a/-Manchi1 a/-sawiyya ( b ) The school of al-Muqaddas al-Ardabx Al-Muhaqqiq Abmad b . Mubammad al-Ardabm, known a s al-Muqaddas ( d . 99311585), author of Majma' a/-fi'ida wo 'I-burhen and Zubdat a/bayen, developed his own special and independent legal method which gave rise to a distinct and significant school. His method was characterized by systematic, independent rational arguments based on his personal juridical analysis which entirely ignored the opinions and views of previous scholars. Although he did not bring about any fundamental changes in the methodology and structure of the law, his extreme precision and exactitude, together with his independent method and juridical boldness made his school quite distinctive. Some of the best scholars of this period were followers of his approach. The most famous are:

favour of and against them. His legal doctrine, therefore, was much more solidly argued than had been doctrines by earlier jurists. Secondly, he paid close attention to certain problems which had arisen a s a result of the change of the political situation with the adoption of Shi'ism a s the official religion of Iran. These problems included the limits of the legal power of the faqTh (jurist) ; the legitimacy of Friday prayer in the absence of the Imam, the land tax e t c . , which prior to the rise of the S h i ' i Safavid dynasty had not been in question. Al-Karaki himself discussed these questions in detail in his legal works, such a s his

(i)
(ii) (iii)

Mubammad b . 'Ali al-M6sawT al-'xmili, $%bib al-MadZrik ( d . 10091 1600), author of MadFrik a/-abkcrn and Hida'yat a/-l?i/ibin Jjasan b . Zayn al-Din al-' Amili , $Zbib al-~a'alim ( d . 1011116021, author of M a 'o'lim 01-dTn and MuntaqC al-jumo'n 'Abd Allah b . JJusayn al-Tustari ( d . 102111621), author of Ja'mi'

A N INTRODUCTION TO ~ H i " i L A W

THE PERIODS OF SHi'i L A W method of legal reasoning which is based on rational argument, i s not the In most of his other works, he cirticized the legal method of S h i ' i jurists and blamed them for being imitators of the 'ancients'. 'Abd al-Nab7 b Sa'd al-Jazs'iri , a slightly

(iv)

Mubammad BSqir b . Mubarnmad Mu'min al-Sabzawari ( d . 109011679), author of DhakhCot 01-maREdand KifZjyat 01-abkEm

only way to the discovery of legal norms.

M u p i n al-FayQ, author of a/-llriifl, Mu'ta~amal-Shr'a and MafitTb alsharz'i', may also be included in the above list. Although an advocate of the Akhbzri school of this period, he approved of al-Ardabili's independent approach and followed it in practice. Like the followers of alArdabili (especially SZbib al-Madarik and al-Sabzawari) , he preferred the opinions of al-Ardabili in many cases where the latter deviated from those of previous S h i ' i scholars.' Mubammad Baqir b. Mubammad Taqi al-Majlisi , author of Mir 'Zt a/- 'uqiil and Bibo'r 01-onwzr, too, was interested in the views of al-Ardabili and $ Q i b al-Madarik, and cited them frequently in his own works. The school of the traditionists had been overcome by the S h i ' i rationalists at the end of the 4thllOth century, though a limited number of its supporters survived here and there. They were not active and were threfore largely ignored by others. It was not until the beginning of the l l t h l l 7 t h century that their school was revived by Mubammad Amin alA suitable ground for the revival of the traditionist school had gradually been provided from early lOthll6th century onwards. law began to gain popularity. Around the middle of the same century, a tendency calling for more freedom in S h i ' i

later jurist, criticized the legal approach of the U$iili school in his 01-lqti$Fd f l sharb a/-lrshEd3 (written in 101511606-7). A $adr ( t h e chief religious dignitary) of the Safavid court in the, first half of the I l t h l l 7 t h century is quoted a s having said that no S h i ' i mujtahid remained in Iran or the Arab world in his time.' Al-Muqaddas al-Ardabili never hesitated, as noted before, to reject the opinions of all previous jurists wherever His s t u d they excluded traditions on the basis of a rational argument. ents like Mubammad b . 'Ali al-'xmili, author of MadFrik a/-abka'm followed the same line. 'Abd Allah b. Uusayn al-Tustari in early l l t h l l 7 t h century made a great contribution to the rivival of the badTth literature. Ijasan b . Zayn al-Din al-'&mil7 also made, at the same time, his contribution to the field through his works MuntaqE a/-juma'n and a/-Tahrir alTawiisT. Many other works appeared in the f i r s t half of the same century on the b a f l t h literature, mostly inspired by the teachings of 'Abd Allah Subjects such a s the validity or invalidity of the traditions al-Tustari. a s a source of law had again become points of debate among the jurists of The value of logic and philosophy in early decades of the same century. Islamic scholarship had already come under question. Elements such a s these contributed enormously to the appearance of a new traditionist vusayn b . 'Abd. al-.$amad, hlaqEla f i wojuh a/-iftE' wa bayEn a/-bcqq See also AB , XXI, p 407. 'a!F kull man 'alim bih

