the basics of islamic jurisprudence-

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THE BASICS OF ISLAMIC

JURISPRUDENCE

BY: HASSAN AL-RID

TRANSLATED BY: HAMID HUSSEINWAQAR

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TABLE OF CONTENTS

Introduction..6

Lesson 1 The literal and figurative definition ofjurisprudence....9

Lesson 2 The importance of jurisprudence.13

Lesson 3 Jurisprudential jargon..16

Lesson 4 The jurisprudential sects of Islam....22

Lesson 5 The history of the Ahl al-Bayt (a)jurisprudential sect.32

Lesson 6 Sources of religious verdicts....39

Lesson 7 Subjects of Jurisprudence....46

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BISMILLAH IR-RAHMAN IR-RAHM

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INTRODUCTION

Nor should the Believers all go forth together; if acontingent from every expedition remained behind,they could devote themselves to studies in religion,and admonish the people when they return to them,

that thus they (may learn) to guard themselves

(against evil).1

1 9:122

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Man lives in this world and interacts with all that isin it. There are various relationships between man

and the different beings of this world and there arerelationships between man and Allah, the mosthigh.

Every relationship is different. A relationship can bebetween man and Allah, or man and his family, orman and society, or man and government or

between one family and another, one society and

another or one government and another. Man wantsto act according to his knowledge or according torevelation regarding these relationships in order thathe can be prosperous and successful.

The divine commands that create the perfect pathfor man to walk on must be inclusive of all differentaspects and dimensions of life.

The Islamic legal system organizes mans life in alldimensions, individual or social. This system iscalled al-ahkm al-sharyyah. Islamic

jurisprudence explains this system and is one if thedeepest and widest Islamic science.

Islamic jurisprudence is one of the sciences thatglorifies the Islamic civilization.

This jurisprudential system started with theproclamation to prophethood and its principles andwere perfected during the life of the prophet.

We will try, in this humble effort, to describe the

important general and specific topics that arecovered in jurisprudence. The style of this book is

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in the form of a book to be taught in schools and itis a prelude to argumentative jurisprudence.

I ask Allah, the most high, to make this productiveand to glorify me by accepting it and to correct ourintentions and actions. Definitely, he is the besthelper.

Also, I give special thanks to professor, ShaykhMahmd al-Sayf and professor, Dr. Yaqb Al

Barj for his remarks and guidance.

Hassan al-Rid1426 Hijr Qum al-Muqadasah

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LESSON ONE

THE LITERAL AND FIGURATIVEDEFINITION OF JURISPRUDENCE

The Arabic term for jurisprudence (fiqh) literallymeans: knowledge about something andunderstanding it; being clever.2

Fiqhs literal definition does not only meanunderstanding a word, instead it is a deepknowledge about it. Fiqh has been used in theQurn in this meaning:

2 Ibn Manzr,Lisn al-Arab

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They have hearts wherewith they understand not.3

Figuratively, fiqh means: knowledge about Islamiclegal rulings from their sources. So,fiqhs figurativedefinition is taken from its literal one in the sensethat deriving religious rulings from their sourcesnecessitates the mujtahed4 to have a deepunderstanding in the different discussions of

jurisprudence. He must look deep down into amatter and not suffice himself with just the apparentmeaning. A person who only knows the appearanceof a matter is not afaqh.5

The subject of thinking deeply (tafaquh) aboutreligion has been repeatedly mentioned in the Qurnand traditions transmitted from the prophet (s) andthe Imms (a). What is taken from them, on awhole, is that Islam wants man to deeply understandreligion. Of course, this understanding covers suchsubjects as Islamic theology, Islamic ideology,ethics, Islamic upbringing, the Islamic socialsystem, worship, religious rulings and manners thatone must have in his individual and social life. Theterm fiqh has become popular amongst Muslimssince the second century after the great migration tomean Islamic jurisprudence or the art of derivingreligious rulings from their sources. It has obtainedthe following meaning: a precise and deepunderstanding and ability to derive religious rulingsfrom their sources.6

3 7:1794 To be discussed later.5 Tafsr al-Manr, volume 9, page 420

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THE GENERAL MEANING OF FIQH

Nowadays, the term fiqh is generalized to meanIslamic sciences or Islamic rulings in the broadsense. The broad meaning of Islamic rulings is

broken up into three fundamental categories:

1. Theology; what is obligatory for a mukalafto believe about Allah, his angels, books,messengers and the Day of Judgment.

2. Ethics; the positive traits that a mukalafmust obtain and the negative traits that hemust stay away from.

3. Actions; the actions that a mukalaf mustperform.

This is proved by the tradition from the prophet (s)who said: Whoever wants Allah to treat him

favorably must have a deep understanding(yafaqahu) in religion.7

Here, the word fiqh is used in its general sense,synonymous of Islam.

When the different sciences are categorized theterm fiqh is used to mean the Islamic rulingsregarding ones actions.

Fiqh, in its specific meaning and what is discussedin books offiqh, includes everything that has to dowith all aspects of mans life. Everything that isstudied today including foundational laws, citymanagement, family relations, individual actions,

6 Shahd Muttahar, Makhul Ila al-Ulm al-Islamyyah, page37 Muslim, Sahh, volume 3, page 95 (Nayshpr print)

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management, politics, etc is found in the differentsections offiqh.8

SHARAH AND FIQH

Sharah encompasses what was decreed in the timeof prophethood found in the Qurn and prophetictraditions.

Fiqh is what has been gained from the efforts of

scholars after the prophets (s) demise.9

8

Shahd Muttahar, Makhul Ila al-Ulm al-Islamyyah, page459 Ayatollah Jafar Subhn, Trkh al-Fiqh al-Islam waAdwrihi, page 6

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LESSON TWO

THE IMPORTANCE OFJURISPRUDENCE

THE IMPORTANCE OF JURISPRUDENCE

Allah, the creator of mankind and the world with allits precision and secrets, emphasizes in the HolyScriptures that man needs order in his worldly lifeand needs to find the path that leads him to his

purpose, which is the eternal blessings of the nextlife.

Mans divine disposition (fitrah) necessitates him tofollow religion and religious laws. The reason forthis is that man, as shown in his nature and

throughout history, is unable to understand what isgood and what is bad for him in every situation.

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Jurisprudence, which discusses the divine code,teaches us religious laws which give order to our

worldly life, which give us benefit, which take usaway from corruption and show us the path thatleads man to his purpose.

THE SPECIAL QUALITIES OFJURISPRUDENCE

A. Inclusiveness; it includes everything needed

to manage and give order to mans life inevery aspect and dimension. Jurisprudencegives order to mans life in every differentsituation, for example: worship, socialrelations, business deals, personal affairssuch as marriage, divorce, inheritance,adequate support (nafaqah), family rights,legal matters, government, war, enjoining

the right and forbidding the wrong, charityand punishments.

B. Easiness; there is no divine law that puts amukalafin extreme difficulty.10

C. Congruence with mans nature; a law that isagainst ones divine disposition cannot befound. The reason for this is that the onewho makes the divine laws is the same onewho created man and who knows the secretsof his soul. For this reason it is possible forIslamic jurisprudence to be in congruencewith mans divine disposition.11

D. Balance; There is no excessiveness injurisprudence.12

10 Refer to 22:7811 Refer to 30:3012 Refer to 2:143

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JURISPRUDENTIAL JARGON

DUTY (TAKLF)

The Arabic term taklf is derived from the termkulfah which means difficulty. It is used to mean theforcing of an action. For example the sentence;

Zayd forces (kalafa) Amr to do an action; he forceshim.

Divine laws are called taklfbecause they are sentfrom the Master, glory be to him, and it is necessaryfor the mukalafto obey them.

So, taklf means a forced action given to an adult bythe Master, glory be to him. These actionsencompass different aspects of mans life, forexample his personal life, his worship, his familylife and his social life. These laws give order to hislife. Examples of these laws are: prayer beingobligatory and adultery being forbidden.13

IJTEHD

13 Muhammad Bqir al-Sadr,Halaqah 1, page 126

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Definition: a mujtahed is one who has reached thelevel ofijtihdin understanding religious laws. This

means that he has the ability to deduct religiousrulings from the Qurn and traditions.

This mujtahedis able to deduct religious laws in allthe subjects that the mukalafneeds or only certainsubjects because of their ease. In the first case he iscalled a pure mujtahed and in the second case aminormujtahed.