AstarHbLdi ( d . 103611626-7) in his book a/-Faw~i'id a/-Madaniyya.

Al-Shahid al-ThZni wrote a treatise against following the legal judgments of the previous jurists without examining their bases. a/-lsla'm

'

His pupil Ijusayn b . 'Abd al-Samad al-'xrnili, shoykh

of the Safavid court, followed the same line and wrote a similar

treatise on the same subject in which he held that ijtihzd, i.e. the normal See for instance Najafi , XVI, p . 71. This author (Mubammad gasan b . Mubammad Baqir al-Najafi , author of Jawo'hir 01-kolEm) did not favour the independent method of these scholars and their disregard of the opinions of the previous S h i ' i jurists. So he spoke of those three col1ectiveIy a s 'the followers (atbCC)of al-Muqaddas'. For the story of this revival and its 'background, see especially Amfn al-AstarSbadi , DEnishnEma-yi shEh7; KhwZnsSri , I , p . 121. It has been said that Ibn Abi Jumhiir al-ApsZ'i, a S h i ' i theologian with gGfi tendencies of early 10th I 16th century, was a follower of the traditionist school (see KhwZnslrT, VII, p . 33), but there i s enough evidence in his works to deny this accusation. See Niiri, 111, p. 361 quoting Ibn Abi Jumhiir's Kzshifat a/-bE1; also AB, XVIII, p . 300. AB, X, p . 42. M S MI6913 LOSAngeles ( c a t . , pp. 667-8).

See his RisEla fi bukm a/-bugr wa 'I-bawFr7 wa sahm a/-lmo'm, p. 217; Tis' masF'i1, p. 256; RisEla f i tabqiq b a e d 01-masa"i1 a/-fiqhiyyo, pp. S 1836 of the Majlis Library, Tehran, contains a copy of the 123-4. The M f i r s t treatise mentioned above alongside some other works on the UgiiliAkhbari dispute, including Amin al-AstarZbZdi's a/-Fawii'id a/-Madaniyya (see the catalogue of the Majlis Library, IX, p . 493). This shows that Ijusayn b . 'Abd al-$amad's works were regarded a s in the vanguard of that dispute. See pp . 18- 136 of this work. Kamara'i, RisFIa dar ithbzt-i luziim-i wujiid-i mujtahid d a r zamEn-i ghaybat, pp. 2-3. See his Moimo' a/-fi'ida wa 'I-burhEn, passim. See Khwznsari, IV, pp. 235, 240, 243. Ibid; AB, X, p. 126, XV, p . 73. See KhwInsEri, IV, p . 238. Shahid 11, RisElo f i t a q r d a/-mayyit (quoted in al-KabEzi, a/-'Ashara a/-ko'milo, p. 242. See also AB, IV, p. 392).

'

54

A N INTRODUCTION TO

SHT'T

LAW
from Iran to Bahrain.

THE PERIODS OF

SHT'T

LAW

55

school and its rapid development and predominance. The new traditionist school, which was now called by its other old name, AkhbZri, was, like i t s predecessor, opposed to the rational, analytical approach to the of the traditions. law and adhered strictly to the outward, literal meanings In the above-mentioned work, Amin al-AstarabEdi

'

Akhbaris and Ugiilis had not yet become strong. century.

During this century, the animosity between Sharper opposition bet-

ween them, however, began to appear from the last decades of the same The AkhbZri tendency gained supremacy in all S h i ' i centres of learning in the following century, and held S h i ' i law in its grasp for several decades until the second half of that century, when it again declined in the face of Ugiili resurgence. Bahrain was the stronghold of this school during this period and has remained so up to the present, after the demise of Akhblrism in Iran and Iraq. There are few AkhbZri jurists who held independent views on legal matters. Two prominent AkhbZri scholars stand out for their moderate approach. (i) (ii) They are: Mubsin al-Fayd YEsuf b . Abmad al-BabrZni , $Zbib al-Uadz'iq ( d . 118611772), author of al-(fudF'iq a/-nEq'ira. Some other leading figures of this school were: Khalil b . GhZzi al-Qazwhi ( d . 108811677), author of two comment(i) aries on al-Kulayni's K . a/-KEfl (ii) (iii) (iv) (v) 7. Mubamrnad b. gasan al-gurr al-'Amili, author of WosC'il a/-ShT'a Ni'mat A11Zh b . 'Abd AllZh al-JazB'iri ( d . 111211700), author of GhEyut a/-rnarzrn and Kashf a/-asrCr SulaymSn b . 'Abd AllBh al-Babrlni al-MBbhzi ( d . 112111709) 'Abd AllPh b . $glib al-SamShiji al-BabrBnT ( d . 113511723). THE SCHOOL OF

argued against rational analysis and reasoning a s a means of discovering legal norms, and utterly dismissed the principles of uszl a/-fiqh which had been evolved in order to define the rational method. This approach basically resembled the more radical wing of the early traditionists which The focus in Amin al-AstarZbZd'is argument was on the invalidity and peccability of the Aristotelian logic which had been the basis for the S h i ' i jurists in their legal reasonings. The main difference between the two S h i ' i legal tendencies of Ugiili and AkhbZri was the validity or invalidity of reason in connection with religious matters, although many other points of disagreement, mostly of the same type, existed at the same time. The AkhbZri school found its way to Iraq in the fourth decade of the l l t h l l 7 t h century and was followed by most of the jurisconsults of Najaf and other S h i ' i centres of learning in Mesopotamia. In Iran, the majority of the jurists of the provinces in the second half of the same century

considered.al1 traditions transmitted from the ImBms a s authentic. l

The religious academy of IgfahZn, which was supported this tendency. the largest centre of S h i ' i learning, was dominated by the U$Eri, although the first Majlisi, Mubammad Taqi b . MaqgGd 'Ali ( d . 107011659-60), author of Rawq'at a/-rnuttaqFn and Law5rni'-i ~EbibqarCnnT inclined to AkhbZrism, and his son Mubammad B l q i r , al-Majlisi I1 supported a method between AkhbZrism and UgClism. Zayn al-Din 'Ali b . SulaymBn b .

'

A L - W A ~ T D AL-BIHBAHANY

Darwish b . HZtim al-Qadami al-BabrBni ( d

. 106411653-4) took

AkhbZrism

As mentioned above, the AkhbZri school which predominated in Shi'i centres of scholarship from the first half of the 12thl18th century, rejected the traditional methodology of law upon which ijtihcd had relied, and forbad its study or usage. As a result, this discipline was abandoned and There is no mention of any important rnujtahids in the history of S h i ' i law during the middle of that century. Only a very few continued forgotten. to teach a limited number of students in small schools, distant from urban religious and academic centres. In the second half of this same century, an outstanding S h i ' i jurist
'l BabrZni, Lu'lu'a, p. 13; TunukZbuni, p . 227; AB, X V , p . 76. The name 'Bahrain' is used here in its old meaning which included the mainland of al-Qafif and al-AbsZ' inhabited by Shi'is. See KhwSnsZri , I , pp. 134-5. Also 'Ali b. Mubammad al-' Amili , SihZrn , fols 7b- 10a.

KhwZnsZri, I , pp. 127-30. See J a z l ' i r i , Manba', pp. 275-8; SamZhiji, pp. 375-9 (also quoted in KhwZnsZA, 1, pp. 127-20) ; 'Abd AllZh al-JazZ'iri, pp. 381-2; Shubbar, Bughya, the whole work; Dizfiili, FCrljq a/-baqq, the whole work (86 points of disagreement are mentioned) ; KZshif al-GhitZ, a/-Uoqq a/-rnubTn, pp. 76-89; Rids al-Qazwini, a/-Far9 bayn a/-AkhbFriyyTn w a 'I-U$EliyyTn , the whole work.