The sciences that a mujtahedneeds to know in orderto be able to deduct religious rulings are:

1. Arabic grammar; syntax, morphology,vocabulary and eloquence. The reason forthis is that the Qurn and traditions are inArabic and it is impossible to understand theQurn or the traditions without knowing

Arabic.2. Tafsr; the mujtahedwill have to refer to the

Qurn so he must have a general knowledgeoftafsr.

3. Logic; because every deductive skill needslogic. Logic teaches one how to definesomething and how to deduce something.17

4. The science of traditions: a mujtahed mustknow about traditions and their categories.

5. The science rijl: This is the science ofknowing the people in the chains ofnarrations; knowing if they are trustworthyor not. The reason for this is that one cannotaccept everything that is narrated unless it isnarrated by trustworthy people.

6. The principles of jurisprudence: This is oneof the most important sciences that the

17 Hd al-Fadl,Drs f al-Fiqh al-Immyyah, page 39

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mujtahed must know because they are therules that are applied in all of the different

sections of jurisprudence.

TAQLD

Taqld means acting according to the verdict of amujtahed. Taqldshifts the responsibility of finding

the religious ruling from the person performingtaqldto the mujtahed.

Taqld is one of the ways of finding a religiousruling, like ijtihd. Except that ijtihd is a directway and taqld is an indirect way, because onereaches the religious ruling from the ijtihd ofanother.

The proof fortaqldbeing permissible or obligatoryis the actions of sane people. Sane people find itnecessary for an ignorant person to refer to ascholar. The referral of the ignorant to the scholar issomething seen in every society that man has beenin. It is even seen today. An example of it is when anon-specialist refers to a specialist.18

One is dependant on taqld in finding out religiousrulings except in the cases where one knows areligious rule. One can know a religious rule byhaving certainty about it which is possible withoutstruggling and without study. Examples of these aresome of the obligatory actions, many of the

recommended actions and most of the permissible18 Hd al-Fadl,Drs f al-Fiqh al-Immyyah, pages 252-254

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actions which are known by most of the people wholive in religious areas. Or, one can know the

religious rule because of it being self-evident likethe obligation of prayer or the forbiddance ofdrinking wine.

PRECAUTION

Precaution means: the mukalaf performingeverything that he suspects to be obligatory but does

not suspect it to be forbidden or refraining from performing anything that he suspects to beforbidden but does not suspect it to be obligatory.The mukalaf must know the different instances of

precaution to be able to do this. He must knowevery place where it is suspected to be obligatoryand not suspected to be forbidden or it is suspectedto be forbidden and not suspected to be obligatory.

This knowledge does not come without looking atverdicts from different mujtaheds.

So, precaution is another tool of finding thereligious ruling. It is different than the previous two,ijtihd and taqld. The mujtahed reaches thereligious ruling from his efforts while the personwho performs taqldobtains the exact rule from themujtahed. But, the person who performs precautiononly gets a general understanding of the rule. Thereason for this is that the religious ruling for him issomething dangling between obligation,recommendation or permission.19

19 Hd al-Fadl,Drs f al-Fiqh al-Immyyah, pages 255-256

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Precaution is a way of becoming certain that onehas performed the real religious ruling. Precaution

is divided into two categories:

1. Obligatory precaution: the mukalafmust actaccording to precaution if he wants to stayon the taqldof whoever he performs taqldto. But, in this ruling, he can act upon theverdict of another scholar if he wants tochange the person who he performs taqld

to. The condition that must be followed isthat he must change from the mostknowledgeable to the next mostknowledgeable and so on.

2. Recommended precaution: the mukalafdoesnot have to act according to this precaution,

but it is better to do so.

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LESSON FOUR

THE JURISPRUDENTIAL SECTS OFISLAM

We learned that Islamic jurisprudence is theknowledge of Islamic laws, what is permissible andwhat is forbidden, what is obligatory, what isdisliked and what is recommended, and what is

correct and what is incorrect.

We also know that these Islamic laws are derivedfrom the Qurn and prophetic traditions.

We also know that the Muslims in the time of theProphet (s) would take their religious rulings fromhim. They would take the rulings that had to dowith worship, like prayer, pilgrimage, fasting andspiritual purification, or the rulings that had to dotransactions like trade, partnership, rent, land,marriage and divorce and other rules that are foundin the religion from him.

Then, after his death, some situations arose in ones

prayer, fast, life, business, partnership or pilgrimage, etc that did not occur during theProphets (s) lifetime. They needed to know what

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the religious ruling was. In this case they wouldrefer to some of the companions (r) to take the

ruling from them. Some took rulings from ImmAl bin Ab Tlib (a), some from Abd Allah binAbbs and some from Abd Allah bin Masd. Al(a) was the most knowledgeable companion, theProphet (s) said the following about him: I am thecity of knowledge and Al is its gate.20

But, we see some different verdicts passed by

different companions (r) and the generation thatcame after them called the tbin. There were manymujtaheds and many differences in verdicts, butthere were no jurisprudential sects like there aretoday. The Muslims would refer to the scholarsamongst the companions, tbin and Imms (a) forthe religious rulings that they needed. Imm Al

bin al-Hussayn al-Sajjd (a), Imm Muhammad bin

Al al-Bqir (a) and Imm Jafar bin Muhammadal-Sdiq (a) lived in these times.

HOW JURISPRUDENTIAL SECTS WEREFORMED AND WHEN

The divisions of Muslims became widespread afterthe murder of the third khalf, Uthmn bin Afwn.At that time the Muslims swore allegiance to ImmAl bin Ab Tlib (a) but Muwyyah bin AbSufyn refused to swear allegiance to him. Nobodyfollowed him in this except the people of Syria. Heformed his own, autonomous government there. Healso took some jurists and some people who relatedtraditions with him, and thus the major division was

started. At the same time where the Muslims andthe great companions believed Al (a) to be the

20 Al-Sharf al-Murtada, Tanzyyah al-Anbyy, page 212

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rightful khalf and the most knowledgeable personwar was started between him and Muwyyah bin

Ab Sufyn. Here, the belief in the Ahlul-Bayt (a)grew. The Ahlul-Bayt are glorified in the Qurn,Allah said that he took all impurities from them and

purified them, a thorough purification, he also madeit obligatory to love them and accept their authority.

A Shia of the Ahlul-Bayt (a) is one who loves them,obeys them and believes in their rights.

The Shia had a strong presence during the fight withMuwyyah and after Imm Al bin Ab Tlibsmartyrdom when his son al-Hassan bin bint RaslAllah (a) became the khalf. After that a bigargument arose between Imm al-Hussayn bin Al

bin Ab Tlib (a) and Yazd bin Muwyyah whichlead to a war between them in a place called

Karbal, Iraq. This war took place on the tenth dayof the Islamic month Muharram in the 61st yearafter the great migration. Imm Hussayn and 78 ofhis companions and family members were martyredin this war.

With all of this, there were not jurisprudential sectsof Islam as there are today. There were twodifferent sects at that time. One of them followedthe Ahlul-Bayt (a) those that Allah cleansed fromall impurities and purified them a thorough

purification, those who did not say anything exceptwhat their forefather, the messenger of Allah (s)said. The Ahlul al-Bayt (a) are none other thanImm Al, Hassan, Hussayn and the nine Imms

that came from his lineage (a). The other groupfollowed the Ummaw judges. Of course amongst

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the Ummaw judges there were different opinionsand various verdicts.

At the end of the first century after the greatmigration different jurists appeared and the Islamicsciences took form. Examples of these jurists are:Sad bin al-Mussayib, al-Hassan al-Basr andSufyn al-Thr who lived in the same time asImm Muhammad al-Bqir bin Al bin al-Hussayn

bin Al bin Ab Tlib. The scholars of this time

learned from him.

Islamic jurisprudence started to spread out in thesecond century after the great migration. Islamic

jurisprudential sects also started to form becausemany jurists appeared and they made manyreligious verdicts which differed from the verdictsof others. Some of the differences include leaving

the hands down in prayer or folding them or insome of the rulings regarding wud, fasting,divorce, inheritance, etc.