See Bihbahzni , Fawij'id, p p . 436-8;

'

MajlisiI, LawFrniC, I , p . 16; KhwEnsZri, I , p . 137. See Majlisi I , Rawq'a, I , p . 21. Idem, LawCrniC,I , pp. 16, 30; KhwBnsBri, I , pp. 136-7, 11, p . 119.

Majlisi 11, Sayr wa sulCk, fol. 53a. See also his ZCd 01-rna'Cd, pp. 557-8 (quoted in BabrZni , fladC'iq, XII, p . 268).

56

A N INTRODUCTION TO

SHT'T LAW
(v)

THE PERIODS OF

~~1 L A . W 1

57

with a genius for rational argument and analysis, succeeded in dismantling the influence of the AkhbZri school a n d in establishing a new rational school in S h i ' i law. This scholar was Mubammad Bhqir b. Mubammad Akmal al-BihbahZni , known a s al-Wabid ( d . 120511791), who produced many legal works, among them: al-FawE'id a/-bE'iriyya and Sharb MaGtTb a/-shara"i'. Conditions for such a change were, to some e x t e n t , facilitated by some AkhbZri scholars in the mid-l2thll8th c e n t u r y . Scholars such a s s a d r (viii) (ix)
(x)

( d . 123111815), author of RiyFQ a/-masfail Abu '1-QZsim b. Jjasan al-GilEni al-Qummi ( d . 123111816), author of JZimle a / - s h o t 2 , GhanE'im a/-ayyZim and ManChil al-abkEm Asad AllZh b . IsmEril al-Tustari al-KZzimi, sZbib al-MaqZbis ( d . 123411818-19), author of MaqEbis a/-anwZr (vii) Mubammad b. 'Ali al-TabZtabL'i al-MujZhid ( d . 124211827), author of a/-ManEhiI Abmad b . Mubammad Mahdi al-NarZqi ( d . 124511829), author of Mustanad a/-Shr'a and ManEhii a/-abkcm Mubammad BZqir b. Mubammad Naqi al-Miisawi al-Shafti, Jjujjat al-IslEm ( d . 1260118441, author of MalZli' a/-anwsr Jjasan b . Ja'far al-Najafi author of AnwCr a/-foqCha (xi) Mubammad Jjasan b. Mubammad BSqir al-Najafi ( d . 126611850), author of JawEhir a/-kalZm. 8. THE SCHOOL OF SHAYKH A L - A N $ ~ I The last fundamental change which occurred in S h i ' i law and which led to the founding of a new school, was associated with the reconstruction of the law and i t s methodology through the scholarly approach of al-Shaykh Murtaas b . Mubammad Amin al-AngEri ( d . 128111864). This resulted in a radical change in the system of S h i ' i law. Al-An$Zri extended the section of USE/ a/-fiqh which dealt with t h e most general principles of law (a/-usGI a/- 'amaliyya) to a remarkable degree, and rebuilt i t with subtlety and precision on a firmly rational base. transactions. He next used this method to r e s t r u c t u r e t h e law, especially the section of His legal studies and his overall method were so refined a n d Wherever he h a s dealt with a His works solid they superseded all previous methods.

'

(vi)

al-Din Mubammad b . Mubarnmad BZqir al-Hamadan7 ( d after 115111738-9) in his S h a r e 01-WZfiya, Yiisuf b . Abmad al-BabrZni ( d . 118611772) in the a/-nEQira, Mahdi b . Mubammad SZlib alintroduction to his a/-@adEYiq Futiini al-'xmili a/-akhbZr, ( d . 1183/1769-70) in the introduction to his NatE'ii Mubammad b . 'Ali al-MaqZbi al-BabrZni ( d . after 116911756)

A 1 KZshif al-ChitZ'

( d . 126211846),

~ o t h e r s 3 accepted some of in the introduction to his Nukhbot a l - u ~ i i l ,and t h e Ugiilis' arguments, rejected some AkhbZri approaches and followed a more moderate line. Treatises against the AkhbZri doctrine had already begun to appear before the middle of t h e c e n t u r y . Through severe continuous mental e f f o r t ,

'
The

al-BihbahZni managed to

re-establish the authority of reason and rational argument in law. with t h e r u l e s and principles of u$Gl a/-fiqh.

legal system of his school was the f i r s t to be constructed entirely in accord He worked h a r d on the His elaboration of his method and on the rehabilitation of usGI a/-fiqh.