The jurisprudential sects of Islam that are taughtand have scholars and students all over the worldare:

1. The Ahlul-Bayt (a) sect. It is also called theJafar sect or the Shia Immyyah sect.

2. The Hanaf sect.3. The Mlik sect.4. The Shfi sect.5. The Hanbal sect.

Each of these jurisprudential sects will bedescribed:

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THE AHLUL-BAYT (A) SECT

It must be stated that the Ahlul-Bayt (a) do not havea separate sect, or different laws than theirforefather Muhammad (s). Instead, they continuedhis path and took from him. Rules pertaining toworship, contracts and other miscellaneous subjectsare all taken from one source full of wisdom andlight, which is none other than the Prophet (s).Imm Sdiq (a) said: We do not give any legal

rulings or ethical advice unless it was passed to usby our great father who obtained it from the Prophet(s). So, their traditions, unless changed, depict theessence of Islam that was sent from the lord of theworlds.21

The Ahlul-Bayt (a) sect is also named the Jafarsect attributed to Imm Jafar Sdiq bin Muhammad

Bqir bin Al Zayn al-bidn bin al-Hussayn al-Sibt bin Al bin Ab Tlib (a).

It is also named the Shia Immyyah sect because oftheir belief in the 12 Imms from the Ahlul-Bayt(a).

Imm Jafar Sdiq (a) was the Imm of the Muslimsin his time. He was the teacher of scholars andfamous for his greatness, knowledge, abstinencefrom the world and worship.

Imm Jafar Sdiq (a) was born in the 82nd yearafter the great migration, during the Ummayadreign. He taught and spread Islamic sciences in the

prophets mosque, just like his forefathers did. He21 Bqir Sharf al-Quraysh, Tafaht min Srah Aimah Ahl al-Bayt (a), page 12

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would relate traditions from his father, al-Bqir (a)who related them from his forefathers all the way

up to the messenger of Allah (s). He gave 1000 jurisprudential verdicts and was ahead of thescholars of his time in Islamic sciences, for exampletheology, tafsr and whatever else the Muslimstreasured.

There were around 4000 religious students thatrelated traditions from him.

Some of Imm Sdiqs (a) students were Imms ofprophetic traditions and leaders of different sects,for example: Imm Ab Hanfah (the leader of theHanaf sect) and Imm Mlik bin Uns (the leader ofthe Mlik sect).

The Ahlul-Bayt jurisprudential sect has spread

today to different areas of the Islamic world, forexample Iraq, Lebanon, Iran, Pakistan, Indonesia,Turkey, Saudi Arabia, India, Azerbaijan, etc.

THE HANAF SECT

This sect is called the Hanaf sect because of itsimm, Ab Hanfah.

Ab Hanfahs full name is al-Numn bin Thbitbin Zt al-Frs. His forefathers were from Kabul.Ab Hanfah was born in the 80th year after the greatmigration and died in the year 150 in Baghdad.

Ab Hanfah grew up in Kfa and spent half of his

life as a businessman before he became a seminarystudent and teacher. He studied under Hammd binAb Salamah for eighteen years before he became a

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scholar himself. He was one of the big scholars ofhis time and reached the level of ijtihd. He

accepted voting and syllogisms in addition to theQurn and prophetic traditions as tools for derivingreligious rulings. Many scholars of his time refutedhim on this issue, for example Imm Muhammadal-Bqir (a) and Jafar al-Sdiq (a). They said thatone must stick to the Qurn and the prophetictraditions.

His sect spread in Iraq and later in other areas of theIslamic world. Ab Hanfah lived for 52 yearsduring the Umayyad reign, but did not accept them.Rather, he believed that the khalfatshould be givento the family of Al (a). He even ruled in favor ofthe Alaw uprising lead by Zayd bin Al bin al-Hussayn bin Al bin Ab Tlib and allowed moneythat was collected from taxes (zakt) to be spent on

the uprising. It should be mentioned that Zayd binAl bin al-Hussayn taught Ab Hanfah for twoyears and Abd Allah bin al-Hussayn bin Al binAb Tlib was also one of his teachers.

The Umayads asked him to become a judge and herefused. Because of this, they put him in prison andwhipped him for days, until the bridge of death.Then, the executioner helped him to escape and heescaped to Mecca. He lived moving in betweenMecca and Medina as a nomad. In this time hestudied for two years under Imm Sdiq (a). He hasa famous saying about this: If it wasnt for thesetwo years al-Numn would have been destroyed.He stayed there until the Umayyad dynasty

collapsed and the Abbasid dynasty rose.

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When the Abbasid dynasty came to power, AbHanfah refused to help them. Mansr imprisoned

him lashed him 120 times. He died as a result ofthose lashes.

THE MLIK SECT

This sect is named so in relation to its founder:Imm Mlik bin Anas bin Mlik al-Asbah who wasa member of the Yemenite al-Asbah tribe.

Mlik bin Anas was born in Medina in the 93rd yearafter the great migration. He was a student of someof the Islamic jurists of his time including Nfi,Mawla Abd Allah bin Umar and Ibn Shahb al-Zahr. He also studied under Imm Sdiq (a) andrelated traditions from him. He said: I have notseen anyone better than Jafar bin Muhammad.

He lived under Umayyad control for forty years andin this time he did not show himself as a scholar.

When the Umayyad dynasty fell and the Abbasiddynasty came to power he showed inclinationtowards the family of Al bin Ab Tlib (a) andruled that the khalafah was their right. He passed averdict making it obligatory to aid Muhammad binAbd Allah bin al-Hassan bin Al bin Ab Tlibwho started a revolution against the Abbasiddynasty. Jafar bin Sulaymn, the Abbasid mayor ofMedina, lashed him 50 times. The lashes were sohard that his shoes fell off.

Then the Abbasid khalf, Ab Jafar al-Mansrchanged his mind and improved his relations withImm Mlik. He asked Imm Mlik to write a

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jurisprudential book, in accordance to his sect, to be published and given to the people. Imm Mlik

wrote the book Al-Mt, a book of religiousverdicts. So, the jurisprudential sect of the AbbasidEmpire was Mlak. This book was also sent toAfrica and Indonesia. He differed from Ab Hanfahin the view of voting and syllogism. Imm Mlikdied in the 179th year after the great migration.

THE SHFI SECT

This sect was named after its founder ImmMuhammad bin Idrs bin Abbs bin UthmnShfi whose lineage traced back to Hshim binAbd al-Muttalib, the Prophets (s) grandfather.

Imm Shfi was born in the 150th year after thegreat migration, the same year that Ab Hanfah

died. He was an orphan and his mother raised himin Yemen. When he reached 10 years of age hewent to Mecca and learned how to read and write.He then went into the desert and lived there for 17years before he became a religious student. Hestudied under the scholars of his time, for exampleMuslim bin Khlid al-Makhzm and Mlik binAnas (the founder of the Mlik sect). He studiedthe book al-Mt. When Imm Mlik passed awayhe returned to Yemen.

During Rashds reign, he was charged with helpingthe Alaw movement along with others by thegovernor of Yemen. He was then sent to Baghdd to

be tried. Many were killed but Shfi was saved.

He then migrated to Egypt and spread his sect there.His sect was also spread by his students in other

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parts of the Islamic world. Imm Shfi died in the198th year after the great migration.

He has said: If there is a prophetic tradition inopposition to my view, throw my view against thewall.22

THE HANBAL SECT

This sect was named after its founder Ahmad bin

Muhammad bin Hanbal who was an Arab.

He was born in the 164th year after the greatmigration in Baghdd. He started his studies there atthe age of 15. He was Shfis and Ali Ab Yusifal-Qd (Ab Hanfahs student)s student. He alsostudied under different scholars of his time, forexample Harz, one of Imm Sdiqs (a) students.

This sect was spread like the other sects. This sect isstill present in the Arabic Peninsula and other partsof the Islamic world. Ahmad bin Hanbal died in the241st year after the great migration in Baghdd.

22 Asad Haydar,Al-Imm al-Sdiq wa al-Madhhib al-Arbah,volume 1, page 175

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LESSON FIVE

THE HISTORY OF THE AHL AL-BAYT (A) JURISPRUDENTIAL SECT

THE THREE STAGES OF THE AHLUL-BAYT(A) JURISPRUDENTIAL SECT

An important point about the history of the Ahlul-Bayt (a) jurisprudential sect is that it is divided intodifferent stages. Each stage will be described.

THE FIRST STAGE

This is the stage of the narration of traditions from

the Imms (a). This stage starts from the beginningof Islam and ends at the lesser occultation in the260th year after the great migration.

Jurisprudence, in this stage, was narratingtraditions. Companions would hear a tradition fromone of the infallibles (a) and spread it to theircommunities without organizing them into different

subjects.

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This first text that was written, other than what thecommander of the faithful (a) wrote, was written by

Ab Rfi, a companion of the prophet (s) and ImmAl (a). He wrote a book calledKitb al-Sunun waal-Ahkm wa al-Qady.

His son, Al bin Ab Rfi, the commander of thefaithfuls (a) scribe, wrote a book using the differentsections of jurisprudence, for example wd and

prayer.

Jurisprudential texts increased during the imamateof Imm Bqir and Sdiq (a) due to the weakness ofthe Umayyad dynasty during its last days and power

being shifted to the Abbasid dynasty.

Jurisprudential texts continued to grow, so much sothat during the time of Hurr al-mul there were

6600 texts. 400 of these texts became famous andwere called the 400 principles. The four great booksof the Shia written by the three great scholars23 werecompiled from these books.

The city of Medina was the center of Islamic studiesfor the Ahlul-Bayt (a) during this period until ImmSdiq (a) moved to Kufa and the second center ofIslamic studies was formed.

Al-Hassan bin Al al-Wash said: I saw 900scholars who all said that they heard so and so from

23

Muhammad bin Yaqb al-Kulayn al-Kf, Muhammadbin Al bin al-Hussayn al-Sadq Man L yahduruhu al-Faqh, Muhammad bin al-Hassan al-Ts al-Tahdhb and al-Istabsr.

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Jafar bin Muhammad (a) in this mosque (Masjid al-Kfa).24

The Imm had great companions in Kfa, such asAbn bin Taghlib who related 30,000 traditions andMuhammad bin Muslim who related 40,000.

When we say that jurisprudence in this stage wasjust compiling and spreading traditions rather thanorganizing them into different sections, we do not

mean that this includes the big scholars of the time.Each one of them was an ocean in themselves, likeMuhammad bin Muslim, Zarrah ibn Ayan andAb Bas r. Imm Sdiq (a) said: Burd binMuwyyah al-Ajal, Ab Basr Layth al-Bakhtaral-Murd, Muhammad bin Muslim and Zarrahwill be given the glad tidings of Heaven. They

believe in Allah about the obligatory actions and

forbidden ones. The line of prophethood would becut if it were not for them.25

The Imm considered them mujtaheds who had the power of deriving verdicts from the Qurn andprophetic traditions. Sometimes he (a) would orderthem practice it, for example he (a) said: It is on usto tell you the principles and it is on you to branchthem out.26 He (a) also told people to refer to someof his companions in religious rulings, like Ynis

bin Abd al-Rahmn. Someone asked the Imm: Itis not possible for me to come to you and askeverything that I need about religious sciences. Is

24 Al-Najsh,Rijl al-Najsh, under al-Wash25

Shaykh Ts,Rijl al-Kash, under Ab Basr Layth al-Murd26 Al-Hurr al-mul, Wasil al-Shah, the 6th chapter of thequalities of a judge, tradition 51

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Ynis bin Abd al-Rahmn trustworthy; can I takewhatever I need from him?

The Imm answered: Yes.27

He (a) also ordered some of his companions to givereligious verdicts, such as Abn bin Taghlib. TheImm (a) told him: Sit in Medinas mosque andgive religious verdicts to the people. Verily I love tosee my Shia like you.28

THE SECOND STAGE

This stage started at the minor occultation, the 260th

year after the great migration, and lasted until theage of Shaykh Ts who was born in the 385th yearafter the great migration and died in the 460th year.

In this stage the Ahlul-Bayt (a) jurisprudential secttransformed from only relating traditions withoutorganizing them into different sections into writing

jurisprudential books without adding anything to thetraditions or changing their terminology. This isclear in the book Sharya which was written byAl bin Bbway for his son Muhammad. It is saidthat when someone needed a tradition they wouldfind it in this book.

Other similar books are al-Maqna and al-Hadyah by Shaykh Sadq, Muhammad bin Al binBbway and al-Nahyah by Shaykh Ts.

27 Al-Hurr al-mul, Wasil al-Shah, the 11th chapter of thequalities of a judge, tradition 3328 Al-Najsh,Rijl al-Najsh, under Abn

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We are not saying that there were not scholars thatonly spread traditions, but we are saying that they

were organized into different subjects containing allof the subjects seen today. This is clearly seen in the

books al-Kf by Shaykh Kulayn and Man LYaduruhu al-Faqh by Shaykh Sadq.

This is what generally took place in this stage. Thisdoes not mean that there werent any scholars whoadded to the traditions by using intellectual

deductions, for example what is related toal-Ummn and al-Iskf.

If one wants to explain more he can say that thisstage had three major schools:

1. The school of Qum and Ray: This schoolused traditions but did not use intellectual

deductions. Some of the scholars of thisschool are the two Sadqs. This was a strongschool and was relied upon by manyscholars.

2. The school of al-Ummn and al-Iskf:This school preferred using intellectualdeduction to such an extent that theyaccepted syllogism and voting. Al-Ummnis al-Hassan bin Al bin Ab Aql. It is saidthat he is the first person to apply his ijtihdto actions, while mentioning the differentsections of jurisprudence and mentioning thereasons behind the verdicts. He wrote thefamous book: al-Mustamsik bi-habl l al-

Rasl. Unfortunately this book is not in

existence today. Al-Iskf is Muhamamd binAhmad bin al-Junayd who lived after AbAql. He wrote jurisprudential books, for

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example Tahdhb al-Shah li-ahkm al-Sharah and al-Ahmad f al-Fiqh al-

Muhammad. These two books, also, do notexist today.

3. The school of Baghdd: This is also calledthe school of Shaykh Mufd. This schooltried to find a common ground betweentraditions and intellectual deductions. Thereason behind this might be Shaykh Mufd,who was a student of Ibn al-Junayd and

Jafar bin Muhammad bin Qlway whowas from Qum and a member of the Qumschool of thought. Shaykh Mufd wrotemany books, for example al-Maqnaahwhich was explained by Shaykh Ts in his

bookTahdhb al-Ahkm.

THE THIRD STAGE

This stage started at the age of Shaykh Ts and isstill prevalent today. In this stage the jurisprudential

books changed from imitating the traditions in formand language to writing with different terminologyand mentioning different situations that did notoccur at the time of revelation. All of this occurredwith accepting intellectual deduction perfected bytraditions and accepting intellectual principles. The

bookal-Mabst by Shaykh Ts helps us to come tothe conclusion that we have about this stage.

Other steps that have been made in this stage:

1. The sections of jurisprudence have become

more specialized.2. More subjects have been made due to time.

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3. Intellectual deductions have been madestronger and their proofs have become

clearer.4. The relationship between jurisprudential

rulings and jurisprudential principles hasbecome clearer.

5. Putting more effort into the chains ofnarration.

6. Canceling some of the ancient texts whichdo not have matters that todays world need

and writing books with todays worldsneeds.

LESSON SIX

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SOURCES OF RELIGIOUS VERDICTS

1. THE BOOK

What is meant by the book is the Qurn which wassent by Allah to the Prophet Muhammad (s).

The Qurn that is in our hands today, its meaning

and words has not been added to or taken awayfrom.

This Qur'an is not such as can be produced byother than Allah; on the contrary it is a confirmation

of (revelations) that came before it, and a fuller

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explanation of the Book wherein there is no doubt -from the Lord of the worlds.29

It is a holy book and all of the Muslims agree that itwas divinely inspired and that everything inside ofit is correct. This is the primary source of Islam andit takes away all the excuses that man can make allthe way up to the Day of Judgment. It says thatAllahs religion is Islam and that the Muslims mustalways follow the Qurn. It is a general law book

for all of mankind.

THE AUTHORITY OF THE BOOK

It is unanimous amongst the Muslims that the Qurnis an authority for Muslims. The proof behind thishas two introductory statements:

1. Certainty that it was sent to the Prophet (s).This is established by multiple-successivereports passed down by Muslims fromgeneration to generation.

2. The Qurn being sent by Allah. This isproved because of its miraculous nature inthe way it is written and in its material. It isalso proved by the fact that the Qurn daresmankind to bring something like it, butmankind is unable. Allah says:

29 Ynus: 37

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(This is) the Revelation of the Book in which thereis no doubt, from the Lord of the Worlds.30

JURISPRUDENTIAL VERSES IN THEQURN

There are around 500 verses in the Qurn that dealwith religious rulings. These verses are a part of thesources for obtaining religious verdicts and arecalled: ayyt al-ahkm.