legal work which is representative of a logical law, woven into a solid and integrated legal system, cannot be easily compared with preceding systems. Al-BihbahZni had prominent pupils and followers who carried on his school and spread his legal doctrine. (i) (ii) (iii) (iv) The most renowned of them a r e : Babr al-' Uliim Mubarnmad Mahdi b . MurtaaZ al-TabZtabZ'i, ( d . 121211797), author of a/-MosZbTb JawZd b . Mubammad al-Ijusayni al-'Amifi ( d . 122611811), author of MiftEb a/-karCma Ja'far b . Khiar al-Najafi , KZshif al-GhitZ'(d. of Kashf a/-ghita" 'Ali b . Mubarnmad 'Ali al-TabZtabZ'i See AB, XXIV, p. 42. I b i d . , XXIV, p . 93. For instance RisEIa f l wujiib ittibEC01-mujtahid li-zannih b y Mubammad IsmZ'il b . Mubammad Jjusayn al-KhwZjii'i al-IgfahZni ( d . 117311759-60), written in 113711724-5. al-Karbalz'i, sZbib al-RiyZd 122811813), author

certain subject, his discussions have supplanted all previous works on i t . Al-AngZri's method is still dominant in S h i ' i academic life. books in S h i ' i academic c e n t r e s . The most eminent of his s t u d e n t s and followers who f u r t h e r elaborated the S h i ' i legal system on the basis of his methods were: (i) (ii) (iii) (iv) JjabTt, AllZh b . Mubarnmad 'Ali al-Rashti ( d . 131211894), author of a/-lltiq3o't Mubarnmad Jjasan b . Mabmiid al-Sh%Zzi, al-Mujaddid ( d . 131211895) Riga b . Mubammad HZdi al-Hamadhni ( d . 132211904), author of MisbFb a/-foqTh Mubarnmad KZzim b . JJusayn al-KhurZsZni, known a s al-Akhiind like a/-MakEsib on the law of sale and a/-RasZ'il on usGI a/-fiqh are text-

'

See for instance ibid., XXI, p . 402.

58

A N INTRODUCTION TO

SHT'T

LAW

( d . 132911911), author of IjFshiya 'ala '/-Makcsib

(v) Muhammad Kaiiim b . ' Abd al-'Azim al-Tabafabz '7 al-Yazdi ( d . 133711919), author of 01-'Urwo 01-wuthqb and vbshiya 'ala (vi)

'I-MakF~ib Mubammad Taqi b . Mubibb 'Ali al-Shirlzi ( d . 133811920), author

of HZshiya 'ola 'I-Makcsib Mubammad Ijusayn b . 'Abd al-Rahim al-Na'ini ( d . 135511936) 'Abd al-Karim b . Mubammad Ja'far al-Yazdi al-UZ'iri ( d . 13551 1937), author of K . a/-Sal?it and the founder of the religious and academic centre in Qum ( I r a n )

(vii) (viii)

(ix)
(x)

Qiyl' al-Din b . Mubammad al-'Araqi Sharb Tabgirot a/-muta'allimTn

( d . 136111942), author of

Mubammad ljusayn b . Muhammad JJasan al-Igfahani al-Kumpani ( d . 136111942), author of YZshiyat a/-Maka'sib Abu '1-Ijasan b . Mubammad al-Miisawi al-Igfahani ( d . 136511946), author of WasTlat a/-najiit Ijusayn b . 'Ali al-TabZfabE'i al-Buriijirdi ( d . 138011961) Mubsin b

Part Two Main Works on Shi'fLaw

(xi) (xii) (xiii)

. Mahdi

al-Tablfabl'i al-gakim ( d . 139011971), author of

Nahj al-faqcha and Mustamsak a/-'Urwa a/-wuthqF. The contemporary scholars of the S h i ' a , the most prominent of them being Ayat Allah Abu '1-Qlsim al-Khu'i and Ayat Alllh Rub Allah alKhumayni, are followers of al-Angari's school. Their legal opinions a r e to be found in their works such a s Mabcni Takrnilat a/-Minhcj by al-Khu'i and K . 01-Maka'sib a/-rnubarrarna , K . 01-Bay *, TabrTr al- Wasna and K . 01-TahCra by al-Khumayni, and in books composed and published by their students on the basis of their lessons.