2. TRADITIONS (SUNNAH)

The Arabic term sunnah literally means a way ofacting, but figuratively it means: the words, actionsand acceptances of an infallible. In order tounderstand this definition completely we mustunderstand a few terms:

A. Infallible: anyone whos infallibility isestablished. The people who are meant arethe Prophet (s) and the 12 Imms from theAhl al-Bayt (a) if their infallibility is proved.

B. The words of an infallible: Whatever theinfallible says that has anything to do withreligious rules.

C. The actions of an infallible: Whateveractions an infallible performs.

D. The acceptances of an infallible: Whateveractions are performed in front of an infalliblewhen the infallible does not say anythingabout it.

THE AUTHORITY OF TRADITIONS

30 Sajdah: 2

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All of the Muslims are unanimous in the fact thatthe words, actions and acceptances of the Prophet

(s) are considered an authority for all Muslims.Allah says:

So take what the Messenger assigns to you, and

deny yourselves that which he withholds fromyou.31

The words, actions and acceptances of the Imms ofthe Ahl al-Bayt (a) are only considered as anauthority after their infallibility and theirsuccessorship to the Prophet is proved. There areenough proofs of their infallibility from importantsources found in books about Immat and theology.Refer to them.

3. CONSENSUS

The Arabic term for consensus is ijm whichliterally means a strong-will.

The consensus that the Shia mention is no otherthan a tool to discover what the infallibles verdictis. Consensus is not an independent proof like theother three; the Qurn, traditions and intellect.Other jurisprudential sects believe that it is anindependent proof.

31 Hashr: 7

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Whenever a consensus shows us what theinfallibles verdict is, it has authority. But, when it

does not, it does not have authority.

Question: Why do the Shia include this as one ofthe sources of religious verdicts when it is notindependent?

Shaykh Ansr answered this question in thefollowing way: including consensus in the sources

for religious verdicts is a not being very precise.Consensus, with all of its conditions, discovers a

proof and here both the discoverer and thediscovered are called proofs.

How does a consensus discover the verdict of aninfallible?

This question is answered differently according todifferent opinions, which there are many of.Answers to this question started from the time ofShaykh Ts (r) and continue to today. All of theanswers have a name and we will mention a coupleof them here:

1. Internal consensus: A consensus ofmujtaheds in an age informs us that aninfallible was with them. He was part of theconsensus but nobody knew him personally.So, this consensus is an authority. How dowe know that the infallible was amongstthem? This is answered in the books of the

principles of jurisprudence.

2. Linguistic consensus: This consensusinforms us, in an intellectual way, that theinfallible agreed with the ruling but was not

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part of the consensus. His (a) duty is toprevent all of the scholars from making an

incorrect consensus. More answers arefound in the books of the principles of

jurisprudence.

4. INTELLECT

What is meant by the intellect here is anything thatmans intellect can understand and a religious ruling

can be derived from.32

An example is when Allah makes obligatory anaction through a Quranic verse or reliable tradition,

but one must perform another action to be able toperform this obligatory action and there is not anyverse or tradition about this action. Mans intellectunderstands the relationship between an obligatory

action and its precepts becoming obligatory. Thisleads to certainty about the action being obligatory.

An example of this is that Allah made thepilgrimage obligatory on anyone who has financialability. This is found in both the Qurn andtraditions. But, Allah did not mention that the travelfrom ones hometown to Mecca is obligatory, eventhough it is a necessary precept to performing the

pilgrimage.

Mans intellect understands the relationshipbetween performing the pilgrimage and having totravel. It is possible to say that the travel becomesobligatory by the mukalaf having certainty, like

some have said.

32 Muhammad Bqir al-Sadr,Halaqah 2, al-Dall al-Aql

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SUBJECTS OF JURISPRUDENCE

The most famous division of jurisprudentialsubjects is: worship and transactions. Transactionsare divided into contracts, one-party contracts andmiscellaneous rulings.

Shahd al-Awal divided jurisprudence into thesesubjects along the mentioned foundations when hesaid: All of this is divided into four parts; worship,contracts, one-party contracts and miscellaneousrulings.

This division is found in such books of the olderscholars like Sharya al-Islm by Muhaqiq al-Hill.

The subject of taqld or imitation a scholar ismentioned in the books of jurisprudence along withsubjects relating to it as an introduction. They saythat it is obligatory for every mukalafwho has notreached the level of ijtihd to follow someone intaqld or practice precaution in worship andtransactions even if they are recommended or

permissible actions, with the exception of self-

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evident rulings. The condition for practicingprecaution is that one knows the areas of precaution

(and only a few people actually know this). Theactions of a normal person, who does not know theareas of precaution, without performing taqld areinvalid.33

Then the section of worship is mentioned:

Worship is an action that depends on having the

intention of being close to Allah, for example,prayer.

Muhaqiq al-Hill mentioned ten different subjects inthe section of worship:

1. Spiritual purification (tahrah): Spiritual purification is the usage of a pure substance

conditional upon an intention.34There are two typesof spiritual purification; spiritual purification from

physical impurities that stem from the body (al-khabath) and spiritual purification from spiritualimpurities (al-hadath).

Spiritual purification from physical impurityconsists of cleaning the body, clothes or anythingelse from the ten impure substances: urine, feces,

blood, semen, carcass, etc. This form of purificationdoes not depend on having an intention.

Spiritual purification from spiritual impuritiesconsists ofwud,ghusland tayammum. This formof spiritual purification is a condition for such

worships as prayer and tawf. The form of spiritual33 Imm al-Khomein (r), Tahrr al-Wasla, page 434 Shaykh Ts, al-Mabst, volume 1, page 4

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purification is broken by different natural actionssuch as sleep, urination and ejaculation, it is

dependant on an intention.

There are eleven items which one can use tospiritually purify something that has become

physically impure. They are as follows: water,earth, sun, the change from one body to another, theevaporation of a third of boiling grape juice,transportation, Islam, imitation, removing the

physically impure substance and refraining ananimal that has eaten physically impure substancesin place of food from eating more physically impuresubstances.

2. Prayer (salh): Prayer refrains one fromcommitting terrible actions. It is the foundation ofreligion and if it is accepted all other forms of

worship will be accepted but if it is rejected allother forms of worship will be rejected.

In this section the obligatory daily prayers arediscussed as well as the prayers on the two holydays (d), the funeral prayer, the prayer of thesigns, the prayer after tawf and recommended

prayers such as the nawfil. The conditions ofprayer are also discussed along with the foundationsof prayer, the precepts to prayer and the actions thatinvalidate the prayer. The different types of prayerare also discussed, such as the prayer of a traveler,individual prayer, congregational prayer and make-up prayers.

3. Taxes (zakh): Zakh is a form of tax which isapplicable to nine different items: gold, silver,wheat, barley, dates, grapes, cows, sheep and

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his head under water, putting thick smoke into histhroat, etc.

6. Staying in a mosque (itikf): The Arabic termitikfliterally means staying in a specific place, butwhen used as a jurisprudential term it means stayingfor an extended time in a mosque in order toworship. This is an act of worship that a persondoes by fasting for three or more days in a mosque.The different rules and conditions of this are

explained in jurisprudence. Itikf is essentiallyrecommended, but if one performs itikf for twodays, the third day becomes obligatory. One must

perform this act of worship in the Holy Mosque ofMecca, the Prophets Mosque in Medina, the KufaMosque, The Basra Mosque, or, at least, the maincongregational mosque of a city. One may not

perform this act in a small mosque. The Prophet (s)

would perform itikf on the last ten days of themonth ofRamadn.

7. Pilgrimage (hajj): The Arabic term hajj literallymeans intention, but in jurisprudence it is a termwhich comprises of different actions performed in aspecified place (Mecca and its surroundings). It isobligatory on one who meets all of the conditions.The actions of the pilgrimage are as follows: puttingon the special ihrm clothes in Mecca, stopping inAraft, staying in al-mashar, throwing the stonesat the uqbah satan, sacrificing an animal, shavingones head, walking around the Kabah seven times(tawf), tawf prayer, running back and forth

between Saf and Marwah, tawf al-nis, tawf al-

nisprayer, throwing the stones at the satans, andstaying in Mina.

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There are three kinds of pilgrimage. The first iscalled al-tamata and is obligatory on those whose

house is more than 92 kilometers from the HolyMosque of Mecca. The second and third are calledal-qirn and al-ifrd respectively. These areobligatory on those whose house is less than thementioned distance.

8. Small pilgrimage (umrah): There are two typesof the small pilgrimage. The first is called al-

tamata and is obligatory on every mukalaf who can perform the pilgrimage and lives more than 92kilometers from the Holy Mosque of Mecca. Thesecond type is called al-ifrd and is obligatory onanyone who is financially able to perform it,whether the big pilgrimage has become obligatoryon him or not, and does not live more than 92kilometers from the Holy Mosque of Mecca.

The actions that must be performed in the smallpilgrimage are: putting on the ihrm clothes in oneof the specified places, tawf, tawfprayer, running

back and forth from Saf and Marwah and cuttingones hair.

9. War (jihd): There are two types of war in Islam:offensive and defensive. The Ahl al-Bayt (a)

jurisprudential sect claims that offensive war issomething that only an infallible can order and

becomes obligatory on men. But, the defensive warcan become obligatory at any time and can also

become obligatory on men and women.

War can also be divided into civil and internationalwar. It is also obligatory to fight a group that leaves

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the community of an Imm, like the Khawrij andthe enemy armies ofJamaland Sifn.

The following subjects are also mentioned under themain subject of war: rules pertaining to followers ofother revealed religions who are living in Muslimcountries and peace treaties between Islamicgovernments and non-Islamic governments.

10. Enjoining good and forbidding evil (amr bi al-

marf wa nah an al-munkar): Islam is a religionthat deals with social issues. The importance of ahealthy society is emphasized in the divine laws thatwere sent for mankinds success. It is obligatory,according to Islamic law, for everyone to protectgood and moral actions and to fight against bad andimmoral actions. This is what is mentioned underthe subject of enjoining good and forbidding evil.

Refer to the verse in Srah l Imran: 104.

There are conditions pertaining to this that arementioned in the books of jurisprudence.

After the section of worship, the section of contractsis mentioned. This section has fifteen differentsubjects:

1. Business (tajrah): Business transactions, buying, conditions of the buyer and seller,conditions of the items being bought or sold,conditions of the contract, the wording of thecontract, different kinds of transactions: resale withspecification of gain, resale with the specification of

loss, and tuliyyah are also discussed. Tuliyyah is thetransfer of the sold to the buyer without anyaddition or subtraction from it.

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2. Collateral (rahn): The item that is given is called

collateral, the person giving the collateral is called arhin. The Rhin must offer this transaction byusing any words that relay his offer and themurtahan, or person who takes the collateral, mustaccept it by using any words that relay hisacceptance.35

3. Bankruptcy (mufallas): A bankrupt person is one

who does not have enough money to pay back hisdebts. The Islamic jurist prevents this person fromusing his property with the intent of him paying

back his debts, as much as possible.

4. Limitation of legal competence (hajr): TheArabic term hajr literally means preventing andwhat is meant is the prevention from spending ones

money. There are many instances where one is prevented from spending his money due tobankruptcy (which was mentioned), a child who hasnot come of age, an insane person, an incompetent

person and a dead person who has made a will forover one-third of his property.

5. Guarantee (damn): This is a contract that needs both an offer and an acceptance. There is adifference in guarantees between the Shia and theSunni. The Ahl al-Bayt (a) jurisprudential sectdefines damn as the transfer of the owed fromthe debt of the person who owes money to the debtof the guarantor. After this the person who lentmoney does not have the right to ask the person he

lent the money to for his money, rather he must askthe guarantor. Here, the guarantor pays back the

35 Imm Khomeini (r), Tahrr al-Wasla, volume 2, page 3

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debt and then seeks out the person who owed themoney in the first place to pay him back. But, the

Sunni jurisprudential sect claims that the personwho lent the money can get his money from eitherthe person he loaned it to or the guarantor.

6. Peace (sulh): The agreement upon giving upones possession of an item or the yield of anutilizable thing or the yield of a right. It is notconditional on there being a fight before it.

The peace that is meant here is not the same as whatis meant in the subject of war (jihd). Peace that ismentioned in the subject of war is a politicalagreement, but the peace that is mentioned here isrelated to financial matters, for example if one owesan unknown amount of money to another he canmake peace with that person by paying him a

specific amount of money agreed upon by bothparties.

7. Partnership (sharkah): Partnership means theownership of property or a right by more than one

person. An example of this is the inheritance thatbelongs to a few children. They are partners in theinheritance before it is divided up. Another exampleis when two or more people own a car, horse or

piece of land, even if two people share in a piece ofvirgin land that they cultivated.

There are two types of partnerships: contracted andnon-contracted. What were mentioned above areexamples of non-contracted partnerships. Examples

of contracted partnerships are business partnerships,farmland partnerships and industrial partnerships.

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There are many rules mentioned in the books ofjurisprudence pertaining to contracted partnership.

8. Silent partnership (mudribah): this is a type ofcontracted partnership where there is a partnership

between ones property and anothers work. One ormore people give money to another person or

persons to conduct business transactions with thatmoney.

9. Silent partnership in farming and running anorchard (mazriah and masqh): These are twotypes of partnerships similar to mudribah. Theyare both partnerships between money and work. Thedifference between them is that mudribah is a

partnership between money and work in businesswhile mazriah is a partnership between moneyand work in farming, for example, the owner of a

land makes a contract with a farmer and they splitup the profits in an agreed upon fashion. Masqhis a partnership between money and work in anorchard, for example, the owner of the land makes acontract with the gardener and they split the profitsthat they make from the fruit.

One of the conditions that must be observed in apartnership between money and work, whether it ismudribah, mazriah ormasqh, is that if a lossoccurs, the person who put up money looses. The

profit is, also, not a fixed rate. The person who putup money gets a percentage of the profits, whetherthey are a lot or a little. In this way the person who

puts up the money and the person who works are

equal.

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10. and 11. Trust and borrowing (wadah andryah): Wadah is giving a piece of ones

property to another to protect it. ryah is lettinganother use ones property in order to make a profit.Both of these are kinds of trusts with this differencethat in wadah one gives his property to another inorder for it to be protected. So, the other person isnot allowed to use profits from that propertywithout the owners consent. This is the opposite ofryah where the other person uses the property in

order to gain something from it.

12. Rent (ijrah): This is a contract where one rentsthe yield of an utilizable thing or a right for aspecified price. There are two types of renting. Thefirst is where one rents a piece of property at aspecified price, for example if he rents a house, caror even clothes. The second is where one rents

another human being, what is meant by this is thathe pays for another person to perform a specificaction, for example sowing clothes, cutting hair,

building a house or other things.

Renting is similar to buying and selling because twopieces of property are being exchanged, with thedifference that in buying and selling a piece of

property is exchanged with another while in rentinga piece of property is exchanged with the utilizationof another piece of property.

There is a similarity between renting and ryah. Inboth renting and ryah utilization occurs, but inrenting the person pays for the ability to use the

others property and in ryah the person does notpay which means he does not have a right in usingthe property.

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13. Representation (waklah): this is allowing

another to perform a certain matter in ones steadduring his life. An example of this is that man,nowadays, needs someone to represent him in acourtroom or a representative in a contract, forexample, business contracts, renting, ryah, trusts,religious endowments, divore, etc.

The person who has another represent him is called

the represented, the person who represents him iscalled the represent and the action is calledrepresentation.

14. Religious endowment and charity (waqf andsadaqah): Waqfmeans to give away ones propertyto a special group of people. There is a difference ofopinion about waqfneeding an intention of getting

closer to Allah or not. Muhaqiq Hill claims that itdoes not because it is mentioned in the section ofcontracts, not worship.

There are two types ofwaqf: specific and general.Each one of these has their own special laws.

15. Religious endowment of a house or yield (suknaand habs): These are similar to waqf. The differenceis that in waqf the property is given away for everand the person is not able to retrieve his property.

Habs is when a person allows one to use the yieldof his property in order to perform humanitarianservices for a specific amount of time, and then the

property is returned to its owner.

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Sukna is when one allows another to live in hishouse for a specific amount of time and then the

house is returned to its owner.

16. Gifts (hibt): One of the things that one can dowith his possessions is give them to another person.There are two types of gifts: those that something isgiven in return and those that something is notgiven in return. One is not able to take back a gift inwhich something was given in return for it, but one

can take back a gift in which something was notgiven in return for it unless it was a gift given toones relatives or the gift is no longer in existence.

17. Contests and archery (sabq and rimyah): Theseare two forms of contracts that are conditional oncontests involving horses, camels or archery. Islamhas forbid all kinds of gambling except these kinds

because they improve military skills and improveones ability to kill in war. Contests and archery arerelated to the section onjihd.

18. Will (wasy): A will is making someone thepossessor of an item or yield after ones death. Thisis according to the will one makes regarding his

possessions and small children (if it is allowed tomake a will regarding the raising and protection ofones children) and occurs after his death. A personis able to make a will on one third of his propertyand spend it however he likes. The Islamic juristshave divided a will into three parts. First is

property, one makes another the owner of a certainpart of his property. Second is contracts, one pays

another to represent him in performing apilgrimage, zyrah, prayer, fast are any other

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righteous deed. Third is freeing, one frees one of hisslaves, for example.

19. Marriage (nikh): Jurists mention the conditionsof the marriage contract. Then they mention who isforbidden to marry (muhram), for example a fatherand daughter, a mother and son, a sister and brotherand so forth. Then they mention the two forms ofmarriage, permanent and temporary. Then theymention what happens if the marital duties are

violated. Then the jurists mention adequate support,which is one of the wifes rights over the husband.

This is the end of the section on contracts. MuhaqiqHill mentioned that there are 15 different subjectsin this section, but then mentioned 19. It is notunderstood why. Maybe it was a mistake or maybehe mentioned some of the subjects together.

The third section that Muhaqiq Hill mentioned isone-party contracts. There are 11 subjectsmentioned in this section.

1. Divorce (talq): Divorce is when a man annulshis marriage contract. Divorce is either forever(bin) or not (raj). If the divorce is raj, the mancan return to his marriage during the specified timewhere the woman cannot remary.

A condition of divorce is that the wife must not beon her menstruation cycle and that there must betwo just witnesses present. The Prophet of Islamsaid: The most hated permitted action by Allah is

divorce.

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2. Divorce at the instance of the wife or both parties(khul and mubrah): These are two forms ofbin

divorce. Khul is a form of divorce where the wifeforces the husband to divorce her by giving himsome money, for example her dowry or part of it;i.e. whatever the man would accept to divorce her.If he chooses to divorce her he cannot return to herunless she gives him permission.

Mubrah is similar to khul, but in this case both

parties are forcing the divorce. Here, the woman canchoose what she wants, with the condition that itdoes not surpass her dowry.

3. A pre-Islamic form of divorce (zihr):Zihris aform of divorce that was prevalent during the age ofignorance. It is where the husband tells his wife:You are to me like the back of my mother. This

was enough for the couple to become divorced.Islam does not accept this, it does not accept zihras a divorce. Rather, Islam says that it is forbiddento say this and if one does he must pay the penalty,which is freeing a slave. If one cannot find a slavehe must fast two months in a row. If one is unableto fast he must feed sixty poor people. It becomesforbidden for the husband to have intercourse withhis wife after he said the mentioned sentence and

before he paid the penalty.

4. Abstinence vow of a husband (l):lis a kindof vow where a husband vows not to performintercourse with his wife for ever, or at least morethan four months, in order to punish her. If the wife

takes her case in front of a judge the judge willforce the man to take back his vow or divorce hiswife. If he decides to take his vow back he will have

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to pay the penalty. Taking back a vow is forbiddenexcept in this case where it becomes obligatory.

4. Cursing (lan): Lan is also related to therelationship between a husband and wife. It is akind of curse from one side against the other. If ahusband claims that his wife committed adultery butdoes not bring four witnesses he will be subject tothe punishment of false testimony, except if he

performs lan. If he performs lan his wife will

be forbidden for him forever.

Lan must be performed in front of a judge. Theman must say four times: I bear witness, in front ofAllah, that what I said about this woman is true.Then he must say: The curse of Allah be upon me ifI am a liar. Then the woman must say four times: I

bear witness, in front of Allah, that he is a liar. Then

she must say: May Allah be angry at me if he istruthful.

In this way the husband and wife are separated fromeach other forever.

6. Freeing a slave (itq): Islam has many teachingsregarding slavery. Slaves are only taken from

prisoners of war. The purpose behind slavery is notto benefit from the slaves, rather it is for them tolive in a Muslim family and to become Muslim. Thegoal is not to make a slave remain a slave forever,instead it is to teach a disbeliever Islam and thengive him social freedom after he has attainedspiritual freedom. So, the goal of slavery is to free

the slaves and there are many different ways to freea slave in Islam. For this reason, jurists have calledthis subject freeing a slave, not slavery.

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Jurists have said that there are four ways to free a

slave:A. A slave owner freeing a slave because

of a religious penalty or just gettingcloser to Allah.

B. Freeing part of the slave, half of him, athird of him, a fourth of him or a tenthof him for any reason.

C. If a one enslaves his parents,

grandparents, children or grandchildren. In Islam this form ofslavery does not exist and the relativewould be automatically freed.

D. If a slave has certain bodily ailments,for example if he is blind or hasleprosy.

7. Tadbr, muktabah and istld: These are threecases which necessitate freeing a slave. Tadbr iswhen the slave owner makes a will to free the slaveafter his death. Muktabah is when the slave ownerand the slave make a contract for the slavesfreedom after he pays some money. Allah orders theslave owners to make a contract with a slave if theslave wants and the slave is a believer. Allah alsosays that some money should be given to him tohelp him with lifes expenses.36Istld is when awomen slave bears the slave masters child. Afterthe slave owners death the mother becomes theslave of the child and, as was mentioned earlier, achild cannot be the owner of his mother, so she

becomes free.

36 Refer to Srah Nr, verse 33

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8. Confession (iqrr): Confession is one of the legalsubjects of Islam. If a person claims that he another

owes him money he must put forth evidence. If hecannot put forth evidence his claim will bedismissed. But, if the other person confesses to thefact that he owes the plaintiff money, his confessionwill take the place of evidence.

9. Reward (julah): Julah is similar to renting aperson to perform an action, except in julah a

specific person is not rented, rather the person saysthat he would pay a certain amount of money toanyone who performs a specific action.

10. Vows (aymn): Aymn is the plural of theArabic term yamn which consists of two types ofvows: halafand qasam. If a person vows to performa certain action it is obligatory on him to perform it.

Of course there are conditions:A. If the vow was taken in Allahs name.

It is not obligatory to carry out a vowtaken in the Prophets, Imms orQurns name.

B. If the action is permissible. It is notobligatory to carry out a vow made to

perform a forbidden or dislikedaction.

Examples of correct vows are to read so and sogood book from cover to cover or to brush onesteeth every day. If one does not carry out a correctvow he must pay the penalty.

11. Pledge (nadhr): A pledge is different than a vowand it has specific wording. If a person wants topledge to perform the daily recommended prayers

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he must say: lillah alayi (literally translated as forAllah on me) to perform the daily recommended

prayers every day. The pledge is conditional on thefact that the action is beneficial for ones religion orworldly affairs. A pledge to perform an action thatis neither beneficial nor harmful is invalid.

The wisdom behind carrying out the vow or pledgeis because they are types of contracts made withAllah and it is obligatory to be true to ones

contracts that he makes with other people37, so it isalso obligatory on one to be true to the contracts hemakes with Allah.

MISCELLANEOUS RULINGS

The forth section of jurisprudential rulings ismiscellaneous rulings. Miscellaneous rulings does

not have a specific definition, rather Muhaqiq Hillput everything that was not worship, contracts orone-party contracts into this section. He divided thissection into twelve subjects:

1. Hunting and slaughtering animals (sayd anddhibhh): Before anything, we will say: Ananimal whose meat is lawful to eat becomes lawfulwhen it is slaughtered in a specific way, fished in aspecific way, hunted by a trained dog (in relation tosome animals) or hunted by a weapon that has aspearhead, like an arrow or spear.

If an animal is slaughtered or hunted in the above-mentioned method, the rulings of a tadhkyah38 will

37 Refer to 5:138 Opposite of a carcass.

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apply to it, not the rulings of a carcass. A carcass isspiritually unclean and is forbidden to eat.

Hunting is only allowed on the wild animals whosemeat can be eaten, like gazelle, mountain goats,wild cows and the likes. Hunting is not allowed ondomesticated animals like sheep and cows.

The dog that is used to hunt is conditional on his being trained, the animal that an untrained dog

retrieves is not allowed to eat. Likewise one isunable to use other predatory animals.

The weapon used to hunt is conditional on it beingmade out of iron, or at least another material that ismined, so it is not allowed to hunt with a weaponmade out of rock. Another condition is that the

person hunting or slaughtering an animal must be

Muslim and must start his action by the name ofAllah. There are other conditions as well.

2. Food and drinks (atamah and ashrubah): Thereare a series of rulings in Islam regarding eating anddrinking, given to make sure one uses nature

beneficially. Examples of these are hunting andslaughtering animals, which have been mentioned,and food and drinks. Islam generally permits

beneficial items and forbids harmful items, but doesnot satisfy itself with this general principle. In somecases the harm of a certain item is mentioned whichnecessitates staying away from it or the benefit ofan item is mentioned which allows the usage of it.

There are two types of food: animal and non-animal. Animals are divided into two categories: seaanimals, land animals. None of the animals in the

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sea are allowed except fish that have scales. Landanimals are divided into two categories: wild and

domesticated. From amongst the domesticatedanimals cows, camels and sheep are permissible.Horses, mules and donkeys are also permissible butit is disliked to eat them. Dogs and cats areforbidden to eat. From amongst the wild animals

predatory animals and insects are forbidden to eat,but wild cows, wild donkeys and mountain goatsare permissible. Rabbits are also forbidden to eat,

even though they are not predatory animals.

Different kinds of birds are allowed to eat, forexample pigeons, ducks and chicken. Predatory

birds are forbidden to eat.

It is forbidden to eat non-meat items if they are aspiritually unclean substance or a spiritually clean

substance that has become spiritually unclean. It isalso forbidden to eat anything that is harmfulaccording to the general public. So, for example, itis forbidden to eat poison, even if it is tasty.

It is forbidden to eat dirt, if it is harmful or not. It isalso forbidden to drink any intoxicating substanceor eat someone elses food without their permission.

3. Usurpation (ghasb): Usurpation is using theproperty or rights of another without his consent.This is forbidden and one would owe the owner ifhis property becomes destroyed. It is forbidden forone to use anything that has been usurped, so oneswud would become invalid if performed with

usurped water or ones prayer would becomeinvalid if performed wearing usurped clothes or inan usurped place.

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4. Right of pre-emption (shufah): The right of pre-

emption is the right that a partner has to purchasethe partnership of a third party who bought it fromhis partner. So, if two people purchase an item andone of them sells his share the other has the right to

purchase the share from the third party at the sameprice.

5. Cultivation of virgin land (ah y al-amwt):

Cultivation of virgin land is a piece of deserted landwhich one uses, even if he brings water or anythingelse in order to use the land for farming. TheProphet of Islam (s) said: Whoever cultivates a

piece of virgin land, it is for him.

There are many issues dealt with in this section.

6. Lost property (luqtah): The general meaning oflost property is property that that the owner lost andnobody else has obtained it. There are two kinds ofthis lost property: animal and non-animal.

The finder does not have the right to take theproperty as his own if it is an animal and he doesnot fear that it will die. But, if he does fear that itwill die, for example, if he finds a sheep in themiddle of the desert, he can take it as his own but hemust search for its owner. If he finds the owner hemust give the sheep to him, but if he does not findthe owner then it becomes property with anunknown owner which should be spent on the poorwith the permission of a jurist.

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If the lost property is not an animal and worth lessthan half of a mithql39 of a silver coin, the finder

can take it as his own. But, the finder mustannounce that he has found the lost item and searchfor its owner for one year if it is worth more thanthe above mentioned amount (of course, items thatwould go bad, like fruit, are not included in thisruling). If the owner was not found and the finderfound the item in the Holy Mosque of Mecca, thefinder can do one of two things: he can give it away

as charity and give the price of the item to theowner if he ever finds him or he can keep it for theowner. If he found it anywhere outside of the HolyMosque of Mecca he can do one of three things: hecan take ownership of the item and owe the ownerthe price of the item if the owner is found or he cangive it away as charity and pay back the owner iffound or keep it as a trust for the owner.

If there is no sign on the item there is no need toannounce that one has found it, rather the finder will

be able to choose between the three above choices.

7. Inheritance (farid): The rules of inheritance inIslam are obligatory to follow. It is not permissiblefor the deceased (during his life) to split up theinheritance however he desires or to give all of his

possessions to one person. The division of propertyis done on three levels. If there is a person on onelevel, the lower levels do not receive inheritance.

The first level: Parents and children and if oneschildren died, grandchildren.

39 An ancient form of measurement.

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The second level: Grandparents, brothers and sistersand if ones brothers and sisters died, nieces and

nephews.

The third level: Aunts and Uncles and theirchildren.

These are according to family relations, but if one isrelated because of a reason, for example marriage,they inherit in every level.

The amount that everyone inherits is explained indetail in the books of jurisprudence.

8. Judgment (qad): What is meant is the judgmentmade between people in order to settle theirdisputes. There are many issues addressed in thissection that cannot be explained here, but we will

mention some brief points:

The court system in Islam is a special system thatmakes sure that justice is served in a precise way.One of the ways to prove this is by mentioning thespecial conditions that Islam gives for one to

become a judge. Some of the conditions are: Hemust be a mujtahed on a scholastic level and hisijtihdmust be established. His morals must also bein congruence with Islam. Another condition is thathe must be pious and stay away from sin, even thesins that have nothing to do with being a judge. The

judge is not allowed to take money from thedefendants or plaintiffs, rather he is awarded a largesum of money from the Muslim treasury.

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Confessions and witnesses (and nowadays oaths)are effective in proving or disproving ones claim in

the Islamic court system.

9. Witnesses (shahdt): Witnessing is a branch ofthe section of judgment. Confessions are the same.If one claims, for example, that another person oweshim money, the other person can either confess orreject the claim. If he confesses it is enough for the

judge to order that the money be paid. If he rejects

the claim, the plaintiff must bring evidence to provehis claim. One way to bring evidence is having awitness. If he has a witness and all of the conditionsof being a witness and giving testimony areobserved, his claim will be proved. The defendantdoes not have to bring proof that he is innocent.Sometimes the defendant has to give an oath that heis innocent.

10. Fixed and open legal punishments (hadd andtazrt): These punishments are related to Islams

penal system and are also related to the sections of judgment and witnesses. Islam has given certainpunishments for certain crimes which are supposedto be carried out in every situation, every place andevery age. These punishments are called hadd.There are some punishments that are up to the judgeto determine, where he can look at the situation andmake the punishment more or less severe. These

punishments are called tazrt.

We will mention some of the hadd, briefly,because mentioning them in length should be done

in other books.

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committed intentionally, similar to second-degreemurder or accidentally.

Intentional murder is when the criminal hits theperson with the intention of killing him, if he used aweapon or not, and the victim dies. The importantthing here is the intention.

Second degree murder is when the criminalintentionally hits the person but without the

intention of killing him, but he dies. For example hewanted to wound the person but ended up killinghim. Or, if the person wants to punish a child byhitting him and the child dies.

Accidental murder is when the killer did not haveany intention at all.

If the murder was committed intentionally theinheritors of the victim have a right called qass.They can use this right and have the murdererexecuted in an Islamic court. But the murderer isnot executed if the murder was committed in thesecond-degree or unintentional.

12. Fines (dyt): Fines are another right that isgiven to the victim or his inheritors. The differenceis that in qass there is the eye for an eye feeling

but a dyah is a fine.

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OTHER BOOKS AVAILABLE AT:

WWW.LULU.COM/ISLAMICBOOKS

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http://www.lulu.com/ISLAMICBOOKShttp://www.lulu.com/ISLAMICBOOKS


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1. Islamic Laws According to the verdicts of ImamKhomeini and Sayyid Ali Khamenei

2. Islamic Ethics by Ayatollah Shaheed Dastghayb

3. Hypocrites: A Commentary on Surah Munafiqunby Ayatollah Jafar Subhani

4. A Glimpse into the life of Prophet Muhammad(s) by Muhammad Muhammadi Eshtahardi

5. Elementary Arabic Morphology 1 by Rashid al-Shartuni

6. Elementary Arabic Syntax 1 by Rashid al-Shartuni

the basics of islamic jurisprudence-

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